FBQ20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 529
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FBQ20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 529
File number(s): SYG 2808 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 16 April 2025 Catchwords: MIGRATION – judicial review – protection visa – applicant failed to appear at a scheduled in-person hearing before the Tribunal – Tribunal exercised discretion under s 426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it – no jurisdictional error disclosed on the basis the Tribunal acted reasonably in exercising the discretionary power in s 426A(1A) – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 425, 426A, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423
Browne v Dunn (1893) 6 R 67
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
ERO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 195
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Re Refugee Review Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 2 April 2025 Date of hearing: 1 April 2025 Counsel for the Applicant: Mr J Young Solicitor for the Applicant: Shamser Thapa & Associates Counsel for the First Respondent: Ms F McNeil Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2808 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FBQ20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
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 Kaur-Bains
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 16 November 2020. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant’s Protection (Class XA) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
The issue raised by the applicant’s ground, is whether the Tribunal exercised the statutory power in s 426A(1A) of the Act reasonably in determining to decide the matter following the non-appearance of the applicant at a hearing before the Tribunal.
The application is dismissed for the following reasons.
BACKGROUND
Protection Visa
The applicant is a citizen of Nepal. On 1 June 2016, he applied for a protection visa and claimed donations were demanded by Maoists on several occasions, including after he sold his livestock from his farming business. The applicant claimed that after he refused to pay the donations his life was threatened, and he feared he would be abducted or possibly killed by Maoists. For that reason, he alleged he came to Australia to escape harm ([20] Tribunal reasons). The applicant provided a statutory declaration dated 30 May 2016 with his protection visa, and other supporting documents, which were prepared with the assistance of a migration agent, Mr Dhruba Dahal, of Shamser Thapa & Associates.
Review by the Tribunal
On 16 March 2017, the applicant applied to the Tribunal for review and named his previous migration agent, Mr Dahal, as his migration agent (Court Book (CB) 107 and 108). By letter dated 18 March 2017, to the migration agent, the Tribunal said if the applicant wished to provide material or written arguments for the Tribunal to consider then such information should be provided as soon as possible (CB 111). The migration agent, on behalf of the applicant, provided no further information or submissions in support of the application for review.
Authorised Representative and Authorised Recipient
On 31 July 2018, the applicant appointed as his authorised representative and authorised recipient of documents, the migration agent by the name of Mr Komal Khatiwada from the same migration firm, Shamser Thapa & Associates (CB 118).
Contact Between Authorised Representatives Prior to the Hearing Invitation Being Sent
Mr Anthony Westenberg from the Tribunal's Registry Support Team contacted the applicant’s migration agent, Mr Khatiwada, and recorded the following in the Tribunal’s case notes (Supplementary Court Book (SCB) 1) (as per original):
2/10/2020 4:10PM
I called the rep to conduct an in-person hearing outreach. He confirmed he would attend the hearing with the applicant, and said he would check and get back to me about any witnesses. I thanked him and hung up.
08/10/2020 9:54AM
I called the rep to confirm whether they would bring any witnesses to the hearing. The rep said he would have to check and get back to me.
13/10/2020 3:14PM
I called the rep, and he confirmed that there are no witnesses and the applicant is also happy with a telephone interview. I thanked him and hung up
Hearing Invitation
On 15 October 2020, the Tribunal sent to Mr Khatiwada as the applicant’s authorised representative and recipient, a letter which invited the applicant to attend a hearing before it in person. The letter confirmed the date, time and location of the hearing. The letter also confirmed a Nepali interpreter would be available to assist the applicant at the hearing. The letter informed the applicant if he did not attend the hearing, the Tribunal may make a decision on the review or may dismiss the application. The letter notified the applicant of his ability to make an application for reinstatement of proceedings within 14 days if there was a dismissal decision (CB 120 to 124).
The Tribunal sent automated hearing reminders via SMS to the applicant’s nominated telephone number recorded in his application on 5 November 2020 as follows (SCB 1):
SMS HEARING REMINDER
SMS hearing reminder sent to the PRA’s mobile number on 5/11/2020 11:01AM
The message sent was:
Reminder- Your AAT hearing is on 12/11/2020. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
The Tribunal also sent the same automated hearing reminder again via SMS to the applicant’s mobile on 11 November 2020 at 11:01am, one day before the scheduled hearing.
