EGA19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 614
•1 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGA19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 614
File number(s): SYG 2795 of 2019 Judgment of: JUDGE MCCABE Date of judgment: 1 May 2025 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – exercise of the discretion to proceed under s 426A(1A)(a) of the Migration Act1958 after the applicant failed to appear – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 425, 425A, 426A, 441A, 441C, 441G
Migration Regulations 1994 (Cth) reg 4.35D
Cases cited: AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 26 March 2025 Place: Sydney Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms K Evans, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2795 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGA19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
1 MAY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $5,000.
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 MCCABE:
Mr EGA19 seeks a protection visa. After a delegate of the first respondent (the minister) refused the application for a protection visa in 2016, Mr EGA19 asked the Administrative Appeals Tribunal to review the decision. The Tribunal sent a hearing invitation to Mr EGA19 at the email address of the person he had nominated as his authorised recipient of communications. The hearing invitation said the Tribunal was unable to make a decision that was favourable to the applicant without more information. It identified the time and date of the hearing and explained the matter might be dismissed or a decision might be made in the applicant’s absence if he did not appear. Mr EGA19 says his authorised recipient did not pass on the hearing invitation and he did not attend the hearing.
The Tribunal decided to make to a decision on the application in the absence of Mr EGA19. Not surprisingly, given the hearing invitation had foreshadowed the Tribunal was not satisfied it could make a favourable decision on the information available, the Tribunal affirmed the decision under review. In its reasons for decision, the Tribunal made clear Mr EGA19 had failed to provide sufficient information to make out his claim. In doing so, it repeatedly emphasised the decision was made “[o]n the available evidence”. I am not satisfied the Tribunal’s reasons for decision exhibit any material jurisdictional error. The Tribunal correctly identified the criteria applicable to the award of protection visas. It asked itself the correct question and referred to the evidence before it to reach its conclusion. At the hearing before me, Mr EGA19 was unable to identify any errors in the Tribunal’s decision: it was apparent he simply preferred a different outcome.
Having said that, the Tribunal’s election to proceed to make a final determination when Mr EGA19 failed to appear at the hearing requires careful scrutiny in light of the Federal Court’s decision in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975; see also AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423. The reasons for decision did not expressly address why the Tribunal chose to proceed under s 426A(1A)(a) of the Migration Act 1958 (Cth) when it could have decided to adjourn the matter or dismiss the application for non‑appearance under s 426A(1A)(b). A matter dismissed under s 426A(1A)(b) can be the subject of a reinstatement application, whereas a decision under s 426A(1A)(a) renders the Tribunal functus officio. The Tribunal’s election to proceed in this case raises a question over whether the decision which resulted was unreasonable. As it happens, I am not satisfied the decision is unreasonable. I explain my reasons below
Background
Mr EGA19 is a citizen of China. He entered Australia on a visitor visa in December 2015. That visa was valid until 28 March 2016. On 22 March 2016 – just a few days before his visitor visa was due to expire – Mr EGA19 applied for a Protection (Class XA) (Subclass 866) visa (the protection visa which lies at the heart of these proceedings). His application for a visa is reproduced in exhibit one (the court book) at pp 1ff.
Mr EGA19 attached a statement to his application (at pp 41ff) which said he had joined an underground Christian church in China in January 2013. His statement said the Chinese government did not approve of underground Christian churches. He claimed the police had learned of his membership in the church. They told him to stop attending. Mr EGA19’s statement said he recalled the police saying they would arrest and imprison him if he was caught attending meetings. In his application, he said he feared persecution or harm if he remained in China on account of his Christian faith. He said he came to Australia to escape all that.
The delegate asked the applicant to attend an interview and answer questions about his claim. The applicant attended but the delegate was not satisfied with the evidence provided. The delegate’s concerns were set out in the statement of reasons which accompanied the delegate’s decision to refuse the application for a protection visa. That decision is dated 4 November 2016. A copy of the decision is reproduced in the court book at pp 65ff. Mr EGA19 thereafter sought review of that decision in the Tribunal.
