BYC24 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 1661
•10 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYC24 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 1661
File number(s): SYG 698 of 2024 Judgment of: JUDGE DOUST Date of judgment: 10 October 2025 Catchwords: MIGRATION – Review of summary dismissal by Registrar – protection visa application – where Tribunal dismissed application after applicants failed to appear at hearing and failed to apply for reinstatement within prescribed period – whether application has no reasonable prospect of success – where applicants claim they did not receive invitation to Tribunal hearing – where Tribunal invitation transmitted to last email address provided by the applicant in connection with the application – application allowed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 143(3), 256
Federal Court of Australia Act 1976 (Cth) s 31A
Migration Act 1958 (Cth) ss 36(2)(aa), 362B, 422B, 425, 425A, 425A(3), 425A(4), 426A, 426A(1A)(a), 426A(1A)(b), 426A(1B), 426A(1E), 426A(2) 441A, 441A(5), 441C, 476, pt 7, div 4 of pt 7
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 13.13(a), 21.04
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 3.08, 23.08
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of hearing: 11 June 2025 Place: Sydney The Applicants: In person, with the assistance of an Indonesian interpreter Solicitor for the First Respondent: Mr S Knuckey, HWL Ebsworth Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 698 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYC24
First Applicant
BYD24
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
10 OCTOBER 2025
THE COURT ORDERS THAT:
1.The orders of the Registrar dated 20 February 2025 be set aside.
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 DOUST:
INTRODUCTION
The applicants, allocated the pseudonyms BYC24 and BYD24, are married citizens of Indonesia who applied to the (then) Department of Immigration and Border Protection (now Department of Home Affairs) (Department) for protection visas on or about 17 October 2017 (the visa applications).
Those applications were refused on 22 February 2018.
The applicants applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal) (Tribunal) on 19 March 2018 for review of those refusals.
On 1 March 2024, the Tribunal dismissed the applications for review, after the applicants had failed to attend the Tribunal hearing of their application. After the applicants had failed to seek reinstatement of their applications within 14 days of being notified of the dismissal, the Tribunal, on 21 March 2024, confirmed the order dismissing their applications. The instruction to do so appeared in s 426A(1E) of the Migration Act 1958 (Cth) (the Act) as then in effect.
On 15 April 2024, the applicants made an application to this Court pursuant to s 476 of the Act for judicial review of the Tribunal decision. In his response to that application, the first respondent sought an order that the application be dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 GFL Rules) on the basis that the application had no reasonable prospect of success (interlocutory application).
A Registrar of this Court gave judgment on 20 February 2025 following a hearing of the interlocutory application, summarily dismissing the applicants’ application to this Court pursuant to r 13.13 of the 2021 GFL Rules (the Registrar’s decision). The corresponding current rule is r 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
By application pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) made on 13 March 2025 (application for review), the applicants now seek review of the Registrar’s decision.
For reasons which follow, that application for review should be allowed, and the orders of the Registrar made 20 February 2025 be set aside.
EVIDENCE
At the hearing on 11 June 2025, a court book comprised of relevant documents from the Department’s file and the Tribunal concerning the visa application and Tribunal application was received into evidence without objection.
In addition, the Court received two affidavits made by the applicant known as BYC24: one dated 12 April 2024 that had been filed along with the originating application to this Court and one dated 19 May 2025, which addressed the circumstances of the applicant’s failure to attend the Tribunal hearing. The first respondent did not cross-examine the applicant known as BYC24 on his affidavits.
OPERATIVE STATUTORY PROVISIONS
Interlocutory application
As the application seeks review of a decision made by a Registrar exercising delegated powers, a hearing de novo of the first respondent’s application for summary dismissal is required: r 21.04 of the 2021 GFL Rules (as in effect at the time of the hearing, now r 3.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules)). The first respondent must, in effect, prosecute its application again.
The power to summarily dismiss an application is found in s 143 of the FCFCOA Act, which provides, relevantly, as follows:
143 Summary judgment
(1)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
…
Rule 13.13 of the 2021 GFL Rules (as at the relevant time) provided as follows:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
The present analogue of r 13.13 of the 2021 GFL Rules is r 23.08 of the 2025 GFL Rules. It retains a discretion in the Court to order judgment against an applicant who has “no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding”.
