ESB25 v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1164
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ESB25 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1164
File number(s): SYG 36 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 23 July 2025 Catchwords: MIGRATION – judicial review – Administrative Appeals Tribunal dismissed application after applicant failed to appear at hearing – whether decision of Tribunal legally unreasonable – Tribunal received written notice of appointment of authorised recipient after inviting applicant to hearing – whether Tribunal’s failure to notify authorised recipient of hearing involved procedural unfairness
COSTS – whether inability of applicant to meet costs order against him relevant to making or amount of order
Legislation: Migration Act 1958 (Cth) ss 357A, 362B, 422B, 425A, 426A, 427, 441G, 476
Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Cases cited: DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
ESB25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 666
Gehlert v Minister for Immigration & Multicultural Affairs [2024] FCAFC 12
Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393
Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 549
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 1 July 2025 Place: Parramatta Applicant: In person Counsel for the Respondents: Claire Roberts Solicitor for the Respondents: Minter Ellison ORDERS
SYG 36 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESB25
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $5,900.
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 ZIPSER
INTRODUCTION
On 6 January 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of decisions of the Administrative Appeals Tribunal (Tribunal) dated 26 November 2020 and 11 December 2020. The Tribunal, in its decision dated 26 November 2020, dismissed the applicant’s protection visa application without further consideration when the applicant failed to appear at a hearing before the Tribunal (Dismissal Decision). The Tribunal, in its decision dated 11 December 2020, confirmed the dismissal decision (Confirmation Decision).
For the reasons that follow, the application to this Court is dismissed.
FACTUAL BACKGROUND
The following background is based on documents in a Court Book (CB) filed and served by the first respondent in March 2021.
In December 2016, the applicant, a citizen of China, arrived in Australia on a tourist visa.
In March 2017, the applicant applied for a protection visa.
In April 2017, a delegate of the first respondent made a decision refusing to grant the applicant a protection visa.
In May 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
On 23 April 2019, the Tribunal received an “Appointment of Representative” form signed by the applicant appointing Mr Jingxin Wu as his representative and authorised recipient. The form included two contact email addresses for Mr Wu (CB 116).
On 26 April 2019, Mr Wu sent an email to the Tribunal from one of the two email addresses in the Appointment of Representative form (Gmail Address).
On 21 October 2020, the Tribunal emailed to Mr Wu at the Gmail Address (CB 121) a letter to the applicant inviting him to attend a hearing at 1 pm on 26 November 2020 (Hearing Invitation) (CB 123–125). The letter stated in part:
The number we have for you is [phone number]. Please advise if this is not the correct number or if you would prefer us to call you on another number …
I will refer to the phone number in the letter as the “Applicant’s Number” although, as explained below, it is not clear the phone number was the applicant’s number.
On 26 October 2020, the Tribunal received an “Appointment of Representative” form signed by the applicant appointing Ms Billie Wei Shi as his representative and authorised recipient (CB 135-137). The form included a contact email address for Ms Shi (Shi Email Address). Ms Shi wrote in a covering email:
Dear Sir/Madam,
Please be advised that the above mentioned applicant has appointed me to be his representative for his appeal application to AAT.
We would like to take this opportunity to make an inquiry about his current application processing status such as whether his application is still under assessment of AAT and waiting to be allocated a Member.
Best Regards,
On 28 October 2020, the Tribunal received an email from Mr Wu (CB 138). Mr Wu wrote:
We have not received any response from the applicant [applicant’s name] by today. Please feel free to contact me if you need further information.
On 19 and 25 November 2020, the Tribunal sent text messages to the Applicant’s Number which contained reminders of the hearing on 26 November 2020.
On 26 November 2020, a case note records the following efforts by the Tribunal to contact the applicant (CB 141):
Attempted to contact the applicant three times at 12:45PM, 1:00PM, and 1:30PM, on the provided number, [Applicant’s Number]. Each attempt was greeted by an automated voicemail message.
On the second attempt, with the help of a Mandarin interpreter, a message was left asking the applicant to call the Tribunal back on [phone number] in regards to the hearing scheduled for 1:00PM.
