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

This matter concerned an application by Mr Merhi for judicial review of a decision made by the Administrative Appeals Tribunal. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The core of the dispute revolved around the Tribunal's handling of Mr Merhi's request to call witnesses to give oral evidence during his review hearing.

The primary legal issue before the court was whether the Administrative Appeals Tribunal committed jurisdictional error by failing to consider Mr Merhi's request to call witnesses. Specifically, the court had to determine if the Tribunal was obliged to have regard to Mr Merhi's request under section 361(3) of the *Migration Act 1958* (Cth), and if not, whether it had a discretionary power to receive oral evidence that it failed to consider.

Driver J found that Mr Merhi's request to call witnesses was not made in accordance with the timeframes stipulated in section 361(2) of the *Migration Act 1958* (Cth). Consequently, the Tribunal's statutory duty under section 361(3) to have regard to the applicant's notice was not enlivened. However, the court noted that the Tribunal retained a discretionary power to take evidence under section 364(1)(a) and receive oral evidence by telephone under section 366. The Tribunal's reasons were silent on whether it considered these discretionary powers. The court held that the Tribunal's silence did not permit an inference that it failed to consider its discretion, as it was not obliged to state reasons for considering these powers separately from its substantive decision. Despite this, the court concluded that Mr Merhi had succeeded in establishing that the Tribunal's decision was affected by jurisdictional error.