COI24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 99
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
COI24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 99
File number: PEG 162 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 properly notified the applicant of its Non-Appearance Decision – whether the Tribunal failed to afford the applicant procedural fairness – whether the fact that the applicant could not access her emails meant that she was not properly notified of the Tribunal hearing or its Non-Appearance Decision – 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, 425B, 426A, 426B, 441A, 441C & 476 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
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 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
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
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: 80 Date of hearing: 28 October 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 162 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COI24
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 9 April 2024 and 29 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”) 19, 39, 58 & 68). She arrived in Australia in August 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa (CB 25 & 79).
On 18 January 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 11-38 & 45). In her visa application, the applicant answered “no” when asked whether she had “receive[d] assistance in completing [the visa application] form”. The applicant requested that “[a]ll written communications about [her] application” be sent to her directly (CB 16). The applicant also agreed to the then Department of Immigration and Border Protection (the “Department”) communicating with her via email and provided the Department with an email address so that this could occur (the “initial nominated email address”) (CB 21).
On 21 June 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 45-55). The applicant was notified of the delegate’s decision by letter dated 21 June 2019 (CB 35-38). The notification letter was sent to the applicant via email (sent to her initial nominated email address), together with a copy of the delegate’s decision (CB 40-41).
On 15 July 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 56-57). In that application, the applicant indicated that all correspondence should be directed to her as the “review applicant”. She also provided the Tribunal with her initial nominated email address so that the Tribunal could do so. The applicant also included a mobile phone number in her application to the Tribunal (CB 57).
On 18 October 2021, the Tribunal wrote to the applicant via email (sent to her initial nominated email address) and advised that, due to the COVID-19 pandemic, the Tribunal was not holding “face to face (or in person) hearings in Melbourne or Sydney”. Further, the Tribunal proposed that the applicant attend a hearing “by video using Microsoft Teams” (CB 62).
On 22 October 2021, the applicant responded to the Tribunal’s email advising that she did not have a computer and “may not be able to attend a hearing scheduled via Microsoft Teams”. She also indicated that she preferred to have a face to face hearing (CB 63-64).
On 15 October 2023, the applicant wrote to the Tribunal (by email) and advised that she had “lost [her] email”. The applicant sent through a completed “Change of Contact Details” form and provided a new email address for the Tribunal to use when contacting her (the “new nominated email address”) (CB 65-67). The applicant also gave the Tribunal a new mobile phone number (the “new mobile phone number”) (CB 66) and a copy of her passport (CB 68).
On 13 February 2024, the Tribunal wrote to the applicant (via email sent to her new nominated email address) and asked her to complete a “pre-hearing information form” and return it to the Tribunal within 7 days (CB 69).
On 18 March 2024, the Tribunal invited the applicant (via email sent to her new nominated email address) to appear at a hearing before it on 8 April 2024 at the Tribunal’s Melbourne office at 10.30am (VIC time) (the “hearing invitation letter”) (CB 70-73). That hearing invitation letter relevantly stated (CB 72-73):
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 28 March 2024 (at 11.02am), the Tribunal sent an SMS hearing reminder message to the applicant using the new mobile phone number provided by her on 15 October 2023 (CB 66). That message relevantly stated (CB 91):
Reminder - Your AAT hearing is on 08/04/24. 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.
On 5 April 2024, a further SMS hearing reminder message (in identical terms) was sent to the applicant using the new mobile phone number provided by the applicant (on 15 October 2023) (CB 91).
The applicant did not attend the hearing scheduled before the Tribunal on 8 April 2024 (CB 74-77). The Tribunal attempted to phone the applicant at 10.41am and 11.01am (using the new mobile phone number provided by the applicant on 15 October 2023), however, on both attempts, the applicant’s mobile phone was “switched off” and the Tribunal was thus unable to leave a voicemail message (CB 86 & 91).
