Federal Court of Australia

EEV18 v Minister for Immigration and Multicultural Affairs [2026] FCA 1348

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 17 February 2025 be set aside and in lieu thereof:

(a)    A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 9 July 2018 (Case Number 1717100).

(b)    A writ of mandamus issue requiring the Administrative Review Tribunal to consider the appellant’s application dated 5 August 2017 (Case Number 1717100) for review of the decision of the delegate of the first respondent dated 7 July 2017, according to law.

(c)    The first respondent pay the appellant’s costs of the proceeding before the Federal Circuit and Family Court of Australia (Division 2).

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA) on 17 February 2025, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 July 2018. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration (Minister) made on 7 July 2017 under s 65 of the Migration Act 1958 (Cth) (Migration Act) refusing to grant the appellant a protection visa.

2    This case is an extreme example of delays which occur within the current system of review of migration decisions. The original decision was made on 7 July 2017, and the Tribunal’s decision was made on 9 July 2018. The appeal before me was heard on 18 August 2026, having been allocated to my docket on 25 May 2026. This judgment is more than 8 years after the Tribunal’s decision (which is the subject of challenge) and more than 9 years after the original decision was made. The extreme delay in reviewing the Tribunal’s decision cannot, however, influence the just disposition of this appeal.

3    Pursuant to s 10 of Sched 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Administrative Review Tribunal (ART) is substituted for the Tribunal as a party to this proceeding with effect from 14 October 2024. Pursuant to s 25 of Sched 16, any orders of the Court in this appeal are taken to relate to the ART.

4    The application for judicial review to the FCFCOA was made pursuant to s 476 of the Migration Act which grants the FCFCOA the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. As such, review by the FCFCOA is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

5    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the primary judge was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW).

6    The appellant is a self-represented litigant. By his amended notice of appeal, the appellant raised the following grounds of appeal:

Ground 1 - Jurisdictional Error: Failure to Provide a Hearing (s.425 Migration Act)

The Tribunal failed to comply with s.425(1) of the Migration Act 1958 by refusing to conduct a hearing after the appellant arrived shortly after the scheduled time. The Tribunal dismissed the review without giving the appellant an opportunity to give evidence or present arguments. This constituted a constructive failure to exercise jurisdiction.

Ground 2 - Procedural Unfairness: Failure to Consider Medical Evidence

The Tribunal failed to consider the appellant's medical certificate dated 9 July 2018, which explained the appellant's inability to attend the hearing at the scheduled time. The failure to consider this material was a denial of procedural fairness.

Ground 3 - Procedural Unfairness: Failure to Consider Explanation for Absence

The Tribunal failed to consider the appellant's written explanation regarding the incorrect email address, the breakdown of a relationship, and the circumstances that caused the late response to the s.424A invitation. This deprived the appellant of a fair opportunity to be heard.

Ground 4 - Failure to Conduct a Review According to Law

By dismissing the application without hearing evidence, without considering the appellant's explanation, and without considering relevant material, the Tribunal failed to conduct a review as required by Part 7 of the Migration Act.

Ground 5 - Federal Circuit Court Error

The Federal Circuit Court erred by failing to identify the Tribunal's jurisdictional errors and procedural unfairness. The Court incorrectly concluded that the Tribunal acted lawfully, despite clear evidence of non-compliance with s.425 and denial of procedural fairness.

7    Although the amended notice of appeal states five grounds of appeal, the application before the FCFCOA, and the appeal before this Court, raises a relatively narrow question. The appellant failed to attend the hearing of his review application in the Tribunal at the appointed time of 8.30 am on 9 July 2018. The Tribunal member proceeded to make a decision on the review application, with written reasons, at 9.22 am that day, pursuant to s 426A(1A)(a) of the Migration Act. The decision was to affirm the delegate’s decision not to grant the protection visa. The appellant arrived at the Tribunal at 9.48 am that day and was told that the Tribunal had already made a decision on the review. Two days later, the appellant sent an email to the Tribunal seeking reinstatement of his review application. The Tribunal informed the appellant that, as a decision had been made on 9 July 2018, the Tribunal had no power to reopen the proceeding. The appellant claims that the decision of the Tribunal to proceed to make a decision pursuant to s 426A(1A)(a) of the Migration Act was affected by jurisdictional error of the kinds alleged in the five grounds of appeal.

