Aman v Minister for Immigration and Citizenship
[2025] FedCFamC2G 712
•20 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aman v Minister for Immigration and Citizenship [2025] FedCFamC2G 712
File number(s): SYG 336 of 2020 Judgment of: JUDGE LAING Date of judgment: 20 May 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the applicant did not attend a scheduled hearing – whether the Tribunal’s exercise of discretion under s 362B(1A)(a) of the Migration Act 1958 (Cth) was legally unreasonable or otherwise affected by error – application dismissed Legislation: Migration Act 1958 (Cth) ss 362B, 379C & 426A
Migration Regulations 1994 (Cth) Sch 2, cl 500.213
Cases cited: DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091
Division: General Number of paragraphs: 30 Date of hearing: 5 March 2025 Place: Sydney Applicant: Appearing in person Solicitor for the First Respondent: Mr J Hutton of Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 336 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMAN AMAN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
20 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”, dispensing with the need for filing any further document in this regard.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (as it was) (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
BACKGROUND
The applicant applied for a student visa on 22 February 2019.
On 2 April 2019, the Delegate refused the application on the basis that the applicant did not meet cl 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That provision required the applicant to provide evidence regarding his English language proficiency in a manner meeting requirements specified in legislative instrument IMMI 18/015.
On 9 April 2019, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 13 December 2019, the Tribunal wrote to the applicant inviting him to a hearing scheduled on 29 January 2020. The correspondence warned:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The invitation also requested that information and documents be provided to the Tribunal at least 7 days before the hearing date.
SMS reminders of the hearing were sent to the mobile number the applicant had provided to the Tribunal, on 21 and 28 January 2020.
No further contact was made by the applicant with the Tribunal. The applicant did not attend the hearing before the Tribunal.
On 29 January 2020, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[7] of its decision. At [3]-[7], the Tribunal reasoned:
3.The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
4.On 13 December 2019 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 29 January 2020 at 2.30pm. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.
5.The applicant did not appear before the Tribunal on the day and at the scheduled time and place.
6.Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) of the Act and the invitation has not been returned to sender.
7.In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
At [8]-[10], the Tribunal gave the following reasons for affirming the Delegate’s decision:
8.To meet cl.500.213, the applicant must, if required by the Minister, give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument: cl.500.213(1). IMMI 18/015, which is attached to this decision, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
9.In this case, the applicant was required by the Minister to provide such evidence. According to the delegate’s decision record, the applicant did not provide the Department with adequate evidence of English language proficiency. Crucially, no further evidence was provided to the Tribunal.
10. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213.
APPLICATION FOR REVIEW
On 17 February 2020, the applicant applied for judicial review of the Tribunal’s decision. The following grounds were stated in the application:
1.APPLICANTS CLAIMS THAT THE ADMINISTRATIVE APPEAL TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM APPLICANT TO CONSIDER ON THE COMPASSIONATE REASON.
2. APPLICANT APPEAL TO COURT THAT HE DID NOT GET JUSTICE.
3.I APPELANT REQUEST TO COURT THAT MY APPLICATION REJECTED BY AAT WITHOUT INTERVIEW.
4. AAT DID NOT CALL ME FOR INTERVIEW.
(As per the original)
The application did not state what compassionate reason the applicant felt that the Tribunal had failed to consider. As set out above, the Tribunal found that the applicant was unable to meet an objective criterion for the visa. The Tribunal had no power to waive that criterion on a compassionate basis.
Compassionate circumstances, if explained to the Tribunal prior to its decision, may have affected the Tribunal’s exercise of discretion under s 362B of the Migration Act 1958 (Cth) (Act). However, the applicant accepted at the hearing before the Court that he had not communicated the compassionate circumstances that he had in mind to the Tribunal. The Tribunal did not err in failing to take into account something that was never communicated to it.
The applicant explained that he had not had the opportunity to communicate his circumstances to the Tribunal. The question, then, is whether the Tribunal relevantly erred in proceeding to a decision after the applicant did not attend the hearing before the Tribunal. By this exercise of discretion, the applicant lost any further opportunity he may have otherwise had to communicate his circumstances to the Tribunal.
The material before the Court confirms that the applicant was invited to a hearing before the Tribunal (CB 81-91). As the invitation was sent to the last (and only) email address provided by the applicant to the Tribunal in connection with the review, the applicant was taken to have received it at the end of the day on which it was transmitted in accordance with s 379C(5) of the Act. At the hearing before the Court, the applicant accepted that he may have received the hearing invitation. However, the applicant explained that he had experienced some family related difficulties. Those difficulties were not communicated to the Tribunal.
In the above circumstances, when the applicant did not appear before the Tribunal, the Tribunal had a discretion under s 362B(1A)(a) of the Act to make a decision on the review without taking any further action to allow the applicant to appear before it. That discretion had to be exercised reasonably.
The discretion under s 362B(1A)(a) of the Act was located in s 362B of the Act, which provided:
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 368A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.
