BNF21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1529
•18 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BNF21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1529
File number(s): SYG 1026 of 2021 Judgment of: JUDGE CLEARY Date of judgment: 18 September 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether the Tribunal was unreasonable, illogical or irrational in determining applicant’s application under s 426A(1A)(a) - without considering alternative powers to dismiss application in s 426A(1A)(b) - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 426A(1A)(a), 426A(1A)(b) Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173
Kaur v Minister for Immigration and Border Protection [2016] FCA 132
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541
Minister for Immigration arid Citizenship v Li (2013) 297 ALR 225
Minister for Immigration v Stretton [2016] FCAFC 11
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 29 July 2025 Counsel for the Applicant: Ms I. Kallinosis Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondents: Mr G. Johnson Solicitor for the Respondents: Ms Q. Ren of HWL Ebsworth
Table of Corrections 19 September 2025 In paragraph 39, reference to Given this, the applicant’s failure to attend without an explanation becomes, as the first respondent put it, “even more glaring than here at DNK17, where they did provide some reasons for an adjournment”.” is amended to read Given this, the applicant’s failure to attend without an explanation becomes, as the first respondent put it, “even more glaring” here than in DNK17, where they did provide some reasons for an adjournment. 19 September 2025 In paragraph 22, reference to “Mr G Johnson of counsel” is amended to read “Ms Q. Ren of HWL Ebsworth” ORDERS
SYG 1026 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BNF21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
18 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,600.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE CLEARY
INTRODUCTION
The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 27 May 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Protection (subclass 866) visa (protection visa) under s 65 of the Act.
For the reasons set our below, the application is dismissed with costs.
BACKGROUND
On 12 August 2016, the applicant, a citizen of China, first arrived in Australia on a tourist visa.
On 22 June 2017, the applicant lodged an application for a protection (subclass 866) visa.
On 19 July 2017, the applicant was invited to attend an interview on 2 August 2017 to discuss matters pertaining to his visa application. The applicant did not attend the scheduled interview or provide any reason for not attending.
On 4 August 2017, the delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy s 36(2) of the Act.
On 15 August 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 21 April 2021, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 26 May 2021.
On 26 May 2021, the applicant did not attend the schedule hearing before the Tribunal.
On 27 May 2021, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.
TRIBUNAL DECISION
The Tribunal recorded that on 1 April 2021, it had written to the applicant to advise that it considered all the material before it, but it was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to a hearing and advised him that if he failed to attend the Tribunal may make a decision without further notice.
On 25 May 2021, the Tribunal Case Notes (at pages 130-131 of the Court Book) reveal that the applicant called the Tribunal at 12.20 pm to request a Chinese interpreter for “tomorrow’s hearing”. The Tribunal representative replied that the Tribunal had already booked an interpreter for him. The applicant replied, he would be attending the hearing. The call ended.
On 26 May 2021, the Tribunal recorded that the applicant had failed to appear at the scheduled hearing. It conducted relevant checks at 10.30 am, 10.45 am and 11.00 am. At 11.00 am the member was instructed a “No Show” to be processed.
The Tribunal noted that due to the applicant’s failure to attend the hearing, it was unable to question him further as to the veracity of any of his claims, leaving his claims unclarified and the Tribunal's questions unanswered.
The Tribunal found that on the "evidence before it", it was not satisfied that the applicant met s 36(2)(a) of the Act. The Tribunal further considered and was not satisfied that the applicant met the alternative criterion in s 36(2)(aa).
The Tribunal affirmed the decision not to grant the applicant a protection visa as it was not satisfied the applicant met s 36(2) of the Act.
APPLICATION FOR REVIEW
On 6 June 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 26 May 2021.
On 11 June 2025, the proceedings were docketed to me and set down before me for final hearing on 29 May 2025. Orders were made by me on 24 June 2025 for the filing of any amended application, and 16 July 2025 for the filing of submissions.
On 24 June 2025, the applicant filed an amended application (Amended Application).
The amended application contains one ground of review. The ground is as follows (as written):
It was unreasonable, illogical or irrational for the Tribunal to determine the applicant’s application under s 426A(1A)(a) Migration Act 1958 (Cth) (the Act) without considering the alternative powers to dismiss the application in s 426A(1A)(b) of the Act or to adjourn the hearing.
