Shao v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1117
•22 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shao v Minister for Immigration and Citizenship [2025] FedCFamC2G 1117
File number(s): SYG 1602 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 22 July 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – adjournment request by applicant refused by Tribunal - applicant did not attend scheduled hearing – Tribunal decided to proceed to decision on review – whether decisions of Tribunal refusing to adjourn hearing and proceeding with hearing in absence of applicant were legally unreasonable – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 19A, 19B
Migration Act 1958 (Cth) ss 5CB, 65, 359A, 360, 362, 362B, 426A, 476
Migration Regulations 1994 (Cth) reg 1.09A
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 1
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
MZABV v Minister for Immigration and Border Protection [2017] FCA 105
MZABV v Minister for Immigration and Border Protection [2017] FCA 105
Patel v Minister for Immigration and Border Protection [2013] FCCA 2147
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 11 June 2025 Place: Parramatta Solicitor for the Applicant: Australian United Lawyers Counsel for the Applicant: Leonard Karp Solicitor for the Respondents: Mills Oakley Counsel for the Respondents: Fiona McNeil ORDERS
SYG 1602 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIA SHAO
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
22 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $6,100.
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
INTRODUCTION
On 24 August 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 August 2021. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Skilled Independent (Permanent) (subclass 189) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
The following background is based on information in a Court Book (CB) which contained the Tribunal’s decision and documents before the Tribunal, and which was tendered at the hearing in this Court on 11 June 2025.
On 18 October 2018, Mr Xin Zhang, a citizen of China, applied for a subclass 189 visa (Primary Visa Applicant). In his application Mr Zhang included the applicant in these proceedings as a member of his family unit on the basis that the applicant was his “spouse/de facto partner”. (CB 3, 4)
On 15 November 2018, a delegate of the first respondent sent the Primary Visa Applicant a letter requesting, among other matters, evidence of his relationship with the applicant in order to satisfy the delegate that the Primary Visa Applicant and the applicant were in a married or de facto relationship. (CB 17-30) The Primary Visa Applicant did not respond to the letter.
On 22 January 2019, a delegate of the first respondent made a decision: (CB 45-52)
(a)refusing to grant the Primary Visa Applicant a subclass 189 visa on the basis that he had provided a bogus document in support of the visa application; and
(b)refusing to grant the applicant a subclass 189 visa since the Primary Visa Applicant did not meet the primary criteria for the visa.
On 21 March 2019, the applicant (but not also the Primary Visa Applicant) applied to the Tribunal for review of the delegate's decision. (CB 53-63)
On 11 April 2019, the Tribunal sent the applicant a letter inviting her to comment on the validity of her application to the Tribunal. (CB 75)
On 23 April 2019, the applicant responded to the letter. (CB 76-77)
On 23 June 2021, the Tribunal sent the applicant an email asking her to specify the language in which she required an interpreter. (CB 91) On 28 June 2021, the applicant sent an email to the Tribunal stating she required a Mandarin interpreter. (CB 92)
On 29 June 2021, the Tribunal sent the applicant a letter inviting her to appear (by video conference using Microsoft Teams) before the Tribunal to give evidence and present arguments on 14 July 2021. (CB 95-97) The letter stated under the heading “What will happen if you don’t appear”:
If you do not appear at 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. Not appearing at the scheduled hearing means:
…
•if you were invited to appear by video conference using Microsoft Teams, you do not appear via Microsoft Teams at the scheduled time;
…
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.
On 1 July 2021, the applicant sent an email to the Tribunal stating: (CB 103)
Hi Sarah
Thank you for your email.
I email you to apply for an extension of hearing.
Reason:
I have had severe depression recently and I am seeking help from a psychiatrist who has advised me to take 3 months break. In this case, I think I am not appropriate to attend the hearing and the depressed state may cause me to be unable to answer or judge the questions reasonably. It may also worsen my condition due to stress or other reasons.
The email attached the first page of a report from an organisation called New Vision Psychology. (CB 105) The author, after stating that the applicant attended an initial assessment session on 24 June 2021, recorded:
(a)the applicant undertook psychological testing and the test results “indicate that she is currently experiencing a ‘Moderate’ level of ‘Depression’, and an ‘Extremely Severe’ level of ‘Anxiety’ and a ‘Severe’ level of ‘Stress’ relative to the mean score for the general population”, although the results “do not by itself indicate a diagnosis”; and
(b)a list of “symptoms of psychological stress” the applicant “reported experiencing”.
