Al Ahmad v Minister for Immigration and Citizenship [2026] FedCFamC2G 531

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 May 2022 affirming a decision not to grant him a Partner (Temporary) (subclass 820)/Partner (Residence) (subclass 801) visa Partner (Temporary) (Class UK) (partner visa).
2. The Tribunal concluded that, at the time of its decision, the applicant was not the spouse of the sponsoring partner within the meaning of s 5F of the Migration Act 1958 (Cth) (Act), and that the applicant did not satisfy the alternative "child of the relationship" exception contained in cl 820.221(3) of the Migration Regulations 1994 (Cth) (Regulations).
3. The applicant contends that the Tribunal's decision is affected by jurisdictional error.
4. For the reasons that follow, the application must be dismissed.

1. On 20 January 2018, the applicant, a citizen of Lebanon, first arrived in Australia.
2. On 7 March 2019, the applicant lodged an application for a partner visa.
3. On 1 April 2019, the delegate of the first respondent requested more information from the applicant to assess his visa application.
4. On 29 April 2019, the applicant requested an extension of time to provide more information in relation to the application, which was granted.
5. On 25 May 2019, the applicant's sponsor partner requested to withdraw their sponsorship nomination in support of the applicant due to relationship breakdown.
6. On 29 May 2019, the Department invited the applicant to comment on adverse information received by the department and change in relationship status.
7. On 9 July 2019, the Department sent a second invitation to comment on adverse information received by the Department and change in relationship status.
8. On 3 September 2019, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy the provisions of the Regulations.
9. On 16 September 2019, the applicant lodged an application for review of the delegate's decision with the Tribunal.
10. On 24 April 2020, the Tribunal invited the applicant to provide more information by 8 May 2020 regarding the application under review.
11. On 4 May 2020, the Tribunal granted the applicant's request for an extension of time to provide more information by 29 May 2020.
12. On 3 February 2021, the applicant's sponsor notified the Tribunal of their relationship separation and provided a 'withdrawal' notice to the Tribunal.
13. On 17 March 2022, the applicant's representative confirmed the applicant and his sponsor's relationship separation.
14. On 18 March 2022, and pursuant to s 359(2) of the Act, the Tribunal invited the applicant to provide more information in relation to the 'child of the relationship' exception in cl 820.221(3) of the Regulations (the s 359(2) invitation). For example, whether he had evidence of any child contact orders made under the Family Law Act 1975 (Cth) (FLA) in relation to the child he had with his former spouse.
15. On 29 March 2022, the applicant's representative requested for an extension of 3 weeks to reply to the s 359(2) letter.
16. On 31 March 2022, the Tribunal granted the applicant an extension until 29 April 2022 to provide the information requested on 18 March 2022 as to whether there were any child contact orders from an Australian Court regarding the child he had with his former spouse.
17. No such information was provided by the applicant by 29 April 2022.
18. On 5 May 2022, the Tribunal affirmed the decision under review not to grant the applicant a partner visa on the basis that the applicant did not satisfy cl 820.221 of the Regulations, as he did not meet the criteria stipulated in s 5F of the Act.
19. On 11 May 2022, contact orders relating to the child were made by the Bankstown Local Court, by consent, under the FLA (Child Contact Orders dated 11 May 2022).

1. Clause 820.221 of the Regulations requires, relevantly, that at the time of decision the applicant be the spouse or de facto partner of the sponsoring partner, unless one of the specified exceptions applies. The Tribunal was required to consider whether the applicant met any of the 'child of the relationship' exceptions found in cl 820.221(3) of the Regulations.
2. The definition of "spouse" is defined under s 5F of the Act. Section 5F provides:

(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

(2) For the purposes of subsection (1), persons are in a married relationship if:

(a) they are married to each other under a marriage that is valid for the purposes of this Act; and

(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(c) the relationship between them is genuine and continuing; and

(d) they:

(i) live together; or

(ii) do not live separately and apart on a permanent basis.

(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

820.221

...

