Khan v Minister for Immigration and Citizenship
[2025] FedCFamC2G 795
•27 June 2025
`FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Citizenship [2025] FedCFamC2G 795
File number(s): MLG 3609 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 27 June 2025 Catchwords: MIGRATION – judicial review – decision of the Administrative Appeals Tribunal refusing to grant a student visa – where the decision of the Tribunal to not reinstate the application was unreasonable – confirmation decision squashed – matter remitted to the Tribunal - application for judicial review allowed Legislation: Migration Act 1958 (Cth) ss 474, 476, 476(2)(a)
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: ALU24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 444
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
Craig v State of South Australia (1995) 184 CLR 163
Dunsmuir v New Brunswick[2008] 1 SCR 190
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Mitchell v The Queen (1996) 184 CLR 333
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 921
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of hearing: 26 May 2025 Place: Melbourne Solicitor for the Applicant: Ms Thara Sujithkumar of FCL Lawyers Solicitor for the First Respondent: Mr Adam Slevison Second Respondent: Submitting Appearance, save as to costs ORDERS
MLG 3609 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHOAIB ABDUL LATIF KHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
27 JUNE 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision of the Second Respondent made on 11 October 2019 in Case No 1812052.
2.A writ of mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application according to law.
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 JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as the Minister was then called) (Delegate). The Delegate refused to grant the Applicant a Student (Subclass 500) visa (Student Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
This matter was:
a) allocated to the Court as presently constituted on 14 April 2025, and
b) heard in person at the Court’s Melbourne Registry on 26 May 2025.
To obtain relief from this Court, the Applicant must show that the Tribunal fell into jurisdictional error. For the reasons that follow, this Court has determined that the Tribunal’s decision was affected by a jurisdictional error.
The application for judicial review is, accordingly, granted. The decision of the Tribunal is quashed, and the matter is to be remitted back to the Tribunal to be determined according to the law.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed jurisdictional error on 11 October 2019 when it refused to reinstate the Applicant’s application after the Tribunal had previously dismissed his application when he failed to appear at the Tribunal hearing on 20 September 2019 (and thus affirming the decision of the Delegate refusing a Student Visa).
The Application for a Visa
The Applicant is a citizen of Pakistan who arrived in Australia on 11 May 2012[1], having been granted a Student (Subclass 573) visa offshore on 7 March 2012[2], valid until 19 August 2015. That visa was granted to enable the Applicant to study a Bachelor of Commerce at Deakin University.[3]
[1] CB 22.
[2] CB 126.
[3] CB 102.
The Applicant completed a Course in English for Academic Purpose at Deakin University from 20 August 2012 till 21 September 2012[4], but did not commence the Bachelor of Commerce. According to the Provider Registration and International Student Management System (PRISMS) records examined by the Delegate, the Applicant’s enrolment in that course was cancelled on 27 March 2013 due to non-commencement of studies.[5]
[4] CB 35.
[5] CB 102.
The Applicant subsequently transitioned to the vocational education and training (VET) sector while holding the Student (Subclass 573) visa. During the period that the visa was valid, the Applicant completed the following courses at Technical Education Australia Pty Ltd:
(a)Diploma of Business and Management from 23 April 2013 to 24 August 2014[6], and
(b)Advanced Diploma of Business and Management from 23 April 2014 to 22 June 2014.[7]
[6] CB 31.
[7] CB 34.
On 7 September 2015, the Applicant was granted a Student (Subclass 572) visa, valid until 4 December 2017, to allow him to undertake a Certificate IV in Accounting and a Diploma of Accounting from the same institution.[8] However, the Applicant did not complete those courses.[9]
[8] CB 101.
[9] CB 102.
On 2 December 2017, two days before the expiry of his Student (Subclass 572) visa, the Applicant lodged an application for a Student Visa, seeking to complete an Advanced Diploma of Hospitality Management at Technical Education Australia.[10]
[10] CB 10-60.
In support of his application, the Applicant submitted a genuine temporary entrant (GTE) statement in which he explained that his proposed course would complement his prior business qualifications and give him the skills necessary to pursue a career in hospitality in Pakistan.[11] He stated that his father had passed away and his mother remained by herself in Pakistan. With his brothers overseas, including one in Australia, he expressed a desire to return home to support his mother.
[11] CB 36.
Decision by the Delegate
On 24 April 2018, the Delegate refused to grant the Student Visa on the basis that the Applicant did not satisfy cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (GTE Criterion).[12] That is, the Delegate was not satisfied that the Applicant was a genuine temporary entrant for stay in Australia.
[12] CB 99-104.
The Delegate’s reasons for refusing the Student Visa included that:
(a)the Applicant had spent nearly six years in Australia on student visas, mostly completing VET courses despite initially arriving on a higher education visa[13],
(b)the Applicant’s Confirmation of Enrolment (COE) for the proposed Advanced Diploma of Hospitality had been cancelled on 29 March 2018 due to non-commencement of studies[14],
(c)the Applicant’s GTE statement lacked detail and was considered to be unconvincing by the Delegate[15],
(d)the Applicant had not provided a sufficient explanation or documentation to show the value of the proposed course to his future employment or business prospects in Pakistan[16], and
(e)the Delegate was not satisfied that the Applicant would return to Pakistan after completing his studies, especially in light of his lengthy stay in Australia, his brothers’ circumstances, and limited family ties to Pakistan.[17]
[13] CB 102.
