AMU19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 423
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423
File number(s): SYG 278 of 2019 Judgment of: JUDGE MCCABE Date of judgment: 28 March 2025 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal (the Tribunal) – protection visa – consideration of the reasoning in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 – whether the Tribunal’s decision was unreasonable – whether the Tribunal’s review was stultified – jurisdictional error established. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) ss 36, 303, 418, 420, 425, 426A, 426B, 430, 441A, 441C, 441G
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; (2017) 248 FCR 159
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75; (2024) 303 FCR 466
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Miliangos v George Frank (Textiles) Ltd [1976] AC 443
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 14 February 2025 Place: Sydney Counsel for the Applicant: Mr L Karp with Ms L Sewell Solicitor for the Applicant: Kinslor Prince Lawyers Counsel for the First Respondent: Mr G Johnson SC with Mr T Liu Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance save as to costs ORDERS
SYG 278 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMU19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing its decision dated 8 January 2019.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicant’s application for review according to law.
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 MCCABE:
This case explores what the Court should make of the exercise of a discretion to hear and determine a case in the absence of an applicant when the decision‑maker has the alternative of simply dismissing the proceedings. In grappling with that issue, the Court must consider the reasoning in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975. In DNK17, Horan J concluded the Administrative Appeals Tribunal (the Tribunal) acted unreasonably when it resolved to proceed and make a decision in the absence of an applicant when that applicant had hitherto been actively engaging with the Tribunal in relation to the proceedings. As in this case, the Tribunal in DNK17 did not expressly say why it elected to make a decision in the absence of the applicant when it could have disposed of the case in a different, simpler way that afforded the absent applicant an opportunity to seek reinstatement.
Mr AMU19 has also argued the Tribunal’s review was stultified because the Tribunal was not informed of disciplinary proceedings brought against persons connected with the applicant’s former migration agent. The applicant says the Tribunal might have proceeded differently if it had been made aware of the disciplinary action. While the Tribunal was unaware of the problems with the former agent or the potential connection between the agent and the person whom the applicant authorised to receive communications in these proceedings, the applicant says the Tribunal’s review miscarried.
I am satisfied the Tribunal in this case acted unreasonably. Its decision is therefore affected by material jurisdictional error. I explain my reasons for that conclusion below.
Background to the dispute
Mr AMU19 is a citizen of China. He first arrived in Australia on 25 August 2007, although he travelled back and forth between China and this country prior to 2013. He applied for a Protection (Subclass 866) visa (the visa) on 30 June 2015. He said he feared persecution on account of his religion if he returned to China. He claimed the police had raided his mother’s home and found religious tracts which had been sent from overseas.
Mr AMU19 was assisted by a migration agent when he lodged his application for the visa. The agent’s name was Ms Zheng Bei (Ms Zheng), who identified herself as a member of a firm known as Good Fortune Co. Mr AMU19 nominated the agent as the authorised recipient of communications from the first respondent (the minister) in connection with the application. The email address the agent used was a Gmail account.
A delegate of the minister (the delegate) contacted Mr AMU19 at the agent’s nominated email address to invite Mr AMU19 to attend an interview. Mr AMU19 attended, but the delegate ultimately rejected the visa application. The letter of notification dated 25 May 2016 and the statement of reasons are reproduced in the court book at pp 79ff. The statement of reasons makes clear the delegate was not satisfied Mr AMU19 was owed protection obligations according to the criteria in s 36(2) of the Migration Act 1958 (Cth) (the Act).
The application to the Tribunal
Mr AMU19 applied to the Tribunal on 21 June 2016 seeking a review of the delegate’s decision. He informed the Tribunal his authorised recipient of communications was Ms Mengmeng Fu (Ms Fu). It appears Ms Fu was (or had been) a member of the Good Fortune Co firm. In any event, she used the same Gmail email address as Bei Zheng, the agent who had represented Mr AMU19 in relation to the primary decision.
The Tribunal’s review progressed slowly. There was an exchange of correspondence between the Tribunal and Ms Fu which included an email signed by Ms Fu dated 15 September 2017 that was sent from the Good Fortune Co email address. In that email, Ms Fu asked the Tribunal for some documents which showed the case remained on track. I infer the information was sought to reassure the applicant. The email from Ms Fu is reproduced in the court book at p 117. On 15 August 2018, Mr AMU19 was informed (in an email addressed to Ms Fu’s address) the Tribunal was about to allocate the file to a member who would consider whether a hearing was required: court book at p 125.
