ERO18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 195
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 195
File number: MLG 2717 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 18 February 2025 Catchwords: MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – no appearance by the applicant at the Tribunal hearing – judicial review – where applicant gave notice that he would not attend the Tribunal hearing – whether the Tribunal unreasonably made a decision on the review pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) – 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) ss 5, 5H(1), 5J(1), 5K, 36, 36(2)(a), 36(2)(aa), 36(2B)(b), 46(2A), 425, 425(a), 426A, 426A(1), 426A(1A)(a), 426A(1A)(b), 426(A)(1B), 426A(2), 427(1)(b), 441A(5), 441C(5), 477(2), 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) sch 2, reg 4.35D(3)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, 269 CLR 439
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, 269 CLR 439
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, 268 CLR 29
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
Minister for Home Affairs v DUA16 [2020] HCA 46, 271 CLR 550
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, 253 FCR 475
Minister for Immigration and Border Protection v SZVFW[2018] HCA 30; 264 CLR 541
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 20 January 2025 Dates of hearing: 30 October 2024 and 23 January 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Cunynghame Solicitors for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2717 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERO18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 11 September 2018 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
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
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 first respondent consented to an order extending the 35-day period to 11 September 2018, and the parties agreed the matter could be listed for a final hearing for the Court to deal with the substantive judicial review application. Lodgement of the judicial review application was delayed by a significant period (some 547 days). Nevertheless in view of the consent position 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 orders by consent accordingly.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 19 March 2016 on an Electronic Travel Authority (Class UD) (Subclass 601) visa: Court Book (CB)111. The applicant’s visa ceased on 19 June 2016 and he remained in the country as an unlawful non- citizen, until he applied for a Protection (Class XA) (Subclass 866) visa on 22 June 2016: CB1-CB37. The applicant claimed to fear harm from Malaysian politicians as he had been vocal about the state of corruption of the local government’s political party and local authorities would not be able to protect him: CB32-CB34. A delegate of the (then) Minister for Immigration and Border Protection notified the applicant on 16 August 2016 that his visa application was invalid because it did not meet the requirements of s 46(2A) of the Act as he had not provided personal identifiers. CB104-CB106.
On 16 August 2016, the applicant validly applied for a Protection (Class XA) (Subclass 866) visa: CB63-CB99 and was granted an associated bridging visa: CB111. In that application the applicant claimed that he was threatened and physically harmed by debt collectors as he was a guarantor for his brother-in-law’s loan, who failed to satisfy the debt. The applicant claimed that he would not be able to seek protection from Malaysian authorities: CB94-CB96. The delegate refused the visa application and the decision record was transmitted to the applicant by email on 13 December 2016: CB107-CB121. The delegate was not satisfied that the applicant was a refugee within the meaning of s 5H(1) of the Act, nor was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a): CB114. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Malaysia, there is a real risk that he would suffer significant harm pursuant to s 36(2B)(b), and was satisfied he could obtain protection from Malaysian authorities. The delegate therefore refused the visa application: CB121.
The applicant applied to the Tribunal for a review of the delegate’s decision: CB122-CB123, receipt of which was acknowledged by the Tribunal on 15 December 2016: CB125-CB126. By correspondence on 16 January 2017, the Tribunal invited the applicant to attend a hearing scheduled for 2 February 2017: CB128-CB129, and enclosed an ‘Information about hearings – MR Division’ factsheet, and a ‘Response to hearing invitation – MR Division’ form requesting the applicant confirm his 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 completed the form on or around 21 January 2017: CB131-CB133, and emailed the form to the Tribunal on 22 January 2017 under cover of a subject line “cannot attend hearing”: CB130 indicating that he will not appear at the hearing because (reproduced verbatim):
i don’t have money to attending hearing because i don’t have work right at the moment i stay at griffith
The applicant also indicated in the form that he requested the Tribunal take oral evidence by telephone from his father as a witness to “my brother in law and myself”: CB132. Acting on the Tribunal Member’s instructions, a Tribunal staff member telephoned the applicant on his mobile phone on 30 January 2017. As the call was not answered, the staff member sent an email to the applicant seeking clarification whether he intended “[n]ot to attend a hearing”, or if he intended to seek a postponement of the hearing, to provide the Tribunal a written request seeking a postponement. The email also informed the applicant that if a postponement is not granted and the hearing proceeds as scheduled, the Tribunal Member may proceed to decide the matter on the information before the Tribunal: CB134.