On 7 July 2021, the Tribunal sent the applicant a letter inviting her to comment on potentially adverse information by 21 July 2021. (CB 109-110)
On 12 July 2021, the Tribunal sent the applicant a letter in response to her request to postpone the hearing. (CB 113-115) The letter, after stating that “the Member has considered your request carefully” and rescheduled the hearing to 10:30 am on 29 July 2021 (still by video conference using Microsoft Teams), added:
The Tribunal will discuss with you any requests for further time during the scheduled hearing.
…
If you do not participate in 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.
On 12 July 2021, the Tribunal also sent the applicant an email which stated: (CB 111)
We refer to your emails dated 1 July and 7 July 2021. Attached to both emails, we have received only one page of the report from “New Vision Psychology”.
Please confirm whether this report consists of only one page. If the report is more than one page, please provide the remaining pages to the Tribunal as soon as possible.
On 19 July 2021, the applicant sent an email to the Tribunal in which she stated: (CB 118-119)
I’ve been in an awful mental state lately and severe emotional instability. I’ve been seeing a psychologist.
1.The rest of the report is about my privacy and is not relevant to this case. So I don’t want to provide it to a third party. On this page, it is written that “it is recommended that she takes three months break”.
2.I had an agent help me with my visa in 2018 …
3.I need a lawyer to help me with this case. But I’ve been highly mentally unstable lately and nervous, panicky, insecure and have difficulty communicating well with others.
I would like to apply for an extension. I write this email under very difficult conditions.
Attached to the email was what appeared to be the third and last page of the report from New Vision Psychology. (CB 121) Over half the sentences on the page were redacted. The unredacted sentences included the following:
It follows that it is my opinion that with ongoing treatment, Ms Shao is highly likely to make improvements in her mental health condition [words redacted]
… regain self-confidence and to recover from the symptoms of [word obscured] and depression. According to Ms Shao’s current mental state, it is recommended that she takes three months break [words redacted]
On 22 July 2021, the Tribunal sent the applicant a letter stating, in response to the applicant’s email dated 19 July 2021, that it would not postpone the hearing and the hearing would proceed at 10:30 am on 29 July 2021 by video conference. (CB 123)
On the morning of 27 July 2021, the Tribunal sent the applicant an email which invited the applicant to participate in a test on 27 or 28 July 2021 “to ensure that the audio and visual functions of the device you will use to attend the hearing are satisfactory”. (CB 125)
On the afternoon of 27 July 2021, the applicant replied to the email. She wrote: (CB 126)
I have severe depression. I have explained the situation to AAT and requested an extension. It is very cruel to ask someone in extreme distress to appear in hearing. I am afraid to see strangers. I cry every day. I could not attend the hearing properly.
On 28 July 2021, the applicant sent the same email to another Tribunal officer. (CB 128)
At 10:16 am on 29 July 2021, the Tribunal sent the applicant an email which stated in part: (CB 130)
I refer to your email dated 28 July 2021. As previously advised, the hearing has not been postponed by the Member and will proceed today as scheduled at 10:30 am (AEST) by video using Microsoft Teams. The details of the hearing can be found in the hearing invitation sent on 12 July 2021, a copy of which has been attached for your reference.
As stated above, the hearing before the Tribunal was scheduled for 10:30 am on 29 July 2021. A Tribunal officer recorded in a case note the following sequence of events that morning: (CB 137)
Attempts listed below for scheduled hearing at 10:30 am. As per Member request – PRA was contacted via phone at 10:30 (no answer) and 10:40 as they had not yet joined the teams room.
10:40 – PRA answered and interpreter joined call shortly after. PRA requested to postpone the hearing due to her mental health and depression, noting that she is very distressed, would find it cruel to proceed and requires a break. PRA was offered to participate in the hearing by telephone but stated she did not want to do so. PRA was also offered the possibility of taking breaks during the telephone hearing. However, the PRA confirmed she did not want to proceed. PRA then asked to disconnect from the call. Call ended at 11am and no show called.
On 6 August 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a subclass 189 visa. (CB 140-148)
TRIBUNAL’S DECISION
The Tribunal at [6]-[16] set out the written communications between the applicant and Tribunal between 29 June 2021 and the morning of 29 July 2021 – set out in paragraphs 11 to 23 above.
