Shakya v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1152
•24 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shakya v Minister for Immigration and Citizenship [2025] FedCFamC2G 1152
File number: MLG 1405 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 24 July 2025 (and delivered by Judge Humphreys by telephone pursuant to s 210 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal acted reasonably when exercising its discretion to dismiss the applicant’s review application under s 362B of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the applicant’s medical evidence – whether the Tribunal failed to consider relevant considerations or circumstances – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 357A, 360, 360A, 362B, 362C, 379A, 379G, 425, 426A, 476 & 499 and Division 5 of Part 5
Migration Regulations 1994 (Cth), reg 4.21 and cll 500.211 & 500.212 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30
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 & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 273
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 20 June 2025 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Woollett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1405 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARPAN SHAKYA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 JULY 2025
THE COURT ORDERS THAT:
1.The application (as amended on 20 June 2025) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Recent Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to two decisions made by the then Administrative Appeals Tribunal (the “Tribunal”). Those decision are dated 10 April 2019 and 26 April 2019 and thus predate those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decisions (or as at the date of any relevant matter referenced in this judgment).
At the time that the application for judicial review was filed (being on 8 May 2019), the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter before this Court on 20 June 2025) substituting the ART as the second respondent in this proceeding.
The applicant’s migration history
The applicant is a citizen of Nepal (Court Book (“CB”) 12-14 & 29-30). He first arrived in Australia in February 2008 as the holder of a Student (Class TU) Higher Education Sector (Subclass 573) visa which was granted based on his enrolment in a Master of Professional Accounting course (the “Masters course”) (CB 53).
On 6 October 2017, the applicant applied for the Student (Class TU) (Subclass 500) visa (the “visa”) the subject of the application before this Court (CB 11-28). With his visa application, the applicant provided a “Statement of Purpose”, a copy of his passport, a completed “Form 956 – Advice by a migration agent/exempt person of providing immigration assistance” document appointing a migration agent to assist with his visa application (the “representative”), overseas student health cover documents and other supporting materials (CB 29-43).
Later that same day (also on 6 October 2017), the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the applicant’s visa application (CB 44-45).
On 28 October 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 51-58). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and thus found that he did not satisfy cl 500.212(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 58).
On 3 November 2017, the applicant sought review of the delegate’s decision by the Tribunal (CB 59-60). In his review application, the applicant asked that all correspondence be sent to his representative and provided the Tribunal with an email address to enable it to do so (CB 60).
On 6 November 2017, the Tribunal acknowledged receipt of the applicant’s review application (by email and through the applicant’s representative) (CB 63-66).
On 25 February 2019, the Tribunal invited the applicant (by email and through his representative) to provide information in support of his review application by completing a “Request for Student Visa Information” form (the “questionnaire”) (CB 67-75).
On 8 March 2019, the applicant’s representative provided the completed questionnaire to the Tribunal (via email) (CB 76-90).
On 26 March 2019, the Tribunal invited the applicant (by email and through his representative) to appear at a hearing before it, scheduled to take place on 10 April 2019 at 1.00pm (the “hearing invitation letter”) (CB 91-95).
The hearing invitation letter relevantly stated (CB 94-95):
Other things to note
If you are not able to attend the hearing, you need to advise me as soon as possible.
Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment.
If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you 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.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
We may make a decision at the end of your hearing.
With that hearing invitation, the Tribunal also provided the applicant with a document titled “Information about hearings” (the “hearing information factsheet”) (CB 96-99).
That hearing information factsheet relevantly stated (CB 98-99):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department’s decision remains in force.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
On 3 April 2019 (at 11.01am), the Tribunal sent the applicant a reminder text message (sent to the applicant’s mobile phone number as provided in his Tribunal review application form) which stated as follows (CB 106):
Reminder - Your AAT hearing is on 10/04/19. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
On 9 April 2019 (at 11.00am), the Tribunal sent the applicant a further reminder text message (again, sent to the applicant’s mobile phone number as provided in his Tribunal review application form). That second reminder message was in the same terms as the initial reminder message (outlined above) (CB 106).
The applicant did not attend the Tribunal hearing on 10 April 2019 at the scheduled start time of 1.30pm (CB 104-105).
