CLR24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 100
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLR24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 100
File number: PEG 150 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 5 February 2025 Catchwords: MIGRATION – Protection visa – decisions of the then Administrative Appeals Tribunal – whether the applicant was properly invited to attend a Tribunal hearing – whether the Tribunal acted reasonably in exercising its discretion under s 426A of the Migration Act 1958 (Cth) – whether the Tribunal ignored the potential harm the applicant would face if returned to his home country – whether the Tribunal dismissed his application without complying with its procedural fairness obligations – whether the conduct of the applicant’s agent or solicitor amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Item 25
Migration Act 1958 (Cth), ss 422B, 425, 425A, 426A, 441A, 441C, 476 & 477 and Division 4 of Part 7
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of hearing: 16 October 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 150 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLR24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to decisions of the then Administrative Appeals Tribunal (the “Tribunal”). Those decisions are dated 19 March 2024 and 3 April 2024 and thus predate those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decisions (or as at the date of any relevant matter referenced in this judgment).
At the time the applicant made an application to this Court, the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court made an order (at the hearing of this matter) substituting the ART as the second respondent in this proceeding at the hearing of this matter.
The applicant’s migration history
The applicant is a citizen of China (Court Book (“CB”) 1-3 & 21). He arrived in Australia in September 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa (CB 39).
On 17 October 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-20 & 39). In his visa application, the applicant answered “no” when asked whether he “authorise[d] another person to receive communication about [the] application on [his] behalf” but agreed to the then Department of Immigration and Border Protection (the “Department”) communicating with him via email. The applicant also provided the Department with an email address so that the Tribunal could do so (the “initial nominated email address”) (CB 6).
On 21 November 2017, the Department acknowledged receipt of the visa application (via email) and requested fingerprints, a digital photograph and a certified copy of the applicant’s current passport (the “acknowledgement letter”) (CB 23-31).
That email correspondence could not be delivered (CB 22).
The acknowledgement letter was resent to the applicant (via email) on 6 December 2017 (CB 32).
No response was provided by or on behalf of the applicant.
On 1 March 2018, the Department invited the applicant (via email) to attend an interview at the Department’s Sydney offices on 26 March 2018 (CB 33-34).
The applicant did not attend that interview (CB 40).
On 26 March 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 39-46). The applicant was notified of the delegate’s decision by letter dated 26 March 2018 (CB 35-38). The notification letter was sent to the applicant via email (sent to his initial nominated email address), together with a copy of the delegate’s decision (CB 35).
On 16 April 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 47-48). In that application, the applicant indicated that correspondence should be directed to him as the “review applicant” and provided a new email address so that this could occur. The applicant also provided a postal address in New South Wales in (CB 48).
On 25 April 2018, the applicant contacted the Tribunal and advised that he had “lost [his] computer and access to [his] email address” and asked that the Tribunal send correspondence to his new postal address. The applicant also provided a post office box address in New South Wales to allow the Tribunal to do so (CB 52).
On 14 June 2019, the applicant provided a completed “Change of Contact Details” form to the Tribunal and provided a new email address (CB 54-55).
On 12 March 2020, the applicant contacted the Tribunal requesting a “Medicare letter”. He again provided the Tribunal with updated contact information, including another new email address (the “new nominated email address”) (CB 56). He also provided the Tribunal with a further completed “Change of Contact Details” form (CB 57-58). That completed form also included a new mobile phone number (CB 57) and the new nominated email address (CB 58).
On 16 January 2024, the Tribunal wrote to the applicant (via email sent to the new nominated email address) asking him to “complete a pre-hearing form” and return it to the Tribunal within seven days (CB 60).
On 27 February 2024, the Tribunal invited the applicant (via email) to appear at a hearing before it on 19 March 2024 at the Tribunal’s Sydney office (the “hearing invitation letter”) (CB 61-64). That hearing invitation letter relevantly stated (CB 62-63):
What you should do on receipt of this letter
…
If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing as arranged, you need to advise us as soon as possible. Please note that we will only make changes to this hearing if satisfied that it is reasonable and there are good reasons for doing so.
