EEV18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 173

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173

File number:

MLG 2415 of 2018

Judgment of:

JUDGE GOSTENCNIK

Date of judgment:

17 February 2025

Catchwords:

MIGRATION – Protection (subclass 866) – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – no appearance by the applicant at the Tribunal hearing – applicant appeared after the scheduled hearing time before the Tribunal – judicial review – whether the Tribunal unreasonably made a decision on the review pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) – whether Tribunal failed to consider alternate methods of conducting the review – Tribunal arrived at an intelligible decision-making process – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

Legislation:

Migration Act 1958 (Cth) pt 7, ss 5, 5(1), 5H, 5J, 5K, 5LA, 36, 36(2)(a), 36(2)(aa), 359, 359AA, 360(3), 362B(1A)(b), 363, 424, 424AA, 425, 426A(1A)(a), 426A(1A)(b), 426A(1B), 426A(1C), 426A(2), 427(1)(b), 477(2), 499

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 3

Migration Regulations 1994 (Cth) sch 2, reg 1.12

Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, 269 CLR 439

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130

AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103

Collector of Customs v Pozzolanic [1993] FCA 456, 43 FCR 280

DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975

FRH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 404

GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 229

McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609

Minister for Home Affairs v DUA16 [2020] HCA 46, 271 CLR 550

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541

Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559

Parker v Minister for Immigration and Border Protection [2016] FCAFC 185, 247 FCR 500

S14/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153

Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459

SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of last submission/s:

13 January 2025

Dates of hearing:

21 October 2024 and 20 January 2025

Place:

Melbourne

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms K McInnes

Solicitors for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2415 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EEV18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	17 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The applicant’s application for judicial review filed on 14 August 2018 is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.

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 Gostencnik

INTRODUCTION

1. Before the Court was an application for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period within which a judicial review application of a migration decision of the (then) Administrative Appeals Tribunal (Tribunal) may be made. The applicant and first respondent filed consent draft orders proposing to extend the 35-day period to 14 August 2018, and that the matter be listed for a final hearing for the Court to deal with the substantive judicial review application. The judicial review application was lodged one day outside of the time prescribed and being satisfied that there was an arguable case of jurisdictional error of the kind identified in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975, I considered that it was necessary in the interests of the administration of justice to extend the 35-day period within which the applicant could lodge a judicial review application and made the orders sought by consent. I therefore now deal with the applicant’s substantive judicial review application.

   BACKGROUND

2. The proceeding before the Tribunal initially concerned 2 Malaysian citizens who arrived in Australia on 16 June 2016 and 2 August 2016, respectively: Court Book (CB)21, CB46. On 1 December 2016, the applicant and his then fiancé jointly applied to the (then) Department of Immigration and Border Protection for a Protection (Class XA) (Subclass 866) visa: CB1-CB62. The visa applicants were at the time members of the same family unit pursuant to reg 1.12 of the Migration Regulations 1994 (Cth) (Regulations) and s 5(1) of the Act: CB72. The applicant claimed at the time that he borrowed money from a loan shark, but, because of company downsizing, he lost his job and was unable to meet the payments. He claimed that he was physically beaten and threatened to “become their drug dealer” to settle the debt: CB32. He claimed to have relocated to another part of the country, but the loan sharks were still able to find and threaten him. The applicant also claimed that “[he was] sure the Malaysian’s (sic) authorities will be able to protect [them]” but was not convinced he would be safe until the debt was settled: CB33-CB34.

3. The applicant’s fiancé also claimed protection as her partner borrowed money from a loan shark and was unable to meet the payments. She claimed that their lives are at risk, and that she was threatened by the loan sharks that she would be forced into prostitution to settle the debt: CB57. She claimed that she is unable to relocate within the country and that the loan sharks will still be able to find her and her fiancé; and, as with the applicant, she claimed “[she was] sure the Malaysian’s (sic) authorities will be able to protect [them]” but was not convinced she would be safe until the debt was settled: CB58-CB59.