That same day (being on 10 April 2019 at 3.35pm), the Tribunal dismissed the application for non-appearance pursuant to s 362B(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 110).
The applicant was notified of that Non-Appearance Decision (and advised of his right to apply for reinstatement) by letter sent that same day (being on 10 April 2019) via email to the nominated email address of his representative (CB 107-109). That letter stated (CB 109):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 24 April 2019. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
With that notification letter, the Tribunal also gave the applicant a fact sheet titled “Information about dismissal of applications” (the “dismissal fact sheet”) (CB 111-112).
The dismissal fact sheet relevantly stated (CB 111):
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
The applicant did not seek reinstatement (CB 117 at [4]).
On 26 April 2019, the Tribunal confirmed the Non-Appearance Decision made on 10 April 2019 (the “Confirmation Decision”) (CB 116-117). By virtue of s 362B(1F) of the Act, the delegate’s decision was taken to be affirmed.
On 29 April 2019, the applicant was notified of the Confirmation Decision by letter sent to him through his representative (at the nominated email address provided for that representative) (CB 113-115). With that notification letter, the Tribunal provided the applicant with a further copy of the dismissal fact sheet (CB 111-112).
On 8 May 2019, the applicant applied to the then Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s Confirmation Decision (CB 1-6). The applicant provided an affidavit with that application (annexing a copy of the delegate’s decision and associated notification letter, the Tribunal’s Confirmation Decision and a medical certificate dated 8 April 2019) (CB 7-10).
In its duty to unrepresented litigants, this Court will consider whether the Tribunal fell into jurisdictional error in relation to both the Non-Appearance and the Confirmation Decisions.
THE TRIBUNAL’S DECISIONS
The applicant’s judicial review application is brought pursuant to s 476 of the Act. In order to succeed before this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to first set out the Tribunal’s decisions.
The Non-Appearance Decision
The Non-Appearance Decision dated 10 April 2019 provided as follows (CB 110):
1.The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 10 April 2019 at 13:30pm. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The Confirmation Decision
The Confirmation Decision dated 26 April 2019 provided as follows (CB 117):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).
2.On 26 March 2019, the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
APPLICATION TO THIS COURT
The application for judicial review (filed in the then FCCA by the applicant on 8 May 2019) contained eight “grounds of review” as follows (without alteration) (CB 4):
•The decision by a delegate of the Minister for Immigration to refuse to grant my Student (Temporary) (Class TU) visa was made under s.65 of the Migration Act 1958 (the Act). The major issue was whether the delegate properly exercise his power under s 499 of the Act.
•Following section 5 of the Administrative Decisions (Judicial Review) ACT 1997, (ADJR), the tribunal should take into account relevant consideration in the exercise of his power.
•My student visa was refused on 28 October 2017 and I applied for the review for the decision.
•I was invited for the hearing on 10 April 2019 however I was unable to attend the hearing due to the medical condition.
•The tribunal dismissed my application for review on 26 April 2019 and affirm the decision of the Department.
•I was not able to attend the hearing due to my medical situation and I have been following up with my doctor for the same.
•Any decisions of the delegates should be fair and reasonable. I did not have any opportunities to explain my reasons why I was without COE and why the student visa should have not been refused.
•Therefore, the tribunal failed to take into account all relevant circumstances and there is an error of law in the delegate’s decision.
On 22 September 2021, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any supplementary Court Book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court (by video link on 20 June 2025) without legal representation. Ms Maggie Woollett (“Ms Woollett”) from the Australian Government Solicitor appeared on behalf of the Minister (also by video link). The Court asked the applicant to confirm that he had received copies of the CB and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 8 May 2019 (the applicant’s affidavit being taken as read and in evidence at the hearing on 20 June 2025), a CB numbering 117 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 29 May 2025 and the affidavit of service of Ms Woollett (also taken as read and in evidence at the hearing of this matter).
