BOK20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 506

1. Before this Court is an application filed on 14 April 2020 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 March 2020. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate) dated 10 November 2017 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
2. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. The key issue for determination is whether relevant evidence was taken into consideration in circumstances where the Tribunal made a decision without a hearing. I have also considered whether the decision of the Tribunal to determine the application on the papers was unreasonable. The Tribunal also had the options of dismissing the matter or adjourning. The Minister raised for consideration the findings of Horan J in DNK17 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2024] FCA 975 (DNK17). I have found that that decision can be distinguished, and no jurisdictional error is revealed.
4. The application is dismissed for the reasons that follow.

1. The applicant is a citizen of China (Court Book (CB) 24). She arrived in Australia on 26 July 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa (CB 41).
2. On 3 August 2017, the applicant applied to the Department of Immigration and Border Protection (the Department) for the protection visa (CB 1-23). In the application, the applicant nominated her own email address as the address for service (CB 7).
3. The applicant claimed to fear harm from a group of 'gangsters' in China. She claimed that they had threatened to kill her after she had reported them for breaking into her family home and assaulting her and her family (CB 42).
4. On 3 August 2017, the Department acknowledged the application for the protection visa (CB 26-30) by way of email.
5. On 16 October 2017, the Department invited the applicant to attend an interview to discuss the visa application and her claims (CB 35-36).
6. The applicant did not attend her scheduled interview with the Department on 6 November 2017. The applicant did not provide a reason for her non-attendance (CB 42).
7. On 10 November 2017, the Department refused to grant the applicant the protection visa (CB 37-40) finding that she did not satisfy the criteria for a protection visa pursuant to s 36 of the Act.
8. On 21 November 2017, the applicant applied to the Tribunal for review of the Department's decision (CB 49-50).
9. The applicant nominated her own email address as the address to receive electronic communication from the Tribunal (CB 50). This email address was different to the address provided to the Department.
10. On 24 November 2017, the Tribunal acknowledged the application and invited the applicant to provide material and written arguments for the Tribunal to consider (CB 52-53).
11. The applicant did not provide further documents.
12. The applicant was invited to a hearing of the Tribunal on 19 March 2020 (CB 55-56).
13. A Tribunal hearing was held on 19 March 2020; however, the applicant did not attend (CB 57-59).
14. On 19 March 2020, the Tribunal affirmed the delegate's decision not to grant the applicant a visa (CB 62) and notified the applicant on the same day (CB 61).

TRIBUNAL DECISION [TD] DATED 19 MARCH 2020 (CB 62-65)

1. The Tribunal identified the visa under review and summarised the procedural history of the matter (TD [1-4]).
2. The Tribunal summarised the relevant law (TD [5-10]).
3. The Tribunal extracted the applicant's claims as set out in her protection visa application (TD [13]).
4. The Tribunal noted that it did not have a responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim, pursuant to s 5AAA of the Act (TD [16]).
5. The Tribunal found that the applicant's claims were 'bald and briefly sketched assertions' that were not tested in a hearing (TD [15] and [17]).
6. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution or that there was a real risk of harm to her if she returned to China based on the claims she asserted (TD [18]).
7. On 19 March 2020, the Tribunal affirmed the decision under review on the basis that the applicant did not satisfy the criterion in s 36(2) of the Act (TD [19-20]).