(3) An applicant meets the requirements of this subclause if:

(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

(b) either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring partner:

(C) has been granted joint custody or access by a court; or

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

1. The Tribunal commenced by setting out the background to the review and the s 359(2) invitation sent to the applicant, in addition to the replies received, including the request for an extension of time, and the letter sent by the Tribunal granting a 3-week extension, until 29 April 2022.
2. The Tribunal noted that as the applicant had not responded to the s 359(2) invitation within the stipulated time it had decided to finalise the review without recourse to a hearing.
3. The Tribunal then set out its consideration of the applicant's claims and evidence.
4. First, the Tribunal considered the definition of 'spouse' under s 5F of the Act.
5. The Tribunal accepted that the parties were validly married at the time of application but indicated they had subsequently divorced - Islamically.
6. The Tribunal then considered whether the other requirements for a spousal relationship had been met, by considering each of the matters as set out in reg 1.15A(3) of the Regulations and any other circumstances of the relationship under reg 1.15A(2) of the Regulations.
7. The Tribunal found, after considering all the matters under reg 1.15A of the Regulations, that the parties did not have a mutual commitment to a shared life to the exclusion of others nor did they have a genuine and continuing relationship, and they did not live together. The Tribunal found that they had lived separately and apart on a permanent basis.
8. The Tribunal found for these reasons that the requirements of s 5F(2) of the Act were not satisfied at the time of the decision.
9. The Tribunal then considered whether the applicant was able to meet the alternative criteria in cl 820.221(2) and 820.221(3) of the Regulations, that is, the exceptions pertaining to death, family violence and any care obligations for a child of the relationship.
10. The Tribunal found there was no evidence the former spouse was deceased, or that there was family violence.
11. The applicant did, however, provide evidence of a child of the relationship with his former sponsoring partner. The Tribunal found, however, that despite an invitation from the Tribunal to provide information pursuant to cl 820.221(3) (and despite the grant of an extension of time to provide such information), the applicant did not provide evidence which would support a finding that he met the requirements for the "child exception" in cl 820.221(3).
12. The Tribunal found the applicant did not satisfy the criteria for the grant of the visa and accordingly affirmed the delegate's decision.

1. The applicant relies upon an amended application for judicial review with a single ground of review. The ground with particulars is as follows:
   1. The Second Respondent (Tribunal) made a jurisdictional error in proceeding to a decision under s 359C(l) of the Migration Act 1958 (Cth).
      1. The Tribunal by letter dated 18 March 2022 invited the Applicant under s 359 of the Migration Act 1958 (Cth) (Act) to provide information, being in particular evidence of a contact order regarding his child by an Australian Court by 1 April 2022;
      2. The Applicant's migration agent by email sent 29 March 2022 requested an extension of time to provide the information noting that the Applicant "is in the process of obtaining the required consent order documentation however his solicitor has advised that he will require 2-3 weeks to obtain the documentation from the court";
      3. The Tribunal by letter dated 31 March 2022 granted the Applicant the extension of time, thereby allowing the Applicant until 29 April 2022 to provide the information;
      4. The Tribunal at paragraph 12 of its decision record failed to consider exercising the discretion in s 359C(l) of the Act either to make a decision on the review without taking any further action to obtain the information or instead to take such further action: compare Shri Shiva Mandir Ltd v Minister for Immigration [2018] FCCA 383 (Shri Shiva Mandir), [67];
      5. In the alternative, the Tribunal's discretion under s 359C(l) of the Act was subject to legal unreasonableness, meaning that the Tribunal could not lawfully exercise the discretion where there was no intelligible justification for proceeding to a decision without seeking or awaiting the information: Shri Shiva Mandir, [71];
      6. In the further alternative, the Tribunal could under the law of legal unreasonableness effect a judicially reviewable failure to inquire, including where there is no intelligible justification for refraining from the inquiry or where there was an obvious inquiry into a critical fact, the existence of which could be easily ascertained: DYI16 v Minister for Immigration [2021] FCA 612 (DYI16) at [43]-[63]; Ismail v Minister for Immigration [2024] HCA 2; 417 ALR 36 (Ismail) at [25];
      7. The Tribunal fell outside the parameters described in (e) and (f) above as: (i) there was evidence that the contact order was imminent or pending; (ii) proceeding to a decision without further inquiry as to the information would lead to the Applicant being refused the visa with the consequence that he could not ordinarily make a further visa application under s 48 of the Act; (iii) proceeding to a decision was potentially adverse to the interests of the child as it would impede or deny contact of the child with the Applicant;
      8. The Applicant obtained the contact order from the Local Court of New South Wales on 11 May 2022.
2. On 22 August 2025, the proceedings were docketed to me and set down before me for Final Hearing on 8 October 2025.
3. To obtain the constitutional writ relief sought in his amended application, the applicant must establish the Tribunal committed the material jurisdictional error as alleged: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