The qualification in s 143(3) of the FCFCOA Act (namely, that the proceeding or part thereof need not be hopeless or bound to fail to be properly characterised as lacking reasonable prospects of success) also appears in s 31A of the Federal Court of Australia Act 1976 (Cth). It has been the subject of some discussion in that Court, which is set out below.
Migration Act provisions
Part 7 of the Act at the time of the Tribunal’s decision governed the Tribunal’s review of decisions concerning protection visas. Section 422B of the Act, which dealt with the question of natural justice, appeared in that Part, and provided as follows:
422B Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Sections 425 and 425A of the Act, as at the date of the Tribunal hearing, were as follows:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Section 426A of the Act then provided:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 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 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.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, 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 426B, apply to the Tribunal for reinstatement of the application.
Note:Section 441C 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 426B; or
(b)confirm the decision to dismiss the application, by written statement under section 430.
Note 1:Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2:Under section 430A, 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 430.
Note:Under section 430A, 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 relation to methods of transmission and communication by the Tribunal, and the time at which such communications are taken as having been received, ss 441A and 441C of the Act provided, inter alia:
441AMethods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
Transmission by fax, email or other electronic means
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
441CWhen a person other than the Secretary is taken to have received a document from the Tribunal
(1)This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
…
Transmission by fax, email or other electronic means
(5)If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
ISSUES FOR DETERMINATION
On an application made pursuant to s 476 of the Act, the Court may only make orders in respect of a decision of the Tribunal where it is satisfied that the Tribunal’s review is affected by jurisdictional error.
Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power (such as the Tribunal), to comply with a condition attaching to the exercise of that power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2]-[3] (LPDT).
In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7]. There are some categories of error where the nature of the error itself bespeaks materiality.
The grounds of review set out in the applicants’ originating application were (reproduced without alteration):
1. Jurisdiction error and lacked jurisdiction
2. Error in interpretation of legislation
3. Procedural Fairness was not given to me as applicant
4. Natural Justice
In his affidavit affirmed 19 May 2025, BYC24 stated (as per original):
13.I believe the Tribunal’s decision to dismiss my case was affected by jurisdictional error because:
•I was denied procedural fairness as I did not receive actual notice of my hearing.
•The Tribunal failed to take reasonable steps to confirm that I had received the hearing notice, such as contacting me by phone or sending a letter.
•I never saw the email, and my failure to attend was not deliberate.
On a final hearing of the applicants’ application, the Court would be required to determine whether the above grounds, or such additional or alternative grounds as the applicant was given leave to advance, identified jurisdictional error by the Tribunal.
On the present application a different question arises for the Court. It is whether the applicants have no reasonable prospect of successfully prosecuting their claim that the Tribunal review was affected by a jurisdictional error of the above type.
In Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473 at [7], Perry J summarised the principles applicable to an application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the analogue of s 143 of the FCFCOA Act):
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
Having regard to the nature of the application before the Court, the questions that arise for determination are whether the applicants have no reasonable prospect of persuading the Court that:
(a)The Tribunal erred by denying the applicants procedural fairness;
(b)The Tribunal erred by failing to notify the applicants of their hearing in the manner required by the Act; and/or
(c)The Tribunal’s exercise of discretion miscarried when it proceeded to dismiss the application upon the applicants’ non-attendance rather than to take a different step.
Approaching the question from the opposite direction, the questions that arise are whether there is any real question of law or fact that the Tribunal’s review was affected by an error of the type above. Those questions are addressed below following a summary of the relevant facts and background.
BACKGROUND
The applicants are married citizens of Indonesia. The second applicant is the wife of the first applicant. The second applicant was listed on the application for the protection (subclass 866) visas as a secondary applicant, and dependant of the first applicant. The claim of the second applicant is contingent on the success of the first applicant’s claim. In the background that follows, the first applicant is referred to as ‘the applicant’.
