Donado v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1244
•8 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Donado v Minister for Immigration and Citizenship [2025] FedCFamC2G 1244
File number: MLG 734 of 2020 Judgment of: JUDGE FORBES Date of judgment: 8 August 2025 Catchwords: MIGRATION – Student visa refusal – decision of the Administrative Appeals Tribunal to confirm its dismissal for non-appearance – where the applicants did not apply for reinstatement – where the primary applicant submits circumstances beyond her control were not considered by the Tribunal – application dismissed Legislation: Migration Act 1958 (Cth) ss 360, 360A, 362B, 362C
Migration Regulations 1994 (Cth) sch 2 cl 500.212
Cases cited: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
FGB17 v Minister for Home Affairs [2019] FCA 725
Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459; [2018] FCAFC 184
SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; [2007] FCAFC 63
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 31 July 2025 Date of hearing: 31 July 2025 Place: Melbourne The Applicants: In person Solicitor for the First Respondent: Mr Daly; Mills Oakley The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 734 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GEMMA DONADO
First Applicant
FERDINAND DONADO
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
8 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The application for judicial review filed on 3 March 2020 be dismissed.
3.The applicants pay the first respondent’s costs fixed in the sum of $6,000.00.
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 FORBES
INTRODUCTION
On 5 February 2018, a delegate of the first respondent (Minister) refused to grant the primary applicant Mrs Gemma Donado (applicant) a Student (Temporary) (Class TU) Subclass 500 visa (visa). The second applicant is Mrs Donado’s husband.
On 20 February 2018, the applicants lodged an application with the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. In that application the applicants nominated a migration agent as their representative and authorised recipient.
On 19 December 2020, the Tribunal invited the applicants to provide certain information and to attend a hearing before the Tribunal on 16 January 2020. The hearing was subsequently rescheduled to 31 January 2020.
On 29 January 2020, the applicants’ representative emailed the Tribunal seeking an adjournment of the rescheduled hearing on account of her ill-health. The applicant’s representative attached a medical certificate.
The Tribunal decided not to exercise its discretion to grant the adjournment. It informed the applicants through their representative that the hearing would proceed.
The applicants did not attend the Tribunal hearing on 31 January 2020 and their application for merits review of the delegate’s decision was dismissed for non-attendance pursuant to section 362B(1A)(b) of the Migration Act 1958 (Cth) (Act).
The applicants were advised, through their nominated representative, that reinstatement of the application could be sought within 14 days of receiving the dismissal statement, that is from 31 January 2020. The applicants did not apply for reinstatement.
On 17 February 2020, the Tribunal confirmed the decision made on 31 January 2020 to dismiss the applicants’ application for review by reason of their non-appearance at a Tribunal hearing.
By an application for judicial review filed on 3 March 2020, the applicants seek to impugn the Tribunal’s decision to dismiss the review application on the basis that the Tribunal erred in law and failed to consider principles of natural justice in making its decision.
Having heard and considered the parties’ submissions, I am satisfied that the decision of the Tribunal was not affected by jurisdictional error. Accordingly, the application is dismissed.
The applicants did not seek reinstatement of their review application within the prescribed 14 day period. It is possible that their agent had a hand in that mishap, and I accept that the consequences for them are most unfortunate. However, for the reasons explained in this judgment, the Tribunal had no lawful ability to do anything other than confirm the dismissal of their application.[1]
[1] FGB17 v Minister for Home Affairs [2019] FCA 725, at [12] (per Yates J), AYT16 v Minister for Immigration and Border Protection [2017] FCA 252, at [10] (per Perram J).
BACKGROUND
The applicants are Filipino nationals. Mr Donado, the second applicant, is the primary applicant’s husband and a member of the family unit.
