FEDERAL COURT OF AUSTRALIA

DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 27 January 2022 in proceeding MLG 1701 of 2017 are set aside, and in lieu thereof it is ordered that:

(a)    the decision made by the second respondent on 10 July 2017 be quashed;

(b)    a writ of mandamus issue requiring the second respondent to determine the applicant’s application for review according to law;

(c)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal, to be taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HORAN J:

INTRODUCTION

1    The appellant failed to appear at a scheduled hearing before the Administrative Appeals Tribunal on an application for review of a decision of a delegate of the first respondent (the Minister) to refuse to grant him a Protection (Class XZ) visa. The Tribunal exercised its discretion under s 426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to allow or enable the appellant to appear before it, and affirmed the delegate’s decision not to grant the appellant a protection visa.

2    The appellant sought judicial review of the Tribunal’s decision on the ground that the Tribunal acted unreasonably in proceeding to make a decision on the review by affirming the refusal decision, rather than exercising its powers to adjourn the review or to dismiss the application pursuant to s 427(1)(b) or s 426A(1A)(b) of the Migration Act respectively, which would have given the applicant an opportunity either to appear at a rescheduled hearing or to apply for the reinstatement of the review application. Alternatively, he alleged that the Tribunal acted unreasonably and failed to comply with s 426 of the Migration Act by not having regard to his response to the hearing invitation in which he had given written notice that he wished to appear at the hearing and to give oral evidence on the review.

3    On 27 January 2022, the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) dismissed the appellant’s application for judicial review of the Tribunal’s decision: DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 26 (J).

4    On this appeal from the decision of the Federal Circuit Court, the appellant presses his grounds that the Tribunal acted unreasonably in the ways set out in paragraph 2 above. Accordingly, the questions for determination are:

(a)    first, was the Tribunal’s decision legally unreasonable on the basis that the Tribunal failed to exercise, or to consider the exercise of, its powers to adjourn the review under s 427(1)(b) or to dismiss the review under s 426A(1A)(b) of the Migration Act; and

(b)    secondly, was the Tribunal’s decision legally unreasonable on the basis that it failed to have regard to a written notice given by the appellant under s 426(2) of the Migration Act?

5    In relation to the second ground of appeal, I do not consider that s 426 of the Migration Act imposed an obligation on the Tribunal to have regard to the appellant’s expressed wish to appear before the Tribunal and give oral evidence, separately from its consideration of the appellant’s response to the hearing invitation under ss 425 and 426A. On its proper construction, s 426(2) is directed to the giving of notice by a review applicant that he or she wants the Tribunal to obtain oral evidence from a person or persons other than the applicant. The entitlement of a review applicant to give oral evidence at a hearing before the Tribunal is conferred by s 425. Section 426, on the other hand, is concerned with oral evidence from other witnesses and contemplates only a right to request the Tribunal to obtain such oral evidence and to have such a request considered by the Tribunal.

6    In relation to the first ground of appeal, I do not consider that it was legally unreasonable for the Tribunal to refuse to adjourn the review and reschedule the hearing, having regard to the circumstances including the previous adjournments granted by the Tribunal and the nature of the medical evidence provided in support of the adjournment requests.

7    However, I consider that the Tribunal acted outside the bounds of legal reasonableness in exercising its discretion to make a decision on the review under s 426A(1A)(a), as opposed to exercising its power to dismiss the application under s 426A(1A)(b). The reasons given by the Tribunal for not rescheduling the hearing did not address or explain why it was appropriate to make a decision on the review instead of dismissing the application with a limited right to seek its reinstatement.

8    In the present case, the appellant had declined an interview by the delegate of the Minister, had twice had hearings rescheduled by the Tribunal after late adjournment requests made on the day of the hearing, and had failed to appear at the third scheduled hearing after another last-minute adjournment request had been refused by the Tribunal. The material provided by the appellant in support of his protection visa claims remained light on details, which ultimately proved fatal to his application before the Tribunal. Against such a background, it might strike one as surprising that the appellant should now be afforded another opportunity to advance his claims. However, the present appeal is concerned only with the legality of the Tribunal’s exercise of the powers conferred by s 426A(1A). That provision gave the Tribunal two options in response to the circumstances with which it was presented, namely, to make a decision on the review or to dismiss the application. Each of those options had different immediate consequences for the appellant. Neither power could be considered in isolation from the other. In exercising its power to decide the review under s 426A(1A)(a), it was necessary for the Tribunal to address why it was doing so in the light of the alternative option of dismissal with a right of reinstatement.

9    Accordingly, I would allow the appeal and set aside the orders of the Federal Circuit Court, and in lieu thereof order that the Tribunal’s decision be quashed and the matter be remitted to the Tribunal for determination in accordance with law.

BACKGROUND

10    The appellant is a citizen of India who identifies as a Sikh from the Punjab region. He arrived in Australia on 13 November 2008 as the holder of a Student (Class TU subclass 573) visa that was granted to him as a dependent family member of his then wife. Shortly before the expiry of that student visa, the appellant applied for a Skilled Graduate (Class VC subclass 485) visa. That application was refused, and the appellant unsuccessfully sought review before the (then) Migration Review Tribunal (MRT), which affirmed the refusal decision.

Protection visa application

11    On 30 March 2015, the appellant applied for a Protection (Class XA) visa. In his application, the appellant claimed that the “main reason” he had left India was that he was attacked by an “unrecognised person” when he was on his way home, and that he feared being attacked again if he were to return. The appellant claimed that the family of his former wife had threatened him and blamed him for their separation. The appellant provided a statement from his father, who was still residing in his village in India, who stated that the family members of the appellant’s former wife were “continuously and regularly” making threats that, if the appellant returned to India, “they will falsely implicate him in some false, frivolous criminal case in connivance with some influential persons as they are having relations with high profile people in India”.

Delegate’s decision

12    On 31 December 2015, a delegate of the Minister refused to grant a protection visa to the appellant. The delegate noted that the appellant had not replied to an invitation for him to contact the Department of Immigration and Border Protection to arrange an interview in relation to his protection visa application. The delegate stated that she “was not required to wait indefinitely for a response” from the appellant and had therefore “proceeded to make a decision on the information currently before me”. The position in which the delegate was placed in this regard foreshadows the manner in which the appellant’s application for review would be progressed before the Tribunal some 18 months later.

13    The delegate found that there was “so little detail” provided in the application that she considered the appellant’s claims not to be credible. In particular, the delegate stated that the appellant had “provided only vague information with no supporting detail” about his claimed fear of returning to India, and had not provided any details of the claimed attack nor any evidence that he and his wife had divorced. The delegate’s concerns were compounded by the appellant’s delay in lodging the protection visa application (being just over six years since he arrived in Australia), which raised “serious concerns about the immediacy, gravity and credibility of their claims to be at risk of serious or significant harm in India”. Accordingly, the delegate did not accept that the appellant was at risk of harm in India, nor that he would be unable to obtain protection from the authorities in India if required.

Application for review by the Tribunal

14    On 18 January 2016, the appellant applied to the Tribunal for review of the delegate’s decision. In his application form, the appellant provided the details of a registered migration agent as his representative.

15    On the following day, the Tribunal wrote to the appellant to acknowledge receipt of his application for review. The letter stated among other things that, if the appellant wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.

16    By letter dated 12 April 2017, the Tribunal advised the appellant that his file was being prepared for allocation to a Tribunal member and that, as this could result in a hearing being scheduled, he should send any additional relevant evidence to the Tribunal as soon as possible. The letter noted that the appellant should advise the Tribunal if there were any reasons why he may not be able to attend a hearing at any time in the coming months and that, once a hearing date had been set, the date would only be changed if the Tribunal was satisfied that there was a very good reason to do so.

17    On 25 May 2017, the Tribunal sent the appellant an invitation to attend a hearing on 15 June 2017 at 2.00 pm. In a covering letter addressed to the appellant’s migration agent, the Tribunal asked for a written submission to be provided by 8 June 2017 setting out the appellant’s claims, along with a witness statement in respect of any proposed witnesses. The hearing invitation stated that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone.

18    After setting out details of the scheduled hearing, the hearing invitation continued:

If you are not able to attend the hearing you should advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

19    The invitation also enclosed a leaflet titled “Information about hearings – MR Division” (hearing information leaflet) and a “Response to hearing invitation – MR Division” form (response to hearing form).

20    The hearing information leaflet relevantly stated:

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 [sic] 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.

21    The hearing information leaflet also stated that hearings may be conducted in person, by video conference or by telephone, and that the average length of a hearing was two hours.

