GBM18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 552
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GBM18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 552
File number: MLG 3533 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 17 April 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 – extension of time – substantial delay – merits of the application weigh in the applicant’s favour – satisfied that it is in the interests of the administration of justice to extend time – application for an order extending the 35-day period within which an application under s 477(1) of the Migration Act 1958 (Cth) may be made be extended Legislation: Migration Act 1958 (Cth) pt 7, div 4, ss 5, 5H, 5J(1)(a), 36, 36(2)(a), 36(2)(aa), 411(1)(c), 415(2), 422B(1), 422B(3), 425(1), 425(2), 425A, 425A(4), 426A, 426A(1A), 426A(1A)(a), 426A(1A)(b), 477(1), 477(2), 477(2)(b), 477A(2), 477A(2)(b), 499
Migration Regulations 1994 (Cth) sch 2
Cases cited: BBU15 v Minister for Home Affairs [2019] FCA 1324
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
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
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, 264 CLR 421
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 27 February 2025 Date of hearing: 10 February 2025 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitors for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Mr A Cunynghame Solicitors for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3533 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GBM18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the 35-day period within which an application for judicial review of a migration decision of the (then) Administrative Appeals Tribunal may be made is extended to 22 November 2018.
2.The applicant file and serve the following by 5:00 pm on 15 May 2025:
a)any further amended application;
b)any further affidavit material on which he intends to rely; and
c)outline of submissions.
3.The first respondent file and serve the following by 5:00 pm on 12 June 2025:
a)any affidavit material on which the first respondent intends to rely; and
b)outline of submissions.
4.The matter be listed for a final hearing on 14 July 2025 at 10:00 am.
5.The parties have liberty to apply to vary orders 2 to 4 above.
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
In February 2017, a delegate of the (then) Minister for Immigration and Border Protection refused the applicant a Protection (Class XA) (Subclass 866) visa. After applying to the former Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision, the applicant did not attend the scheduled hearing to which he had been invited. The Tribunal decided the review adversely to the applicant, affirming the delegate’s decision based on the material it had to hand and without taking any further step to allow the applicant to appear before it. The applicant applied for judicial review of the Tribunal’s decision 476 days after the 35-day period for making such an application had lapsed. The issue before the Court is whether an order under s 477(2) of the Migration Act 1958 (Cth) (Act)[1] extending time should be made.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
BACKGROUND
The applicant is a Malaysian citizen who arrived in Australia on 2 October 2015 holding an Electronic Travel Authority visa: Court Book (CB) 56. The applicant remained in Australia as an unlawful non-citizen for a period after his Electronic Travel Authority expired: CB56. He applied for a Protection visa on 27 September 2016 and was granted an associated Bridging (Class WC) (Subclass 030) visa: CB1-CB35, CB56. The applicant claimed protection because: CB30-CB32:
·he borrowed money from a loan shark to fund his business;
·his business failed, the cost of living increased and he lost his source of income; and
·he left Malaysia fearing harm from the loan shark because he was unable to repay the business loan.
The applicant also claimed that Malaysian authorities would not protect him because “[they would] not favor (sic) this such (sic) case. [They] tend to blame the victim”, and he would not be able to relocate as the “country are (sic) small”: CB32. On 22 February 2017, the Minister’s delegate refused the visa application. Notification of the decision and a copy of the delegate’s decision record were transmitted to the applicant by email: CB53-CB67. The delegate concluded that:
·the applicant’s fear of harm was not for any reason mentioned in s 5J(1)(a) of the Act and so he was not a refugee within the meaning of s 5H;
·the applicant could reasonably expect protection from Malaysian authorities so that there would not be a real risk of significant harm if he was removed to Malaysia; and
·the applicant was not a person in respect of whom Australia had protection obligations pursuant to ss 36(2)(a) or (aa).
TRIBUNAL PROCEEDING
The applicant applied to the Tribunal for a review of the delegate’s decision on 10 March 2017: CB68-CB69. The Tribunal acknowledged receipt of the application by correspondence on 13 March 2017: CB71-CB72. On 16 May 2017, the Tribunal invited the applicant to attend a hearing scheduled for 14 June 2017 to give evidence and present arguments relating to the issues in his case: CB74-CB75. The correspondence was sent to the applicant’s last known email address as listed under the heading “Correspondence details” in the applicant’s review application: CB69. The correspondence requested the applicant to complete and return an enclosed ‘Information about hearings – MR Division’ factsheet, and a ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing and to provide the Tribunal with any additional or new information which he might wish the Tribunal to consider. The correspondence also contained the following: CB74-CB75:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
…
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
The Tribunal sent SMS hearing reminders on 7 and 13 June 2017 to the applicant, but he did not attend the scheduled hearing, nor provide further material as requested: CB76, CB83, CB85. By its decision made on 29 June 2017, the Tribunal affirmed the delegate’s decision: CB82. On the same day, the applicant was notified of the decision by email transmission: CB80-CB81, which attached a notification letter: CB81, a Statement of Decision and Reasons (Decision): CB82-CB88 and an ‘Information about decisions – MR Division’ factsheet: CB92-CB94. The notification letter relevantly contained the following:
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
The factsheet relevantly contained the following:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
Immigration assistance
Our website ( and (sic) provides a list of organisations that may be able to provide immigration assistance or referrals to other services.