Day of the Hearing
On 12 November 2020, the applicant and his authorised representative did not appear at the scheduled hearing before the Tribunal. The notes on the Tribunal’s hearing record are extracted as follows (CB 130 to 132):
8:45am – no sign of [applicant] or [representative] on Tribunal premises. Only Nepali interpreter onsite
9:00am – no sign of [applicant] or [representative] on Tribunal premises. Only interpreter onsite. Member informed.
9:30am – no sign of [applicant] or [representative] on Tribunal premises. Only interpreter onsite. Member informed at 9:40am. Member instructed a ‘No Show’.
The notes, set out in the preceding paragraph, were made by a Bulou Waqaliva, another member of the Tribunal Support Team.
On 16 November 2020, the Tribunal proceeded to determine the matter in the applicant’s absence and affirmed the decision under review not to grant the applicant a protection visa (CB 136 to 142).
TRIBUNAL’S DECISION
The Tribunal recorded at [3], [19] and [20] of its reasons the following:
[3] …The applicant was invited by the Tribunal to appear before it on 12 November 2020 to give evidence and present arguments. He did not respond to the invitation and did not appear before the Tribunal at the time and place scheduled, nor did he make contact with the Tribunal to inform it of any changes to his contact details or any reason why he was unable to attend.
[19] …The applicant has not taken the opportunity to appear at the scheduled hearing. There are many issues that the Tribunal would have wished to explore with the applicant in order to be satisfied of his claims and the claimed harmful circumstances that were the reason that the applicant left Nepal.
[20] …In the absence of the Tribunal being able to explore issues in the hearing, the Tribunal is not satisfied with substantive claims made by the applicant.
At [20] of its reasons, the Tribunal recorded that in the absence of the applicant the Tribunal was not able to explore these issues with him. Therefore, the Tribunal was not satisfied with the substantive claims made by the applicant that donation requests were demanded by Maoists after he sold his cow business and he came to Australia to avoid payment or to escape harm as a result of not making the payment.
Accordingly, the Tribunal found the applicant did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act and was unable to satisfy the criteria under s 36(2) of the Act ([27] to [29] of the reasons).
GROUNDS IN THE APPLICATION
The applicant’s amended application filed on 3 March 2025 contained one particularised ground for judicial review as follows:
The Second Respondent made jurisdictional error by denying the Applicant procedural fairness and or by acting in breach of s 425 of the Migration Act 1958, by depriving the Applicant of the opportunity to appear at a hearing.
Particulars
a) Prior to sending the hearing invitation on 15 October 2020, the Second Respondent contacted the representative of the Applicant, discussed a telephone hearing and was advised that the Applicant "was happy" with a telephone interview.
b) In the circumstances the Applicant and his representative were reasonably entitled to expect to be able to appear via telephone on 12 November 2020 which was during the COVID pandemic.
c) In the circumstances of the day of the hearing on 12 November 2020, the Tribunal should have contacted the Applicant and or his representative by telephone.
The applicant was represented before me by Counsel, Mr Young. Mr Young submitted the ground for review raised in the amended application should be understood as a complaint that the Tribunal in exercising the power in s 426A(1A)(a) of the Act, to make the decision on the review without taking any further action, acted unreasonably in the way Horan J found in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17). The Minister was represented by Counsel, Ms McNeil, who submitted the Minister had understood the ground raised by the applicant was a challenge to the way the Tribunal is said to have exercised the power in s 426A(1A) of the Act.
At the hearing, Mr Young sought to read the affidavit of the migration agent, Mr Khatiwada, who was the authorised representative and recipient of notices at the Tribunal stage. Mr Young submitted, assuming the Court found jurisdictional error, that the relevance of the evidence of Mr Khatiwada was to establish there had been no bad faith on the part of the applicant, in that the applicant wanted to attend the hearing before the Tribunal. Mr Young said the evidence was relevant for the exercise of the Court's decision on granting relief. As said by the High Court in Re Refugee Review Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82, the issue of constitutional writs is a discretionary remedy and can be refused on a number of grounds, including no useful result would ensue, or if there has been bad faith on the part of the applicant (at [56], per Gaudron and Gummow JJ).
