KAUR v Minister for Immigration

In *Kaur v Minister for Immigration*, heard by Judge Blake, the applicants sought judicial review of a decision by the Migration Review Tribunal. The dispute centred on the Tribunal's finding that it had no power to permit the applicants to appear before it to give evidence and present arguments, following the applicants' failure to respond to a section 359A invitation within the stipulated timeframe. The applicants contended that this finding constituted jurisdictional error.

The primary legal issue before the Court was whether the Tribunal erred in law by concluding it lacked the power to allow the applicants to appear before it. This required the Court to construe sections 359C, 360, 363, and 363A of the *Migration Act 1958* (Cth) to determine if the Tribunal possessed the power to invite the applicants to appear under section 363(3)(a) of the Act, notwithstanding the applicants' failure to respond to the section 359A invitation and their consequent loss of entitlement to a hearing under section 360. The applicants argued that the power under section 363(3)(a) was available irrespective of whether a hearing under section 360 was contemplated.

Judge Blake considered the applicants' submissions that the Tribunal misunderstood its powers, thereby denying them a material opportunity to present their case. The applicants accepted that section 359C was engaged, that they received a section 359A invitation to which they did not respond by the deadline, and that they consequently lost their entitlement to a hearing under section 360. The Court noted that the resolution of the novel and complex issues of statutory construction would only advance the applicants' case if they could first demonstrate that the Tribunal had committed an error of jurisdiction. The Court indicated it would first address whether such an error had occurred.