4. On 7 July 2017, a delegate of the (then) Minister for Immigration and Border Protection refused the joint application and notification of the decision and a copy of the decision record was dispatched to the applicant by post: CB68-CB85. The delegate was not satisfied that the visa applicants were persons in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act. The delegate noted that the visa applicants’ claims were not analogous to the 2016 Country Information Report by the Department of Foreign Affairs and Trade which indicated that Malaysian authorities are able to provide an adequate level of protection from criminal behaviour. As such, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk they would suffer significant harm as outlined in s 36(2)(aa) of the Act: CB79, and consequently, refused the protection visa applications.

5. The visa applicants next jointly applied to the Tribunal for a review of the delegate’s decision: CB86-CB87. Receipt of the application lodged on 5 August 2017 was acknowledged in correspondence to the visa applicants dated 8 August 2017: CB89-CB90. By correspondence dated 18 May 2018, the Tribunal invited the visa applicants to comment on or respond in writing to information that the Tribunal considered would be the reason, or part of the reason for affirming the decision under review: CB97-CB99. The particular information was: CB98:

   That [the applicant’s fiancé] has not been in Australia since 21 August 2017

   (emphasis in original)

6. The applicant responded to the Tribunal’s correspondence by letter dated 12 June 2018: CB101, in which he stated that:

   (a)his former fiancé “fell sick due to chronic depression”;

   (b)they were no longer in a relationship and broke up;

   (c)the applicant sent his former fiancé back to Malaysia for treatment;

   (d)he was still seeking protection in Australia and is unable to return to Malaysia; and

   (e)he was sure the Malaysian authorities are not able to protect him and he was not 100% sure that he will be safe as the debt was still not settled.

7. By correspondence dated 13 June 2018, the Tribunal invited the visa applicants to attend a hearing scheduled for 9 July 2018: CB103-CB104. The correspondence contained, inter alia, the following information:

   We have considered the material before us but we are unable to make a favourable decision on this information alone.

   . . .

   If you are not able to attend the hearing you should advise us as soon as possible. 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.

8. Enclosed with the correspondence was an ‘Information about hearings – MR Division’ factsheet: Supplementary Court Book (SCB)1-SCB4. The factsheet contained, inter alia, the following:

   What if I cannot attend the scheduled hearing?

   If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. 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.

   If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

   If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.

9. The correspondence also requested the visa applicants read and complete an enclosed ‘Response to hearing invitation – MR Division’ form to confirm attendance at the hearing, and to use the form to provide or attach any additional information the applicant wanted the Tribunal to consider. The applicant returned the completed form on 21 June 2018 indicating his intention to appear at the Tribunal hearing and requesting a Malay interpreter: CB105-CB108. He did not otherwise provide any additional information he wanted the Tribunal to consider.

10. The applicant was sent SMS hearing reminders on 2 July 2018 and 6 July 2018: CB109-CB110, but he did not attend the hearing at the time scheduled. He did not apply for an adjournment, nor did he contact the Tribunal to explain his non-attendance at the time the hearing commenced: CB116. A Tribunal case note made at 9:48 am on 9 July 2018 records the first applicant approaching the Tribunal’s counter and being told by a Tribunal staff member that “his hearing was scheduled for 8:30 am and he was not here, hence the member will now move on to making a decision”: CB110.

11. On 9 July 2018, the Tribunal affirmed the delegate’s decision not to grant the visa applicants a protection visa and it made a Statement of Decision and Reasons (Decision) at 9:22 am that day: CB115. By correspondence dispatched by email on 10 July 2018, the visa applicants were provided with a copy of the Decision, an ‘Information about decisions – MR Division’ factsheet and an extract of ss 5 and 36 to the Act: CB114-CB122.

    TRIBUNAL’S DECISION AND REASONS

12. In its Decision, the Tribunal set out at [1]-[11] a brief background and the relevant protection visa criteria by reference to ss 5H, 5J, 5K-LA, 36 of the Act, Sch 2 to the Regulations and Ministerial Direction No. 56 made under s 499 of the Act. The Tribunal also noted that it was required to consider policy guidelines prepared by the Department of Immigration (PAM3) Refugee and humanitarian – Refugee Law Guidelines and country information prepared by the Department of Foreign Affairs and Trade to the extent that it is relevant to the decision under consideration.