[14] CB 101.
[15] CB 101-102.
[16] CB 102.
[17] CB 103.
The Delegate concluded that these factors, when taken as a whole, lead to the conclusion that the Applicant did not genuinely intend to stay in Australia temporarily for study purposes.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.[18]
[18] Migration Act s 476(2)(a).
Application to the Tribunal
On 27 April 2018, the Applicant lodged an application with the Tribunal for review of the Delegate’s decision.[19] In connection with that application, the Applicant appointed Mr Kashif Khan, a migration agent, as his authorised representative.
[19] CB 105-106.
On 25 July 2019, the Tribunal wrote to the Applicant requesting information under s 359 of the Act.[20] That letter invited the Applicant to provide evidence that he was:
(a)enrolled in a registered course of study; and
(b)a genuine temporary entrant, consistent with the requirements of cl.500.212 of the Regulations and Direction Number 69 – Assessing The Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction 69).
[20] CB 113-114.
In response, on 6 August 2019, the Applicant through his representative submitted a:
(a)completed Request for Student Visa Information Form[21],
(b)COE in Certificate III in Commercial Cookery (form 23 September 2019 till 20 February 2021)[22],
(c)COE in Certificate IV in Commercial Cookery (from 1 March 2021 till 3 July 2021)[23],
(d)COE in Diploma of Hospitality Management (from 12 July 2021 till 16 October 2021)[24], and
(e)COE in Advanced Diploma of Hospitality Management (from 25 October 2021 till 9 April 2022).[25]
[21] CB 120-133.
[22] CB 134.
[23] CB 135.
[24] CB 136.
[25] CB 137.
On 4 September 2019, the Tribunal invited the Applicant to attend a hearing scheduled for 20 September 2019.[26] That notice also advised that any adjournment on medical grounds would require the Applicant to submit a medical certificate:
If you wish to have your hearing adjourned on medical grounds, you must provide us with a medical certificate certifying that you are unable to attend and give oral evidence. The certificate must also indicate when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you have a representative acting on your behalf, medical certificates should be submitted no later than two business days before the scheduled hearing day, where available: Migration and Refugee Matters Practice Direction, at paragraph 7.4.
Additionally, it is the Tribunal’s general practice to conduct a hearing by telephone if an applicant is unable to attend in person. If you are unable to participate in a hearing by telephone on medical grounds, you must provide a medical certificate that clearly states this.
Requesting your hearing be adjourned on medical grounds without providing appropriate medical evidence may result in the Tribunal refusing your request.[27]
[26] CB 140-142.
[27] CB 140-141.
On 17 September 2019, the Applicant’s migration agent emailed the Tribunal confirming that the Applicant would be attending the hearing.
On 20 September 2019, the Applicant’s migration agent sent another email to the Tribunal requesting that the hearing be adjourned on the basis that the Applicant had become ill following his return from an overseas trip to Pakistan:
I just want to inform you and request to adjourn the hearing for next week or later this month since my client has got sick after he returned back to Australia.[28]
[28] CB 148.
That email attached an email from the Applicant to his migration agent in which he stated that he was suffering from vomiting, diarrhoea, and a viral infection, and was consequently unable to attend the hearing.[29] He also enclosed a medical certificate from his doctor dated 19 September 2019 (First Medical Certificate) which stated:
Shoaib Khan has a medical condition and will be unfit for work/study from 20/09/2019 to 21/09/2019 inclusive.[30]
[29] CB 151.
[30] CB 150.
On the same day, the Tribunal telephoned the migration agent to advise that the adjournment request had been refused.[31] This was because the First Medical Certificate did not state that the Applicant was unfit to attend the hearing, which is neither “work” or “study”. The Tribunal offered to proceed by way of a telephone hearing, but the Applicant did not appear. The Tribunal followed up with a written email confirming that the adjournment request had been denied:
Dear Mr Khan,
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
As discussed on the telephone this afternoon, the adjournment request has been denied. The reason the adjournment request is denied is that the medical certificate provides that Mr Khan will be unfit to attend work or study, it does not provide that MR Khan is unable to attend to the hearing of his application at the Tribunal, which by all accounts, does not constitute work or study.
In the circumstances, the Tribunal not prepared to adjourn the hearing on the basis of the material provided.[32]
[31] CB 152.
[32] CB 157.
Because the Applicant failed to appear at the scheduled hearing[33], the Tribunal issued a decision on 20 September 2019, in which it dismissed the application for review pursuant to s 362B(1A)(b) of the Act (Non-Appearance Decision).[34] The Tribunal was satisfied that the Applicant had been properly invited to the hearing, had received SMS reminders, and had not provided a satisfactory reason for his non-appearance.[35]
[33] CB 154.