First adjournment request

22    The applicant’s migration agent was sent hearing reminders by SMS on 7 June 2017 and 14 June 2017.

23    On the morning of the hearing on 15 June 2017, the following correspondence was exchanged between the appellant’s migration agent and the Tribunal.

(a)    At 9.21 am, the agent sent an email to the Tribunal requesting an “extension for the hearing”, attaching two medical certificates. In the first medical certificate dated 3 June 2017, the doctor stated that the appellant was “suffering from a medical condition and in my opinion will be unfit to continue his usual occupation from 03/06/2017 to 04/06/2017 inclusive”. In the second medical certificate dated 13 June 2017, a different doctor from the same medical practice stated that the appellant was “suffering from sore throat and hoarseness and will be unfit to continue his usual occupation/School from 14/06/2017 to 15/06/2017 inclusive”.

(b)    At 10.26 am, the Tribunal sent an email in reply, attaching a letter in which the Registrar advised that the scheduled hearing would proceed and that “[a] medical condition of hoarseness on the 13 June 2017 does not show [the appellant] is unfit to attend a hearing of about 2 hours on 15 June”.

24    The appellant did not attend the hearing at 2.00 pm on 15 June 2017.

25    On 22 June 2017, the Tribunal wrote to the appellant to advise that the Member had agreed to the request to postpone the hearing, and advised that the hearing would be rescheduled to 29 June 2017 at 2.00 pm. The letter contained the same information as set out in paragraph 18 above, and again enclosed a copy of the hearing information leaflet and response to hearing form.

Second adjournment request

26    On 28 June 2017 at 11.00 am, the Tribunal sent an SMS to the appellant’s migration agent reminding them of the hearing scheduled for the following day.

27    On the morning of the rescheduled hearing on 29 June 2017, the following correspondence was exchanged between the appellant’s migration agent and the Tribunal.

(a)    At 9.49 am, the agent emailed the Tribunal attaching a medical certificate dated 28 June 2017, in which another doctor stated that the appellant was “suffering from a chest and epigastric pain and in my opinion will be unfit to continue his usual occupation/School on 29/6/2017 to inclusive [sic]”. The agent’s email also attached a completed response to hearing form signed by the appellant on 27 June 2017.

(b)    At 11.41 am, the Tribunal sent an email in reply, attaching a letter in which the Registrar advised that the Member had agreed to the postponement request and that the hearing was rescheduled to 5 July 2017 at 11.30 am. The letter contained the same information as set out in paragraph 18 above, and again enclosed a copy of the hearing information leaflet and response to hearing form.

Third adjournment request

28    On 4 July 2017 at 11.00 am, the Tribunal sent an SMS to the appellant’s migration agent reminding them of the hearing scheduled for the following day. Later that day at 5.04 pm, the Tribunal received an email from the appellant’s migration agent, requesting an “extension” and attaching a medical certificate dated 3 July 2017 in which another doctor stated that the appellant was “suffering from a medical condition, mixed anxiety and depression and is advised to take rest for a month until the next examination”.

29    On 5 July 2017 at 10.57 am, the Tribunal sent an email to the appellant’s migration agent attaching a letter to the appellant in which the Registrar advised that the scheduled hearing on 5 July 2017 would proceed. The letter relevantly stated: “The new diagnosis of a medical condition of ‘mixed anxiety and depression’ does not show that you are unfit to attend a Tribunal hearing of about 2 hours on 5 July 2017”.

30    The appellant did not attend the hearing at 11.30 am on 5 July 2017.

Tribunal’s decision

31    Following the hearing, on 10 July 2017, the Tribunal exercised its discretion under s 426A(1A)(a) to make a decision on the review without taking any further action to allow or enable the appellant to appear before it, and affirmed the delegate’s decision not to grant the appellant a protection visa.

32    In its written reasons, the Tribunal summarised the appellant’s claims, before addressing the procedural history in relation to the scheduled hearings as set out above. The Tribunal then explained its reasons for refusing the request for an adjournment of the hearing on 5 July 2017 and proceeding to make a decision on the review. The Tribunal relevantly stated:

25.     I noted the relevant medical certificate had been completed on 3 July but only provided after hours on 4 July. All of the four certificates provided by the appellant over time had come from the same medical centre in Hoppers Crossing although each certificate had been completed by a different doctor. In the latest certificate the concise diagnosis of ‘mixed anxiety and depression’ by itself did not show that the appellant was unable to attend a hearing to give oral evidence and present arguments. Unlike the earlier certificates the latest certificate did not give the doctor’s opinion that the appellant was ‘unfit to continue his usual ‘occupation/School’ for specific dates. The advice that was given – to ‘take rest’ until the next examination – was vague and open-ended. As well, the applicant had previously been alerted to the need for the medical certificate to establish he was unfit to attend a hearing of about 2 hours. In sum, I did not consider that the medical certificate showed the appellant was not able to attend the scheduled hearing. I did not, therefore, accept the request for adjournment.

26.     On 5 July 2017 at 10.57 am the Tribunal advised the appellant:

I am writing to advise you that the hearing will proceed. The new diagnosis of a medical condition of “mixed anxiety and depression” does not show that you are unfit to attend a Tribunal hearing of about 2 hours on 5 July.

27.    I recognised that the Tribunal’s advice would not provide the appellant sufficient time to travel from his address to the place of the Tribunal hearing by 11.30 am, but I considered this advice provided him with time to provide additional information or comments before the scheduled hearing and/or to request a later start to which I would have given consideration. Regardless, both the hearing invitation letter and Information about hearings sheet clearly set out that “If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.”

28.     However, the applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He did not further contact the Tribunal to provide any additional information or other reasons why he could not attend at the scheduled time or seek a further postponement. His representative did not further contact the Tribunal to provide any additional information or other reasons why the appellant could not attend at the scheduled time or seek a further postponement. In these circumstances, and pursuant to s.426A of the Act, I decided to make a decision on the review without taking any further action to enable the appellant to appear before the Tribunal.

33    The Tribunal proceeded to assess the appellant’s protection claims, finding that it was not satisfied that the appellant was a person in respect of whom Australian has protection obligations under ss 36(2)(a) or (aa) of the Migration Act.

34    The Tribunal’s findings were largely based on the absence of sufficient detail and information provided in support of the claims made in the appellant’s protection visa application. In this regard, after referring to the brevity and lack of detail in the appellant’s protection visa application and supporting written statements, the Tribunal stated that the appellant had not attended an interview with the Department, noting that “[t]he [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”. The Tribunal said that it had “insufficient information” about the appellant’s personal details and his claims. Accordingly, based on the “limited available material”, the Tribunal held that it was “unable to be satisfied” about the appellant’s claims that he had been attacked in India or that he had been threatened with harm if he returned to India.

Judicial review application to the Federal Circuit Court

35    On 4 August 2017, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. He relied on three grounds of review, only the latter two of which are raised on the current appeal.

(a)    First, that the Tribunal erred by failing to give reasonable notice of the hearing on 5 July 2017, contrary to s 425A(3) of the Migration Act.

(b)    Secondly, that the Tribunal acted unreasonably and contrary to the legislative scheme by failing to adjourn the review pursuant to s 427(1)(b) of the Migration Act, or by failing to dismiss or to consider dismissing the application pursuant to s 426A(1A)(b) of the Migration Act.

(c)    Thirdly, the Tribunal acted unreasonably and contrary to the legislative scheme by failing to have regard to the appellant’s notice pursuant to s 426 of the Migration Act, or by failing to take evidence from the appellant under s 427(1)(a) of the Migration Act or otherwise make inquiries of the appellant (including by telephone).

36    On 27 January 2022, the Federal Circuit Court dismissed the application.

37    In relation to the first ground of review, the primary judge was satisfied that the notice period of six days for the rescheduled hearing on 5 July 2017 was a reasonable period of notice in all the circumstances: J [36]; see generally Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 at [37] (Flick J). This conclusion is not challenged on the appeal.

38    In relation to the second ground of review, the primary judge found that it was not unreasonable for the Tribunal to exercise its discretion to make a decision on the review without giving the appellant any further opportunity to appear before it, and not to reschedule a further hearing or to dismiss the application pursuant to s 426A(1A)(b): J [52], [61], [88].