Reinstatement of application or confirmation of dismissal
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
Note:Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b)confirm the decision to dismiss the application, by written statement under section 368.
Note 1:Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2:Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b)the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E)If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
Note:Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G)To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
In accordance with his model litigant obligations, the Minister raised the decision of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17). In that case, Horan J found that the Tribunal’s exercise of discretion to make a decision on the review under the analogous s 426A(1A)(a) of the Act was legally unreasonable. This was in circumstances where there had been prior adjournment requests made on behalf of the applicant that had been granted. The Tribunal had refused a further adjournment request, based upon medical grounds, in relation to a hearing not ultimately attended by the applicant.
At [94] to [96] of that decision, his Honour considered the alternative options available to the Tribunal under s 426A(1A)(a) and s 426A(1A)(b) of the Act as follows:
94.Any determination of the question whether there is an intelligible justification for the Tribunal’s decision, including whether the Tribunal has come to that decision through an intelligible decision-making process, requires an examination of the “decision-making pathways” that were reasonably open to the Tribunal: compare ABT17 at [21] (Kiefel CJ, Bell, Gageler and Keane JJ). As discussed above, there are differences between the consequences that attach to an exercise of the powers conferred by ss 426A(1A)(a) and (b) respectively. The amendments were intended to give the Tribunal “the option of dismissing the application or making a decision on the review”: see the extract from the Explanatory Memorandum set out at paragraph 59 above. The new additional power was intended “to increase tribunal efficiency by providing for a quick resolution of a case”, so as to allow the tribunal “to focus resources away from matters that are not actively being pursued by the review applicant”. Thus, in exercising the dismissal power under s 426A(1A)(b), the Tribunal is not required to give any further consideration to the application or the information before the Tribunal.
95.Unless the review applicant seeks reinstatement of the application within the 14-day period, the dismissal of the application will be confirmed under s 426A(1E). The review applicant therefore has a final opportunity to keep the application on foot, provided that he or she can satisfy the Tribunal that it is appropriate to do so under s 426A(1C)(a). This could potentially encompass any explanation for the applicant’s failure to appear at the scheduled hearing, together with the substantive merits or prospects of the review application and the information relied on in support of that application.
96.On the other hand, if the Tribunal proceeds to make a decision on the review under s 426A(1A)(a), the Tribunal will be required to consider the application and the information before the Tribunal in order to reach the correct or preferable decision on the available evidence. As the appellant submitted, the Tribunal’s consideration will take place in a context in which the Tribunal has previously formed a view that it cannot make a favourable decision on the review on the basis of the material before it. Accordingly, unless additional material has subsequently been provided to or obtained by the Tribunal, it is unlikely that the Tribunal’s decision on the review under s 426A(1A)(a) will be in the review applicant’s favour. The Tribunal will nevertheless be required to make findings on all material questions of fact and identify the evidence or other material on which those findings were based: s 430(1).
At [97]-[99], his Honour considered:
97.In some cases, of which the present case is an example, the information before the Tribunal in support of the application might be bereft of sufficient detail to establish the claims made by the review applicant. In such circumstances, it might be relatively straightforward for the Tribunal to make findings and reach a decision on the review based on the insufficiency of the material provided in support of the application. However, that is arguably encompassed within the types of cases to which the dismissal power conferred by s 426A(1A)(b) is addressed. Not only does dismissal in such circumstances advance the interests of efficiency, it leaves the review applicant with a brief window of opportunity in which to seek reinstatement of the review application.
98.That is not to say that an exercise of power to dismiss a review application under s 426A(1A)(b) following the non-appearance of the review applicant at a scheduled hearing will always be advantageous to the review applicant. There is no unconditional right to have the application reinstated, and any reinstatement application must be made promptly within 14 days, without any power to extend that period. If the application is not reinstated, the dismissal will be confirmed and the decision under review will be taken to be affirmed: s 426A(1F). In such circumstances, the protection visa application will have been finally determined. For these reasons, the power to dismiss an application under s 426A(1A)(b) has significant consequences for the review applicant, and should be exercised with proper attention to those consequences. It may be that the power should be exercised “sparingly”, at least in so far as it may be appropriate to take into account other available courses of action such as granting an adjournment or rescheduling the hearing: compare Charara v Commissioner of Taxation [2016] FCA 451; 160 ALD 57 at [79] (Wigney J), considering the different dismissal power conferred by s 42A(5) of the AAT Act; see also Guse v Comcare [1997] FCA 961; 49 ALD 288 at 291 (Burchett J). In some cases, however, it may be apt to characterise the option of dismissal of an application under s 426A(1A)(b) as “a middle path”, in that it carries with it the possibility of reinstatement, and to view the option of making an adverse decision on the review as a “harsher response”: see Ijaz v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 688 at [41] (Judge Champion).