The applicant made an application for a protection (subclass 866) visa to the (then) Department of Immigration and Border Protection (now Department of Home Affairs) (Department) on or about 17 October 2017 (the visa application). In the visa application, the applicants specified an email address for communication with the Department (the Gmail address).
The applicants did not provide a contact telephone number in connection with their application.
The applicant’s claims for protection were based upon him having attended anti-corruption demonstrations in Indonesia. The applicant, who had operated a small business in car rental and repair, claimed to be aggrieved by the necessity to bribe government officials and concerned they would close his business if he did not pay bribes. He claimed to have been involved in a protest in 2012 and arrested and detained for three days. In August 2017, he claimed to have participated in another demonstration, but escaped before the police came. He claimed if he returned to Indonesia he would be arrested again.
The visa application was refused by the delegate. The delegate referred to country information indicating that Indonesia has freedom of assembly and that the population exercises that right by protesting. The delegate nonetheless noted that the government responded to protests that turn violent by using water cannons, tear gas, rubber bullets, and occasionally, arrests of those who have incited violence.
The delegate concluded that if the applicant were to attend a demonstration and incite violence, he could be arrested, but such treatment would be as a result of application of the general law, and would not be because of the applicant’s political opinion.
The delegate was not satisfied that the applicant had a real chance of facing persecution in Indonesia. The delegate also undertook an assessment against the “complementary protection” criteria in s 36(2)(aa) of the Act and was not satisfied that there were substantial grounds for believing that the applicant would suffer significant harm if removed to Indonesia.
A copy of the decision record was sent to the applicants by email to the Gmail address on 22 February 2018.
Tribunal application and hearing
On 19 March 2018, the applicants made an application to the Tribunal for review of the delegate’s decision. In the Tribunal application, the applicants specified a different email address for communication (the Hotmail address). The applicants later claimed that the email address was that of a friend. The applicants also provided a post office box in Haymarket as their address. They did not provide a telephone number on the application.
On 22 March 2018, the Tribunal sent an acknowledgement of application letter by email to the applicants to the Hotmail address. This letter set out, inter alia, the following on its front page:
It is important that you:
•tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;
On 10 November 2023, the Tribunal wrote to the applicant by email to the Hotmail address requesting the applicant to complete a pre-hearing information form within 7 days of receipt of the email (the pre-hearing email). In his 19 May 2025 affidavit, the applicant did not address the pre-hearing email or any response to it. There is no evidence to indicate that the applicants completed the pre-hearing information form, nor is there any evidence from the first respondent about whether the Tribunal received anything from the applicant, took any step in light of any non-response, or had any standard procedure when no response was received to such a communication.
On 2 February 2024, the Tribunal wrote to the applicant by email to the Hotmail address attaching an invitation to attend a hearing (the invitation), a fact sheet containing information about hearings in the Tribunal, and a response to hearing invitation form. The invitation, on the first page, set out, inter alia, the date, place, and time of the hearing, which was to take place at 9:30am on 29 February 2024. The invitation set out the following (emphasis in original):
What will happen if you don’t appear
If you do not appear at 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. Not appearing at the scheduled hearing means:
•if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;
…
The fact sheet set out the same information in near identical terms.
The applicant affirmed that the Tribunal had sent him an email to the Hotmail address on 2 February 2024. I infer that it is the same email contained in the Court book. No question of fact emerges for determination in respect of that communication; there is no dispute as to its dispatch, the date of its dispatch, or its content.
There was no evidence before the Court that the applicants completed and returned the response to hearing invitation. At the hearing of the review application before this Court, the applicants did not make any assertion that they had in fact provided a completed response form to the Tribunal. Rather, in his 19 May 2025 affidavit, the applicant affirms that he provided the Hotmail address on his application form which address was managed by a friend who speaks English and that his friend did not inform him about the email and he did not check the email account.