1. The applicant applied to this Court for judicial review in an application filed on 14 April 2020. The applicant also filed an affidavit deposed on 10 April 2020 attaching a copy of the Tribunal Decision.
2. The matter was listed for hearing by video on 24 November 2025 at the request of the applicant. On the hearing date the applicant appeared by telephone. An audiovisual link had been provided to her, but she said that she could not use it. A short adjournment was held so that court staff could assist her with the link. She again indicated that she could not join using the link. She also said that her lawyer had told her to appear by telephone.
3. Given the importance of the matters to be addressed and the technological issues experienced by the applicant, I decided to adjourn the matter in order that a hearing be held in person. The matter was re-listed for 16 December 2025. Mr Hillyard of Sparke Helmore Lawyers appeared for the first respondent. A Mandarin interpreter assisted the Court.
4. I noticed that the applicant had not sought a writ of mandamus directed to the Tribunal requiring it to determine the application according to law. As such, this Court's jurisdiction was not properly invoked. At the Tribunal hearing, I explained to the applicant that she could seek leave for the application to be amended in Court. Leave was sought without objection from the Minister, and the application was appropriately amended pursuant to r 8.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
5. By orders of the Court on 5 August 2025, the applicant was ordered to file and serve an amended application, any affidavit evidence and submissions by 13 October 2025. No further documents were filed. The applicant's grounds for judicial review are set out in the application filed on 14 April 2020. The applicant seeks orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
6. The following documents were before the Court - the initiating application for judicial review, the supporting affidavit of the applicant filed on 14 April 2020, a Court Book (numbering 69 pages and marked as Exhibit 1R) filed 23 July 2020, written submissions of the Minister filed 15 October 2020, further written submissions of the Minister filed 27 October 2025 and two affidavits filed by the Minister on 27 October 2025. The affidavits were read in court.

1. In Hamod v New South Wales [2011] NSWCA 375 (Hamod), Beazley JA (Giles and Whealy JJA agreeing) referred to the duty of courts to litigants in person, observing that the touchstone remains that of fairness [313]. The court found that a trial judge should take steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court to ensure a fair trial (Hamod [311] - [313]). Beazley JA outlined the relevant principles in ensuring there is the right balance between impartiality and assisting litigants in person at ([309] - [316]):

.... In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

"A trial in which a judge allows an accused` to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as "fair"."

[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337 ; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 ; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case (citations omitted)...

1. While Hamod was a criminal matter, similar principles apply in civil matters: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [22]; MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) at [100].
2. I confirmed that the applicant had a copy of the Court Book and the Minister's submissions. The submissions were interpreted for the applicant in Court. I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the applicant were to succeed in his application. I explained that jurisdictional error is a kind of serious legal error and outlined some common categories, noting that these categories were not exhaustive. I also noted the well-established principle expressed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 - that a court cannot engage in reviewing the merits of the decision. The applicant was asked if she understood and she said that he did.

DISPOSITION - WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?

1. The applicant has claimed that the Tribunal Decision fell into jurisdictional error.
2. Section 476 of the Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
3. A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
4. The role of judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allsop J, Besanko and O'Callaghan JJ at [17] as follows:

...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2-3] (footnotes omitted):

Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. The Tribunal was required to consider whether the applicant met the legislative criteria for a Protection (Class XA) (Subclass 866) visa.
2. Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Migration Regulations 1994 (Cth) (Regulations) prescribe the criteria for classes of visas: s 31(1) and (3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
3. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act. The Tribunal considers these criteria on review.
4. Subsections 36(2)(a) and 36(2)(aa) of the Act provide that a criteria for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

1. Section 5H(1)(a) of the Act provides that a person is a refugee if they are unable or unwilling to avail themselves of the protection of a country owing to a well-founded fear of persecution. Section 5J sets out what it means to have a well-founded fear of persecution.

Consideration of the grounds of jurisdictional error advanced by the applicant

1. The applicant has advanced three grounds of jurisdictional error in her application. As the applicant was a litigant in person I considered each of the applicant's grounds as broadly as possible and have been alert to error, in accordance with the principles set out in MZAIB at [100].