HEARING ON 29 JULY 2025
At the hearing of this matter on 29 July 2025, Ms I Kallinosis of counsel, appeared on behalf of the applicant. Ms Q Ren of HWL Ebsworth appeared for the first respondent. Both made oral submissions to the Court by reference to their written submissions.
RELEVANT LEGAL PRINCIPLES
To obtain the relief sought the applicant must prove that the Tribunal’s decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76].
In LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] – [3] (LPDT) the High Court explained that:
Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, in most cases, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32].
In reviewing the Tribunal’s decision, the Court does not review the merits of the Tribunal decision; nor does it remake it: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
The applicant sole ground of review claims the Tribunal’s decision on the day of the hearing, 26 May 2021, to proceed to exercise the discretion under s 426A(1A) of the Act and decide to affirm the delegate’s decision without taking any further action to allow or enable the applicant to appear before it was legally unreasonable, illogical or irrational.
Before I set out my consideration of this ground I set out the competing submissions of both parties.
APPLICANT’S SUBMISSIONS
On 1 July 2025, Ms Kallinosis filed written submissions in this Court. At the hearing before me, she made oral submissions based on those written submissions.
The issue for determination, as identified by the applicant, was whether the Tribunal’s decision was legally unreasonable and therefore affected by jurisdictional error. The applicant submitted the threshold for establishing legal unreasonableness is high and, in this case, is “concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.”
More specifically, the applicant submitted the Tribunal’s decision was affected by jurisdictional error on the ground that it was unreasonable, illogical or irrational for the Tribunal to determine the application under s 426A(1A)(a) of the Act, without considering alternative powers to dismiss the application in s 426A(1A)(b), or to adjourn the hearing under s 427(1)(b) of the Act.
In the applicant’s written submission at paragraphs [18]-[22] the applicant relies on DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17), which deals with the question of whether the Tribunal’s determination to make a decision on the review without taking any further action to enable the appellant to appear before it was legally unreasonable.
In DNK17, Horam J found at [104] that the Tribunal, in refusing an adjournment and proceeding to make a decision on the review, ‘necessarily declined’ to take the alternative option of dismissing the application. It was held in DNK17 that the Tribunal’s reasons for determining not to exercise the dismissal power were the reasons cited for refusing the adjournment request and that such reasoning did not provide an intelligible justification for the decision not to exercise the dismissal power, rather than making a decision on the review.
The applicant submitted that in the present case, the Tribunal ‘necessarily declined’ two alternative options available to it. That is that the Tribunal either: (i) declined the dismissal power, or (ii) declined the power to adjourn the hearing without deciding the merits of the application.
The applicant’s written submission at [24] explains (footnote omitted):
The introduction of the dismissal power was intended to “increase efficiency and enhance integrity” by providing an avenue for the Tribunal to “focus resources away from matters that are not actively being pursued,” arguably in circumstances where it might not otherwise be appropriate to proceed with the “harsher response” of making a decision on the merits of the application.
The applicant submitted that the Tribunal had “a middle path”, as outlined in DNK17. In oral submissions, the applicant describes this as an option in which the Tribunal does not proceed to determine the merits of the application but rather a middle path where the rights of the applicant are not completely closed off because of the dismissal power, allowing the applicant to have the opportunity to apply for a reinstatement.
The applicant submitted the Tribunal failed to consider the exercise of the dismissal power or power to adjourn the hearing, or if it did, it did not provide an intelligible justification for deciding not to dismiss the application or adjourn the hearing, rather than making a decision on the review.
FIRST RESPONDENT’S SUBMISSIONS
In response to the applicant’s reliance on DNK17, the first respondent submitted that DNK17 does not stand as a general proposition that it will always be unreasonable for a decision-maker exercising power in s 426A(1A)(a) of the Act rather than (b) of the Act, to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing if reasons for doing so are not articulated. The first respondent cited EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173 (EEV18) at [30].