On 29 February 2024, the Tribunal conducted the hearing. The applicants did not attend the hearing before the Tribunal, nor present the Tribunal with any written evidence. A handwritten note on the Tribunal Hearing Record indicates that:
Checks conducted at:
9:30am
9:45am
10:00am
I infer that the references on the hearing record mean that the Tribunal Member or officer checked for the applicants in the vicinity of the Tribunal at the times recorded. The applicant made no claim in his application or affidavits that he in fact attended the Tribunal for the purpose of the hearing. On the contrary, his evidence was that he was not aware of the hearing.
Tribunal decision
On 1 March 2024, the Tribunal made a decision to dismiss the application pursuant to s 426A(1A)(b) of the Act on the basis of the non-appearance of the applicant at the hearing (the Tribunal decision).
On 6 March 2024, the Tribunal sent an email to the Hotmail address attaching a letter notifying the applicants that the Tribunal had made a decision to dismiss the application for review due to their non-attendance, along with a fact sheet with information about dismissal of applications, and a copy of the Tribunal decision. The cover letter contained the following information on the first page:
You may apply to us, in writing, for reinstatement of the application by 20 March 2024. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The fact sheet similarly contained the following information on its first page (emphasis in original):
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
The applicant did not seek reinstatement of the matter in the Tribunal within the statutory time period.
In the event, on 21 March 2024, the Tribunal made a further decision confirming its decision to dismiss the applicant’s application for review of the delegate’s decision (the confirmation decision).
On 22 March 2025, the Tribunal sent an email to the applicants at the Hotmail address, attaching a further covering letter, along with a fact sheet with information about dismissal of applications, and a copy of the confirmation decision.
On 2 April 2024, a migration agent purporting to act on behalf of the applicant sent an email to the Tribunal, stating the following:
Dear Member,
We act on behalf of the above-mentioned applicant and his wife. Form MR5 has been attached for your perusal. On 21 March 2024, the applicant got an email that his AAT application had been dismissed due to non attendance of hearing. As per the applicant and his wife, they did not receive any emails for the hearing. They checked their emails again, spam emails etc for the same.
We request you to kindly check your records if the request for hearing has gone to the correct email address. We further request you to kindly reinstate the application and provide another chance to our clients for hearing so that they can have their say in the hearing. That would be fair dinkum!
On 10 April 2024, the Tribunal sent a letter to the migration agent by email. An excerpt of that letter is reproduced below:
… we made our decision in this case on 21 March 2024. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.
We are not in a position to assist you any further on this issue.
Application to this Court
Following the confirmation decision, the applicant then made an application to this Court for judicial review of the Tribunal’s decision on 15 April 2024 (the originating application).
The originating application contained the following four grounds (errors in original):
1. Jurisdiction error and lacked jurisdiction
2. Error in interpretation of legislation
3. Procedural Fairness was not given to me as applicant
4. Natural Justice
The applicant also deposed an affidavit (on 12 April 2024) which was filed with the originating application. That affidavit contained the following and annexed the Tribunal’s decision (errors in original):
1.I , [personal details] say on oath [*or] affirm:
I am the Applicant.
2.Member of Migration Review Tribunal misinterpreted the applicable law or misapplied the law to the fact that they made jurisdictional error in deciding my case
3.Did not receive any emails from AAT for hearing. No confirmation calls or emails from them whether I am attending the hearing
The matter was prepared for hearing in the usual way, with the first respondent filing, in accordance with the orders of the Court, a court book containing relevant documents from Departmental records.
The first respondent, on 6 June 2024, filed a response seeking summary dismissal of the originating application pursuant to r 13.13(a) of the 2021 GFL Rules, and s 143 of the FCFCOA Act, on the basis that the applicant had no reasonable prospects of prosecuting the proceedings.
The parties appeared before a Registrar of this Court on 20 February 2025 for hearing of the first respondent’s application for summary dismissal. The Registrar made orders and delivered reasons dismissing the originating application with costs (the Registrar’s decision).
On 13 March 2025, the applicants filed their application seeking review of the Registrar’s decision.
On 19 May 2025, the applicant affirmed an affidavit in connection with the review application in which he averred (relevantly) as follows (19 May 2025 affidavit):
1. …I am self-represented and have limited English proficiency.