On 28 June 2009, the applicant first arrived in Australia as the holder of a student visa (TU-573) to study English, followed by a Bachelor of Nursing at the Australian Catholic University.[2]
[2] Court Book (CB) 86
On 8 February 2013, the applicant subsequently commenced a Bachelor of Nursing. The applicant ceased studies due to ‘compassionate or compelling circumstances’ on 27 July 2012. The applicant re-commenced her studies on 18 February 2013. She extended the course a further two times and completed it on 31 January 2015.
Between 2 March and 27 March 2015, the applicant completed a General English course. On 27 July 2015, the applicant commenced a further 5 months toward her Bachelor of Nursing and completed it on 31 December 2015.
On 29 March 2016, the applicant changed her study pathway and provider to commence a Certificate III in Work Health and Safety which she completed in September 2016, followed by another Certificate course in April 2017. The applicant completed a Diploma in this same field in September 2017.
On 24 November 2017, the primary applicant applied for another student visa on the basis of her enrolment in a Diploma and Advanced Diploma of Leadership and Management. That visa application is the subject of these proceedings.
On 5 February 2018, a delegate of the Minister wrote to the applicant advising her that the visa had been refused on the basis of her failure to satisfy cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the primary applicant was a genuine temporary entrant, taking into account the non-exhaustive factors set out in Ministerial Direction No 69 (Direction) ‘Assessing the genuine temporary entrant criterion for Student and Student Guardian visa application’.
In relation to the applicant’s course history, the delegate found that:[3]
Based on the information available to me at this time and your study history, I consider that you have failed to demonstrate clear study objectives. I place weight on the change in study pathway, moreover, with multiple changes in Educator Providers. I have taken into consideration your study history along with your future employment intentions. Given the significant expenses that you have already incurred by studying various courses at the Higher Education and more recently, Vocational Education level in Australia in addition to further costs involved to pursue your proposed studies, I am concerned that your intention to remain in Australia is not motivated by the achievement of education qualifications in Australia. Departmental records show that you have spent a significant period of time in Australia as the holder of temporary student visas. The grant of this student visa application, would lead to you furthering your stay in Australia as a temporary resident. As such, it appears that you are utilising the Student visa program as a means of circumventing Australia’s migration program to acquire ongoing residency in Australia on temporary short stay visas.
[3] CB 86, 87
On 20 February 2018, the applicants applied to the Tribunal for merits review of the delegate’s decision. The applicants included a registered migration agent (representative) as part of their application.
The Tribunal
On 19 December 2019, the Tribunal wrote to the applicants via their representative and invited the applicants to attend a hearing scheduled for 16 January 2020. The Tribunal’s correspondence invited the applicants to appear before the Tribunal to “give evidence and present arguments relating to the issues in your case”.[4] The hearing invitation asked the applicant to provide the following information “so that a decision can be made as quickly as possible:[5]
1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3. We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
[4] CB 104
[5] CB 105
The Tribunal also wrote to the representative on the same date to confirm the language of the interpreter requested by the applicants in their application.[6]
[6] CB 102
On 3 January 2020, the applicants’ representative wrote to the Tribunal requesting that the hearing be postponed as the applicant “is currently overseas and will not be able to attend the hearing on 16 January 2020”.[7] The representative advised that the applicant would be returning to Melbourne after 23 January. The representative attached various documents to this email including copies of the applicants’ bridging visas and an email from Cebu Pacific confirming flight schedule changes.[8]
[7] CB 116
[8] CB 118
On 6 January 2020, the Tribunal responded to the representative, agreeing to postpone the hearing, with a new date to be advised.[9]
[9] CB 123-125
On 14 January 2020, the Tribunal wrote to the applicants’ representative to advise the applicants of the rescheduled hearing to the new date of 31 January 2020.[10]
[10] CB 128
On 23 January 2020, the Tribunal sent SMS reminders to the applicant’s nominated mobile number listed in the Application for Review form, reminding her that the Tribunal hearing would be held on 31 January 2020.
