MZZMG v Minister for Immigration and Border Protection

The case of MZZMG v Minister for Immigration and Border Protection involved the appellant, a Sri Lankan national, who, along with his brother, sought a review of decisions to refuse them protection visas. The appellant contested the conduct of a joint hearing of his and his brother's visa applications by the Refugee Review Tribunal, now a division of the Administrative Appeals Tribunal. The primary contention was that the Tribunal erred by excluding the appellant from the hearing while his brother gave evidence. The appellant argued this exclusion was both a breach of procedural fairness and an improper exercise of discretion by the Tribunal.

The legal issues before the court were whether the Tribunal had the power to exclude the appellant from the hearing and, if it did, whether this exclusion was reasonable. The appellant argued that the Act did not confer an express power of exclusion and that any implied power would contravene principles of open justice. The Minister countered that the Tribunal's discretion to obtain evidence in the absence of an applicant, subject to procedural fairness, supported the exclusion. The court had to determine whether the Tribunal's decision to exclude the appellant was legally unreasonable.

The court held that the Migration Act did not confer an express power to exclude an applicant from a hearing. However, the court recognised that the Tribunal has an implied discretion to obtain evidence in the absence of an applicant, provided it adheres to procedural fairness. The court found that the Tribunal's decision to exclude the appellant was not legally unreasonable. The Tribunal's discretion to conduct the hearing in a manner that ensures procedural fairness to both applicants justified the exclusion, as long as the appellant's rights were not prejudiced. The court emphasised that the exclusion did not contravene open justice principles because the private nature of the hearing is intended to protect the applicant's identity and claims.

Consequently, the appeal was dismissed. The court found that the Tribunal's exercise of its discretion to exclude the appellant from part of the hearing was not legally unreasonable, and the Tribunal's decision was affirmed. The appellant was ordered to pay the costs of the appeal.