1. At the hearing of this matter on 8 October 2025, the applicant was represented by Mr O. Jones of Counsel, instructed by Equity Lawyers. Mr M. Sheedy of Sparke Helmore Lawyers appeared for the first respondent.
2. At the hearing the applicant tendered an affidavit of the applicant dated 23 June 2022, which I admitted into evidence and marked as exhibit A1. The applicant also tendered the Child Contact Orders dated 11 May 2022, which I admitted into evidence and marked as exhibit A2. The Court Book in this review was tendered by the first respondent, which I also admitted into evidence and marked as exhibit R1.
3. The issues before this Court are: (i) whether the Tribunal's exercised its discretion under s 359C(1) unreasonably; and (ii) whether the Tribunal should have made an enquiry of the applicant about the information it had sought in the Tribunal's s 359(2) letter before making its decision.
4. Below I set out the competing submissions of each party on the issues, before setting out my consideration of the issue.

1. I set out the substance of the applicant's submissions by reference to the two issues.

First issue: Whether the Tribunal exercised its discretion under s 359C(1) unreasonably

1. The applicant made two arguments on the first issue, both based on this Court's decision in Shri Shiva Mandir Ltd v Minister for Immigration & Anor [2018] FCCA 383.
2. The applicant's first argument: the Tribunal did not understand it was exercising a discretion under s359C(1). The substance of this first argument was set out in paragraphs 17 and 18 of the applicant's submissions as follows:
   1. Shri Shiva Mandir should be followed so far as it recognises the need for the Tribunal to perceive and apply the discretion in s 359C of the Act (compare DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17)). However, it is distinguishable to the extent it finds the Tribunal to have considered the exercise of the discretion. In the present case, there is nothing like the words "has decided to proceed" indicating an appreciation and invocation of the discretion in s 359C.
   2. Rather, the Tribunal in the present case has said that "As", meaning because, the Applicant has not responded to the invitation under s 359 of the Act, the Tribunal "will", meaning inexorably shall, proceed to a decision without a hearing under s 359C of the Act. The injunction to read the Tribunal's reasons beneficially and without an eye attuned to error simply means to read realistically and according to common sense (XFKR v Minister for Immigration [2020] FCAFC 167; 280 FCR 535 at [27]). On such a reading, the Tribunal does not disclose a recognition, let alone an exercise of the discretion in s 359C of the Act.
3. In other words, the applicant argued that by failing to understand that there was a discretion in s359C(1) before deciding, as it did in Tribunal Decision (TD) [12], to "...finalize[sic] the review pursuant to s.359C of the Act without recourse to a hearing", the Tribunal committed legal error. This language, it was submitted, was to be compared with the language in Shri Shiva Mandir where Judge Nicholls held at [67] in that case:
   1. ...The words "has decided to proceed" as they appear at [7] (at CB 80) of the Tribunal's decision record, make clear that in the circumstances, the Tribunal understood that it was exercising a discretion. The language used does not support the proposition that the Tribunal felt compelled to proceed to a decision as SSM submits. Rather, that in the circumstances before it, the Tribunal decided to do so in the exercise of its discretion.
4. The second argument was whether the Tribunal acted unreasonably, in the sense that it lacked an evident and intelligible justification, when it made the decision to "...finalize[sic] the review pursuant to s 359C of the Act without recourse to a hearing". In making this second argument, the applicant relied upon Judge Nicholls' decision in Shri Shiva Mandir where his Honour held that the discretion in s 359C(1) of the Act was subject to the law of legal unreasonableness, as stated by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li).

1. Under the second issue, the applicant made one argument. The applicant argued that the Tribunal committed jurisdictional error by failing to make an obvious inquiry into a critical fact, the existence of which is easily ascertainable, namely whether child contact orders had been made by an Australian Court under the FLA in the applicant's favour. The applicant relied upon DYI16 v Minister for Immigration [2021] FCA 612 (DYI16) at [57] to make this submission.
2. The applicant submitted it was a straightforward task for the Tribunal to inquire of the applicant or his representative as to whether the child contact order had been made. It was submitted it was a matter of great importance to the applicant's case, and it was a matter without which the applicant was doomed to fail. It was submitted the obviousness of the inquiry is demonstrated by the fact that the Tribunal had already attempted to elicit the information by sending a s 359(2) invitation. It was submitted that there was no justification for failing to make the inquiry in these circumstances. It was submitted that this failure led to jurisdictional error.