The applicant was sent two text messages by the Tribunal – on 25 January 2017 and 1 February 2017 – reminding him of the hearing scheduled for 2 February 2017: CB135. The Tribunal attempted to contact the applicant by telephone on 31 January, 1 February and approximately half an hour after the start of the scheduled hearing on 2 February 2017. The Tribunal received no response from the applicant: CB143. The applicant did not attend the scheduled hearing: CB143. By its decision made on 6 February 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa: CB141. The applicant was notified of the Tribunal’s decision and was provided with a copy of its Statement of Decision and Reasons (Decision): CB142-CB147, and an extract of ss 5 and 36 of the Act: CB148-CB150.
TRIBUNAL’S DECISION AND REASONS
The Tribunal sets out at [1]-[7] of the Decision a brief summary of the application for review and its reasons for deciding to make a decision on the review without taking any further action to enable the applicant to appear before it, which are set out below:
3.On 16 January 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 22 January 2017, the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. However, the applicant also stated that he did not have any money to attend a hearing because he does not have work rights and is staying in Griffith. He indicated that an interpreter in the Malay language was required and nominated his father residing in Malaysia as a witness.
4.The Tribunal attempted to contact the applicant by phone on 31 January 2017 (sic), with the assistance of an interpreter, to clarify if he was seeking a postponement of the hearing scheduled on 2 February 2017 or if his intention was to not attend a hearing. The Tribunal also sought to confirm with the applicant his current contact address as the details he had provided the Tribunal was an address in Mooroopna, Victoria. The Tribunal was unable to speak to the applicant as he was not available and subsequently sent him an email on 31 January 2017 (sic) seeking to clarify his intention in respect of the hearing, that is whether he was seeking a postponement or did not wish to attend, and also confirming his current residential address.
5.The Tribunal did not receive a response to either the phone call or email sent to the applicant on 31 January 2017 and attempted to contact the applicant again on 1 February 2017, with the assistance of an interpreter, to clarify his intention in relation to attending a hearing in light of his response to the hearing invitation. The applicant was unavailable and a message was left for him to call the Tribunal back as an urgent matter.
6.The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The Tribunal waited half an hour after the scheduled commencement time of 9:30am, after which it attempted to call the applicant twice at approximately 10am, with the assistance of an interpreter, however the applicant's phone was switched off. At the time of making this decision, the Tribunal has not received any response from the applicant.
7.In these circumstances, and pursuant to s.426A of 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. his matter has therefore been determined on the evidence available to the Tribunal.
At [8]-[13] of the Decision, the Tribunal sets out the relevant protection visa criteria by reference to ss 5H(1), 5J(1), 5K and 36 of the Act, Sch 2 to the Migration Regulations 1994 (Cth) (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.
As noted in the extract above, as the applicant did not attend the scheduled hearing, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s 426A of the Act (as then in force). At [14]-[19] of the Decision, the Tribunal summarised the applicant’s claims as set out in his protection visa application, and at [21]-[27] set out its findings and reasons, concluding that the delegate’s decision under review should be affirmed: at [20].