13. As the applicant did not attend the scheduled hearing, the Tribunal determined to make its decision on the review without taking any further action to enable the applicant to appear before it. In doing so, the Tribunal reasoned at [4]-[5] of the Decision as follows:

    On 13 June 2017 (sic), the Tribunal wrote to the main applicant that it considered all the material before it relating to her (sic) application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in her (sic) case at the hearing on 9 July 2018. The letter advised that if she (sic) did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if she (sic) was not able to attend the hearing she (sic) should advise the Tribunal. As noted from the Tribunal's file, the applicant was also sent to her (sic) mobile phone two reminders concerning the scheduled hearing on 2 July 2018 and 6 July 2018.

    On 21 June 2018, the main applicant provided to the Tribunal his Response to Hearing Invitation in which he indicated that he would be attending the hearing scheduled for 9 July 2018 and that he required the assistance of an interpreter in the Malaysian and English languages. Regardless of receiving the Tribunal's SMS mobile phone reminders also, the applicant did not attend the hearing scheduled for 9 July 2018. As the applicant has not responded to the invitation to attend a hearing, and has not contacted the Tribunal to explain her (sic) non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal

    (emphasis in original)

14. The Tribunal concluded that the decision under review should be affirmed: Decision at [12] and set out its reasons for the conclusion at [13]-[22]. The Tribunal found at [15] that the visa applicants’ claims were “vague and lacking in detail”. At [17], the Tribunal notes the applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material provided in relation to his application but was unable to make a favourable decision on that information alone. At [17]-[19], the Tribunal notes that had the applicant attended the hearing, it would have explored the applicant’s claims including by seeking details about:

    (a)the threats the Ah Long made against him in relation to the unpaid loan; the names of the individuals who were involved; and when the threats occurred: at [17];

    (b)why the applicant did not seek protection from the local police, and why he believed the authorities in Malaysia are incapable of protecting him from the attacks or threats by the Ah Long: at [18]; and

    (c)how the applicant’s views would deviate from the country report by the Department of Foreign Affairs and Trade which indicated that the Malaysia police force instigated a rigorous campaign against the Ah Long and criminal syndicates: at [19].

15. The Tribunal did not accept the applicant’s claims for seeking protection concluding that:

    (a)it did not accept that the applicant suffered threats from the Ah Long, nor that he would face harm if he returned to Malaysia: at [20];

    (b)there is no real chance that the applicant would be persecuted for any reason in the reasonably foreseeable future; his fear is not well founded as required by s 5J of the Act, and he was not a refugee within the meaning of s 5H: at [21]; and

    (c)there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk the applicant would suffer significant harm: at [22].

16. As a result, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act: Decision at [23]-[24], and affirmed the delegate’s decision not to grant the applicant a protection visa: at [25].

17. On 11 July 2018 by email transmission, the applicant requested reinstatement of the review application arguing that although he arrived late for the hearing, he did show up on the day and has a medical certificate supporting that he had a valid reason for being late: CB123. He attached a document headed “CERTIFICATE FOR PERSONAL LEAVE” signed by a pharmacist at Chemist Warehouse located in the Manchester Unity Building in Collins Street Melbourne stating that in the pharmacist’s opinion, the applicant will be unfit to attend work on 9 July 2018: CB124. The Tribunal member who had earlier determined the review application considered the material and rejected the applicant’s request for reinstatement on 23 July 2018 because, in the member’s opinion there “[was] no jurisdictional error in this matter and the case cannot be reopened”: CB125. By email correspondence from the Tribunal to the applicant dispatched on 23 July 2018: CB126-CB127, the applicant is advised that his submission had been considered but that:

    . . . the Member has decided not to reopen this case.

    We made our decision in this case on 9 July 2018. Once we have made a decision under [the Act], we have no power to take any further action on the review.

    We are not in a position to assist you any further on this issue.

18. As earlier noted, on 14 August 2018, the applicant applied to the (then) Federal Circuit Court of Australia for review of the Tribunal’s decision.