In oral submissions, Mr Johnson submitted that DNK17 was distinguishable from the present matter because in this case the applicant did not seek to postpone the hearing, nor did the applicant provide medical documents in support of an adjournment. Instead, there was evidence within a case note (at Court Book pages 130-131) that the applicant called the Tribunal the day prior to the Tribunal hearing to confirm that he would attend. The first respondent further submits that this phone call from the applicant is clear evidence that the applicant was aware of the hearing and that he confirmed his attendance. Given this, the applicant’s failure to attend without an explanation becomes, as the first respondent put it, “even more glaring” here than in DNK17, where they did provide some reasons for an adjournment.
The first respondent submitted that legal unreasonableness depends on the factual circumstances of each case, not the analysis of factual similarities and differences between each individual case, which limits the utility of comparing the circumstances and outcome of one case with another: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 (SZVFW) at [84]; DNK17 at [72].
It was submitted that as a consequence of the applicant’s non-attendance, his failure to provide any further material despite being invited to do so, and his failure to contact the Tribunal about his non-attendance before the scheduled hearing began, it was open for the Tribunal to infer that the applicant would not likely seek to take advantage of a future opportunity to engage in the review process.
The first respondent submitted that it was open for the Tribunal to draw the inference the applicant would not likely seek to take advantage of a future opportunity to engage in the review process, by reason of the applicant’s non-attendance, failure to provide any further material despite being invited to do so, and his failure to contact the Tribunal about his non-attendance before the scheduled hearing began.
The first respondent submitted that the Tribunal's reasoning at [4] of its decision demonstrates that it was aware of its discretion to postpone the matter to allow the applicant to provide additional evidence, but in the absence of a request of that nature from the applicant, and for the reasons already discussed, it did not do so, because it had formed the view that the applicant would not likely further engage with the review, which was open to it in view of the level of the applicant’s engagement with the Tribunal.
CONSIDERATION OF THE GROUND OF JUDICIAL REVIEW
Section 426A(1A) of the Act provides as follows:
The Tribunal may:
(a)by written statement under section 430, 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 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Legal unreasonableness is a well-established category of jurisdictional error. Legal unreasonableness is where a decision maker has come to a conclusion so unreasonable that no reasonable decision maker could have come to it: see Minister for Immigration arid Citizenship v Li (2013) 297 ALR 225 (Li) at [28] per French CJ. A plurality in Li also held that unreasonableness is a conclusion which may be applied to a decision which lacks an “evident and intelligible justification”: see Li at [76] per Hayne, Kiefel and Bell JJ.
It is also well established that any discretion exercised by the Tribunal, such as that exercised under s 426A(1A), must be exercised reasonably: See Li at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J.
Importantly, the High Court in Li also held that:
(a)after all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom, and within that area reasonable minds may reach different conclusions about the correct or preferable decision: Li at [28]; and,
(b)legal unreasonableness cannot be used as a means for challenging a decision on the basis that the Court disagrees with the consideration of facts, or the evaluative judgments made by the decision maker: Li at [30], [113].
In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97] (SZVFW), the High Court held under the former s 426A, before it was amended, it was perfectly permissible for the Tribunal to have dismissed the application for non-appearance without any further consideration of the application or information before it. That was because under the former s 426A, while it had an obligation to exercise the power under that provision reasonably, the Tribunal had a “genuinely free discretion” to exercise the power of dismissal, including whether or not to make a decision on the review, if the applicant failed to appear.
In SZVFW at [96]-[97], Nettle and Gordon JJ (forming part of the majority) discussing the scope and nature of the dismissal power under the former s 426A held:
[96]…Parliament has conferred on the Tribunal the necessary flexibility to ensure that the Tribunal can fully perform its statutory task. Indeed, the discretion in s 426A itself provides flexibility so that the Tribunal's statutory task can be performed. Put in different terms, the legislative scheme of the Act concerning review of decisions in Pt 7 is not one that requires the exercise of power, or the performance of obligations, where conferred on the Tribunal, on a once only basis. The nature of the subject matter of the review and the manner of the exercise of the review may, on occasion, mean that the power may be exercised, and the function or duty must be performed from time to time, as occasion requires, in order to arrive at the correct or preferable decision in the case before the Tribunal according to the material before it. But, of course, the exercise of the discretion in s 426A does not require the Tribunal to postpone or refrain from making a decision on a review every time an applicant suggests they wish to provide further information, cannot meet a deadline, or fails to appear.