The Tribunal noted that the applicant provided very little detail about the following matters as disclosed in his visa application:
(a)how the applicant became a guarantor for his brother-in-law’s loan; why his brother-in-law failed to pay back the loan; and the surrounding circumstances and particulars of the alleged loan agreement: at [22];
(b)how his brother-in-law escaped and what efforts he made to try to locate him; how, by whom, and when the applicant was threatened; the threats made; who splashed red paint on the applicant’s car and house; and what abusive words were written and where: at [23];
(c)how, by whom, and when was the applicant hit and threatened; and the circumstances or details of the police report the applicant claimed to make: at [24]; and
(d)the circumstances of his relocation to Kuala Lumpur: at [25].
In the absence of further information, and an inability to make further inquiries of the applicant at the hearing about the claims, the Tribunal was not satisfied that:
(a)the applicant’s brother-in-law borrowed any money and that the applicant stood as a guarantor for the alleged loan: at [22];
(b)the applicant’s brother-in-law ran away without paying back the loan: at [24]; and
(c)the applicant relocated to Kuala Lumpur as a result of any problems he experienced from people to whom his brother-in-loan was indebted: at [25].
The Tribunal noted at [26] of the Decision the discrepancies in the reasons for seeking protection in the applicant’s two visa applications. The first visa application made no mention of fear of harm from debt collectors, nor that he was a guarantor for his brother-in-law’s loan. The Tribunal found it difficult to accept his claimed reasons for protection in the second application given none of the allegations were mentioned in the first application.
The Tribunal concluded at [27] of the Decision that it did not accept the applicant:
(1)was a guarantor for a loan which was taken out by his brother-in-law;
(2)was pursued by his brother-in-law’s debtors;
(3)was threatened with violence; red paint was splashed on his car and house; and abusive words written to him;
(4)made a police report in relation to the alleged incidents;
(5)relocated to Kuala Lumpur; and
(6)will be harmed if he returns to Malaysia by the people his brother-in-law allegedly borrowed money from or anyone else.
Overall, the Tribunal was not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm: Decision at [28]. Consequently, as 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, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: at [29]-[32].
PROCEEDING IN THIS COURT
By application filed on 11 September 2018 in the (then) Federal Circuit Court of Australia, the applicant seeks judicial review of the Tribunal’s decision. The applicant’s grounds of application are as follows:
1.The tribunal stated that as it was unable to contact me it made a decision without allowing me to appear before it.
2.However, there was no reasonable possibility of me attending as I was the victim of fraud. Therefore it was unreasonable and unfair for the AAT to reach a decision without allowing to appear.
3.Therefore the decision of the tribunal is incorrect.
CONSIDERATION
The substantive ground of review raised in the judicial review application is that the Tribunal acted unreasonably in determining the applicant’s review application without allowing him to appear (or perhaps to take some other step before determining the application).
During the hearing of the judicial review application, it became clear that the applicant’s allegation that he was a victim of fraud set out at [2] of his grounds of application was concerned with his explanation for the delay in making the judicial review application rather than the matter before the Tribunal. He said that he did not prepare the review grounds and relied on a lawyer employed by the (then) National Union of Workers. The applicant also told the Court that he did not answer his mobile telephone when called by the Tribunal, as earlier noted, because he was told by his friend not to answer the call. The applicant said that his friend also told him not to attend the Tribunal hearing because the “migration department” will be waiting for him at the Tribunal to apprehend him. The applicant said that his case before the Tribunal was not strong and that he did not submit enough evidence but wanted an opportunity to do so.
The applicant’s bare assertion of unreasonableness is not particularised, and the applicant could not elaborate at the hearing. 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 (as then in force) 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 and did not expressly mention s 426A(1A)(b), the issue plainly arises and is addressed further below.
The first respondent contends that the substantive application should be dismissed because the Tribunal was entitled to determine the application on the papers without taking further action to enable the applicant to appear and did not exercise the power unreasonably. The first respondent also contends that following the applicant’s failure to appear at the hearing, the Tribunal gave intelligible reasons for exercising power under s 426A(1A)(a) of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it and that those reasons also provide an intelligible basis for the Tribunal exercising that power rather than the dismissal power under s 426A(1A)(b).