The Tribunal at [17] set out the sequence of events on the morning of 29 July 2021 – set out in paragraph 24 above.
The Tribunal at [19] made a finding that the applicant “declined to appear before the Tribunal by video or by telephone on the day and at the scheduled time and place”.
The Tribunal at [20]-[28] considered whether to proceed to a decision on the review without taking further action to enable the applicant to appear before it and concluded at [28] that, for reasons explained at [20]-[27], it “has decided to proceed to a decision on the review without taking further action to enable the applicant to appear before it”.
The Tribunal at [32]-[53] considered the applicant’s claims. The Tribunal at [32] noted that “the issue in this review is whether the applicant satisfies cl 189.311, which requires that she is a member of the family unit of a person who holds a subclass 189 visa granted on the basis of satisfying the primary criteria”. The Tribunal at [46] stated that it was “not satisfied … that Ms Shao has satisfactorily demonstrated that she is the de facto partner of a person who holds a subclass 189 visa”. Accordingly, cl 189.311 was not met.
PROCEEDING IN THIS COURT
Judicial review application and steps up to hearing on 11 June 2025
On 24 August 2021, the applicant filed in this Court an application for judicial review of the Tribunal’s decision
Following a period of inactivity, on 30 April 2025 the registry of the Court notified the parties that the matter was listed for hearing on 11 June 2025.
On 13 May 2025, the applicant filed a written submission which attached a proposed amended application. On 10 June 2025, the applicant filed a revised written submission (AS) which attached a revised proposed amended application (Amended Application). The Amended Application contained the following two grounds (as written):
1. The Tribunal's decision not to grant a three-month adjournment of the applicant's hearing to be held pursuant to s. 360 of the Migration Act, was legally unreasonable.
Particulars
(a) The Tribunal's finding that it was not satisfied that the applicant was unable to participate in the scheduled hearing lacks an evident or intelligible justification in the following circumstances,
(i) The Tribunal, whilst accepting or not rejecting the applicant's psychologist's diagnosis of psychological illness and symptoms of as reported by herself and her psychologist, found that she was able to participate in a s. 360 hearing because she had engaged with the Tribunal's processes by responding to invitations to hearings.
(ii)The applicant engaged with the Tribunal's processes was limited to seeking adjournments.
(iii)It was unreasonable for the Tribunal to conclude that because the applicant engaged with the Tribunal processes in that way, that she was able to participate in a hearing for the purposes of s. 360.
(iv)It was also unreasonable for the Tribunal to conclude that because most of page two of the applicant's psychological report had been heavily redacted it was deprived of the context in which the psychologist recommended that the applicant take a "three month break".
(v)Page one of the psychologist's report contained information that provided context to the psychologist's recommendation.
2. The Tribunal unreasonably failed to consider whether to utilise its discretion in 362B(1A)(b) of the Migration Act.
Particulars
(a) There was information in the possession of the applicant, which she withheld from the Tribunal for reasons of privacy, which may have been relevant to the applicant's request for an adjournment.
(b)Proceeding under s 362(1A(b) rather than s. 362B(1A)(a) may have elicited more information from the applicant in support of her need for an adjournment of the hearing.
(c)In those circumstances it was unreasonable for the Tribunal not to at least consider proceeding under s. 362(1A)(b).
On 4 June 2025, the first respondent filed a written submission (RS).
Hearing on 11 June 2025
At the hearing in this Court on 11 June 2025, Leonard Karp of counsel appeared for the applicant, and Fiona McNeil of counsel appeared for the first respondent.
A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal.
Counsel then made oral submissions which supplemented their written submissions. The submissions are referred to and addressed below.
At the end of the hearing, a timetable was set for the parties to provide a short supplementary submission concerning an issue which arose at the hearing. Each party provided a short supplementary submission on 17 June 2025.
CONSIDERATION
Ground 1
The applicant, in her emails dated 1 and 17 July 2021, appeared to request that the hearing be adjourned for three months. Although the applicant did not expressly request a three-month adjournment, the request was apparent from the applicant emphasising in her emails (CB 103 and 119) the psychologist’s recommendation that the applicant “takes a three month break”.
