O'Keeffe v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1515
•17 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
O’Keeffe v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1515
File number(s): MLG 1083 of 2023 Judgment of: JUDGE CORBETT Date of judgment: 17 September 2025 Catchwords: MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa - Application for judicial review – Whether Tribunal made jurisdictional error in dismissing review application after non-appearance - Whether applicant consented to waive hearing appearance - Application dismissed Legislation: Migration Act 1958 (Cth) s 360, 360(1), 360(2)(b), 362B, 362B(1), 362B(1A)(a), 362B(1A)(b), 362B(1E), 362C(5), 476, 477(2)
Migration Regulations 1994 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules r 13.13(a)
Cases cited: Akbar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 82
AYJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 510
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v SZFML [2006] FCAFC 152
O’Keeffe v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 325
Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 12 August 2025 Date of hearing: 12 August 2025 Place: Melbourne Solicitor for the Applicant: The first applicant appeared in person, self-represented Counsel for the Respondents: Mr C McDermott Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1083 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAUL NICHOLAS O'KEEFFE
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
17 September 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The application for judicial review filed 19 June 2023 is dismissed; and
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $4,800.00.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
The applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the second respondent (Tribunal) made on 18 May 2023. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (visa).
Reference in these reasons to ‘CB’ pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit ‘R2’.
BACKGROUND
The applicant is a citizen of Ireland (CB 3).
The applicant’s sponsor is a citizen of Thailand. He arrived in Australia on 7 February 2002 and was granted Australian citizenship on 16 May 2006 (CB 10, 39).
The applicant and his sponsor claim that they met on 28 February 2008 in Bangkok, Thailand (CB 15). They claim that they committed to a shared life together to the exclusion of all others on 5 May 2016 (CB 15).
On 12 July 2017, the applicant applied for the visa with the assistance of a registered migration agent (CB 1-35). Attached to the application was:
A statutory declaration from a friend/housemate who had known the couple for five months (CB 43); and
A statutory declaration from another friend who stated the couple were regulars at his restaurant (CB 41).
In the application, the only other details provided about their relationship was the following (CB 16):
Share household like groceries , bills
Our relationship is open to most of our friends, we go out together. Applicants family knows about their relationship
Applicant and sponsor would like to share rest of their life together
sponsor and applicant staying together since they have made a decision to share life . they have be socialized and their relationship has been known by most of family and friends.
On 9 November 2018, the Department sent the applicant’s registered migration agent a request for information to be responded to within 28 days, seeking further information regarding the relationship (CB 51-63). The applicant provided health and character checks in response to this request but did not provide further evidence to demonstrate that he and the sponsor were in an ongoing de facto relationship (CB 76).
On 23 April 2019, a delegate of the Minister refused to grant the applicant the visa (CB 71-78). The visa was refused because the evidence provided by the applicant was insufficient to demonstrate that the applicant was the de facto partner of the sponsor (CB 78).
On 13 May 2019, the applicant with the assistance of a registered migration agent lodged an application for review of the delegate’s decision with the Tribunal (CB 117-8).
On 15 March 2023, the Tribunal sent the applicant via his agent an invitation to attend a hearing scheduled for 3 May 2023 (CB 134-142).
On 20 March 2023, the applicant via his agent returned the completed response to hearing invitation and confirmed that the applicant and his sponsor would attend the proposed hearing (CB 143-7). The applicant also indicated he proposed to rely on further documents at the hearing (CB 145).
On 26 April 2023 at 11.02am, the Tribunal sent the applicant an SMS reminder regarding the hearing (CB 164).
On 2 May 2023 at 11.01am, the Tribunal sent the applicant another SMS reminder regarding the hearing (CB 164).
On 3 May 2023 at 10.30am, the application for review was listed for hearing in person before the Tribunal. The applicant and his sponsor did not appear. At 10.45am, an officer of the Tribunal tried to contact the applicant on the mobile phone number provided by the applicant to the Tribunal. There was no response. At 10.48am, an officer of the Tribunal phoned the applicant’s migration agent, but the agent said he had attempted to contact the applicant on both that day and the day prior but had not received a response (CB 164). The applicant was declared a ‘no show’ at 11.00am (CB 149-151).