An attempt to contact the Migration Agent [Ms Shi] was also made, however, it was unsuccessful and rang until a voicemail messaged was reached.
The applicant did not appear at the hearing on 26 November 2020.
On 26 November 2020, upon the applicant not appearing at the hearing, the Tribunal made the Dismissal Decision, in which the member dismissed the application under s 426A(1A)(b) of the Act (CB 152-153). On the same day, the Tribunal emailed to Ms Shi (at the Shi Email Address) a letter to the applicant attaching the Dismissal Decision and information about applying to reinstate the application within the specified period of 14 days (CB 147-153).
On 11 December 2020, the Tribunal, in circumstances where the applicant had not applied to reinstate the application, made the Confirmation Decision (CB 157–159). On 14 December 2020, the Tribunal emailed to Ms Shi a letter to the applicant attaching the Confirmation Decision (CB 155-156).
Although the point does not affect the analysis below as to whether there is a jurisdictional error in one or both of the Tribunal’s decisions, there is no evidence before the Court which explains why the applicant, following receipt by Ms Shi of the letter dated 26 November 2020 attaching the Dismissal Decision, did not apply to the Tribunal within the specified period to reinstate his application.
TRIBUNAL’S DECISIONS
Dismissal Decision
The Tribunal at [1]-[3] recorded the written communications between the Tribunal and applicant’s representatives between 21 and 28 October 2020 – see paragraphs 10 to 12 above.
The Tribunal at [4] recorded the Tribunal’s attempts on 26 November 2020 to contact the applicant and Ms Shi – see paragraph 14 above.
The Tribunal concluded at [6]-[7]:
[6]The applicant did not return the Tribunal's call. He has not requested a postponement of hearing or provided any explanation as to why he was unavailable to participate in his scheduled hearing.
[7]The applicant did not appear by conference telephone before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5), the invitation was not returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. No satisfactory reason for the non-appearance was given.
Confirmation Decision
The Tribunal at [2]-[4] recorded the written communications between the Tribunal and applicant’s representatives between 21 and 28 October 2020.
The Tribunal at [5] recorded the Tribunal’s attempts on 26 November 2020 to contact the applicant and Ms Shi.
The Tribunal at [8] recorded that on 26 November 2020 it made the Dismissal Decision.
The Tribunal concluded at [9]-[10]:
[9]The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
[10]As the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 1 July 2025
On 6 January 2021, the applicant lodged in this Court an application for judicial review of the Tribunal’s decision which contained the following grounds (as written) (Judicial Review Application):
1. I wasn't notified about the hearing which was scheduled to me by AAT. I wasn't given a fair opportunity to clarity about my protection claims to AAT member.
2. I lost contact with my first appointed agent Mr. Wu and I appointed a new agent on 26 October 2020, long before the scheduled hearing which was 26 November, 2020. AAT failed to notify the new agent about the scheduled hearing which neither she nor I were aware of at the time. We didn't know about the hearing until the final decision was made.
3. AAT has failed to properly notify me or the agent about the upcoming hearing, which led to their final decision to dismiss my application.
The applicant stated in an accompanying affidavit lodged on 6 January 2021:
1. I have never received any invitation to attend hearing scheduled by AAT.
2. My representative agent has never received the invitation letter.
3.I appointed Mr. Wu to act on my behalf to lodge appeal application to AAT in 2017. However I lost contact with him. On 26 October 2020 I appointed another agent Ms. Shi to act on my behalf to keep contact with AAT regarding my application.
4. Ms. Shi has never received any notification about the hearing. From AAT's decision record I understood that they sent an invitation letter to my previous agent on 21 October 2020, while they realized on 26 October 2020 that I had changed a new agent. AAT failed to pass on the invitation letter to my new agent even though Ms. Shi wrote an email inquiring about my application.
5. AAT officers failed their legal responsibility to notify me, nor my agent about the upcoming hearing. There were plenty of time for AAT to contact my agent or me about the hearing between 26 October 2020 to 26 November 2020. They had my mobile number.