[34] CB 161.
[35] Ibid at [4]-[5].
In the accompanying notification letter, the Applicant was advised that he could apply for reinstatement of his application within 14 days of the Non-appearance Decision.[36]
[36] CB 160.
On 2 October 2019, (i.e. within the 14-day timeframe), the Applicant’s migration agent emailed the Tribunal requesting that the matter be reinstated.[37] In support of the reinstatement request, the agent provided a letter which stated that after receiving the Non-Appearance Decision, the Applicant had gone to his medical practitioner to request that the certificate be amended to reflect that he was unable to attend the hearing.[38] The migration agent explained that the doctor declined to revise the medical certificate on the basis that it was not standard practice to specify a patient’s inabilities other than “work or study” unless the patient is subject to “bed rest” or “weight specific limitations”.[39] The letter further stated that the doctor was willing to speak to the Tribunal directly if clarification was required.
[37] CB 162.
[38] CB 164.
[39] Ibid.
The email from the Applicant’s migration agent also attached an updated medical certificate (dated 19 September 2019, but provided to the Tribunal on 2 October 2019) (Updated Medical Certificate) which stated the specific conditions that the Applicant was suffering from (emphasis added):
Shoaib Khan has a medical condition and will be unfit for work/study from 20/09/2019 to 21/09/2019 inclusive. The patient has gastroenteritis with diarrhoea and vomiting and general weakness. This report has been given with patient consent and handed to the patient.[40]
[40] CB 165.
On 11 October 2019, the Tribunal issued a decision refusing to reinstate the application (No Reinstatement Decision).[41] The Tribunal determined that the Applicant had not provided any new information that would cause the Tribunal to reconsider its earlier decision (that there was no satisfactory reason for the Applicant to not attend the hearing on 20 September 2019).[42]
[41] CB 169-170.
[42] CB 170 at [9].
TRIBUNAL DECISIONS
The Tribunal made two separate decisions:
a) the Non-Appearance Decision, which is 1 page long and spans 6 paragraphs, and
b) the No Reinstatement Decision, which is 2 pages long and spans 12 paragraphs.
At paragraphs 17 to 20 of the Minister’s outline of submissions filed on 2 May 2025, solicitors for the Minister summarised the Tribunal’s reasons for both the Non-Appearance Decision and the No Reinstatement Decision (referred to by Minister as the “Confirmation Decision”). I have carefully read the Tribunal’s reasons and accept the Minister’s summary as comprehensive, fair and properly referenced. I adopt it for the purposes of this judgment (citations omitted):
Non-appearance dismissal decision
17.In exercising its discretion to make the non-appearance dismissal decision, the Tribunal found that:
17.1.The applicant was invited under s 360 of the Act to appear before the Tribunal on 20 September 2019, and the hearing invitation stated that if the applicant did not attend the hearing the Tribunal may dismiss the application for review without any further consideration of the application or information before it.
17.2.The Tribunal sent SMS reminders about the hearing 5 business days and one business day before the hearing.
17.3.The Tribunal had regard to the applicant’s adjournment request and the first medical certificate, but did not grant the adjournment because the first medical certificate provided that the applicant was not fit for work or study, and attending the Tribunal to give evidence at a hearing is neither study, nor work.
17.4.The Tribunal was satisfied that the applicant was properly invited to the hearing in accordance with s 379A(5), and that the hearing invitation had not been returned to sender.
17.5.The applicant did not appear before the Tribunal on the day and at the scheduled time and place.
17.6. No satisfactory reason for the non-appearance had been given.
18.In these circumstances, the Tribunal decided to dismiss the application without further consideration of the application or the information before it.
Confirmation decision
19. In confirming the non-appearance dismissal decision, the Tribunal found that:
19.1.The applicant applied for reinstatement of his application within 14 days after receiving the notice of the non-appearance dismissal decision.
19.2.The Tribunal had regard to the reinstatement request, including the second medical certificate and the representative’s submission.
19.3.In the medical practitioner’s opinion, the applicant was unfit to work or study on 20 and 21 September 2019 due to a medical condition.
19.4.Based on the contents of the medical certificate, the applicant was not unfit to attend before the Tribunal to give evidence, because attending the Tribunal to give evidence is neither work, nor study.
19.5.The representative’s submission and the second medical certificate did not contain any new matters which would cause the Tribunal to form the view that the applicant was unfit to attend the hearing due to a medical condition.
20.For these reasons, the Tribunal refused the application for reinstatement and confirmed the non-appearance dismissal decision.[43]
[43] First Respondent’s Outline of Submissions filed 2 May 2025.
Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the student visa.
PROCEEDINGS IN THIS COURT
The application
The Applicant filed an application for judicial review on 21 October 2019. The Applicant seeks an order that the Tribunal’s decisions be quashed, and the matter be remitted back to the Tribunal for reconsideration according to the law. When the matter proceeded before this Court on 26 May 2025 it became apparent that the Applicant was challenging both the Non-appearance Decision (20 September 2019) and the No Reinstatement Decision (11 October 2019).
