DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 26

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 26

File number: MLG 1701 of 2017

Judgment of: JUDGE LADHAMS

Date of judgment: 27 January 2022

Catchwords: MIGRATION – Judicial review of decision of Administrative Appeals Tribunal – Tribunal hearing rescheduled due to applicant’s illness – applicant failed to appear at rescheduled hearing – Tribunal made decision without giving applicant any further opportunity to appear at hearing – whether reasonable notice given of rescheduled hearing – whether Tribunal acted unreasonably in making a decision on the review rather than adjourning the hearing or dismissing the application – whether Tribunal had any obligation arising under s 426 of the Migration Act 1958 (Cth) to take evidence from applicant when he failed to appear – whether Tribunal failed to make reasonable inquiries of applicant – no jurisdictional error – application dismissed.

Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.2.05(4)
Migration Act 1958 (Cth), ss.5J, 36, 65, 425, 425A, 426, 426A, 426B, 427, 430, 441A(5), 441C(5), 476
Migration Regulations 1994 (Cth), reg.4.35D(3)

Cases cited: AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103
Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026
SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613
SZMWA v Minister for Immigration and Citizenship [2009] FCA 563

Division: Division 2 General Federal Law

Number of paragraphs: 91

Date of hearing: 4 November 2021

Place: Perth

Counsel for the Applicant: Mr J R Murphy

Solicitor for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Ms N Campbell

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Clayton Utz
ORDERS

MLG 1701 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DNK17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

27 JANUARY 2022

THE COURT ORDERS THAT:
1.
The applicant is granted leave to rely on the amended application filed on

8 October 2021.
2.The application, as amended, is 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 LADHAMS:
INTRODUCTION

This is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 10 July 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The originating application to this Court was filed on 4 August 2017 and the applicant now seeks leave to rely on an amended application filed on 8 October 2021. The amended application raises three grounds of application.
For reasons explained below, I grant leave to the applicant to rely on the amended application filed on 8 October 2021. However, I have ultimately found that there is no jurisdictional error in the Tribunal decision and I therefore dismiss the application.
BACKGROUND
The applicant is a citizen of India who entered Australia in November 2008 on a student visa.
On 30 March 2015 the applicant applied for a protection visa. He claimed that he was attacked by unidentified persons on his way home on one occasion in 2008 and fears being attacked again. He further claimed that he feared harm from his former wife’s family who blame the applicant for his separation from his former wife.
The application for a protection visa was refused by a delegate of the Minister on

31 December 2015. The applicant did not attend any interview to discuss his claims for protection prior to the delegate’s decision.
On 18 January 2016 the applicant lodged an application with the Tribunal seeking review of the delegate’s decision. The applicant listed a migration agent as his representative.
On 12 April 2017 the Tribunal sent correspondence to the applicant advising that his application for review was being allocated to a Tribunal member. The correspondence requested that, if the applicant had any additional evidence relevant to his application, he send it to the Tribunal as soon as possible. The correspondence also requested that the applicant advise the Tribunal as soon as possible if there were any reasons why he would be unable to attend a hearing at any time in the coming months.
On 25 May 2017 the Tribunal sent an email to the applicant attaching an invitation to attend a hearing on 15 June 2017 at 2:00 pm. The hearing invitation included the following information:
If you are not able to attend the hearing you should advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
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. 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 15 June 2017 at 9:21 am the Tribunal received an email from the applicant’s migration agent seeking an adjournment of the hearing and attaching two medical certificates concerning the applicant. The first medical certificate was dated 3 June 2017 and indicated that the applicant was suffering from a medical condition and would be unfit to continue his usual occupation from 3 June 2017 to 4 June 2017 inclusive. The second medical certificate was dated 13 June 2017 and indicated that the applicant was suffering from a sore throat and hoarseness and would be unfit to continue his usual occupation from 14 June 2017 to

15 June 2017 inclusive. On 15 June 2017 at 10:26 am the Tribunal sent an email to the applicant, via his representative, indicating that the hearing would proceed. The reason given was that a medical condition of hoarseness on 13 June 2017 did not show that the applicant was unfit to attend a hearing of about two hours on 15 June 2017.
The applicant failed to attend the hearing on 15 June 2017.
On 22 June 2017 the Tribunal sent a further hearing invitation to the applicant. The invitation indicated that the Tribunal had agreed to the applicant’s request for the hearing on

15 June 2017 to be adjourned, and invited him to attend a rescheduled hearing on 29 June 2017 at 2:00 pm. The hearing invitation included the same information extracted at [9] of these reasons for judgment.
On 29 June 2017 at 9:49 am the Tribunal received an email from the applicant’s migration agent attaching a medical certificate. The medical certificate was dated 28 June 2017 and indicated that the applicant was suffering from chest and epigastric pain and would be unfit to continue his usual occupation on 29 June 2017.
On 29 June 2017 at 11:41 am the Tribunal sent to the applicant a further invitation to attend a rescheduled hearing. The hearing invitation advised that the Tribunal had agreed to the applicant’s request for an adjournment of the hearing on 29 June 2017 and invited him to attend a rescheduled hearing on 5 July 2017 at 11:30 am. The hearing invitation again contained the information extracted at [9] of these reasons for judgment.
On 4 July 2017 at 5:04 pm the Tribunal received an email from the applicant’s migration agent seeking an adjournment of the hearing on 5 July 2017 and attaching a medical certificate. The medical certificate was dated 3 July 2017 and indicated that the applicant was ‘suffering from a medical condition, mixed anxiety and depression and is advised to take rest for a month until the next examination’.
On 5 July 2017 at 10:57 am the Tribunal sent correspondence to the applicant, via an email sent to his migration agent, indicating that the hearing on 5 July 2017 would proceed. The reason given was that the new diagnosis of a medical condition of mixed anxiety and depression did not indicate that the applicant was unfit to attend a Tribunal hearing of about two hours on 5 July 2017.
The applicant did not attend the hearing on 5 July 2017.
On 10 July 2017 the Tribunal made a decision to affirm the delegate’s decision not to grant the applicant a protection visa.
TRIBUNAL DECISION
The Tribunal summarised the various communications it had sent to the applicant regarding the scheduled hearings and the applicant’s requests for adjournments.
The Tribunal then considered the request for an adjournment of the hearing on 5 July 2017 and gave reasons for refusing that request and making a decision on the review without taking further action to enable the applicant to appear before it. Given the centrality of this issue to the application to the Court, I set out in full the Tribunal’s reasons on this issue:
24. On 4 July 2017 at 5.04pm the Tribunal received a request for an ‘extension’ and a medical certificate completed on 3 July concerning the applicant. This stated he was suffering from a ‘medical condition, mixed anxiety and depression’ and was ‘advised to take a rest for a month until the next examination’.
25. I noted the relevant medical certificate had been completed on 3 July but only provided after hours on 4 July. All of the four certificates provided by the applicant over time had come from the same medical centre in Hoppers Crossing although each certificate had been completed by a different doctor. In the latest certificate the concise diagnosis of ‘mixed anxiety and depression’ by itself did not show that the applicant was unable to attend a hearing to give oral evidence and present arguments. Unlike the earlier certificates the latest certificate did not give the doctor’s opinion that the applicant was ‘unfit to continue his usual occupation/School’ for specific dates. The advice that was given- to ‘take rest’ until the next examination- was vague and open-ended. As well, the applicant had previously been alerted to the need for the medical certificate to establish he was unfit to attend a hearing of about 2 hours. In sum, I did not consider that the medical certificate showed the applicant was not able to attend the scheduled hearing. I did not, therefore, accept the request for adjournment.
26. On 5 July 2017 at 10.57am the Tribunal advised the applicant:
I am writing to advise you that the hearing will proceed. The new diagnosis of a medical condition of “mixed anxiety and depression” does not show that you are unfit to attend a Tribunal hearing of about 2 hours on 5 July.
27. I recognised that the Tribunal’s advice would not provide the applicant sufficient time to travel from his address to the place of the Tribunal hearing by 11.30am, but I considered this advice provided him with time to provide additional information or comments before the scheduled hearing and/or to request a later start to which I would have given consideration. Regardless, both the hearing invitation letter and Information about hearings sheet clearly set out that “If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.”
28. However, the applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He did not further contact the Tribunal to provide any additional information or other reasons why he could not attend at the scheduled time or seek a further postponement. His representative did not further contact the Tribunal to provide any additional information or other reasons why the applicant could not attend at the scheduled time or seek a further postponement. In these circumstances, and pursuant to s.426A of the Act, I decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
The Tribunal found that the evidence before it in relation to the applicant’s claims for protection lacked sufficient detail and was inconsistent. The Tribunal noted that the applicant’s appearance at a hearing would have been an opportunity to clarify and address the various gaps and inconsistencies in his evidence, and to provide further information and details on these issues.
On the evidence before it, the Tribunal was not satisfied of the applicant’s claim that he was attacked by an unidentified assailant in 2008, nor was it satisfied that this attack would lead him to face harm in the reasonably foreseeable future. The Tribunal did not accept that the family of the applicant’s previous partner in India had threatened him or continued to make threats that would actually adversely affect the applicant. The applicant did not provide any details about the family regarding their identity, location, or social and political affiliations. Further, the Tribunal was not satisfied that the applicant could not live elsewhere in India where he would not face harm and the problems that he claimed. The Tribunal did not accept that the applicant had previously suffered harm for any of the reasons set out in s 5J(1) of the Migration Act, that he had left India to escape any fear of such harm, or that he genuinely feared such harm if he were to return to India.
Based on these findings of fact, the Tribunal found that the applicant did not meet the refugee criteria in s 36(2)(a) of the Migration Act or the complementary protection criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of application filed on