The Presiding Member will consider any submissions and you will be advised of the outcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise.
…
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;
…
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.
On 12 March 2024 (at 11.52am), the Tribunal sent an SMS hearing reminder message to the applicant using the new mobile phone number provided by him with his completed “Change of Contact Details” form (on 12 March 2020) (CB 57). That message relevantly stated (CB 77):
Reminder - Your AAT hearing is on 19/03/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
That SMS hearing reminder message failed to be delivered (CB 77).
On 18 March 2024, a further SMS hearing reminder message (in identical terms) was sent to the applicant using the same new mobile phone number provided by the applicant (on 12 March 2020) (CB 77).
That SMS hearing reminder message also failed to be delivered (CB 77).
The applicant did not attend the hearing scheduled before the Tribunal on 19 March 2024 (CB 65-67).
On 19 March 2024, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 70). The applicant was notified of that decision and advised of his right to apply for reinstatement by letter sent to him that same date (via email sent to the new nominated email address) (the “notification letter”) (CB 68-69). That notification letter relevantly stated (CB 69):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 2 April 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.
Attached to the Tribunal’s correspondence was an information sheet which also included detailed information about how the applicant could seek reinstatement of his application (CB 71-72).
The applicant did not seek reinstatement (CB 76).
On 3 April 2024, the Tribunal confirmed the Non-Appearance Decision made on 19 March 2024 (the “Confirmation Decision”) (CB 75-76). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.
On 2 May 2024, the applicant applied to this Court for judicial review of the Tribunal’s Non-Appearance and Confirmation Decisions.
THE TRIBUNAL’S DECISIONS
The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to provide the Tribunal’s decisions in full.
The Non-Appearance Decision
The Non-Appearance Decision dated 19 March 2024 provides (CB 70):
1.The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 19 March 2024. 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 sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. The SMS reminders sent to the applicant's nominated phone number failed.
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.
3.The Tribunal has also previously contacted the applicant on 16 January 2024 to inform him that his matter had been allocated to a Member and requesting that he fill in a pre-hearing form. No response was received. In the hearing invitation letter on 27 February 2024, he was also invited to complete a hearing form, and also to provide documents and submissions. No response was received.
4.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision dated 3 April 2024 provides (CB 76):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 March 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 19 March 2024 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance withs 4268(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 2 May 2024 contains three “grounds of review”, as follows (without alteration):
1.I did not receive the notification for hearing, which led to my non-appearance in the hearing. I should be given a chance for hearing.
2.The Tribunal ignored the potential risk and harm I would face if returning to China.
3.There may exist procedure error in my application.
The applicant also filed an affidavit in support of that judicial review application (affirmed by him on 1 May 2024 and filed on 2 May 2024). That affidavit annexed copies of the Tribunal’s Non-Appearance and Confirmation Decisions and included some background information about the applicant’s claims for protection.
On 27 August 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, written submissions and any additional evidence. Unfortunately, no additional materials were filed by or on behalf of the applicant.
The applicant appeared before this Court (on 16 October 2024) without legal representation. The applicant was assisted at that hearing by an interpreter in the Mandarin language. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The Court noted that the applicant required an extension of time (pursuant to s 477(2) of the Act) within which to apply for review of the Non-Appearance Decision. The Court considered that it was appropriate to grant the applicant that extension of time and did so. The Minister did not object to the Court doing so. The Court also made orders amending the name of the Minister and substituting the ART for the Tribunal as the second respondent (for the reasons outlined above).
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 2 May 2024 (the affidavit being taken as read and in evidence at the hearing on 16 October 2024), a Court Book numbering 77 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 2 October 2024 and an affidavit of service of Benjamin Mayne affirmed on 9 October 2024 and filed on 10 October 2024 (also taken as read and in evidence at the hearing of this matter).