…
Background
3.On 19 March 2018, I applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the delegate’s decision not to grant me a Protection visa.
4.I provided an Hotmail address on my application form, which was managed by a friend who speaks English.
5.I have limited English, and I relied on my friend to communicate with the Tribunal and check emails.
6.On 2 February 2024, the Tribunal sent an email to the Hotmail address inviting me to a hearing on 29 February 2024.
7.My friend did not inform me about this email, and I did not personally check or access this email account.
…
10.I only became aware of the dismissal when I asked my friend to check my emails.
…
13.I believe the Tribunal’s decision to dismiss my case was affected by jurisdictional error because
•I was denied procedural fairness as I did not receive actual notice of my hearing.
•The Tribunal failed to take reasonable steps to confirm that I had received the hearing notice, such as contacting me by phone or sending a letter.
•I never saw the email, and my failure to attend was not deliberate.
…
17.If my review is not allowed, will be forced to return to danger without having my case properly heard.
CONSIDERATION
As set out above, in the context of the present summary dismissal application, the applicants’ application requires a determination regarding whether there is no reasonable prospect of the applicant persuading the Court that the Tribunal’s review was affected by jurisdictional error. The claimed errors that arise on the material before the Court are:
(a)that the Tribunal erred by denying the applicants procedural fairness;
(b)that the Tribunal erred by failing to notify the applicants of their hearing in the manner required by the Act; and/or
(c)that the Tribunal’s exercise of discretion miscarried when it proceeded to dismiss the application upon the applicants’ non-attendance rather than to take a different step.
Those alleged errors are addressed in turn below.
Procedural Fairness/Natural Justice
Procedural fairness and natural justice were raised as grounds in the application without anything further to identify the way in which there had been any denial of procedural fairness or natural justice.
In the 19 May 2025 affidavit, the applicant avers that he was denied procedural fairness as he did not receive actual notice of the hearing. Further in the 19 May 2025 affidavit, the applicant says that this Court (presumably a reference to the Registrar’s decision) “did not sufficiently engage with the key issue of whether the Tribunal’s procedural failure deprived us of a fair hearing. By dismissing the application, the Court effectively denied an opportunity to fully present their arguments regarding jurisdictional error”.
As set out above, s 422B of the Act provides that div 4 of pt 7 (as was in effect at the time of the Tribunal’s decision) was an exhaustive statement of the requirements of the natural justice hearing rule in relation to the “matters it deals with”. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, Bell, Gageler and Keane JJ observed (at [35]) that s 422B of the Act operates:
to ensure that compliance by the Tribunal with the procedures prescribed by those specified provisions and groups of provisions constitutes compliance with the obligation of the Tribunal to afford procedural fairness in so far as each provision gives specific content to that obligation.
Each of s 425 (which obliges the Tribunal to invite the applicant to appear to give evidence and present arguments, subject to certain exceptions), s 425A (which obliges the Tribunal to give notice of such an invitation), and s 426A (which deals with the circumstance of the applicant failing to appear before the Tribunal) appeared in div 4 of pt 7 of the Act as in operation at the time of the Tribunal decisions.
Accordingly, the requirements of the natural justice hearing rule, so far as it pertains to the matters dealt with in those sections, are contained in the sections. Where the Tribunal has complied with the requirements of those sections, there will be no failure to afford procedural fairness or natural justice. Absent the applicant demonstrating some failure to comply with the sections in div 4 of pt 7 of the Act, the applicants have no reasonable prospects of succeeding on their natural justice ground. Accordingly, the applicants’ first ground will only succeed if the second ground succeeds.
Failing to notify the applicants of their hearing in the manner required by the Act
As set out above, if the Tribunal invited the applicant to appear before it, it was required by s 425A of the Act to give the applicant notice of the day, time and place of such appearance, and to give that notice by one of the methods specified in s 441A of the Act.