On 9 April 2024, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 85-86). The applicant was notified of that decision and advised of her right to apply for reinstatement by letter sent to her on 10 April 2024 (via email sent to the new nominated email address) (the “Tribunal’s notification letter”) (CB 81-82). The Tribunal’s notification letter relevantly stated (CB 81):
On 18 March 2024 we sent a letter inviting you to attend a hearing on 8 April 2024 to give evidence and present arguments relating to the issues arising in your case.
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 24 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 her application (CB 83-84).
The applicant did not seek reinstatement (CB 90).
On 29 April 2024, the Tribunal confirmed the Non-Appearance Decision made on 9 April 2024 (the “Confirmation Decision”) (CB 89-90). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.
On 14 May 2024, the applicant applied to this Court for judicial review of the Tribunal’s Confirmation Decision (CB 1-6).
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 outline the Tribunal’s decisions in some detail.
The Non-Appearance Decision
The Non-Appearance Decision dated 9 April 2024 provides (CB 85-86):
1.On 18 October 2021, the Tribunal emailed the applicant stating that during the Covid-19 pandemic, the Tribunal is not holding in-person hearings, and asked whether she has the equipment necessary for a video-hearing. On 21 October 2021, the applicant informed the Tribunal via email that she does not have a computer and requested an in-person hearing.
2.On 15 October 2023, the applicant emailed the Tribunal a ‘Change of Contact Details’ form, stating that she had changed her mobile telephone number and email address. The Tribunal updated the applicant’s records accordingly.
3.On 18 March 2024, the Tribunal sent the applicant an email inviting her to a hearing under s 425 of the Migration Act 1958 (Cth) (the Act), scheduled for 8 April 2024 at 10:30am. 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 requested that she complete and return an enclosed ‘Response to Hearing Invitation’ within seven days. The Tribunal did not receive a response from the applicant.
4.On 28 March 2024, the Tribunal sent the applicant a SMS reminder about her hearing on 8 April 2024. The message read, ‘Reminder - Your AAT hearing is on 08/04/24. 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.’ On 5 April 2024, the Tribunal sent the applicant another SMS reminder about her hearing on 8 April 2024. The text of that message was the same as the above message.
5.The Tribunal did not receive any error messages indicating that the above two SMS reminders failed to send. The Tribunal sent the SMS reminders to the mobile telephone number the applicant provided to the Tribunal on 15 October 2023 (see above).
6.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) of the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing.
7.On 8 April 2024 at 10:41am and 11:01am, the Tribunal attempted to call the applicant on the mobile telephone number she provided to the Tribunal on 15 October 2023 (see above). On both attempts, the applicant’s telephone number was switched off and the Tribunal was unable to leave a voicemail message. To date, the Tribunal has not received any email or telephone call from the applicant about her non-appearance on 8 April 2024.
8.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 29 April 2024 provides (CB 90):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2019 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 9 April 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 with s 426B(5) of the Act. 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-day 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 14 May 2024 contains two “grounds of review”, as follows (without alteration):
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness.
2.The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions of s425, s425(B)5, 426A(1A)(b), s441A(5) of the Migration Act 1958 properly to assess my case.
The applicant also filed an affidavit in support of that judicial review application (deposed by the applicant on 7 May 2024 and filed on 14 May 2024) (CB 7-10). That affidavit annexed copies of the Tribunal’s Non-Appearance and Confirmation Decisions (and associated notification letters) and repeated the applicant’s grounds of review (set out above).
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 28 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 she had received copies of the Court Book and the Minister’s written submissions.
The Court noted that the applicant had not sought review of the Non-Appearance Decision. Rather, she had only asked for a review of the Confirmation Decision. The Court explained to the applicant why this was an issue and made an order amending the application for judicial review to include seeking review of the Non-Appearance Decision. The Minister did not oppose this approach. The Court also made orders to amend the name of the Minister and to substitute the ART for the Tribunal as 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 14 May 2024 (the affidavit being taken as read and in evidence at the hearing on 28 October 2024), a Court Book numbering 91 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 14 October 2024 and an affidavit of service of Sam Coten affirmed on 15 October 2024 and filed on 16 October 2024 (also taken as read and in evidence at the hearing of this matter).
