breach of a given condition could sound in invalidity in some cases, but not in others, depending on the consequences of the breach. Project Blue Sky left that question open, even if the logic of the decision arguably supports the view that this result would follow, if that were the purpose of the statutory scheme in question.
189 The High Court resolved the question in Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 (SZIZO). That decision concerned provisions of the Migration Act 1958 (Cth) that set out an exhaustive statement of the requirements of the natural justice hearing rule in relation to certain matters forming part of a review conducted by the Refugee Review Tribunal. In the events that transpired, ss 425A, 441A and 441G of the Migration Act obliged the Tribunal to give a notice inviting the review applicants to attend a hearing by giving the notice to an "authorised recipient". Instead of giving the notice to the relevant authorised recipient, the Tribunal gave the notice to SZIZO. The High Court accepted at [24] that SZIZO and the other respondents had not suffered any unfairness or prejudice by reason of the Tribunal's failure to comply with its statutory obligation.
190 In these circumstances, the High Court framed the question at [26] as being –
what consequence follows if an invitation to attend a hearing was not given to the authorised recipient, but was given to one of the applicants for review, and came to the attention of other applicants for review and the authorised recipient in due time? Was it a purpose of the legislation that, despite holding a hearing at which all of the applicants for review, including their authorised recipient, appeared before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review (s 425(1)), the Tribunal could not validly decide the review?
(Citations omitted.)
The Court cited Project Blue Sky at [91] in support of this framing of the issue.
191 The Court then analysed the place of the relevant provisions as part of an exhaustive statement of the requirements of the natural justice hearing rule. At [33]–[34], the Court described ss 425A and 441G as ensuring that an applicant for review receives timely and effective notice of the hearing. Ultimately, ss 441A and 441G were described at [36] as "procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing". Accordingly, the Court held that "a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice". In other words, whether failure to comply with these conditions on the exercise of a statutory review jurisdiction invalidates the subsequent exercise of power was said to turn on