Perhaps unbeknown to the Tribunal member at 10.57am on 3 May 2023, the applicant called the Tribunal and spoke to an officer to advise that he was not feeling well and would not be attending the hearing (CB 164). The note taken of the conversation by the Tribunal officer records that the applicant said that ‘he is happy for the Tribunal to make a decision based on what is in the file.’ The applicant is also recorded as saying that he thought the hearing was at 3.30pm and had missed calls. The Tribunal officer asked that the applicant put his message in writing for the Tribunal (CB 164).
On 3 May 2023 at 11.06am, the applicant sent an email the Tribunal as follows (CB 148):
My name is Paul O keeffe. My case number is 1911833 and was suppose to have a review heading today. I called to say I would be unable to attend as currently sick and understood that a decision would be made based on the evidence prodided. Also my sincerest apologies as I got the time of the hearing wrong thinking it was for 3.30pm instead of 10.30.
On 3 May 2023 at 1.08pm, the Tribunal sent the applicant’s agent a notification of decision to dismiss the application for non-appearance under s 362B(1A)(b) of the Act (CB 152-5). The letter of notification included a fact sheet that explained the process of seeking reinstatement within 14 days of the decision to dismiss (156-157). Later that day, the applicant’s migration agent sent an email to the applicant attaching the correspondence from the Tribunal with two attached PDF files (Exhibit R1).
The applicant did not apply for reinstatement of his application for review.
On 19 May 2023, the Tribunal notified the applicant’s migration agent in writing that the application for review had been dismissed on 18 May 2023 pursuant to s 362B(1E) of the Act (CB 159-162) (Decision).
TRIBUNAL’S DECISION
In the Decision, the Tribunal considered the notification of the dismissal decision and confirmed that the applicant was provided with a copy of a written statement setting out the non-appearance decision and the reasons for the decision, in accordance with s 362C(5) of the Act. The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement, and that a failure to apply would result in confirmation of the dismissal decision. The applicant did not apply for reinstatement within the 14-day period and in the circumstances, the decision of the delegate under review is taken to be affirmed.
PROCEEDINGS IN THIS COURT
An application for judicial review was filed in this Court on 19 June 2023 and identified the following grounds of review:
1. The making of the decision by the First Respondent was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, as the First Respondent failed to take into account a relevant consideration in exercising its discretion. The First Respondent failed to exercise jurisdiction by failing to address the meaning of De facto Partner under section SF or 5CB of the Migration Act. I believe that I meet clause 820.211(2) (a) of the Migration Regulations. I believe that my visa application should be further considered for approval. I am lodging my judicial review application for further assessment according to the law.
The First Respondent failed to understand the degree of hardship I will face if my visa application was refused and impact on my relationship with Australian Partner.
2.The making of the decision by the Second Respondent was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, the Second Respondent failed to exercise its discretionary power in accordance with rule or policy without regard to merit of the case.
The application for judicial review was supported by an affidavit of the applicant sworn on 16 June 2023 that annexed a copy of the correspondence from the Tribunal dated 19 May 2023 and a copy of the Decision. No explanation was given as to why the applicant did not appear at the hearing before the Tribunal, or apply for reinstatement of the application for review.
On 7 March 2025, the Minister applied for summary dismissal of the application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules (Rules). The application was unsuccessful. The Registrar found that the first ground of review did not have any reasonable prospects of success but that the second ground of review raised a possible argument that the telephone call at 10.57am and the email sent by the applicant at 11.06am on 3 May 2023 (CB 148) were a consent to proceed to determine the application for review without a hearing under s 360(2)(b) of the Act. If this was the case, the Tribunal did not have power to proceed to dismiss under s 362B(1A)(b) of the Act (see O’Keeffe v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 325 (O’Keeffe No 1)). The Registrar also referred to the decision of Horan J in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 regarding the need for the Tribunal to engage with the election to exercise the power to decide the review or dismiss under s 362B(1A)(a) or (1A)(b) of the Act.
