CDU18 v Minister for Immigration, Citizenship & Multicultural Affairs
[2025] FedCFamC2G 802
•29 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDU18 v Minister for Immigration, Citizenship & Multicultural Affairs [2025] FedCFamC2G 802
File numbers: MLG 1118 of 2018
MLG 1119 of 2018Judgment of: JUDGE SYMONS Date of judgment: 29 May 2025 Catchwords: MIGRATION – Protection visa – judicial review of multiple decisions of the Administrative Appeals Tribunal – where husband and wife separately applied for a protection visa – where both applications were dismissed by the Tribunal for non-appearance and the dismissal decision later confirmed - where both applicants made a succession of applications to the Tribunal following the dismissal of their respective review applications – whether the dismissal and confirmation decisions complied with procedural requirements – whether the dismissal decision was legally unreasonable - whether Tribunal correctly found it did not have jurisdiction to conduct further reviews of the dismissal decision – where Tribunal complied with procedural fairness and statutory obligations – where decision to proceed under s 426A(1A)(b) was supported by intelligible reasoning - both applications dismissed – both applicants to pay costs in fixed amount reflecting Scale at time of applications Legislation: Migration Act 1958 (Cth), ss 36, 412, 425, 425A, 426, 426A, 441, 441A
Federal Circuit Court Rules 2001 (Cth), Sch 1
Migration Regulations 1994 (Cth), reg 4.35
Cases cited: BYF16 v Minister [2019] FCA 2023
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025; (2020) 279 FCR 212
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submissions: 26 March 2024 Date of hearing: 26 March 2024 Place: Melbourne In MLG 1118 of 2018 Solicitor for the Applicant: The Applicant represented herself Solicitor for the First Respondent: Mr Mintz, solicitor advocate, Clayton Utz Solicitor for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs In MLG 1119 of 2018 Solicitor for the Applicant: The First Applicant represented the First and Second Applicants Solicitor for the First Respondent: Mr Mintz, solicitor advocate, Clayton Utz Solicitor for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
MLG 1118 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDU18
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 27 April 2018 and amended on 29 May 2019 to include the decisions identified in Schedule 1 to these orders is dismissed.
4.The applicant pay the first respondent’s costs fixed in the amount of $7,328.
Schedule 1
Tribunal case number Date of decision 1606292 20 December 2017 1718841 2 October 2017 1725928 30 November 2017 1732440 22 January 2018 1802079 21 February 2018 1811586 15 May 2018 1805515 26 March 2018 1808833 19 April 2018 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).
ORDERS
MLG 1119 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDT18
First ApplicantCDU18
Second ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 27 April 2018 and amended on 29 May 2019 to include the decisions identified in Schedule 1 to these orders is dismissed.
4.The applicants pay the first respondent’s costs fixed in the amount of $7,328.
Schedule 1
Tribunal case number Date of decision 1605612 20 December 2017 1606292 14 August 2017 1718841 2 October 2017 1725928 30 November 2017 1732440 22 January 2018 1802079 21 February 2018 1802080 21 February 2018 1804964 16 April 2018 1805515 26 March 2018 1808833 19 April 2018 1810938 24 April 2018 1811586 15 May 2018 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 SYMONS:
INTRODUCTION
This matter concerns two judicial review applications; one made by CDT18 and CDU18 together and a second made only by CDU18. Although the proceedings were not formally consolidated, they were heard together in recognition of the close connection between the matters pressed and the decisions subject to review. The parties acknowledged in these circumstances that it would be appropriate and convenient to deal with both applications in a single judgment.
CDU18 (wife) and CDT18 (husband) are citizens of Malaysia. They arrived in Australia on 20 November 2015 on tourist visas.
Both applicants separately applied for a Class XA Protection (subclass 866) visa (visa) and in each case the visa application was refused by a delegate of the first respondent (Minister). Each applicant then separately applied to the second respondent (Tribunal) for merits review of the adverse delegate decision. In each case, the Tribunal dismissed the application for non-appearance. In circumstances where neither applicant applied for reinstatement of the decision, the dismissal was later confirmed pursuant to s 426A(1E) of the Migration Act 1958 (Cth) (Act).