The Tribunal’s review
The application for review form is reproduced in the court book at pp 85‑86. The form includes an invitation to nominate an authorised recipient of correspondence with the Tribunal. The form lodged by (or on behalf of) Mr EGA19 asks that correspondence with the Tribunal be directed to Ms Mengmeng Fu. The form records her postal address, her email address at a Gmail account, and her mobile phone number. The Tribunal’s letter acknowledging receipt of the application was addressed to the applicant and sent to Ms Fu’s email address on 6 December 2016: court book at pp 88ff.
Neither the applicant nor Ms Fu provided any additional information in support of the claim when the application was filed, or thereafter.
The next correspondence following the application documents comes in the form of a hearing invitation. The invitation was addressed to Mr EGA19 but sent to Ms Fu’s email address on 29 August 2019. A copy of the hearing invitation is reproduced in the court book at pp 93ff. The invitation noted the application for review but adds: “[w]e have considered the material before us but we are unable to make a favourable decision on this information alone”. The notice went on to invite Mr EGA19 to appear at a hearing on 2 October 2019 to give evidence and present arguments.
The hearing invitation was issued pursuant to s 425A(1). The invitation contained all the information required by that section. The invitation was issued more than 14 days before the listed event, thereby satisfying the requirements in s 425A(3) and reg 4.35D(3) of the Migration Regulations 1994 (Cth). The invitation was communicated in accordance with the requirements in s 425A(2) because it was transmitted by a method prescribed in s 441A (i.e., email) to the nominated address of the authorised recipient. The Tribunal was required to correspond with that person under s 441G(1), and it was entitled to assume its correspondence was given to the applicant (s 441G(2)) and that the applicant received the document at the time specified in s 441C(5).
The hearing invitation also satisfied the requirement in s 425A(4) which said the invitation must contain a statement of the effect of s 426A of the Act. The notice said:
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.
It follows the hearing invitation was valid and the Tribunal was entitled to assume it had reached the applicant. The invitation included a ‘Response to Hearing Invitation – MR Division’ form that the recipient was asked to return. The response form asked the applicant to confirm his attendance at the hearing. That form also invited the applicant to provide additional information in support of his claim which might be considered at the hearing.
Neither Ms Fu nor Mr EGA19 responded to the hearing invitation. They did not return the ‘Response to Hearing Invitation’ form nor did either of them contact the Tribunal in advance of the hearing.
Following what I understand is its usual administrative practice, the Tribunal’s registry sent ‘SMS’ reminders in advance of the hearing to the mobile phone number of Ms Fu which was listed with the Tribunal. Tribunal records confirm both of those ‘SMS’ messages failed: court book at p 113.
Mr EGA19 did not attend the Tribunal hearing on 2 October 2019. He told me from the bar table that Ms Fu had not passed on the hearing invitation. The Tribunal proceeded to hear and determine the application in Mr EGA19’s absence.
The Tribunal’s decision
The preamble
The Tribunal’s decision to affirm the delegate’s decision to refuse the visa is dated 2 October 2019, although notice of the decision was not sent to Mr EGA19 at Ms Fu’s address until 3 October 2019. Nothing turns on that delay. I note Mr EGA19 wrote to the Tribunal on his own behalf on 9 October 2019. In that email, which is reproduced at p 108 of the court book, Mr EGA19 advised the Tribunal that he had changed his email address. He asked for the Tribunal’s decision to be sent to him at his new address.
The Tribunal’s decision and statement of reasons is reproduced in the court book at pp 98ff. The reasons for decision begin with a truncated summary of the history of the matter. The Tribunal thereafter sets out a conventional exposition of the criteria applicable to the grant of a protection visa under s 36(2) of the Act and related provisions. The Tribunal noted the applicant “did not provide any information or evidence in support of his claims” at the time of his application: reasons for decision at [13]. The Tribunal then summarised (a) the written claims made by the applicant at the time of the application for a protection visa, and (b) the information provided in the department interview on 26 September 2019. The Tribunal thereafter discussed the lodgement of the review application with the Tribunal. It noted the Tribunal had access to the relevant contents of the file that was before the delegate but added the applicant did not provide any further information in connection with the application for review apart from a copy of the delegate’s decision.