99.Nothing in the foregoing discussion is intended to constrain the options available to the Tribunal in the event that a review applicant fails to appear at a scheduled hearing. It remains within the area of the Tribunal’s decisional freedom to consider which of the available options is appropriate in the particular circumstances of each case — whether to grant an adjournment and reschedule the hearing, to make a decision on the review, or to dismiss the application. However, the decision by the Tribunal must be within the bounds of legal reasonableness, and must have an evident and intelligible justification.
By reference to the particular circumstances of that case, his Honour found that the exercise of discretion lacked an evident and intelligible justification (at [100]-[114]).
The decision in DNK17 turned upon its own particular facts and has been distinguished in subsequent cases. For example, in Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 (Singh), Judge Symons considered (at [50]-[54]):
50.The Minister submitted that despite the outcome in DNK17, the case did not stand for the principle that it will always be unreasonable for a decision-maker exercising powers under Part 7 or Part 5 of the Act, to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing.
51.It is clear from DNK17 that this last submission is correct. Despite finding that the Tribunal had acted unreasonably in the exercise of its discretion to proceed under s 426A(1A)(a), Horan J acknowledged that it remained within the area of the Tribunal’s decisional freedom to consider which of the available options is appropriate to the particular circumstances of each case, provided that the decision made has an evident and intelligible justification (DNK17 at [99]). In assessing the quality of the decision, the focus remains squarely on the reasons in fact given.
52.The reasons given by the Tribunal in this case were directed at the steps taken to invite the applicant to a hearing and the advice given that failure to appear might result in a decision without further notice. The Tribunal was satisfied that the applicant had been properly invited to the hearing, that the invitation had not been returned, that the applicant had not responded to the hearing invitation and had then not appeared at the hearing. In the circumstances of this case the reasoning, while sparse, provided an evident and intelligible justification for the decision to proceed under s 362B(1A)(a), rather than the potentially more beneficial, s 362B(1A)(b). Put simply, the narrative that underscored the Tribunal’s approach was that the applicant having notice of the hearing, having been advised of the consequences of a failure to appear, and having failed to appear or to respond to the hearing invitation, was unlikely to take up any further opportunity to engage with the Tribunal or the review process. This narrative provided a rational justification for the decision of the Tribunal to exercise the power to decide the review under s 362B(1A)(a) as well as its decision to decline to exercise the dismissal power pursuant to s 362B(1A)(b).
53.While recognising the limits of comparative exercises when it comes to assessment of legal unreasonableness (or for that matter, any category of jurisdictional error), it seems to me that the present case is more analogous to that considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541. The exercise of power in that case “was explained and justified by the history of non-responsiveness on the part of the applicants, from which it was open to infer that any attempt to contact them or to reschedule the hearing was likely to have been futile” (DNK17 at [74] with reference to SZVFW at [2], [14], [70], [78], [123], [140]-[141]).
54.In all of these circumstances I find that the decision by the Tribunal to exercise the power under s 362B(1A)(a) of the Act was not legally unreasonable.
Ultimately, each case must turn upon its own circumstances.
In the present case, the Tribunal had a discretion under s 362B(1A)(a) of the Act to make a decision on the review without taking any further action to allow the applicant to appear before it. An alternative exercise of discretion was available under s 362B(1A)(b) of the Act. If the Tribunal had dismissed the application under that provision, then the applicant would have had the opportunity of applying for reinstatement. The Tribunal could, alternatively, have adjourned the scheduled hearing: see s 362B(2) of the Act.
The Tribunal gave reasons for proceeding to make a decision under s 362B(1A)(a) of the Act. Those reasons were, essentially, the background to the matter. This included the basis for the Delegate’s refusal, the Tribunal’s invitation to attend a hearing warning the applicant of the consequences of non-attendance and the fact of the applicant’s non-appearance. As in Singh, that background did not (unlike in DNK17) demonstrate any particular history of engagement by the applicant with the review process. Within this context, the Tribunal was satisfied that the applicant had been appropriately notified of the scheduled hearing and that he had not appeared or otherwise responded to the invitation. This was despite having been warned of the consequences of not doing so by the Tribunal.
The Tribunal did not give reasons for not invoking the alternative potential exercises of discretion under s 362B(1A)(b) of the Act, or s 362B(2) of the Act. It was not required to do so. I accept the Minister’s submission that, similarly to in Singh, there was nonetheless an evident and intelligible justification for the approach taken by the Tribunal. As in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (and Singh), the exercise of power “was explained and justified by the history of non-responsiveness on the part of the” applicant, “from which it was open to infer that any attempt to contact them or to reschedule the hearing was likely to have been futile”.
Having regard to the above, I accept the Minister’s submission that it has not been demonstrated that the Tribunal fell into the species of error considered in DNK17, nor that the Tribunal otherwise relevantly erred in the approach taken to deciding the matter after the applicant’s non-attendance at the scheduled hearing. I am therefore not persuaded that the application before the Court is able to succeed.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 20 May 2025
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