    CONSIDERATION

19. The applicant’s grounds of application are as follows:

    1.The Tribunal acted unreasonably in determining the application for review and accordingly committed error.

    Particulars

    i.On 13 June 2018, the Tribunal wrote to the applicant, inviting him to attend a hearing in respect of his application for review on 9 July 2018;

    ii.On 22 June 2018, the applicant responded to the Tribunal’s invitation to attend a hearing, indicating that he would be in attendance on the date set down (see [5]);

    iii.However, on the date of the hearing, being 9 July 2018, the applicant attended at the Tribunal around one hour after the Tribunal had scheduled the hearing. He presented to Tribunal staff however was told that his hearing had concluded;

    iv.Later the same day, the applicant provided the Tribunal by email with a medical certificate in an attempt to explain his absence from the hearing;

    v.The Tribunal took no further steps to contact the applicant and concluded the review on 12 July 2018, deciding to affirm the application under review;

    vi.The Tribunal’s decision record discloses no regard to alternate methods of conducting the review, for instance by recourse to its power to seek additional information through s 359/359AA of the Migration Act 1958 (the Act) or adjourns the review, pursuant to s 360(3) of the Act;

    vii.In the circumstances, the Tribunal’s decision to take no further steps to seek information from the applicant or otherwise adjourn the review, was unreasonable, in light of the circumstances of the case which included the following:

    i.The applicant was known to the Tribunal to be unrepresented in relation to the review;

    ii.The applicant had attended on the day of the Tribunal hearing and attempted to explain his absence by way of a medical certificate;

    iii.The Tribunal knew that the applicant had limited English and required and (sic) interpreter and was therefore unable to freely correspondent with the Tribunal to explain his absence in writing;

1. The applicant relies on his affidavit affirmed on 13 August 2018: Exhibit A1, in which he relevantly deposes that:

   4.The Tribunal invited me to attend a hearing in my case on 9 July 2018. However, on the day I was running late for the hearing, as I was unwell. I believe that I arrived at 10:00am in the morning, when the hearing was supposed to be at 9:00am. I told the Tribunal staff who I was but they told me that the hearing was finished. I later emailed the Tribunal with a copy of a medicate (sic) certificate to explain why I was late to the hearing, but I did not hear back from the Tribunal.

2. The applicant also relies on a second affidavit he affirmed on 18 October 2024: Exhibit A2, which is more akin to a submission in which he asserts, citing Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459 at 465 [29]-[30], that the Tribunal was required to have regard to the matters in support of the reinstatement application pursuant to s 426A(1C) to the Act and the failure to consider the compelling reasons for his absence – being his medical certificate – amounts to a denial of procedural fairness and so plainly, jurisdictional error. He also deposed that he was unable to attend the scheduled Tribunal hearing because of a medical condition for which he sought medical treatment. He deposed that once he obtained a medical certificate, he contacted the Tribunal to provide necessary documentation but was told that the Tribunal had already made a decision, and that reinstatement was no longer possible because a final decision had been rendered.

3. At the hearing before me, the applicant said that a friend had helped him prepare his grounds of review and the submissions set out in his second affidavit. The applicant said that he was running late for the Tribunal hearing because of illness and that he was driven to the hearing by a friend. On the way to the hearing, he presented at Chemist Warehouse in Collins Street where he sought assistance for his illness and obtained the earlier mentioned certificate. He said that when he and his friend attended the Tribunal, he attempted to give the certificate to a staff member, but the staff member refused to accept it. He said the friend who had driven him to the Tribunal has since left the country. 

4. Putting to one side the applicant’s misconceived reliance on Singh in connection with the Decision and to which I will return, in substance the applicant asserts that the Tribunal’s decision is affected by legal unreasonableness. The version of events given at the hearing recorded above is not recounted in either the first or second affidavit and its veracity is doubted. But in any event, it is not particularly material to the issue whether the Tribunal’s decision is affected by legal unreasonableness because the question whether the Tribunal’s decision is so affected is to be assessed by reference to that which was before or known to the Tribunal at the time it exercised power, and factual circumstances not before the Tribunal are not relevant to the allegation of legal unreasonableness: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 at [37] (Overturned in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103 but not on this point); Minister for Home Affairs v DUA16 [2020] HCA 46, 271 CLR 550 at [26]; Parker v Minister for Immigration and Border Protection [2016] FCAFC 185, 247 FCR 500 at [60], [77].

