Minister for Immigration & Multicultural Affairs v Mohammad

In the case of Minister for Immigration & Multicultural Affairs v Mohammad, the appeal was brought by the Minister against a judgment of the Court which had set aside a decision of the Refugee Review Tribunal (RRT). The primary dispute involved the respondent, Elias Kanchan Mohammad, a citizen of Bangladesh who had entered Australia in 1997 and applied for a protection visa. His application was initially refused by a delegate of the Minister, but he subsequently sought review by the RRT. While his application for judicial review was pending, Mohammad changed his address without notifying the RRT. The RRT sent a notice of a further hearing to his old address, which he did not receive, leading to the affirmation of the delegate’s decision. The Court had previously set aside the RRT's decision and remitted the matter back to the RRT for reconsideration.

The legal issues before the court included whether the RRT had complied with the statutory obligations to notify Mohammad of the hearing and the implications of Mohammad's failure to provide evidence due to lack of notification. The court examined sections 425, 425A, and 441A of the Migration Act 1958 (Cth), which mandate the RRT to invite applicants to appear before it and provide notice of the hearing details. The court also considered whether Mohammad's failure to attend the hearing could be inferred adversely against him, given that he had not been properly notified.

The court found that the RRT had not given Mohammad proper notice as required by the Act and Regulations, leading to the conclusion that the RRT's decision could not stand. The court emphasised that an applicant's failure to give evidence due to lack of proper notification could not lead to an adverse inference. The court also noted that while the RRT's reasons did not clearly indicate an adverse inference was drawn from Mohammad's failure to attend, the lack of notification meant he was not given an opportunity to provide evidence. The court dismissed the appeal and ordered it to be done with costs.