ADO25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1954

1. On 5 January 2025, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), of a decision of the Administrative Review Tribunal (Tribunal) dated 9 December 2024. The Tribunal, in an earlier decision dated 7 November 2024, dismissed the applicant's application to the Tribunal under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and, in its decision dated 9 December 2024, confirmed the decision dated 7 November 2024.
2. For the reasons that follow, the application to this Court is dismissed.

1. Sections 99 and 106 of the ART Act relevantly provide:

99 Tribunal may dismiss application if applicant does not appear

If:

(a) the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and

(b) the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;

the Tribunal may dismiss the application.

106 Circumstances in which Tribunal may reach decision without hearing--review of decisions only

Tribunal may make decision without hearing in certain circumstances

(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.

...

Where only parties are applicant and non - participating party to the proceeding or hearing

(3) This subsection applies if:

(a) the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

...

Party fails to appear

(5) This subsection applies if:

(a) a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and

(b) the party is not a non - participating party to the proceeding or Tribunal case event; and

(c) the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event; and

(d) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

1. Sections 368B and 368C of the Migration Act relevantly provide:

368B Notice of dismissal and reinstatement decisions and when taken to have been made

Decisions to which this section applies

(1) This section applies in relation to the following decisions:

(a) a decision under the ART Act to dismiss an application for review of a reviewable migration decision or a reviewable protection decision;

(b) a decision under 368C of this Act to reinstate an application.

Written statement

(2) The ART must make a written statement that:

(a) sets out the decision of the ART; and

(b) records the day and time the statement is made.

(5) The ART must notify the applicant of the decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is taken to have been made; and

(b) by one of the methods specified in section 379A.

(6) A copy of the written statement made under subsection (2) must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made

368C Reinstatement of application or confirmation of dismissal

(1) This section, instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision.

(2) If the dismissal is made under one of the following provisions of the ART Act, the applicant may, within 28 days after receiving notice of the decision under subsection 368B(5), apply to the ART for reinstatement of the application:

(a) section 99 (Tribunal may dismiss application if applicant does not appear);

(b) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);

(c) section 101 (Tribunal may dismiss application if frivolous, vexatious etc.).

(3) On application for reinstatement in accordance with subsection (2), the ART must:

(a) if it considers it appropriate to do so - reinstate the application by written statement under 368B; or

(b) confirm the decision to dismiss the application, by written statement under section 368.

(5) If the applicant fails to apply for reinstatement within the 28‑day period mentioned in subsection (2), the ART must confirm the decision to dismiss the application, by written statement under section 368.

(6) If the ART confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

1. On 20 September 2017, the applicant, a citizen of China, lodged an application for a protection visa.
2. On 7 January 2021, a delegate of the first respondent made a decision refusing to grant the visa on the basis that they were not satisfied the applicant satisfied s 36(2) of the Migration Act. The applicant's protection visa application contained little information about the applicant's claims. The applicant then declined to respond to a letter from the Department of Home Affairs dated 17 November 2020 requesting further information concerning the applicant's claims. Unsurprisingly, the delegate found that "due to the lack of detail from the applicant regarding [his] claims", the delegate was not satisfied the applicant had a profile that would be of interest to the Chinese authorities if he returns to China.
3. On 9 January 2021, the applicant applied to the Tribunal for review of the delegate's decision (Tribunal Application).
4. On 15 October 2024, the Tribunal emailed the applicant a letter inviting him to appear at a hearing on 6 November 2024 to give evidence and present arguments. The letter attached a "Response to hearing notice" form which the letter asked the applicant to complete and return to the Tribunal. The form included a section which asked the question "Will you take part in the hearing scheduled for 6 November 2024?" and gave the applicant the option of ticking or crossing one of two boxes. One box appeared next to the word "Yes" and the other box appeared next to the words "No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a meeting".
5. On 28 October 2024, the applicant returned to the Tribunal a completed "Response to hearing notice" in which he placed a cross in the box next to the words "No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a meeting".
6. On 28 October 2024, the Tribunal sent an email to the applicant which stated:

You have requested the Tribunal to make a decision without holding a hearing. The Tribunal notes that very limited evidence has been provided about your claims for protection, which is likely to result in an unfavourable decision being made by the Tribunal.

Please let us know if there is any further evidence that you can give us, for example by way of documents or by way of oral evidence at a hearing. We will keep the hearing in place until we hear back from you about this.

1. On 6 November 2024, the applicant did not attend the hearing scheduled that day.
2. On 7 November 2024, the Tribunal made a decision under s 99 of the ART Act dismissing the Tribunal Application because the applicant had "fail[ed] to appear at a Tribunal case event" (Dismissal Decision): see s 99 of ART Act.
3. On 7 November 2024, the Tribunal emailed a copy of the Dismissal Decision to the applicant. The covering letter stated in part:

You may apply to us, in writing, for reinstatement of the application by 5 December 2024. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we do, the application is taken never to have been dismissed and we will continue to conduct the review accordingly.