Background

8    On 1 December 2016, the appellant and his then partner, both of whom are citizens of Malaysia, jointly applied for a Protection (Class XA) (Subclass 866) visa. The visa applicants were at the time members of the same family unit pursuant to reg 1.12 of the Migration Regulations 1994 (Cth) (Regulations) and s 5(1) of the Migration Act.

9    In his visa application, the appellant claimed that he had borrowed money from a loan shark in Malaysia and, after losing his employment, had been unable to make the repayments. He claimed that he was physically beaten and, although he relocated to another part of Malaysia, the loan sharks continued to locate and threaten him. He stated that he was not convinced he would be safe until the debt was settled. The appellant’s partner claimed that their lives were at risk, and that she was threatened by the loan sharks that she would be forced into prostitution to recover the debt. She claimed that she was unable to relocate within the country as the loan sharks would be able to find her and her partner.

10    On 7 July 2017, a delegate of the Minister refused the joint application. The delegate was not satisfied that the visa applicants were persons in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Migration Act. The substantive reason for that conclusion is expressed in the following paragraph extracted from the delegate’s decision:

The country information set out above indicates that the Malaysian authorities - including the RMP and judiciary - are reasonably effective in combating illegal money lending. While there is some corruption within the system, there is nothing before me to indicate that the State would be unable or unwilling to protect the applicants in their particular circumstances. I note that the applicants have outlined their situation in minimal detail and with no supporting evidence. Without further context, I find on the information before me, that the applicants would receive effective protection from the RMP and judiciary in Malaysia against any threats they face from illegal money lenders, gangs or anyone else in Malaysia.

While I accept the applicants may not have absolute protection in Malaysia, country information indicates that the Malaysian authorities are able to provide an adequate level of protection from the criminal behaviour as feared by the applicants.

11    On 5 August 2017, the appellant and his partner jointly applied to the Tribunal for a review of the delegate’s decision.

12    On 18 May 2018, the Tribunal invited the appellant (and his partner) to comment on information that it considered would be, or form part of, the reason for affirming the decision under review, namely that the Tribunal understood that the appellant’s partner had not been in Australia since 21 August 2017.

13    On 12 June 2018, the appellant contacted the Tribunal by telephone, with the assistance of an interpreter, to explain that he had not yet been able to respond to the Tribunal's correspondence of 18 May 2018, as it had been directed to his former partner's email address and that their relationship had ended and she had departed Australia. He was asked to put his explanation in writing and to confirm his new email address. He did so by letter of the same date, in which he explained that his former partner had developed depression, returned to Malaysia, and that their relationship had ended. He reiterated his protection claim and provided an updated email address.

14    On 13 June 2018, the Tribunal invited the appellant (and his partner) to attend a hearing listed on 9 July 2018 at 8.30 am and enclosed a response form by which they were requested to confirm whether they would attend the hearing. The correspondence also enclosed an ‘Information about hearings – MR Division’ factsheet which contained the following:

What if I cannot attend the scheduled hearing?

If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.

15    On 21 June 2018, the appellant responded to the invitation of 13 June 2018, and attached a completed ‘Response to hearing invitation – MR Division’ form, indicating his intention to appear at the Tribunal hearing and requesting a Malaysian interpreter. The form also indicated that the appellant’s partner would not be attending the hearing.

16    On 2 and 6 July 2018, the appellant was sent SMS reminders of the hearing date.

17    On 9 July 2018, the proceeding was called for hearing at 8.40 am. The appellant did not appear. The Tribunal proceeded to make a decision affirming the delegate’s decision not to grant the protection visa. The statement of decision and reasons published by the Tribunal records that the statement was made on 9 July 2018 at 9.22 am. Relevantly, the statement of decision and reasons records the following:

4.     On 13 June 2017, the Tribunal wrote to the main applicant that it considered all the material before it relating to her application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in her case at the hearing on 9 July 2018. The letter advised that if she did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if she was not able to attend the hearing she should advise the Tribunal. As noted from the Tribunal's file, the applicant was also sent to her mobile phone two reminders concerning the scheduled hearing on 2 July 2018 and 6 July 2018.

5.     On 21 June 2018, the main applicant provided to the Tribunal his Response to Hearing Invitation in which he indicated that he would be attending the hearing scheduled for 9 July 2018 and that he required the assistance of an interpreter in the Malaysian and English languages. Regardless of receiving the Tribunal's SMS mobile phone reminders also, the applicant did not attend the hearing scheduled for 9 July 2018. As the applicant has not responded to the invitation to attend a hearing, and has not contacted the Tribunal to explain her non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.