On 9 November 2018, the Tribunal sent a hearing invitation pursuant to s 425 of the Act. The invitation was addressed to Mr AMU19 but was provided under cover of a letter addressed to Ms Fu at the Gmail address she used – the same address that had been used by the applicant’s former agent: court book at pp 127ff. The invitation to a hearing was issued because the Tribunal said it had “considered the material before us but we are unable to make a favourable decision on this information alone.” The invitation went on to say:
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 hearing was listed for 8 January 2019. The matter was to be heard in‑person at the Tribunal’s Sydney registry. The hearing invitation sent to Ms Fu’s address included a form (court book at pp 134ff) asking the applicant to confirm who would attend the hearing. The form also contained questions about the need for an interpreter. Neither Ms Fu nor Mr AMU19 responded to the hearing invitation by returning the form as requested.
Consistent with its usual practice, the Tribunal sent ‘SMS’ reminder messages to the phone number on file – the number used by Ms Fu – in advance of the hearing. Records of these messages were obtained following a Freedom of Information request. The records have been reproduced in the court book at p 174. The records disclose the first message was sent on 31 December 2018. The second message was sent on 7 January 2019, the day before the hearing. The records show one of the messages bounced back on 7 January 2019 (the day before the hearing) indicating a failed delivery, and the second message bounced back on 14 January 2019 (i.e., after the date of the hearing).
The Tribunal hearing and the decision to proceed in the applicant’s absence
Mr AMU19 did not attend the hearing on 8 January 2019. The Tribunal had to decide how to proceed in that event.
When an applicant in proceedings before the Tribunal is invited to appear at a hearing pursuant to s 425 of the Act but subsequently fails to appear, the Tribunal generally has three options. The first is to simply adjourn the matter and relist the hearing for a later date. That would require the issue of a fresh invitation to the hearing pursuant to s 425. The second and third options are set out in s 426A. Assuming the Tribunal is satisfied the applicant did not appear following the issue of a valid and regular invitation to attend through the usual channels, s 426A(1A) says the Tribunal has the discretion to:
·proceed to make a decision without further reference to the applicant. A decision in those circumstances involves production of a written statement of reasons under s 430 (the option referred to in s 426A(1A)(a)); or
·dismiss the proceedings without further consideration of the case by issuing a written statement under s 426B (the option in s 426A(1A)(b)).
Where the Tribunal elects to dismiss without further considering the matter pursuant to s 426A(1A)(b) of the Act and issues the statement under s 426B, the applicant has the opportunity to seek reinstatement within 14 days: s 426A(1B). The discretion to reinstate is set out in s 426A(1C). The discretion is not confined but the Tribunal would ordinarily look to an explanation for the applicant’s failure to appear. If a timely application for reinstatement is received, the Tribunal may decide to reinstate the matter. If reinstated, the matter resumes as if it had never been dismissed: s 426A(1D). A fresh invitation to a hearing would presumably follow.
The consequences are more straightforward where the Tribunal instead relies on s 426A(1A)(a) of the Act to make a decision (and provides a statement of reasons under s 430) in the applicant’s absence. In that event, the applicant does not have the opportunity to seek reinstatement. The applicant’s only option is to appeal to the Court alleging the decision is affected by a material jurisdictional error.
It follows each of the choices facing the Tribunal in the event of non‑appearance has different consequences for the applicant. The most benign outcome for the applicant is an adjournment. The choice under s 426A(1A)(a) is the most prejudicial because it leads to a substantive final decision that concludes the review and renders the Tribunal functus officio. (One must keep in mind a decision made in these circumstances will usually be adverse to the applicant given the Tribunal explained in the hearing invitation that it did not have enough information to make a favourable decision without a hearing.) Dismissal pursuant to s 426A(1A)(b) keeps alive – at least for a time – the possibility of re‑engagement with the Tribunal. That is useful where something unfortunate may have occurred which prevented the applicant from attending the hearing.
The possibility of reinstatement where the dismissal occurs under s 426A(1A)(b) of the Act is an important factor that the Tribunal should consider when deciding how to deal with non‑appearance. When considering whether (and how) to exercise the discretion, the Tribunal should always be mindful of the possibility of substantive injustice if an applicant with a good faith claim is effectively shut out of the review process because something untoward has happened which prevented attendance at the hearing.