A requirement that the exercise of an administrative decision-maker's power be legally reasonable is found by implication from the statute: Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [63]; Minister for Home Affairs v DUA16 [2020] HCA 46, 271 CLR 550 at [26], including an implication of the required threshold of unreasonableness, which is usually high: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [11], [52], [89], [135]; DUA16 at [26]. Whether there has been any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, 269 CLR 439 at [101]; DUA16 at [26] and it is not to be assessed through the lens of procedural fairness to the applicant: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, 253 FCR 475 at 491 [67]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, 268 CLR 29 at [34]; DUA16 at [26]. 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": Li at [76]; DUA16 at [26].
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].
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), 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) will preserve for an applicant a right to seek reinstatement: s 426A(1B).
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.
Turning first to whether the Tribunal’s decision is affected by legal unreasonableness of the kind identified in DNK17. In DNK17, the Court 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), 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.
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].
In the instant case, the Tribunal outlined the circumstances which led it to conclude that it should exercise power under s 426A(1A)(a) of the Act. The Tribunal noted in its Decision that:
(a)it had written to the applicant on 16 January 2017 advising him that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone and so invited the applicant to give oral evidence and present arguments at a hearing: at [3];
(b)the applicant had advised the Tribunal on 22 January 2017 that “he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it”: at [3];
(c)the applicant also stated that he did not have any money to attend a hearing because he does not have work rights and was staying in Griffith: at [3];
(d)it attempted to contact the applicant by phone, with the assistance of an interpreter, on 31 January 2017 to clarify whether he was seeking a postponement of the hearing or if his intention was to not attend a hearing: at [4];
(e)it subsequently sent him an email on 31 January 2017 seeking to clarify whether the applicant was seeking a postponement or did not wish to attend: at [4];
(f)it did not receive any response to either the call or the email correspondence: at [5];
(g)it attempted to contact the applicant on 1 February 2017, with the assistance of an interpreter, to clarify his intention about attending a hearing in light of his response to the hearing invitation but the applicant was unavailable and a voice mail message was left for him to call the Tribunal as an urgent matter: at [5];
(h)the applicant did not appear at the scheduled hearing: at [6];
(i)about half an hour after the scheduled commencement it attempted to call the applicant on two occasions with the assistance of an interpreter, but the applicant's phone was switched off: at [6]; and
(j)at the time it made the Decision, the Tribunal has not received any response from the applicant: at [6].
Two observations should first be made about the Tribunal’s reasoning. First, the Tribunal’s reference to contacting the applicant and corresponding with him by email on 31 January 2017 is erroneous. The email was sent on 30 January 2017: CB134 and given the email was sent following an unsuccessful attempt to call the applicant, it seems clear enough that the call was also made on 30 and not 31 January 2017. But the error is typographical rather than substantive. The call was made, and the email was sent. Second, the Tribunal’s reference to the applicant consenting to the Tribunal proceeding to decide the review without taking any further action to allow or enable him to appear before it is not accurate. The applicant did not in terms consent to that course. But read fairly, I consider the Tribunal intended to convey that since the applicant knew by indicating he would not attend the hearing that the Tribunal may proceed to decide the application for review without taking any further action to allow or enable him to appear before it. This was because the response to hearing invitation completed by the applicant contained that information immediately above the question asking the applicant whether he would take part in the hearing scheduled for 2 February 2017: CB131.