6. In the email Ms. Shi sent to AAT she stated, "We would like to take this opportunity to make an inquiry about his current application processing status such as whether his application is still under assessment of AAT and waiting to be allocated a Member." To that email she received an auto reply of acknowledgement of receipt, and after that email she had never received any further correspondence until the final decision. No letter of invitation to a hearing was ever received.
Although the affidavit indicates that the applicant was in contact with Ms Shi in and after November 2020, as stated above, the applicant does not explain why, following receipt by Ms Shi of the letter dated 26 November 2020 attaching the Dismissal Decision, he did not apply to the Tribunal to reinstate his application.
On 11 March 2021, a registrar of the Court made procedural orders, including that the applicant file and serve by 3 June 2021 any amended application and any affidavit containing additional evidence upon which the applicant proposed to rely.
Following a period of inactivity, on 9 April 2025 there was a directions hearing before a registrar at which the parties appeared by telephone. On application of the first respondent, the registrar listed the matter for hearing of a summary dismissal application on 8 May 2025 (Summary Dismissal Application) and made other orders, including that the applicant file and serve by 2 May 2025 any amended application, a written submission and any further evidence in opposition to the Summary Dismissal Application. The applicant did not file further materials before 8 May 2025.
On 8 May 2025, there was a hearing of the Summary Dismissal Application before a registrar of the Court.
On 9 May 2025, the registrar made a decision dismissing the Summary Dismissal Application. The registrar provided written reasons: see ESB25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 666 (Registrar Summary Dismissal Decision). The registrar also made procedural orders listing the Judicial Review Application for hearing before me on 1 July 2025 and directing that the applicant file and serve by 3 June 2025 any amended application, an outline of written submissions and any additional evidence.
On 17 June 2025, the first respondent filed a written submission.
The applicant did not file any further materials before the hearing on 1 July 2025.
Hearing on 1 July 2025
At the hearing in this Court on 1 July 2025, the applicant appeared unrepresented, assisted by a Mandarin interpreter. Claire Roberts of counsel appeared for the first respondent.
The applicant did not bring to the hearing a copy of the Court Book served on him by the first respondent in March 2021. The first respondent’s lawyers gave the applicant a second copy of the Court Book. I directed the applicant’s attention to the Tribunal’s decisions in the Court Book. I explained to the applicant that, if he wants to win his case in the Court, he must persuade the Court there is a jurisdictional error, which I described as a significant mistake or error, in one or both of the Tribunal’s decisions.
Ms Roberts tendered a copy of the Court Book (CB).
I read the affidavit of the applicant dated 5 January 2021. Although some sentences in the affidavit were not admissible on a proper application of the rules of evidence, the affidavit usefully explained the applicant’s complaint in relation to the Dismissal Decision – that neither he nor Ms Shi (the migration agent he appointed on 26 October 2020) were aware of the hearing before the Tribunal on 26 November 2020, and the Tribunal ought to have “pass[ed] on the invitation letter to…Ms Shi”, and “failed their legal responsibility to notify me nor my agent about the upcoming hearing”.
I invited the applicant to make oral submissions. He stated that he did not receive notice from the Tribunal about the hearing on 26 November 2020.
Ms Roberts then made oral submissions.
CONSIDERATION
Ground 1
First sentence of ground 1
The applicant complains in the first sentence of ground 1 that he “wasn’t notified about the hearing” on 26 November 2020.
On 21 October 2020, which was the day the Tribunal emailed the Hearing Invitation to Mr Wu, in light of the Appointment of Representative form received by the Tribunal on 23 April 2019 (CB 116), Mr Wu was the applicant’s authorised recipient – see s 441G(1) of the Act. The Tribunal emailed the Hearing Invitation to Mr Wu at the Gmail Address (CB 121), which was an email address provided by Mr Wu in the Appointment of Representative form.
Pursuant to s 441G(1) and (2) of the Act, the Tribunal was required to send the Hearing Invitation to Mr Wu and, in doing so, the Tribunal was “taken to have given the document to the applicant”. Further, Mr Wu confirmed by his email dated 28 October 2020 (CB 138) that he received the Hearing Invitation. It follows that the Tribunal notified the applicant of the hearing in accordance with the requirements of the Act.