On 15 June 2017, the day after the scheduled hearing, the applicant called the Tribunal at around 1:41 pm. The ensuing conversation with a staff member of the Tribunal is recorded in a case note as follows: CB76.
RA phoned to inform us that he didn't receive his hearing invitation. However, he stated that he received both SMS messages. He said that he didn't turn up for a hearing because he didn't know (sic) exact time, even though that he knew a date. I queried him as to why he didn't enquiry (sic) about the time of the hearing before the hearing took place, to which I received no answer. I also made him to confirm his email address and informed him that the hearing invitation was sent to the same address. RA enquired as to what will happen next. I informed him that his application will be processed as (sic) non-appearance case.
TRIBUNAL’S DECISION AND REASONS
The Tribunal set out at [1]-[5] of the Decision some preliminary matters to the application for review, noting that the applicant was given an opportunity to appear before the Tribunal but he did not appear. At [6]-[10], the Tribunal noted the relevant protection visa criteria by reference to ss 5 and 36 of the Act, Sch 2 to the Migration Regulations 1994 (Cth) and Ministerial Direction No.56 made under s 499. The Tribunal recorded at [11] that it considered 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 relevant.
The Tribunal considered the applicant’s evidence from [12]-[30] of the Decision. Relevantly, the Tribunal gave its reasons for deciding pursuant to s 426A of the Act to proceed to determine the review without taking any further action to enable the applicant to appear before it as follows:
17. As noted above, the applicant lodged his review application with the Tribunal on March 2017. The applicant did not provide any additional evidence in support of his claims for protection, other than that mentioned above.
18. On 16 May 2017, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 14 June 2017. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to him, by email, at the address provided in his application for review. The Tribunal also attempted to send SMS reminder messages to the applicant about the hearing, on 7 and 13 June 2017, to the telephone number provided in his application.
19. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. The applicant contacted the Tribunal on the day after the hearing. He told the Tribunal he had not received the hearing invitation, although he did acknowledge he had received the SMS's, but said that they did not state the time of the hearing. The Tribunal also confirmed the email address invitation was sent to was (sic) the correct email address for the applicant. In these circumstances, where the applicant claims he received the SMS messages which state “Reminder – Your AAT hearing is on 14/06/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333” and pursuant to s426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal. The Tribunal considers that the SMS messages should have prompted the applicant to contact the Tribunal earlier to confirm the time of the hearing, even if he had in fact not received the hearing invitation, as he was clearly advised by the Tribunal at least twice as to the date of the hearing.
20. Accordingly, this matter has been determined on the evidence available to the Tribunal.
Continuing, the Tribunal noted at [26] of the Decision that the applicant’s written claims were “brief, vague and general”, and had the applicant appeared at the hearing, the Tribunal would have afforded the applicant the opportunity to provide further information about: at [28]:
•The circumstances surrounding the loan, including the value of the loan agreement and its terms.
•The harm he claims to fear from the loan shark.
•The difficulties he would face in rebuilding his business in the current situation.
•The reasons why he thinks the Malaysian authorities would not favour his case, and blame the victim.
Overall, the Tribunal was not satisfied at [29]-[30] of the Decision that the applicant:
(a)took out a loan with a loan shark;
(b)feared harm due to the unpaid loan, nor suffered any harm;
(c)was unable to gain protection from local authorities or that the authorities were unwilling to provide it; and
(d)continues to fear the harm claimed by the loan shark, nor anyone else.
The Tribunal was therefore not satisfied that the applicant would suffer serious or significant harm in the foreseeable future if he returned to Malaysia and concluded that the applicant was not a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act: Decision at [31]-[32]. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: at [34].