The Applicant lists five of grounds of alleged error. The Applicant’s grounds of review, extracted from his initiating application (without alteration), are as follows:
1.I lodged my student visa application with the Department of Home Affairs (DOHA) on 2nd December 2017 which was refused on 24th April 2018. I applied for an appeal at Administrative Appeals Tribunal (AAT) on 30th April 2018. On 25th July 2019 AAT requested more documents with a form to submit. I submitted all documents on 06th August 2019. 1 was invited for a hearing on 4th September 2019 to attend hearing on 20th September 2019 at 01.30 pm. I got sick on 19th September 2019 due to my recent trip to Pakistan. I went to my GP and obtained a medical certificate and provided to AA T on 20th September 2019 prior to the hearing, requesting for an adjournment. However, on 20th September 2019 Administrative Appeals Tribunal (AAT) refused to adjourn and affirmed the decision w1der review. I believe that the AAT has not considered the health conditions I have had been suffering during that time. They didn't consider my inability to attend the hearing. AAT gave reasons that the medical certificate mentioned "unable to study or work'' and doesn't specify "Not able to attend the hearing". I believe that AAT has made error in the application of the law.
2.AAT gave me an option under the legislation with 14 days to reinstate the review application. I applied to reinstate the review application on 2 October 2019 however AAT didn't consider my application and didn't give me opportunity as a matter of procedural fairness, erring the law.
3.I want to establish further jurisdictional error that both DOHA and AAT have made significant errors in determining the Migration Regulation Clause 500.212 on an overall basis. I had provided almost all of the documents, and that evidence reasonably justified the Clause 500.212 both with the visa application as well as upon request from AAT which was submitted on 06th August 2019. However, even if the hearing didn’t go ahead, AAT should have considered my background and given me opportunity to either consider my application or given me fair chance to attend hearing. I believe that AAT has made error in applying the law and justice.
4.I believe that application of Directions 69 has been not correctly determined by both Department of Home Affairs and AAT, both did not consider various factors in granting me student visa and deemed me a non-genuine student and temporary entrant. There were significant errors occurred in the assessment and application of law. I consider it to be unreasonable and failing to apply procedural fairness erring the law.
5.Administrative Appeals Tribunal also failed to apply procedural fairness by incorrectly assessing the clause 500.212 by not giving me any opportunity to either attend hearing or not assessing available evidence correctly making significant error in the application of the law.
When the matter proceeded before this Court on 26 May 2025 the Applicant’s representative did not press and otherwise abandoned grounds three, four and five.[44] Consequently, grounds 3-5 are not further dealt with in this decision. It is unnecessary to do so.
[44] Transcript P-8 at [5]-[15].
Case management
On 15 November 2019, the Minister filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted that the application failed to establish any jurisdictional error on the part of the Tribunal.
On 29 January 2020, the Minister filed a bundle of relevant documents (Court Book).
On 12 March 2025, a Registrar of this Court issued an Order (Registrar’s First Order) programming the matter for final hearing at the Melbourne Registry of this Court.
The Registrar’s First Order amended the name of the:
(a)First Respondent to ‘Minister of Immigration and Multicultural Affairs’, and
(b)Second Respondent to ‘Administrative Review Tribunal’.
The Registrar’s First Order also directed the:
(a)Applicant to file any amended application, written submissions, and further evidence by 4 April 2025, and
(b)Respondent to file any written submissions and further evidence in response by 18 April 2025.
On 7 April 2025, a Registrar of this Court issued a second Order (Registrar’s Second Order), amending the timetable for filing of submissions by the parties. The Order directed that the:
(a)Applicant to file any amended application, written submissions, and further evidence by 18 April 2025, and
(b)Respondent to file any written submissions and further evidence in response by 2 May 2025.
In accordance with the Registrar’s Second Order:
(a)the Applicant filed submissions on 18 April 2025, and
(b)the Minister filed submissions on 2 May 2025.
The matter was allocated to my Chambers on 14 April 2025 and subsequently listed for hearing on 26 May 2025.
On 23 May 2025, outside of the timeframe prescribed by the Registrar’s Second Order, the Applicant filed further written submissions. Noting that the Minister did not object to the Court receiving those submissions, the Court has had regard to them.
Therefore, the materials before the Court are as follows:
(a)the application for judicial review filed on 21 October 2019,
(b)Minister’s response filed on 15 November 2019,
(c)a Court Book numbering 171 pages filed 29 January 2020 (marked as Exhibit R1),
(d)Applicant’s outline of written submissions filed on 18 April 2025,
(e)Minister’s outline of written submissions filed on 2 May 2025,
(f)an affidavit of Adam James Slevison from Australian Government Solicitor (AGS) filed 2 May 2025, which annexed several attachments relating to correspondence with the Tribunal which was omitted from the Court Book (marked as Exhibit R2), and
(g)Applicant’s further written submissions filed on 23 May 2025.