The Tribunal found at [20] that “it did not consider a delay of three months to be reasonable in the circumstances of this case”. Ground 1 contends that this finding was legally unreasonable.
In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 (ABT17) the plurality, in considering whether the Immigration Assessment Authority’s decision not to exercise a procedural power to get new information from the applicant was legally unreasonable, stated at [19]-[20]:
[19] … the implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made.
[20] Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process.
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) at [11] Allsop CJ stated in relation to unreasonableness as a ground of review:
… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
In the present matter, the Tribunal provided reasons for its discretionary procedural decision not to grant a three-month adjournment. Where “reasons are provided, they will be a focal point for [the Court’s] assessment” of legal unreasonableness: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [84]. The reasons are intertwined with the Tribunal’s reasons for deciding to proceed to a decision on the review under s 362B(1A)(a) of the Act, which is the subject of challenge in ground 2 in the Amended Application. The Tribunal stated at [20]-[28]:
[20] While the Tribunal decided to postpone the hearing for a period of two weeks, it did not consider a delay of three months to be reasonable in the circumstances of this case.
[21] In deciding whether to proceed to a decision on the review, the Tribunal has carefully considered all the information before it as follows.
[22] The Report provided by Ms Shao indicates that she is experiencing a moderate level of depression and severe levels of anxiety and stress, which the Tribunal notes is based on the applicant’s self-reported symptoms, however, the Report does not suggest that the applicant’s psychological condition is so debilitating that she would not be able to participate in a video hearing.
[23] The Tribunal acknowledges that on page 2 of the Report it is recommended that Ms Shao takes three months break, however, as most of the content on that page has been redacted, the Tribunal is unable to ascertain the basis on which that recommendation was made and what Ms Shao needs to take a break from. The Tribunal has considered the applicant’s explanation that she redacted the text because it is about her privacy and is not relevant to the case, however, without the context in which it was recommended that she take three months break, the Tribunal is unable to be satisfied of the reasons why Ms Shao would not be able to participate in a hearing.
[24] The Tribunal has considered the applicant’s claims that she is mentally unstable, nervous, insecure, has difficulty communicating with others and a fear of strangers, and is constantly crying. While the Tribunal is prepared to accept that Ms Shao has experienced these symptoms, feelings and emotions, the Tribunal is not satisfied on the evidence before it that these experiences would prevent Ms Shao from participating in a video hearing.
[25] Ms Shao was able to seek assistance from a psychologist, articulating her symptoms, and has consistently responded to the Tribunal’s correspondence within the timeframes provided. Ms Shao’s conduct suggests that she is aware of and is engaged with the Tribunal process, and the Tribunal is not satisfied that Ms Shao would not have been able to meaningfully participate in a video hearing. On the day of the hearing, Ms Shao was also offered the opportunity to participate in the hearing by telephone instead of by video, but she declined to do so.
[26] For the above reasons, the Tribunal is not satisfied that Ms Shao was unable to participate in the scheduled hearing due to her mental, emotional or psychological condition.
[27] The Tribunal has also considered Ms Shao's claim that she needs a lawyer to help her with her case. The Tribunal notes, however, that the application for review was lodged over two years ago. Ms Shao provided the pages of the delegate's decision record which related to her and would, or should, have been on notice of the issues in the review. The Tribunal considers that Ms Shao has had ample time to obtain legal advice about the issues in her case. In the circumstances, the Tribunal is not satisfied that Ms Shao needing a lawyer to assist her justifies delaying the progress of review for a period of three months.
[28] For the reasons given above, and pursuant to s 362B of the Act, the Tribunal has decided to proceed to a decision on the review without taking any further action to enable the applicant to appear before it.
The applicant’s written materials in this Court identified two claimed inadequacies in the Tribunal’s reasoning process set out in the above paragraph. The claimed inadequacies and responses are as follows.
First, it is contended in particular (iii) of ground 1 that “it was unreasonable for the Tribunal to conclude that because the applicant engaged with the Tribunal process [to seek an adjournment] she was able to participate in a hearing for the purpose of s 360”. The contention is developed at AS [16]-[17] as follows:
[16] Yet, having accepted, or at least not rejected the psychologist's diagnosis and her reported symptoms, the Tribunal found [at] [25] that her conduct in responding to the Tribunal's correspondence in the required timeframes suggested that she was aware of and was engaged with the process and was not satisfied that Ms Shao would not have been able to meaningfully participate in a video hearing.