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she 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 her 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 she 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 at 272.
Against this background, the applicant told the Court that her mobile phone “was broken” and she did not receive the previous email or the messages to attend the hearing. She also seemed to suggest that her mobile phone had been “lost” and for that reason, she had not received previous emails.
The applicant’s comments, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
Grounds of review
Grounds one
As outlined above, ground one provides as follows:
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness.
To the extent that the applicant is raising concerns in relation to unreasonableness in the delegate’s decision, this Court has no jurisdiction to review that decision: s 476(2) and s 476(4) of the Act.
To the extent that the applicant is suggesting that the Tribunal acted unreasonably, this will be addressed by the Court below in relation to ground 2.
Ground two
Ground two states:
2.The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions of s425, s425(B)5, 426A(1A)(b), s441A(5) of the Migration Act 1958 properly to assess my case.
Before addressing ground two (set out above), it is first useful to set out some of the legislative provisions referenced by the applicant in that ground of review (as those provisions provided at the time of the Tribunal’s decisions).
Relevantly, section 425 of the Act required that the Tribunal invite the applicant to attend a hearing before it and stated 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.
Section 426A of the Act, in turn, set out what the Tribunal could do in the event that an applicant failed to appear at a hearing before the Tribunal and 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.
Whilst the applicant has referenced s 425(B)(5) of the Act in ground two, the Court has determined that the applicant is most likely referencing s 426B(5) of the Act which (at the time of the Tribunal’s decisions) related to a requirement that the Tribunal notify an applicant of any non-appearance decision.
Section 426B(5) of the Act relevantly stated as follows:
426B Failure to appear—Tribunal’s decisions, written statements and notifying the applicant
…
Notice to applicant
(5)The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
Section 441A of the Act set out the methods by which the Tribunal could give documents to an applicant and relevantly provided as follows:
441A Methods by which Tribunal gives documents to a person other than the Secretary
…
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.
Based on the sections of the Act referenced by the applicant (as set out above), and noting that the applicant was unrepresented before this Court, the Court has determined that ground two essentially raises the following issues:
(a)whether the applicant was properly invited to attend a Tribunal hearing;
(b)whether the Tribunal acted reasonably in exercising its discretion under s 426A of the Act;
(c)whether the Tribunal properly notified the applicant of its Non-Appearance Decision; and
(d)whether the Tribunal otherwise failed to afford the applicant procedural fairness
These issues will be addressed by the Court below.
Whether the applicant was properly invited to attend a Tribunal hearing
To the extent that the applicant claims that she 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 set out above). Further, s 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].
In this matter, the Tribunal invited the applicant to attend a hearing before it by way of the hearing invitation letter dated 18 March 2024. That letter was sent to the applicant via email (sent to the applicant’s new nominated email address) that same day (being on 18 March 2024) (CB 70-73).
Section 425A of the Act sets out the necessary requirements of such an invitation letter and, at the time of the Tribunal’s decisions, 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 71);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 8 April 2024 at 10.30am (VIC time) and noting that the hearing would take place at the Melbourne offices of the Tribunal) (CB 71): 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 18 March 2024 (CB 70-71): 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 72-73): s 425A(4) of the Act.
The Court notes that, 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 here where the invitation letter was sent to the applicant via email to the applicant’s new nominated email address), 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 (“SZNZL”) 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. The applicant was thus 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.