In this case, the Tribunal elected to proceed pursuant to s 426A(1A)(a) of the Act, and it produced a statement of reasons in accordance with s 430 dated 8 January 2019 (i.e., the same date as the hearing). In those reasons, the Tribunal confirmed the hearing invitation had been issued as required. It noted ‘SMS’ reminders had been sent to the phone number on file. Importantly, it also acknowledged (at [4] of its reasons) that delivery of one of those messages had failed. The Tribunal then said (at [5]-[6]):
5.The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(4) of the Act, that the invitation was not unclaimed and that calls were made to the applicant.
6.In the circumstances, and pursuant to s.426A 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.
The Tribunal did not explain why it preferred to proceed under s 426A(1A)(a) rather than either adjourning the matter or dismissing the proceedings under s 426A(1A)(b). I also note the Tribunal asserted (at [5]) “calls were made to the applicant” even though the Tribunal acknowledged (at [4] of its reasons) at least one of the ‘SMS’ reminders had not been delivered.
In the body of its reasons, the Tribunal proceeded to explain why it was not satisfied the applicant met the criteria for grant of the visa. It noted the applicant had made claims about becoming a Catholic and being accused by authorities of disseminating foreign religious propaganda. The Tribunal observed (at [18]):
These and other claims from the applicant are unsupported. I needed to hear the applicant discuss his subjective religious experience and beliefs with him and gather more facts about his involvement with the Catholic Church in China and in Australia, where he claims to have attended just a church a few times over a period of years. I intended to hear whether or when he had been inducted into various church sacraments and what his understanding of the Mass might be. I needed to hear what he had to say about the authorised version of the Catholic Church in China. I needed to hear evidence regarding his mother’s current circumstances and gather more detailed information about how she was treated when the alleged pamphlets were allegedly found.
The Tribunal said (at [19]) it also needed to ask the applicant about why he had delayed his application for the visa until he had withdrawn from earlier proceedings in relation to the refusal of a student visa. The Tribunal then concluded (at [20]):
Without more from the applicant, I am not satisfied on the evidence before me that he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
It is, with respect, wholly unsurprising that the Tribunal should conclude it was not satisfied the applicant met the criteria for the visa in circumstances where the Tribunal was unable to test the applicant’s evidence or address potential gaps and inconsistencies in the claim. That was the purpose of the hearing, after all. This was not a case where the Tribunal could safely assume there would be nothing forthcoming from the applicant that would assist his case.
The grounds of review
The applicant was capably represented by a solicitor and counsel in the proceedings before me. The applicant’s representatives were all acting pro bono so the Court would be fully apprised of the issues that arise in this case.
Stultification
The applicant has identified two grounds in its amended application for review filed 25 November 2024. It is convenient for me to deal with the second of those grounds first. The applicant contends in that ground:
2. The Tribunal had constructively failed to exercise its jurisdiction.
Particulars
(a)The process by which the Tribunal notified the applicant of the date and time of its hearing had been stultified by the Minister’s failure to comply with s. 418(3) of the Migration Act CTH, that is to inform the Tribunal of the cancellation of the migration agent registration of Zheng Bei, the applicant's former migration agent, and to give the Tribunal the reasons for that cancellation.
This ground requires a discussion of the position of Ms Fu, the authorised recipient of correspondence with the Tribunal. There does not appear to be any doubt she was validly nominated as an authorised recipient. In those circumstances, s 441G(1) of the Act requires the Tribunal to give any notice or document to Ms Fu, although s 441G(2) says that does not prevent the Tribunal from also giving the applicant a copy. There is no evidence suggesting the Tribunal elected to ‘copy in’ Mr AMU19 when it was corresponding with Ms Fu. The correspondence reproduced in the court book makes clear Ms Fu was the conduit for all communications with Mr AMU19.
Ms Fu’s status was the subject of the affidavit of David John Prince sworn 5 December 2024. Mr Prince is the applicant’s solicitor in these proceedings.
Mr Prince said searches of a database maintained by the Office of the Migration Agents Registration Authority (OMARA) revealed Ms Fu was not a registered migration agent. The affidavit also exhibited a copy of the decision record and statement of reasons of an OMARA officer dated 31 March 2017 (OMARA’s reasons for decision) that cancelled the registration of Ms Zheng as a migration agent. (Recall that Ms Zheng represented Mr AMU19 in connection with his original application for the visa in 2015.) The cancellation decision was made following complaints about Ms Zheng’s conduct that were referred to OMARA by the minister. OMARA was an agency within the Department of Immigration and Border Protection at the time. The signature block of the OMARA officer confirms that relationship, and the decision is produced on departmental letterhead.