5. As Kiefel CJ, Bell, Keane, Gordon and Edelman JJ observed in DUA16 at [26]:

   A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".

   (citations omitted)

6. Whether the exercise of statutory power is legally unreasonable is to be determined having regard to the statutory context under which the power is exercised: DNK17 at [66]. As noted in DUA16 whether the exercise of power was legally reasonable turn on the circumstances of the exercise of the statutory power – the facts and matters which fall for consideration in exercising the power. A legally reasonable decision is reached not only because the decision has an intelligible justification but also because the decision is arrived at through an intelligible decision-making process: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, 269 CLR 439 at [20]; DNK17 at [67]. And the focus in assessing whether a decision is legally reasonable remains squarely on the reasons in fact given: DNK17 at [86].

7. Where, as here, the Tribunal invited the applicant to appear before it pursuant to s 425 of the Act (as then in force) but the applicant did not appear at the time and place at which he was scheduled to appear, the Tribunal has a discretionary power to 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) (as then in force), or to dismiss the application without any further consideration of the application or information before the Tribunal: s 426A(1A)(b). The Tribunal is not bound to undertake either course described above and it may instead adjourn the review hearing: s 427(1)(b) (as then in force) and then reschedule the applicant’s appearance before it or delay the decision to enable the applicant to appear at a rescheduled hearing: see s 426A(2). Dismissing the application under s 426A(1A)(b), would have preserved for the applicant a right to seek reinstatement: s 426A(1B).

8. It is uncontroversial that where an applicant for review does not appear at a scheduled Tribunal hearing, the discretionary powers available in s 426A of the Act are subject to an implied condition that the powers not be exercised unreasonably. The unreasonable exercise of statutory power which is material will amount to jurisdictional error. The first respondent submits that there was no jurisdictional error in the Tribunal’s exercise of power under s 426A(1A)(a).

9. As the applicant’s particulars to his sole ground of review disclose, the applicant contends the Tribunal’s decision is attended by legal unreasonableness because the Decision does not disclose any consideration to alternate methods of conducting the review – by recourse to its power to seek additional information through ss 359 and 359AA of the Act (as then in force) or adjourning the review pursuant to s 360(3) of the Act (as then in force). Since the Tribunal’s decision concerns a Pt 7 reviewable decision, those provisions have no application, but I deal with the contention as though the references were to the corresponding provisions in Pt 7 of the Act – ss 424 and 424AA (as then in force). And given the reference to an adjournment, I take the reference to s 360(3) as intending to refer to s 363 (as then in force) and so take it as a reference to the corresponding Pt 7 provision – s 427 (as then in force). The circumstances the applicant says are relevant to determining that the Tribunal’s failure to take any further step to seek information from him or otherwise adjourn the review was unreasonable, are set out in paragraph (vii) of the particulars earlier reproduced.

10. The issue raised in DNK17 which rendered the Tribunal’s decision to determine the review application exercising power under s 426A(1A)(a) of the Act legally unreasonable is not raised by the applicant, but given the Tribunal in the instant case also acted under s 426A(1A)(a) to determine the applicant’s review application, the issue plainly arises and is addressed first below.

11. In DNK17, the Court (Horan J) had to determine whether it had been legally unreasonable for the Tribunal to decide the review under s 426A(1A)(a) of the Act, rather than dismissing the application under s 426A(1A)(b). Horan J reasoned that it was unreasonable for the Tribunal to proceed to determine the review without explaining why it had chosen to do so instead of dismissing the review, particularly because the applicant made 3 requests for an adjournment – 2 of which were granted, and the third denied on the morning of the hearing. However, DNK17 does not, in my view, stand as a general proposition that it will always be unreasonable for a decision-maker exercising power in s 426A(1A)(a) of the Act rather than (b) of the Act, to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing if reasons for doing so are not articulated. Sometimes those reasons will be obvious or may reasonably be inferred from the circumstances. Ultimately the whole of the circumstances, taking into account the nature and purpose of the power exercised and the statutory context in which the power is exercised, must be considered in assessing whether the exercise of power in a particular circumstance was unreasonable. Put another way – whether there is an intelligible justification for the decision arrived at through an intelligible decision-making process.