39    In reaching this conclusion, the primary judge referred to the procedural history of the matter before the Tribunal, including the multiple adjournment requests, and considered that the Tribunal’s reasons provided a plausible justification for its decision not to give the appellant a further opportunity to appear before it: J [53]. While there was no particular urgency in the application, the Tribunal was obliged “to afford a review process that is fair, just, economical, informal, and quick”: J [55]; see generally s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In particular, the primary judge found that the Tribunal was entitled to evaluate the medical certificate as not showing that the appellant was unable to attend the scheduled hearing: J [56]-[57]. Further, “[t]he need for the applicant to elaborate on his claims did not render the Tribunal’s refusal to reschedule another hearing upon the non-appearance of the applicant unreasonable”, in the light of the statutory scheme under which the Tribunal had been given the option of proceeding to conduct the review in the absence of an applicant, even in circumstances where the applicant did not attend an interview before the delegate and the Tribunal was not satisfied on the documents before it that the applicant met the visa criteria: J [58].

40    Accordingly, the primary judge held that the Tribunal’s decision not to afford the appellant another opportunity to appear at a hearing was “within the area of [its] decisional freedom”, and was not unreasonable: J [59].

41    For “essentially the same reasons”, the primary judge held that it was not unreasonable for the Tribunal not to dismiss the application under s 426A(1A)(b): J [61]. The primary judge did not accept that such a course ought to have been taken by the Tribunal on the basis that the appellant might have been able to provide more information within 14 days in support of an application for reinstatement, rejecting the underlying premise that the medical certificate gave rise to a possibility that the appellant may have had a valid reason for not attending the hearing: J [62]. The primary judge stated that it was “notable that the Tribunal did not make its decision on the review immediately at the hearing” and that it had taken into account “the lack of contact or additional information provided [by the appellant] between the notification that the adjournment was refused and when it made its decision”: J [62]. Further, the late notice of the refusal of the adjournment had been due to the timing of the appellant’s request and a direct consequence of his “tardiness in providing the medical certificate”: J [63].

42    The primary judge was not prepared to draw an inference that the Tribunal overlooked or failed to consider its discretion to dismiss the application under s 426A(1A)(b): J [64]. The primary judge observed that the Tribunal was not obliged to give reasons for deciding not to exercise that discretion, and that the reasons given by the Tribunal “explain the rationale for the exercise of the discretion to proceed in a particular way, rather than for not proceeding in an alternative way”: J [64]

43    In relation to the third ground of review, the primary judge held that, on their proper construction, ss 426(2) and (3) of the Migration Act do not apply to a review applicant who wishes to give evidence on his or her own behalf: J [79], [82]. Rather, s 425(1) requires the Tribunal to invite the applicant to give evidence at a hearing. Section 426A(1A) is not qualified by or subject to s 426, and does not require the Tribunal to consider whether to invite a review applicant to give evidence before proceeding to make a decision on the review or to dismiss the application: J [85].

44    The primary judge proceeded to find that, in the event that her conclusions on the construction of s 426 were wrong, the appellant had given notice to the Tribunal that he wished to give evidence at the hearing, and the Tribunal was aware of and considered the appellant’s wish to do so when exercising the discretion to make a decision on the review without taking any further action to allow him to appear before it: J [86].

45    Finally, the primary judge did not accept that the Tribunal had unreasonably failed to contact the appellant in order to make further inquiries into any critical fact or facts: J [88]-[89]. In the light of the express discretionary powers conferred by s 426(1A), the primary judge considered that “it follows that it cannot be unreasonable for the Tribunal to fail to telephone or otherwise contact the [appellant] to take evidence from him”: J [88]. Further, to make inquiries of a review applicant “about the whole of the basis of his or her claims for protection because the applicant has failed to offer any meaningful detail at all goes well beyond making an obvious inquiry about a critical fact the existence of which is easily ascertained”: J [89]. The appellant did not ultimately press on the appeal his challenge to this aspect of the primary judge’s reasons.

CONSIDERATION

Statutory framework

46    Part 7 of the Migration Act deals with the review by the Tribunal of “Part-7 reviewable decisions” including, subject to some specific exceptions, a decision to refuse to grant a protection visa: see s 411(1)(c).

47    Section 415(2) of the Migration Act sets out the Tribunal’s powers on review and provides that the Tribunal may, relevantly:

(a)     affirm the decision; or

...

(e)     if the applicant fails to appear – exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

48    The conduct of the review is governed by Div 4 of Pt 7, which is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 422B(1). In applying Div 4 of Pt 7, the Tribunal “must act in a way that is fair and just”: s 422B(3).

49    Subject to specified exceptions that are not presently relevant, the Tribunal is required to invite the applicant “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”: s 425(1). The invitation must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear: s 425A(1). If any of the specified exceptions apply, the applicant is not entitled to appear before the Tribunal: s 425(3). It can be implied that, if none of the specified exceptions apply and a hearing invitation is required, the applicant is entitled to appear before the Tribunal to give evidence and present arguments.

50    Section 426 provides that the review applicant can request the Tribunal to call witnesses:

426 Applicant may request Tribunal to call witnesses

(1)    In the notice under section 425A, the Tribunal must notify the applicant:

(a)    that he or she is invited to appear before the Tribunal to give evidence; and

(b)    of the effect of subsection (2) of this section.

(2)    The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)    If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

51    The notice of invitation to appear at a hearing must contain a statement of the effect of s 426A: s 425A(4). Section 426A deals with failure by an applicant to appear before the Tribunal and relevantly provides:

426A Failure of applicant to appear before Tribunal

Scope

(1)    This section applies if the applicant:

(a)    is invited under section 425 to appear before the Tribunal; but

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A)    The Tribunal may:

(a)    by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b)    by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:    Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2:    Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

(1B)    If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note:    Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

(1C)    On application for reinstatement in accordance with subsection (1B), the Tribunal must:

(a)    if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

(b)    confirm the decision to dismiss the application, by written statement under section 430.

Note 1:    Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:    Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D)    If the Tribunal reinstates the application:

(a)    the application is taken never to have been dismissed; and

(b)    the Tribunal must conduct (or continue to conduct) the review accordingly.

(1E)    If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note:    Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F)    If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

(1G)    To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

(2)    This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

52    Section 426B applies in relation to certain “non-appearance decisions”, being a decision to dismiss an application under s 426A(1A)(b) or a decision to reinstate an application under s 426A(1C)(a). If the Tribunal makes such a decision, it must give a written statement of reasons: s 426B(2). In the case of a decision to dismiss an application, the written statement must set out the reasons for decision but there is no express requirement to set out findings of fact or supporting evidence. In the case of a decision to reinstate an application, the written statement must set out the findings on material questions of fact and refer to the evidence or other material on which the findings of fact were based.

53    For the purpose of the review of a decision, the Tribunal may take evidence on oath or affirmation, and may adjourn the review from time to time: s 427(1)(a) and (b).

Grounds of appeal

54    By a notice of appeal filed in this Court on 22 February 2022, the appellant relies on two grounds of appeal, which reflect the second and third grounds of review in the proceedings before the Federal Circuit Court. The appellant submits that the primary judge erred by failing to find that the Tribunal acted unreasonably, and contrary to the legislative scheme:

(a)    first, by failing to adjourn the review pursuant to s 427(1)(b) or to dismiss the application (or to consider dismissing the application) under s 426A(1A)(b), instead of making a decision under s 426A(1A)(a) to affirm the decision under review; and

(b)    secondly, by failing to have regard to the appellant’s notice under s 426 that he wished the Tribunal to hear evidence from himself.

Ground one

The Tribunal’s powers

55    As the primary judge accepted below (J [45]), if an applicant fails to appear at a scheduled hearing, the Tribunal has three options: (i) to proceed to make a decision on the review (s 426A(1A)(a)); (ii) to dismiss the application “without any further consideration of the application or information before the Tribunal” (s 426A(1A)(b)); or (iii) to adjourn the review and reschedule the hearing (ss 426A(2) and 427(1)(b)).

56    The first two of these options arise only in the event that the review 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: see s 426A(1). The power to adjourn the review and to reschedule a hearing arises separately, and may be exercised in advance of a scheduled hearing as well as after the applicant fails to appear at a hearing as and when it is scheduled.

57    The option of dismissal with a right to seek reinstatement was introduced by amendments that commenced on 18 April 2015: see Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (2015 Amendment Act), Sch 4. Prior to that time, in the event that a review applicant failed to appear at a hearing, s 426A(1) empowered the Tribunal only to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, while preserving the Tribunal’s power to reschedule the hearing.

58    The 2015 Amendment Act was intended to implement “a range of measures which increase efficiency and enhance integrity in the onshore protection status determination process”: Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Bill 2014, p 1. Among other things, these measures included new provisions which articulated the responsibility of an applicant for a protection visa to specify all particulars of his or her claim and to provide sufficient evidence to establish the claim (see s 5AAA); introduced obligations in relation to the provision of evidence of identity, nationality or citizenship (see ss 91W and 91WA); provided for the Tribunal to draw an unfavourable inference with regard to the credibility of claims raised or evidence presented for the first time at the review stage without reasonable explanation (see s 423A); and, relevantly to the present case, introduced the power to dismiss an application where an applicant failed to appear at a hearing with an ability to apply for reinstatement within a specified period of time (see s 426A(1A)(b)).