OMARA’s reasons for decision delved into the relationship between Ms Zheng, Good Fortune Co and another individual, Wei Ming Qian. Ms Qian’s own registration as a migration agent had been cancelled in 2013 after she was found not to be a person of integrity. It appears she was formerly the principal of the Good Fortune Co, and she continued to play a key role in the business in the years that followed: at [52] of OMARA’s reasons for decision. Ms Zheng was a contractor to Good Fortune Co between April 2013 and August 2016. (That covers the period when Mr AMU19’s application for the visa was lodged.) The decision‑maker concluded Ms Zheng was associated by employment with Ms Qian during this period. That caused the decision-maker to sanction Ms Zheng pursuant to s 303(1)(g) of the Act.
Mr Karp, lead counsel for the applicant in these proceedings, points out OMARA’s reasons for decision also refer to Ms Fu (at [135] of OMARA’s reasons for decision). She was described as one of Ms Zheng’s assistants. The reference to Ms Fu was in the context of a discussion of unsatisfactory practices at the firm when it was run by Ms Qian, and when Ms Zheng was also involved. While Ms Zheng apparently ceased her involvement with Mr AMU19 by the time he approached the Tribunal, Ms Fu appeared to step into the representative role (at least for Mr AMU19) even though (a) she was not a migration agent at the time, and (b) she apparently had a track record of involvement in a chaotic and unprofessional operation that was hitherto overseen by Ms Qian.
Mr Karp said the minister was on notice of the problems with Mr AMU19’s representation. Mr Karp said the minister should have communicated that information to the Tribunal pursuant to s 418(3) of the Act. Mr Karp argued the failure to inform the Tribunal of the problems with Ms Fu stultified the Tribunal’s review because the Tribunal proceeded on the unsafe assumption that Ms Fu was passing on the Tribunal’s correspondence as required. Mr Karp argued the Tribunal would not have made that mistake if it had been apprised of the disciplinary decision given how that decision reflected on all those involved with the Good Fortune Co, including Ms Fu. Mr Karp said even if the Tribunal was only made aware of the cancellation decision without immediately spotting the reference to Ms Fu in the reasons for decision, the fact Ms Fu was using the same email address as Ms Zheng would have been a red flag. At a minimum, the Tribunal would have realised it should provide copies to Mr AMU19 of any correspondence with Ms Fu – something it was expressly permitted to do under s 441G(2).
The applicant says the Tribunal review was stultified because Mr AMU19’s participation in the hearing was frustrated by poor representation. It was suggested the minister was at least constructively aware of the problems with Mr AMU19’s representation. If he had complied with his obligations under s 418(3) of the Act, Mr Karp argued, the Tribunal would also have been aware of the problems and could have taken steps to facilitate the applicant’s participation. Mr Karp said the Tribunal would have declined to proceed at the hearing in Mr AMU19’s absence.
A stultified review is not a proper review that meets the requirements under the Act. The concept of stultification was discussed by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. In that case, the applicants for a visa paid a person to represent them after that individual held himself out as a solicitor and registered migration agent. In fact, the representative had already been struck off as a lawyer. The applicants did not attend a hearing before the Refugee Review Tribunal after being advised by their erstwhile lawyer that they should not attend. The trial judge found the representative’s advice was fraudulent. The majority in the Full Federal Court held that while there may have been fraud, it was a fraud on the applicants perpetrated by their representative rather than a fraud on the tribunal as such. The High Court concluded there was a fraud that impacted on the tribunal’s review processes as they were conceived in the Act. Those processes were discussed at [48] where the Court said:
... the provisions of Pt 7 obliging the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the Tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B-429A) for the conduct of reviews. By s 422B that Division provided that it is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule.
In those circumstances, the Court concluded (at [49]):
The fraud of [the representative] had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.
The Court underlined that conclusion at [51]-[52], explaining:
51.… while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of [the representative], it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.