Section 441A of the Act permitted such notice to be given by the following methods:
Transmission by fax, email or other electronic means
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
The invitation to the applicant to appear:
(a)was dated 2 February 2025, giving the applicant in excess of the 14 days’ notice prescribed pursuant to s 425A(3) in reg 4.35D of the Migration Regulations 1994 (Cth) (Regulations) (noting that the date of the hearing before the Tribunal was to be 29 February 2024);
(b)was addressed to the Hotmail address; that is, it was sent to the last email address provided by the applicant to the Tribunal in connection with the review; and
(c)contained the date, time and address of the Tribunal hearing to which the applicant was invited.
The letter also contained the following:
What will happen if you don’t appear
If you do not appear at 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. Not appearing at the scheduled hearing means:
•if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;
•if you were invited to appear by video conference using Microsoft Teams, you do not appear via Microsoft Teams at the scheduled time;
•if you were invited to appear by video conference at a specified place, you do not attend the place at the scheduled time; or
•if you were invited to appear by telephone, you do not answer our phone call to you at the scheduled time or you do not call us on the number we provided to you at the scheduled time.
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.
(Emphasis in original)
That section of the letter addressed the effect of s 426A of the Act. The applicant has not contended that the 2 February 2025 letter did not make a statement that was sufficient to comply with the requirement in s 425A(4) of the Act.
The applicant has not identified any way in which the letter dated 2 February 2025 did not comply with the requirements of s 425A of the Act. Whilst asserting that he did not receive the letter, he has not articulated any argument as to how the Tribunal failed to comply with the notification requirements in s 441A(5) of the Act in the manner in which the Tribunal notified the applicant.
The applicant has not currently articulated any arguable jurisdictional error that the Tribunal erred in failing to notify the applicants of the hearing in accordance with the requirements of the Act. No question of fact or law has been identified for determination. There is no reasonable prospect of success on this ground.
Exercise of discretion to dismiss the application
The final ostensible error involves the Tribunal’s decision to dismiss the application when the applicant failed to attend the hearing on 29 February 2024.
As set out above, when the applicant failed to appear at the hearing, there were three steps available to the Tribunal, namely:
(a)pursuant to s 426A(1A)(a) of the Act, the Tribunal could proceed to make a decision on the review without doing anything further to hear from the applicant;
(b)pursuant to s 426A(1A)(b) of the Act, the Tribunal could proceed to dismiss the application without further consideration. The making of such a decision carried with it the consequence that the applicant could apply, pursuant to s 426A(1B) of the Act to reinstate the application; or
(c)pursuant to s 426A(2), the Tribunal could reschedule the applicant’s appearance or delay its decision on the review in order to enable the applicant’s appearance before it.
In Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (Kaur), Mortimer J (as her Honour then was) considered whether a decision by the Tribunal dealing with an application for review of a refusal of a student visa, to determine the application when the applicant failed to appear at the hearing in reliance upon s 362B of the Act (a provision which is analogous to s 426A of the Act) was legally unreasonable, in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh).
Her Honour concluded that the decision of the Tribunal in that matter to proceed to determine the review was unreasonable. That conclusion followed her Honour’s detailed recitation of the applicant’s engagement with the Tribunal over the course of the review about the evidence the Tribunal requested.
Her Honour noted, prior to that analysis that in Singh, the Full Court said (at [42]):
Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence.
Considering the interaction between the obligation of reasonableness, and the provisions in the Act which govern notification, her Honour said (at [133] and [134]):
There is, however, no difficulty in accepting the proposition which also emerges from SZFHC that, having complied with its obligations under s 425A (or, here, s360A) there cannot be discerned from ss 425 and 425A read together (or, here, ss360 and 360A read together) any freestanding obligation on the Tribunal, in every case where there has been a failure to respond to a hearing invitation and a failure to appear at a scheduled hearing, to search its records, or those of the Department, to discover if there might be another way of communicating with the applicant. To imply such an obligation would be to constrain the discretions in s 362B and s 426A in a way the legislative scheme does not suggest is justified.
The reconciliation of that proposition with the proposition that the discretions in s 362B (and 426A) must be exercised reasonably is, as both Li and Singh recognise, not found in some checklist approach, but in a consideration of the factual circumstances in which the particular discretion was exercised in respect of a particular review and particular review applicant.