12. Identifying legal unreasonableness is “invariably fact dependent”, and turns on the particular factual circumstances in each case rather than an analysis of factual similarities and differences between individual cases: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [84] (per Nettle and Gordon JJ); DNK17 at [72]. And so there is a limit on the utility of comparing the circumstances and outcome of one case with another: DNK17 at [72].

13. The reasons the Tribunal proceeded to determine the matter and exercise the power of s 426A(1A)(a) of the Act are set out at [4] and [5] of the Decision which are earlier reproduced. The first respondent properly accepted that the reasons are untidy in that they wrongly refer on several occasions to the applicant by the pronoun “she”, contain a wrong date and seem to suggest in the same paragraph that the applicant both responded and did not respond to the hearing invitation sent to him by the Tribunal. But it is accepted that reasons for a decision of an administrative decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error, because the reasons are meant to inform and not to be scrutinised over-zealously on judicial review by seeking to discern whether there is some inadequacy in the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259 at 271-272; Collector of Customs v Pozzolanic [1993] FCA 456, 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. I agree with the first respondent that both the wrong date (13 June 2017 instead of 13 June 2018) and wrong pronoun use are typographical errors, and careless though the errors may be, these errors do not disclose jurisdictional error: S14/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34]; FRH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 404 at [42]. And I accept that the latter error is explicable because before the Tribunal were two visa applicants – the applicant and his former fiancé. The Decision read as a whole, discloses that the Tribunal was aware the applicant is male: see for example Decision at [12].

14. As to the Tribunal’s reference to the applicant “not respond[ing] to the invitation to attend a hearing”: Decision at [5], when read in context it seems clear that the reference intended to convey that the applicant did not respond in the sense that he did not attend the hearing as scheduled. The reference appears immediately after the Tribunal indicated that although the applicant was sent “the Tribunal’s SMS mobile phone reminders also, the applicant did not attend the hearing”. The Tribunal had already noted in the opening sentence of the same paragraph that the applicant “provided to the Tribunal his Response to Hearing Invitation in which he indicated that he would be attending the hearing scheduled for 9 July 2018 and that he required the assistance of an interpreter in the Malaysian and English languages” (bold emphasis in original). That the Tribunal first referred to the provision of a “Response to Hearing Invitation” is a reference to the title of the form the Tribunal attached to its invitation to attend the hearing. The later reference indicating the applicant had not responded to the invitation to attend the hearing, without reference to the form title, is a reference to the failure to attend. The two references in separate sentences read in context clearly suggests that each is dealing with different propositions.

15. Turning next to the applicant’s submissions in his second affidavit. There the applicant appears to consider that the Tribunal made a decision under s 426A(1A)(b) of the Act to dismiss a matter for non-appearance and then made a decision under s 426A(1C) confirming the dismissal of the application. The applicant contends that the Tribunal should have taken account of various matters in making its s 426A(1C) decision. The submissions are misconceived as the Tribunal did not make decisions under ss 426A(1A)(b) or (1C). It proceeded under s 426A(1A)(a). No right to apply for reinstatement arose. The applicant’s reference to and reliance on Singh, is similarly misconceived as Singh was concerned with the exercise by the Tribunal of the corresponding dismissal power in s 362B(1A)(b).

16. Returning then to the actual reasons the Tribunal gave for deciding to proceed to make a decision on the review, the Tribunal noted the applicant had been informed that the Tribunal could not make a decision favourable to him on the basis of the material before it and so invited him to attend the hearing. The Tribunal noted that the applicant was informed of the consequences of failing to attend the hearing; that if he was unable to attend the hearing, he should advise the Tribunal; and that two hearing reminders were sent to the applicant’s mobile phone. It noted the applicant had indicated he would be attending the scheduled hearing but despite reminders he did not attend the hearing and had not contacted the Tribunal to explain his non-attendance. The Tribunal reasoned that the applicant had not sought to further engage with the review process, including by providing further submissions. It is to be noted that the hearing invitation sent to the applicant also invited the applicant to provide or attach any additional information the applicant wanted the Tribunal to consider to the response to hearing invitation form and that no additional information had been provided.

