NAFF v Minister for Immigration and Multicultural and Indigenous Affairs

The applicant, NAFF, appealed to the High Court of Australia against a decision of the Full Court of the Federal Court of Australia. The dispute concerned the Refugee Review Tribunal's handling of NAFF's application for review of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs. The Tribunal had expressed concerns about inconsistencies in NAFF's evidence and indicated it would provide an opportunity for a written response, but failed to do so before making its decision.

The High Court was required to determine whether the Tribunal's failure to allow NAFF to respond in writing to its stated concerns constituted a breach of its statutory duties. Specifically, the Court considered whether this failure amounted to a breach of the duty to complete the review process under s 414(1) of the *Migration Act 1958* (Cth), and whether it breached the duty to hear from the applicant under s 425(1) of the Act. The Court also considered whether a reviewable error occurred in the absence of evidence from NAFF regarding the effect of this failure.

The Court reasoned that the Tribunal's statement that it would give NAFF a chance to respond in writing constituted an undertaking that was relevant to the outcome of the hearing. The Tribunal's failure to observe this undertaking was considered a departure from the requirements of procedural fairness. The Court found that the duty to review under s 414(1) entailed a statutory duty to consider arguments presented and afford procedural fairness, which included allowing the applicant to respond to concerns raised by the Tribunal. The Court noted that the relevant provisions of the Act, which imposed duties of procedural fairness, were not excluded by later amendments.

The High Court allowed the appeal, setting aside the orders of the Full Federal Court and the original order of Tamberlin J. The Court issued a writ of certiorari to quash the Tribunal's decision and a writ of mandamus directing the Tribunal to determine NAFF's application according to law. The Minister was ordered to pay NAFF's costs.