52.The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. …
In written submissions in this case, my attention was drawn to two decisions of the Full Federal Court which were relevant to the issue of stultification. In BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; (2017) 248 FCR 159 the applicant for a visa alleged he was at risk of persecution on religious grounds if he were returned home, but the minister doubted he was a genuine Christian. When the matter came before the Tribunal on review, the minister inadvertently failed to provide the Tribunal with a letter of reference from the applicant’s pastor. The letter was clearly relevant to the review. At the same time, the applicant had been separately invited to supply any relevant documents or information but the Tribunal told him it had received all the documents provided to the minister – which the applicant naturally assumed included the letter from his pastor. The Tribunal went ahead and decided the case without reference to the important letter. The Full Court concluded the minister’s failure to comply with s 418(3) of the Act was inadvertent. It added a breach of the duty in s 418(3) did not without more amount to a jurisdictional error: at [103] per Griffiths, Kerr and Farrell JJ. But the resulting misunderstanding about what material was before the Tribunal in this case meant the applicant was misled about what evidence and submissions he needed to make. He was effectively denied an opportunity to respond to the Tribunal, which meant he was not afforded the procedural fairness he was entitled to receive under s 425 of the Act: at [5]. In those circumstances, the Tribunal’s review was stultified even in circumstances falling short of fraud.
The Full Federal Court returned to the question of stultification in DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75; (2024) 303 FCR 466. That case dealt with a purported failure to supply a document that should have been supplied to the Tribunal pursuant to s 418(3) of the Act. The document in question was so important that the failure to supply it was said to stultify the Tribunal’s review. Wigney, Hespe and Kennett JJ warned a Court should be cautious before finding the review had been stultified. The Full Court explained (at [32]) stultification:
… would require a finding that such misconduct had set the review on an inevitable pathway to failure … or directly affected the way the hearing was conducted to the appellant’s detriment … or at least that such adverse consequences would not have occurred but for the Secretary’s misconduct.
In this case, the applicant says the minister’s failure to bring the cancellation decision of Ms Zheng to the Tribunal as it was obliged to do under s 418(3) led the Tribunal to continue dealing with Ms Fu rather than contacting Mr AMU19. If the Tribunal had copied the hearing invitation to Mr AMU19, he would presumably have attended the hearing where he could address the Tribunal’s concerns.
The minister says this ground of review is misconceived for at least two reasons. First, the minister denies there has been a contravention of s 418(3). I agree, for reasons I will explain. Second, the minister says in any event the Tribunal was not under an obligation to ‘utilise’ the power in s 441G(2) of the Act to copy documents direct to the applicant. I will deal with each argument in turn.
Section 418(3) provides:
The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
The minister says the duty of disclosure in that sub-section only relates to documents that are, in the Secretary’s opinion, relevant to the decision under review. The minister argues the cancellation decision was not relevant to the decision under review just because the agent whose registration was cancelled was also formerly the applicant’s representative. There was no evidence discussed in the reasons for the cancellation decision that pointed to any connection with Mr AMU19’s case. Ms Fu was only mentioned in the reasons for cancellation decision in passing, and there were no adverse findings made against her. The minister is not a party to the proceedings in the Tribunal, so it is not clear whether the Secretary would be in a position to make the connection between Ms Fu and this case.
As I apprehend it, the applicant argues the cancellation decision was nonetheless potentially relevant to “the review of the decision” if not the decision itself. That argument relies on the actual form of words used in the sub-section. The applicant is right about that much: while the cancellation decision had nothing to do with the subject matter of the decision under review, it would still be disclosable if it contained information the Secretary thinks might be relevant to the review of the decision.
Even on that approach, I do not think the applicant can succeed in establishing non-compliance with s 418(3) of the Act. If Mr AMU19 was still being represented by Ms Zheng, it might be easier to see how the Secretary would form a view as to relevance. But Ms Zheng was no longer involved with the case. Ms Fu, the authorised recipient of correspondence, was not Mr AMU19’s migration agent. It is not clear the Secretary was aware Ms Fu had any role in Mr AMU19’s case, so it would be impossible for the Secretary to form a view as to the relevance of the cancellation decision to the review process.
The minister’s second argument against this ground suggests the applicant has misconceived the operation of s 441G of the Act. Section 441G(2) provides:
If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
The minister points out the section is a deeming provision that permits the Tribunal to assume an applicant has received documents and correspondence when those things are directed to the address of the person identified as the authorised recipient. That individual need not be a migration agent. The provision operates in tandem with s 441A of the Act, which refers to the methods by which documents can be transmitted, and s 441C which allows the Tribunal to determine when a document is taken to have been received.
The minister argues the reference in s 441G(2) to the Tribunal also copying a document direct to the applicant does not of itself make it incumbent on the Tribunal to consider whether it should do so in a particular case. I agree. Once an applicant nominates someone to be an authorised representative in accordance with s 441G, s 441G(2) confirms the Tribunal is entitled to assume its communications with that individual have been received by the applicant in accordance with the other provisions in Division 7A of the Act. The Tribunal is not obliged (or even entitled) to second-guess that nomination. The second sentence in s 441G(2) merely clarifies that the Tribunal is not contravening the provision if the registry also sends copies of a document to the applicant.