59    In relation to the new power of dismissal conferred by s 426A(1A)(b), the Explanatory Memorandum (together with its subsequent Addendum) stated as follows:

The purpose of this amendment is to clarify that if the applicant fails to appear before the RRT in response to an invitation under section 425 of the Migration Act, the RRT has the option of dismissing the application or making a decision on the review, as is the case under current subsection 426A(1).

The power to dismiss a review application for non-attendance is not intended to impact on procedural fairness already codified in the Act. It is intended to increase tribunal efficiency by providing for a quick resolution of a case where, despite the accordance of procedural fairness, the applicant for review has not attended the hearing. Dismissal for failure to attend a hearing is one of three possible options the RRT may consider for non-attendance by an applicant at a hearing. The other options are either to proceed to a decision on the review or reschedule the hearing.

…

The RRT is required to afford procedural fairness in accordance with the Migration Act. The measure does not limit the right set out in the Migration Act to a hearing by the RRT, rather it provides for a new consequence if the person does not exercise that right.

The Government notes that there is a strong incentive for merits review to be used by unsuccessful visa applicants with unmeritorious claims to delay their removal from Australia. The Government therefore considers that a power enabling review applications at the RRT to be dismissed for non-attendance at a scheduled hearing would allow the RRT to focus resources away from matters that are not actively being pursued by the review applicant.

(Emphasis added.)

60    In his Second Reading Speech, the Minister noted that the new dismissal power would “stop applicants from using the merits review process to delay their departure from Australia”, but recognised that “a review applicant may have a genuine reason for not attending a hearing and the tribunals will have the power to reinstate an application that has been dismissed for non-attendance where the tribunal considers it appropriate to do so”: House of Representatives, Hansard, 25 June 2014, p 7280.

61    The inclusion in Pts 5 and 7 of the Migration Act of a power to dismiss an application for review in the event of non-appearance at a hearing reflects an analogous power conferred on the Tribunal in its general jurisdiction by s 42A(2) of the AAT Act, although in that case the period within which a party may apply for reinstatement of the application is within 28 days or such longer period as the Tribunal, in special circumstances, allows: AAT Act, ss 42A(8A), (11). Parts 5 and 7 of the Migration Act do not confer a power to extend the time within which a reinstatement application can be made. This may be explicable by reference to considerations of finality in the specific context of visa application processes.

62    Each of the options available to the Tribunal if a review applicant fails to appear at a hearing has different consequences.

(a)    If the Tribunal makes a decision on the review, it must review the Part 7-reviewable decision and make the correct or preferable decision on the material before the Tribunal: see generally Shi v Migration Agents Registration Authority (2008) 235 CLR 286. The Tribunal is required to do so by making a written statement of decision under s 430, and must notify the review applicant of the decision under s 430A. Any decision made on the review is final; the Tribunal is functus officio and its decision cannot be reopened.

(b)    If the Tribunal decides to dismiss the application, it must give the applicant a written statement for the “non-appearance decision” under s 426B. The applicant is entitled to apply to the Tribunal within 14 days for reinstatement of the application, upon which the Tribunal is required to decide whether it considers it appropriate to do so: ss 426A(1B), (1C).

(i)    If the Tribunal reinstates the application, it must make a written statement of decision under s 426B. The application is taken never to have been dismissed, and the Tribunal proceeds or continues to conduct the review accordingly: s 426A(1D).

(ii)    If the Tribunal refuses to reinstate the application, or the applicant fails to apply for reinstatement, the Tribunal must confirm the decision to dismiss the application by making a written statement under s 430 (and notify the applicant of its decision under s 430A), upon which the decision under review “is taken to be affirmed”: s 426A(1C)(b), (1E), (1F). The written statement under s 430 must indicate that the decision under review is taken to be affirmed: see s 430(1)(e). Although the requirement to set out findings on material questions of fact and supporting evidence applies to such a written statement, the material facts in relation to a decision of this kind would presumably focus on the procedural history as opposed to the substantive merits of the visa application.

(c)    If the Tribunal decides to reschedule the applicant’s appearance before it, and to delay its decision on the review in order to enable the applicant’s appearance at the rescheduled hearing, s 426A would no longer apply unless and until the applicant does not appear before the Tribunal at the rescheduled hearing.

63    The above options arise if an applicant has been invited to appear before the Tribunal but does not appear “on the day on which, or at the time and place at which, the applicant is scheduled to appear”: s 426A(1)(b). This assumes that the applicant has not previously consented to “the Tribunal deciding the review without the applicant appearing before it”: s 425(2)(b). If the Tribunal is not required to invite the applicant to appear before the Tribunal, and has therefore not given notice of a scheduled hearing under s 425A, the power to dismiss the application under s 426A(1A)(b) will not be enlivened and the Tribunal will be required to make a decision on the review based on the material before it.

Legal unreasonableness

64    Where a review applicant does not appear at a scheduled hearing, the discretionary powers conferred on the Tribunal under s 426A are subject to an implied condition requiring those powers to be exercised in accordance with the principles of legal reasonableness. There was no significant dispute between the parties about the content of those principles, which have been addressed in many decisions of this Court: see e.g. Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [43]-[52] (Allsop CJ, Robertson and Mortimer JJ); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [2]-[13] (Allsop CJ), [52]-[62] (Griffiths J), [91]-[92] (Wigney J); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [58]-[65] (Allsop CJ, Griffiths and Wigney JJ); Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [29]-[35] (Allsop CJ, Besanko and O’Callaghan JJ). Nevertheless, it is useful to summarise some of the propositions that emerge from the principal High Court decisions in which the principles have been articulated and applied, particularly in relation to the exercise of procedural discretions in the migration context.

65    The requirement of legal reasonableness is generally implied as a condition on the exercise of a statutory power, based on the presumed intention of Parliament that it is an essential condition of the power that it be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88]-[94] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle and Gordon JJ), [131] (Edelman J).

66    Given its source in implied legislative intention, the content of legal reasonableness is shaped by the particular statutory context, although it can also be informed by the common law or the general law: Li at [105] (Gageler J); SZVFW at [59] (Gageler J), [88] (Nettle and Gordon JJ). Accordingly, in considering whether or not an exercise of a statutory power is legally unreasonable, it is necessary to have regard to the scope and purpose of the provision conferring the power and surrounding provisions: Li at [58], [67], [74], [85] (Hayne, Kiefel and Bell JJ); SZVFW at [12] (Kiefel CJ), [59] (Gageler J), [79], [90] (Nettle and Gordon JJ), [135] (Edelman J).

67    The implied condition of legal reasonableness can extend to how a decision is made, including by attaching to the performance of procedural duties and the exercise of procedural powers: Li at [91], [94], [98] (Gageler J); ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [19]-[20] (Kiefel CJ, Bell, Gageler and Keane JJ); DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 at [19] (Kiefel CJ, Gageler, Gordon and Steward JJ). Thus, there must not only be an intelligible justification for the decision, but the decision-maker must reach that decision “through an intelligible decision-making process”: ABT17 at [20] (Kiefel CJ, Bell, Gageler and Keane JJ). In this regard, there might either be an unreasonable failure to consider the exercise of a procedural power, or an unreasonable failure to exercise the power after having considered its exercise: Li at [103] (Gageler J). Further, an unreasonable exercise or failure to exercise a procedural discretion can sometimes result in the exercise by a tribunal of its general powers exceeding the bounds of legal reasonableness: see Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [31] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

68    The threshold for establishing legal unreasonableness amounting to jurisdictional error is high. The applicable standard has been described as “stringent”, and as involving more than mere disagreement (even “emphatic” disagreement) with the manner or outcome of the exercise of the power: see e.g. Li at [30] (French CJ), [108]-[109], [113] (Gageler J); SZVFW at [11] (Kiefel CJ), [135] (Edelman J).

69    Discretionary powers must be exercised according to the “rules of reason” and the “canons of rationality”, in that “decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power”: see Li at [24]-[26] (French CJ). As Gageler J noted in Li at [105] (quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221), legal unreasonableness is “concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”. However, there is an area of “decisional freedom” within which reasonable minds may reach different conclusions about the correct or preferable decision: Li at [28] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Such decisions will be within the bounds of legal reasonableness, that is, they will “fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Li at [105] (Gageler J), again quoting Dunsmuir at 220-221.