On 29 January 2020, the applicants’ representative wrote to the Tribunal requesting that the rescheduled hearing date of 31 January 2020 be postponed as the first applicant “can not attend to the hearing due to medical condition”.[11] The representative attached a medical certificate in support of this request.[12] The medical certificate, also dated 29 January 2020, stated that the applicant had ‘a medical condition and [would] be unfit for work or study’ from 30 January to 3 February 2020.
[11] CB 145
[12] CB 147
On 30 January 2020, the Tribunal sent another SMS reminder to the applicants’ nominated mobile number reminding them about the Tribunal hearing scheduled for 31 January 2020.
That day the Tribunal also responded to the applicants’ representative about the adjournment request. The Tribunal stated that it had considered the request carefully “but has decided not to postpone the hearing, as the Member finds the information provided in support of a postponement insufficient”.[13] The letter advised that the hearing would proceed on 31 January 2020 as scheduled.
[13] CB 151
The Tribunal’s Migration Hearing Record records that the applicants did not appear at the scheduled hearing.[14] The hearing record reveals that the hearing was scheduled to commence at 9:30am. A Filipino interpreter had been engaged and was in attendance. Two attempts were made by the Tribunal to contact the applicant’s mobile phone at 9:37am and 9:39am and both diverted to voicemail. The Tribunal waited until 10:33am before calling a “no show”, dismissing the application and producing reasons.
[14] CB 155-157
On the same day, the Tribunal notified the applicants via their representative of its decision to dismiss the application, by reason of their failure to attend the scheduled hearing.[15] That email correspondence also enclosed ‘Information about dismissal of applications – MR’, which explained that a reinstatement application could be made to the Tribunal within 14 days of receiving notice of the dismissal decision.
[15] CB 159
Tribunal’s confirmation decision
No application for reinstatement was made. On 17 February 2020, the Tribunal confirmed its decision to dismiss the applications.
In its brief statement of decision and reasons, the Tribunal stated:
2. On 31 January 2020 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3. The review applicants were 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.362C(5). The review applicants were 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 review applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.
JUDICIAL REVIEW
On 3 March 2020, the applicant applied for judicial review of the Tribunal’s confirmation decision.
In their application, the applicants sought to impugn the Tribunal’s decision on the following two grounds:
1. The Tribunal made a jurisdictional error whilst making decision on application.
2. The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.
(a). In considering whether the visa applicant met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fact that the circumstances of the case were beyond the applicant’s control.
(b). The visa applicant was not at fault and yet was affected by exceptional circumstances
Prior to the hearing, the applicant and Minister each filed an outline of submissions.
The matter first came before me for hearing on 3 July 2025. As foreshadowed in correspondence to chambers days prior to the hearing, the applicants sought an adjournment on the basis that they had recently lost legal representation. The applicants had only been informed two weeks prior to the hearing that their solicitor no longer acted. Correspondence from the Victorian Legal Services Board to the Court confirmed that a manager had been appointed to the law practice. The Minister consented to the adjournment and I saw fit to grant it.
The first applicant filed a notice of address for service shortly after the hearing concluded, and a further outline of submissions on 24 July 2025. The Minister also filed a further outline of submissions on 29 July 2025.
The matter came before me again on 31 July 2025. The applicants again appeared without legal representation and the Minister was represented by solicitor advocate, Mr Daly.
Submissions
Applicant
By Ground 1, the applicant generally submits that the Tribunal made a jurisdictional error in reaching its confirmation of dismissal decision. No particulars are submitted by way of explanation.
By Ground 2, the applicant submits that the Tribunal failed to consider “all aspects of the appeal” and “observe principles of natural justice.” The applicant suggests that the Tribunal did not give due consideration to the circumstances of the case that were “beyond the applicant’s control” under “exceptional circumstances”.