4 August 2017 and supported by an affidavit filed on the same date. On 7 October 2021 at

5:10 pm the applicant filed an amended application.
The amended application raises three grounds of review. These grounds are:
1.The Administrative Appeals Tribunal (Tribunal) erred jurisdictionally because it had not given ‘a reasonable period’ of notice to the Applicant of the hearing on 5 July 2017 (as required by s 425A(3) Migration Act 1958 (Cth) (Act)) and thus did not have the power to make a decision on the review (which power is contained in s 426A(1A)(a) of the Act).
Particulars of ground 1
(i)On 29 June 2017, the Tribunal wrote to the Applicant’s migration agent granting an adjournment request he had made earlier that day and inviting the applicant to a rescheduled hearing at 11:30am on 5 July 2017;
(ii)The Tribunal was required, by s 425A(3) of the Act to give ‘a reasonable period’ of notice of any rescheduled hearing;
(iii)In the circumstances of the present case - including, but not limited to, the Applicant’s poor health - the period of 6 days’ notice was not a reasonable period of notice.
2.After the Applicant failed to appear at the hearing on 5 July 2017, the Tribunal acted unreasonably, and thus contrary to the legislative scheme established by the Act, by:
a.Failing to adjourn the review pursuant to the power in s 427(1)(b) of the Act; and/or
b.Failing to dismiss the application (rather than affirm the decision under review), or to consider doing so, pursuant to the power in s 426A(1A)(b) of the Act.
Particulars of ground 2
(i)On 4 July 2017 at 5:04pm, the Applicant’s migration agent emailed the Tribunal requesting an adjournment of the hearing scheduled for the next day and attaching a medical certificate.
(ii)On 5 July 2017 at 10:57am, the Tribunal wrote to the Applicant’s migration agent refusing the adjournment request.
(iii)On 5 July 2017, the Tribunal commenced the hearing at 11:30am and concluded it at 11:45am when the Applicant did not appear.
(iv)On 10 July 2017, the Tribunal affirmed the decision under review, purportedly pursuant to the power in s 426A(1A)(a) of the Act.
(v)In the circumstances of the present case - including, but not limited to, the medical evidence that was before the Tribunal - it was unreasonable for the Tribunal to make a decision on the review rather than adjourn the hearing or dismiss the application (or consider dismissing the application).
3.In proceeding in the Applicant’s absence, the Tribunal acted unreasonably, and thus contrary to the legislative scheme established by the Act, by:
a.Failing to have regard to the Applicant’s notice under s 426; and/or
b.Failing to (by telephone) take evidence on oath or affirmation from the Applicant as a witness, or otherwise inquire of the Applicant, on the rescheduled hearing of the review on 5 July 2017, which failure was: (i) a constructive failure to exercise jurisdiction; and/or (ii) an unreasonable failure to exercise the power in s 427(1)(a).
Particulars of ground 3
(i)The Applicant had provided the Tribunal with his personal telephone number and email address.
(ii)The Applicant had provided a notice pursuant to s 426 of the Act that he wished the Tribunal to hearing evidence from himself on the review.
(iii)The Tribunal was required to have regard to the s 426 notice.
(iv)When the Applicant failed to appear on 5 July 2017, the Tribunal did not attempt to telephone him or otherwise contact him to provide evidence or information to the Tribunal.
(v)The failure in (iv) bespoke a failure on the part of the Tribunal to have regard to the notice under s 426 of the Act (for example, by considering whether to telephone the Applicant to give evidence);
(vi)Independently of its obligation under s 426 of the Act, the Tribunal’s failure to take evidence from the Applicant on 5 July 2017 (or to otherwise inquire of him) was a constructive failure to exercise jurisdiction; and/or an unreasonable failure to exercise the power in s 427(1)(a) of the Act.