1. In response, the first respondent made the following submissions.

First issue: Whether the Tribunal exercised its discretion under s359C(1) unreasonably

1. The first respondent submitted under s 359C(1) of the Act, if a person is invited in writing under s 359(2) to provide information and does not respond within the required time, the Tribunal may make its decision without taking further action. When s 359C(1) applies, s 360(2)(c) relieves the Tribunal of the obligation to invite the applicant to appear before it under s 360(1), and s 360(3) of the Act has the effect that the applicant loses any entitlement to appear before the Tribunal. Once the applicant loses this entitlement, pursuant to s 363A of the Act, the Tribunal does not have the power to invite the applicant to appear before it: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran). It was submitted, as the applicant did not respond to the s 359(2) invitation dated 18 March 2022, despite being provided with an extension of time until 29 April 2022, he lost his entitlement to a hearing.
2. Next the first respondent submitted that the possible exercise of the discretion in s 359C(1) was foreshadowed in both the s 359(2) letter, and in the letter granting the extension of time dated 31 March 2022. It was submitted, both letters stated that if the information was not received within the period allowed, "we may make a decision on the review without taking any further action to obtain the information". It was submitted that the Tribunal was aware of its discretion to seek further information if the applicant did not respond in the required timeframe when it decided to proceed to make a decision, and this was conveyed to the applicant.
3. The first respondent also submitted when TD [12] is read sensibly, it is apparent that "will" cannot be read as "must". It was submitted to read TD [12] as suggesting the Tribunal was not exercising its discretion under s 359C is both a strained and an unrealistic reading.
4. The first respondent submitted on the first issue, that to the extent that applicant in his submissions at paragraph [20], refers to the Tribunal making a "decision without a hearing", the first respondent understood the reference to a hearing in the applicant's submissions was intended to be a reference to "seeking further information". The first respondent noted the Tribunal had no power to invite the applicant to a hearing once he failed to respond to the s 359(2) letter under s 360(2)(c) and s 359C(1) of the Act. In making this submission, the first respondent referred to the Full Court in Hasran.
5. The first respondent submitted, referring to the principles of legal unreasonableness discussed in Li, the "evident and intelligible justification" for the Tribunal's decision not to take any further steps to obtain the information sought is immediately apparent. It was submitted the Tribunal's reasons summarise in detail the opportunities the applicant was provided with to provide evidence in relation to cl 820.221(3) of the Regulations between 2020 and 2022, further identifying that the applicant was represented before the Tribunal and was granted a lengthy extension, as requested. No further information was provided by the applicant in this period, and no further extension of time was requested on or before 29 April 2022. The first respondent noted the applicant had not responded within time (or at the time of its decision). It was submitted that, it in these circumstances, the decision made was not legally unreasonable pursuant to the High Court's decision in Li.
6. It was also submitted that there was no evidence before the Tribunal in those circumstances to suggest that the applicant would be providing the information sought once the extended timeframe had expired. The representative did not seek a further extension to provide the information sought or otherwise seek an adjournment. As in Shri Shiva Mandir, it was submitted the applicant was squarely on notice of the need to provide the required information and the time available to him to do so could not be said to be legally unreasonable.

1. It was submitted on the second issue that this was not a case where it could be said that the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which could be easily ascertained, as contended by the applicant. It was submitted that it is well established the applicant has the onus to make out his case before the Tribunal, and if the applicant required more time to provide a contact order, it was his responsibility to seek a further extension of time from the Tribunal. It was submitted that the applicant was on notice of this onus by virtue of the s 359(2) letter dated 18 March 2022, which stated that if the Tribunal did not receive the information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the information.
2. Further, it was submitted that the applicant has not identified the basis upon which it could be concluded that there was a critical fact, the existence of which, could be easily ascertained in any event. It was submitted this was not one of the rare matters where a jurisdictional error has arisen by virtue of a failure to make an inquiry into a readily ascertainable critical fact. The High Court decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 (SZIAI) was cited in support of this submission.