Thereafter, each applicant made a number of applications to the Tribunal for review of the delegate’s decision refusing them the grant of the visa or, in some cases, for review of earlier in time Tribunal decisions made in respect of the original visa refusal decision. In some cases, the application was made by CDT18 or CDU18 individually. In other cases, the application was made by both applicants jointly. On each occasion, the Tribunal determined that it lacked jurisdiction to hear the application on the basis that the Tribunal (differently constituted) had already made a valid determination regarding the decision of the delegate. A complete list of all applications made by one or both applicants appears as Annexure A to this judgment.
On 27 April 2018, CDT18 and CDU18 filed the present application for judicial review. The decision identified in the application was one of the subsequent Tribunal decisions, dated 16 April 2018 in which the Tribunal found that it did not have jurisdiction to perform a review.
On the same date, CDU18 filed a separate application in which she sought judicial review of a Tribunal decision dated 19 April 2018. The Tribunal in that case had also dismissed the application citing a lack of jurisdiction.
Reflecting the volume of related decisions made by the Tribunal that had not been identified in the initiating applications filed by the applicants, Registrar Gitsham made orders by consent in both proceedings on 29 May 2019 that (the relevant) “application is amended to also seek review of all decisions of the second respondent that relate to the applicant’s for visas with departmental file numbers CLF2016/17102 and CLF2016/5532, being applications with tribunal case numbers:…”.
The intention was to ensure that all decisions relating to the applicants would be the subject of a single judicial review application and determination. As the Minister submits however, to the extent that the list of applications identified in the orders comprehends applications made by one applicant only, the other applicant lacks standing to seek its judicial review (referring to s 412 of the Act). This is undoubtedly correct. For the avoidance of doubt, findings recorded in this judgment concern only those Tribunal decisions in respect of which the relevant applicant has standing. It is the intention of the orders to also reflect this.
BACKGROUND
CDU18 (the wife)
On 22 January 2016, the wife lodged an application for the visa, naming the husband as a secondary applicant on the application (visa application).[1]
[1] CDU18 Court Book filed 12 June 2019 (Wife’s CB), 1-39.
On 27 February 2016, the Department acknowledged receipt of a valid application.[2]
[2] Wife’s CB 40-46.
On 29 March 2016, a delegate of the Minister made a decision to refuse the wife’s visa application (refusal decision).[3] The delegate was not satisfied that the wife was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act.
[3] Wife’s CB 66-68.
On 4 May 2016, the wife applied to the Tribunal for review of the refusal decision, which application was assigned Tribunal case 1606292. The wife listed her email address “[email protected] and mobile phone number “04xx xxx xxx” as contact details in Australia.[4]
[4] Wife’s CB 224-230.
On 5 July 2017, the Tribunal invited the wife to attend a hearing on 26 July 2017. The hearing invitation recorded: (CB 245-246).
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.
On 19 and 25 July 2017, multiple hearing reminder notifications were sent to the wife’s listed mobile number via SMS. All reminders failed to deliver.[5]
[5] Wife’s CB 254-255.
The wife did not attend the Tribunal hearing on 26 July 2017.
On 26 July 2017, the Tribunal dismissed the review application based on the failure of the wife to appear at the Tribunal hearing (dismissal decision). The Tribunal produced a statement of decision which, given its brevity, I have chosen to reproduce in full. It read:[6]
1. The review applicant was invited under s. 425 of the Migration Act 1958 to appear before the Tribunal on 26 July 2017 at 9.30 am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), and that the invitation has not been returned to sender. No reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
[6] Wife’s CB 264.
In a letter sent by email to the wife on 26 July 2017 the Tribunal explained:[7]
You may apply to us, in writing, for reinstatement of the application by 9 August 2017. 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.
[7] Wife’s CB 261.
The wife did not apply for reinstatement of the review application by 9 August 2017, and accordingly, on 15 August 2017, the Tribunal notified the wife of its decision to confirm the dismissal decision (confirmation decision).[8]
[8] Wife’s CB 266.