The matter came before me for hearing on 4 November 2021. At the hearing the applicant was represented by Mr Julian Murphy and the Minister was represented by Ms Natalie Campbell.
LEAVE TO RELY ON AMENDED APPLICATION
The applicant seeks leave to rely on the amended application. Given that the amended application was filed after 4:30 pm on 7 October 2021, it is deemed to have been filed on 8 October 2021, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). This means it is filed one day outside the time frame set in the orders made on 17 April 2018. Those orders required the applicant to file any amended application at least 28 days before the hearing. There was some confusion at the hearing as to whether leave would be required to rely on the new grounds had they been filed within time. I interpret the orders made on 17 April 2018 as allowing the applicant to file and rely on any amended application filed in compliance with those orders. Accordingly, had the amended application been filed before 4.30 pm on 7 October 2021, I would have found it unnecessary to make any order granting leave to the applicant to rely on the amended application.
The applicant submitted that leave to amend his grounds should be granted taking into account case management principles, that the proposed new grounds are not futile when assessed at a reasonably impressionistic level, the lack of substantial prejudice to the Minister, and the serious consequences that may flow from an adverse decision to the applicant. The Minister opposes leave being granted on the basis that the grounds of the amended application are not meritorious.
I grant leave to the applicant to rely on the amended application. There is no substantive prejudice to the Minister as a result of the amendments, particularly in circumstances where the amended application is filed only one day outside the time frame set by the orders made by consent in 2018 and almost four weeks before the hearing. Further, the grounds raised by the applicant are reasonably arguable and have sufficient merit, when assessed at a reasonably impressionistic level, to warrant the grant of leave.
GROUND 1
Applicant’s submissions
The applicant acknowledged that he had been given the prescribed period of notice of 14 days in relation to the first scheduled hearing. The applicant’s submission, relying on Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 (Ogawa), was that in relation to the rescheduled hearing on 5 July 2017, the Tribunal was implicitly required to give the applicant ‘reasonable’ notice of the hearing. The applicant referred the Court to the non-exhaustive list of considerations set out by Flick J in Ogawa at [37], which may be relevant to the objective determination of whether the notice in a particular case was reasonable. In Ogawa at [37], Flick J said:
In determining whether “reasonable” notice was in fact given of any rescheduled hearing, reference may be made to (inter alia):
•the period “prescribed” for the giving of notice in respect to any initial proposed hearing date;
•the complexity of any legal and factual issues to be canvassed at the rescheduled hearing;
•any opportunity previously extended to an applicant to assemble factual materials in support of any claims made and any opportunity to marshall such legal arguments in support of those claims;
•any need to obtain further materials or evidence that may not have been available in time for the initial scheduled hearing;
•whether the opportunity previously extended to an applicant to prepare any claim to be advanced was prejudiced or rendered nugatory for reasons peculiar to an applicant or by reason of changed circumstances;
•whether any request was made for a rescheduled hearing to be further postponed or adjourned and, if so, the basis upon which the applicant sought to support that request; and
•any assessment by the tribunal member as to the adequacy of the period of notice given.
The applicant submitted that, taking into account these considerations, the period of six days’ notice was not a reasonable period. In particular, the applicant submitted:
(a)the prescribed notice period was 14 days and accordingly the applicant had been provided less than half of the prescribed period of notice for the rescheduled hearing;
(b)the rescheduled hearing should have been anticipated to be of considerable factual complexity, given the lack of evidentiary material available to the Tribunal, and it should also have been anticipated to have been a hearing of legal complexity given the need to consider causal issues relating to the reason for any fear of persecution and possibly issues relating to reasonableness of relocation within the applicant’s home country;
(c)the Tribunal should have understood that previous opportunities to prepare for the hearing would have been rendered nugatory because from 3 June 2017 the applicant had suffered from a medical condition serious enough to warrant a doctor’s suggestion that he would be unfit to continue his usual occupation and that this would have compromised the applicant’s ability to prepare for the hearing throughout June;
(d)the applicant had made a request for adjournment and had provided a medical certificate in support of that request;
(e)the Tribunal did not provide any reasons as to its assessment of the reasonableness or otherwise of the six-day adjournment, and this consideration is therefore neutral;
(f)a previous short adjournment of seven days had proved insufficient for the applicant to be present at the hearing;
(g)although the applicant had a migration agent, the record indicated that the applicant would appear at the hearing and it should therefore be inferred that the applicant would have to prepare for the hearing alone;
(h)the notice was provided to the applicant via his authorised representative, meaning it could be inferred that the information would not be immediately communicated to the applicant;
(i)two of the six days’ notice were non-business days; and
(j)travel time alone from the applicant’s address to the Tribunal premises would occupy the morning of one of the days’ notice.
Minister’s submissions
The Minister submitted that the Tribunal had complied with the prescribed notice period specified by s 425A of the Migration Act with its first invitation to the applicant to attend the hearing as originally scheduled, and it was not required to again provide the prescribed notice period in relation to any adjourned hearing. The Minister acknowledged that the relevant issue is whether the six days’ notice given to the applicant of the 5 July 2017 hearing was reasonable in all the circumstances. The Minister submitted that the notice period was reasonable.
The Minister submitted that the applicant had been on notice since 12 April 2017 that a hearing would soon be held and that he therefore had sufficient time to prepare for the hearing ultimately held on 5 July 2017. The Minister further submitted that the applicant had been invited to attend the first hearing on 15 June 2017 and that he had to be ready by that date. His inability to attend the hearing on that occasion and on 29 June 2017 meant that he gained further time to prepare for the hearing. The Minister submitted that the applicant has not identified any complexity in the legal and factual issues or for the need for the applicant to obtain further materials or facts. The Minister submitted that the adjournment request was inadequate, vague and unrelated to the applicant’s preparation. The medical certificates were said not to provide an adequate basis for inferring that the applicant needed more time to prepare.
Resolution
Both parties accepted that the Tribunal was required to give a reasonable period of notice of the rescheduled hearing and that what amounts to a reasonable period is an objective assessment. As was explained by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152 at [82], the requirement in s 425A to give the prescribed period of notice of the hearing applies only in relation to the notice of the original hearing, not any rescheduled hearing, although the notice period of any rescheduled hearing must be reasonable: see also SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026 at [29]; Ogawa at [35].
As can be seen from the above submissions, both parties have been guided in their submissions on whether the notice period was reasonable by the non-exhaustive list of factors articulated by Flick J in Ogawa.
Taking into account the particular circumstances of this case, and the list of factors in Ogawa, I am satisfied that the notice period of six days for the rescheduled hearing listed on

5 July 2017 was a reasonable period of notice. The reasons for this, including my consideration of the relevant factors from Ogawa, are as follows:
(a)The prescribed period of notice required to be given for the hearing as originally scheduled was 14 days: reg 4.35D(3) of the Migration Regulations 1994 (Cth). This is relevant to the first of the considerations referred to in Ogawa.
(b)The second of the considerations listed in Ogawa is the legal and factual complexity of the issues to be canvassed at the hearing on 5 July 2017. There is no evidence before the Court that there were any complex legal or factual issues in the applicant’s application before the Tribunal. The lack of detail in the applicant’s claims as articulated in his application does not make it a factually complex matter, even if it might be inferred that the applicant could have elaborated on his claims at a hearing. There was certainly no indication by the applicant at any stage that he was seeking additional evidence which was proving difficult to obtain, or that he was making any further factual enquiries, or taking any steps that might indicate a factually complicated case. The legal complexities raised by the applicant are matters common to all protection visa matters. The Tribunal had to determine whether the applicant met the criteria for a protection visa in s 36(2)(a) or s 36(2)(aa) of the Migration Act. The Tribunal’s assessment of this was straightforward and orthodox. There is no evidence before the Court to suggest that any more complex issues arose. The applicant in his submissions to this Court has referred to the possible need for the Tribunal to assess the reasonableness of relocation. However, the Tribunal did not need to assess reasonableness of relocation, as it was not satisfied that the applicant would face a real risk of significant harm.
(c)
The third of the considerations listed in Ogawa is the opportunity previously extended to the applicant to prepare evidence and legal arguments. The applicant had lodged his application to the Tribunal almost 18 months prior to the hearing on 5 July 2017. On one view, the applicant could have been gathering evidence to support his claims for the whole time that his application was before the Tribunal, particularly in circumstances where the delegate’s reasons referred to the lack of detail in his claims. But even if the applicant took no steps to prepare for the hearing until he was notified that the hearing was imminent, he still had been given sufficient time to prepare. The applicant was given 21 days’ notice of the hearing as originally scheduled. The applicant was given seven days’ notice of the rescheduled hearing on 29 June 2017 prior to the six days’ notice of the rescheduled hearing on 5 July 2017. Further, the applicant had been put on notice that the hearing would soon be listed by correspondence given to him on 12 April 2017. Effectively, the applicant had been put on notice that a hearing was imminent over two months prior to the hearing on