CONSIDERATION
The applicant applied to the Court for judicial review of the Tribunal’s decision on 22 November 2018. Such an application must be made within 35 days of the date of the Tribunal’s decision: s 477(1) of the Act. As earlier noted, the Tribunal made its decision on 29 June 2017, and the 35-day period ended on 3 August 2017. The application was therefore made 476 days after the period prescribed had lapsed. Section 477(2) allows the Court, by order, to extend the 35-day period as the Court considers appropriate if it is satisfied that it is necessary in the interests of the administration of justice to do so.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579 Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court’s discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application”: Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because the Court “must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 3 FCR 344 at 348-349: Tu’uta Katoa at [13].
The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made, were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556 at 566, [40].
In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level” because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is “reasonably arguable” or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]-[18].
Extent and reason for the delay
The applicant’s amended application specifies the grounds for extension of time as follows:
1.After decision from AAT I wanted to apply in federal circuit court. Due to bad advise (sic) and lack of information I couldn’t apply on time.
2.I always wanted to apply in FCCA against the decision of AAT.
3.I have hope of getting right decision from FCCA.
By way of explanation, the applicant in his affidavit affirmed on 29 November 2024, deposes that he did not lodge his application in time because he “did not know how to do it”, as at the time his English was limited, and he relied on friends to help with his migration case. He says he later obtained assistance from someone who he understood was a lawyer (but who was a migration agent not a lawyer) to make the application: Exhibit A3 at [3]-[4]. The extent of the delay – 476 days – is, as the applicant accepted, substantial. It may also be accepted as a general proposition the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; BBU15 v Minister for Home Affairs [2019] FCA 1324 at [7].
The explanation proffered by the applicant for the delay is not particularly persuasive. The applicant’s counsel rightly described the explanation as “bare” and properly conceded the explanation, of itself, was not a satisfactory explanation for the delay. To the extent that the applicant may have been unaware of the time limit attached to making a judicial review application to this Court, an unrepresented litigant’s ignorance of the time limit for making a judicial review application is not, without more, a satisfactory or acceptable explanation for the delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]. Ultimately, the applicant is responsible for ascertaining any review rights he might have and any attendant time limits: SZSDA at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25].
Moreover, information about the applicant’s right to seek judicial review was provided to the applicant at the time he was notified of the Tribunal’s decision. Even allowing for the fact that the information is in English, a diligent litigant should take prompt action to seek assistance with a translation. The notification letter alerted the applicant to one source where he could obtain translating assistance: CB81. The need for the information to be translated does not explain the lengthy period of the delay. As to the applicant’s claim in his amended judicial review application that receiving “bad advice” about seeking judicial review explains the delay or some of it, the contention is not repeated nor explained in his affidavit. There is no evidence about the content of the advice, who gave it or when it was given. Without more, the bare contention does not provide an acceptable or satisfactory explanation for the delay.
Accordingly, both the length of the delay and the absence of any acceptable explanation for it weigh against the applicant.
Prejudice
The first respondent accepted that he is not specifically prejudiced if an extension of time were granted, but as noted earlier, the absence of prejudice is an insufficient basis to warrant the grant of an extension: Hunter Valley at 348-349 and SZTRY at [6]. The first respondent also contended that there is a public interest in the finality of administrative decision making, crucially given the extreme delay, and he has a legitimate interest in the timely disposal of applications for visas. So much may be accepted. Against this, it must be said that since this case involves a protection claim, if there be merit in the judicial review application favouring the grant of an extension of time, there would be prejudice to the applicant in denying him an opportunity to fully ventilate the application by disposing of it on an interlocutory basis.
Merits
As earlier noted, the applicant filed an amended application, and advanced only one ground of review contending that the Tribunal’s decision was affected by procedural unfairness because, having failed to appear at the hearing, the applicant enquired of the Tribunal about next steps and was not told of the existence of a further opportunity to participate in the review.
Part 7 of the Act makes provision for the review by the Tribunal of “Part 7-reviewable decisions” including, relevantly, a decision to refuse the applicant a protection visa: s 411(1)(c). Section 415(2) deals with the Tribunal’s powers on review and relevantly provides that the Tribunal may, if the applicant fails to appear – exercise a power under s 426A in relation to the dismissal or reinstatement of an application. The Tribunal’s conduct of the review is regulated by Div 4, which by s 422B(1), is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. By s 422B(3), the Tribunal must act in a way that is fair and just in applying Div 4.
By s 425(1) of the Act, the Tribunal was required to 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, unless one of the exceptions in s 425(2) was engaged. In the instant case none of the exceptions applied. Section 425A regulates the content of the invitation, requiring that the invitation:
·gives the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear; and
·contains a statement of the effect of s 426A.
There is here, no suggestion that the invitation sent to the applicant by the Tribunal by email did not comply with these requirements.
Section 426A of the Act deals with the failure of an applicant to appear before the Tribunal and provides:
Scope
(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.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
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.