If we decide not to reinstate the application, or if you fail to apply for reinstatement by 5 December 2024, 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 decision of the Department of Home Affairs remains in force.

1. The Tribunal did not receive an application for reinstatement of the Tribunal Application from the applicant.
2. On 9 December 2024, the Tribunal made a decision under s 368C of the Migration Act confirming its decision made on 7 November 2024 to dismiss the Tribunal Application (Confirmation Decision).

1. The Tribunal at [4], after reviewing the Tribunal's file, was "satisfied that the applicant received appropriate notice of the date, time and place of the hearing" on 6 November 2024.
2. The Tribunal at [7] considered the options available to the Tribunal in circumstances where the applicant failed to appear at the hearing. The Tribunal stated:

The options available to me in these circumstances include proceeding to make a decision without holding a hearing under s 106 of the Administrative Review Tribunal Act 2024, and dismissing the application under s 99 of that Act. While other options may also be available, the powers in s 99 and s 106 appear to be the fastest ways to resolve the application, and of these two options, the power in s 99 appears to be fairer because it gives the applicant the opportunity to seek reinstatement of the application and provide further evidence before the review is finally determined.

1. The Tribunal at [8] recorded its decision to dismiss the application under s 99 of the ART Act.

1. The Tribunal at [3], after reviewing the Tribunal's file, was satisfied that its letter dated 7 November 2024 satisfied the notification requirements in s 368B(5) of the Migration Act.
2. The Tribunal at [4] stated that "as the applicant did not apply for reinstatement of the application within the 28 day period, the Tribunal must confirm the decision to dismiss the application".

Judicial review application and steps up to hearing on 7 October 2025

1. On 5 January 2025, the applicant lodged in this Court an application for judicial review (Application). The Application expressly identifies the Confirmation Decision as the decision the subject of the Application. The grounds of application (see paragraph below) principally complain about the Dismissal Decision.
2. The Application contained the following grounds (as written):

In this case, I believe there was discrimination and bias in the Tribunal's decision-making process. Specifically, the Tribunal may have failed to provide me with a fair opportunity to present my case, possibly due to cultural differences, language barriers, or the Tribunal's preconceptions about my background. It is also possible that the Tribunal unfairly evaluated my statements, evidence, or claims based on stereotypes or bias.

I am concerned that my application may have been treated unfairly due to my identity. If the Tribunal has made decisions based on these factors, it would constitute discrimination and violate Australia's anti -discrimination laws as well as international human rights conventions.

In the refusal decision, the Tribunal emphasized that I failed to attend the hearing, and based on this, made its decision. I would I like to highlight that, despite not attending the hearing, I clearly communicated via email my intention not to participate and requested that the decision be made based on the written material. Furthermore, the Tribunal informed me via email that a lack of sufficient evidence could lead to an unfavorable decision but did not explicitly clarify whether I could supplement evidence or provide oral testimony by other means if I were unable to attend the hear ing. There may be procedural unfairness here, as I was not given a fair opportunity to provide additional evidence. In my email, I clearly stated that I could not attend the hearing and inquired whether the hearing could be conducted in writing. If the Tribunal failed to properly consider my request or did not offer reasonable procedural options (such as allowing oral evidence via phone or video conference), this may indicate that my case was not treated fairly.

In this case, I expressed my intention to provide supplementary evidence, but the Tribunal did not offer a reasonable opportunity for me to submit this evidence. If the Tribunal found my evidence insufficient and refused to grant me further opportunities (such as delaying the hearing again or allowing me to submit evidence by other means), this could violate the fair hearing requirements under Section 106 of the Administrative Review Tribunal Act.

If I have reasonable grounds to believe that the Tribunal overlooked key facts or did not properly interpret relevant provisions of the Migration Act when assessing my application, I may appeal this decision. For instance, I could point out that my application meets the criteria for a protection visa (such as facing political or racial persecution), but the Tribunal failed to appropriately evaluate this information.

1. On 6 August 2025, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application with proper particulars, and any additional evidence on which the applicant sought to rely.
2. On 8 August 2025, the registry of the Court notified the parties that the matter was listed for hearing on 7 October 2025.
3. On 23 September 2025, the first respondent filed a written submission (RS).
4. The applicant did not file any further materials prior to the hearing.