That Mr Wu may not have informed the applicant about the hearing does not mean the Tribunal erred in its obligation to notify the applicant of the hearing. That the Tribunal received a further Appointment of Representative form on 26 October 2020, appointing another migration agent (Ms Shi) as his authorised recipient (CB 135-137) did not invalidate the Tribunal’s act on 21 October 2020 in sending the Hearing Invitation to Mr Wu.
For the above reasons, the contention in the first sentence of ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Second sentence of ground 1
The applicant complains in the second sentence of ground 1 that he “wasn’t given a fair opportunity to clarify about my protection claims to AAT member”.
In the Registrar Summary Dismissal Decision at [24], the registrar appropriately identified this complaint as raising a question as to whether the Tribunal exercised the power in s 426A(1A)(b) of the Act to dismiss the application in a legally unreasonable manner.
Section 426A relevantly provided at the time of the Tribunal’s decisions:
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b) confirm the decision to dismiss the application, by written statement under section 430.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b)the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430
On 26 November 2020, upon the applicant not appearing at the hearing, the Tribunal had three options available to it as follows:
(a)It could exercise the power in s 426A(1A)(a) to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”.
(b)It could exercise the power in s 426A(1A)(b) to “dismiss the application without any further consideration of the application or information before the Tribunal”, in which case the applicant had the opportunity to, within 14 days after receiving notice of the dismissal decision, “apply to the Tribunal for reinstatement of the application”.
(c)It could exercise the power in s 427(1)(b) to “adjourn the review” and send an invitation to Ms Shi (the new authorised recipient) giving notice of a new hearing date.
The Tribunal must exercise its procedural powers in a legally reasonable manner: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 549 (SZVFW) at [4], [53], [80]. Where “reasons are provided [by the Tribunal], they will be a focal point for [the Court’s] assessment” of legal unreasonableness: SZVFW at [84].
In the Dismissal Decision the Tribunal stated at [2]-[7]:
[2] On 21 October 2020 the review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal by conference telephone on 26 November 2020 at 1 pm. The invitation stated that if he did not participate in the telephone hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The applicant was also advised of the telephone number the Tribunal intended to use. He was asked to advise the Tribunal if this was not the correct number or if he would prefer the Tribunal to use another number to contact him. The hearing invitation was sent to the authorised recipient using the email address provided in connection with the review. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. Those messages were successfully transmitted. The applicant did not provide an alternative telephone number.
[3]On 26 October 2020 the Tribunal received an appointment of representative form signed by the applicant appointing Ms Billie Shi, registered migration agent to act as his representative and authorised recipient.
[4]On 28 October 2020 the applicant's former registered migration agent, Mr Jingxin Wu, wrote to the Tribunal advising that he had not received a response from the applicant in relation to the hearing invitation.
[5]On the day and time of the scheduled hearing a Tribunal officer attempted to contact the applicant three times, at 12:45pm, 1 pm and 1:30pm, using the number provided in connection with the review. The officer reached an automated voicemail message. On the second attempt, with the assistance of a Mandarin interpreter, a message was left asking the applicant to call the Tribunal in relation to his scheduled hearing for 1 pm. An attempt was also made to contact the current migration agent however this was unsuccessful as the officer reached an automated voicemail message.
[6]The applicant did not return the Tribunal's call. He has not requested a postponement of hearing or provided any explanation as to why he was unavailable to participate in his scheduled hearing.
[7] The applicant did not appear by conference telephone before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5), the invitation was not returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. No satisfactory reason for the non-appearance was given.