The Minister only objected to [9] of Mr Khatiwada’s affidavit, on the basis the first sentence of that paragraph was a conclusion. Mr Young accepted that position and sought leave to obtain evidence orally as to that matter from the deponent. Such leave was granted and Ms McNeil cross-examined Mr Khatiwada. During the cross-examination, Ms McNeil called for Mr Khatiwada’s file notes he said he had made, which file notes were produced, tendered and marked ‘R2’. To the extent Mr Khatiwada’s evidence is relevant to my consideration, I deal with it below.
Mr Young relied on his written submissions filed on 4 March 2025 and further submissions filed on 2 April 2025. The Minister relied on his written submissions filed on 26 March 2025 and further submissions filed on 1 April 2025.
CONSIDERATION
Before dealing with how the applicant put his case, I will identify the legal principles applicable to the exercise of the power that arises under s 426A(1A) of the Act.
Relevantly, at the material time, ss 425 and 426A provided as follows:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
…
Section 426A Failure of applicant to appear before Tribunal
(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.
Tribunal may make a decision on the review or dismiss proceedings
(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.
Reinstatement of application or confirmation of dismissal
(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.
…
(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.
…
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
…
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
It can be seen from ss 425 and 426A, the Act has laid down a framework for the conduct by the Tribunal of a review of a decision. The Tribunal is bound by s 425 to invite the applicant to appear before it to give evidence and present arguments relating to the issues in relation to the decision under review, if the Tribunal considers it cannot decide the review in the applicant’s favour and the applicant has not consented to the Tribunal deciding the review on the papers. If the applicant is invited to appear and does not attend, the Tribunal pursuant to s 426A(1A), can take one of three courses. The Tribunal may decide the review without the applicant appearing, dismiss the application without any further consideration of the application or reschedule the hearing to another day to enable the applicant to attend.
The statutory power in s 426A(1A) has to be exercised within the bounds of reasonableness, which is an implied condition of the statutory conferral of the power: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [4] per Kiefel CJ, at [53] per Gageler J; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63]. The question of the reasonableness of the exercise of power needs to be assessed at the time of the exercise of power (ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [101]) and having regard to the subject matter, scope and purpose of the Act.
In SZVFW, in considering the reasonableness of the Tribunal’s exercise of power in s 426A(1A), Kiefel CJ said at [7], “it is the intention of the scheme of the Migration Act that the Tribunal be permitted to consider the exercise of its power under s 426A if those preconditions are met”. Her Honour also said at [12] and [13] (omitting full citations):
[12] …In Minister for Immigration and Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.
[13] …The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case . Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.
It is also relevant to note the following reasoning of Her Honour in SZVFW at [15] and [16]:
[15] …The crux of the primary judge's reasoning concerning the exercise of the power given by s 426A appears to be that the Tribunal should have exercised it in the respondents' favour because, in a practical sense, it could have done so. This analysis fails to identify an unreasonable decision in the sense explained above. The requirement to be implied in a provision such as s 426A, that a decision maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it.
[16] …The primary judge's reasoning implies an obligation on the part of the Tribunal which would apply in most, if not all, cases where there had been no response to the invitation to attend. No such obligation is to be found as expressed or to be implied in the statute. The fact that the Tribunal could contact the respondents is but a factor which it could take into account in deciding whether to proceed to make its decision on the evidence before it.
The following observations made by Gageler J at [68] to [70] helpfully set out the legislative framework in which the power in s 426A(1A) of the Act is exercised (citations omitted):
[68] …The Tribunal is exhorted to "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to "act according to substantial justice and the merits of the case", and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to "act in a way that is fair and just". Because Div 4 "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with" , the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.
[69] …Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that "no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.
[70] …Nothing before the Tribunal took the respondents' application for review into the realm of the extraordinary. To the contrary, the respondents' failure to respond to the earlier invitation from the Minister's Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggested that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.
Nettle and Gordon JJ in SZVFW said at [97] (citations omitted):
[97] …The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision maker has a genuinely free discretion which resides within the bounds of legal reasonableness.
