CCL24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 896

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This is an application for judicial review, made under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 27 March 2024 which confirmed an earlier decision of the Tribunal dated 12 March 2024 dismissing the applicant's Protection (subclass 866) visa (protection visa) under s 426A(1A)(b) of the Act for non-appearance at the Tribunal's hearing on 12 March 2024.

1. On 2 May 2018, the applicant, a citizen of Malaysia, first arrived in Australia on a visitor visa.
2. On 10 July 2018, the applicant lodged an application for a protection visa, claiming a fear of harm due to an unpaid debt owed to a money lender.
3. On 7 September 2018, a delegate of the first respondent refused to grant the applicant a protection visa on the basis that it was not satisfied the applicant was a person whom Australia owed protection obligations to under ss 36(2)(a) or 36(2)(aa) of the Act.
4. On 19 September 2018, the applicant lodged an application for review of the delegate's decision with the Tribunal.
5. On 24 September 2018, the Tribunal requested that the applicant confirm her residential address, as the address provided in her review application form did not exist. On the same day, the applicant emailed the Tribunal of her correct residential address.
6. On 26 October 2020 and 30 November 2022, the applicant emailed the Tribunal from her nominated email address to request Medicare letters.
7. On 31 January 2024, the Tribunal emailed the applicant and requested that she complete a pre-hearing information form**.** The applicant did not respond.
8. On 20 February 2024, the Tribunal emailed the applicant and invited her to attend an in-person hearing scheduled for 1:00 pm (NSW time) on 12 March 2024 at the Sydney Registry. The applicant did not respond.
9. On 12 March 2024, the applicant did not appear before the Tribunal. The Tribunal conducted checks at 1:00pm, 1:15pm and 1:30pm, and entered "no show" at 2:05pm.

1. On 12 March 2024, the Tribunal dismissed the application for non-appearance under

s 426A(1A)(b) of the Act (non-appearance decision). 2. The Tribunal notified the applicant of the non-appearance decision by email to her nominated email address. A notification letter attached to the email informed the applicant that she could apply for reinstatement of the application by 26 March 2024. 3. Section 426A(1B) of the Act allows an applicant, whose application has been dismissed for

non-appearance at a hearing, to apply to have it reinstated, but only if this is done within 14 days of receiving notice of the Tribunal's decision to dismiss the application. If an applicant does not apply within that 14-day period, the Tribunal must "confirm" the decision:

s 426A(1E). The effect of the confirmation is to deem the decision under review as having been affirmed: s 426A(1F). The applicant did not apply for reinstatement. Consequently, the Tribunal was obliged by law, under s 426A(1E), to "confirm" the decision, which it did on 27 March 2024 (confirmation decision). On the same day, the Tribunal notified the applicant of its confirmation decision by email.

Judicial review application and procedural orders

1. On 23 April 2024, the applicant filed an application in this Court seeking judicial review of the Tribunal's confirmation decision dated 27 March 2024. The application contains eight (8) grounds of review of that decision. They are as follows (as written):

1. member is not believe my in my claims that I made.

2. member Is don't have any jurisdiction In my story.

3. because of English understanding that Im not able to attend my hearing.

4. member could not able to understand my harm If I return to my country.

5. lake of understanding im not able to attend the hearing.

6. im not able to show my fear to tribunal member.

7. member also not understand my fear.

8. member could not understand my situation.

1. On 13 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
2. On 16 April 2025, the proceedings were docketed to me and set down before me for final hearing on 29 May 2025.