[17]But being able to respond to emails, with requests for extensions of time, does not mean that Ms Shao would be able to give evidence and present arguments relating to issues in her case. Being able to request an extension of time within a required timeframe and being able to present an articulate case are two entirely different things. The Tribunal's reasons for finding on its reasoning summarised above, that she would be able to meaningfully participate in a video hearing lacked an evident and intelligible justification.
For the following reasons, this particular does not identify a jurisdictional error in the Tribunal’s decision. First, as recorded in the Tribunal’s reasons at [20]-[26], the Tribunal considered and took into account a number of matters in arriving at a conclusion at [26] that it was “not satisfied that Ms Shao is unable to participate in the scheduled hearing due to her mental, emotional and psychological condition” (Participation Finding). That Ms Shao “has consistently responded to the Tribunal’s correspondence within the timeframes provided” (at [26]) was only one of the matters. Other matters were:
(a)that the psychologist’s report “is based on the applicant’s self-reported symptoms” and “does not suggest that the applicant’s psychological condition is so debilitating that she would not be able to participate in a video hearing” (at [22]);
(b)that because of redactions on page 3 of the psychologist’s report, in relation to the psychologist’s recommendation that the applicant take a three month break, “the Tribunal is unable to be satisfied of the reasons why Ms Shao would not be able to participate in a hearing” (at [23]); and
(c)that Ms Shao “was able to seek assistance from a psychologist, articulating her symptoms” (at [25]).
A premise of the applicant’s complaint to the Court appears to be that the Tribunal only relied on the fact that Ms Shao “has consistently responded to the Tribunal’s correspondence within the timeframes provided” in making the Participation Finding. This premise is not correct.
Second, if it was not open to the Tribunal to rely on the fact that Ms Shao “has consistently responded to the Tribunal’s correspondence within the timeframes provided” as a matter in support of the Participation Finding, this might possibly be a jurisdictional error. But Mr Karp did not make this contention to the Court. In any event, I consider that it was clearly open to the Tribunal to take into account, as a matter in support of the Participation Finding, that Ms Shao “has consistently responded to the Tribunal’s correspondence within the timeframes provided”. There is a rational link between the timely, detailed and coherent manner in which Ms Shao responded to correspondence from the Tribunal between 29 June and 28 July 2021 (see paragraphs 11 to 22 above) and an assessment of Ms Shao’s ability to participate in a hearing on 29 July 2021.
Second, it is contended in particular (iv) of ground 1 that “it was also unreasonable for the Tribunal to conclude that because most of page two of the applicant’s psychological report had been heavily redacted it was deprived of the context in which the psychologist recommended that the applicant take a ‘three month break’”. The argument is developed at AS [18]-[19] as follows:
[18] There is another aspect to the extension issue, and that is that at CB 143 [23] the Tribunal addressed the psychologist's recommendation that she take a three month break. It cited the fact that much of page two of the psychologist's report was redacted and thus, said the Tribunal, it was unable to "ascertain the basis on which that recommendation was made and what Ms Shao needs to take a break from". It found that without the context of the recommendation the Tribunal was unable to be satisfied that Ms Shao could not participate in the hearing.
[19]Some of the context of the psychologist's recommendation may have been redacted, but much of that context - the diagnoses of depression, extremely severe anxiety and severe stress and the symptoms described on page one of the report (CB 105) were present. It is with respect blindingly obvious that those diagnoses and those symptoms were part of the context leading to the psychologist's recommendation that she take a three month break. The Tribunal's failure to consider that context in rejecting the psychologist's recommendation also lacks an evident and intelligible justification.
Mr Karp does not complain about any step in the Tribunal’s reasoning process at [23]. Instead, Mr Karp complains that the Tribunal “fail[ed] to consider” “the diagnoses of depression, extremely severe anxiety and severe stress and the symptoms described on page one of the report”: AS [19]. However, the Tribunal at [7], and in the first clause of [22], expressly considered information on page 1 of the report. I reject the contention that the Tribunal failed to consider any part of page 1 of the report or “the context” on page 1. Further, I agree with the first respondent’s submission at RS [51] that, in circumstances where the applicant chose not to provide page 2 of the report to the Tribunal and page 3 was heavily redacted, the remainder of the report provided to the Tribunal was, quoting MZABV v Minister for Immigration and Border Protection [2017] FCA 105 at [5], “relevantly uninformative”.