The decision to proceed in the applicant’s absence
At [20] of its reasons, the Tribunal noted Mr EGA19 had been sent a hearing invitation which included a warning about what might happen if he did not attend. The Tribunal also noted the two ‘SMS’ hearing reminders sent in advance of the hearing had “failed to deliver”. The Tribunal then recorded (but did not explain) its decision to make a determination in the applicant’s absence (at [21]):
The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as requested). In these circumstances and pursuant to the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal did not refer to s 426A(1A)) of the Act, and did not otherwise explain why it chose to proceed under s 426A(1A)(a) which authorised the Tribunal to proceed to make a decision in the applicant’s absence. It did not mention the alternatives of adjourning the hearing or dismissing the proceedings for non-appearance under s 426A(1A)(b). Adjourning the hearing or dismissing under s 426A(1A)(b) would not have foreclosed the possibility of further engagement with the Tribunal. I will return to this issue below.
The substantive reasons for decision
The Tribunal’s assessment of Mr EGA19’s claims commenced at [24] of its reasons for decision. At the outset of that discussion, the Tribunal noted:
The mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).
The Tribunal then pointed out at [25]: “The only information before the Tribunal is the applicant’s own assertion of the facts which are outlined in his written application and statement.” Subsequently, the Tribunal observed (at [32]) an applicant was responsible for providing all the information required to establish they satisfy the criteria for the grant of a protection visa. In the six paragraphs that followed, the Tribunal explained that “[o]n the available evidence” the Tribunal was not satisfied Mr EGA19:
·would be persecuted if he returned to China because he was part of an underground church (at [33]);
·joined the church because of a family breakdown or because a relative said she was cured of an ailment through divine intervention (at [34]);
·was visited by the police in October 2015 who warned him against involvement with the underground church (at [35]);
·was baptised in Australia or regularly attended church in this country after he arrived here (at [36]); and
·would be unable to relocate to another area in China where membership of churches was allowed (at [38]).
The Tribunal also said (at [37]):
On the available evidence the Tribunal does not accept that the Chinese government’s attitude to underground religious beliefs or “the existence of underground Christians” necessarily means that that the applicant faces a real chance or real risk of serious or significant harm if he were to return to China in the reasonably foreseeable future. [Emphasis added]
On the basis of those factual findings, the Tribunal concluded it was not satisfied Mr EGA19 met the criteria for a protection visa in s 36(2)(a) or the alternative criteria in s 36(2)(aa).
The application for judicial review
At the outset of the hearing, I explained the concept of jurisdictional error to Mr EGA19. I emphasised to Mr EGA19 that the Court’s role was limited to scrutinising the Tribunal’s decision to determine if it was affected by an error that was such that the decision under review should be quashed and remitted to the Tribunal so the Tribunal could decide the matter again according to law. I referred to examples of jurisdictional error that might derail the Tribunal’s decision, including:
·Unreasonableness – because the decision under review was illogical or lacked evident or intelligible justification having regard to the facts.
·The Tribunal misunderstood or misapplied the relevant law.
·The Tribunal failed to engage appropriately with relevant evidence or submissions.
·There was a denial of procedural fairness or an apprehension of bias.
I emphasised it was not enough to merely disagree with the outcome in the Tribunal. Mr EGA19, who required the assistance of an interpreter, indicated he understood that.
Mr EGA19’s application for review identified four grounds:
1.There exists unfairness because my claims were ignored.
Tribunal should consider my claims carefully even if I did not attend hearing.
2.Tribunal does not consider whether the delegate disclosed all relevant information to me.
3.Tribunal did not believe my claim without sufficient grounds.
It is well known there is no freedom of religion and Chinese government does not allow the existence of family church.
4.Tribunal did not fairly consider what would happen to me if I return to China.
The minister provided written submissions and Ms Evans appeared on the minister’s behalf to make oral submissions at the hearing. These submissions addressed the grounds of review set out in the application. In the course of her submissions, Ms Evans addressed the questions over the Tribunal’s exercise of the discretion to decide the matter under s 426A(1A)(a) in light of the applicant’s non-appearance – a matter I will come to below. I heard from Mr EGA19 after the exchange with Ms Evans. Mr EGA19 told me he was not involved in the drafting of the grounds of review. He was unable to say who was responsible for what had been written. He declined to comment on what was said in the grounds. I asked him to explain his criticisms of the Tribunal’s decision in his own words.