The judicial review hearing
At the hearing on 26 May 2025:
(a)the Applicant appeared before the Court represented by Ms Thara Sujithkumar, solicitor, FCL Lawyers.
(b)the Minister was represented by Mr Adam James Slevison, solicitor, Australian Government Solicitor.
The Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
Although the Applicant was represented, to assist the Applicant, the Court explained to the Applicant that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision nor grant the Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Before this Court, the Applicant’s representative made submissions in support of the grounds set out in their application. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 2 May 2025.
After the Minister made their submissions, the Court invited the Applicant’s representative to respond to what the Minister’s representative had said. However, Ms Sujithkumar made no submissions in reply.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[45] his Honour Judge Fary summarised the role of the Court in judicial review proceedings,
48.Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49.Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[46]
50.“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[47]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[48] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[49] Different kinds of error may overlap.[50] The categories are not closed.[51] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[52]
52.In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[53] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[54] It has been described as an “undemanding” standard.[55]
[45] [2025] FedCFamC2G 620
[46] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[47] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[48] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[49] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[50] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[51] LPDT at [3].
[52] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[53] LPDT at [7].
[54] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[55] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu.[56]
[56] (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
(a)why they believe the Tribunal made a jurisdictional error, and
(b)each of the remaining grounds of review (Grounds 1 and 2).
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds.
The Minister submitted that the decisions of the Tribunal were not affected by jurisdictional error. I incorporate (without repetition) paragraphs 24 to 51 of the Minister’s outline of submissions.
Ground 1
1.I lodged my student visa application with the Department of Home Affairs (DOHA) on 2nd December 2017 which was refused on 24th April 2018. I applied for an appeal at Administrative Appeals Tribunal (AAT) on 30th April 2018. On 25th July 2019 AAT requested more documents with a form to submit. I submitted all documents on 06th August 2019. I was invited for a hearing on 4th September 2019 to attend hearing on 20th September 2019 at 01.30 pm. I got sick on 19th September 2019 due to my recent trip to Pakistan. I went to my GP and obtained a medical certificate and provided to AAT on 20th September 2019 prior to the hearing, requesting for an adjournment. However, on 20th September 2019 Administrative Appeals Tribunal (AAT) refused to adjourn and affirmed the decision under review. I believe that the AAT has not considered the health conditions I have had been suffering during that time. They didn't consider my inability to attend the hearing. AAT gave reasons that the medical certificate mentioned "unable to study or work'' and doesn't specify "not able to attend the hearing". I believe that AAT has made error in the application of the law.
This ground relates to the Non-appearance Decision made on 20 September 2019 when the Tribunal:
(a)decided to reject the Applicant’s request for an adjournment,
(b)proceeded with the hearing,
(c)dismissed the Applicant’s application for non-appearance, and
(d)affirmed the decision of the Delegate rejecting the Student Visa.
At the hearing, Ground 1 was not further expanded upon beyond the written submissions.
At the time the Tribunal made the Non-appearance Decision, the only material before it was the First Medical Certificate dated 19 September 2019. The First Medical Certificate merely stated that the Applicant had a medical condition and was “unfit to work/study from 20/09/2019 to 21/09/2019”.[57] No further particulars were provided. Nor did the First Medical Certificate provide any reason why the Applicant was unable to attend the Tribunal hearing (noting that the Tribunal also offered to conduct the hearing online).
[57] CB 150.
Medical certificates like the First Medical Certificate are usually referred to as “bare medical certificates”.
In Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs[58] Judge Lucev usefully and expansively set out authorities relevant to an assessment of bare medical certificates.[59] He concluded,
39. What all the cases referred to above demonstrate is that:
(a)it is unsatisfactory and insufficient for an applicant for an adjournment of proceedings to rely upon a medical certificate which asserts unfitness by reason of an unspecified medical condition with unspecified medical consequences beyond mere unfitness; and
(b)there needs to be meaningful detail and content provided by the medical practitioner to explain why the medical condition and its consequences mean that the person seeking the adjournment cannot attend the proceedings personally or participate in the proceedings electronically or telephonically.
[58] [2024] FedCFamC2G 921.
[59] [2024] FedCFamC2G 921 at [26] to [38].
Consequently, to paraphrase, for present purposes, the question answered by Judge Lucev in Nguyen,[60] “The … question here is whether the [decision] reached by the Tribunal on the basis of the [First Medical Certificate, not to grant the adjournment: CB 161], was a conclusion that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis”.[61]
[60] n 58 at [25].
[61] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) ALD 24 (“SZMDS”) at [130], [131] and [135] per Crennan and Bell JJ.
Applying the cases referred to in Nguyen, it is apparent that the conclusion reached by the Tribunal on 20 September 2019 (i.e. to dismiss the application for non-appearance) on the basis of the First Medical Certificate was a conclusion that:
(a)other reasonable decision-makers could have arrived at on the same evidence, and
(b)had an evident and intelligible basis because of the bare nature of the First Medical Certificate.
