Kaur v Minister for Immigration and Border Protection

Kaur and others sought to appeal a decision of the Federal Circuit Court, which had affirmed the decision of the Migration Review Tribunal to refuse their applications for a student visa. The appellants argued that the Tribunal had breached procedural fairness and its statutory obligations under the Migration Act 1958 (Cth) by failing to provide adequate notice of a second hearing and by proceeding to make a decision without the appellants' presence. The Federal Circuit Court had found that the Tribunal's decision was not affected by jurisdictional error, but the appellants contended that this was incorrect and sought a review of the Tribunal's decision.

The central legal issues in this case were whether the Tribunal's exercise of discretion to finalise the review was legally unreasonable and whether the appellants were denied procedural fairness. Furthermore, the court had to determine if the Tribunal failed to fulfil its obligations under section 360 of the Migration Act, and if the Federal Circuit Court had erred in not finding that the Tribunal's decision was affected by jurisdictional error. The appellants argued that the Tribunal's failure to provide further action before deciding to complete the review amounted to a breach of section 362B of the Act.

The court considered the Tribunal's statutory task, which is to arrive at the correct or preferable decision in the case before it according to the material before it. The court emphasised that the Tribunal has the necessary degrees of flexibility to ensure it can fully perform its statutory task, and that there is no contrary intention to section 33(1) of the Acts Interpretation Act 1901 (Cth), which provides that where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. The court found that the Tribunal's decision was affected by jurisdictional error, as the Tribunal had failed to take further action before deciding to complete the review, and thus breached the appellants' procedural fairness rights.

The appeal was allowed, and the orders of the Federal Circuit Court were set aside. In lieu of the orders, the decision of the Migration Review Tribunal dated 7 March 2013 was set aside, and the Tribunal was required to hear and determine the appellants' application for review according to law. The parties were given time to file agreed proposed orders as to costs, and if no agreement could be reached, written submissions on the question of costs were to be filed and served within the specified timeframe.