18    It is unfortunate that, despite the appellant being male, the foregoing paragraphs of the Tribunal’s decision refer to the appellant using both the female and male pronouns. There are numerous other errors in the statement of decision and reasons, none of which are material in and of themselves. For example, the reasons record that the application for review had been made on 5 May 2017 (a date that preceded the delegate's decision of 7 July 2017 from which review was sought). The application for review was in fact lodged on 5 August 2017. The reasons also state that the hearing invitation was issued on 13 June 2017, when it was issued on 13 June 2018. Given the speed with which the Tribunal produced its statement of decision and reasons (within about 40 minutes of the matter being called), and the extent of the errors in the reasons, a strong inference arises that the Tribunal member used a template document in preparing the statement of decision and reasons, particularly in respect of the introductory paragraphs (1 to 5) which culminate in the decision to proceed under s 426A(1A)(a) of the Migration Act. Jurisdictional error is not established merely by reason of the fact that the Tribunal member copied aspects of previous reasons - the impact of any such copying depends on the facts and reasons of the particular case: Puru v Minister for Immigration and Citizenship [2026] FCA 937 at [30] (Abraham J).

19    It is apparent from the foregoing paragraphs of the Tribunal’s statement of decision and reasons that, in circumstances where the appellant had not appeared at the hearing, the Tribunal elected to exercise the discretion conferred by the former 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. Three reasons were given by the Tribunal for exercising that discretion, as recorded in paragraph 5 of its reasons:

(a)    the appellant had not responded to the invitation to attend the hearing;

(b)    the appellant had not contacted the Tribunal to explain his non-attendance; and

(c)    the appellant had not sought to engage further in the review process, including through the provision of further submissions.

20    At 9.48 am on 9 July 2018, a case note was entered onto the appellant’s Tribunal file recording that the appellant had approached the counter at the Tribunal and was advised that the hearing was scheduled for 8.30 am and that he was not present. He was advised that the ‘member will now move on to making a decision’. The statement that the member would ‘now move on to making a decision’ was inconsistent with the Tribunal’s record that the decision had already been made at 9.22 am, but nothing ultimately turns on that. The case note further recorded that the appellant was told that he would receive ‘something via email in the next few days explaining what happens next’.

21    On 10 July 2018 at 12.10 pm, the Tribunal emailed the appellant enclosing a copy of its statement of decision and reasons which affirmed the delegate's decision to refuse his application for a protection visa.

22    On 11 July 2018, the appellant emailed the Tribunal seeking reinstatement of the review application and attached a certificate from a pharmacy. The certificate stated that the appellant was unfit to attend work on 9 July 2018.

23    On 19 July 2018, the appellant’s application for reinstatement was referred to the Tribunal member who had made the 9 July 2018 decision for consideration. On 23 July 2018, the member completed a form in which the member recorded that: “I have decided that there is no jurisdictional error in this matter and the case cannot be reopened”. On the same day, a letter was emailed to the appellant in the following terms:

We received your submission on 11 July 2018.

The submission was forwarded to the Member and your request was carefully considered. However, the Member has decided not to reopen this case.

We made our decision in this case on 9 July 2018. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.

We are not in a position to assist you any further on this issue.

24    On 14 August 2018, the appellant applied to the FCFCOA for judicial review of the Tribunal’s decision of 9 July 2018 affirming the delegate's decision to refuse his application for a protection visa. The application was filed one day outside the 35-day period prescribed by s 477(1) of the Migration Act. The appellant did not seek review of the Tribunal’s decision on 23 July 2018 refusing to reinstate his application for review.

25    On 21 October 2024, the FCFCOA made orders under s 477(2) of the Migration Act extending the time within which the appellant could apply for judicial review to 14 August 2018.

26    On 17 February 2025, the FCFCOA dismissed the appellant’s application for judicial review. The appellant appeals from that judgment.

Decision of the primary judge

27    The appellant gave evidence by way of affidavit in the hearing in the FCFCOA. The affidavit stated, relevantly, as follows:

The Tribunal invited me to attend a hearing in my case on 9 July 2018. However, on the day I was running late for the hearing, as I was unwell. I believe that I arrived at 10:00am in the morning, when the hearing was supposed to be at 9:00am. I told the Tribunal staff who I was but they told me that the hearing was finished. I later emailed the Tribunal with a copy of a medicate (sic) certificate to explain why I was late to the hearing, but I did not hear back from the Tribunal.