Whether a procedural decision is legally unreasonable “will inevitably be fact-dependent”: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 1 at [48]; SZVFW at [84]. In the Registrar Summary Dismissal Decision at [24], the registrar identified the following facts which might raise a question as to whether the Tribunal’s decision to dismiss the application under s 426A(1A)(b), rather than adjourn the hearing under s 427(1)(b), was legally unreasonable:
(1) The Tribunal had received correspondence (namely, the email from the applicant’s new migration agent Ms Shi – CB 135) after it sent the hearing invitation which (at least) heavily implied that the applicant and Ms Shi were not aware of that invitation or the hearing to which it referred;
(2) The Tribunal did not provide a substantive response to Ms Shi’s email; and
(3)The person to whom the hearing invitation had been transmitted by the Tribunal (the applicant’s former agent Mr Wu) had expressly told the Tribunal that he had not received any response from the applicant about the hearing invitation (CB 138), which ought to have raised a question in the mind of the presiding Tribunal member as to whether the applicant was himself aware of the hearing referred to in that invitation.
The nub of the registrar’s concern (at [25]) was that “it is at least arguable that a trial judge looking at the two emails I have identified (and the Tribunal’s failure to …substantively respond to the email from Ms Shi) could conclude that it was legally unreasonable for the Tribunal to proceed to dismiss the application for non-appearance under s 426A(1A)(b), and that the circumstances instead compelled the Tribunal to adjourn the hearing under s 427(1)(b) and issue an invitation for the new hearing to the applicant’s new migration agent and authorised recipient, Ms Shi.” The registrar, after explaining why he was not persuaded by the first respondent’s submissions that this ground had no reasonable prospects of success, added at [39]:
In those circumstances, and for all the reasons I have given, I am satisfied that it is at least arguable that this is a case like Kaur in which the relevant history of pre-hearing contact between the applicant and the Tribunal meant that the Tribunal was required to take further steps prior to dismissing the applicant’s review application for non-appearance (such as forwarding the hearing invitation to Ms Shi and/or adjourning the hearing and sending the invitation for the new hearing to Ms Shi), and that the Tribunal’s failure to take those steps constituted a form [of] legal unreasonableness that vitiated the dismissal decision (see, in particular, Mortimer J’s analysis at [138]-[141]; FCR 428-429)
The determination of whether an exercise of a statutory power is legally unreasonable “is informed [in part] by the terms, scope and policy of the statute”: SZVFW at [59].
As discussed by Horan J in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17) at [57]-[60], the option of dismissal with a right to seek reinstatement in s 426A(1A)(b) (Dismissal-Reinstatement Option) was introduced into s 426A by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (2015 Amendment Act). Prior to that time, if a review applicant failed to appear at a hearing under Part 7 of the Act, s 426A(1) empowered the Tribunal only to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, while preserving the Tribunal’s power under s 427(1)(b) to adjourn and reschedule the hearing. In relation to the new power of dismissal conferred by s 426A(1A)(b), as explained in DNK17 at [59], the relevant Explanatory Memorandum stated in part that the new power:
(a)“is intended to increase tribunal efficiency by providing for a quick resolution of a case where, despite the accordance of procedural fairness, the applicant for review has not attended the hearing”; and
(b)“would allow the RRT to focus resources away from matters that are not actively being pursued by the review applicant”.
In short, a statutory purpose of the Dismissal-Reinstatement Option, introduced into s 426A by the 2015 Amendment Act, was to provide a balance between:
(a)“increas[ing] tribunal efficiency” as explained in the Explanatory Memorandum referred to in the above paragraph; and
(b)providing applicants with an additional or further opportunity to appear at a hearing before the Tribunal.
The effect of the Dismissal-Reinstatement Option on the exercise of power under s 426A for proceedings under Part 7 of the Act (and its equivalent provision in s 362B for proceedings under Part 5 of the Act), and judicial review of the exercise of that power, is apparent from comparing the decisions in Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393 (Kaur) (discussed in the Registrar Summary Dismissal Decision) and EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 (EBS17).