Mr EGA19 said he was unable to identify any error in the Tribunal’s decision like that which I had described in my discussion of jurisdictional error. I invited him to explain in his own words the substance of any criticism he wanted to make of the Tribunal’s decision, but he declined.
I will now deal with the grounds of review referred to in the application (and set out above at [26]).
I should say at once that the second ground is misconceived because it refers to the actions of the delegate. Section 476(2) of the Act confirms the Court has no jurisdiction in relation to a ‘primary decision’. It follows the rights and wrongs of the delegate’s conduct and decision are irrelevant for present purposes. To the extent the ground refers to the Tribunal failing to ensure the delegate disclosed information to the applicant, it is unclear what was meant. Mr EGA19 knew the basis of the delegate’s decision, and it appears the Tribunal had before it the information that was before the delegate. There is no suggestion any of that information was withheld from the applicant.
Grounds one and four are not made out. Those grounds contend the Tribunal failed to engage with the applicant’s claims – in particular, the claim that he would be persecuted or harmed if he returned to China on account of his membership of the underground church. But the Tribunal did address those claims with reference to the material before it at the hearing. It explained its reasons for not being satisfied the applicant faced the risk of harm or persecution in the relevant sense at [39]‑[40]. Those conclusions were drawn in light of the findings of fact set out in [33]‑[38] which I have already summarised. Mr EGA19 was unable to identify any gaps or shortcomings in those findings of fact. It does not appear the Tribunal missed anything in the limited material before it as it made its decision.
The third ground must also fail. While Mr EGA19 asserts religious intolerance is ‘well known’ in China, the Tribunal addresses the (admittedly limited) evidence about that fact. It decided it was not satisfied the claim was made out on the available material. The Tribunal was not required to undertake its own research to confirm the claim. The finding is not illogical or irrational or otherwise at odds with the evidence, such as it was.
I am satisfied none of the grounds of review are made out. Mr EGA19 was unable to identify any other grounds of review when he appeared before me at the hearing.
The exercise of the discretion to proceed under s 426A(1A)(a) of the Act after the applicant failed to appear
That brings me to a question over the Tribunal’s exercise of the discretion to make a final decision when the applicant failed to appear at the hearing on 2 October 2019. Mr EGA19 did not press an argument that the Tribunal’s decision was unreasonable in light of the way it exercised the discretion. Indeed, when I asked him what he made of the Tribunal’s approach to his non-attendance, he refused to criticise the Tribunal. It is nonetheless important that I deal with the issue.
There is no question over the validity of the hearing invitation. The invitation was communicated and deemed to be received in accordance with the legislative requirements – although the applicant said from the bar table that he was not aware of the invitation because Ms Fu failed to pass it on to him. The operation of s 441G means the Tribunal is entitled to assume the applicant was on notice of the hearing in any event.
The Tribunal noted the SMS reminders ‘bounced back’, but did not say anything about the significance of that fact. The Tribunal did not thereafter explain it had a choice to make about how it should proceed in light of the non-appearance of the applicant. In particular, the Tribunal did not mention the possibility of adjourning and relisting the hearing, and it did not mention the alternative of dismissing the application under s 426A(1A)(b) which would have permitted the applicant to seek reinstatement. The Tribunal simply announced (at [21]) its intention to make its decision on the review.
The Tribunal is not required to expressly articulate its reasons for electing to proceed under s 426A(1A)(a), nor is it required to expressly refer to the alternative courses that did not foreclose further engagement with the Tribunal’s processes. That much was made clear in the Federal Court’s decision in DNK17 at [102] per Horan J. But as Horan J explained in DNK17 (at [99]), “… the decision by the Tribunal must [still] be within the bounds of legal reasonableness, and must have an evident and intelligible justification.” Where the reasons do not offer an express explanation for the Tribunal’s decision to proceed as it did, DNK17 suggests (at [94]) one must look to “the ‘decision-making pathways’ that were reasonably open to the Tribunal”.
In this case, the Tribunal issued the hearing invitation because – as the invitation explained – it was unable to make a decision in the applicant’s favour without additional material. The hearing was the opportunity to provide that information and answer questions that would enable the Tribunal to test the applicant’s credit. Testing the applicant’s credit was important because much of the story he told was not corroborated by objective evidence. The Tribunal made clear in its reasons at [25]-[38] that it was dissatisfied with the level of detail provided in support of the claims.