Following the dismissal of the application for summary dismissal, the Registrar made orders on 7 March 2025 that the applicant file and serve any amended application, outline of written submissions, and any additional evidence by no later than 4 April 2025 and that the proceeding be fixed for final hearing. The applicant did not file or serve any amended application, further affidavit evidence or written submissions. The Minister prepared a Court Book and an outline of submissions as ordered.
At the final hearing before this Court on 12 August 2025, the applicant appeared in person unrepresented. The Court confirmed that the applicant had received the Court Book and the Minister’s outline of written submissions.
Mr McDermott of counsel appeared for the Minister.
APPLICANT’S SUBMISSIONS
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to inform the Court of the basis on which the Tribunal made any error.
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Decision.
It was also explained that this Court cannot review the merits of the Decision or grant the visa that is sought. 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 (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The primary submission made by the applicant was that he was denied the opportunity of a fair hearing before the Tribunal.
The applicant claimed that had he been given the opportunity of a hearing, he would have produced further evidence of the committed de facto relationship he had with his sponsor. The applicant said that he rang the Tribunal on the morning of the hearing to explain that he was unwell and unable to attend. He also sent an email to the Tribunal following that conversation (CB 148). He then received an email from his migration agent with a copy of the Tribunal’s first dismissal decision (Exhibit R1). He read the letter from the Tribunal but did not realise that he had a right to seek reinstatement of his application. The applicant said he simply saw the word ‘dismissed’ and thought that there was nothing more that he could do. The applicant claimed that his migration agent did not give him any advice or explain that he had a right to seek reinstatement. If he had done so, he claims that he would have applied for reinstatement within the 14 day period. The applicant then claimed that he suffers from dyslexia and he struggles to read and understand complex documents. He did not seek his sponsor/partner’s help to understand the correspondence from the Tribunal. The applicant submitted that he had no understanding of the law or requirements for proof of the criteria necessary to establish a de facto relationship for the purpose of applying for the visa. He looked to his migration agent for advice but claimed he received nothing except the email attaching correspondence.
The applicant also submitted that the Tribunal failed to take into consideration the phone call to the Tribunal on the morning of the hearing and the email he sent the Tribunal (CB 148). It was submitted that there was no indication in the Decision that these factors were taken into account by the Tribunal when deciding to dismiss the application for review for failure to appear. He submitted that there was additional evidence he wanted to put before the Tribunal regarding his de facto relationship, but that he was denied an opportunity to do so. The applicant submitted that the Decision should be set aside and the application for review remitted to the Tribunal to ensure he was ‘afforded procedural fairness’.
The applicant was asked why he did not put some of these matters (including his dyslexia) in an affidavit as he was ordered by the Registrar to do, to which the applicant responded that he had tried to obtain legal representation but the costs to do so was too expensive.
The applicant submitted that the visa refusal has caused him and his partner a lot of stress. They wish to stay together and have built a life in Australia together.
MINISTER’S SUBMISSIONS
On behalf of the Minister, Mr McDermott submitted that the application for judicial review is without merit and should be dismissed. The Minister relied on the outline of written submissions filed 19 May 2025 and a list and bundle of authorities filed 11 August 2025.
Notwithstanding the hearing before the Registrar and the reasons given following the hearing of the summary dismissal application, the applicant did not seek to amend the application for judicial review, supplement the evidence in support of the application for judicial review or file any submissions. There were also several other orders made by Registrars of the Court before 7 March 2025 that were not complied with by the applicant.
In relation to the grounds of review in the application for judicial review, the first ground had been dealt with and dismissed by the Registrar as untenable. In that ground, the applicant appeared to be seeking judicial review of the delegate’s decision which is a ‘primary decision’ that is not open to review by the Court pursuant to s 476 of the Act (see O’Keefe No 1 at [18]).
Mr McDermott also noted that insofar as the applicant sought to review the first decision of the Tribunal made 3 May 2023 (Non-Appearance Dismissal) (CB 155), the application for judicial review was out of time and an extension of time was required under s 477(2) of the Act. Because the application for judicial review was only 12 days late in relation to the Non-Appearance Dismissal but within time for judicial review of the Decision made 18 May 2023 (Dismissal Decision) (CB 161-2), the Minister consented to an extension of time. Further, the Minister was proceeding on the assumption that the application for judicial review was directed to both the Non-Appearance Dismissal and the Dismissal Decision because it would be futile to quash the Dismissal Decision but not the Non-Appearance Dismissal.
