DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The appellant, a citizen of India and a Sikh from the Punjab region, appealed against a decision of the Federal Circuit and Family Court of Australia (Division 2) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The appellant had arrived in Australia on a Student visa and later applied for a Protection visa, which was refused by a delegate of the Minister. The appellant sought review of the delegate's decision by the AAT, but failed to appear at a rescheduled hearing before the Tribunal. The Tribunal exercised its discretion under s 426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. The Tribunal rejected the appellant's claims on credibility grounds based on insufficiency of information about the claims. The appellant argued that it was legally unreasonable for the Tribunal to make a decision on the review under s 426A(1A)(a) rather than dismissing the application under s 426A(1A)(b) and that s 426 of the Migration Act requires the Tribunal to have regard to a review applicant’s expressed wish to appear before the Tribunal and give oral evidence. The court held that the Tribunal acted outside the bounds of legal reasonableness in exercising power under s 426(1A)(a) and that the Tribunal is not required by s 426 of the Migration Act to have regard to a review applicant’s wish to give oral evidence to the Tribunal. The appeal was allowed, the orders of the Federal Circuit Court were set aside, and the matter was remitted to the AAT for determination in accordance with law. The Minister was ordered to pay the appellant’s costs.