70    Legal unreasonableness includes, but is not limited to, a decision that is so unreasonable that no reasonable decision-maker could ever have come to such a decision: Li at [68] (Hayne, Kiefel and Bell JJ); SZVFW at [82] (Nettle and Gordon JJ). The outcome of a particular exercise of a statutory power may be so unreasonable or unjust that it can be inferred that there was a failure properly to exercise the power, even where no particular error is identified: Li at [68], [71], [76] (Hayne, Kiefel and Bell JJ); SZVFW at [82]-[83] (Nettle and Gordon JJ). This may include a decision that lacks any “evident and intelligible justification”, that is, where it is not apparent how the decision could have been reached.

71    The above principles were expounded by Kiefel CJ, Bell, Keane, Gordon and Edelman JJ in DUA16 at [26] in the following terms:

A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute [Li at [63]], including an implication of the required threshold of unreasonableness, which is usually high [SZVFW at [11], [52], [89], [135]]. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised [ABT17 at [101]]. It is not to be assessed through the lens of procedural fairness to the applicant [Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at 491 [67]. See BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1099 [34]; 373 ALR 196 at 204-205]. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power” [Li at [76]].

72    It is evident that 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: SZVFW at [84] (Nettle and Gordon JJ). As a consequence, there are limits on the utility of any exercise in which the present case is compared or contrasted with the circumstances or outcomes in other cases. Even so, the parameters of legal reasonableness can be illustrated by the ways in which the issue arose in previous cases in which the High Court considered a challenge to the exercise of procedural powers by a review tribunal or authority.

73    The decision in Li involved an unreasonable refusal by the MRT to adjourn and to defer its decision until the outcome of a pending skills assessment, which was relevant to the satisfaction of a visa criterion that was required to be met by the review applicant at the time of decision. The MRT refused the adjournment on the basis that the applicant had previously been provided with enough opportunities to present her case. However, in making its decision, the MRT did not address or reject the reasons that had been advanced by the applicant in seeking the adjournment, namely, so as to enable her to obtain the outcome of her skills assessment in circumstances where there was some basis for expecting a favourable outcome. The Tribunal failed to identify any countervailing consideration to justify its refusal to defer making a decision on the review, and paid insufficient regard to the purposes for which the statutory power to adjourn had been conferred, such that the High Court held that no reasonable tribunal would have refused an adjournment: see Li at [21], [31] (French CJ), [80], [82], [85] (Hayne, Kiefel and Bell JJ), [121]-[122], [124] (Gageler J).

74    SZVFW involved an unsuccessful challenge to an exercise by the (then) Refugee Review Tribunal (RRT) of the power under s 426A(1) of the Migration Act, in its form prior to the 2015 Amendment Act, to make a decision on the review without taking any further action to allow or enable the applicants to appear at a hearing. The High Court unanimously held that the exercise of the power to make a decision under s 426A(1) was not legally unreasonable in the circumstances of that case. The statutory pre-conditions for the exercise of the power were met, and the RRT’s decision under s 426A(1) was explained and justified by the history of non-responsiveness on the part of the applicants, from which it was open to infer that any attempt to contact them or to reschedule the hearing was likely to have been futile: SZVFW at [2], [14] (Kiefel CJ), [70] (Gageler J), [78], [123] (Nettle and Gordon JJ), [140]-[141] (Edelman J). In those circumstances, the Tribunal was not legally required to adjourn and reschedule the hearing, nor to attempt to contact the applicants by phone or email before proceeding to make a decision on the review under s 426A(1).

75    In DUA16, a migration agent had provided submissions to the Immigration Assessment Authority (IAA) that related to the circumstances of a different person to the referred applicant. In one of the two matters, the High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) held that it was legally unreasonable for the IAA not to have exercised its statutory power to obtain new information, namely, the correct submissions in relation to the referred applicant: at [32]. In the other matter, the Court held that, because the IAA had identified and disregarded the extraneous information that was erroneously included in the referred applicant’s submissions, it was not legally unreasonable for the IAA not to have exercised its powers to obtain new information: at [34]. The different outcome in each of the two matters illustrates the factual sensitivity of assessing legal unreasonableness in the circumstances of a particular case.

76    In ABT17, the IAA rejected the claims of the referred applicant after having listened to an audio recording of an interview of the referred applicant conducted by the delegate. While the delegate had accepted the applicant’s claims as plausible, the IAA found that the applicant’s evidence was “lacking in detail” and at times “vague and hesitant”. The High Court held that the IAA had acted unreasonably, either by failing to invite the referred applicant to an interview in order to assess his demeanour before rejecting his account (Kiefel CJ, Bell, Gageler and Keane JJ at [25], [29]-[30]), or by departing from the delegate’s assessment of the applicant’s credibility without sufficient reason (e.g. on the basis that the delegate’s findings were glaringly improbable) (Nettle J at [63]-[64], [69], Gordon J at [87], [89]-[90], and Edelman J at [128]). In other words, there was either or both a legally unreasonable exercise or failure to exercise an available procedural power, or legal unreasonableness in the way in which the IAA reached its ultimate decision in the performance of its statutory function.

The appellant’s submissions

77    The appellant submitted that the requirements of legal reasonableness in the present case were shaped by the statutory context, including the purpose of merits-based review proceedings in reaching the correct or preferable decision and the intention that powers be exercised in a way that is “fair, just, economical, informal and quick”.

78    The appellant also emphasised the context of Pt 7 of the Migration Act, which is concerned with the grant of protection visas in relation to which “there is a special significance to what an applicant actually says, or might be capable of saying, in a Part 7 review”. The appellant submitted that Pt 7 “must not be understood too readily to deny an applicant a chance to make or elaborate upon their claims”, and that the way in which the discretion in s 426A(1) falls to be exercised is conditioned by the seriousness of the possible consequences of refusing a protection visa (referring to SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159 at [57] (Rares J)).

79    Because a hearing invitation is only given if the Tribunal does not consider that it should decide the review in the visa applicant’s favour on the basis of the material before it, the appellant submitted that the consequences of the Tribunal exercising the power under s 426A(1)(a) will almost always involve the affirmation of the decision under review. In the appellant’s submission, the exercise of that power must now be understood in the light of the recently expanded statutory alternatives, including the new and “less severe” dismissal power which preserves the possibility of reinstatement. Because Div 4 of Pt 7 is an exhaustive statement of the natural justice hearing rule (see s 422B), the appellant submitted that the powers conferred on the Tribunal should be exercised with care and attention (referring to Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [60]). The appellant relied on the extrinsic material as showing that the dismissal power under s 426A(1A)(b) “was introduced to afford the Tribunal an efficient way of dealing with an applicant who is not advancing their application but where there is a possibility ‘that a review applicant may have a genuine reason for not attending a hearing’ [referring to the Minister’s second reading speech]”.

80    The appellant submitted that there was no intelligible justification for the Tribunal’s exercise of the power to decide the review under s 426A(1)(a), as opposed to an adjournment or dismissal of the application. The differences in the medical certificates relied on in support of the successive adjournment requests were said by the appellant to have been immaterial. The appellant submitted that there was no finding by the Tribunal that the relevant medical certificate was not genuine, and it was not for the Tribunal to speculate as to the seriousness of the diagnosis. The medical certificate was said to leave open the possibility that the appellant might have had a genuine reason for not attending the scheduled hearing. The appellant argued that the option of dismissal was more efficient and, unlike the power to make a decision on the review, did not “lock” the appellant out of coming back to the Tribunal. In such circumstances, the appellant submitted, “there was nothing to recommend the use of the irrevocable power to decide the review against the appellant and there was everything to recommend the power to dismiss the application”.

81    Further or alternatively, the appellant submitted that the Tribunal failed to consider the exercise of the power under s 426A(1)(b), relying on the Tribunal’s failure to advert to the possible dismissal of the review application in written reasons that were otherwise comprehensive.

The Minister’s submissions

82    The Minister relied on the procedural history of the matter before the Tribunal, involving three hearing invitations and two previous adjournments. As set out above at paragraph 29, the Tribunal refused the third adjournment request because it was not satisfied that the appellant was unfit or otherwise unable to appear at the scheduled hearing due to his medical condition. The Minister submitted that the appellant was on notice that the hearing would proceed unless he was advised that an adjournment had been granted, and that he failed to contact the Tribunal following the refusal of his adjournment request, including in the five days after the scheduled hearing and prior to the Tribunal’s decision.