5 July 2017. Whether the applicant was assisted in his preparation by his migration agent, or required to prepare alone, he was given sufficient time to prepare.
(d)The fourth consideration listed in Ogawa is the need to obtain further materials or evidence that may not have been available at the time of the initial scheduled hearing. As indicated in paragraph (b) above, there has never been any indication by the applicant that he was attempting to obtain further material. Further, the hearings scheduled for 15 and 29 June 2017 were adjourned due to short term medical conditions that affected the applicant’s ability to participate in the hearing, rather than any need to obtain further evidence or materials.
(e)
The fifth consideration listed in Ogawa is whether any previous opportunity extended to the applicant to prepare his case was prejudiced or rendered nugatory due to reasons particular to the applicant. The applicant in the present case refers to his medical conditions experienced in June 2017. On the evidence before the Court, which is the same as the evidence before the Tribunal, it cannot reasonably be inferred that the applicant’s health issues significantly interfered with his ability to prepare for the hearing. The evidence suggests that he was unfit for his usual occupation on two days in early June, two days in mid-June and one day in late June. The medical condition that the applicant suffered from in early June was not specified, but there is no apparent connection between the medical conditions experienced by the applicant in mid-June and late June, or the medical condition referred to in the medical certificate dated

3 July 2017. Based on the medical evidence, the applicant’s preparation for and availability to attend a hearing was compromised for five days in June 2017. Even if I accepted the applicant’s oral submission that the applicant may have been unwell for additional days in June, there is insufficient evidence before the Court to conclude that his ability to prepare was hampered by illness to the extent that a notice period of six days would be unreasonable. The medical certificate dated 28 June 2017 indicated that the applicant was unfit for one day only. There was nothing to suggest that the applicant would be unable to attend a hearing six days later. I do not accept the applicant’s submission that a previous seven day adjournment had been insufficient for the applicant. The 29 June 2017 hearing had been vacated not because the seven day notice period had proved insufficient, but because the applicant experienced a medical issue which rendered him unfit for work for one day only and which was seemingly unrelated to the different medical issue which affected his ability to participate in the hearing on 15 June 2017.
(f)The sixth consideration in Ogawa is whether there was any request for the 5 July 2017 hearing to be adjourned and the basis for that request. Here, there was a request for a further adjournment, made after close of business the night before the hearing, on the basis that the applicant was experiencing anxiety and depression. Although it recommended that the applicant rest for a month, there was nothing in the certificate that indicated he was unfit or unable to participate in the hearing, or that the illness referred to in that medical certificate had affected his ability to prepare for his hearing. The information in the medical certificate was vague and did not render the six day notice period unreasonable.
(g)The seventh consideration, namely, the Tribunal’s own assessment of the reasonableness of the notice period, has no relevance in the present matter, as no opinion was expressed by the Tribunal on this.
(h)The applicant submits that it is relevant that two of the days within the notice period were non-business days and that the applicant would have had to travel to the Tribunal on the day of the hearing. In my view, this does not make a six day notice period unreasonable. There is no reason why the applicant could not have conducted some preparation on a weekend, and the travel time and distance between Hoppers Crossing and the Melbourne CBD is unremarkable.
(i)
In assessing the reasonableness of the six day notice period, the circumstances in which the applicant was given notice of the rescheduled hearing are relevant. The applicant had been scheduled to attend a hearing in the afternoon of 29 June 2017. That hearing had already been rescheduled once at the request of the applicant. On the morning of 29 June 2017, the applicant requested that the hearing be rescheduled again due to an illness which, on the medical evidence provided to support the adjournment request, would affect his ability to participate in his usual occupation (and by extension, a Tribunal hearing) for one day only. The Tribunal gave notice that the hearing had been rescheduled to 5 July 2017 on 29 June 2017, less than two hours after the applicant had requested the hearing for that day be adjourned, albeit the applicant is deemed to have received the communication at the end of the day, rather than the time it was actually transmitted: see s 441C(5) of the Migration Act. The applicant should have been expecting to receive a communication from the Tribunal on or around

29 June 2017 to know whether he needed to attend the hearing that day and, if his request for an adjournment was granted, when he would next be expected to attend a hearing.
None of the Ogawa considerations, or other consideration relevant to this matter, considered individually or cumulatively, support a finding that the six day notice period of the hearing on 5 July 2017 was unreasonably short. It follows that ground 1 is dismissed.
GROUND 2
Applicant’s submissions
The applicant submitted that the Tribunal acted unreasonably by proceeding with the review in the applicant’s absence, rather than:
(a)adjourning the review pursuant to the power in s 427(1)(b) of the Migration Act; or
(b)dismissing the application pursuant to the power in s 426A(1A)(b) of the Migration Act.
The applicant submitted that the failure by the Tribunal to adjourn the hearing was unreasonable in light of the following matters:
(a)there was no particular urgency about the review;
(b)the applicant’s request for adjournment was supported by a medical certificate, and whilst it did not say that the applicant was unfit to continue his usual occupation, it went further than the previous certificates because it diagnosed a condition that required an extended period of rest;
(c)the previous medical certificates showed that the applicant was in poor health;
(d)the material before the Tribunal disclosed significant matters such as claimed targeted threats to the applicant’s life but those matters had not been explained in any detail, so it was clear that the detail was to be provided orally at a hearing;
(e)the applicant had not attended an interview with the delegate and therefore had not previously had an opportunity to provide an oral account of his claims;
(f)the applicant clearly required an interpreter but it was clear that the limited account given in writing of the applicant’s claims had been prepared without the benefit of an interpreter; and
(g)the nature of the review, being one relating to a claim for protection, was capable of having serious consequences for the applicant.
In the alternative, the applicant submitted that it was unreasonable for the Tribunal to proceed in the absence of the applicant, rather than to dismiss the application pursuant to the discretion available to the Tribunal under s 426A(1B) of the Migration Act. The applicant submitted it was unreasonable of the Tribunal not to exercise the discretion in s 426A(1B) because of the reasons articulated above and additionally:
(a)it might reasonably be supposed that the applicant’s condition of anxiety might have prevented him providing much by way of an explanation for his inability to attend in circumstances where he was given only six days’ notice; and
(b)the Tribunal exercised its discretions in relation to how to proceed in the absence of the applicant on the day of the hearing in circumstances where the applicant was not going to be able to provide further information in relation to his non-attendance unless the power in s 426A(1B) was exercised.