Their Honours looked at the relevant circumstances of the applicants lack of interaction to find the Tribunal exercised its powers reasonably, including that the applicants were invited to attend an interview before the delegate and did not attend even after being contacted by telephone (at [121] of SZVFW).
I note the question of whether the power in s 426A(1A) has been exercised reasonably has been considered recently in the Federal Court in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 and this Court in numerous cases, including AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423 (Judge McCabe) and ERO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 195 (Judge Gostencnik). The question of whether the Tribunal exercised the power unreasonably needs to be determined in the factual context in which the question arises and therefore it is not prudent to determine the outcome of this case against the outcome of other cases with different factual scenarios.
Turning to this case, there is no issue between the parties that the two preconditions in s 426A(1), to the exercise of the power in s 426A(1A) existed, being the hearing invitation required by s 425 was given to the applicant’s authorised recipient and the applicant did not appear on the day, time and place at which the applicant was scheduled to appear, being in person at the Tribunal’s Sydney location.
The Tribunal, against the backdrop of having sent the invitation to attend the hearing in person, which made clear that if the applicant did not appear, the Tribunal could either proceed to make a decision without taking any further action to allow the applicant to appear or dismiss the application. At [3] of its reasons, the Tribunal set out the following four reasons for deciding to proceed with the hearing in the applicant’s absence, being:
(a)That the applicant had been invited to an in-person hearing to give evidence and present arguments.
(b)The applicant did not respond to the invitation.
(c)The applicant did not appear in-person at the time and place scheduled for the hearing.
(d)The applicant did not contact the Tribunal to provide any reasons why he was unable to attend.
The applicant’s migration agent, Mr Khatiwada, during cross-examination gave the following evidence:
(a)He received the hearing invitation dated 15 October 2020 as the applicant’s authorised recipient and representation.
(b)From reading the letter, he was aware the hearing was scheduled for 12 November 2020 at 9.00am.
(c)From reading the letter, Mr Khatiwada acknowledged it stated the hearing was to be in person before the Tribunal member at the Tribunal’s hearing rooms in Clarence Street, Sydney. However, Mr Khatiwada said because of an earlier conversation with Mr Westenberg, a staff member of the Tribunal, he thought the Tribunal was arranging a hearing by telephone and Mr Khatiwada thought the hearing invitation letter he received was a proforma letter and the reference to the hearing being in person was a mistake as he understood the hearing was to be by telephone.
(d)Even though Mr Khatiwada thought the hearing invitation, by referring to the hearing being in person rather than by telephone, was a mistake, he did not call the Tribunal to query the location of the scheduled hearing.
(e)Mr Khatiwada said he told the applicant on 20 October 2020 to ensure he kept his telephone ready on the day and at the time the hearing was scheduled.
(f)On the day of the hearing, on 12 November 2020, Mr Khatiwada said he sat in his office from 9.00am for a few hours waiting for the Tribunal to call and he assumed the Tribunal must have called the applicant and not Mr Khatiwada as the representative. Mr Khatiwada said on the day of the hearing he did not talk to the applicant but assumed the applicant had spoken to the Tribunal.
(g)Mr Khatiwada said he only learnt the applicant had not been called by the Tribunal when Mr Khatiwada received the Tribunal’s decision dated 16 November 2020.
The file notes produced by Mr Khatiwada were for the period 31 July 2018 to 20 October 2020. For the period 2 October 2020 to 20 October 2020, the file notes were to the following effect:
2 Oct 2020: Anthony from AAT Called – if there is any witness. Need to call back and confirm.
Called client. He did not pick up phone.
Called [applicant] - no answer
8 Oct 2020: Called [applicant] - no answer. Emailed to him to call me. No Response.
12 Oct: [applicant] called. Informed him the Tribunal's question. He said there will be no witness.
13 Oct 2020: Anthony from AAT Called – if there is any witness. I told him there will be no witness and telephone interview is preferred by the client. Anthony said he will arrange a telephone hearing.
15 Oct 2020: Received invitation for hearing. Called him to inform about the hearing did not pick up the phone.
20 Oct 2020: Called [the applicant]. Informed him of the hearing date and advised to keep the telephone ready at the date and time of the hearing.