1. At the hearing of this matter on 29 May 2025, the applicant was unrepresented and assisted by a Mandarin interpreter. Mr Triston Qian from Mills Oakley appeared on behalf of the first respondent.
2. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the Court Book and the first respondent's outline of submissions.
3. At the commencement of the hearing, the Court explained to the parties that its role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. The Court described jurisdictional error as a serious legal error or mistake made by the Tribunal. The Court also explained the procedure by which the hearing would be undertaken. The Court then allowed the Court Book which contained the Tribunal's decision and other documents that were before the Tribunal together with the applicant's affidavit in support of his application to be admitted as evidence.
4. The Court then invited the parties to make final oral submissions. The Court also asked the applicant to tell the Court what she considered was wrong with the Tribunal's decision. The applicant made short submissions. In essence, she complained that a previous lawyer she had failed to tell her that she should attend the Tribunal hearing, and that her new lawyer had told her to attend the Court. She told the Court that she only recognised ground 4 out of the eight grounds of review contained in her application. When I asked if she wanted to address the Court on that ground or any of the other seven grounds, she told the Court about what had happened to her and her family in Malaysia before she came to Australia.
5. In reply, Mr Qian first addressed his written submissions. In particular, he addressed the issue of the notification of the Tribunal hearing invitation and the statements made by the Tribunal in the non-appearance decision which had incorrectly stated that it had sent two SMS's to the applicant to remind her of the upcoming hearing in the Tribunal (I outline these submissions further below). Mr Qian then addressed the matters raised orally by the applicant at the hearing. He submitted that the matters the applicant made raised about what happened to her and her family in Malayasia were not something the Court can consider as they go to the merits of her claims for protection made in the Tribunal.
6. I asked the applicant if she wanted to say anything in reply to Mr Qian. She said that she had left everything to her previous lawyer and that she felt it was unfair. She said she denied that the emails sent from her email address in the Court Book regarding Medicare claims were sent by her. She said she hoped she would get another chance for a hearing in the Tribunal.

1. The first issue is whether the Court has jurisdiction to hear the application. The first respondent correctly submits the application:

(a) is technically defective in that the only relief sought was a writ of certiorari (the only order sought is an order the decision be quashed) and does not seek a writ of mandamus; and

(b) does not seek judicial review of the second decision, the non-appearance decision, which the applicant is required to do, as seeking judicial review of a confirmation decision cannot succeed without putting in issue the non-appearance decision: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [12] per Perram J.

1. The first respondent also correctly submitted if the application is taken to contain a challenge to the non-appearance decision, it was lodged out of time under s 477(1) of the Act.
2. With the agreement of the applicant, and the first respondent, I amend the application so that it seeks certiorari and mandamus in respect of both decisions: see AYH19 v Minister for Home Affairs [2019] FCCA 585 at [20] and Sharma v Minister for Immigration and Border Protection [2018] FCCA 2152 at [13] for instances where this Court has done this. With the Minister's consent, I also grant leave under s 477(2) of the Act to extend time for the filing of the application to enable the applicant to seek judicial review of both decisions.

1. I now proceed to consider the applicant's application on its merit.
2. The Court can only grant the relief sought by the applicant in this matter if it is established that the decision of the Tribunal is vitiated by jurisdictional error; that is, a serious legal error that results in the decision lacking any legal force: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (LPDT). To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32].
3. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
4. Below the Court deals with each of the eight (8) grounds of review as set out in the applicant's application in groups as multiple grounds relate to the same issue. For the reasons given none of the grounds identify the Tribunal committed jurisdictional error.

1. All of these grounds are vague and do not raise an arguable jurisdictional error. They appear relate to the same issue, the consideration of the merits of the applicant's claim by the Tribunal. I will deal with these grounds together.
2. As I outlined above, at the hearing the applicant made some short submissions on ground 4. She declined to make submissions on the other grounds. In summary, she told the Court about her and her family's previous experience in Malaysia.
3. I agree the first respondent's written submission, and with Mr Qian's submission at the hearing, that the matters raised by the applicant in these grounds, and at the hearing in this Court, go only to the merits of her protection claims, and they are not something this Court is permitted to consider in applications for judicial review under s 476 of the Act: see Djokovic.
4. None of grounds 1, 4, 6, 7 or 8 establish the Tribunal committed jurisdictional error.