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant told the Court that the reason he had not attended the Tribunal hearing was because he had not received notification of the hearing. The applicant advised that when he came to Australia in 2017 he did not speak English and used a lawyer to apply for the protection visa. He stressed that that lawyer used his email address to communicate with the Department. The applicant explained that he was “a bit concerned that the first lawyer was not very professional in his work to deal with [his] application so [he] engaged a second lawyer to assist with the process and that was during the COVID-19 pandemic in 2020”. The applicant told the Court that “a third change” was made when he applied for criminal clearance from the Department. At that time, the applicant continued, he “used a third lawyer and the third lawyer again changed the email address”. The applicant also explained that he had asked yet another lawyer to “help with the proceeding in this Court to help with [his] visa status”.
The applicant’s oral submissions, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
Grounds of review
Ground one
As outlined above, ground one provides as follows:
1.I did not receive the notification for hearing, which led to my non-appearance in the hearing. I should be given a chance for hearing.
Reading ground one as broadly as possibly (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) ground one essentially raises two issues:
(a)whether the applicant was properly invited to attend a Tribunal hearing; and
(b)whether the Tribunal acted reasonably in exercising its discretion under s 426A of the Act.
These issues will be addressed in turn below.
Whether the applicant was properly invited to attend a Tribunal hearing
To the extent that the applicant claims that he was not properly invited to attend the Tribunal hearing, the Court disagrees for the reasons that follow.
As outlined by this Court in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 (“ACN22”) and other similar matters, the Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act (as that provision provided at the time of the Tribunal’s decisions in this matter).
Section 425 of the Act and s 425A of the Act are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
At the relevant time, s 425 of the Act provided 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.
In this matter, the Tribunal invited the applicant to attend a hearing before it by way of the hearing invitation letter dated 27 February 2024. That letter was sent to the applicant via email (sent to the applicant’s new nominated email address) that same day (being on 27 February 2024) (CB 61-64).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provided as follows:
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.
Here, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 62);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 19 March 2024 at 10.00am (NSW time) and noted that the hearing would take place at the Sydney offices of the Tribunal) (CB 62): s 425A(1) of the Act;
(c)was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s new nominated email address on 27 February 2024 (CB 61): s 425A(2)(a) of the Act;
(d)was given to the applicant 21 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and
(e)contained a statement describing the effect of s 426A of the Act and explained what would happen if the applicant did not attend the hearing (CB 63): s 425A(4) of the Act.
Where a document has been sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent to the applicant via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
On the basis of the information above, the Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act and that the applicant was properly invited to attend the Tribunal hearing.
No jurisdictional error arises in this regard.
Whether the Tribunal acted reasonably in exercising its discretion under s 426A of the Act
As explained by this Court in ACN22, before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear at a hearing before it.
Having found that the applicant in this matter had been properly invited to attend a hearing, the Court will also consider whether the Tribunal acted reasonably in exercising its discretion under s 426A of the Act.
Section 426A of the Act (as was in force at the time of the Tribunal’s decisions) relevantly provided as follows:
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.
The applicant did not attend the Tribunal hearing scheduled to take place on 19 March 2024 (CB 65-67). Section 426A of the Act was thus enlivened.
In those circumstances, the Tribunal could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or dismiss the application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
Here, the Tribunal chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The decision to exercise a discretionary power must be made “reasonably”. Within the context of this matter, the Court is satisfied that the Tribunal’s actions were reasonable. Relevantly:
(a)the applicant had contacted the Tribunal on numerous occasions to update his contact details. This included providing the Tribunal with his new nominated email address and a new mobile phone number (by email) on 12 March 2020 (CB 56-59);
(b)the Tribunal sent an SMS hearing reminder message to the applicant at or around 11.52am on 12 March 2024 (using the new mobile number provided by the applicant to the Tribunal on 12 March 2020) (CB 58 & 77);
(c)the Tribunal sent a further SMS hearing reminder message to the applicant at or around 11.01am on 18 March 2024 (again using the new mobile number provided by him) (CB 77);
(d)the applicant did not appear at the hearing at the scheduled time of 10.00am (NSW time) (on 19 March 2024) (CB 65-67); and
(e)the Tribunal waited until 1.35pm on 19 March 2024 before making its Non-Appearance Decision (CB 70).