In any event, the Tribunal had no reason to second-guess the nomination in this case because there was nothing before the Tribunal to suggest there was anything irregular about Ms Fu’s nomination as an authorised recipient. Even if the Tribunal had been informed of the cancellation decision in relation to Ms Zheng, it is unclear how that information – relating as it did to Ms Zheng, and only incidentally mentioning Ms Fu – would trigger some sort of duty under s 441G(2) to consider copying documents to Mr AMU19.
The applicant has not established the Tribunal’s review was stultified because the Tribunal was unaware of the cancellation decision in relation to his former migration agent. That disposes of the second ground of review referred to in the applicant’s amended application.
Unreasonableness
The first ground of review contends:
1.It was legally unreasonable for the Tribunal to have decided the applicant’s case by utilising s 426A(1A)(a) of the Migration Act, rather than s. 426A(1A)(b).
Particulars
(a)The circumstances of the case are such that it was uncertain whether the applicant had in fact been made aware of the time and date of his Tribunal hearing.
This ground requires that I grapple with the reasoning in DNK17. In that case, Mr DNK17 failed to appear at a Tribunal hearing which had already been rescheduled twice. The Tribunal refused a last minute adjournment request and decided to hear and determine the matter in Mr DNK17’s absence pursuant to s 426A(1A)(a) of the Act. The Tribunal did not explain in its reasons why it elected to proceed under that subsection rather than dismissing the application pursuant to s 426A(1A)(b). Horan J observed (at [8]):
Each of those options had different immediate consequences for the appellant. Neither power could be considered in isolation from the other. In exercising its power to decide the review under s 426A(1A)(a), it was necessary for the Tribunal to address why it was doing so in the light of the alternative option of dismissal with a right of reinstatement.
After discussing the statutory framework and the law with respect to unreasonableness, his Honour framed the choices faced by the Tribunal as follows (at [98]):
… 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).
His Honour then explained (at [99]):
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.
Ideally the Tribunal’s statement of reasons would contain an explicit explanation for why the Tribunal chose to proceed as it did. But that is not required under s 430 of the Act which sets out the requirements for a valid statement of reasons for the Tribunal’s decision on the review. Horan J acknowledged as much when he observed: “[t]here is no statutory obligation on the Tribunal to provide reasons for any decision not to [exercise the power to dismiss under s 426A(1A)(b)]”: at [102].
Where the Tribunal articulates its reasons for exercising the discretion, those reasons will provide a focus for assessing the reasonableness of the decision: DNK17 at [86]. Where the Tribunal does not expressly articulate its reasoning on the question of discretion, Horan J said one must look to “the ‘decision-making pathways’ that were reasonably open to the Tribunal”: DNK17 at [94], citing ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [21] per Kiefel CJ, Bell, Gageler and Keane JJ.
Sometimes an “evident and intelligible justification” for the choice may be readily inferred from a fair reading of the reasons for decision. The Tribunal’s discussion of the procedural history might demonstrate without more that finality is required. Alternatively, the discussion of the procedural history might make clear (without expressly saying so) that reinstatement is a less satisfactory alternative because (for example) there is unlikely to be additional evidence forthcoming at a hearing which would assist the Tribunal in completing its review.
In DNK17, Horan J accepted the Tribunal adequately explained why it did not grant an adjournment or take any other steps to allow the applicant to participate in the hearing. The Tribunal did not expressly discuss why it elected to proceed under s 426A(1A)(a) of the Act rather than dismiss an application under s 426A(1A)(b). His Honour said (at [102]) the absence of any reference to s 426A(1A)(b) raised two questions:
·first, whether the Tribunal simply overlooked the option of reinstatement; and
·second, if the Tribunal did consider the option of reinstatement, why did it not do so?