28    The appellant’s evidence is largely consistent with the Tribunal’s record, save that he is mistaken with respect to the relevant times. The Tribunal’s records show that the hearing was scheduled for 8.30 am and the proceeding was called on at 8.40 am. The Tribunal’s records also show that the appellant attended at the Tribunal’s public counter at 9.48 am. The additional fact established by the affidavit is that the reason for the appellant’s delay was that he was unwell.

29    The primary judge accepted that the Tribunal’s reasons were untidy. They referred to the appellant by the pronoun “she”, stated an incorrect date for the hearing invitation, being 13 June 2017 rather than 13 June 2018, and appeared, within the one paragraph, both to record that the appellant had responded to the hearing invitation and to state that he had not. The primary judge noted, however, that the reasons of an administrative decision-maker are not to be construed minutely and finely with an eye keenly attuned to the perception of error, and characterised the incorrect pronoun and date as typographical errors that did not disclose jurisdictional error. In relation to the seemingly contradictory statements concerning the appellant’s response to the hearing invitation, the primary judge concluded that the latter statement that the appellant had not responded to the hearing invitation, read in context, was intended to convey that the appellant was not present at the hearing.

30    The primary judge concluded that the exercise of the Tribunal’s discretion to proceed to make a decision under s 426A(1A)(a) did not involve jurisdictional error. The primary judge’s reasons for that conclusion were as follows (at [36]):

I therefore agree with the first respondent that the Tribunal's approach was based on reasoning that since the applicant had been notified of the hearing, informed of the consequences of failing to attend, and yet inexplicably did not attend, it was unlikely he would take advantage of any future opportunity to engage with the Tribunal or the review process. All the more so since, as the Tribunal noted, he had not sought to further engage with the review process. By reason of the applicant’s non-attendance, his failure to provide any further material despite being invited to do so and his failure to contact the Tribunal about his non-attendance before the scheduled hearing began, it was open for the Tribunal to infer that the applicant would not likely seek to take advantage of a future opportunity to engage in the review process. The reasons given by the Tribunal are not lengthy but the evident conclusion that the applicant was unlikely to engage further was open and the reasons as a whole provide an evident and intelligible justification for the decision to proceed under s 426A(1A)(a) of the Act, a decision arrived at through an intelligible decision-making process. And although the reasons make no express reference to s 426A(1A)(b), as it is evident the Tribunal considered the applicant would not likely further engage in the review process, those reasons also provide an evident and intelligible basis for the Tribunal exercising the power under s 426A(1A)(a) rather than (b). Consequently, no jurisdictional error is thereby disclosed.

31    The primary judge also noted that the Tribunal made its decision (to proceed under s 426A(1A)(a)) on the available evidence before the Tribunal, and that the events after the decision could not, therefore, affect the decision.

Applicable legal principles

32    At the time of the Tribunal’s decision, s 426A of the Migration Act provided as follows:

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.

33    It can be seen that s 426A conferred a discretion on the Tribunal in circumstances where an applicant had been invited to appear before the Tribunal under s 425 of the Migration Act and had failed to appear. The Tribunal was empowered to proceed in one of three ways:

(a)    first, the Tribunal could proceed under s 426A(1A)(a) to make a decision on the review without taking any further action to allow or to enable the applicant to appear before it;

(b)    second, the Tribunal could proceed under s 426A(1A)(b) to dismiss the application, in which case the applicant had the right under s 426A(1B) to apply to the Tribunal for reinstatement of the application within 14 days after receiving notice of the decision; and

(c)    third, the Tribunal could proceed under s 426A(2) to reschedule the hearing of the application to a later date.

34    If the Tribunal chooses to proceed under s 426A(1A)(a) and makes a decision on the review which is communicated to the parties or publicly announced, the decision is final. The Tribunal is functus officio and its decision cannot be re-opened, at least in the absence of jurisdictional error: see DNK17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCA 975 (DNK17) at [62(a)] (Horan J); Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 at [27], [31] and [35] (Merkel J); X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 at [23] (Gray J); Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [8] (Gleeson CJ), [53], [61] (Gaudron and Gummow JJ, McHugh J agreeing), [155] (Hayne J), [162] (Callinan J). In the present matter, the appellant requested the Tribunal to reinstate his application after the Tribunal had made its decision and communicated its decision and reasons to the appellant. The Tribunal refused to reinstate the application, concluding that a decision had been made and there was no jurisdictional error. The appellant has not challenged that conclusion. Rather, the appellant has challenged the lawfulness of the Tribunal’s decision to proceed under s 426A(1A)(a).