1. The applicant contended in her application that the first ground of jurisdictional error was that (reproduced below without alteration):
   1. THE TRUBUNAL MADE JURISDICTIONAL ERROR IN MAKING ITS DECISION TO REFUSE MY PROTECTION VISA APPLICATION

Ground 2 - failure to take into account relevant evidence/considerations

1. The applicant contended that the second ground of jurisdictional error was that (reproduced without alteration):
   1. THE TRIBUNAL IGNORED THE FACT THAT I GOT DISCRIMINAED BY HCINESE GOVERNMENT

1. The applicant contended that the third ground of jurisdictional error was that (reproduced without alteration):
   1. THE IMMMIGRATION MADE ADMINISTRATIVE ERROR IN NOT SATISFYING THE FACT OF MY PAST HISTORY OF BRING TORTURED.
2. At the hearing before me, the applicant was invited to make submissions or provide particulars of the claims (Tp 8.13, 25, 35, 9.4). She said that she did not wish to do so. At the conclusion of the hearing, the applicant did make some submissions. She thanked the Court for the opportunity to attend the hearing and said that she took responsibility for not attending the Department and Tribunal hearings. She said that she was scared because her experience in China had an impact on her and she heard from her friends that if she attended the Tribunal hearing, her case would be heard 'very soon', and she would be deported to China. She said that she cannot dispute that she did not attend the hearing. She said that she had difficulties in China. She said that she wanted to stay in Australia (Tp 21.13-40).
3. Ground 1 does not contain any particulars, and the applicant did not explain it further in her submissions, and I am unable to establish what error is claimed.
4. Ground 2 appears to be a claim that the Tribunal failed to consider the applicant's evidence about discrimination the applicant suffered at the hands of the Chinese government.
5. In her application to the Department the applicant claimed to fear persecution in China from gangsters who had intimidated and beaten up both her and her parents after tricking them into an agreement to pay rent (CB 17).
6. The applicant claimed in her application that she and her parents were forced to move out of their home and that they tried to 'appeal to the higher authorities for help'. She said that 'unfortunately the gangsters and the government stuck together against the underclass people' (CB 17).
7. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution or met the complementary protection criteria (TD [18]).
8. The Tribunal did not make specific findings that it did not accept that the applicant or her family were intimidated or suffered violence at the hands of gangsters or that the Chinese government and the gangsters 'stuck together' as was claimed in the application (CB 17). However, this can be taken to be the findings of the Tribunal, from the conclusion at TD [18] that the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution or met the complementary protection criteria, when read with the following statements and findings of the Tribunal:
   • That on 18 February 2020 it had written to the applicant advising her that it had considered all the material it had in relation to her protection visa application but could not make a favourable decision on that information alone. She was invited to a hearing to give evidence and present arguments: TD [3].
   • That 'as things currently stand the applicant's claims are bald assertions that the Tribunal needed to test in an oral hearing with the applicant giving evidence subject to an oath or affirmation': TD [15].
   • That 'the mere fact that a person claims persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed.': TD [16].
   • That it is the responsibility of the applicant to specify all particulars of the claim and to provide sufficient evidence to establish the claim: TD [16].
   • That the Tribunal is not required to accept uncritically any and all the allegations made by an applicant: TD [16].
   • That without the applicant taking the opportunity to adduce oral evidence, the Tribunal only had 'bald and briefly sketched assertions' that it had not been able to test in a face-to-face hearing: TD [17].
9. The Tribunal informed the applicant in a letter dated 18 February 2020 that it had considered all evidence and could not make a favourable decision. This was the same evidence that was before the Tribunal when it made its final decision. The Tribunal referenced the evidence including the evidence of discrimination, in [13] of the Tribunal Decision: 'gangsters and the government stuck together against the underclass people'. It is clear also from the references to 'bald assertions' which were untested, and the fact that the Tribunal was not required to uncritically accept evidence, that the Tribunal did not accept the evidence of the applicant that she and her family had been harassed, subject to violence or that the government and gangsters acted together.
10. In short, given the above findings, I am satisfied that the Tribunal considered the evidence of discrimination. No jurisdictional error is established in Ground 2.
11. In Ground 3, the applicant appears to be claiming that the Tribunal made an error in not accepting her evidence about being tortured.
12. The Minister contended that there was no claim of torture raised by the applicant, but insofar as the applicant was referring to the assault by the gangsters, this was considered by the Tribunal at TD [13].
13. I accept that the Tribunal considered the assault as this is referred to in the Tribunal Decision at [13]. For the reasons set out in Ground 2, I accept that the Tribunal did not accept that the applicant or her family were subject to harassment or assault by the gangsters.
14. To the extent that the applicant is claiming that the Tribunal should have made a different decision based on the facts, this is an invitation for the Tribunal to engage in impermissible merits review: AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6 at [21] per Markovic, Thomas and Banks-Smith JJ. I cannot reconsider the facts and make a different finding on the merits as this is the Tribunal's role.
15. No jurisdictional error is revealed in Ground 3.