The applicant further submitted that the Tribunal did not even consider exercising the power in s 426A(1B) of the Migration Act and that the failure to even consider the exercise of the discretion amounts to jurisdictional error. The applicant submitted that it should be inferred from the absence of any mention of this power in the Tribunal’s decision that it did not consider its exercise.
In his oral submissions, the applicant relied heavily on the judgment in SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613 (SZJQP) and submitted that that case and the present case are in many ways analogous.
Minister’s submissions
The Minister submitted that there was no unreasonableness in the Tribunal’s decision and no error of the type described in Minister for Immigration and Citizenshipv Li (2013) 249 CLR 332; [2013] HCA 18 (Li). The Minister noted that the Tribunal gave detailed consideration to the procedural history and that the applicant had been given notice that the hearing may go ahead and the decision may be affirmed or dismissed if he did not appear. The Minister submitted that the Tribunal considered the powers it had in s 426A and that it can be inferred that in so doing, the Tribunal also turned its mind to the power not to dismiss the application. The Tribunal also took into account the two prior adjournments and the failure of the applicant to contact the Tribunal either before the hearing or in the five days after the hearing before the decision was made. The Tribunal was under a duty to deal with the review in a fair, just, economical, informal and quick manner and it was reasonable to affirm the decision.
In oral submissions, the Minister also referred to the Tribunal setting out the procedural history of the matter, as well as extracting excerpts from the notices sent to the applicant that refer to the possibility of the application being dismissed if the applicant fails to attend the hearing, as showing that the Tribunal was aware of and considered the possibility of dismissing the application.
Resolution
There are three options open to the Tribunal if an applicant is invited under s 425 of the Migration Act to appear before the Tribunal at a hearing and 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. The Tribunal may:
(a)by written statement under s 430 of the Migration Act, make a decision on the review without taking any further action to allow or enable the applicant to appear before it: s 426A(1A)(a);
(b)by written statement under s 426B of the Migration Act, dismiss the application without any further consideration of the application or information before the Tribunal: s 426A(1A)(b); or
(c)reschedule the applicant’s appearance before it, or delay its decision on the review to enable the applicant’s rescheduled appearance before it: s 426A(2) and s 427(1)(b).
As these are discretionary powers, they are subject to the presumption that the legislature intended they be exercised reasonably: see, for example, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [4] (per Kiefel CJ), [53] (per Gageler J), [80] (per Nettle and Gordon JJ), [131] (per Edelman J); Li at [23] (per French CJ), [63] (per Hayne, Kiefel and Bell JJ), [88]-[89] (per Gageler J).
In the present case, I am satisfied that the preconditions set out in s 426A(1) of the Migration Act for the exercise of these discretions were met.
The applicant was invited to a hearing under s 425. The notice of the invitation to appear, sent to the applicant on 25 May 2017, complied with the requirements of s 425A in that it:
(a)set out the day on which and the time and place at which the applicant was scheduled to appear;
(b)was given to him by email sent to his migration agent at the last email provided to the Tribunal for the purposes of the review, as allowed by s 441A(5) of the Migration Act;
(c)provided a period of notice of the hearing that exceeded the 14 day prescribed period; and
(d)contained a statement to the effect of s 426A of the Migration Act, as can be seen from the extract of the invitation set out at [9] above.
There is no suggestion by either party that this initial notice of an invitation to appear was defective in any way. I have found above that a reasonable period of notice was given in relation to the rescheduled hearing of 5 July 2017. It is also not disputed that the applicant did not appear at the hearing on 5 July 2017 at 11:30 am before the Tribunal in Melbourne.
With the preconditions in s 426A(1) of the Migration Act having been met, the next question is whether the Tribunal has acted unreasonably in the exercise of its discretionary powers. Legal unreasonableness in the context of the exercise of statutory discretions was explained by Hayne, Kiefel and Bell JJ in Li, where their Honours said at [76] (footnotes omitted):
… an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
In SZVFW, the High Court considered whether the Tribunal acted unreasonably in exercising its power in s 426A of the Migration Act to make a decision on a review without taking any further action to allow or enable an applicant to appear before it, when that applicant failed to appear at a Tribunal hearing. The High Court in that case considered an earlier version of s 426A, which did not include any option equivalent to that in the current version of s 426A(1A)(a) to dismiss an application. At [88]-[97] of SZFVW, Nettle and Gordon JJ made a number of observations about the statutory context in which the claim of unreasonableness in the exercise of the discretion in s 426A fell to be considered. Notwithstanding the amendments to s 426A that have been made to the version of that section considered in SZVFW, many of the observations of Nettle and Gordon JJ at [88]-[97] remain relevant to whether an exercise of a discretion under the current s 426A of the Migration Act was unreasonable. Those observations are (footnotes omitted):
88The standard of reasonableness is derived from the applicable statute but also from the general law.
89First, there is a legal presumption that a discretionary power, statutorily conferred, must be exercised reasonably in the legal sense of that word. That is, when something is to be done within the discretion of the decision‑maker, it is to be done according to the rule of reason and justice; it is to be done according to law.
90Second, in this appeal, the applicable statutory power was to be found in s 426A of the Act, which, at the relevant time, provided:
“(1) If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”
(Emphasis added)
There was no express list of factors which the Tribunal was required to take into account in making its decision on the review without taking any further action to allow or enable an applicant to appear before it. However, the power was not without limitation. The scope and purpose of the Act provided limitson the exercise of the Tribunal's power under s 426A.
91Further, s 425 of the Act imposed requirements that 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, unless, relevantly, the Tribunal considers that it should decide the review in the applicant's favour, on the material before it.
92Pursuant to s 425A, if an 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, and that notice must be given by one of the methods specified in s 441A, unless the applicant is in immigration detention (in which case, alternative methods are prescribed). The notice methods specified in s 441A included: by hand; by hand to a person at the applicant's last residential or business address; by prepaid post or other prepaid means; transmission by fax, email or other electronic means; or by giving documents to a carer of a minor.
93If the Tribunal complies with the requirements of s 441A, the applicant is taken to have received the document under s 441C. Relevantly, s 441C(4) provided that if the Tribunal gives a document to a person by the method in s 441A(4) (which involves dispatching the document by prepaid post or other prepaid means), the person is taken to have received the document after the expiry of a prescribed time period.
94Third, the Tribunal's statutory task, as revealed by a consideration of the Act as a whole and, in particular, the provisions of Pt 7 (including those to which reference has been made), is to arrive at the correct or preferable decision in the case before it, according to the material before it.
95Fourth, the range of powers, discretions and obligations granted to the Tribunal by Pt 7 of the Act, and the way in which the statute conditions them, contains an exhaustive statement of the rules of natural justice in relation to the "matters" that Part deals with.
96Fifth, Parliament has conferred on the Tribunal the necessary flexibility to ensure that the Tribunal can fully perform its statutory task. Indeed, the discretion in s 426A itself provides flexibility so that the Tribunal's statutory task can be performed. Put in different terms, the legislative scheme of the Act concerning review of decisions in Pt 7 is not one that requires the exercise of power, or the performance of obligations, where conferred on the Tribunal, on a once only basis. The nature of the subject matter of the review and the manner of the exercise of the review may, on occasion, mean that the power may be exercised and the function or duty must be performed from time to time, as occasion requires, in order to arrive at the correct or preferable decision in the case before the Tribunal according to the material before it. But, of course, the exercise of the discretion in s 426A does not require the Tribunal to postpone or refrain from making a decision on a review every time an applicant suggests they wish to provide further information, cannot meet a deadline, or fails to appear.
97The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision‑maker has a genuinely free discretion which resides within the bounds of legal reasonableness.
In all the circumstances of the present matter, the Tribunal’s decision not to reschedule a further hearing was not unreasonable.
The Tribunal made its decision in the context of the particular procedural history of this matter, including that it had, on the day of the hearing, refused a request for a further adjournment. The Tribunal had given reasons for its decision to refuse that adjournment, namely, that the medical certificate did not demonstrate that the applicant was unfit to participate in a hearing of approximately two hours, and that the applicant had previously been put on notice that this is what was required in a medical certificate to support an adjournment. In deciding to proceed in the absence of the applicant, rather than to reschedule a further hearing upon the applicant’s non-appearance, the Tribunal further took into account that the time at which the applicant was advised that the adjournment had been refused was such that he would not be able to attend the hearing if he had not already started travelling to the hearing. But the Tribunal noted that there was time for the applicant to contact the Tribunal by telephone, which he did not do. Nor did the applicant make any further contact with the Tribunal or provide any further information to explain his non-attendance in the five days between the hearing and when the Tribunal delivered its decision. The reasons articulated by the Tribunal for proceeding without giving the applicant a further opportunity to attend a hearing provide a plausible justification for its decision.
The applicant in his submissions to the Court pointed to further considerations that ought to have been known to the Tribunal and which, on the applicant’s submission, made it unreasonable for the Tribunal not to invite the applicant to a further rescheduled hearing. I do not accept that these additional factors have the consequence submitted by the applicant.
The applicant refers to the lack of urgency in the application, and submits that the lack of urgency was a significant reason for the Court in Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915 finding that the Tribunal acted unreasonably in deciding to make a decision without giving the applicant an opportunity to respond. While I accept that there was no particular urgency about the application to the Tribunal in the present matter, that consideration needs to be viewed in the context of the Tribunal’s obligation to afford a review process that is fair, just, economical, informal, and quick. Further, a lack of urgency, which will be the case in the majority of the applications to the Tribunal in relation to protection visa matters where an applicant is not in immigration detention, does not of itself render unreasonable any decision of the Tribunal to decline to give the applicant a further opportunity to give evidence and present arguments when an applicant fails to appear at a hearing. In the present case, it was not unreasonable for the Tribunal to proceed in the absence of the applicant in circumstances where the applicant had requested an adjournment for medical reasons, the evidence provided did not, in the view of the Tribunal, indicate that the applicant was unable to appear at the hearing, and the Tribunal had declined ahead of the hearing to grant the adjournment.
The Tribunal clearly had regard to all of the medical certificates provided by the applicant. Those medical certificates did not compel the conclusion that the applicant was in poor health. Rather, those medical certificates showed that the applicant had five days during June where he was unfit for his usual employment, and that on 3 July 2017 he had anxiety and depression and it was recommended that he rest for a month. The Tribunal’s conclusion that the medical certificate dated 3 July 2017 did not indicate that the applicant was unable to attend and participate in a short hearing of two hours’ duration was open to it. The applicant submits, and I accept, that the Tribunal has a greater degree of flexibility in considering requests for adjournments on medical grounds than that which would usually be given to a person seeking an adjournment for medical reasons from a court. However, the Tribunal had also communicated to the applicant than if he sought any adjournment for a medical reason, he would need to provide a doctor’s certificate that states he is unable to attend the scheduled hearing. The Tribunal was entitled to evaluate the medical certificate as it did.
The applicant has relied on SZJQP as being analogous to the present case. I acknowledge that there are some similarities, but the present case is readily distinguishable from SZJQP and I cannot find that that case assists the applicant in any meaningful way. Both cases involved protection visa applications, and it can be accepted that the consequences to an applicant of a refusal of a protection visa application can be serious. The Tribunal’s decision in SZJQP was found to be unreasonable because the Tribunal took into account several irrelevant factors in deciding to proceed with the review in the absence of the applicant, and arguably failed to have proper regard to the medical certificate. There were some deficiencies in the medical certificate provided in SZJQP, but the Tribunal did not reject the medical certificate. Likewise, in the present case, there are deficiencies in the medical certificate provided to the Tribunal on