35    It is well established that the discretionary powers conferred on the Tribunal under s 426A of the Migration Act are subject to an implied condition requiring those powers to be exercised in accordance with the principles of legal reasonableness: SZVFW at [4] (Kiefel CJ), [65] (Gageler J); [97] (Nettle and Gordon JJ); [141] (Edelman J). The standard of legal reasonableness is a stringent one, and the Court will not lightly interfere with the exercise of a statutory discretion: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [108] (Gageler J). As observed by French CJ in Li at [28], where a statute confers on a decision-maker a discretionary power, by definition there is an area of discretionary freedom and, within that area, reasonable minds may reach different conclusions about the correct or preferable decision. His Honour continued (at [30]):

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

36    To the same effect are the following observations of Hayne, Kiefel and Bell JJ in Li (at [66], citations omitted):

This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. …

37    Nevertheless, unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification: Li at [76] (Hayne, Kiefel and Bell JJ). As Gageler J observed (at [105]), quoting with approval Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47], review by a court of the reasonableness of an administrative decision is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Legal reasonableness is necessarily fact dependent, requiring careful evaluation of the particular factual circumstances of each case: SZVFW at [84] per Nettle and Gordon JJ.

38    The election to proceed under s 426A(1A)(a) to make a decision on the review is not, of itself, an unreasonable exercise of the power, that course being one expressly contemplated by the section: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [21] (Greenwood J). Nevertheless, the exercise of the discretion in s 426A in a given case will be 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: SZVFW at [97] per Nettle and Gordon JJ.

39    The Tribunal is not obliged to give reasons for the exercise of the discretion conferred by s 426A: SZVFW at [66] (Gageler J); DNK17 at [102] (Horan J). Where, however, the Tribunal does give reasons, they become the focal point of the assessment of reasonableness: SZVFW at [84] per Nettle and Gordon JJ.

40    In SZVFW, the High Court concluded that it was reasonable for the Tribunal to proceed under s 426A(1A)(a) in circumstances where the applicant upon the review had failed to respond to any communications from the Tribunal. The relevant factual circumstances in SZVFW were summarised by Kiefel CJ as follows (at [5], where the applicant before the Tribunal is referred to as the respondents):

In its reasons the Tribunal recorded that the respondents had been invited to respond on two occasions, on the first to provide submissions or other written material, and on the second to appear before it for the purposes mentioned above. On the first occasion they neither responded nor sought to make contact with the Tribunal. It observed that the respondents had likewise not attended an interview before the delegate’s decision was made, although they had been invited to do so. The second letter from the Tribunal, inviting the respondents to appear, contained advice that if they did not attend the scheduled hearing the Tribunal might proceed to make its decision without further reference to them. It provoked no response. Expressing itself satisfied that the invitation had been sent to the respondents’ last known address, the Tribunal decided to make its decision on the review. That decision was adverse to the respondents.

41    In contrast, in DNK17, Horan J concluded that the Tribunal acted unreasonably in proceeding under s 426A(1A)(a) in circumstances where the applicant had been in communication with the Tribunal, but had requested a number of adjournments of the listed hearing. His Honour concluded (at [105]) that the Tribunal’s reasons did 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 pursuant to s 426A(1A)(a). His Honour concluded (at [108]):

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).

Consideration

42    Although the notice of appeal states five grounds, only one question arises on this appeal: whether the primary judge was correct to conclude that the Tribunal’s decision to proceed under s 426A(1A)(a) was not legally unreasonable and therefore not invalidated by jurisdictional error. The facts in the present case differ from both SZVFW and DNK17, and neither case is determinative of the question that arises on this appeal.

43    As submitted by the Minister, the conditions for the exercise of power under s 426A were satisfied, the appellant having been invited under s 425 to attend a hearing and having failed to appear at the scheduled time. The Tribunal was therefore empowered by s 426A(1A)(a) to determine the review without further action to enable the appellant’s appearance and was not obliged to afford him a further hearing merely because he arrived after the decision had been made.