Following this, the wife made applications to the Tribunal for review of the refusal decision as follows (repeat refusal review applications):
·On 22 August 2017 in Tribunal case 1718841;[9]
·On 23 October 2017 in Tribunal case 1725928;[10]
·On 20 December 2017 in Tribunal case 1732440.[11]
[9] Wife’s CB 271-309.
[10] Wife’s CB 310-343.
[11] Wife’s CB 344-369.
The wife also made the following applications to the Tribunal for review of earlier Tribunal decisions (repeat Tribunal review applications):
·On 26 January 2018 in Tribunal case 1802079;[12]
·On 1 March 2018 in Tribunal case 1805515;[13]
·On 29 March 2018 in Tribunal case 1808833;[14]
·On 23 April 2019 in Tribunal case 1811586.[15]
[12] Wife’s CB 370-391.
[13] Wife’s CB 460-482.
[14] Wife’s CB 483-500.
[15] Wife’s CB 511-531.
In each of the repeat refusal review applications, the Tribunal found it did not have jurisdiction, as the delegate’s refusal decision had already been the subject of a valid review in the confirmation decision (Tribunal case 1606292). An example of this type of decision appears at CB 373 to 374.
In each of the repeat Tribunal review applications, the Tribunal treated the application for review as an application to review the delegate’s refusal decision and found it did not have jurisdiction for the same reason as the first category of application. An example of this type of decision appears at CB 496 to 497.
Before making the various decisions, the Tribunal invited the wife to comment as to the validity of the corresponding application. The wife did not respond to any of these invitations.[16]
[16] See Wife’s CB at 283-284; 335-336; 361-362; 383-384; 470-471; 492-493; 522-523
CDT18 (the husband)
On 14 March 2016, the husband lodged an application for a visa (visa application).[17] On 22 March 2016, the Department acknowledged receipt of a valid application.[18]
[17] CDT18 Court Book filed 12 June 2019 (Husband’s CB), 82-121.
[18] Husband’s CB 1-37.
On 18 April 2016, a delegate of the Minister made a decision to refuse the husband’s visa application (refusal decision).[19] The delegate was not satisfied that the husband was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act.
[19] Husband’s CB 136-156.
On 21 April 2016, the husband applied to the Tribunal for review of the refusal decision.[20] The Tribunal acknowledged receipt of the application on 27 April 2016 and assigned the application case number 1605612.[21]
[20] Husband’s CB 158-159.
[21] Husband’s CB 178-179.
In his application, the husband identified his correspondence details as including an email address “[email protected]” and mobile phone number “04xx xxx xxx”.[22]
[22] Husband’s CB 159.
On 9 November 2017, the Tribunal invited the husband to attend a hearing on 20 December 2017. The hearing invitation recorded:[23]
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.
[23] Husband’s CB 192-193.
On 13 December and 19 December 2017, a hearing reminder notification was sent to the husband’s listed mobile number via SMS. Both reminders failed to deliver.[24]
[24] Husband’s CB 201-202.
The husband did not attend the Tribunal hearing on 20 December 2017.[25]
[25] Husband’s CB 205-206.
On 20 December 2017, the Tribunal dismissed the application for review based on the failure of the husband to appear at the Tribunal hearing (dismissal decision). The Tribunal produced a statement of decision which, given its brevity, I have chosen to reproduce in full. It read:[26]
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal at 9:30 am on 20 December 2017. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also attempted to send to the mobile phone number provided to the Tribunal by the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. The Tribunal received 'delivery failed' messages in relation to both of these SMS reminders.
2. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that attempts were made to send two separate SMS reminders to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3. In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
[26] Husband’s CB 214-215.
In a letter sent by email to the husband on 20 December 2017 the Tribunal explained:[27]
You may apply to us, in writing, for reinstatement of the application by 3 January 2018. 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.
[27] Husband’s CB 210.
The husband did not apply for reinstatement of the review application by 3 January 2018, and accordingly, on 8 January 2018, the Tribunal notified the husband of its decision to confirm the dismissal decision (confirmation decision).[28]
[28] Husband’s CB 220-221.
Following the confirmation decision, the husband made applications to the Tribunal seeking review of previous Tribunal decisions. He did so individually:
·On 26 January 2018 in Tribunal case 1802080;[29]
·On 17 April 2018 in Tribunal case 1810938.[30]
[29] Husband’s CB 345-385.