4 July 2017 and the Tribunal did not reject the content of the certificate. However, there is a significant difference in that the medical certificate in SZJQP indicated that the applicant ‘was unable to attend work/school’ which, by extension can be interpreted as evidence that SZJQP was unable to attend the hearing, whereas the medical certificate in the present case simply advised the applicant to rest and did not indicate that he was unable to participate in the hearing. Further, in the present case, the Tribunal clearly did have regard to the medical certificate provided and none of the considerations that it relied on were irrelevant.
The need for the applicant to elaborate on his claims did not render the Tribunal’s refusal to reschedule another hearing upon the non-appearance of the applicant unreasonable. In assessing reasonableness the statutory scheme as a whole should be borne in mind. There are two particular features of the statutory scheme that are relevant to the reasonableness of the Tribunal’s decision in circumstances where the applicant’s claims are not well articulated.
(a)First, an applicant need only be invited to a hearing where the Tribunal is not satisfied on the documents before it that the applicant meets the criteria for a visa: s 425(2)(a) of the Migration Act. In virtually every case where an applicant fails to appear and the Tribunal decides to proceed to make a decision without giving the applicant a further opportunity to attend a hearing, the result will be that the decision is affirmed. Yet, notwithstanding this, Parliament has given the Tribunal the option of proceeding in an applicant’s absence where an applicant does not appear. In the present case, the applicant did not appear at the hearing in circumstances where the invitation to attend a hearing sent on 25 May 2017 clearly stated:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
(b)
Second, the applicant identified that he did not attend an interview before the delegate. There is no obligation in the Migration Act for the Minister, or his delegate or other officer within the Department, to invite an applicant to a hearing or interview before making a decision under s 65 of the Migration Act. In any event, in the circumstances of this case, the applicant was sent a letter by the Department on

1 May 2015 which, amongst other things, indicated that a decision on his application may be made without requesting further information and, if the applicant wished to have an opportunity to discuss his claims by interview, he should contact the Department within seven days. The delegate’s decision records that the applicant did not request an interview. The Migration Act does not preclude the Tribunal proceeding to conduct a review in the absence of an applicant, even where the applicant did not attend an interview with the delegate.

While another decision-maker may have taken into account the factors now referred to by the applicant and decided to afford the applicant another opportunity to attend a hearing, the decision of the Tribunal in the present case to proceed without giving the applicant a further opportunity to attend was open on the evidence before it. The Tribunal’s decision was within the area of decisional-freedom.
To the extent that the applicant refers to the potentially serious consequences of the decision being affirmed, this is the same for all applicants who seek review in the Tribunal of decisions to refuse to grant them a protection visa, and does not of itself render unreasonable the Tribunal’s decision to proceed without giving the applicant a further opportunity to appear.
For essentially the same reasons as those set out above, it was not unreasonable for the Tribunal not to dismiss the application pursuant to s 426A(1A)(b) of the Migration Act. While the dismissal of the application may have given the applicant an opportunity to seek reinstatement within 14 days, there was nothing in the circumstances of this case that made it unreasonable for the Tribunal not to exercise this option.
I do not accept the applicant’s submission that it was unreasonable for the Tribunal to proceed to conduct the review rather than dismiss the application because the applicant might have been able to provide more information in the 14 day period within which he might have sought reinstatement. This submission is based on the premise that even if the medical certificate was insufficient to show that the applicant was unable to attend the hearing, it should have been seen as giving rise to the possibility that he may have a valid reason for not attending. Nor do I accept that the decision to affirm the decision rather than dismiss the application was unreasonable because the notification that the adjournment was refused was made at a time which left the applicant insufficient travel time to get to the hearing. In considering both these submissions, it is notable that the Tribunal did not make its decision on the review immediately at the hearing. Rather, it made its decision on the review some five days after the hearing and took into account the lack of contact or additional information provided between the notification that the adjournment was refused and when it made its decision.
Further, the late notice that the adjournment was refused was primarily the result of the applicant seeking the adjournment at a late time. Despite the applicant having a medical certificate dated 3 July 2017, he did not provide this to the Tribunal or seek an adjournment until after close of business on 4 July 2017. The Tribunal’s response at 10:57 am on

5 July 2017 was made within two to three business hours of the receipt of the request. The Tribunal’s correspondence is deemed to have been received by the applicant at the end of