As outlined above, at the time of the Tribunal’s decisions, s 426A of the Act 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 8 April 2024 (CB 74-77). Section 426A of the Act was therefore 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 only five months prior to the hearing invitation, notifying the Tribunal of her new contact details. She gave the Tribunal a new nominated email address and a new mobile phone number (by email) on 15 October 2023 (CB 65-68);
(b)the Tribunal sent an SMS hearing reminder message to the applicant at or around 11.02am on 28 March 2024 (using the new mobile number provided by the applicant to the Tribunal on 15 October 2023) (CB 66 & 91);
(c)the Tribunal sent a further SMS hearing reminder message to the applicant at or around 11.02am on 5 April 2024 (again using the new mobile number provided by her) (CB 91);
(d)the applicant did not appear at the hearing at the scheduled time of 10.30am (VIC time) (on 8 April 2024) (CB 74-77);
(e)the Tribunal attempted to phone the applicant at 10.41am and 11.01am on the morning of the hearing and, on both occasions, the applicant’s phone was switched off – such that the Tribunal was unable to leave a voicemail message (CB 91); and
(f)the Tribunal waited until 4.24pm on 9 April 2024 (being the afternoon of the following day) before making its Non-Appearance Decision (CB 86).
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.
Whether the Tribunal properly notified the applicant of its Non-Appearance Decision.
As outlined above, s 425B of the Act requires that the Tribunal must notify an applicant of a non-appearance decision by giving that applicant a copy of its written reasons: s 425B(5) of the Act. The notification must be given to the applicant within 14 days of the day upon which the decision is taken to have been made (as required by s 425B(5)(a) of the Act) and by one of the methods specified in s 441A of the Act (as required by s 425B(5)(b) of the Act).
Here, the Tribunal notified the applicant of its Non-Appearance Decision by way of the Tribunal’s notification letter. That letter:
(a)was sent to the applicant on 10 April 2024 (being one day after the Tribunal’s Non-Appearance Decision was made and within the requisite 14-day time period): s 425B(5)(a) of the Act;
(b)was sent to the applicant via email (sent to her new nominated email address), being one of the methods specified in s 441A of the Act: s 425B(5)(b) of the Act; and
(c)annexed a “fact sheet” that:
(i)outlined the consequences of the decision;
(ii)informed the applicant of her right to request that her application for review be reinstated within 14 days;
(iii)explained what would happen if the Tribunal reinstated the application for review;
(iv)outlined what would happen if the Tribunal confirmed the Non-Appearance Decision; and
(v)explained how the applicant could seek review of the Tribunal’s decision.
The Court is satisfied that the applicant was properly notified of the Tribunal’s Non-Appearance decision as required by s 426B(5) of the Act.
No jurisdictional error arises in this regard.
Whether the Tribunal otherwise failed to afford the applicant procedural fairness
To the extent that the applicant is suggesting that the Tribunal dismissed her application without complying with its procedural fairness obligations, the Court also disagrees for the reasons that follow.
The Court notes that Division 4 of Part 7 of the Act (as was in force at the time of the Tribunal’s decisions) 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) of the Act reasonably;
(d)the applicant was notified of the Tribunal’s Non-Appearance Decision and that she could seek reinstatement of her application (as allowed by s 426A(1B) of the Act);
(e)the applicant did not apply for reinstatement of her 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 this regard.
Applicant’s oral submissions
As detailed above, the applicant claimed that she had either lost or broken her mobile phone and was not able to receive emails.
To the extent that the applicant is suggesting that she was not properly notified of the Tribunal hearing or the Tribunal’s Non-Appearance Decision because she did not have access to her emails, the Court disagrees.
As outlined above, 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 here where the Tribunal’s hearing invitation and the Tribunal’s notification letter were both sent to the applicant via email to the applicant’s new nominated email address), the applicant is “taken to have received [those] document[s]” at the time specified in s 441C of the Act (in this case at the end of the days on which they were transmitted), regardless of whether the documents were actually received: SZNZL at [36].
This means that the fact that the applicant had either lost or broken her mobile phone and was not able to access her emails does not mean that she was not “properly notified” of either the Tribunal hearing or the Tribunal’s Non-Appearance decision. Rather, the applicant is taken to have been notified of both on the days that the notifications were sent to her via email (being on 18 March 2024 and 10 April 2024 respectively).
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 14 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 (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 February 2025
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