The Minister suggested there were irregularities with Mr Khatiwada’s file notes and the form of the document was such that it was “capable of being amended after the fact” and “should not be relied upon as a faithful record of the events to which it refers”. Mr Young points out the Minister tendered the file notes, which were called for and did not seek to recall Mr Khatiwada to cross-examine him further on the file notes. The principle in Browne v Dunn (1893) 6 R 67 at 70 and 71, makes clear that before a submission can be made that a witness’ evidence should not be accepted, the witness must be given an opportunity to respond to such an allegation. In this case it has not been suggested to Mr Khatiwada that his notes were amended after the fact, which is a serious allegation. Therefore, in the absence of the file notes being challenged by the Minister, I accept the contents of the file notes.
Mr Young said the most significant entry in Mr Khatiwada’s file notes is that of 13 October 2020, being a contemporaneous note of the conversation between Mr Westenberg and Mr Khatiwada. I accept the file note is evidence that Mr Khatiwada said the applicant preferred a telephone hearing and there were no witnesses to be called. and Mr Khatiwada noted Mr Westenberg said he would “arrange a telephone hearing”. Mr Young submitted that evidence is significant because the Tribunal on the day of the hearing ought to have been aware there had been such a conversation as to the hearing being arranged to be by telephone and, given that fact, the Tribunal should have contacted the applicant and/or his representative by telephone to see if there had been some misunderstanding.
Further, the applicant said if the Tribunal had conducted a simple review of its file, which consisted of the case notes referred to in [7] of this judgment, it would have seen there had been correspondence with the applicant’s representative, which showed a level of engagement with the review process. In those circumstances, Mr Young said it was unreasonable for the Tribunal, over the period of 45 minutes it waited for the applicant to arrive (from 9.00am to 9.45am), not to have called the applicant or his representative.
In this case, having regard to the statutory power, the subject matter of the particular review, the course the review took, the Tribunal’s level of engagement and the applicant and his migration agent’s level of engagement, I find the Tribunal exercised the power in s 426A(1A) of the Act, to proceed in the absence of the applicant, reasonably, for the following reasons.
Even if I was to accept the Tribunal’s file note record at [7] of this judgment was to the effect that on 13 October 2020 the Tribunal was saying to Mr Khatiwada it would arrange a hearing by telephone, it is clear that two days later, as notified by the letter sent to Mr Khatiwada on 15 October 2020, the Tribunal sent a hearing invitation and made it clear the hearing was to be in person. I accept a reasonable decision-maker would have been aware of the conversation recorded in the file note but also find a reasonable decision-maker would have been aware two days later, a written hearing invitation was sent to Mr Khatiwada, the applicant’s migration agent, which made it abundantly clear the hearing was to be in person. A reasonable Tribunal would also have seen the hearing invitation requested the applicant respond to the hearing invitation, and the applicant did not respond to the hearing invitation. Further, a reasonable Tribunal would have been aware the applicant was represented by a migration agent and could assume the migration agent was competent and if confused (as Mr Khatiwada says he was) would avail himself of the opportunity of calling the Tribunal to clarify the position, rather than take no action. Given those circumstances which prevailed at the time the Tribunal was deciding how to exercise the power in s 426A(1A), and in circumstances where it identified the applicant had not responded to the invitation to attend the hearing or made any contact with the Tribunal, the Tribunal’s decision to proceed with the hearing without making any further attempt to contact the applicant by telephone cannot be said to be unreasonable, in the sense used by Gageler J in SZVFW at [69], that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken that course.
Further, given the Tribunal’s hearing invitation clearly set out for the applicant that if he did not appear at the scheduled hearing the Tribunal may proceed to determine the review without taking any other action or dismiss the application, it can be inferred the Tribunal was aware of the options open to it under s 426A and decided to determine the matter rather than dismiss the matter for the four reasons it gave, as outlined at [33] of this judgment. Those reasons have an evident and illegible basis for exercising the power in s 426A(1A)(a), rather than dismissing the application under s 426A(1A)(b). That is, the Tribunal formed the view the applicant did not wish to actively engage with the review process.
Therefore, I find the applicant has not established jurisdictional error that the Tribunal exercised the power in s 426A unreasonably.
CONCLUSION
I will hear the parties as to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 16 April 2025
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