1. At the hearing on 7 October 2025, the applicant appeared before the Court unrepresented, assisted by an interpreter in the Mandarin language. Johnathan Kay Hoyle of counsel appeared for the first respondent.
2. The applicant had a copy of a Court Book, filed and served by the first respondent in August 2025, which contained the Tribunal's two decisions and documents before the Tribunal. At the commencement of the hearing, I directed the applicant's attention to the Dismissal Decision and the Confirmation Decision. I explained that the Court's role was limited to considering whether there is a jurisdictional error, which I described as a significant error or mistake, in at least one of the Tribunal's decisions. With reference to the Tribunal's decisions, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in at least one of the Tribunal's decisions.
3. I asked the applicant if he prepared the grounds in the Application. He said that another person prepared the grounds for him.
4. I offered the applicant a break of 10 minutes to consider oral submissions he wanted to make to the Court. The applicant took up this opportunity.
5. After the break, Mr Kay Hoyle tendered a copy of the Court Book.
6. I invited the applicant to make oral submissions as to whether there is a jurisdictional error in one of the Tribunal's decisions. The applicant stated that someone told him not to attend the hearing in the Tribunal. He stated that it is important for him to have a working visa. I directed the applicant's attention to the Dismissal Decision and asked the applicant if there was an error in the decision. The applicant stated that he could not think of an error. I then directed the applicant's attention to the Confirmation Decision and asked the applicant if there was an error in the decision. The applicant replied that he did not know.
7. Mr Kay Hoyle, in his oral submissions, principally relied on the first respondent's written submission filed in September 2025.
8. In a reply oral submission, the applicant repeated that it is important for him to have a working visa, he likes his job, and he told his agent that the agent must help him keep his working visa.

1. As indicated in paragraph 21 above, and as is clear from the analysis below, the applicant's principal complaint is with the Dismissal Decision. The Dismissal Decision was made under s 99 of the ART Act. The Confirmation Decision was made under s 368C of the Migration Act.
2. Pursuant to s 476(1) of the Migration Act, this Court has jurisdiction "in relation to migration decisions". A "migration decision" is defined in s 5(1) of the Migration Act as follows:

(a) a privative clause decision; or

(b) a purported privative clause decision; or

(c) a non‑privative clause decision; or

(d) an ART Act migration decision.

1. A "privative clause decision" is defined in s 474(2) of the Migration Act as follows:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4), (4A) or (5).

1. An "ART Act migration decision" is defined in s 474A of the Migration Act. An ART Act migration decision does not include a decision under s 99 of the ART Act.
2. The applicant, by filing the Application in this Court, assumes the Court has jurisdiction to consider his complaints about the Dismissal Decision. The first respondent does not disagree. As stated by the first respondent at RS [6], "review of the confirmation decision will require the Court to also consider the validity of the dismissal decision".

1. The applicant contends "there was discrimination and bias in the Tribunal's decision-making process". As stated by the first respondent at RS [29], "in the present matter, there are no particulars, no evidence and no submission as to the matters said to form the basis for the claim of bias [or] discrimination". As partly stated by the first respondent at RS [30], in reading the Tribunal's reasons in the Dismissal Decision and Confirmation Decision, and in considering the surrounding correspondence from the Tribunal to the applicant, "there is nothing that might raise concerns" about bias or discrimination. I reject the applicant's contention that there was discrimination or bias in the Tribunal's decision-making process.

Complaint concerning choice by Tribunal of procedural options

1. The applicant contends that he "clearly communicated via email my intention not to participate [in a hearing] and requested that the decision be made based on the written material". If the applicant's complaint to the Court is that the Tribunal erred in not acceding to the applicant's request in the "Response to hearing notice" for "the Tribunal to make a decision on the papers without holding a" hearing:

(a) The Tribunal was not required to accede to the applicant's request to make a decision on the papers without holding a hearing. As correctly stated by the first respondent at RS [47], "the Tribunal was not required to proceed in that way simply because the applicant had requested that it do so".

(b) Subject to a consideration of the specific statutory context, the Tribunal's procedural powers must be exercised reasonably: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. The Tribunal, in its email to the applicant dated 28 October 2024, explained why it declined, at that point in time, to accede to the applicant's request to make a decision on the papers without holding a hearing. The applicant did not contend the Tribunal's explanation or procedural decision was unreasonable. I consider this decision was not unreasonable. I also agree with the first respondent's submission at RS [50] that at this point in time (on 28 October 2024):

"it can safely be inferred that the Tribunal was disinclined at that stage - bearing in mind the requirements of s 106(3) - to accede to the applicant's request. It chose to keep open the prospect of the hearing and informed the applicant of this...

(c) Upon the applicant not attending the hearing on 6 November 2024, the Tribunal again had procedural options under the ART Act. The options included exercising the power under s 99 to dismiss the Tribunal Application, or exercising the power under s 106(3) or (5) to make a decision on the merits of the application. The Tribunal, in the Dismissal Decision at [7], explained why it preferred to exercise the power under s 99. The applicant did not contend the Tribunal's explanation or procedural decision was unreasonable. I consider this decision was not unreasonable.