Additional matter raised by Minister - was the decision to decide the matter on the papers legally unreasonable?

1. In submissions, the Minister as model litigant, raised the issue of whether it was unreasonable for the Tribunal to decide the matter on the papers (s 426A(1A)(a) of the Act), rather than dismissing the matter (s 426A(1A)(b)), although this matter was not raised by the applicant.
2. I explained the issue to the applicant at the hearing and invited her to make submissions. She again refrained from making submissions, even though I explained that submissions may assist her case (Tp 8.37-9.13).
3. As referred to earlier in this judgment, the applicant did make some general submissions which did not relate to discussion of any specific ground ((Tp 21.13-40). She said that she took responsibility for not attending the Department and Tribunal hearings. She said that she was scared because her experience in China had an impact on her and she heard from her friends that if she attended the Tribunal hearing, her case would be heard 'very soon', and she would be deported to China. She said that she cannot dispute that she did not attend the hearing.
4. Section 425(1) of the Act required the Tribunal to invite the applicant to a hearing. The applicant was validly invited to a hearing by email to the last nominated email address provided to the Tribunal by the applicant: ss 425A(2) and 441A(5)(b) of the Act (CB 50).
5. The invitation gave notice of the day, time and place at which the applicant was to appear: s 425A(1) of the Act. The invitation provided a period of notice of 30 days until the hearing, which was greater than the prescribed period of 14 days: s 425A(3) of the Act and r 4.35D(3) of the Regulations (CB 55).
6. The invitation also gave notice of the effect of s 426A of the Act: 425A(4) of the Act (CB 56). Section 426A of the Act provided that if the applicant did not appear before the Tribunal on the day, time and place scheduled, then the Tribunal had two options. Firstly, the Tribunal could by written statement under s 430 make a decision on the review without taking any further action to allow or enable the applicant to appear before it: s 426A(1A)(a). Secondly it could by written statement under s 426B, dismiss the application without any further consideration of the application or information before the Tribunal: s 426A(1A)(b) of the Act. If the Tribunal dismissed the application, the applicant could within 14 days apply for reinstatement: s 426A(1B).
7. There have been a number of recent cases in which these provisions have been considered. I have considered the applicability of these recent authorities below.

1. In DNK17 Horan J held that, in the particular circumstances of that case, it was legally unreasonable to make a decision on the review without a hearing, rather than exercising the dismissal power: at [7] and [105] - [113].
2. The facts in DNK17 were as follows. The appellant declined an interview with the Department (at [8]). The appellant was invited to a hearing of the Tribunal, and information was provided to him about what would happen if he did not attend (at [18-20]).
3. The Tribunal rescheduled hearings twice after late adjournment requests made by the appellant (at [8]),
4. The appellant failed to appear at a rescheduled hearing, after another last-minute adjournment request for medical reasons had been refused by the Tribunal (at [28]).
5. The Tribunal exercised its discretion under s 426A(1A)(a) of the Act to decide the matter on the review without taking any further action to allow or enable the applicant to appear before it (at [1] and [8]).
6. His Honour observed (at [99]):

It remains within the area of the Tribunal's decisional freedom to consider which of the available options is appropriate in the particular circumstances of each case - whether to grant an adjournment and reschedule the hearing, to make a decision on the review, or to dismiss the application. However, the decision by the Tribunal must be within the bounds of legal reasonableness, and must have an evident and intelligible justification.