In Kaur, decided before the addition of the Dismissal-Reinstatement Option to ss 362B and 426A of the Act, where an applicant did not appear at a hearing before the Tribunal, the only two options available to the Tribunal were to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it” (see ss 362B(1) and 426A(1)) or adjourn the review under ss 363(1)(b) or 427(1)(b) respectively. When the applicants in Kaur did not appear at a hearing before the Tribunal, the Tribunal made a decision on the review (in which it affirmed the delegate’s decision not to grant the applicants visas) rather than adjourn the review to allow the applicants a further opportunity to attend a hearing. On the particular facts of the case, Mortimer J at [141] concluded that “the Tribunal’s exercise of power under s 362B(1) was legally unreasonable”.
In contrast, in EBS17, decided after the addition of the Dismissal-Reinstatement Option to ss 362B and 426A of the Act, when the applicant in EBS17 did not appear at a hearing before the Tribunal, the Tribunal exercised the power in s 426A(1A)(b) to dismiss the application, as a result of which the applicant had an opportunity to apply to the Tribunal for reinstatement of the application, although the applicant did not take up this opportunity. Instead, the applicant applied to the court for judicial review of the Tribunal’s decision. The applicant contended in the Federal Court that the Tribunal acted unreasonably in dismissing the application under s 426A(1A)(b), rather than adjourning the review. In response to the applicant’s attempt to rely on Kaur and another Federal Court decision, Lee J stated at [19]:
… there is always some danger in relying on analogies in such a context — dependent inquiry as to whether or not a statutory power has been exercised unreasonably, particularly in the absence of close consideration of how the scope of the authority conferred by the statutory power may differ between different cases. What was absent from the submissions of both parties was a recognition that an important distinguishing feature of both AZAFB and Kaur is that the impugned decisions in those cases were made under predecessor sections of the Act, which did not include the specific power of dismissal subject to a reinstatement application and confirmation of dismissal: see AZAFB (at 147 [13]) and Kaur (at 398–9 [8]).
His Honour concluded at [22]:
… given the circumstances referred to in s 426A(1) of the Act were enlivened, it was open for the Tribunal to take the course that it took. Indeed, it seems to me that the action of dismissing the application, subject to allowing the reinstatement application to be made, rather than proceeding (in the absence of any application for an adjournment) to adjourn the proceedings unilaterally, was a course plainly within the range of possible acceptable outcomes that are defensible in respect of the circumstances of this case.
I agree that an important distinguishing feature of Kaur is that the impugned decision was made under a predecessor section of the Act, which did not contain the Dismissal-Reinstatement Option.
Once one takes into account the statutory purpose of the Dismissal-Reinstatement Option (see paragraphs 55 and 56 above), as well as its effect (in that it provided applicants with an additional or further opportunity to appear at a hearing before the Tribunal), I consider that, as in EBS17 at [22], “the action of dismissing the application, subject to allowing the reinstatement application to be made, rather than proceeding (in the absence of any application for an adjournment) to adjourn the proceedings, unilaterally, was a course plainly within the range of possible acceptable outcomes that are defensible in respect of the circumstances of this case”; see also Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [105]. Further, the Tribunal’s reasons in the Dismissal Decision at [2]-[7] provide “an evident and intelligible justification” (Li at [76]) for this procedural decision.
It would have been preferable if the Tribunal had responded to Ms Shi’s email dated 26 October 2020 and informed Ms Shi about the hearing on 26 November 2020. However, this oversight by the Tribunal did not cause the Tribunal’s exercise of power on 26 November 2020 (to dismiss the application under s 426A(1A)(b)) to fall outside “the range of possible acceptable outcomes that are defensible in respect of the circumstances of the case” (EBS17 at [22]) or outside the “area of decisional freedom” (Li at [28]) open to the Tribunal.
With reference to paragraph 10 above, there was no evidence before the Court that the applicant or his representative provided the Applicant’s Number to the Department or the Tribunal. However, by letter dated 20 October 2020, which was sent to and (to the knowledge of the Tribunal) received by the applicant’s authorised recipient (see CB 138), the Tribunal asked the applicant to “advise [the Tribunal] if this is not the correct number for” the applicant, and neither the applicant nor recipient provided a different phone number. Even if the Applicant’s Number was not provided by the applicant or his representative to the Department or Tribunal, this also does not cause the Tribunal’s exercise of power on 26 November 2020 (to dismiss the application under s 426A(1A)(b)) to fall outside “the range of possible acceptable outcomes that are defensible in respect of the circumstances of the case” (EBS17 at [22]) or outside the “area of decisional freedom” (Li at [28]) open to the Tribunal.