44    The Minister submitted that the Tribunal’s reasons disclosed an evident and intelligible justification for exercising the power conferred by s 426A(1A)(a), as the appellant had been notified of the hearing, warned of the potential consequences of non-attendance, had been advised to contact the Tribunal if he was unable to attend and he failed to attend the hearing, with nothing before the Tribunal explaining his absence. The Minister submitted that nothing before the Tribunal suggested that, if the review was dismissed under s 426A(1A)(b) instead of determined, the appellant would reinstate or otherwise engage with the review. As such, whilst the Tribunal’s reasons were concise, the exercise of the discretion was neither legally unreasonable nor otherwise affected by jurisdictional error.

45    As stated earlier, the Tribunal gave three reasons for deciding to determine the review under s 426A(1A)(a).

46    The first reason given by the Tribunal was that the appellant had not responded to the invitation to attend the hearing. Read in context, it is apparent that the Tribunal’s statement, that the appellant had “not responded to the invitation to attend a hearing”, must be understood as meaning that the appellant had not attended the hearing on 9 July 2018. It is not a statement that the appellant had failed to respond to the invitation to attend the hearing by completing an attendance form and submitting the attendance form to the Tribunal. The Tribunal file shows that the Tribunal’s invitation to the appellant to attend the hearing was sent on 13 June 2018. The invitation requested the appellant to read and complete an enclosed ‘Response to hearing invitation’ to confirm the appellant’s attendance at the hearing. The appellant completed that form and sent it to the Tribunal by email on 21 June 2018. The form indicated that the appellant would be attending, and requested the assistance of a Bahasa Malaysia interpreter. The appellant’s response to the invitation was expressly noted by the Tribunal in its reasons. Hence, the Tribunal must be understood as referring to the fact that the appellant had failed to appear at the hearing.

47    So understood, the Tribunal’s first reason for deciding to proceed under s 426A(1A)(a) is no reason at all. The appellant’s failure to appear at the hearing is the precondition for the exercise of the Tribunal’s powers under s 426A. As such, that fact has no relevance to the assessment of which power under s 426A should be exercised in all the circumstances.

48    The second reason given by the Tribunal was that the appellant had not contacted the Tribunal to explain his non-attendance at the hearing. It can be accepted that the appellant’s failure to notify the Tribunal of his non-attendance is a relevant consideration to the assessment of which power under s 426A should be exercised in all the circumstances. However, the consideration may have more or less significance depending on other circumstances. For example, if an applicant has been non-responsive to Tribunal communications, and has taken no active steps in a proceeding (the circumstances that existed in SZVFW), the failure to notify the Tribunal of the inability to attend may have real significance. As observed by Gageler J in SZVFW (at [70]), an applicant’s failure to take any active step in a proceeding and failure to notify the Tribunal of non-attendance were apt to suggest that any further attempt by the Tribunal to make contact with the applicant would be unsuccessful. In contrast, if an applicant has been responsive to Tribunal communications and has been actively involved in a proceeding, the failure to notify the Tribunal of non-attendance will have far less significance. A person intending to attend a hearing may be delayed or prevented from attending the hearing for a range of reasons: they may be delayed by traffic; they may have difficulty locating the venue; they may suffer an accident on the way to the hearing; or they may become unwell and require urgent medical attention. Further, many applicants in migration proceedings, like the appellant in the present case, have limited proficiency in the English language and may not be in a position readily to communicate with Tribunal staff to explain a delay in attendance.

49    The third reason given by the Tribunal was that the appellant had not sought to engage further in the review process, including through the provision of further submissions. The Tribunal file demonstrates that the third reason has no basis. Until the date of the hearing, the appellant had been actively engaged in the review process and had provided further submissions. Relevantly:

(a)    On 8 August 2017, the Tribunal sent a letter to the appellant by email confirming receipt of his application and requesting him to update the Tribunal if his contact details changed. The letter stated that if the appellant wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.

(b)    On 8 August 2017, the appellant immediately acknowledged receipt of the letter.

(c)    On 11 August 2017, the appellant sent an email to the Tribunal confirming that his contact details had not changed, but noted that he was not represented. At that time, the appellant’s email address was that of his partner, who was a joint applicant to the Tribunal.

(d)    On 18 May 2018, the Tribunal sent a letter to the appellant by email inviting the appellant to comment on information that might be relevant to the Tribunal’s decision, being the fact that the appellant’s partner had left Australia on 21 August 2017.