Her Honour went on (at [135) to opine that the sending of a hearing invitation in accordance with the notification provisions, which invitation is deemed received under the Act does not foreclose a conclusion that an exercise of discretion under 362B was legally unreasonable.
Her Honour commented on the time it took for the Tribunal to consider the review application, observing (at [138]) that Tribunal had taken almost two years to come to the point of considering the review application. The Tribunal had not proceeded with any particular sense of urgency, nor was there objectively any basis for such urgency.
Her Honour noted the applicant’s level of engagement with the Tribunal during a series of communications. Against that history, the Tribunal officers and Member should have seen the applicant’s failure to attend the hearing as out of character. A Tribunal acting fairly, her Honour said, would have taken some steps to find out what had happened. Her Honour considered that a follow up communication would likely have resulted in the applicant attending a second hearing.
Considering the facts of the present matter, the striking feature is how long it took before the Tribunal came to deal with the application for review. The application for review was lodged on 19 March 2018, and the Tribunal sent an acknowledgement to the applicants on 22 March 2018.
The next communication with the applicant was on 10 November 2023 (being the pre-hearing email), that is, more than five and a half years since the last communication.
In the pre-hearing email, the Tribunal requested the applicant to return a pre-hearing information form. The applicant has not referred to that communication in his affidavits. Nor is there anything in the court book from the Tribunal’s file which indicates that the applicant responded to that communication. It is arguable that, in light of that failure, given the significant amount of time that had elapsed since the last communication from the Tribunal, acting reasonably, the Tribunal would have attempted to communicate with the applicant by an alternative method to follow up about his lack of response. Although the applicant had not provided another email address or telephone number, he had provided a postal address with his application for review. Given the Tribunal did not proceed to list the application for hearing until early February 2024 (nearly three months after that email), there was sufficient time to take that step.
The same argument is open in respect to the decision of the Tribunal on 1 March 2024 to dismiss the application. By that stage, nearly six years had passed since the application for review was lodged, and several months had passed since the pre-hearing email. It is arguable that, given the apparent lack of response to the pre-hearing email, and given the very substantial period since the application was commenced, that the Tribunal, acting reasonably, would have attempted to communicate with the applicant by the postal address he had provided to enquire about his lack of attendance at the hearing, rather than proceeding to dismiss the application.
At first blush, the applicant does not appear to have a strong case. There is a substantial amount of authority to the effect that the Tribunal does not have an obligation in every case where an applicant fails to appear to take steps to find another means of communicating with the applicant. The applicant in the present matter did not demonstrate the same level of engagement as Ms Kaur in the matter before Mortimer J. On the material presently before the Court, it cannot be said that an argument that the Tribunal acted unreasonably enjoys good prospects of success. On the contrary, the applicant has a very difficult case to advance.
Nonetheless, as observed by the Full Court in Singh and by Mortimer J in Kaur, the question of reasonableness in a particular case is a fact specific inquiry. The striking fact about the current matter is the very significant period between the commencement of the application for review and the hearing, and the significant period between the pre-hearing email and the listing. Those delays indicate that the Tribunal was not treating the matter as urgent. Additionally, there is something of an evidential gap about whether there was any response by the applicant to the pre-hearing email, and if not, what occurred as a consequence. That gap may be filled at a final hearing. The Tribunal had an alternative contact postal address in its own records. On a final hearing, it is possible the Court may be persuaded that those circumstances (along with such other circumstances as are exposed at a final hearing) provide a basis for a conclusion of unreasonableness about the Tribunal’s decision to dismiss the matter rather than to adjourn the hearing on 29 February 2024 to seek to contact the applicant by other means. Although the force of the first respondent’s argument on a final basis is readily apparent, the Court cannot be satisfied that the applicant’s argument is so lacking in prospects that he had no reasonable prospect of success; that is, that his prospects are so poor he should not be entitled to advance his argument at a final hearing.
The originating application to this Court should not be dismissed.
The orders of the Registrar made on 20 February 2025 should be set aside.
I will hear the parties as to the further orders that are appropriate in light of my judgment.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 10 October 2025
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