[30] Husband’s CB 436-445.
He did so with jointly with the wife:
·On 25 February 2018 in Tribunal case 1804964.[31]
[31] Husband’s CB 386-412.
In each of the Tribunal cases referred to at [34]-[35], the Tribunal treated the applicants’ applications for review as applications to review the delegate’s refusal decision. In each case the Tribunal found it did not have jurisdiction as the delegates’ decisions had already been the subject of a valid Tribunal review.
Before making the various decisions, the Tribunal invited the husband to comment as to the validity of the corresponding application. The husband did not respond to any of these invitations.[32]
[32] Husband’s CB 354; 404-405.
JUDICIAL REVIEW
The two judicial review applications (as amended in the manner identified in [7] above) were listed for final hearing on 24 March 2024.
I heard the wife’s application first followed (after a brief adjournment) by the husband and wife’s joint application.
The wife and husband represented themselves and received assistance from an interpreter in the Malay and English languages.
Neither applicant filed any material beyond their originating application and an affidavit that annexed a copy of the decision identified in the application document.
The Minister relied on two sets of written submissions that had been filed on 12 March 2024.
The grounds of review in both application documents are identical. They read:
1. The Tribunal made an error of law because my documentation were not considered/taken into account.
2. I believe the decision was wrongly decided.
SUBMISSIONS
CDU18
At hearing, the wife submitted that she had made her initial application with the help of another person but then was “tricked” and “scammed” and this person demanded that she pay them a sum of $1,500 per month. The wife told the Court this person was not a registered migration agent.
The wife explained that the reason she had not attended the Tribunal hearing was due to “very bad morning sickness”. The wife told the Court that she had been admitted to the emergency room due to dehydration during her pregnancy in July 2017. I questioned the wife whether she had any evidence of her sickness or admission to hospital. I asked whether she told the Tribunal that she was unable to attend the hearing. The wife was unable to produce evidence to support this assertion and told the Court that because she had been new to Australia, she did not know what to do.
The wife told the Court that she had asked the person who assisted her with the initial application to reschedule the hearing, as she did not know how to do so herself, and that this person had told her to not worry about it, and that he had extended her visa.
The Minister
The Minister submitted that in dismissing the wife’s application for review of the refusal decision for non-appearance pursuant to s 426A(1A)(b) of the Act, the Tribunal was not required to “make any substantive findings in relation to the applicants’ claims for protection” (citing BYF16 v Minister [2019] FCA 2023 at [21]). The Minister submitted that the Tribunal had considered all facts and evidence relevant to the dismissal and confirmation decisions.
The Minister submitted that the Tribunal had complied with all of its procedural fairness obligations in relation to the hearing and hearing invitation. The hearing invitation:
·set out the date, time and place at which the hearing would be held (s 425A(1) of the Act);
·was correctly sent to the applicant’s email address (ss 425, 425A(2)(a), 441A(5) of the Act);
·gave the applicant more than 14 days’ notice of the hearing (s 425A(3) of the Act and reg 4.35(3) of the Migration Regulations 1994 (Cth) (Regulations));
·contained a statement of the effect of s 426A of the Act (s 425A(4)).
The Minister submitted that the wife was properly informed of her right to seek reinstatement in the letter sent by the Tribunal to her on 26 July 2017, and as she did not do so within the prescribed period (or at all), the Tribunal was obligated to confirm the non-appearance decision, which it did (s 426A(1E)-(1F) of the Act).
In his oral submissions, the Minister’s representative noted that there was evidence before the Court that the wife had been engaging with the Tribunal before and after the hearing in relation to a Medicare letter and in doing so had used the email address to which the hearing invitation and notification of dismissal decision had been sent.[33]
[33] Wife’s CB 188; 254 and 524.
The Minister submitted that, as far as the subsequent applications to the Tribunal were concerned, the following principles have application:
·Where the Tribunal has previously reviewed a decision of a delegate, that decision is no longer a reviewable decision (citing SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164).
·The Tribunal (differently constituted) had previously conducted a review of the delegate’s decision.