5 July 2017 pursuant to s 441C(5) of the Migration Act, and there was no likelihood of the Tribunal providing any response that would have been deemed to have been received at an earlier time in circumstances where the applicant’s request was not sent until after the end of ordinary business hours on 4 July 2017. Put simply, I am not willing to treat the late notice of the refusal of the adjournment as a reason for finding the exercise of the Tribunal’s discretion was unreasonable in circumstances where the late notice of the refusal of the adjournment was the direct consequence of the applicant’s tardiness in providing the medical certificate, and where the applicant was clearly on notice that if he did not hear from the Tribunal about a request for an adjournment, he should assume that the hearing would proceed.
I am also not persuaded that the Tribunal failed to turn its mind to whether it should dismiss the application. Although the Tribunal only expressly referred to this option in the extract of the communication it sent to the applicant, it did refer generally to s 426A of the Migration Act in its consideration of how to proceed and it can be inferred from this that it was alive to all of its powers under that section. As the applicant acknowledged, the Tribunal was not under any obligation to give reasons for deciding not to exercise the discretion to dismiss the application. The applicant’s submission on this aspect of the ground was to the effect that where the Tribunal has expressly referred to the options of proceeding in the applicant’s absence and adjourning the hearing, but not referred to the dismissal option, it should be inferred that it overlooked the possible exercise of the dismissal discretion. While that inference would be open in some cases, it is not an inference that I draw in this case. The Tribunal’s reasons at [24]-[28] are primarily directed to why it considered it appropriate to proceed with the review without giving the applicant an opportunity to attend. In other words, the reasons given explain the rationale for the exercise of the discretion to proceed in a particular way, rather than for not proceeding in an alternative way. Understood in this light, and bearing in mind that there is no obligation to give reasons for procedural decisions, the failure to offer an explanation as to why the Tribunal did not dismiss the application does not support a conclusion that that option was not considered.
In oral submissions, the applicant also pointed to the correspondence sent to the applicant on 5 July 2017 as supporting the inference that the Tribunal did not consider the option of dismissing the application. That correspondence relevantly states that ‘the hearing will proceed’. I cannot draw any relevant inference from this communication. The purpose of the communication was to advise the applicant that his request for an adjournment had been refused and that the matter remained listed for hearing at the scheduled date and time. It did not purport to set out the Tribunal’s proposed course of action, or even its options, in the event that the applicant did not attend the hearing. Also, one of the preconditions to the exercise of the discretion in s 426A(1A)(b), namely, that the applicant fail to attend the hearing, had not yet been satisfied at the time of the correspondence, so it would have been premature for the Tribunal to set out its proposed course of action. This communication can be contrasted with the information given with the three invitations to attend a hearing, which all set out the Tribunal’s options under s 426A, as required by s 425A(4) of the Migration Act.
Ground 2 is not established.
GROUND 3
Applicant’s submissions
The applicant submitted that the Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to have regard to the applicant’s notice under s 426 of the Migration Act and/or failed to take evidence on oath or affirmation from the applicant at the rescheduled hearing on 5 July 2017.
The applicant submitted that the response to a hearing invitation completed by the applicant amounts to notice given to the Tribunal that the applicant wanted the Tribunal to obtain evidence from a person, namely, himself and that the Tribunal had a mandatory obligation to consider this notice. The applicant submitted that by proceeding in the applicant’s absence and failing to telephone him to invite him to give evidence under oath by telephone, the Tribunal has effectively ignored the notice given by the applicant under s 426 of the Migration Act.
The applicant submitted that s 426 of the Migration Act should be interpreted in a manner that allows an applicant to be considered to be a witness for the purposes of that section. In support of such a construction, the applicant submitted:
(a)the ordinary understanding of the words ‘witness’ and ‘person’ can include an applicant, and it is very common for a party to a proceeding to also be a witness in that proceeding;
(b)an applicant can quite obviously give ‘evidence’ in a proceeding; and
(c)the reference in subsection (2) to an applicant notifying the Tribunal that he or she wishes the Tribunal to obtain oral evidence from ‘a person or persons’ is not qualified by ‘another’ or ‘other’.
The applicant further submitted that the Tribunal’s power to take evidence from a person in s 427(1)(a) of the Migration Act must be exercised reasonably. While the applicant accepted that there is no general duty on the Tribunal to investigate matters, he submitted that the Tribunal may fail to conduct its review if it does not make an obvious enquiry about a critical fact, the existence of which is easily ascertainable. The applicant submitted that he was capable of speaking to every critical fact on the review, it was obvious that the enquiry should be directed to him because he was the only witness, and it was easily ascertainable to make an enquiry of him by telephone or email.
Minister’s submissions
The Minister submitted that the purpose of s 426 of the Migration Act is to facilitate a request from an applicant to the Tribunal to call witnesses. The Minister submitted that s 426 is directed to the calling of witnesses other than an applicant, not the applicant himself or herself. The Minister submitted that when the concept of reasonableness is applied with this understanding of the statutory scheme, it was reasonable for the Tribunal not to call the applicant in circumstances where the applicant failed to attend the hearing and did not give a reasonable excuse for failing to attend the hearing.
Resolution
Section 426 of the Migration Act provides:
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b)      of the effect of subsection (2) of this section.
(2)      The applicant may, within 7 days after being notified under subsection (1),         give the Tribunal written notice that the applicant wants the Tribunal to obtain     oral evidence from a person or persons named in the notice.
(3)      If the Tribunal is notified by an applicant under subsection (2), the Tribunal        must have regard to the applicant’s wishes but is not required to obtain      evidence (orally or otherwise) from a person named in the applicant’s notice.
In the present case, the document that the applicant relied upon as amounting to notice under s 426 of the Migration Act is a document headed ‘Response to hearing invitation - MR Division’ signed and dated by the applicant on 27 June 2017. In that document, in response to the question ‘Will you take part in the hearing scheduled for 29 June 2017?’, the applicant ticked a box to indicate ‘yes’.
On the second page of the document, the applicant was asked about witnesses. That part of the document contained the following information:
You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate.
Unless you advise us otherwise we will assume that you will make arrangements for any witness to be available to give evidence.
The document then contained the following statement followed by an option to tick ‘Yes’ or ‘No’:
I/we request that the Member takes oral evidence from another person.
The applicant ticked ‘No’.
The issues to be determined in relation to the first part of this ground are:
(a)whether ss 426(2) and (3) of the Migration Act apply to an applicant who wishes to give evidence on his or her own behalf, or put in a different way, whether an applicant is a ‘witness’ for the purpose of s 426;
(b)if so, whether the applicant’s indication that he wished to take part in a hearing amounted to a notice to the Tribunal for the purposes of s 426(2); and
(c)if so, whether the Tribunal had regard to that notice as required by s 426(3).
The main case relied upon by the applicant is Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908. That case confirms that the requirement on the Tribunal to ‘have regard’ to a notice under s 426 of the Migration Act is mandatory and requires more than a superficial acknowledgement of the notice. However, it does not assist in the resolution of the first issue, namely, whether s 426 applies in relation to an applicant who wishes to give evidence himself or herself or whether the applicant is a ‘witness’ for the purpose of that section.
I do not accept that ss 426(2) and (3) of the Migration Act apply to an applicant who wishes to give evidence on his or her own behalf. This view is formed taking into account both the terms of s 426 as well as other provisions in Division 4 of Part 7 of the Migration Act.
Subject to certain exceptions that do not apply in the present matter, s 425(1) of the Migration Act provides that 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’. That invitation to attend a hearing must be a real and meaningful one: NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33], [37].
Notice of an invitation to attend a hearing must be given to an applicant in accordance with s 425A of the Migration Act. Section 426(1) then requires that the notice given under s 425A informs the applicant that he or she is invited to appear before the Tribunal to give evidence, and that, as per s 426(2), the applicant may, within seven days of receiving the notice, give to the Tribunal written notice that he or she wants the Tribunal to obtain oral evidence from a person or persons named in the notice. Section 426(3) compels the Tribunal to have regard to the wishes of the applicant for the Tribunal to obtain evidence from a person named in the notice given by the applicant, but does not require the Tribunal to actually take evidence from that person.
Although the terms of s 426(2) of the Migration Act do not expressly exclude an applicant naming himself or herself in the notice, the preferred construction has to be that ss 426(2) and (3) do not apply to an applicant’s wish to give evidence himself or herself. It is significant that both the obligation to consider the applicant’s wishes, and the discretion left to the Tribunal whether or not to take evidence from a witness conferred by s 426(3), are tied to the applicant giving notice under s 426(2). On the other hand, the reference to the applicant being invited to give evidence in s 426(1) is tied to the requirement in s 425 to invite the applicant to a hearing.
The Federal Court made the following comments in relation to the operation of s 426(3) in AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 at [48]:
The work to be done by the second aspect of s 426(3) (namely that the Tribunal is “not required” to obtain evidence from a person named in the notice) is, in our opinion, to make clear that the Tribunal has a discretion whether or not to take evidence from a nominated person. It emphasises the nature of the power in s 427(1)(a). The only express control or condition on that discretion is that the Tribunal must “have regard to” an applicant’s wishes. In our opinion this means the Tribunal must, through inquiries of the applicant, understand why the applicant wants the Tribunal to take evidence from the nominated person, and how that person’s evidence is said by an applicant to relate to the Tribunal’s review. It is to these matters the Tribunal must give real and genuine consideration, in the way explained by Kenny and Lander JJ in [Minister for Immigration and Multicultural and Indigenous Affairs v] Maltsin [(2005) 88 ALD 304; [2005] FCAFC 118] at [38] (Spender J agreeing).
It would be entirely inconsistent with the requirement in s 425(1) to invite an applicant to give evidence at a hearing if the Tribunal then could decline to take evidence from an applicant who appears at a hearing, either because the applicant did not provide a response to the hearing invitation to the Tribunal or otherwise indicate to the Tribunal that he or she wished to give evidence within seven days of receiving the invitation, or because the Tribunal had regard to an applicant’s wish to give evidence but exercised its discretion not to allow the applicant to give evidence. The invitation to attend a hearing would hardly be a real and meaningful one if an applicant who accepted such an invitation by appearing at a hearing was then denied an opportunity to give evidence on issues relevant to the review. An applicant does not need to specifically indicate to the Tribunal that he or she wishes to give evidence in a notice under s 426, because the Tribunal has already confirmed that the applicant is invited to give evidence in the s 425A notice.
Further, s 426A of the Migration Act clearly sets out the Tribunal’s options in circumstances where an applicant is invited to a hearing but fails to appear at the hearing. As set out above, those options include making a decision on the review without taking any further action to allow or enable the applicant to appear before it, dismissing the application without any further consideration of the application or the information before the Tribunal, or rescheduling the hearing to afford the applicant another opportunity to appear. That section is not in any way expressed to be subject to s 426. While an applicant’s expressed desire to give evidence may be something that a Tribunal might choose to take into account in exercising its discretions under s 426A, there is no separate or additional requirement in s 426 or any other provision in the Migration Act that requires the Tribunal, where it has decided, when faced with the non-appearance of the applicant, to proceed to make a decision without giving the applicant a further opportunity to appear, or to dismiss an application, to separately consider whether to invite an applicant to give evidence (by telephone or otherwise). Such a requirement would appear to fly in the face of the express terms of s 426A(1A) of the Migration Act.
Given my conclusion in relation to the first of the issues identified in [77] above, it is not, strictly speaking, necessary to consider the second and third issues. I do, however, make the following brief comments on the second and third issues, in the event that my conclusions on the first issue are later found to be wrong.
(a)In relation to the second issue, if, contrary to my conclusions above, s 426 does extend to the applicant as a witness, I would find that the applicant in this case had given notice to the Tribunal that he wished to give evidence. This can be inferred from the response to the hearing invitation, where he indicated that he would take part in the hearing, the purpose of which, in large part, was to enable him to give oral evidence, and from the request for an ‘extension’ of the hearing. From these two documents, the Tribunal was clearly on notice that the applicant wished to give evidence.
(b)In relation to the third issue, I would find that the Tribunal has considered the applicant’s wish to participate in the hearing and give evidence. It is implicit in the consideration of the adjournment request that the Tribunal was aware of the applicant’s desire to participate in the hearing, but the Tribunal found that he did not have a proper reason for failing to appear. The Tribunal’s comments at [30] of its reasons that an appearance at the hearing would have given the applicant an opportunity to address the gaps and contradictions in his evidence and to provide further information and details about his claims clearly show that the Tribunal was alive to the potential significance of the applicant’s evidence.