17. I therefore agree with the first respondent that the Tribunal's approach was based on reasoning that since the applicant had been notified of the hearing, informed of the consequences of failing to attend, and yet inexplicably did not attend, it was unlikely he would take advantage of any future opportunity to engage with the Tribunal or the review process. All the more so since, as the Tribunal noted, he had not sought to further engage with the review process. By reason of the applicant’s non-attendance, his failure to provide any further material despite being invited to do so and his failure to contact the Tribunal about his non-attendance before the scheduled hearing began, it was open for the Tribunal to infer that the applicant would not likely seek to take advantage of a future opportunity to engage in the review process. The reasons given by the Tribunal are not lengthy but the evident conclusion that the applicant was unlikely to engage further was open and the reasons as a whole provide an evident and intelligible justification for the decision to proceed under s 426A(1A)(a) of the Act, a decision arrived at through an intelligible decision-making process. And although the reasons make no express reference to s 426A(1A)(b), as it is evident the Tribunal considered the applicant would not likely further engage in the review process, those reasons also provide an evident and intelligible basis for the Tribunal exercising the power under s 426A(1A)(a) rather than (b). Consequently, no jurisdictional error is thereby disclosed.

18. Returning then to the particulars of the review ground raised by the applicant, it is evident that the Tribunal did not seek to take any other step the applicant says it ought to have considered, because it had formed the view, open on the material, that the applicant would not likely further engage with the review. He did not attend at the time scheduled despite reminders. He did not contact the Tribunal before the hearing began seeking an adjournment or explaining his non-attendance. He did not provide the Tribunal with any further information he wanted the Tribunal to consider despite being invited to do so. The applicant’s contention that it was unreasonable for the Tribunal to not seek further information from him, or to otherwise adjourn knowing that he was unrepresented; appeared on the day of the hearing and had a medical certificate; and he required an interpreter as his English was limited take the matter no further. As the first respondent correctly points out:

    (1)the applicant does not have a right to legal representation: SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [30]-[31]; and the Tribunal is not obliged to make its decision in a certain way if the applicant is unrepresented: GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 229 at [85], [90]-[92];

    (2)the Tribunal made its decision on the available evidence that was before it. The Decision is not unreasonable because of events after the decision was made. The applicant arrived at the Tribunal on the day of the hearing but after the hearing had concluded and after the time the Tribunal made its decision. As to the medical evidence, the statement is not a medical certificate – it is prepared by a pharmacist and the statement on the certificate that the applicant is “unfit to work” does not indicate whether the applicant could effectively participate in the hearing: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559; and

    (3)the Tribunal was not obliged to provide the applicant an interpreter prior to the hearing: GCU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 229 at [85]-[89]; and the applicant was informed about interpreting services at the hearing in the ‘Information about hearings – MR Division’ factsheet. In any event, an interpreter was present at the hearing: CB111 and it is not suggested nor is there any evidence that the applicant did not attend the hearing because of any language difficulty.

19. Consequently, no jurisdictional error is disclosed in the ground of review the applicant advanced. Finally, as the applicant was unrepresented before the Court, I have also reviewed the Tribunal's decision and the material in the CB and SCB filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the ground of review the applicant advanced. I have not identified any arguable case of jurisdictional error.

20. The application for judicial review is therefore dismissed.

    Costs

21. The first respondent sought an award of costs in the amount of $5,000.00 in the event the application for judicial review failed. The applicant did not advance any cogent reason why in that event a costs order in the amount sought should not be made. Considering the history of this matter, the result, the work involved as disclosed from the filings, the length of hearing and that the amount sought is less than the amount currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), I consider the costs sought are reasonable and the applicant should pay the first respondent’s costs fixed in the amount of $5,000.00.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       17 February 2025