83    In the circumstances, the Minister submitted that it was not unreasonable for the Tribunal to have refused the third adjournment request, and to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Minister submitted that the Tribunal had turned its mind to the availability of the dismissal power conferred by s 426A(1)(b), having expressly referred to this option in its correspondence with the appellant and his representative.

84    The Minister submitted that the primary judge was aware of and had regard to the statutory context when deciding that the Tribunal’s decision was not legally unreasonable. In particular, the primary judge did not discount the possible consequences of affirming a decision to refuse to grant a protection visa (in this regard, see e.g. SZHSQ at [57] (Rares J)), but observed that such consequences are the same for all protection visa applicants who seek review of decisions under Pt 7of the Migration Act.

Resolution

85    On this appeal, I am required to reach my own conclusion as to whether or not the Tribunal’s decision was legally unreasonable: SZVFW at [18] (Kiefel CJ), [20], [56] (Gageler J), [76], [85], [117] (Nettle and Gordon JJ), [154]-[155] (Edelman J). Accordingly, the question is whether the primary judge was correct, as opposed to whether her Honour’s conclusion was open on the evidence or unaffected by error.

86    If the Tribunal exercises the power conferred by s 426(1A)(a) to make a decision on the review, it must give a written statement of decision under s 430. As the Tribunal in fact gave reasons for exercising the power under s 426(1A)(a) in the present case, its stated reasons provide a “focal point” for the Court’s assessment of legal unreasonableness: compare SZVFW at [66] (Gageler J), [84] (Nettle and Gordon JJ).

87    The relevant aspects of the Tribunal’s reasons are extracted in paragraph 32 above. Those reasons can be dissected as follows.

(a)    The Tribunal commenced by addressing the timing and content of the medical certificate dated 3 July 2017, referring to the delay in its provision to the Tribunal, the general nature of the diagnosis provided, and the “vague and open-ended” advice provided to the appellant. The Tribunal was not satisfied based on the medical certificate that the appellant was unable to attend the scheduled hearing at 11.30 am on 5 July 2017.

(b)    While the Tribunal acknowledged that its refusal of the third adjournment request on the morning of 5 July 2017 did not leave the appellant with sufficient time to travel to the hearing, the Tribunal considered that the appellant should have assumed that the hearing would go ahead unless otherwise advised, and that he had sufficient time to contact the Tribunal to provide additional information or “to request a later start time”. The Tribunal indicated that it would have given consideration to any such request if it had been made.

(c)    Neither the appellant nor his representative had contacted the Tribunal to provide additional information “or other reasons why he could not attend at the scheduled time”, nor to “seek a further postponement”. In relation to the former, this appears to have been directed to the possibility that the appellant might have responded to the refusal of the third adjournment request by supplementing the medical certificate with further evidence to show he was unfit or unable to attend and participate in the scheduled hearing. In relation to the latter, this might be taken as referring to the possibility of seeking a change in the “start time” of the hearing, as opposed to seeking an adjournment to a later date. However, it might also be interpreted as a more general reference to the absence of any further request to reschedule the hearing, including in the days following the hearing and prior to the Tribunal’s decision.

(d)    The Tribunal relied on these circumstances in making a decision under s 426A(1A)(a), that is, to make a decision on the review without taking any further action to enable the appellant to appear before it. The Tribunal did not expressly advert to the alternative power to dismiss the application under s 426A(1A)(b), nor did it give any further reasons why it had decided not to exercise that power.

88    Any examination of the question whether the Tribunal’s decision was legally unreasonable must take into account the scope and purpose of the powers conferred by s 426A, in the context of the Tribunal’s review functions under Pt 7 of the Migration Act.

89    Even prior to its amendment in 2015, it was recognised that s 426A was “directed to the aims of efficiency”: see SZVFW at [13] (Kiefel CJ). If the review applicant failed to appear after having been invited to a hearing before the Tribunal, s 426A(1) (in its form prior to the 2015 Amendment Act) gave the Tribunal power to proceed to make a decision on the review rather than deferring its decision in order to reschedule the hearing or otherwise take action to allow or enable the applicant to appear before it. This reflected analogous powers under s 424C in circumstances where an applicant failed to respond to an invitation to give information under s 424 or to comment or respond to adverse information under s 424A.

90    As Nettle and Gordon JJ recognised in SZVFW at [97], the exercise of discretion under the former s 426A(1) in any given case was “affected by the subject matter of the particular review, the course the review has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances”. Such considerations may militate in favour of or against any adjournment or further adjournment of the hearing in the particular case. While this is not a question of “prejudice” to the Tribunal or any other party, there are nevertheless interests in the timeliness and efficiency of the review process: see Li at [10] (French CJ). Within the bounds of legal reasonableness, the Tribunal had a “genuinely free discretion” as to the exercise of the power conferred by s 426A(1): SZVFW at [97] (Nettle and Gordon JJ). In other words, it was accepted that the Tribunal had “a degree of latitude in determining what is fair and just in a given case”: SZVFW at [13] (Kiefel CJ).

91    Nevertheless, the nature of the discretion to be exercised under s 426A has since been affected by the 2015 Amendment Act. Rather than a choice between making a decision on the review or rescheduling the hearing, the options available to the Tribunal under ss 426A(1) and (1A) now also include dismissing the application without any further consideration of the application or information before the Tribunal.

92    There have been numerous cases in the Federal Circuit Court and on appeal to this Court that have considered whether the Tribunal acted reasonably in making or notifying an application of a “non-appearance decision” under s 426A(1A)(b) or in confirming such a decision under ss 426A(1C)(b) or (1E) (or the cognate provisions under Pt 5 of the Migration Act): see e.g. Singh v Minister for Immigration and Border Protection (2018) 226 FCR 459 at [26]-[30], [35]-[39] (Colvin J, with whom Kenny and Bromberg JJ agreed); EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [5], [16]-[18], [22]-[24] (Lee J); Sran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 377 at [105]-[125] (Greenwood J); BSU15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 50 at [19]-[29] (Nicholas J); BUV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1075 at [25]-[30] (Rares J); BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 at [4], [20]-[21], [32] (Burley J).

93    There is less authority on the application of s 426A in the context of a decision not to dismiss an application under s 426A(1A)(b) but instead to make a decision on the review under s 426A(1A)(a). There are many cases in the Federal Circuit Court which have involved unsuccessful challenges to decisions made by the Tribunal in the applicant’s absence under s 426(1A)(a) (or the equivalent provision in Pt 5, s 362B(1A)(a)). At least one such decision was the subject of an appeal to this Court: see Sapkota v Minister for Home Affairs [2020] FCA 167 at [17]-[18], [21], [23]-[24], [30]-[33] (Griffiths J). Most of these cases were principally concerned with whether it was reasonable for the Tribunal to make a decision on the review as opposed to granting an adjournment or a rescheduled hearing. In so far as it was alleged in some cases that the Tribunal had unreasonably failed to adopt the option of dismissing the application with a right to seek reinstatement, the argument does not appear to have been developed or explored at any length.

94    Any determination of the question whether there is an intelligible justification for the Tribunal’s decision, including whether the Tribunal has come to that decision through an intelligible decision-making process, requires an examination of the “decision-making pathways” that were reasonably open to the Tribunal: compare ABT17 at [21] (Kiefel CJ, Bell, Gageler and Keane JJ). As discussed above, there are differences between the consequences that attach to an exercise of the powers conferred by ss 426A(1A)(a) and (b) respectively. The amendments were intended to give the Tribunal “the option of dismissing the application or making a decision on the review”: see the extract from the Explanatory Memorandum set out at paragraph 59 above. The new additional power was intended “to increase tribunal efficiency by providing for a quick resolution of a case”, so as to allow the tribunal “to focus resources away from matters that are not actively being pursued by the review applicant”. Thus, in exercising the dismissal power under s 426A(1A)(b), the Tribunal is not required to give any further consideration to the application or the information before the Tribunal.

95    Unless the review applicant seeks reinstatement of the application within the 14-day period, the dismissal of the application will be confirmed under s 426A(1E). The review applicant therefore has a final opportunity to keep the application on foot, provided that he or she can satisfy the Tribunal that it is appropriate to do so under s 426A(1C)(a). This could potentially encompass any explanation for the applicant’s failure to appear at the scheduled hearing, together with the substantive merits or prospects of the review application and the information relied on in support of that application.

96    On the other hand, if the Tribunal proceeds to make a decision on the review under s 426A(1A)(a), the Tribunal will be required to consider the application and the information before the Tribunal in order to reach the correct or preferable decision on the available evidence. As the appellant submitted, the Tribunal’s consideration will take place in a context in which the Tribunal has previously formed a view that it cannot make a favourable decision on the review on the basis of the material before it. Accordingly, unless additional material has subsequently been provided to or obtained by the Tribunal, it is unlikely that the Tribunal’s decision on the review under s 426A(1A)(a) will be in the review applicant’s favour. The Tribunal will nevertheless be required to make findings on all material questions of fact and identify the evidence or other material on which those findings were based: s 430(1).