In relation to the broad allegation of a denial of procedural fairness made by the applicant, Mr McDermott submitted that the Tribunal complied with the obligation to invite the applicant to a hearing pursuant to s 360 of the Act. Further, in the letter of hearing invitation, the Tribunal said, ‘We have considered the materials before us but we are unable to make a favourable decision on this information alone’ (CB 135-142).
The invitation letter also made plain that the Tribunal may receive and take further evidence and that any further documents to be relied on should be filed with the Tribunal at least seven days before the date of the proposed hearing. The applicant did not file any further documents. The invitation letter also clearly stated the consequences for non-appearance and the possibility of reinstatement if an application is dismissed for non-appearance (CB 137 and 142).
The applicant also completed a signed response to hearing invitation indicating that the applicant and his sponsor would appear at the hearing (CB 144-7).
The Tribunal fulfilled the requirement under s 360(1) of the Act to invite the applicant to appear to give evidence and present arguments. The hearing was meant to take place in-person, in Melbourne (CB 135). The response to hearing invitation signed on 16 March 2023 had no indication that the applicant would not be able to appear in person and there were no subsequent requests to attend via video link (CB 146). The Tribunal had sent the applicant SMS hearing reminders prior to the hearing (CB 164). The hearing was supposed to begin at 10.30am, but the Tribunal waited until 11.00am to call the no-show (CB 151). The applicant’s authorised agent had not appeared, and upon being contacted by the Tribunal, the agent confirmed that he had been unable to contact the applicant as well (CB 164).
On 3 May 2023 at 1.08pm, the Tribunal emailed the Non-Appearance Dismissal decision to the applicant’s agent (CB 152). There was no dispute that the decision was received together with the fact sheet. The PDF documents attached to the email at CB 152 and the email from the agent to the applicant (Exhibit R1) have the same identifying numbers. There was then no application for reinstatement, the consequence of which was that the Tribunal was bound to make the Dismissal Decision pursuant to s 362B(1E) of the Act. There was no jurisdictional error by the Tribunal in making the Decision as it was required by statute to do so. There was no improper exercise of power (ground two of the application for judicial review) by the Tribunal in making the Decision. There was no denial of procedural fairness and no jurisdictional error by the Tribunal.
Further, not only did the absence of an application for reinstatement mean that the Tribunal was bound to the result, even if the applicant had applied for reinstatement, reinstatement was not guaranteed unless the applicant had good cause for his non-appearance. There was no suggestion that the applicant did not receive notification of the hearing and there was no evidence of grounds of reinstatement that the Tribunal should have considered. No explanation was given as to why the applicant mistakenly thought the hearing was at 3.30pm and not 10.30am. The invitation letter was clear as to the time and place of the hearing, and the applicant confirmed that he would attend.
The only issue of controversy available to the applicant (which was not ventilated in the application for judicial review) was the issue identified by the Registrar in O’Keeffe No 1 regarding the application of DNK17, and whether the decision to dismiss under s 362B(1A)(b) was legally reasonable in the circumstances. This also involved consideration of whether the applicant consented pursuant to s 360(2)(b) of the Act to the Tribunal deciding the review without the applicant appearing before it.
It was submitted that the email from the applicant at 11.06am on 3 May 2023 (CB 148) was after the scheduled hearing had commenced, and not before. If the applicant had notified the Tribunal before the commencement of the hearing that he consented to the Tribunal deciding the review without an appearance, then the Tribunal would have been unable to exercise power under s 362B(1A)(b) of the Act and would be exceeding its jurisdiction in dismissing for non-appearance (see Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110 at [35] and [56] per North, Bromberg and Bromwich JJ and Akbar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 82 at [52]-[58] per Judge Kendall). This is because the applicant loses the power or entitlement to appear by operation of s 360(3) of the Act. Ipso facto the application for review cannot be dismissed for non-appearance if there is no entitlement to appear, and the Tribunal must decide the application without a hearing.
