SZVEB v Minister for Immigration and Border Protection (No 2)

In the case of SZVEB v Minister for Immigration and Border Protection (No 2), the applicant, a male citizen of Pakistan who had arrived in Australia in 2012, sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) affirming a delegate's refusal to grant him a Protection (Class XA) visa. The Tribunal had proceeded to make its decision in the applicant's absence, as he did not attend the hearing on 1 September 2014. The primary judge in the Federal Circuit Court dismissed the applicant's application for judicial review, finding that the Tribunal had complied with the statutory and regulatory requirements in proceeding to make the decision without the applicant's presence. The applicant sought leave to appeal to the Federal Court and reinstatement of his application for judicial review. The Minister opposed the grant of relief and leave to appeal, arguing that the substantive appeal lacked merit and would not result in injustice if dismissed.

The court considered whether the primary judge erred in finding that the Tribunal's decision was not invalidated by the applicant's absence. The court noted that the primary judge found that the Tribunal had complied with s 426A of the Migration Act, which permitted it to proceed to make a decision in the applicant's absence. The court held that the primary judge did not err in finding that the Tribunal's actions satisfied the requirements of s 425A of the Migration Act and s 441A(4) of the Migration Act and reg 4.35D of the Migration Regulations. The court found that the primary judge was satisfied that the invitation to the applicant was sent within the required timeframe and by the prescribed method. The court held that the primary judge was therefore correct to find that the Tribunal's decision was not invalidated by the applicant's absence.

The court dismissed the application for reinstatement and leave to appeal, finding that the substantive appeal lacked merit and would not result in injustice if dismissed. The court ordered that the application be dismissed, the previous order reinstating the application be vacated, and the applicant pay the first respondent's costs as agreed or taxed.