1. The Tribunal had not provided reasons as to why it did not dismiss the matter rather than make a decision on the papers (at [7]). The Tribunal did provide reasons for refusing a request for an adjournment (at [29]).
2. The primary judge observed that the Tribunal was not bound to provide reasons and that the reasons for not granting the adjournment explained the rationale for the exercise of the discretion (at [42]).
3. His Honour Justice Horan found that in exercising its power to decide the review under s 426A(1A) of the Act, it was necessary for the Tribunal to address why it was doing so in the light of the alternative option of dismissal with a right of reinstatement (at [8]).
4. The Tribunal rejected the appellant's claims on credibility grounds based on insufficiency of information about claims (at [34]). Horan J highlighted that the Tribunal referred to the brevity and lack of detail in the application and that the material provided by the applicant was 'light on details' (at [8]).
5. Horan J (at [57]-[60]) considered the legislative history to the introduction of the dismissal power in s 426A (which is in the same terms as s 362B) and, referring to the Explanatory Memorandum, identified that the new power to dismiss an application rather than proceed to hear it in the absence of an applicant was intended to increase Tribunal efficiency and allow the Tribunal to focus resources away from matters not being actively pursued by an applicant.
6. Horan J found that to the extent that the Tribunal considered the exercise of the dismissal power under s 426A(1A)(b) of the Act, it was unreasonable not to have addressed and weighed up the consequences of adopting that option instead of determining the merits of the review application based on the insufficiency of the available information (at [107]).
7. His Honour held that the Tribunal acted outside the bounds of legal reasonableness in exercising the power under s 426(1A)(a) of the Act.

1. In AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423 (AMU19), the court considered circumstances in which an applicant was invited to a hearing by the Tribunal and notified of the consequences of non-attendance (at [9]). The applicant was notified that the Tribunal could not make a favourable decision on the material before it.
2. The applicant did not respond to the Tribunal's invitation by returning the hearing invitation form (at [10]).
3. The Tribunal sent SMS reminder messages to the applicant in advance of the hearing. These messages bounced back (at [11]).
4. The applicant did not attend the Tribunal hearing (at [12]).
5. The Tribunal elected to proceed to make a decision without taking any further action (s 426A(1A)(a) of the Act) (at [18]). The Tribunal noted that the applicant had been correctly notified of the hearing and that SMS reminders were sent. The Tribunal did not provide reasons for deciding to make a decision on the papers rather than adjourning or dismissing.
6. His Honour Judge McCabe found that the Tribunal's decision was affected by jurisdictional error. He found that the Tribunal's description of the procedural history and the reasons for the decision did not disclose even by inference an evident and intelligible justification for making a decision on the papers (at [64]).
7. His Honour observed that the conclusion that the decision was unreasonable was especially so as the case turned on credibility and there was a clear signal (from SMS messages that bounced back) that the applicant was not aware of the hearing (at [66]).
8. His Honour found that there was no requirement for reasons for the decision under s 430 of the Act.
9. An appeal of the matter by the Minister was recently dismissed in Minister for Immigration and Citizenship v AMU19 [2026] FCAFC 29 (AMU19 [2026]).
10. On appeal the full Federal Court in AMU19 [2026] said at [40] that:

It was permissible for the primary judge to draw inferences from what the Tribunal said by way of explanation of the circumstances in which the determination of the review under s 415 of the Act was made notwithstanding that the Tribunal was not obliged to give reasons for the anterior procedural decision.

Applicability of DNK17 and AMU19 to the matter before me

1. I have considered whether the choice to make the decision on the papers was within the bounds of legal reasonableness in light of the decisions in DNK17 and AMU19.
2. The requirement of legal reasonableness is generally implied as a condition on the exercise of a statutory power, based on the presumed intention of Parliament that it is an essential condition of the power that it be exercised reasonably: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (Li) at [29] per French CJ.
3. As the source is implied legislative intention, the content of legal reasonableness is shaped by the particular statutory context, although it can also be informed by the common law or the general law: Li at [105] per Gageler J.
4. After considering DNK17 and AMU19 I am satisfied that the Tribunal's power under s 426A(1A)(a) of the Act was properly enlivened by the applicant's non-attendance at the hearing. I am satisfied that the Tribunal's decision was reasonable in the circumstances. My reasons follow.
5. In Li at [76], the High Court observed 'unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification'. There must also be an intelligible decision-making process: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [20] per Kiefel CJ, Bell, Gageler and Keane JJ.
6. In DNK17, Horan J [67] summarised lack of intelligible decision-making as follows:

In this regard, there might either be an unreasonable failure to consider the exercise of a procedural power, or an unreasonable failure to exercise the power after having considered its exercise: Li at [103] (Gageler J). Further, an unreasonable exercise or failure to exercise a procedural discretion can sometimes result in the exercise by a tribunal of its general powers exceeding the bounds of legal reasonableness: see Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [31] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

1. Discretionary powers must be exercised according to the 'rules of reason' and the 'canons of rationality', in that 'decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power': see Li at [24]- [26] per French CJ.
2. In both DNK17 and AMU19, which had similar circumstances to the matter before me in that the Tribunal exercised a discretion to make a decision on the papers rather than adjourn or dismiss, the courts found that the decision was legally unreasonable.
3. The solicitor for the Minister contended that the matter before me could be distinguished from DNK17 as in the matter before me, unlike DNK17, the Tribunal did not say that the applicant's hearing would have been an opportunity to address the various gaps and contradictions in the case, but rather found that there was insufficient information for it to be satisfied that the applicant met the requirements for the grant of the visa (TD [15] - [18] ).
4. In the matter before me, the Tribunal found that 'without the applicant taking the opportunity provided for her to give oral evidence in this matter, the Tribunal only had bald and briefly sketched assertions that it has not been able to test in a face-to face hearing' (TD [17]).
5. I am satisfied that the matter before me is readily distinguishable from DNK17 as there was no mention of 'contradictions' or issues of credibility generally. I considered whether the use of the words 'been able to test' in the case before me, meant that the Tribunal believed that a hearing was required to resolve problems (or 'contradictions') in the evidence. My conclusion is that the reference to the use of the word 'test' was in the context of the reference to 'bald and briefly sketched assertions' that needed to be tested, rather than contradictions, and that the Tribunal was concerned about the absence of evidence, rather than inconsistencies. This implies a lack of satisfaction rather than a lack of credibility.
6. The case before me can also be distinguished from DNK17 for the following reasons:
   • In DNK17 there was significant engagement by the applicant with the Tribunal. This included the applicant seeking two adjournments prior to the Tribunal hearing, and an adjournment of the Tribunal hearing. In these circumstances, the court in DNK17 found that it would have been reasonable for the Tribunal to have expected that the applicant would have initiated a reinstatement application if the matter had been dismissed (at [107]). In the matter before me, the applicant had not engaged with the Tribunal since she made her application to the Tribunal seeking a review of the delegate's decision such that there was no expectation that she would have applied for reinstatement.
   • In DNK17 the applicant did attend the delegate's hearing, but the applicant in this matter did not (CB 64).
   • In DNK17, the request for adjournment indicated that the applicant was likely to apply for reinstatement if the matter had been dismissed, but in the matter before me, the applicant did not provide a reason or any indication for non-attendance, such that there is no basis for a conclusion that she would have sought reinstatement had the matter been dismissed.
7. The case before me can also be distinguished from AMU19.
8. In AMU19, the Tribunal sent SMS reminder messages to the applicant in advance of the hearing and these messages bounced back (at [11]), which Judge McCabe said illustrated a clear signal that the applicant was not aware of the hearing (at [66]). In the case before me, the SMS messages sent on 12 March 2020 and 18 March 2020 did not bounce back. The applicant in AMU19 had also attended the hearing with the Department so there had been some engagement. Furthermore, in that case one year and three months before the hearing the agent requested documents, suggesting that the applicant was at least at that time, still engaged in the process.
9. There are a number of cases with similar facts to the matter before me and where it has been held that DNK17 did not apply due to lack of engagement with the Tribunal and/or lack of credibility concerns: EEF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 335; APX20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1530; EGA19 v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 614 (EGA19); JDM25 v Minister for Immigration & Citizenship [2025] FedCFamC2G 1362 (JDM 25).
10. In EGA19 and JDM25, as in DNK17 and the case before me, no reasons were given by the Tribunal for making a decision on the papers rather than dismissing or adjourning. The court in DNK17 noted that there was no statutory requirement to give reasons to choose an option to make a decision without a hearing rather than dismiss the application under s 426A(1A) of the Act.
11. Judge McCabe found in EGA19 at [42] that it was possible to 'divine an explanation for the course it adopted from the circumstances'. These reasons were the lack of engagement of the applicant with the Tribunal including the failure to respond to the hearing invitation. The error found by the primary judge was that the outcome of the procedural decision was legally unreasonable because, in "the circumstances of the case" (at [66]), his Honour could see no evident and intelligible justification for the decision.
12. In the case before me, as in EGA19 (at [42]), the lack of engagement 'clearly weighed on the Tribunal's deliberations'. In the case before me, the Tribunal referred to the fact that it is for the applicant to specify particulars of the claim (TD [16]).
13. Provided there are rational reasons for the exercise of the discretion to proceed to hear the matter, that will be sufficient to sustain the decision even if a different decision maker might have reached a different conclusion (BKY19 at [23]).
14. In the matter before me I accept that it can be implied from the reasons given by the Tribunal for deciding to exercise the power to make a decision on the papers under s 426A(1A)(a) found at [3] - [4] of the Tribunal Decision, that these were also the reasons for deciding not to exercise the power to adjourn or dismiss. The reasons were as follows:

3. On 18 February 2020, the Tribunal wrote to the review applicant at the email address for service provided by her advising her that it had considered all the material it had in relation to her protection visa application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 19 March 2020. The invitation stated that if she did not attend the hearing, the Tribunal might make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act, the invitation was not undelivered or undeliverable, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

1. In summary, it appears that the Tribunal decided to determine the matter on the papers on the basis that the applicant had been advised that the Tribunal could not make a favourable decision, and she had not attended a hearing to which she had been properly invited, despite a number of notifications. While the Tribunal did not articulate why it selected to make a decision on the papers rather than dismiss the matter, it can be implied that such a decision was made on the basis that she would not apply for reinstatement as she had known that the Tribunal could not make a favourable decision, and had still not attended a hearing. Similarly, it can be implied that the Tribunal decided not to adjourn, for the same reason, as it was unlikely that she would attend any future hearing. This is a different situation to that in AMU19 where the appellant had had significant engagement including three adjournment requests.
2. In AMU19, the Court found at [69] that:

'the Court may yet determine the decision is unreasonable if an otherwise compliant set of reasons fails to disclose (at least by inference) an evident and intelligible justification for what the Tribunal did. Where the concerns relates to a procedural step that precipitates the Tribunal's ultimate decision on the review - that is, where the Tribunal makes a choice in the course of its decision-making pathway - the absence of an evident and intelligible justification for the procedural decision may infect the ultimate outcome'.

1. This was explained by the full Court of the Federal Court in AMU19 [2026] at [44]:

The error found by the primary judge was that the outcome of the procedural decision was legally unreasonable because, in "the circumstances of the case" (J [66]), his Honour could see no evident and intelligible justification for the decision.

1. I am satisfied that there was an evident and intelligible justification (Li at [76]) for the decision made in the case before me. It was not beyond the bounds of legal reasonableness for the Tribunal to decide not to dismiss the application (with a limited right to seek reinstatement) and instead to make a decision on the review that was based almost entirely on the insufficiency and lack of detail in the information before it. This was not the kind of decision that no other reasonable person could have arrived at: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [10].
2. I am satisfied that there was no jurisdictional error arising out of the determination of the matter on the papers by the Tribunal.

1. For the reasons set out above, I am not satisfied that the Tribunal's reasons were affected by jurisdictional error.
2. Accordingly, the application for judicial review is dismissed.
3. I will hear the parties on costs.

I certify that the preceding 120 numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.