Where the applicant notifies of consent after the scheduled hearing, the power to dismiss for non-appearance is not lost because s 362B(1) of the Act is enlivened when the applicant has been invited to appear and then does not appear ‘on the day on which, or at the time and place at which, the applicant is scheduled to appear’. The words in the preamble to s 362B ‘This section applies…’, when construed according to the ordinary and literal meaning of the words used, enliven the power to dismiss and subsequent conduct does not remove the jurisdiction to dismiss for non-appearance. No authority was cited to support that proposition and perhaps not surprisingly as it is a novel proposition given the unique circumstances of this case.
It was submitted on behalf of the Minister that once s 362B of the Act is enlivened, the Tribunal had three options available:
(a) under s 362B(1A)(a) of the Act, to make a decision without taking any further action to allow or enable the applicant to appear;
(b) under s 362B(1A)(b) of the Act, to dismiss the application without any further consideration of the application or information before the Tribunal; or
(c) under s 362B(2) of the Act, to reschedule the hearing, or delay its decision in order to enable the applicant’s appearance as rescheduled.
The Tribunal elected to pursue option (b) and the Tribunal’s reasons in the Non-Appearance Dismissal (CB 155) evince an ‘evident and intelligible justification’ for the election made (see DNK17 at [70]). Therefore, the election or decision made by the Tribunal was legally reasonable and within the realm of decisional freedom available to the Tribunal (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] per French CJ and [66] per Hayne, Kiefel and Bell JJ).
It was submitted that the applicant’s lack of engagement with the Tribunal regarding the merits of the application for review, failure to supply documents as indicated in the response to hearing invitation and the responses received from the applicant about the reasons for non-appearance (had they been known to the Member) meant that the election to dismiss with the right of reinstatement was a reasonable option in the circumstances.
In relation to the applicant’s claimed dyslexia, counsel submitted that there was no evidence to support the claim but even assuming that the applicant did suffer from some form of dyslexia, that did not explain the failure to appear at the hearing or to seek assistance regarding the correspondence from the Tribunal following the Non-Appearance Dismissal from either his migration agent, sponsor or some other person. Any disability is not a reason for quashing the Decision or remitting the application for review to the Tribunal, especially where there is no evidence to suggest that the Tribunal was made aware of the disability or that the applicant might experience difficulty in participating in a hearing. In the response to hearing invitation, the applicant told the Tribunal that there was no reason to believe the applicant would experience difficulty in participating in the hearing (CB 145).
REPLY
In reply, the applicant submitted that correspondence from the Tribunal should have been sent to him personally and not his migration agent. He claimed that he did not receive any calls from his migration agent the day before the hearing, as is asserted in the Tribunal case notes. He said that he did receive some missed calls on the day of the hearing, but did not know who they were from. His agent did not tell him of the right to seek reinstatement, and his sponsor is unable to read and understand complex documents in English. He claimed that he misread the hearing invitation due to his dyslexia. The applicant asserted that the Tribunal should have adjourned the hearing on 3 May 2023 when he did not attend. When asked by the Court why he did not obtain medical evidence to explain his disability, the applicant sought an adjournment of the hearing to obtain legal representation.
The application for an adjournment was opposed by the Minister and denied by the Court due to the delay in seeking an adjournment, the advanced state of the hearing and the absence of evidence to support a further indulgence from the Court, especially where there had been ample opportunity to obtain representation, a summary dismissal application and several orders by the Court for the filing of further evidence and submissions, none of which had been complied with. Further, even assuming that the applicant did suffer from dyslexia and did not understand communications from the Tribunal, that did not mean that it was unreasonable for the Tribunal to dismiss the application for judicial review in circumstances where his special needs were not made known to the Tribunal and the applicant told the Tribunal that he intended to attend the hearing without representation, but ultimately did not appear or seek reinstatement.
CONSIDERATION
Section 360 of the Act requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal did so in this case on 15 March 2023, and nominated an in person hearing to take place at Melbourne on 3 May 2023 at 10.30am (AEST) (CB 135-7).
The applicant responded positively to the invitation on 20 March 2023, indicating an intention to attend in person with his sponsor and that he did not suffer from any health problem or disability, and would not experience any difficulty participating in the hearing (CB 145).