For the above reasons, this particular does not identify a jurisdictional error in the Tribunal’s decision.
The applicant, in ground 1, challenged the Tribunal’s finding not to accede to the applicant’s request for a three-month adjournment, which was in turn based on the Participation Finding. I agree with the first respondent’s submissions that “the Tribunal’s reasons as to why it proceeded with the hearing on the day pursuant to s 362B are detailed” (RS [41]) and “the basis upon which the applicant sought to adjourn the proceedings was carefully considered by the Tribunal” (RS [49]). I consider that the Tribunal’s reasons at [20]-[28] provide an “intelligible justification” (ABT17 at [20]; Stretton at [11]) for these procedural findings.
Ground 2
Section 362B of the Act relevantly provided at the time of the Tribunal’s decision:
(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.
(1A)The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
The Tribunal at [28] “decided to proceed to a decision on the review without taking any further action to enable the applicant to appear before it”. It is contended in ground 2 that “the Tribunal unreasonably failed to consider whether to utilise its discretion in s 362B(1A)(b) of the Migration Act”.
The Tribunal’s reasons for decision relating to this ground are set out in paragraph 43 above.
A preliminary question I raised with the parties at the hearing on 11 June 2025 was whether this was a case where the applicant “[did] not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear” within the meaning of s 362B(1)(b) of the Act. The preliminary question arose because, after the scheduled commencement time of the hearing (10:30 am), at 10:40 am a Tribunal officer spoke with the applicant on the phone for about 20 minutes during which the officer invited the applicant “to participate in the hearing by telephone”, although the applicant “stated she did not want to do so”. (CB 137) A question is whether, in these particular circumstances, the applicant appeared at the hearing. The position of the parties was that the applicant did not appear at the hearing within the meaning of s 362B(1)(b). The first respondent relied on Patel v Minister for Immigration and Border Protection [2013] FCCA 2147 at [7]-[11] which, although not involving a consideration of s 362B(1)(b), involved analogous circumstances to the extent that, after the commencement time of a hearing, a judge in the court room had a conversation over the telephone with a party who had not appeared, the judge offered the party the opportunity to appear by telephone which the party declined, and the judge proceeded on the basis that the applicant did not appear at the hearing. Mr Karp also directed me to ss 359A and 360 of the Act and ss 19A and 19B of the Administrative Appeals Tribunal Act 1975 (Cth). I agree with the parties’ position that the applicant did not appear at the hearing within the meaning of s 362B(1)(b).
The applicant, in contending that the Tribunal unreasonably failed to consider whether to utilise its discretion in s 362B(1A)(b) to dismiss the application without further consideration, relies on the analysis in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17).
As discussed in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [103], DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16) at [104] and [111], and DNK17 at [102], in considering challenges to the non-exercise of procedural powers, there is a distinction between the decision-maker:
(a)failing to consider whether to exercise the procedural power; and
(b)considering whether, but declining or deciding not, to exercise the procedural power.
Ground 2 pleads that the Tribunal “failed to consider whether to” exercise the procedural power in s 362B(1A)(b), which is the limb in paragraph 58(a) above. However, in DNK17 Horan J at [103] declined to “infer that the Tribunal overlooked or failed to consider the power to dismiss the application under s 426A(1A)(b)”. Section 426A(1A)(b), in Part 7 of the Act, was an equivalent provision to s 362B(1A)(b) which was in Part 5 of the Act. I asked Mr Karp to explain why the present case was distinguishable from the reasoning in DNK17 at [103]. Mr Karp was unable to distinguish the present case from the reasoning in DNK17 at [103]. For the reasons explained in DNK17 at [103] (see also BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [40]), and noting the Tribunal’s letters to the applicant dated 29 June 2021 and 12 July 2021 which referred to the option of dismissing the application for review under s 362B(1A)(b) with the ability for the case to be reinstated, I would not infer that the Tribunal in the present matter overlooked or failed to consider the power to dismiss the application under s 362B(1A)(b). As in DNK17 at [103], I consider that a reason the Tribunal did not mention s 362B(1A)(b) was because “the Tribunal was setting out its reasons for making the decision that it had in fact made, as opposed to addressing a procedural power it had not decided to exercise”.