·The Tribunal correctly found it had no jurisdiction to review the delegate’s decision a second time (citing Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; SZASP v Minister for Immigration and Citizenship [2007] FCA 771). No errors arise in relation to any of the subsequent applications and decisions.
The Minister submitted that nothing turned on the Tribunal’s procedural decision to assist the applicants by informing them, in appropriate cases, that their applications appeared to be seeking review of the earlier delegate’s decision, when they were styled as applications that sought review of a Tribunal decision. The Minister submitted that it is standard practice for the Tribunal to assist applicants by “correcting” their applications for review where possible. In any case, nothing turned on the Tribunal’s procedural decisions as the Tribunal did not have jurisdiction to review a previous decision by the Tribunal (differently constituted).
At the hearing, the Minister’s representative acknowledged the wife’s vague allusion to fraud or being tricked by the person assisting her. The Minister submitted there was a high bar to establish a claim of this kind and given that the wife had failed to place any evidence before the Court or the Tribunal directed at such a claim, the Court should not give the claim any weight.
CDT18
When invited to make submissions in proceeding MLG119/2018 (being the application filed by the husband as first applicant), the husband repeated the wife’s earlier submission that the couple had paid $1,500 to an individual who had assisted them in completing and submitting their visa applications.
When prompted, the husband acknowledged that he had been aware there would be a hearing at the Tribunal, but he submitted that due to his wife’s morning sickness, he was unable to attend as she was entirely dependent on him. The husband also acknowledged that he had not communicated his unavailability to attend the hearing with the Tribunal.
The husband took the Court to an email sent by himself to the Tribunal (the address being the ‘National Registry Mailbox’) on 8 January 2018 at 8:07pm, where he wrote:[34]
i’m so sorry that actually now my wife already pregnant around 7 month and how can my wife want to fly to Malaysia?
[34] Husband CB 222.
The husband also submitted that he had paid multiple one-off payments to an individual who informed him that he would assist in re-scheduling the Tribunal hearing. He accepted that he did not include this information in his email to the Tribunal on 8 January 2018.
The Minister
The Minister made submissions on this second application that reflected the matters of principle identified above in relation to CDU18. There is no need to repeat them.
As far as the original Tribunal case of 1605612 is concerned, the Minister submitted that the hearing invitation sent to the husband on 9 November 2017 complied with each of the statutory requirements identified above at [48].
RESOLUTION
The complexity of these two related proceedings arises from the volume of applications filed by both applicants and decisions of the Tribunal that these produced.
Its resolution is more straightforward.
In both proceedings, ground one involves the contention that the Tribunal erred because it failed to take into account (unidentified) documentation.
However, this ground of review misapprehends the nature of the dismissal decision and the subsequent confirmation decision.
If the Tribunal’s approach in proceeding under this legislative pathway does not disclose error then it is not generally bound to consider or determine the merits of the applicants’ protection visa applications: FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025; (2020) 279 FCR 212 at [36] per Nicholas J.
The extant question is whether the Tribunal relevantly erred in making its decisions under ss 426A(1A) and/or 426A(IE) of the Act.
Section 426A(1A) provided (at the relevant time) that, in the event of non-appearance by an applicant at a hearing to which they were invited under s 425 of the Act:
(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…
Both applicants were invited to a hearing before the Tribunal pursuant to s 425 of the Act. I accept the Minister’s submission that this invitation complied with s 425A of the Act for the reasons that have been identified comprehensively at [48] (and adopted at [59]).
Neither applicant contends that they did not receive the hearing invitation. To the contrary, their responses were to the effect that they were both aware of the Tribunal hearing but, for different reasons, were unable to attend and failed to take steps to communicate this to the Tribunal or to seek an adjournment.
I have considered whether the Tribunal acted reasonably in exercising its discretion to dismiss the application in both cases. In assessing the quality of these dismissal decisions, the focus is on the reasons in fact given.