97    In some cases, of which the present case is an example, the information before the Tribunal in support of the application might be bereft of sufficient detail to establish the claims made by the review applicant. In such circumstances, it might be relatively straightforward for the Tribunal to make findings and reach a decision on the review based on the insufficiency of the material provided in support of the application. However, that is arguably encompassed within the types of cases to which the dismissal power conferred by s 426A(1A)(b) is addressed. Not only does dismissal in such circumstances advance the interests of efficiency, it leaves the review applicant with a brief window of opportunity in which to seek reinstatement of the review application.

98    That is not to say that an exercise of power to dismiss a review application under s 426A(1A)(b) following the non-appearance of the review applicant at a scheduled hearing will always be advantageous to the review applicant. There is no unconditional right to have the application reinstated, and any reinstatement application must be made promptly within 14 days, without any power to extend that period. If the application is not reinstated, the dismissal will be confirmed and the decision under review will be taken to be affirmed: s 426A(1F). In such circumstances, the protection visa application will have been finally determined. For these reasons, the power to dismiss an application under s 426A(1A)(b) has significant consequences for the review applicant, and should be exercised with proper attention to those consequences. It may be that the power should be exercised “sparingly”, at least in so far as it may be appropriate to take into account other available courses of action such as granting an adjournment or rescheduling the hearing: compare Charara v Commissioner of Taxation [2016] FCA 451; 160 ALD 57 at [79] (Wigney J), considering the different dismissal power conferred by s 42A(5) of the AAT Act; see also Guse v Comcare [1997] FCA 961; 49 ALD 288 at 291 (Burchett J). In some cases, however, it may be apt to characterise the option of dismissal of an application under s 426A(1A)(b) as “a middle path”, in that it carries with it the possibility of reinstatement, and to view the option of making an adverse decision on the review as a “harsher response”: see Ijaz v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 688 at [41] (Judge Champion).

99    Nothing in the foregoing discussion is intended to constrain the options available to the Tribunal in the event that a review applicant fails to appear at a scheduled hearing. It remains within the area of the Tribunal’s decisional freedom to consider which of the available options is appropriate in the particular circumstances of each case — whether to grant an adjournment and reschedule the hearing, to make a decision on the review, or to dismiss the application. However, the decision by the Tribunal must be within the bounds of legal reasonableness, and must have an evident and intelligible justification.

100    Turning to the particular facts of this case, the Tribunal’s reasons were largely directed to the considerations against granting a further adjournment or rescheduling of the hearing. Those reasons reveal an intelligible justification for refusing to reschedule the hearing or to take any further action to allow or enable the appellant to appear before the Tribunal. While this was not a case where the appellant had failed to appear “without explanation” (compare SZVFW), his most recent request for an adjournment came against a background of repeated non-appearances and previous adjournments granted by the Tribunal. The appellant had been advised that adjournment requests should be made as early as possible and that, if an adjournment was sought for a medical reason, it should be accompanied by a medical certificate stating that he was not able to attend the scheduled hearing. It was open to the Tribunal to find that the medical certificate dated 3 July 2017 did not show that the appellant was unable to attend the hearing on 5 July 2017.

101    The Tribunal having refused to grant an adjournment, the hearing proceeded on 5 July 2017 at 11.30 am. When the appellant failed to appear at the hearing, the Tribunal was faced with the three options identified at paragraph 55 above. Relying principally on the failure by the appellant or his representative to contact the Tribunal “to provide any additional information or other reasons why the [appellant] could not attend at the scheduled time or seek a further postponement”, the Tribunal decided to exercise the power to make a decision on the review under s 426A(1A)(a).

102    As previously noted, the Tribunal’s written statement of reasons does not directly address the possible exercise of the power to dismiss the application under s 426A(1A)(b), nor does it provide reasons for any decision not to exercise that power. There is no statutory obligation on the Tribunal to provide reasons for a procedural decision not to dismiss an application under s 426A(1A)(b). In these circumstances, two factual questions arise. First, did the Tribunal in fact consider whether or not to exercise the power conferred by s 426A(1A)(b)? Secondly, if the Tribunal did consider the exercise of the power to dismiss the application under s 426A(1A)(b), why did it decline to exercise that power? An unreasonable failure to consider the exercise of the dismissal power, or an unreasonable decision not to exercise that power, would be susceptible to challenge by way of judicial review.

103    In relation to the first factual question, on balance, I would not infer that the Tribunal overlooked or failed to consider the power to dismiss the application under s 426A(1A)(b). Although the Tribunal did not refer to s 426A(1A)(b) in its reasons, there was no requirement to provide reasons for deciding not to dismiss (or, perhaps, not deciding to dismiss) the application under that provision. The hearing invitation letter had canvassed the consequences of a failure to attend the scheduled hearing, including the possibility that the application might be dismissed without any further consideration, subject to a right to apply for reinstatement. In such circumstances, I do not consider that the mere failure by the Tribunal to address s 426A(1A)(b) in its written reasons provides a basis on which it should be inferred that the Tribunal overlooked the existence of the power conferred by that provision. It is perhaps curious that the Tribunal expounded its reasons for making a decision under s 426A(1A)(a) at such length without any mention of the alternative option of dismissing the application under s 426A(1A)(b). However, that can be explained on the basis that the Tribunal was setting out its reasons for making the decision that it had in fact made, as opposed to addressing a procedural power that it had not decided to exercise: compare J [64]. I also agree with the primary judge’s conclusion (at J [65]) that there is nothing in the Tribunal’s correspondence with the appellant on 5 July 2017 that supports an inference that the Tribunal failed to consider the option of dismissing the application under s 426A(1A)(b).

104    But that is not the end of the matter. If the Tribunal is not prepared in the circumstances to grant an adjournment and reschedule the hearing, s 426A(1A) provides the Tribunal with two alternative options. When exercising the discretion under s 426A(1A) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, the Tribunal is necessarily also declining to take the alternative option of dismissing the application without any further consideration of the application or information before it. One way of analysing this may be to treat the availability of the dismissal power under s 426A(1A)(b) as a mandatory relevant consideration in the exercise of the power to decide the review under s 426A(1A)(a), and vice versa. Another approach is to observe that the reasons for adopting one option can often be regarded as encompassing the reasons for not adopting the other option.

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. It can be accepted that the appellant had provided very limited information in support of his application, had not taken up the opportunity of an interview by the delegate, and had sought late adjournments shortly before three successive scheduled hearings before the Tribunal. The first two adjournment requests were based on medical conditions of a short-term nature, and the medical evidence provided in support of the third adjournment request could be described as equivocal. In the light of this procedural history, there might have been some understandable scepticism on the part of the Tribunal as to the genuineness of the appellant’s claims. However, it was not unlikely that the appellant would have applied for the reinstatement of the application if it had been dismissed under s 426A(1A)(b), which would have given the appellant a further and final opportunity to provide additional information in support of his claims. This was not a case in which, for example, the Tribunal accepted the claims that had been advanced by a review applicant but found that they did not attract protection obligations. In the circumstances, the possibility of dismissal under s 426A(1A)(b) was a live option, and the Tribunal’s reasons for refusing the adjournment request and making a decision on the review do not provide an intelligible basis for deciding not to exercise the power to dismiss the application under s 426A(1A)(b).

108    If it were wrong to infer that the Tribunal’s reasons for not dismissing the application under s 426A(1A)(b) were encompassed in its reasons for refusing the adjournment request and making a decision on the review, one is left with an implied decision by the Tribunal not to exercise the power under s 426A(1A)(b) but without any express reasons having been given for that procedural decision. In such circumstances, the outcome of that decision can be characterised as one that no reasonable decision-maker would have reached. Given the matters set out above, it was beyond the bounds of legal reasonableness for the Tribunal to decide not to dismiss the application (with a limited right to seek reinstatement) and instead to make a decision on the review that was based almost entirely on the insufficiency and lack of detail in the information before it. The Tribunal’s exercise of the power under s 426A(1A)(a), rather than the dismissal power under s 426A(1A)(b), did not have sufficient regard to the purposes for which each of those powers is conferred. While the Tribunal’s reasons identified the considerations in favour of refusing the adjournment request and making a decision on the review, it failed to address the countervailing considerations in favour of exercising the power to dismiss the application under s 426A(1A)(b).