On the basis of the above, the Court is satisfied that the Tribunal acted reasonably in dismissing the applicant’s review application pursuant to s 426A(1A)(b) of the Act.
No jurisdictional error arises in this regard.
Ground two
Ground two states:
2.The Tribunal ignored the potential risk and harm I would face if returning to China.
This ground of review fails on a factual level.
The Tribunal did not assess the merits of the applicant’s case as the applicant failed to appear at the scheduled Tribunal hearing and the Tribunal elected to dismiss the matter (pursuant to s 426A(1A)(b) of the Act) because the applicant had not appeared. As outlined above, the Tribunal was legislatively empowered to do so and the Court is satisfied that the Tribunal acted reasonably when exercising its discretion to dismiss.
Ground 2 does not otherwise address the issue of jurisdictional error. Rather, the applicant seems to be asking the Court to engage in an impermissible merits review of the Tribunal’s decisions. As outlined above, the Court does not have any jurisdiction to do so: Wu Shan Liang at 272.
No jurisdictional error arises in relation to ground two.
Ground three
Ground three provides as follows:
3.There may exist procedure error in my application.
It is not entirely clear what the applicant is referencing by ground three. However, read as broadly as possible, the Court considers it most likely that the applicant is suggesting that the Tribunal dismissed his application without complying with its procedural fairness obligations.
The Court disagrees for the reasons that follow.
At the time of the Tribunal’s decisions, Division 4 of Part 7 of the Act was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
In relation to this matter, the Court reiterates that:
(a)the Tribunal properly invited the applicant to attend a hearing before it as required by s 425 of the Act and s 425A of the Act;
(b)pursuant to s 426A of the Act, when an applicant is properly invited to attend a Tribunal hearing but fails to do so, s 426A(1A)(b) of the Act is enlivened and the Tribunal has the power to dismiss the application without further consideration of the application or information before it;
(c)the Tribunal exercised it power pursuant to s 426A(1A)(b) reasonably;
(d)the applicant was notified of the Tribunal’s Non-Appearance Decision and that he could seek reinstatement of his application (as allowed by s 426A(1B) of the Act);
(e)the applicant did not apply for reinstatement of his application within the 14-day time period (or at all); and
(f)in circumstances where the applicant had failed to apply for reinstatement within the 14-day period set out in s 426A(1B) of the Act, the Tribunal was required to confirm the decision to dismiss the application (pursuant to s426A(1E) of the Act) and did so.
For the reasons set out above, the Court is satisfied that the Tribunal complied with the requirements of Division 4 of Part 7 of the Act and that the applicant was afforded procedural fairness.
No jurisdictional error arises in relation to ground three.
Applicant’s oral submissions
As detailed by the Court above, the applicant seemed to raise concerns in oral submissions before this Court about the conduct of his agents or legal representatives.
As this Court has previously explained in Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81] and similar matters, when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
On the material before the Court, there is no evidence to suggest that the applicant was represented by any agent or solicitor at any point (either before the Department or the Tribunal). Further, even if the applicant were represented by an agent or solicitor (at any time) and the applicant did not find that person’s conduct to be “professional”, it could not be said that an allegation of unprofessionalism would amount to fraud.
The Court also notes that negligence, incompetence or bad advice from an agent or representative (while always unacceptable) does not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
An applicant’s recourse for any such negligence, incompetence or bad advice (and the Court makes no findings about any purported representatives in this regard) is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority – or, in some circumstances, via a civil claim.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 2 May 2024) and the applicant’s oral submissions before this Court have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 February 2025
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