In all of the above circumstances, it cannot be said that the conclusion reached in not agreeing to adjourn the hearing on 20 September 2019 was not a decision open to the Tribunal on the evidence before it, and one that another reasonable decision-maker could not have arrived at on the same evidence. The First Medical Certificate contained no particulars of the unfitness. Further, there was no explanation why the medical condition and its consequences meant that the Applicant could not attend the proceedings personally or participate in the proceedings electronically.
The Tribunal was entitled to take the view, based on the material before it, that a sufficient reason to grant an adjournment had not been given by the Applicant. There is no jurisdictional error arises from the Tribunal’s decision to refuse to grant an adjournment on 20 September 2019. Accordingly, Ground 1 is dismissed.
Ground 2
2.AAT gave me an option under the legislation with 14 days to reinstate the review application. I applied to reinstate the review application on 2 October 2019 however AAT didn't consider my application and didn't give me opportunity as a matter of procedural fairness, erring the law.
This was the principal ground of review pressed by the Applicant at the hearing. It relates to the Tribunal’s No Reinstatement Decision (dated 11 October 2019 whereby it refused to reinstate the Applicant’s application). In fairness to the Applicant this ground cannot be properly understood unless it involves a consideration of the Updated Medical Certificate. The Updated Medical Certificate is inextricably linked to the decision to not reinstate the application and to not consider the application.
After the Non-Appearance Decision on 20 September 2019, on 2 October 2019 the Applicant provided the Updated Medical Certificate[62] (also dated 19 September 2019).[63] The Updated Medical Certificate stated that the Applicant was suffering from “gastroenteritis with diarrhoea and vomited and general weakness”.[64] This additional information was not included in the First Medical Certificate.[65] The accompanying letter from the Applicant’s migration agent stated that the Applicant had returned to his doctor to obtain a more detailed medical certificate and the effect on his ability to attend the hearing.[66] The Tribunal was also invited to speak with the doctor directly.
[62] CB 165.
[63] Transcript P-7 at [15].
[64] CB 165.
[65] CB 150.
[66] CB 164.
Despite the additional words contained in the Updated Medical Certificate, the Tribunal stated at paragraph [9] of its Second Decision that,
“the letter from the migration agent and the updated medical certificate do not contain any new matters.”[67]
[67] CB 170 at [9].
The assertion that “the updated medical certificate [does] not contain any new matters”, is, clearly on the face of the Update Medical Certificate, factually inaccurate. It noticeably stated new information about “gastroenteritis with diarrhoea and vomited and general weakness.” For reasons not explained by the Tribunal it would seem that the new information was also not an acceptable excuse for the Applicant’s non-appearance at the hearing on 20 September 2019. We are left to speculate why that may be the case. True it is that the Updated Medical Certificate still only referred to “work/study” and not a hearing, nor online hearing, but common sense would dictate that if diarrhoea and vomiting prevents a person from attending to work and/or study, it also prevents them from attending a hearing (even an online hearing). The Tribunal did not acknowledge or engage with the new information in the No Reinstatement Second Decision. Before me, the Minister’s representative conceded the same.[68]
[68] Transcript P-10 at [32].
In his submissions filed on 18 April 2025, the Applicant submitted that,
8.The Tribunal’s refusal to grant a formal hearing on the basis that the medical certificate did not explicitly refer “attendance at a court hearing” is fundamentally flawed. The certificate clearly stated that the applicant was medically unfit to attend class or study due to symptoms such as diarrhoea and vomiting—conditions that would evidently render an individual unable to attend a formal proceeding. The Tribunal’s reasoning does not adequately engage with the substance of the medical evidence provided. Additionally, although the tribunal observed that the migration agent’s letter lacked coherence, no attempt was made to seek clarification or further information. The decision to deny an adjournment, and subsequently refuse reinstatement, was made without affording the applicant a full and fair opportunity to present his case. This constitutes a denial of procedural fairness and forms a valid ground upon which the decision should be set aside and the application reconsidered.
In the Applicant’s “Contentions of Law and Fact” filed on 22 May 2025 the Applicant further submitted that,
6.The Tribunal’s narrow reading of the medical certificate and failure to accommodate the applicant's circumstances not only lacked sensitivity to the health issue involved but also failed to uphold the principle of procedural fairness. The applicant was effectively denied the opportunity to present his case. Consequently, a judicial review application was initiated on the grounds of unreasonableness and breach of procedural fairness on 21 October 2019 along with affidavit.
7.As a consequence of the Tribunal’s dismissal and its refusal to reinstate the application, applicant has endured significant personal, academic, and financial hardship. His education and future career in Australia were abruptly disrupted, and his lawful status placed in jeopardy. The Tribunal’s strict and literal interpretation of the medical certificate failed to properly consider the genuine impact of his illness on his ability to attend the hearing, thereby denying him a fair opportunity to be heard.
8.Moreover, the Tribunal dismissed his migration agent’s supporting correspondence without seeking clarification or further information. These actions reflect a departure from the principles of procedural fairness, which require that a person affected by an adverse decision be given a genuine and reasonable opportunity to present their case. The outcome has resulted in disproportionate consequences for the applicant, warranting serious reconsideration of the process undertaken.