The second part of ground 3 asserts that the Tribunal acted unreasonably by failing to call the applicant to make inquiries or give evidence or otherwise constructively failed to exercise its jurisdiction by not making an obvious inquiry of the applicant about a critical fact. This part of the ground is based in part on the High Court’s obiter dictum in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 where the High Court said at [25]:
… It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
I do not accept that there was any obligation on the Tribunal to make any further inquiries of the applicant, or to enable him to give evidence by telephone. I have already found that the Tribunal has not acted unreasonably in exercising its discretion to proceed to make a decision on the review without giving the applicant any further opportunity to appear before it. Section 426A(1A)(a) expressly authorises the Tribunal to do this. If the exercise of an express discretionary power to proceed without taking any further action to allow or enable the applicant to appear before it was reasonable, and the purpose of the invitation to appear was, in large part, for the applicant to give evidence, then it follows that it cannot be unreasonable for the Tribunal to fail to telephone or otherwise contact the applicant to take evidence from him.
Further, the Tribunal is generally not required to make an applicant’s case for them: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60]; SZMWA v Minister for Immigration and Citizenship [2009] FCA 563 at [32]. Inquiring of an applicant about the whole of the basis of his or her claims for protection because the applicant has failed to offer any meaningful detail at all goes well beyond making an obvious inquiry about a critical fact the existence of which is easily ascertained.
Ground 3 is not established.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Dated: 27 January 2022

File number:	MLG 1701 of 2017
Judgment of:	JUDGE LADHAMS
Date of judgment:	27 January 2022
Catchwords:	MIGRATION – Judicial review of decision of Administrative Appeals Tribunal – Tribunal hearing rescheduled due to applicant’s illness – applicant failed to appear at rescheduled hearing – Tribunal made decision without giving applicant any further opportunity to appear at hearing – whether reasonable notice given of rescheduled hearing – whether Tribunal acted unreasonably in making a decision on the review rather than adjourning the hearing or dismissing the application – whether Tribunal had any obligation arising under s 426 of the Migration Act 1958 (Cth) to take evidence from applicant when he failed to appear – whether Tribunal failed to make reasonable inquiries of applicant – no jurisdictional error – application dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.2.05(4) Migration Act 1958 (Cth), ss.5J, 36, 65, 425, 425A, 426, 426A, 426B, 427, 430, 441A(5), 441C(5), 476 Migration Regulations 1994 (Cth), reg.4.35D(3)
Cases cited:	AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152 Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026 SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613 SZMWA v Minister for Immigration and Citizenship [2009] FCA 563
Division:	Division 2 General Federal Law
Number of paragraphs:	91
Date of hearing:	4 November 2021
Place:	Perth
Counsel for the Applicant:	Mr J R Murphy
Solicitor for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the First Respondent:	Ms N Campbell
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Clayton Utz

MLG 1701 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DNK17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	27 JANUARY 2022