1. I will consider the applicant's amended application by reference to the two issues identified above.

Consideration of first issue: Whether the Tribunal exercised its discretion under s 359C(1) unreasonably

1. At TD [4]-[12] the Tribunal set out in full the correspondence seeking further information from the applicant to determine whether the 'child exception' in cl 820.221(3) of the Regulations applied. These requests included the s 359(2) invitation, the applicant's representative's request for an extension of time dated 18 March 2022 and the Tribunal's response dated 31 March 2022. The Tribunal then set out the decision to finalise the review without recourse to a hearing. TD [4]-[12] is as follows (emphasis added):
   1. On 24 April 2020 the applicant was sent an Invitation pursuant to s.359(2) as follows:

INVITATION TO PROVIDE INFORMATION - MR AHMAD AL AHMAD

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner {Temporary) {Class UK) visa.

It is a requirement for the grant of the visa that at the time of visa application, and at the time of the decision, you are the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies.

If you are no longer in a relationship, there are exceptions under which you can be granted the Partner visa.

These include:

• The death of the sponsoring partner
• Family violence
• Certain court orders or responsibilities in relation to children

5. The applicant responded to the Invitation on 26 May 2020 as follows:

This letter is in response to your letter dated 24 April 2020 as an invitation to provide information in respect to the decision to refuse to grant a Partner Visa.

I have been in a relationship with my spouse Sandra Mohamad since 18th of November 2016.

On 20th January 2018 I arrived in Australia with plans to get married to Sandra on 06 April 2018. Sandra and I got married at the Golden Nights reception at Bankstown in a lavish Lebanese wedding with approximately 200 guests made up of family and friends.

We were blessed with the arrival of our son Youssef Al Ahmad on 18th December 2018. The birth of my son was a special time for myself and my wife. In February 2019 after some concerns raised by my wife with her GP, we were referred to Dr Sam Nasser who diagnosed my son with 22q11.2 duplication.

After this diagnosis, we were faced with challenging times as we were both scared, confused and did not understand what this meant for us as parents and for our son.

Unfortunately, this led to me not seeing eye to eye and unable to communicate and it resulted in a separation. Sandra and I were separated for approximately 4 months.

Once Sandra and myself visited various specialists in Sydney and educated ourselves on our sons condition we were able to then communicate better and plan for our son and our future. I ended up coming back home to Sandra and my son. On 18th of April 2020 Sandra and I moved into our own home at 73a Farrell Road Bass Hill 2197 and have begun our lives with our son as a family.

My wife and I have plans for our future with our son to provide him with a happy and loving home, to travel overseas to Lebanon so my siblings and their families can meet my son and to continue to provide our son with treatments specific to his condition such as his upcoming operations as well he has a lot of various therapies that has to be done. he also is in Westmead children's every month due to being sick. He is currently being tube fed as well.

Please reconsider your decision to refuse to grant a Partner Visa as I am in a genuine loving relationship with my wife Sandra and am living in our home at 73a Farrell Road Bass Hill 2197 with our beautiful son Youssef. If you require any further information please do not hesitate to contact me at your convenience.

Looking forward to hearing from you.

1. The applicant also provided a plethora of additional information pursuant to their son's medical condition and their personal marital living arrangements.

2. Subsequently, some correspondence was received at the Tribunal from the applicant's (former) sponsoring partner regarding their relationship. In order to clarify their contemporary marital status, the Tribunal wrote to the applicant's representative as follows:

Dear Mr Ahmaz

This is an email regarding the status of your client's application for review in this matter.

The Tribunal notes correspondence from your client's sponsor Ms Sandra Mohamad of 3 February 2021.

In this correspondence Ms Mohamad advises that she is no longer in a relationship with your client and has had an Islamic divorce from him.

The Tribunal is also aware of a withdrawal notice filed on 8 April 2021 regarding your client.

Could you please confirm if your client wishes to withdraw his application?

1. Subsequently the applicant's representative responded to the Tribunal's correspondence as follows:

Thank you for your email of 14 March 2022.

Kindly note the relationship between my client and his sponsor has ended however my client is unaware of a withdrawal notice in relation to the tribunal application.

Please note my client has a child from the sponsor and would like to proceed with the application. Child birth certificate attached.

Please do not hesitate to contact me should you require any further information/documentation.