109    The primary judge separately addressed whether it was unreasonable for the Tribunal not to schedule a further hearing (and to decide the review under s 426A(1A)(a)), and whether it was unreasonable for the Tribunal not to dismiss the application pursuant to s 426A(1A)(b). Her Honour concluded that the Tribunal’s decision to proceed without giving the applicant a further opportunity to attend was open on the evidence, and within its area of decisional freedom: J [59]. The matters in support of that conclusion centred on the particular procedural history of the matter, including the previous adjournments, the contents of the medical certificates, and the Tribunal’s obligation to provide a review process that is fair, just, economical, informal and quick: J [53]-[58]. While those matters may have cogently supported the decision not to reschedule the hearing, they did not necessarily bear upon the choice between deciding the review under s 426A(1A)(a) and dismissing the application under s 426A(1A)(b). Accordingly, in my view, it was erroneous to conclude that the decision not to dismiss the application under s 426A(1A)(b) was not unreasonable “[f]or essentially the same reasons” as the conclusion that the decision to proceed without a further hearing was not unreasonable: compare J [61].

110    In this regard, I note that the primary judge rejected an argument that the Tribunal’s refusal to reschedule the hearing was not rendered unreasonable by “[t]he need for the [appellant] to elaborate on his claims”: J [58]. The primary judge took into account the statutory scheme as a whole, including the fact that the Migration Act contemplates that the Tribunal can proceed in the absence of an applicant, including where he or she did not attend an interview with the delegate: J [58]. Be that as it may, s 426A(1A) now also confers on the Tribunal the option of dismissing the application without considering the application or the information before it. The Tribunal can exercise either option in the event that the review applicant fails to appear at the hearing, but must do so within the bounds of legal reasonableness.

111    In concluding that the Tribunal’s decision not to dismiss the application under s 426A(1A) was not legally unreasonable, the primary judge also took into account the associated opportunity to seek reinstatement of the application within the 14-day period: J [61]-[62]. The primary judge did not accept the appellant’s argument that he might have been able to provide more information in the 14-day period, suggesting that this was based on a premise that there was a possibility that the appellant may have had a valid reason for not attending the scheduled hearing despite the insufficiency of the medical certificate. The primary judge noted that the Tribunal had not made its decision on the appellant’s review application until five days after the hearing on 5 July 2017, during which time the appellant had not contacted the Tribunal or provided any additional information.

112    Such matters do not appear to have been taken into account by the Tribunal for the purposes of any decision not to dismiss the application under s 426A(1A)(b), nor did the Tribunal address the appellant’s position in relation to any possible 14-day reinstatement period. A failure to contact the Tribunal or to provide additional information over a five-day period following notification of the refusal of an adjournment request is not necessarily probative of whether the appellant might have sought to reinstate the application once it had been dismissed and to provide additional information within the 14-day reinstatement period. Any additional information in support of a reinstatement application would not be limited to establishing a valid reason for non-attendance at the hearing, and could include additional details of the protection claims: compare Singh at [26]-[30] (Colvin J, with whom Kenny and Bromberg JJ agreed); Sran at [115]-[118] (Greenwood J). The course that the application had taken before the delegate and the Tribunal might not inspire any great confidence that the appellant would make a compelling case for the reinstatement of his application. However, the possibility cannot be discounted that he might finally have provided further information explaining his inability to attend the hearing and elaborating on his claims, including “to address the various gaps and contradictions” that were ultimately fatal to his review application.

113    Accordingly, for the reasons set out above, I consider that either or both the decision to decide the review under s 426A(1A)(a) and the decision not to dismiss the application under s 426A(1A)(b) were legally unreasonable, and that the Tribunal’s decision was therefore affected by jurisdictional error.

114    Part (b) of ground one of the notice of appeal is upheld.

Ground two

115    Ground two of the notice of appeal can be dealt with more briefly. This ground ultimately turns on the proper construction of s 426 of the Migration Act.

116    Section 426(2) provides that a review applicant may, after having received a hearing invitation under s 425A, give the Tribunal written notice that he or she “wants the Tribunal to obtain oral evidence from a person or persons named in the notice”. Section 426(3) provides that “the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice”.

117    In the present case, in advance of the hearing scheduled on 29 June 2017, the appellant provided a signed response to hearing form dated 27 June 2017. The form was divided into several parts.

(a)    Part 1 was headed “Who will take part in the hearing?”. In answer to a question “[w]ill you take part in the hearing scheduled for 29 June 2017?”, the appellant ticked the box marked “Yes” against his name. The appellant indicated that his representative would not attend the hearing.

(b)    Part 2 was headed “Interpreter and other issues at the hearing”. In response to a question “[d]o you or any other person attending the hearing need an interpreter?”, the appellant ticked the box marked “Yes”, and specified the language as “Punjabi”. The appellant also provided his contact email address.

(c)    Part 3 was headed “Witnesses”, under which the form relevantly stated:

You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate.

Underneath the statement “I/we request that the Member takes oral evidence from another person”, the appellant ticked the box marked “No”, and did not name any person as a witness from whom he requested that the Tribunal take oral evidence.

118    It does not appear that the appellant completed the response to hearing forms that were enclosed with the hearing invitations in respect of the first scheduled hearing on 15 June 2017 or the third scheduled hearing on 5 July 2017. Nevertheless, I will proceed on the basis that the completed response dated 27 June 2017 remained extant in relation to the hearing scheduled on 5 July 2017.

119    The appellant contends that his response to the hearing invitation served as written notice to the Tribunal for the purposes of s 426(2) of the Migration Act that he wanted the Tribunal to obtain oral evidence from himself. In other words, he argues that s 426(2) permits a review applicant to name themselves as a person from whom they want the Tribunal to obtain evidence, and the Tribunal is bound to have regard to the applicant’s wishes in that regard. The appellant submits that the word “person” in s 426(2) includes a review applicant himself or herself, and that this accords with the ordinary meaning of “call[ing] witnesses” as referred to in the heading to s 426. Thus, it is accepted in other litigious contexts that a party can be called as a witness to give evidence in their own case. The appellant further submits that this construction is supported by the context, in that s 426(1) contemplates that the applicant “is invited to appear before the Tribunal to give evidence”. Finally, the appellant submits that the construction for which he contends avoids what would otherwise be a “gap” in the legislation, by providing a mechanism by which an applicant can give notice that he or she wants to give oral evidence and requiring the Tribunal to consider that request.

120    The Minister submits that s 426 is about the calling of witnesses other than the review applicant, and that the appellant’s proposed construction of s 426 is not supported by the text, context or purpose of the statute. The Minister points out that other provisions such as s 425A deal with the applicant’s appearance before the Tribunal to give evidence, as opposed to oral evidence given by other persons, and that this dichotomy is reflected in the text of ss 426(1)(a) and (b).

121    I accept the Minister’s submissions as to the proper construction of s 426 of the Migration Act. As the Minister submitted, a review applicant is not required to give notice that he or she wishes to give evidence, let alone “request” the Tribunal to obtain oral evidence from him or her. The review applicant must be invited to appear before the Tribunal, and such an appearance encompasses an entitlement on the part of the applicant “to give evidence and present arguments relating to the issues in relation to the decision under review”: s 425(1). In such circumstances, the reference to “a person or persons” in s 426(2) of the Migration Act must be to persons other than the review applicant themselves (compare s 427(3)(a), which confers power on the Tribunal to “summon a person to appear before the Tribunal to give evidence”). While the Tribunal must have regard to the applicant’s wishes that it should obtain oral evidence from such a person or persons, the Tribunal retains a discretion as to whether or not it does so. It would be inconsistent with ss 425, 425A and 426(1) for the Tribunal to have such a discretion in relation to the applicant’s entitlement to appear before the Tribunal to give evidence on his or her own behalf.

122    It follows that the conclusion reached by the primary judge in relation to the construction and application of s 426 of the Migration was correct: J [79]-[85].

123    If it were necessary to do so, I would also agree with the primary judge’s findings that the appellant notified the Tribunal that he wished to give oral evidence, and that the Tribunal did in fact have regard to the appellant’s wishes in that regard when making its decision on the review pursuant to s 426A(1A)(a): J [86].

124    Accordingly, ground two of the notice of appeal is not made out.

CONCLUSION

125    For the reasons set out above, I would uphold the first ground of appeal. The orders of the Federal Circuit Court are set aside, and the application to that Court should be allowed with costs. Orders should be made quashing the Tribunal’s decision and requiring the Tribunal to determine the matter according to law. The Minister should pay the appellant’s costs of the appeal.

Associate:

Dated:    28 August 2024