His Honour found (at [103]) it would not be appropriate to infer the Tribunal overlooked the option of dismissal under s 426A(1A)(b) in that case simply because it did not mention the alternative in its reasons. Horan J inferred the Tribunal did turn its mind to the possibility of dismissing under s 426A(1A)(b) but must have decided against that course for the same reasons it gave for refusing the adjournment request and deciding to proceed under s 426A(1A)(a): at [105]. His Honour concluded the problem with the Tribunal’s reasoning is that it made no sense: the Tribunal had refused the adjournment because it said it was necessary to hear from the applicant given there were questions of credibility that needed to be resolved: at [106]. If the Tribunal refused the adjournment because it was necessary to hear from the applicant, there was no intelligible justification for deciding to proceed with the matter in the applicant’s absence rather than dismissing the case under s 426A(1A)(b) of the Act. A dismissal under s 426A(1A)(b) would have left intact the possibility of testing the applicant’s credit at a hearing if the applicant were to successfully apply for reinstatement: at [107]. His Honour explained (at [108]):
… it was beyond the bounds of legal reasonableness for the Tribunal to decide not to dismiss the application (with a limited right to seek reinstatement) and instead to make a decision on the review that was based almost entirely on the insufficiency and lack of detail in the information before it. The Tribunal’s exercise of the power under s 426A(1A)(a), rather than the dismissal power under s 426A(1A)(b), did not have sufficient regard to the purposes for which each of those powers is conferred. While the Tribunal’s reasons identified the considerations in favour of refusing the adjournment request and making a decision on the review, it failed to address the countervailing considerations in favour of exercising the power to dismiss the application under s 426A(1A)(b).
Mr Johnson, senior counsel for the minister, made clear the minister would welcome the opportunity to challenge the reasoning in DNK17 should the occasion arise. The likely basis of that challenge was set out in written submissions filed 31 October 2024. Amongst other criticisms, the minister said the reasoning in DNK17 was inconsistent with earlier authorities including the decision of the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29. Counsel for the minister nonetheless argued the reasoning in DNK17 was distinguishable.
I am bound to follow the reasoning in DNK17 if I am satisfied it is on point. As Mr Johnson properly conceded, Horan J was exercising the appellate jurisdiction of the Federal Court when he decided DNK17. The ratio of that case is therefore binding on me to the extent the case cannot be legitimately distinguished: see SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at [42] per Black CJ and Allsop J; see also Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 per Moffitt P. In SZGME, Black CJ and Allsop J illustrated the point by quoting the reasons of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443. His Lordship explained (at p 478):
… It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher court must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court. …
That brings me to the circumstances in this case. I am satisfied the decision is legally unreasonable.
The problem does not lie in the fact the Tribunal did not expressly identify it had two options – dismiss under s 426A(1A)(b) or proceed to determine the matter under s 426A(1A)(a) – nor in its omission of any express reasons for preferring one choice over the other. Indeed, unlike the Tribunal in DNK17, which offered a positive explanation for refusing the adjournment and proceeding with the hearing, the Tribunal in this case did not articulate any explanation for the course it adopted. It simply offered a short account of the procedural history, noted the applicant’s absence and asserted (at [6] of its reasons) it would proceed under s 426A(1A)(a) of the Act.
I note the procedural history in this case was unremarkable when compared to the history in DNK17. In that case, the applicant had already benefitted from two adjournments before asking for a further adjournment that was refused.
The reasoning in DNK17 says I must look past the absence of express reasons for the choice the Tribunal made and focus on the Tribunal’s decision-making pathways. That pathway begins with the purpose for which the hearing was convened. That purpose was explained in the hearing invitation that I have already discussed (at [9]). In the invitation, the applicant was invited to appear and provide additional information and arguments (and, I infer, submit to questions that explored his credit). That was necessary because the Tribunal expressly said in the hearing invitation that it could not make a favourable decision on the material it already had. While I acknowledge the note in the hearing invitation appeared to be a standard passage included in many if not all hearing invitations, a perusal of the Tribunal’s reasons in this case confirms the Tribunal believed it was essential to hear from the applicant in this case. It made that clear in paragraphs [18]-[20] of its reasons where it repeatedly asserted it needed to hear from the applicant.
If the whole point of the hearing was to hear from the applicant, what justification was there for proceeding with the hearing in the applicant’s absence?
I am not denying there may be a justification for proceeding in the applicant’s absence in a particular case. I acknowledge some applicants may have a case that faces insuperable obstacles so there is obviously no point in further delay; alternatively, the Tribunal might be dealing with a recalcitrant applicant who was apparently trying to frustrate the review through their absence. Ideally the Tribunal would explain its thinking in its reasons for decision – although again, I acknowledge it was not formally required to do so. It would certainly be enough if the reasons underlying the Tribunal’s decision to proceed were obvious from the procedural history it described (i.e., from what DNK17 described as the “‘decision-making pathways’ that were reasonably open to the Tribunal” that disclosed an “evident and intelligible justification” for the course it adopted). But therein lies the problem: the Tribunal’s description of the procedural history and the reasons for decision in this case do not disclose (even by inference) an “evident and intelligible justification” for the Tribunal’s decision to proceed as it did.