9.Procedural Fairness
The applicant was denied procedural fairness when the Tribunal dismissed his matter in his absence, despite receiving a timely adjournment request supported by a valid medical certificate. The certificate clearly outlined that the applicant was suffering from gastroenteritis, with associated symptoms such as vomiting, diarrhoea, and general weakness, and was medically unfit for study or work on the day of the hearing. These symptoms were of such nature that they would have significantly impaired his ability to attend or meaningfully participate in the hearing.
No reasonable accommodation was made by the Tribunal. The applicant was not offered an alternative mode of appearance, such as a telephone or online hearing, nor was the matter rescheduled to allow his participation. Instead, the hearing was dismissed for non-appearance, without any further inquiry or follow-up, despite medical evidence explaining his inability to attend. This failure to provide a reasonable opportunity to participate in the hearing process constitutes a clear breach of procedural fairness. The Tribunal failed to give appropriate weight and consideration to the medical evidence submitted in support of the applicant’s adjournment request and subsequent reinstatement application. The medical certificates clearly identified a diagnosed condition gastroenteritis and confirmed his inability to attend work or study on the relevant dates.
Rather than assessing the medical evidence in its proper context, the Tribunal dismissed it on the narrow basis that it did not explicitly mention an inability to attend a hearing. This overly literal approach ignored the practical implications of the illness and the real world effect such symptoms would have on a person’s capacity to appear and participate meaningfully in a legal process. A failure to genuinely engage with probative evidence amounts to an error of law and procedure
10.Natural Justice
Natural justice requires that a person affected by a decision must be given a fair and reasonable opportunity to be heard before that decision is made. In this case, the applicant’s inability to attend the hearing was properly explained and documented through medical evidence. Nevertheless, the Tribunal proceeded to determine the matter in his absence and made a contrary decision without allowing the applicant to present his case.
This failure to consider the applicant’s legitimate request for adjournment and to proceed in his absence disregarded his right to be heard and to respond to matters affecting his interests. Such conduct undermines the basic tenets of natural justice, particularly the right to a fair hearing. The dismissal of the hearing and the making of a decision without the applicant’s participation resulted in an unfair outcome and justifies setting aside the decision.
CONCLUSION
In light of the matters set out above, it is respectfully submitted that the Tribunal’s decision to dismiss the applicant’s application, and its refusal to reinstate the matter, was procedurally unfair, legally unreasonable, and failed to give proper consideration to relevant and probative evidence. The applicant acted in good faith, complied with all procedural requirements, and provided timely medical documentation confirming his genuine inability to attend the hearing. The resulting dismissal has caused disproportionate and unjust consequences. Accordingly, it is respectfully submitted that the dismissal decision should be set aside, the application be reinstated, and the matter be remitted to the Administrative Appeals Tribunal for reconsideration in accordance with law and the principles of procedural fairness.
In essence the Applicant complains that in refusing to reinstate his application the Tribunal acted so unreasonably as to deny him procedural fairness. The refusal to reinstate (and the original refusal to adjourn) meant the Applicant was denied an opportunity to appear before the Tribunal in circumstances were (it appears to be contended) his attendance would have had a significant effect upon the outcome of the application.
The Minister submitted that the Tribunal plainly considered the reinstatement request.[69] Further that,
[69] Minister’s submissions 2 May 2025, para [42].
43. Section s 362B(1C) provides as follows:
(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 362C; or
(b)confirm the decision to dismiss the application, by written statement under section 368.
44.The Full Court considered this provision in Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459 (Singh 2018), where Colvin J (with whom Kenny and Bromberg JJ) stated:
[29]When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is “appropriate” having regard to all of the circumstances advanced to support reinstatement. In such a context, the word “appropriate” connotes two aspects: fitness and propriety. That is, in order to be “appropriate”, something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaudron, McHugh and Gummow JJ that:
The phrase “considers … appropriate” indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.
[30]Relevantly for present purposes, the use of the word “appropriate” requires the Tribunal to make an assessment of all of the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the Tribunal could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification.
45.In Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 479 (Kumar), O’Bryan J found at [48] that in considering whether to reinstate an application, the question of whether the Applicant has a reasonable excuse for their absence at the hearing of their substantive application is a mandatory consideration for the Tribunal. It is the only mandatory consideration when a Tribunal is determining if it is appropriate to reinstate an application.
46.The Tribunal’s decision makes clear that it considered both the second medical certificate and the representative’s submission and found that they did “not contain any new matters which would cause the Tribunal to form the view that the applicant was unfit to attend the hearing on 20 September 2019 due to a medical condition”: paragraphs [5] and [9] of the Tribunal’s decision. That finding was open to the Tribunal and was made in a procedurally fair manner, where:
46.1.The Tribunal had advised the applicant in the hearing invitation that an adjournment request must be supported by a medical certificate certifying that he was unable to attend to give oral evidence, and indicate when the medical practitioner considered he would be able to do so. Further, paragraph [3] of the non-appearance dismissal decision conveyed that the adjournment request was refused on the basis that the first medical certificate stated that the applicant was not fit to attend work or study, but that attending the Tribunal to give evidence at a hearing was neither work nor study.