Note:Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.
(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.
Note 1:Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.
Note 2:Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal 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.
(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.
Note:Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
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.
As these provisions make clear, that an applicant has not appeared at a hearing to which the applicant was invited, the Tribunal is not compelled to act under s 426A of the Act. The Tribunal could reschedule the hearing rather than dismissing the application, or it could delay its decision on the review to allow for the applicant’s appearance at a rescheduled hearing. It might also seek further material from the applicant and his consent for the Tribunal to determine the review on the papers thereafter without a need for a rescheduled hearing.
When a s 426A(1A) power is exercised, there are differences between the consequences. Exercising dismissal power under s 426A(1A)(b), the Tribunal is not required to give any further consideration to the application or the information before it and the applicant may apply for reinstatement of the review application within 14 days of receiving notice of the dismissal decision. Making a decision on the review under s 426A(1A)(a), as occurred in this case, brings the Tribunal’s merits review to an end. This is because the Tribunal proceeds to decide the review and will consider the review application on the information before it. That consideration happens in a context where, as here, the Tribunal has already formed a view that it cannot make a favourable decision on the review based on the material before it: see CB74. If, as happened here, additional material has not subsequently been provided to the Tribunal, it seems unlikely the Tribunal’s decision on the review under s 426A(1A)(a) will be favourable to an applicant.
The first respondent contends that in considering whether Div 4 of Pt 7 was exhaustive in this case of the steps required by the Tribunal in respect of the applicant’s understanding of the effect of his non-appearance (including the putative ability to submit further written information for the Tribunal to consider), the Court is to assess whether that is subsumed in one of the “matters” with which the division deals. The first respondent says that in doing so, the Court is concerned with “matters” at a higher level of generality than purely the terms of the provisions themselves. In other words, as Bell, Gageler and Keane JJ explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, 264 CLR 421 at [35]:
. . . The “matters” to which the sub-sections refer are the discrete subject-matters of the provisions. The discrete subject-matter of each provision is indicated by, but not limited to, the terms of each provision.
The first respondent contends that here, Div 4 of the Act addressed itself to, amongst other things, the circumstances of a failure by an applicant to appear before the Tribunal after being issued an invitation to appear (s 426A). Section 425A(4) provided that a notice of an invitation to appear “must contain a statement of the effect of section 426A” and such a statement appears in the correspondence at CB75. The first respondent contends that it is apparent that the subject matter of that which must be communicated to an applicant concerning a failure to attend is a subject matter already dealt with in ss 425A(4) and 426A. The first respondent says there is no requirement to advise the applicant again, despite their non-attendance, of the effect of s 426A, let alone to explain with further particularity the effect of the section (including that the Tribunal would consider further written material the applicant may supply prior to the decision). The first respondent says that these matters pertain to a subject matter which is exhaustively dealt with in ss 425A(4) and 426A. And to hold otherwise would render s 425A(4) otiose.
Accepting, without deciding, the correctness of the first respondent’s contentions, they do not appear to directly answer the complaint underpinning the review ground. In an affidavit affirmed on 28 November 2024: Exhibit A2 the applicant deposes that:
·he only located the hearing invitation after the Tribunal hearing dated passed;
·he remembers receiving a text message reminder of the hearing which specified the hearing date but not the time of the hearing;
·he was unrepresented and relied on friends to help him. He was told by some Malaysian friends living in Australia that the Tribunal was a non-governmental organisation and that the hearing was not important, and he decided not to attend the hearing;
·the day following the hearing, the applicant called the Tribunal because he thought he had done the wrong thing by not attending and he wanted to find out “the right information”;
·he does not recall the entire conversation but says he was told during the telephone call that his hearing had passed and something to the effect that once a decision was made in his case he had 28 days to appeal; and
·he does not recall being told anything about how to seek reinstatement of the hearing or to participate further in the case.
Although not on all fours with the Tribunal officer’s note of the telephone discussion earlier set out, the account is not inconsistent with it. Common to both is that it appears arguable that the applicant was seeking to participate further in the review and was seeking information from the Tribunal officer about how that might be achieved. The applicant initiated the phone call and sought information about “what will happen next”.