The decision to proceed is even more perplexing in circumstances where the Tribunal acknowledged (at [4] of its reasons) one of the ‘SMS’ reminders sent to the mobile phone number on file had failed. That alone would have given the Tribunal pause before adopting a course that denied the applicant an opportunity to explain their absence through a reinstatement process.
The Tribunal is not formally obliged to give express reasons for its decision to proceed under s 426A(1A)(a) of the Act rather than simply dismissing for non-appearance. The omission of an explanation does not of itself invite the inference the Tribunal failed to consider its options. But the Tribunal’s decision must still be reasonable, and its reasonableness is evaluated by reference to the powers it exercises and the circumstances of the case. Where the Tribunal has elected to proceed to make a final decision in reliance on a power that forecloses further engagement with the review mechanisms and the reasons for decision and the procedural history do not suggest an evident and intelligible justification for doing so, that decision is unreasonable. That is especially so in a case like this where the reasons for decision make clear the decision turned on the credibility of the applicant’s account which was to be tested at the hearing, and where there was a clear signal (in the form of the failed ‘SMS’ message) that the applicant may not be aware of the hearing.
I am satisfied this ground of review has been made out. The decision is infected by a material jurisdictional error.
Conclusion
The Tribunal is a means of ensuring individual justice, but it is also a tool of good government. It promotes sound administration by modelling objective decision-making behaviour. The decision-making in each case should “promote public trust and confidence in the decision‑making of the Tribunal”: s 2A(d) of the Administrative Appeals Tribunal Act 1975. The Tribunal is also required to act in migration reviews “according to substantial justice and the merits of the case”: s 420 of the Act. If the intelligent reader of the Tribunal’s decision in a particular case is perplexed by the Tribunal’s actions in light of those provisions and the terms of the powers which it exercises, that is a serious problem. That puzzlement might prompt the reader to speculate about whether the Tribunal was (for example) responding to some unstated bureaucratic imperative or was otherwise falling prey to the various shortcomings of bureaucratic decision-making which the Tribunal was designed to remedy.[1]
[1] In a seminal paper published in 1989, Sir Anthony Mason – who served on the Kerr Committee – expounded on the ways in which tribunal decision-making might be superior to decision-making within the bureaucracy. Sir Anthony explained:
The Tribunal is required to meet certain requirements when preparing its written reasons. The Court’s role in evaluating the Tribunal’s decision does not end when the Court satisfies itself the written statement of reasons conforms to the formal requirements in s 430 of the Act. The Court may yet determine the decision is unreasonable if an otherwise compliant set of reasons fails to disclose (at least by inference) an evident and intelligible justification for what the Tribunal did. Where the concern relates to a procedural step that precipitates the Tribunal’s ultimate decision on the review – that is, where the Tribunal makes a choice in the course of its decision-making pathway – the absence of an evident and intelligible justification for the procedural decision may infect the ultimate outcome. That is what happened in this case: the Tribunal’s decision to proceed under s 426A(1A)(a) of the Act without evident and intelligible justification infected the final decision.
The Tribunal’s decision is affected by jurisdictional error. I am satisfied that error is material in the sense discussed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ because there is a realistic possibility the decision could have been made differently if the applicant had participated and provided information as requested.
I am not aware of any reason to refuse to exercise the discretion to provide a remedy in this case. In those circumstances, the Court will issue a writ of certiorari to quash the Tribunal’s decision, and a writ of mandamus addressed to the Administrative Review Tribunal instructing it to reconsider the decision according to law.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 28 March 2025
First, [the primary decision-making process in the agency] lacks the independence of the judicial process. The administrative decision-maker is, and is thought to be, more susceptible to political, ministerial and bureaucratic influence than is a judge, Secondly, some administrative decisions are made out in the open; most are not. Thirdly, apart from statute, the administrator does not have to give reasons for his decision. Fourthly, the administrator does not always observe the standards of natural justice or procedural fairness. That is not surprising; he is not trained to do so. Finally, he is inclined to subordinate the claims of justice of the individual to the more general demands of public policy and sometimes to adventitious political and bureaucratic pressures.
See A Mason, ‘Administrative Review: The Experience of the First Twelve Years’ [1989] Federal Law Review
3; (1988) 18 Federal Law Review 122 at 130.
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