(e)    On 12 June 2018, the appellant replied to the Tribunal, both by telephone (using an interpreter) and by letter. The appellant apologised for the reply being overdue, explaining that he had been using the email address of his previous partner and, because his previous partner had left Australia, he had not received the Tribunal’s letter until the day before. The appellant provided the Tribunal with a new email address. The appellant also provided the Tribunal with a submission, explaining why the appellant’s partner had returned to Malaysia (they had separated and the appellant’s partner was suffering depression and returned to Malaysia for treatment), and reiterating the appellant’s claims for protection.

(f)    On 13 June 2018, the Tribunal sent a letter to the appellant by email inviting the appellant to appear at a hearing on 9 July 2018 to give evidence and present arguments. The letter also requested the appellant to complete and return an enclosed ‘Response to hearing invitation’ form. The appellant completed and returned the form on 21 June 2018, marking on the form that he would take part in the hearing but that his partner would not and that he required the assistance of a Bahasa Malaysia interpreter.

50    Having regard to the foregoing, the Tribunal’s finding that the appellant “had not sought to engage further in the review process” has no foundation whatsoever.

51    Of the three reasons given by the Tribunal for deciding to proceed under s 426A(1A)(a), the first was not a relevant consideration and the third had no foundation. Thus, the only operative reason was the fact that the appellant had failed to notify the Tribunal of his non-attendance prior to the hearing. As discussed above, whilst that is a relevant consideration, its significance depends upon the surrounding circumstances. In circumstances where the appellant had been actively engaged in the review process, including by responding to a request for information and providing a submission, the appellant’s failure to appear at the hearing at the appointed time and failure to notify the Tribunal in advance could have been due to many causes beyond the appellant’s control, such as illness or accident. It is apparent from the Tribunal’s reasons that the member did not turn their mind to that possibility.

52    As noted earlier, having regard to the numerous pronoun and other errors in the Tribunal’s written reasons, and the speed with which the Tribunal produced its written reasons, a strong inference arises that the Tribunal’s reasons were based on a template which had not been carefully reviewed or considered by the member before finalising the reasons. That inference is strengthened by the fact that, in the circumstances of the present case, the first and third reasons given by the member for proceeding under s 426A(1A)(a) provide no support for that decision.

53    In circumstances where the appellant was actively engaged in the proceeding, and had not previously failed to appear at a hearing or even seek an adjournment of a hearing, I consider that the Tribunal’s decision to proceed immediately under s 426A(1A)(a) was legally unreasonable. It was plainly wrong, and therefore unreasonable, to base the decision on a finding that the appellant had not sought to engage further in the review process. A cursory examination of the Tribunal’s file would have revealed that the appellant was actively engaged in the review, and should have prompted the member to consider the possibility that the appellant had been prevented or delayed from attending the hearing by illness or accident (which in fact occurred).

54    Respectfully, I consider that the primary judge erred in concluding that the reasons given by the Tribunal, including specifically that the appellant was unlikely to engage further in the review process, provide an evident and intelligible justification for the decision to proceed under s 426A(1A)(a) of the Act. In my view, the finding that the appellant was unlikely to engage further in the review process was not open to the Tribunal on the material before it, which deprived the Tribunal of an intelligible justification for proceeding in the manner that it did.

Conclusion

55    In conclusion, I find that the Tribunal's decision to proceed under s 426A(1A)(a) to make a decision without taking any further action to allow or enable the appellant to appear before it was legally unreasonable. It follows that the primary judge erred in concluding that the Tribunal had not fallen into jurisdictional error.

56    As stated at the commencement of these reasons, this case is an extreme example of delays which occur within the current system of review of migration decisions. The extreme delay in reviewing the Tribunal’s decision cannot, however, influence the just disposition of this appeal. The oft-repeated statement that ‘justice delayed is justice denied’ is, of course, untrue. Justice delayed is still justice, only delayed; likewise, injustice delivered in haste is still injustice. It is unfortunate that, in this case, the curing of the hastily delivered injustice has been delayed.

57    The appeal should be allowed with costs, the orders of the FCFCOA set aside, and in lieu thereof there should be orders quashing the Tribunal's decision of 9 July 2018 and remitting the review application to the ART for determination according to law.

Associate:

Dated:    14 September 2026