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

In the Federal Court of Australia, Blake J considered an application for review brought by an applicant from Zambia against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant had arrived in Australia in February 2009 and, after a series of visas expired, applied for a further visa in March 2016. As she did not hold a substantive visa at the time of her application, she was informed by the Department of Immigration and Border Protection that she needed to satisfy additional criteria under Schedule 3 of the Migration Regulations 1994. She was invited to provide reasons why these criteria should not apply, but an extension of time to do so was refused. Ultimately, a delegate of the Minister refused the visa application. The applicant then sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the court was whether the Administrative Appeals Tribunal had erred in law in affirming the delegate's decision to refuse the visa. This involved considering whether the Tribunal had properly assessed the applicant's submissions regarding compelling reasons not to apply Schedule 3 criteria, and whether the applicant's non-attendance at a scheduled hearing constituted a failure to provide sufficient information or engage with the review process. The court also implicitly considered the procedural fairness afforded to the applicant throughout the Departmental and Tribunal processes.

Blake J reasoned that the Tribunal had afforded the applicant procedural fairness. The Tribunal had provided ample opportunity for the applicant to submit information regarding compelling reasons for not applying Schedule 3 criteria, both in writing and at a scheduled hearing. The applicant's representative had made written submissions, and the applicant was explicitly invited to attend the hearing. The fact that the applicant did not attend the hearing, without any explanation or contention that the invitation was deficient, meant that the Tribunal was entitled to proceed with the review based on the information before it. The court found no error of law in the Tribunal's decision to affirm the delegate's refusal.