[97]The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness.
The application of the principles of legal unreasonableness is very fact dependent and turns on the particular factual circumstances in each case. This particularly the case in matters involving discretionary decisions: see SZVFW at [84]; DNK17 at [72].
Further, various judges of this Court have held that DNK17 does not stand for the immutable 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 a review in circumstances where a review applicant fails to appear at a scheduled hearing: see, for example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091; EEV18; ERO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 195; EEF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 335.
In DNK17, Horan J held that it was legally unreasonable for the Tribunal to exercise its discretion to make a decision on a review under s 426A(1A)(a), as opposed to exercising its power to dismiss the application under s 426(1A)(b), in circumstances where the Tribunal did not provide reasons for why it chose to exercise the less favourable power. However, in DNK17 the applicant had engaged with the Tribunal with respect to the hearing over a long period of time, including by requesting three adjournments of the hearing, including making an adjournment request on the morning of the hearing itself, supported by two medical certificates, which was rejected: see DNK17 at [22]-[30].
In the present case, after filing his application in the Tribunal, the applicant only engaged with the Tribunal on 21 May 2021 by sending two emails about attending the hearing, one of which provided his response to the hearing invitation; then again on 25 May 2025 when he called the Tribunal at 12.20pm to request a Chinese interpreter and to say he would be attending the hearing. I note that in his response to the hearing invitation on 21 May 2021, he advised the Tribunal he would be attending the hearing in person, that he required a Mandarin interpreter and that he did not have any documents that he would be relying upon at the hearing: see Court Book pages 113-115.
I consider the present case is distinguishable from DNK17 for two reasons. First, unlike the situation in DNK17, in the present case there were no adjourned hearings, and no adjournment application was made by the applicant on or before the scheduled hearing and there was no evidence of any illness being suffered by the applicant on 26 May 2021. In the present case, there was limited engagement with the Tribunal by the applicant, over a short period of time (between 20 and 25 May 2021). There was no application made for an adjournment either the day before or on the day of the Tribunal hearing. Second, unlike in DNK17, in the present case, the Tribunal did not have before it, “limited and contradictory available material” necessitating a hearing for the applicant to address credibility issues (see DNK17 at [106]). Rather, in the present case, the Tribunal decided that the applicant’s claims were “lacking in essential detail”, which because of his absence from the hearing, left the claims “unclarified, and the Tribunal’s questions unanswered”.
As the Tribunal found at paragraph [5]:
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. There was no reason provided from the applicant as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that he was ill. In these 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.
I consider this finding was reasonably open to the Tribunal to make in this matter.
For these reasons, I do not accept the applicant’s argument that the Tribunal’s decision was legally unreasonable. Given the circumstances of the present case, and in particular the absence of any request for an adjournment on either 25 May 2021, or prior to the hearing on 26 May 2021, I consider it was reasonably open, or within the Tribunal’s “area of decisional freedom”, to make its decision, as it did, on the review without taking any further action to enable the applicant to appear before it.
Further, I do not accept that the Tribunal’s decision was unreasonable because it failed to consider the “middle path”, as the applicant referred to it, namely the option in which the Tribunal does not proceed to determine the merits of the application, allowing the applicant to have the opportunity to apply for a reinstatement under the provisions of the Act, if he wanted to. As the Tribunal held, there was no evidence the applicant was ill, or any evidence as to why he did not appear. Further, I also agree with the first respondent that: (i) the Tribunal in paragraph [4] of its decision was aware of its discretion to postpone the hearing (the reference to a possible postponement makes this clear), and that (ii) it was reasonably open to the Tribunal to dismiss the application under s 426(1A)(a), given the applicant’s non-attendance, given his failure to provide any further documentary material in support of his claim, despite being invited to do so in the hearing invitation, and given his failure to contact the Tribunal about his non-attendance on or before the scheduled hearing on 26 May 2021.
CONCLUSION
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is vitiated by jurisdictional error.
The application is dismissed.
COSTS
The first respondent has sought an order that the applicant pay the first respondent’s costs in the amount of $5,600. The amount sought is fair and reasonable given the nature of these types of matters. I will make an order in this amount.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 18 September 2025
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