The Court noted that the applicant’s judicial review application only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Court explained this issue to the applicant and, with his agreement, made an order amending the application for judicial review to include a request for a writ of mandamus. Ms Woollett (for the Minister) did not object to that course of action.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, 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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; 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 that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that he was a genuine student and had “studied without any breaks”. He also told the Court that his “plan was to take all of [his] qualifications and start a business in Nepal”. Noting that Nepal is not a very developed country, the applicant was of the view that he could not just “start any business without any qualifications” there. The applicant told the Court that he had studied a few different courses to gain knowledge, however, “when it came to the last one”, the Department said he was “not serious” about his studies and his visa was not granted. The applicant stated that he was “so upset” and “at the same time, [his] father was very sick with kidney failure” and then “passed away in 2016/2017”. He was then “very distracted and could not concentrate” on his studies.
The applicant also told the Court that he had “already decided to leave” and asked that, if the decision was not in his favour, if the Court could “allow [him] to have some time to arrange things before [he has] to leave” Australia.
Unfortunately, the applicant’s comments do not raise any issue of jurisdictional error of the sort that this Court can address.
This leaves the Court to assess the applicant’s grounds of review without further assistance from the applicant. Noting that the applicant did not have legal assistance, the Court will, in its duty to the applicant as an unrepresented litigant, review the Tribunal’s decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
CONSIDERATION
As outlined above, the applicant was not legally represented. Upon review of the applicant’s judicial review application (filed in the then FCCA on 8 May 2019), the Court (attempting to assist the applicant as much as possible) considers the applicant to have raised the following issues for consideration:
(a)whether the Tribunal acted reasonably in exercising its discretion to dismiss the applicant’s review application under s 362B of the Act;
(b)whether the Tribunal failed to consider the applicant’s medical evidence;
(c)whether the Tribunal failed to consider relevant considerations or circumstances; and
(d)whether the Tribunal failed to afford the applicant procedural fairness.
Whether the Tribunal acted reasonably in exercising its discretion to dismiss the applicant’s review application under s 362B of the Act
As explained by this Court in Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 273, the power to dismiss an application for non-appearance was found in s 362B(1A)(b) of the Act. The statutory preconditions required for the Tribunal to exercise that power were found in s 362B(1) of the Act and relevantly provided as follows:
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Here, the applicant was invited to attend a Tribunal hearing by an invitation sent to the applicant’s representative by email on 26 March 2019 (CB 91-95). That hearing invitation letter:
(a)clearly outlined (on the first page, CB 93) the date (10 April 2019), the time (1.30 pm (VIC time)) and the location (at the Tribunal’s address in Melbourne) of the hearing: s 360A(1) of the Act;
(b)was sent to the applicant via email sent to his authorised representative (CB 91-92). Section 379G of the Act required that, where an applicant had given the Tribunal written notice of an authorised recipient, the Tribunal must give documents to that authorised recipient rather than to the applicant: s 379G(1) of the Act. Further, if the Tribunal had given a document to that authorised recipient, the Tribunal was taken to have given the document to the applicant: s 379G(2) of the Act. Section 379A(5) of the Act indicated that the Tribunal could validly transmit material to the applicant or his representative via email: s 360A(2) of the Act;
(c)stated that, if the applicant failed to attend the hearing, the Tribunal might make a decision without taking any further action and that, in those circumstances, the applicant would be entitled to apply to have the dismissed case reinstated within 14 days of receiving notice of the dismissal (CB 95): s 360A(5) of the Act; and
(d)provided the applicant with notice in excess of the 14 day period as prescribed in reg 4.21(4) of the Regulations (the Tribunal gave the applicant 15 days’ notice): s 360A(4) of the Act.
The applicant did not dispute that he was aware of the Tribunal hearing. Nor did he dispute that he did not appear at the scheduled Tribunal hearing. The Tribunal’s hearing record also makes this clear (CB 104-105).
In those circumstances, the statutory preconditions required for the Tribunal to the exercise the power set out in s 362B(1A)(b) of the Act were met.
The power under s 362B(1A)(b) was discretionary. Accordingly, the Tribunal was required to act reasonably in exercising that power. To the extent that the applicant suggested that the Tribunal’s exercise of that discretionary power was unreasonable, the Court disagrees for the reasons that follow.
In Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 (“SZVFW”), the High Court considered the reasonableness of the exercise of the power in s 426A(1A)(b) of the Act. Relevantly, s 426A(1A)(b) of the Act was in the same terms as s 362B(1A)(b) of the Act. Accordingly, the principles in SZVFW were equally applicable to the current circumstances. In SZVFW, the Chief Justice stated that “clearly enough, s 426A is directed to the aims of efficiency contained within” the statutory “objective of providing a mechanism of review that is fair, just, economical, informal and quick”. Justice Gageler continued:
68. The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.
69. Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.
70. Nothing before the Tribunal took the respondents’ application for review into the realm of the extraordinary. To the contrary, the respondents’ failure to respond to the earlier invitation from the Minister’s Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggested that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.
In relation to this matter, the Court does not consider the Tribunal’s decision to dismiss the application pursuant to s 362B(1A)(b) to have been “unreasonable”. Relevantly:
(a)as outlined above, the applicant was properly invited to attend the hearing. In addition to the information contained in the hearing invitation letter, the applicant was also provided with the hearing information factsheet which explained in some detail what would happen if the applicant did not attend the hearing (CB 98-99);
(b)the applicant was also sent two SMS reminder texts (seven days and one day prior to the hearing respectively) (CB 106);
(c)the applicant’s representative provided a completed questionnaire to the Tribunal on 8 March 2019 (approximately one month prior to the Tribunal hearing) and indicated in that questionnaire that the applicant did not require an interpreter for any hearing and provided no unavailable dates within the following three months that the applicant would “not be available to attend a hearing at the Tribunal” (CB 80); and
(d)neither the applicant nor his representative requested an adjournment of the scheduled hearing. Nor did the applicant or his representative contact the Tribunal advising that they were unable to attend.
To the extent that the applicant now claims that he was unwell and was thus unable to attend the Tribunal hearing, the Court will consider that claim separately below.
The Court is otherwise satisfied that the Tribunal acted reasonably in dismissing the applicant’s review application on the basis of his failure to attend the Tribunal hearing (by way of the Non-Appearance Decision).
In relation to the Confirmation Decision, the Court notes that the Tribunal was required to properly notify the applicant of the Non-Appearance Decision: s 362C of the Act. The Tribunal did so in this matter by:
(a)providing a written statement (the Non-Appearance Decision) (CB 110) which satisfied all of the requirements set out in s 362C(2) of the Act;
(b)sending the Non-Appearance Decision to the applicant’s representative via email (a method specified in s 379A of the Act) on the same day that the decision was made (i.e., within 14 days of the Non-Appearance Decision) (CB 107-109) – thus satisfying s 362C(5) of the Act; and
(c)stating in the cover letter that the applicant could apply for reinstatement in writing by 24 April 2019 and providing the dismissal factsheet which explained how the applicant could apply for reinstatement (CB 111-112) thus satisfying s 362C(6) of the Act.
Having properly notified the applicant of the Non-Appearance Decision (through his representative), in the absence of any request for reinstatement, the Tribunal was required to confirm the Non-Appearance Decision: s 362B(1E) of the Act.
There was no discretion for the Tribunal to do otherwise.
Given that the Tribunal came to the only decision open to it in the circumstances of this case, the Confirmation Decision cannot be considered unreasonable.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to consider the applicant’s medical evidence
The applicant states that he “was not able to attend the [Tribunal] hearing due to [his] medical situation” and had “been following up with [his] doctor for the same”.
The Court notes that the applicant also provided a medical certificate (dated 8 April 2019) with his judicial review application (annexed to his affidavit). That medical certificate stated that the applicant was “receiving medical treatment for the period of Monday, 8 April 2019 to Thursday, 11 April 2019 inclusive”. The medical certificate also stated that the applicant would “be unfit to continue his usual occupation” during that period of time.
Unfortunately, there is no evidence before the Court to suggest that the applicant provided that medical certificate to the Tribunal, either prior to the Tribunal hearing or after it. In fact, the Tribunal stated (in its Non-Appearance Decision) that “no satisfactory reason for the non-appearance ha[d] been given” (CB 110, at paragraph [2]).
Whilst the time period covered by the applicant’s medical certificate included the date of the Tribunal hearing (being on 10 April 2019), the medical certificate did not state that the applicant was unable to attend a Tribunal hearing or provide any explanation as to why he would not be able to do so.