It is in this context that the unfairness complaint made by the applicant is to be understood. The complaint is not that the Tribunal was required to take some further step, in the abstract, before deciding the review application. Rather, the unfairness is said to arise from the fact that the Tribunal officer with whom the applicant spoke on the day following the Tribunal hearing, although not required to provide the applicant with any advice or information, nevertheless told the applicant that his application will be processed as a non-appearance case. The applicant contends that in doing so, this left him with the impression that there was nothing further that he could do. The applicant contends that the information conveyed through the communication was incomplete and the resulting impression from the communication was misleading. The applicant says that having elected to provide the applicant with information about “what will happen next”, the Tribunal officer was obligated to provide full and accurate information. I accept that it is arguable the officer’s response to the applicant’s question about what will happen next is an ambiguous statement, that it may have been misleading and unhelpful in the circumstances. I accept that it is arguable that this is not a matter with which Div 4 of Pt 7 deals. And it is arguable the advice or information given resulted in procedural unfairness because it failed to mention that the applicant could take other steps to participate in the review, particularly as the communication was known to the Tribunal when it exercised power under s 426A(1A)(a) of the Act. I therefore consider that the ground the applicant proposes to advance in furtherance of the judicial review application is arguable and is not without some merit.
As a model litigant, the first respondent noted in his written submissions dated 25 November 2024 that he had considered whether the Tribunal’s decision is affected by jurisdictional error of the kind identified in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975. The first respondent contends that the matter before the Court is distinguishable. The first respondent says that other than the applicant’s telephone call with the Tribunal officer after the hearing, the applicant did not engage with the Tribunal; did not have a history of seeking adjournments; did not seek an adjournment prior to the hearing; nor contact the Tribunal prior to the hearing date. The first respondent says that in circumstances where the Tribunal exercised its obligation to put the applicant on notice of the hearing date by invitation dated 16 May 2017, and sent SMS hearing reminders on 7 and 13 June 2017, the Tribunal’s decision to exercise its discretionary power under s 426A(1A)(a) of the Act was reasonable and intelligibly justifiable. The first respondent also formally submitted, while acknowledging this Court is bound to follow DNK17 if the circumstances require, that DNK17 was wrongly decided as it is inconsistent with the High Court’s judgment in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, 268 CLR 29.
In DNK17, the Court (Horan J) had to determine whether it had been legally unreasonable for the Tribunal to decide the review under s 426A(1A)(a) of the Act, rather than dismissing the application under s 426A(1A)(b). Horan J reasoned that it was unreasonable for the Tribunal to proceed to determine the review without explaining why it had chosen to do so instead of dismissing the review, particularly because the applicant made 3 requests for an adjournment – 2 of which were granted, and the third denied on the morning of the hearing. However, DNK17 does not, in my view, stand as a general proposition that it will always be unreasonable for a decision-maker exercising power in s 426A(1A)(a) of the Act rather than (b), 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].
The reasons the Tribunal proceeded to determine the matter and exercise the power of s 426A(1A)(a) of the Act are reproduced at [9] above. In substance, the Tribunal reasoned that the SMS messages should have prompted the applicant to contact the Tribunal earlier to confirm the time of the hearing, even if he had not received the hearing invitation, because he was clearly advised by the Tribunal at least twice as to the date of the hearing. But the reasoning read as a whole, arguably does not explain why no account appears to be taken of the fact the applicant called the Tribunal the next day whereupon he sought to explain his non-attendance and expressed a desire to know “what will happen next”. Arguably, this was not an applicant who was not engaging with the Tribunal – this was an applicant asking or wanting to engage. In these circumstances it is arguable the Tribunal, armed with the knowledge the applicant contacted the Tribunal and wanted to know what will happen next, acted unreasonably by proceeding to determine the review and failed to explain why it had chosen to do so instead of dismissing the review or perhaps taking some further step to enable the applicant to participate in the review. Accordingly, it seems to me arguable the Tribunal’s reasons do not disclose an intelligible reason for not exercising the dismissal power in s 426A(1A)(b), or taking some other step rather than proceeding to decide the review under s 426A(1A)(a) and that its decision was not arrived at through an intelligible decision-making process.
For these reasons, I consider the applicant’s judicial review application is not without merit and so the merits of the application weigh in the applicant’s favour. And despite the lengthy delay as this matter concerns the judicial review of a decision affecting the grant of a protection visa, the merits should be weighed strongly so.
As I have earlier observed, the period of delay is lengthy and the explanation for it does not provide an acceptable explanation. There is no discernible prejudice to the first respondent. The arguable jurisdictional errors identified above are sufficiently arguable to warrant exploration at a hearing, lest the applicant be denied unjustifiably at an interlocutory stage the opportunity to ventilate his judicial review application which concerns a decision affecting his claims for protection. Accordingly, I consider that it is necessary in the interests of the administration of justice to extend the 35-day period within which the applicant’s judicial review application to this Court may be made. The period is extended to 22 November 2018.
Orders facilitating the hearing of the applicant’s judicial review application will also be made.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 17 April 2025
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