Regards,

Richard Amhaz

Migration Agent

MARN: 1796249

1. Following the receipt of the information provided by the applicant's representative, the applicant was sent an Invitation pursuant to s.359(2) on 18 March 2022 as follows:

INVITATION TO PROVIDE INFORMATION - MR AHMAD AL AHMAD

I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.

Your representative has indicated that you wish to avail yourself of the 'child exception' available to Partner visa applicants who no longer have 'a genuine and continuing relationship' at time of decision.

To meet the requirements for the child exception in cl.82O.221 (3) you must:

(A) have custody, joint custody of, or access to; or

(B) have a residence or contact order made under the Family Law Act 1975 relating to: at least one child, in respect of whom the sponsoring partner (your former wife) has:

(C) been granted joint custody or access by a court, or

(D) a residence or contact order made under the Family Law Act 1975, or

(E) a child maintenance order made under the Family Law Act 1975 or any formal maintenance obligation.

The terminology used in paragraphs (A) and (C) relates to the Family Law Act 1975 (Cth) (Family Law Act) - as it was before 11 June 1996. The terminology used in paragraphs (B) and (D) relates to the Family Law Act after 11 June 1996.

Custody is defined in reg. 1.03 as '(a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child.'

You are invited to provide the following information in writing:

• proof of custody or joint custody of the child concerned; or

• Proof of a residence or contact order regarding the children concerned from an Australian Court; and if so, the order must:

i. be granted in joint custody; or

ii. be made as a residence or contact order; or

iii. be made as a child maintenance order.

• A child maintenance order made under the Family Law Act 1975 or any formal maintenance obligation.

• Private contact arrangements (if any) between a non-custodial parent (you) and your child.

The information should be received by 1 April 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 1 April 2022, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 1 April 2022, and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.

You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

1. The applicant requested an extension of time to submit the documentation - which was granted.
2. However, at the expiry of the extension, the applicant has provided none of the requested information and has not submitted any additional information at time of writing.
3. As the applicant has not responded to an Invitation pursuant to s. 359(2) within the stipulated time the Tribunal will finalize the review pursuant to s.359C of the Act without recourse to a hearing.