The hearing proceeded at 10.30am on the allocated date. The applicant did not attend nor did his registered migration agent, who remained as the designated point of contact and communications for the Tribunal (CB 118). The Tribunal also sent SMS reminders of the hearing to the applicant’s mobile phone number on 26 April 2023 and 2 May 2023 (CB 164). On the morning of the hearing and after the applicant did not appear, an officer of the Tribunal rang the applicant on his mobile phone number at 10.45am, but there was no response. The same officer also rang the applicant’s agent, who said that he had been unable to contact the applicant the day before. The agent is not recorded as seeking an adjournment on behalf of his client. The Tribunal member then waited until 11.00am before proceeding to dismiss the application for review for non-appearance at 11.22am.
Meanwhile, the applicant had contacted another officer of the Tribunal by telephone at 10.57am notifying that he was unwell and would not be attending the hearing. The applicant is recorded as saying that he was happy for the Tribunal to make a decision based on what is in the file (CB 164). This was followed by an email from the applicant to the Tribunal at 11.06am (CB 148). In that email, the applicant said, ‘I called to say I would be unable to attend as currently sick and understood that a decision would be made based on the evidence provided’. At that time, the only evidence provided was the evidence before the delegate, upon which the application for the visa was refused.
It is unclear whether the telephone conversation at 10.57am or the email of 11.06am were brought to the attention of the presiding member before dismissing the application at 11.22am. However, even if they had been, there is nothing that is unreasonable in the Tribunal exercising the power to dismiss under s 362B(1A)(b) of the Act in circumstances where the applicant had not actively engaged with the hearing process (other than confirming he would attend) and then did not appear. This was not a case where the Tribunal exercised the power to decide the application for review under s 362B(1A)(a) or s 426A(1A)(a), as had occurred in DNK17 where the applicant had engaged with the Tribunal and had made requests for an adjournment before the scheduled hearing date. In those circumstances, Horan J considered that it was unreasonable for the Tribunal to not express reasons why it did not simply dismiss the application under s 426A(1A)(b) of the Act but instead elected to decide the application under s 426(1A)(a) of the Act. However, as Horan J observed in DNK17 at [72], the application of the principles of 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.
In [87]-[98] of DNK17, his Honour explains the differences and decision pathways available to the Tribunal when presented with non-appearance by an applicant at a scheduled hearing. At [105], his Honour held that it was unreasonable in the circumstances of that case for the Tribunal not to explain its reasons for deciding not to exercise the power to dismiss under s 426A(1A)(b) (which is substantially the same as s 362B(1A)(b) of the Act). This was because the Tribunal did not provide any intelligible justification for electing not to dismiss for non-appearance.
The Non-Appearance Dismissal decision of the Tribunal made on 3 May 2023 (CB 155) did disclose an intelligible justification for electing to dismiss under s 362B(1A)(b). That was because an invitation had been given under s 360 of the Act, pursuant to a means approved by s 379A(5) of the Act and that despite reminders and a courtesy call, ‘…No satisfactory reason for non-appearance has been given’. It was not unreasonable for the Tribunal to have expressed reasons for not simply adjourning or postponing the hearing under s 362B(2) when no request for an adjournment or other explanation for non-attendance had been received prior to the date and time of the hearing.
Even if the Tribunal member was notified of the substance of the telephone call at 10.57am or the email at 11.06am (which was after the time for appearance) or is deemed to have constructive notice of them, there was no request for an adjournment that would enliven the discretion to adjourn or reschedule. The option to dismiss under s 362B(1A)(b) was an option that allowed the applicant to show cause on proper material why he did not appear and why there was merit in his application if he genuinely wished to pursue the review. The telephone conversation as recorded and the applicant’s email suggest that the applicant accepted that the Tribunal would decide the application without a further hearing. Therefore, if those matters were known to the Tribunal member (which is unclear), then the election to dismiss rather than adjourn would give the applicant a reasonable opportunity to reconsider his position within 14 days, including the opportunity to place further evidence before the Tribunal if he wished to do so. The decision to dismiss with the possibility of reinstatement was within the bounds of legal reasonableness and had an evident and intelligible justification. In the words of Horan J in DNK17 at [97], it left the ‘applicant with a brief window of opportunity in which to seek reinstatement of the review application’ when his application was bereft of sufficient detail.