In her oral address to the Court, the first applicant relied on her written submissions. In particular she directed the court to the following paragraphs:
[12]It is submitted that Learned Tribunal fell in jurisdictional error as just affirming the decision and the ignored the specific circumstances of the Applicant and not taking into account the relevant consideration.
[13]The Learned Tribunal failed to provide the Applicant procedural fairness keeping in view the Applicants specific medical conditions at that particular time and it was not under the Applicant’s control. The Tribunal should have take into this specific relevant medical condition of the Applicant and the Applicant should have been provided an opportunity to present her case according to the rules of natural justice. In the absence of an opportunity to present the whole matter according to facts and history of whole case, it would have not been possible to present the matter. The Applicant was disadvantaged to present the matter just on the basis of not being heard as she was not able to do based on her medical condition.
When I invited the applicant to expand on her submissions, she said that she could not attend the Tribunal hearing because she was suffering “gastro” at the time. She was advised by her representative to get a medical certificate and thought that was all that was required for the matter to be adjourned.
The applicant also read a prepared statement to the Court. She said that since her application had been dismissed in 2020 she had not breached any laws, she had continued to study and had complied with all visa conditions. The applicant said that she is a law-abiding resident and student and had paid all of her taxes. She said she was 51 years of age and would like to stay in Australia for another 2 to 3 years in order to complete her studies. After that she intended to return to the Philippines to provide assistance to the people of her country.
In a short reply submission, the applicant added that she was not aware that her case had been dismissed until informed of that fact by her migration agent. She said that if she had been aware of the dismissal at the time, these proceedings could have been avoided.
Minister
The Minister contends that this application for judicial review turns on a simple point. As the applicants did not seek reinstatement of their review application within the prescribed period, the Minister submits that the Tribunal had no lawful ability to do anything other than confirm the dismissal of the application: FGB17 v Minister for Home Affairs [2019] FCA 725, at [12] (per Yates J); AYT16 v Minister for Immigration and Border Protection [2017] FCA 252, at [10] (per Perram J).
In his oral address, Mr Daly submitted that although one might have sympathy for the applicants’ predicament, the decision made by the Tribunal was not unreasonable. The Minister submitted that the medical certificate provided in support of the adjournment application, contained very limited information. The applicant was informed about the Tribunal’s concern and had an opportunity to provide more information, but did not. Mr Daly submitted that the letter dated 30 January 2020 from the Tribunal to the applicant’s representative should have prompted an astute representative to obtain and provide more information about their client’s medical condition.
Mr Daly also submitted that the Tribunal was cognisant of the fact that there had been a previous postponement of the hearing and was entitled to take that into account. He also reminded the court that the Tribunal waited for the applicants to attend on the day of the hearing and took steps to contact the applicant before dismissing the matter more than an hour after the scheduled commencement time.
In his oral submissions Mr Daly also pointed out that it was open for the second applicant to attend the Tribunal hearing and give information as to the first applicant’s whereabouts or why she could not attend. No explanation was given for the second applicant’s nonattendance.
CONSIDERATION
I accept the Minister’s submissions. In relation to the confirmation decision made on 17 February 2020, it was not open to the Tribunal to have made any other decision in the circumstances.
In respect of the invitation to the initial hearing, the Tribunal complied with its procedural fairness obligations under Part 5, Division 5 of the Act as it was at that time. The hearing invitation dated 14 January 2020 complied with ss 360 and 360A of the Act in that it (1) gave notice of the day, time and place of the scheduled hearing; (2) was sent by email to the last email address provided in connection with the review; (3) complied with the prescribed notice period; and (4) contained the statement required by s 362B of the Act. Compliance with those legislative requirements was sufficient to enliven the Tribunal’s power to dismiss the application for non-appearance.