1. Contrary to the applicant's first argument, these paragraphs show the Tribunal clearly understood it was exercising a discretion under s359C(1) of the Act. I accept the first respondent's argument that the reference to the words "as" and "will" in TD [12] is language which makes it clear the Tribunal understood it was exercising the discretion it was referring to in the correspondence it had set out in TD [4] to [10]. I also consider the fact that the Tribunal incorporated the entirety of the correspondence, verbatim, into its decision at TD [4] to [9] supports my conclusion, in particular the emphasised part.
2. All Tribunal decisions are different, and I do not consider the fact that in Shri Shiva Mandir the Tribunal used a particular expression, namely the words "has decided to proceed" in its decision, is determinative as to whether the Tribunal in the present case understood it was exercising a discretion.
3. In my view, when properly read, TD [12], which directly followed on from the Tribunal setting out in its entirety the s 359(2) invitation, the extension request dated 18 March 2022 and the letter dated 31 March 2022 granting an extension to 29 April 2022, shows the Tribunal both understood it was exercising a discretion, and how s 359, s 359C, s 360(3) and s 363A of the Act operated.
4. The effect of these provisions is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear. This is consistent with what the Full Court held about the proper construction of these provisions in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (Hasran). In Hasran, the Full Court held at [27]-[29]:
   1. Here, the appellant's failure to respond to the Tribunal's letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
   2. This was because the appellant was invited by the Tribunal's letter under s 359A to comment or respond to the information stated in the Tribunal's letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.
   3. The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.
5. Although Hasran was concerned with a failure to respond to a s 359A(1) letter, the principles in my view are equally applicable to the situation in the present case where the applicant fails to respond to an invitation under s 359(2) of the Act: see ss 360(2) and 359C(1) of the Act.
6. In TD [12], the Tribunal decided to proceed to a decision without taking any further steps to obtain the information it originally sought in its s 359(2) invitation. It was entitled to do this. I reject the first argument.
7. I also do not accept the applicant's second argument on the first issue. For the following reasons.
8. Legal unreasonableness occurs where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it, (see Li at [28] per French CJ), or where a decision has been made that lacks an "evident and intelligible justification" (see Li at [76] and see also Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at page 234). The matter of Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38] provides a more recent discussion of the judicial review ground of legal unreasonableness.
9. However, legal unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgments made by the decision maker: see Li at [30], [113]. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
   1. The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
10. Contrary to what the applicant submitted, there was, in my view, an evident and intelligible justification for its decision to finalise the review without recourse to a hearing (i.e. not seeking further information). The Tribunal had already granted an extension on 31 March 2022 until 29 April 2022 for the applicant's migration agent to provide information regarding any child contact orders that may have been obtained under the FLA. Importantly, the applicant was represented during this process by a registered migration agent. By the time of the decision, 6 days had passed since the 29 April 2022 deadline. There had been no contact made by the applicant's representative (or the applicant himself) either before or after 29 April 2022, seeking further time to provide the relevant information as requested to meet the child exception in cl 820.221(3) of the Regulations. The evidence also reveals that the Tribunal conducted a "no reply check" on 2 May 2022, which confirmed the Tribunal had not received a response to the s 359(2) letter by the "due date".
11. I accept the first respondent's submissions that (i) given the absence of any response from the applicant's representative before 29 April 2022; (ii) given the absence of any further request for another extension of time; and (iii) the absence of any response by the time of the decision, the Tribunal clearly had, by 5 May 2022, an "evident and intelligible justification" for its conclusion to finalise the review without recourse to a hearing in TD [12]. I do not consider, applying Stretton, that the decision made in TD [12] could be characterised as being one that was, "...plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power".
12. In Shri Shiva Mandir, on the issue of legal unreasonableness, Judge Nicholls found at [77]:
    1. ...it was reasonably open to the Tribunal to take the view that, for whatever reason, SSM did not intend to provide any such documents to the Tribunal. This was because SSM had been on notice for some time as to the need to provide these documents, and it had been put squarely on notice of this (again) by the Tribunal's letter of 28 July 2016. Further, the time available to SSM to provide the documents was reasonably sufficient.
13. The circumstances in Shri Shiva Mandir were therefore similar to the present matter.
14. I accept that it was reasonably open in the circumstances of this case for the Tribunal to take the view that, for whatever reason, the applicant's representative did not intend to provide information about any relevant child contact orders made under the FLA.
15. For these reasons I reject the second argument and I do not accept that the Tribunal's decision was legally unreasonable.

1. There is no general obligation on a Tribunal to investigate an applicant's claim: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural arid Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
2. The High Court in SZIAI (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) has held that the duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. However, in SZIAI the High Court did also say that:
   1. ...it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
3. In his submissions, the applicant relied upon the Federal Court decision in DYI16 at [43] to [63] in support of its argument.
4. In DYI16, the Court rejected the argument, that the case before it was rare and exceptional and that any duty to make an obvious inquiry arose. In my view that case, while it is instructive about the principles to be derived from SZIAI, does not advance the argument by the applicant as to why the Tribunal owed a duty to make an obvious inquiry in the circumstances of the present case. All cases are factually distinct.
5. The applicant also relied upon the High Court decision in Ismail at [25] to advance his argument on this issue. At [25] the High Court re-stated the principles from SZIAI as follows (omitting footnotes):

25. The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.

1. The High Court in Ismail rejected the argument, in the circumstances of that case, that there was any duty to make an obvious inquiry. I do not consider that Ismail advances the argument made by the applicant any further as to why the Tribunal owed a duty to make an obvious inquiry in the circumstances of the present case.
2. In the present case it is my view that there was no "obvious inquiry about a critical fact, the existence of which [was] easily ascertained". Any inquiry, if one was undertaken, would not have yielded any new information at the time of the decision in any event. The applicant would not have been able to give the Tribunal any new information at that time as no child contact orders were made under the FLA until 11 May 2022, after the Tribunal's decision. I accept the first respondent's submission that, at the time of the decision on 5 May 2022, the applicant would not have been able to give the Tribunal any information which the Tribunal did not already have.
3. In my view there was no obligation on the Tribunal in the circumstances of the present case to make further contact with the applicant at the time of making its decision on 5 May 2022. I do not accept the applicant's argument that the Tribunal committed jurisdictional error of the kind discussed in SZIAI, amongst others.

1. The applicant has not established that the Tribunal's decision is affected by jurisdictional error.
2. The application is dismissed.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.