Alternatively, even if I am wrong, consistent with the approach in DCP16 at [111] and in light of the analysis in the paragraphs below, I am “not satisfied that there has been any unreasonable failure to consider exercising or failing to exercise the [s 362B(1A)(b)] power”.
Although ground 2 does not plead that the Tribunal considered whether, but unreasonably decided not, to exercise the procedural power in s 362B(1A)(b), I consider it appropriate to address this issue.
In DNK17 Horan J concluded at [113] that “either or both the decision to decide the review under s 426A(1A)(b) and the decision not to dismiss the application under s 426A(1A)(b) were legally unreasonable”. The crux of his Honour’s analysis, at [105]-[107], was:
[105]In the particular circumstances of this case, it can be inferred that the Tribunal decided not to exercise the dismissal power under s 426A(1A)(b) for reasons that were similar to, if not the same as, the reasons given for refusing the adjournment request and making a decision on the review under s 426A(1A)(a). The difficulty, however, is that those reasons do not provide any intelligible justification for deciding not to dismiss the application pursuant to s 426A(1A)(b), rather than making a decision on the review.
[106]This was accentuated by the basis on which the Tribunal proceeded to reject the appellant’s claims on credibility grounds, namely, based on the insufficiency and lack of detail in the information before the Tribunal and the “limited and contradictory available material”. In this regard, the Tribunal emphasised that the appellant’s appearance at a hearing “would have been an opportunity to address the various gaps and contradictions, and to provide further information and details”: Tribunal’s reasons at [30].
[107]To the extent that the Tribunal considered the exercise of the dismissal power under s 426A(1A)(b), it was unreasonable not to have addressed and weighed up the consequences of adopting that option instead of determining the merits of the review application based on the insufficiency of the available information…
Whether a procedural decision is legally unreasonable “will inevitably be fact-dependent”: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 1 at [48]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [84]. The present case is distinguishable from DNK17. Three reasons are as follows. First, in the present case, as recorded by the Tribunal at [17]:
Ms Shao did not join the hearing by Microsoft Teams videoconference at the scheduled time. An officer of the Tribunal called Ms Shao at 10:30 am on the telephone number provided by her on the application for review form, however, there was no response. The Tribunal called Ms Shao again at 10:40 am and she answered. With the assistance of an interpreter in the Mandarin and English language, Ms Shao requested the hearing be postponed due to her mental health and depression. She informed the officer that she is stressed and requires a break. Ms Shao was offered [the] opportunity to participate in the hearing by telephone, however, Ms Shao informed the officer that she did not want to do so. Ms Shao was also offered the possibility of taking breaks throughout the telephone hearing, however, she indicated that she did not want to proceed. Ms Shao asked to disconnect the call, and the call ended at 11 am.
This event rationally supported the Tribunal’s procedural decision to proceed with the review, since the applicant told the officer that “she did not want to proceed” to attend a hearing.
Second, a matter relevant to Horan J’s decision was that “the Tribunal proceeded to reject the appellant’s claims on credibility grounds” and “the Tribunal emphasised that the appellant’s appearance at a hearing “would have been an opportunity to address the various gaps and contradictions, and to provide further information and details” (at [106]). In contrast, the present case did not involve credibility issues.
Third, as recorded by the Tribunal at [46]-[49], the central question for the Tribunal was whether the applicant was the “de facto partner” (within the meaning of this term in s 5CB of the Act, and after considering the circumstances in reg 1.09A of the Migration Regulations 1994 (Cth)), of a person who held a subclass 189 visa. Documentary evidence is usually important in establishing whether two persons are in a de facto relationship. The Tribunal at [42]-[45] recorded the opportunities given to the applicant to provide documentary evidence to establish that she was the de facto partner of the primary visa applicant. But the applicant provided no documentary evidence. These matters rationally supported the Tribunal’s procedural decision to proceed with the review rather than dismiss the application under s 426A(1A)(b). Given the opportunities provided to the applicant to provide documentary evidence to the Tribunal in the past, the Tribunal had a rational basis for not providing the applicant with a further opportunity.
For the above reasons, ground 2 does not establish a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Ms McNeil sought an order that the applicant pay the first respondent’s costs in the amount of $6,100. Mr Karp did not object to this amount. I consider this amount is reasonable. I will make this costs order.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 22 July 2025
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