In this respect, I consider that the reasons provided by the Tribunal for each dismissal decision (reproduced at [16] and [31]) provide an evident and intelligible justification for the decision taken: see Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour was) and Bell J. These reasons took into account the apparent correctness of the hearing invitation, the lack of evidence that it had failed to reach the applicant, the warning provided to each applicant about the consequences for the review if they failed to appear at the hearing, and in the case of CDT18, that hearing reminders had been sent to him by SMS.
Further, no issue arises in this case of the kind identified in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 given that the Tribunal in the respective dismissal decisions exercised the (more favourable) power under s 426A(1A)(b) of the Act which preserved for each applicant a right to reinstate their review application. In DNK17, the Tribunal had instead made a decision on the review under s 426A(1A)(a) of the Act which foreclosed further consideration of the application by the Tribunal.
The wife tangentially and without any proof, raised the spectre of a fraud on the Tribunal relating to a failure to seek an adjournment of the hearing on her behalf. However, there is no evidence of any third-party involvement in the applicants’ visa applications or admissible evidence of any conduct that might arouse the suspicion of the Court. The evidence instead suggests that the applicants maintained regular contact with the Tribunal.
As far as the confirmation decisions are concerned, these involved the application of s 426A(1E) of the Act which, at the relevant time provided:
(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.
I accept that both applicants were notified of the dismissal decision at their nominated email address and were taken to have received the notification at the end of the day that it was transmitted, whether or not they actually received it (s 441(C)(5) of the Act).
In both cases, the notification complied with the requirements of ss 426B(5) and (6) of the Act. It was notified by one of the methods specified in s 441A of the Act on the day of the dismissal decision. It attached the dismissal decision, invited the applicant to apply for reinstatement within 14 days and described the effect of ss 426A(1B) to (1F) of the Act.
Neither applicant applied for reinstatement within 14 days.
The Tribunal was obligated to confirm the dismissal decision in both cases.
I have been unable to discern error in the dismissal decision or the confirmation decision. It follows that the applicants’ second ground of review, which involves the assertion that the “decision was wrongly decided”, cannot be made out.
Likewise, I am not persuaded that the approach taken by the differently constituted Tribunals to the successive and multiple attempts made by the applicants (individually and together) to impugn the refusal decisions and later Tribunal decisions involved any legal error.
I accept the submission of the Minister that the approach adopted by the Tribunal to the various subsequent applications was the only one open to the Tribunal. It is uncontentious that the Tribunal lacked jurisdiction to determine a review of the dismissal decisions once they had been the subject of a valid review by the Tribunal.
ORDERS
It follows from the above analysis and findings that the Court must order that the applications for judicial review filed in CDU18 and CDT18 (and as amended to include all related Tribunal decisions) be dismissed.
The Minister sought an order in each proceeding that the applicant/s pay his costs in the amount of $7,328. This amount was sought because it represented the scale costs for a migration proceeding concluded at a final hearing under item 3, Division 1, Part 3 of Schedule 1 to the (former) Federal Circuit Court Rules 2001 (Cth) at the time the applications were filed.
I accept the basis of this submission and in circumstances where neither applicant was able to resist the making of a costs order, I will make costs orders accordingly in each proceeding.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 29 May 2025
Annexure A
Tribunal Case Applicant to the Tribunal Date of application Proceeding in which judicial review is sought 1605612 CDT18 21 April 2016 MLG1118/2018 and MLG1119/2018 1606292 CDU18 4 May 2017 MLG1118/2018 1718841 CDU18 22 August 2016 MLG1118/2018 and MLG1119/2018 1725928 CDU18 23 October 2017 MLG1118/2018 and MLG1119/2018 1732440 CDU18 20 December 2017 MLG1118/2018 and MLG1119/2018 1802079 CDU18 26 January 2018 MLG1118/2018 and MLG1119/2018 1802080 CDT18 & CDU18 26 January 2018 MLG1118/2018 and MLG1119/2018 1804964 CDU18 25 February 2018 MLG1118/2018 and MLG1119/2018 1805515 CDU18 1 March 2018 MLG1118/2018 and MLG1119/2018 1808833 CDU18 29 March 2018 MLG1118/2018 1810938 CDT18 17 April 2018 MLG1118/2018 and MLG1119/2018 1811586 CDU18 23 April 2018 MLG1118/2018 and MLG1119/2018
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