It is evident from the Tribunal’s articulated reasons that it decided to take the course it was empowered by s 426A(1A)(a) of the Act in the circumstances to take, because it had formed the view that the applicant would not likely engage further with the review. That conclusion was open on the material before the Tribunal. The applicant said he was not attending the hearing; he had not sought an adjournment; he had not responded to the Tribunal’s various attempts to contact him in the days before and shortly after the commencement time for the scheduled hearing; and he made no attempt to contact or communicate with the Tribunal between the date of the hearing (2 February 2017) and the Decision (6 February 2017). The reasons given by the Tribunal as a whole appear to me to provide an evident and intelligible justification for the decision to proceed under s 426A(1A)(a) of the Act, a decision arrived at through and intelligible decision-making process. Further, although the reasons make no express reference to s 426A(1A)(b), as it is evident the Tribunal considered the applicant would not likely engage further in the review process, the Tribunal’s reasons also provided an evident and intelligible basis for the Tribunal exercising the power under s 426A(1A)(a) rather than (b). No jurisdictional error is thereby disclosed.
Returning then to the applicant’s more general and unparticularised contention that it was unreasonable for the Tribunal to determine the review application under s 426A(1A)(a) of the Act without allowing him to appear. As earlier noted, the Tribunal’s power under s 426A(1A)(a) of the Act is discretionary and exercisable if the Tribunal invited the applicant to appear before it pursuant to s 425 but the applicant did not appear at the time and place at which he was scheduled to appear: s 426A(1). Here, as the background earlier recited records, by letter dated 16 January 2017, the Tribunal invited the applicant to appear before it at a hearing scheduled on 2 February 2017. The letter advised the applicant that the Tribunal could not make a decision favourable to him on the material it had alone. I accept the first respondent’s contention that the Tribunal’s hearing invitation complied with the requirements in ss 425 and 425A and there is no suggestion to the contrary – the Tribunal gave the applicant notice of the day, time and place of the scheduled hearing; the invitation was transmitted by email to the email address provided by the applicant in his application for review: s 441A(5) (as then in force); the period of the notice given was more than the prescribed period: s 441C(5) (as then in force) and reg 4.35D(3) of the Regulations (as then in force); and the invitation contained a statement on the effect of s 426A of the Act.
The Tribunal’s hearing invitation contained 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 . . .
. . .
Please read and complete the enclosed 'Response to hearing invitation - MR Division' form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider . . .
The response to hearing invitation form completed by the applicant and returned to the Tribunal indicated he would not take part in the scheduled hearing and contained the following:
Part 1 - Who will take part in the hearing?
Please note that if you select 'No' in response to the following question, we may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before us.
Will you take part in the hearing scheduled for 2 February 2017?
(Please indicate 'Yes' or 'No' for each review applicant.)
No additional information was included with or attached to the completed response to hearing invitation form. The applicant thus gave notice that he would not take part in the hearing. And that notice was given in the knowledge that:
(a)the Tribunal could not, on the material before it, make a decision favourable to him;
(b)he could provide additional information he would like the Tribunal to consider when returning the form; and
(c)if he did not attend the hearing the Tribunal may make a decision on the review without taking further action to allow or enable him to appear before it.
As already noted, the Tribunal made several attempts by phone and email to contact the applicant to clarify whether he intended to not attend the hearing or whether he sought an adjournment. The applicant did not return calls, nor did he respond to the email. Two reminder text messages about the hearing were sent to the applicant. On the day of the hearing, the applicant did not attend at the scheduled time and two further attempts to contact him by telephone were made without success.
In these circumstances, the Tribunal’s decision to exercise its discretion under s 426A(1A)(a) of the Act was one within the range of decisions a decision-maker acting reasonably could have made. The Tribunal’s decision, made in the circumstances described, was not one to which no reasonable decision-maker could have come. No jurisdictional error is disclosed.
For completeness, the first respondent also submitted that DNK17 was wrongly decided, but given my conclusions above, it is unnecessary to deal with that submission. Finally, because the applicant was unrepresented before the Court, I have also reviewed the Tribunal's decision and the material in the CB filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the grounds of review the applicant advanced. I have not identified any arguable case of jurisdictional error.
The applicant’s application for judicial review is therefore dismissed.
Costs
The first respondent sought an award of costs in the amount of $8,371.30 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 consistent with 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 by the first respondent are reasonable and the applicant should pay the first respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 18 February 2025
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