Further, and in any event, I am satisfied on the available evidence that the applicant herself was aware of the scheduled hearing time. I accept that there may have been communication issues between the applicant and her representative and perhaps even an assumption on her part that the medical certificate would have been enough to secure an adjournment. But the Tribunal made clear in correspondence to the applicants’ nominated representative that the adjournment request been considered and it was not satisfied about the sufficiency of the information provided in support of it. I agree with the Minister that once appraised of the Tribunal’s position, it remained open to the applicants’ representative to provide additional information to persuade the Tribunal otherwise. There was an evident and intelligible justification for the Tribunal’s refusal to postpone the hearing.
When the applicants failed to attend, and after efforts were made to contact them, there was no error in the Tribunal’s decision to dismiss the application without further consideration of the application or the information before it.
The remaining substantive question is whether the applicant has demonstrated any jurisdictional error in the Tribunal’s decision to confirm the dismissal.
In Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459; [2018] FCAFC 184 the Full Court (Kenny, Bromberg and Colvin JJ) neatly explained the statutory context applying to a reinstatement application. Their Honours said:
26. In deciding whether there was jurisdictional error by the Tribunal, it is also necessary to consider the statutory context in which a reinstatement application may be brought. When there is an application for review under Div 5 of Pt 5 of the Migration Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the decision under review (save in circumstances that are not applicable for present purposes): s 360(1). If an applicant is invited to appear, but does not do so, then the Tribunal can make a decision on the review without taking further action to allow the applicant to appear or it can dismiss the application without any further consideration: s 362B. If the latter course is followed then the applicant may apply to reinstate the proceedings within 14 days and the applicant must be notified of that statutory right within 14 days after the dismissal: s 362B(1B) and s 362C(5).
27. The evident purpose of the right to apply for reinstatement is to provide an avenue by which the application may be dealt with on the merits rather than dismissed procedurally. It is a protection that is only afforded if there is due consideration of the reasons advanced on a reinstatement application. If consideration on a reinstatement is confined to whether a person has been “correctly notified” then little purpose would be served by the statutory provision allowing for an application to reinstate. It would confine reinstatement to those instances where the Tribunal itself had not followed the notification procedure in the Migration Act. However, there would be no need for such a right because a dismissal that occurred without proper notification would be no dismissal at all. As I have noted there is a statutory obligation to notify an applicant of a scheduled hearing. Further, the Migration Act is quite specific about how the notification is to be given: s 360A. Satisfaction of such requirements is necessary in order for the power to make a decision on the review to be enlivened: SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199 at [29]-[30] (Besanko J, with whom Moore J agreed at [1]) and [53] (Buchanan J).
28. Even so, it is for the applicant to advance the application for reinstatement and any material relied upon. After all, such an application is only made in circumstances where the applicant has failed to appear at a scheduled hearing.
As explained by the Full Court, if an applicant seeks reinstatement a statutory responsibility is imposed on the Tribunal to form an opinion or make an assessment as to whether the reinstatement is “appropriate” having regard to all the circumstances advanced to support reinstatement. To properly form such a view, the Tribunal cannot confine its consideration to facts concerning notification of the hearing. Rather, there is an obligation on the Tribunal to properly engage with and make an assessment having regard to all of the matters which have been advanced by the applicant. Only then can the Tribunal reach an outcome which is “appropriate” or fit and proper in the circumstances.
The applicant can only engage this statutory responsibility by making an application for reinstatement within the prescribed time period. No such application was made. The Tribunal was obliged by law to confirm the dismissal decision. It did this without any lawful ability to do otherwise.[16]
[16] AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10]
It is not for the court to speculate why there was no application for reinstatement. As in AYT16[17] the applicants advanced an oral argument seeking to direct blame to alleged incompetence or negligence on the part of their migration agent. However, even assuming in their favour that the agent was negligent (a proposition on which the agent has not been heard) the court would need to know a great deal more before jurisdictional error was made out. There was no evidence presented to the Court that permits such a finding.
[17] Supra at [17]
DISPOSITION
For the reasons set out above the application for judicial review must be dismissed.
I will hear the parties on the question of costs.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 8 August 2025
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