In any event, as outlined above, there is no evidence to suggest that the medical certificate was provided to the Tribunal. Nor did the applicant claim (at the hearing before this Court) that the medical certificate was provided to the Tribunal (either prior to the Tribunal hearing or after).
The applicant also made no claim to have requested reinstatement of his application following the Non-Appearance Decision, either within the 14-day time period allowed or at all. As outlined above, the Tribunal notified the applicant of the Non-Appearance Decision and advised him of his right to apply for reinstatement by letter dated 10 April 2019 (sent to the applicant via email to the nominated email address of his representative) (CB 107-109).
That notification letter stated (CB 109):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 24 April 2019. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The applicant was also provided with a copy of the dismissal fact sheet at that time. The dismissal fact sheet relevantly stated (CB 111):
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
The applicant did notify the Tribunal that he had been unwell or advise that he was unable to attend the Tribunal hearing due to illness. Nor did his representative. In the absence of any explanation being provided to the Tribunal for the applicant’s non-attendance, the Tribunal acted reasonably in dismissing the application on the basis of the applicant’s non-appearance.
Further, neither the applicant nor his representative sought reinstatement (CB 117 at [4]).
Evidence provided to this Court that was not before the Tribunal cannot be relied upon to establish jurisdictional error on the part of the Tribunal. That is, the Tribunal cannot be found to have erred by failing to consider information that was not provided to it.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to consider relevant considerations or circumstances
The applicant claims that the Tribunal failed to consider relevant considerations or circumstances. Whilst limited information was provided in this regard, the applicant did suggest that the Tribunal failed to consider (or allow the applicant to provide an explanation for) why the applicant did not have a current Confirmation of Enrolment.
The Court notes that the only relevant “circumstance” that the Tribunal was required to consider was whether the applicant had been properly invited to attend a hearing before it: s 362B(1A)(b) of the Act.
As set out by the Court above, the applicant was validly invited to attend a Tribunal hearing and the Tribunal’s hearing invitation letter (sent pursuant to s 360 of the Act) complied with the requirements set out in s 360A of the Act.
With the statutory preconditions required for the Tribunal to the exercise the power set out in s 362B(1A)(b) of the Act being met, and that power being discretionary, the Tribunal was required to act reasonably in exercising that power. As set out by the Court above, the Tribunal acted reasonably in exercising its power to dismiss the applicant’s review application on the basis of his failure to attend the Tribunal hearing.
The Court has also determined (above) that the Tribunal properly notified the applicant of its Non-Appearance Decision and how the applicant could seek reinstatement of his review application (as required by s 362C of the Act). In circumstances where the applicant did not seek reinstatement, the Tribunal was required to confirm its decision to dismiss the application and did so.
In the circumstances of this matter, there were no other considerations or circumstances that the Tribunal was required to have regard to.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to afford the applicant procedural fairness
Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal’s decisions) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal was obliged to comply with those requirements: s 357A of the Act.
As outlined above, the Tribunal’s power to dismiss an application for non-appearance was found in s 362B(1A)(b) of the Act. Having properly invited the applicant to attend a hearing before it, and the applicant failing to attend that hearing, the Tribunal’s power was enlivened and the Court has determined that the Tribunal acted reasonably in exercising that power.
As correctly submitted by the Minister (at [40] in written submissions filed in this Court on 29 May 2025), the Tribunal explained to the applicant in its letter dated 25 February 2019, earlier in the review process, that it was a requirement of the visa for the applicant to be enrolled in a course of study (CB 69). The applicant took the opportunity to respond to that correspondence and provided information to the Tribunal (through his representative) on 8 March 2019, including his reason for non-enrolment. On the applicant’s own evidence given to the Tribunal (CB 76-90), he was unable to satisfy a mandatory criterion for the grant of the visa for which he applied, being cl 500.211 in Schedule 2 of the Regulations as he was not enrolled in a course of study at the time of the Tribunal’s decision.
The Court is otherwise satisfied that the Tribunal afforded the applicant procedural fairness and no jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 8 May 2019) and the applicant’s oral submissions before this Court have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application (as amended on 20 June 2025) is, accordingly, dismissed.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 July 2025
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