I acknowledge the clause in the hearing invitation referring to the purpose of the hearing is routinely included in the documents sent to applicants pursuant to s 425. Section 425(1) explains the Tribunal must issue the hearing invitation so the applicant might give evidence and present arguments. That right is forfeited in certain circumstances that are not relevant here, but s 425(2) says the Tribunal is not required to invite the applicant to a hearing where it considers it already has sufficient information to make a decision in the applicant’s favour. But the statutory requirement to invite the applicant to a hearing does not change the underlying function of the hearing for present purposes. The hearing was the opportunity for the applicant to fill gaps in his case and defend the information and claims he had already made. It was also an opportunity for the Tribunal to test that evidence.
If that was the purpose of the hearing, why did the Tribunal elect to proceed in the applicant’s absence to make a decision on the basis of the inadequate material before it?
There may be good reasons for proceeding under s 426(1A)(a) in a particular case rather than simply dismissing the proceedings under s 426A(1A)(b). For example: the Tribunal may be confident nothing further could be elicited that would make any difference to its deliberations in that case; alternatively, there may be reason to believe the applicant does not wish to engage with the Tribunal. In such circumstances, proceeding to make a final decision on the claims might be a proper choice. Where those reasons are not explicitly referenced, it must be possible to infer them from the statement of reasons or the circumstances of the case. Provided those reasons suggest an ‘evident and intelligible justification’ for proceeding to make a decision, the decision to do so is reasonable.
While the Tribunal in this case does not clearly explain its thinking in the statement of reasons, it is possible to divine an explanation for the course it adopted from the circumstances. At [21] of the statement of reasons, the Tribunal notes the applicant did not appear at the hearing, nor did he respond to the hearing invitation. That observation was made against a background in which the applicant had not otherwise engaged with the review process by providing any additional information in support of his claim beyond that which was included in the application for review: at [13]. That material was exceptionally thin, as the Tribunal proceeded to demonstrate in its reasons. The absence of engagement clearly weighed on the Tribunal’s deliberations, as evidenced by the Tribunal’s reference (at [32]) to the applicant’s responsibility for providing information in support of its claims. It appears the Tribunal justified its decision to proceed on the basis that it was unimpressed with the applicant’s efforts on his own behalf. To put it differently, the Tribunal’s reasons for decision make it tolerably clear that it was sceptical there would be anything further forthcoming from the applicant given the lack of engagement demonstrated up to that point, so it was therefore appropriate to dispose of the matter once and for all. This lack of engagement can be contrasted with the positive engagement demonstrated by the applicants in DNK17 and AMU19 prior to the hearing.
It is troubling that the Tribunal did not appear to give any weight to the fact the two ‘SMS’ reminders were marked as undelivered: at [20]. That should have given the Tribunal pause before proceeding, because it may have indicated the applicant was not informed of the hearing (although I note the Tribunal was entitled to assume the notice had been delivered, and the ‘SMS’ reminder service was not required under the legislation). Having said that, I accept the undelivered ‘SMS’ messages were also consistent with the applicant being disengaged and effectively abandoning the claim.
Conclusion
It is not for me to criticise the wisdom or desirability of the Tribunal’s approach in this case. Whether I would have made the same decision in the Tribunal’s shoes is not the issue. The only question for me to decide is whether there is an evident and intelligible justification for proceeding as it did. I accept there is – for reasons I have explained.
The applicant has failed to make out any of the grounds of review articulated in his application. I am not satisfied the decision is affected by any material jurisdictional error. The application for review must therefore be dismissed.
That leaves the question of costs. The minister has asked for costs to be awarded in a fixed amount of $5,000. I was told that amount approximates the costs actually incurred in the proceedings. I accept it is below the amount indicated in the Court’s scale. Mr EGA19 did not have anything of substance to say about costs.
I am satisfied it is appropriate to make an order for costs in favour of the minister in the fixed amount of $5,000. I am satisfied that amount reflects the work that was appropriately discharged on the case. It is appropriate that costs follow the event: there is no question the minister has incurred costs in preparing and defending the application for review, and those costs will otherwise be met out of public monies. While I am conscious the applicant has limited means at his disposal, that is not a reason to refrain from ordering costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 1 May 2025
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