46.2.Neither the first nor the second medical certificate certified that the applicant was unfit to attend the Tribunal hearing for medical reasons, despite the Tribunal having clearly conveyed that this was what was necessary for the Tribunal to accept that the applicant had a reasonable reason for not attending the Tribunal hearing. The assertion in the representative’s submission that the medical practitioner had refused to state the applicant’s exact conditions and inabilities because it is not the practice of any practitioner to specify any specific inabilities other than ‘work or study’ (except for bed rest or weight specific limitations) was unsupported by any evidence. In these circumstances, it was open to the Tribunal to form the view that the evidence provided in support of the reinstatement request was not ‘suited to the particular circumstances’, in the sense described by Colvin J in Singh 2018 at [29], and that the applicant had not provided ‘a reasonable excuse for [his] absence at the hearing’, in the sense described by O’Bryan J in Kumar at [48].
46.3.Further, the assertion in the applicant’s written submissions that the Tribunal erred by not contacting the applicant or his representative to clarify the meaning of the representative’s submission cannot succeed. It is well established that the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence. It is also not the case that the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable.
47.While it would have been open to the Tribunal to reinstate the application, the test for legal unreasonableness is necessarily stringent, and it is not to be assessed through the lens of procedural fairness to an applicant. The Minister submits that the Tribunal’s decision not to reinstate the application plainly fell within a range of possible acceptable outcomes in the circumstances of this case.
48.In that respect, the Minister submits that the Tribunal’s decision was reasonably open to it based on the evidence before it. Neither medical certificate sought to address the critical question of whether, and if so why, the applicant’s medical condition prevented him from participating effectively in the hearing such that he had demonstrated a reasonable excuse for not appearing. The confirmation decision therefore did not lack an ‘evident and intelligible justification’, and is not affected by jurisdictional error on the basis of legal unreasonableness, nor can it be impugned by way of a failure to have regard to a mandatory relevant consideration. The applicant’s disagreement with that finding cannot, without more, establish jurisdictional error.
In ALU24 v Minister for Immigration and Multicultural Affairs[70] Judge Kendall observed that,
[70] [2025] FedCFamC2G 444.
134.As this Court explained in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673, legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4].
135.The principles of legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows,
...The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
...
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Liat [30], [66];Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Court as presently constituted respectfully adopts the above principles.
Therefore, the question in relation to Ground 2 is whether the No Reinstatement Decision (reached by the Tribunal on the basis of the Updated Medical Certificate) was a conclusion that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis.
The Tribunal’s No Reinstatement Decision asserts that “the updated medical certificate [does] not contain any new matters which would cause the Tribunal to form a view that the applicant was unfit to attend the hearing on 20 September 2019 due to a medical condition.” Such an assertion cannot be said to involve a reasoned decision in relation to Mr Khan’s non-attendance at the hearing 20 September 2019 because it is unexplained. In the absence of further reasons, it is not possible to understand the Tribunal’s “evident, transparent and intelligible justification” for not reinstating the application when faced with the Updated Medical Certificate. No decision-making process is disclosed. The Tribunal did not expound upon how it formed the view that diarrhoea and vomiting would not prevent the Applicant from attending the hearing on 20 September 2019. The Tribunal appears to have been fixated on the reference to an inability to attend “work/study” and not turned its mind to the consequences of the uncontested physical ailments being experienced by the Applicant. In these circumstances unreasonableness can be inferred.
In the first instance decision in Li[71] Burnett FM observed that,
The Tribunal’s reasons given for refusing the adjournment are not comprehensive. It should not be criticised for the brevity of them. However, the[y] are also devoid of expression in relation to a matter that ought to have been central to the decision…. The absence of some expression about that critical factor supports the suggestion that this matter, a very relevant matter, was not considered by the Tribunal in reaching its conclusion to proceed…
[71] [2011] FMCA 625.
The parallels with the present matter before the Court are obvious. In all the circumstances the No Reinstatement Decision constituted an improper exercise of power and went to the Tribunal’s jurisdiction.
This Court notes the stringent and highly demanding approach required to find unreasonableness. However, the No Reinstatement Decision (following the provision of the Updated Medical Certificate) lacks common sense. An application of common sense would have had the Tribunal conclude that if diarrhoea and vomiting prevented the Applicant from attending to “work/study” it would also prevent him from attending a hearing (even online). Consequently, legal unreasonableness can be inferred by the Tribunal’s plainly unjust decision not to reinstate the application.
The failure to reinstate was unreasonable. Consequently, Ground 2 establishes jurisdictional error.
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were infected by a jurisdictional error and the No Reinstatement Decision should be quashed. The application should be remitted to the Tribunal for a rehearing.
Accordingly, the application for judicial review is granted. The Court will hear the parties on costs.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 27 June 2025
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