(d) Further, as correctly stated by the first respondent at RS [42], on 6 November 2024 the Tribunal could only have exercised the power under s 106(3) or (5) to make a decision on the merits of the application if "it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding": see s 106(3)(c) and 106(5)(d). It is stated at RS [42]:

This language indicates that, if the Tribunal wishes to proceed to determine a matter without a hearing, then it must evaluate the issues and reach a conclusion that it "appears" to be the case that the issues can be determined without a hearing. The evaluation is one for the Tribunal to undertake and the use of the word "appears" suggests a subjective impressionistic assessment on the part of the Tribunal rather than some objectively ascertainable state of affairs that a proceeding can be "adequately determined". In that context, the notion of adequacy is itself subjective and evaluative.

The applicant did not contend that the Tribunal ought to have been satisfied of the matter in s 106(3)(c) or 106(5)(d). It would be challenging for the applicant to persuade the Court that the Tribunal ought to have been satisfied of the matter in s 106(3)(c) or 106(5)(d) such that there was a jurisdictional error by the Tribunal in not being so satisfied.

(e) Further, I agree with the first respondent's submission at RS [57]-[58] that:

1. As [7] of the dismissal decision makes clear, the Tribunal was aware of the statutory choices and the consequences of each. In the circumstances, both s 99 and s106 were available but neither was statutorily mandated nor required. The Tribunal considered that the "fair" option in such circumstances was to dismiss the application with a clear indication that reinstatement was available and the applicant could "provide further evidence before the review is finally determined": at [7]. Such an approach was consistent with the Tribunal's overarching statutory objective of providing a mechanism of review that was fair and just: s 9 ART Act.
2. When properly and fairly considered, it is apparent that the Tribunal was alive to the statutory framework it was operating within and the available discretionary choices. The way in which the Tribunal proceeded did not involve any misconstruction or misapplication of that statutory framework. Equally, the Tribunal's approach was not legally unreasonable: its attempt to balance competing demands and outcomes, based on the applicant's own non-engagement with the process, and weighing the need for fairness, transparency and speed, was plainly intelligible and the quintessence of reasonableness.

1. For the above reasons, I reject any complaint by the applicant to this Court that the Tribunal erred in not acceding to the applicant's request in the "Response to hearing notice" for "the Tribunal to make a decision on the papers without holding a" hearing.

1. The applicant contends that "there may be procedural unfairness here, as I was not given a fair opportunity to provide additional evidence". I reject the applicant's assertion that he was not given a fair opportunity to provide additional evidence. The Tribunal invited the applicant to attend a hearing on 6 November 2024. The applicant chose not to attend.

1. The applicant contends that in an email he "clearly stated that I could not attend the hearing" and "I expressed my intention to provide supplementary evidence". However, based on the materials in the Court Book, the applicant did not send an email to the Tribunal with this content.
2. For the above reasons, none of the contentions or assertions in the Application identify a jurisdictional error in the Tribunal's decision. It follows that the Application must be dismissed.

Effect of applicant not applying for re-instatement of application

1. Following the Dismissal Decision, the applicant had a statutory right under s 368C of the Migration Act to apply for reinstatement of the Tribunal Application. He chose not to exercise that right. He did not explain to this Court why he did not exercise that right.
2. As stated in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [33]:

Relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary. One often compelling discretionary bar is the availability of other relief.

1. In Garde-Wilson v Legal Services Board [2008] VSCA 43; 19 VR 398 at [8] Nettle J stated that "as authority makes clear, the existence, and a fortiori the exercise, of a statutory right of appeal or review before a tribunal with jurisdiction to determine all questions of fact and law within the remit of the original decision maker is a powerful discretionary consideration against the grant of prerogative relief."
2. In Pasmore v Oswaldtwistle Urban District Council [1898] AC 397 at 394-5 it was stated:

"The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by statute, is one which is very familiar and which runs through the law.

This principle has occasionally been referred to in Australian court decisions, such as Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 at 243 per Brennan J. It could be said that s 368C(2) gives a specific remedy to applicants whose applications have been dismissed under ss 99, 100 or 101 of the ART Act.

1. Based on the above line of authorities, if there was a jurisdictional error in the Dismissal Decision, a question may have arisen as to whether relief should be refused by the Court on discretionary grounds.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Kay Hoyle sought an order that the applicant pay the first respondent's costs in the sum of $9,097.93 which was not greater than the first respondent's solicitor/client costs. The applicant objected to this order because he "loves money". That the applicant loves money is not a basis for declining to make a costs order in favour of the successful party. I consider the amount sought by the first respondent is reasonable. I will make this order.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.