That the applicant chose, for reasons he has not explained to the Court, not to “apply to the Tribunal for reinstatement of the application” as permitted by s 426A(1B) does not affect an analysis of whether the Tribunal’s earlier procedural decision to dismiss the application under s 426A(1A)(b) was legally unreasonable, and does not convert a procedural decision that was within the range of possible acceptable outcomes into conduct that was legally unreasonable.
As stated above, the applicant complains in the second sentence of ground 1 that he “wasn’t given a fair opportunity to clarify about my protection claims to AAT member”. This complaint, construed generously in the applicant’s favour, raises a question as to whether the Tribunal failed to accord procedural fairness to the applicant by not informing Ms Shi about the hearing on 26 November 2020.
For the following reasons, the Tribunal did not fail to accord procedural fairness to the applicant in a manner which constituted jurisdictional error.
First, the statutory obligation of the Tribunal to invite applicants to appear before the Tribunal at hearings under Part 7 of the Act was contained in Div 4 of Part 7. Section 425A, in Div 4, dealt with the manner in which the Tribunal was to notify applicants of the day, place and time of hearings. I agree with the registrar’s finding in the Registrar Summary Dismissal Decision at [18] that “the hearing invitation given to the applicant in the matter at hand complied with the requirements imposed by ss 425 and 425A of the Act”.
Second, s 422B(1) provided that Div 4 of Part 7 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. In Li at [55] the plurality stated in relation to s 357A(1) in Div 5 of Part 5 of the Act (which was equivalent to s 422B(1) in Div 4 of Part 7) that “the terms of s 357A(1) would appear to leave no room for the implication of the requirements of procedural fairness beyond what is already provided in Div 5”.
Third, even if there was room for the implication of the requirements of procedural fairness beyond what is already provided in Div 4 of Part 7, whether there has been a denial of procedural fairness in a particular case is a fact-dependent enquiry. A relevant fact is that on 26 November 2020 the Tribunal:
(a)dismissed the application under s 426A(1A)(b), and thereby gave the applicant an opportunity to apply to reinstate the application; and
(b)emailed information about this to the applicant’s current authorised recipient, Ms Shi: see CB 147-153.
This conduct by the Tribunal reduces the force of any complaint of unfairness by the Tribunal in not notifying Ms Shi about the hearing on 26 November 2020 in the month between receiving details of her appointment on 26 October 2020 and the hearing date.
For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
The applicant’s principal complaint in ground 2 is that, although the Tribunal received an Appointment of Representative form on 26 October 2020 informing the Tribunal that Ms Shi was the applicant’s new authorised recipient, the Tribunal “failed to notify the new agent about the scheduled hearing”. This complaint is covered by the analysis above concerning ground 1. Just as ground 1 does not identify a jurisdictional error in the Tribunal’s decision, ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
The complaint in ground 3 is covered by the analysis above concerning ground. Just as ground 1 does not identify a jurisdictional error in the Tribunal’s decision, ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, I invited the parties to make submissions on costs. Ms Roberts sought an order that the applicant pay the first respondent’s costs in the sum of $5,900, which was not greater than the first respondent’s solicitor/client costs. This was less than the scale amount of $8,371.30.
The applicant stated that he does not have that much money. However:
(a)In circumstances where the scale amount is $8,371.30, which is “a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case” (Gehlert v Minister for Immigration & Multicultural Affairs [2024] FCAFC 12 at [69]), I consider the amount of $5,900 sought by the first respondent is reasonable.
(b)That the applicant is unable to meet a costs order “does not provide a principled basis for not making a costs order”: Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64 at [8]. The applicant, by making and progressing the application to hearing, has forced the respondent to incur legal costs. I consider that his poverty does not affect a determination of an amount which is fair and just in the present matter. I will make the costs order sought by Ms Roberts.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 23 July 2025
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