The Registrar in Okeefe No 1 also raised the possibility that the telephone conversation and email were arguably a consent by the applicant to the Tribunal deciding the review without a hearing under s 360(2)(b) of the Act. If so, then the Tribunal may not have jurisdiction to dismiss under s 362B(1A)(b) and 362B(1E) because there was no entitlement to appear. Although not specifically raised by the applicant in the application for judicial review or any amended application, the Court is conscious of the duty of the Court to provide reasonable assistance to litigants in persons to advance arguments available to further their cause and to ensure that a trial is fair (see AYJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 510 at [23] per Hill J).
The note of the telephone conversation records that the applicant was ‘happy’ for the Tribunal to make a decision based on what is in the file. The email is in different terms. In the email the applicant says that he ‘…understood that a decision would be made based on the evidence provided’. That does not suggest knowing consent to waive a hearing, but rather that the applicant’s state of mind was that the Tribunal would proceed regardless and in his absence. It does not clearly reflect acceptance of a determination of the application without a hearing. In Minister for Immigration and Multicultural Affairs v SZFML [2006] FCAFC 152 at [74], a Full Court of the Federal Court held that where an applicant has been invited to attend a hearing by the Tribunal for the Tribunal to determine an application for review without a hearing, there must be non-appearance or ‘effective consent’ from the applicant. Effective consent was not explained by the Court apart from by reference to the facts in that case where the applicant’s agent waived appearance at the hearing without the applicant’s knowledge or instructions. Consent in those circumstances was not ‘effective’. In this case, the evidence is equivocal as to the applicant’s actual state of mind and knowledge of the consequence of waiving the entitlement to a hearing. I am not persuaded that the applicant gave ‘effective consent’ to the Tribunal proceeding to determine the application without a hearing.
I also agree with the submission made on behalf of the Minister that the correct construction to be given to s 360 of the Act is that consent to waive a hearing, after an invitation has been sent, must be given before the time that the hearing is scheduled to occur. After that time, if the applicant has not appeared, then the Tribunal is faced with the three options identified by counsel for the Minister in his Outline of Written Submissions (see [49] above) and Horan J in DNK17 at [55] and [62]. That is consistent with the plain meaning of the words used in s 362B(1)(a) of the Act. If the applicant 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, then section 362B applies and thereafter the Tribunal has three options as to how to proceed. The decision to proceed must be within the bounds of legal reasonableness and have an evident and intelligible justification, but the applicant’s subsequent consent does not vitiate the jurisdiction created under s 362B or make an election by the Tribunal invalid.
However, if I am wrong and the applicant did consent to waive an appearance before the Tribunal and the powers conferred by s 362B(1A) of the Act were not available to be exercised and there was jurisdictional error in making the Non-Appearance Dismissal decision, then in the circumstances of this case, that error was not a material jurisdictional error (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9] and [10]). Even if the Tribunal considered the application in the absence of the applicant and his sponsor, the outcome would have been the same due to the lack of evidence to establish the de facto relationship claimed. The decision of the Tribunal to dismiss the application would not ‘realistically’ have been different had the applicant been taken to have consented to waive a hearing. In the invitation letter provided under s 360 of the Act, the Tribunal stated that it was unable to make a favourable decision on the information before it. That information did not change between the date of the invitation and the date of the proposed hearing on 3 May 2023. Without further evidence and submissions (of which there was none), then the inevitable outcome of the application if it was decided in the applicant’s absence was that it be dismissed. That was the conclusion reached in the Decision, and there is nothing to suggest another Tribunal considering the same application with the evidence could have decided differently.
The application for judicial review is dismissed.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $4,800.00, which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth). The sum of $4,800.00 is fair and reasonable in the circumstances, including the costs reserved by the Registrar in relation to the partially unsuccessful application for summary dismissal, and will be ordered to be paid by the applicant.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’, which is the current Ministerial title which changed on 13 May 2025. An order will be made amending the name of the first respondent and the title to the proceeding.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The application for judicial review filed 19 June 2023 is dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $4,800.00.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 17 September 2025
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