1. Ground 2 asserts the Tribunal did not have jurisdiction.
2. This ground is misconceived. As at 19 September 2018, the date the application was filed, the Tribunal had jurisdiction to review the application made to it by the applicant under Part 7 of the Act (as it then was). The delegate's decision was, on 19 September 2018, a 'Part7-reviewable decision' under s 411(1)(c) of the Act. That application filed by the applicant with the Tribunal sought review of a 'Part 7-reviewable decision'. The applicant lodged her application within the prescribed 28-day period after the notification of the delegate's decision: ss 411(1)(c), 412(1)(b) of the Act; r 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal had jurisdiction under the Act to review the decision of the delegate.
3. Ground 2 does not identify any jurisdictional error.

1. In Ground 3, the applicant says she was not able to attend the hearing because of her "English understanding". This ground is not particularised.
2. Her contention she did not understand English and therefore could not make submissions or arguments to the Tribunal was not a valid reason for her non-appearance before the Tribunal for three reasons. First, the applicant told the Tribunal in her application for review that she required a Mandarin interpreter. Second, the applicant was told in a hearing invitation from the Tribunal, dated 20 February 2024, that a Mandarin interpreter would be provided to her at the hearing before the Tribunal on 12 March 2024. Third, at the hearing on 12 March 2024, which the applicant did not attend, there is evidence a Mandarin interpreter was in attendance, and "signed off" at 2.05pm, 1 hour and 5 minutes after the hearing was scheduled to commence at the Tribunal.
3. Ground 3 does not identify any jurisdictional error.

1. In Ground 5, the applicant asserts she was not able to attend the hearing because of her "lake [sic] of understanding". This ground does not identify an arguable jurisdictional error.
2. On 20 February 2024, the Tribunal emailed the applicant and invited her to attend an in-person hearing scheduled for 1:00pm (NSW time) 12 March 2024 at the Sydney Registry. The invitation was sent to the applicant's email address, being the address nominated by the applicant as his email address in his application filed in the Tribunal (see Court Book page 79). There is no issue it was the correct email address. The applicant did not respond to the Tribunal's invitation.
3. The applicant's alleged inability to attend the hearing is irrelevant to the correctness of either of the decisions of the Tribunal in any event because the Tribunal was never told by the applicant's that she had a "lack of understanding" about the hearing.
4. Ground 5 is not made out and does not identify jurisdictional error.

OTHER CONSIDERATIONS: VALIDITY OF THE NON-APPEARANCE DECISION

1. The first respondent in his written submissions has, consistent with its model litigant obligations, identified two errors it says are contained in the non-appearance decision, but submits those errors are not jurisdictional. I agree for the reasons that follow.

1. In its non-appearance decision, the Tribunal states twice on page 1 of its reasons (see Court Book page 120) that the hearing took place on 12 December 2024. These were clerical or typographical errors because the hearing in fact took place on 12 March 2024 (see Court Book pages 114-116).
2. A clerical or typographical error, without more, is not a jurisdictional error: see SZLPH v Minister for Immigration and Citizenship [2008] FCA 744 at [29]- [32] and Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 at [48].
3. The typographical errors on page 1 of the non-appearance decision were not errors of substance. They simply misstated when the hearing had occurred (a hearing the applicant did not attend). The hearing invitation sent by the Tribunal told the applicant the correct hearing date The typographical errors on page 1 of the non-appearance decision were not jurisdictional.

1. In the non-appearance decision at paragraph [2] the Tribunal stated that "[h]aving reviewed the Tribunal file, the Tribunal was satisfied... that two separate SMS reminders were also sent to the review applicant about the hearing", in circumstances where the evidence, Tribunal Case Notes, do not show that SMS hearing reminders had been sent to the applicant (see Court Book page 127). The first respondent confirmed at the hearing in this Court that despite what the Tribunal said in paragraph [2] of its non-appearance decision, no SMS reminders were sent to the applicant by the Tribunal to remind her about the hearing.
2. The first respondent submits that while there was no basis for the statement in paragraph [2] of its reasons, it does not follow that the Tribunal's decision to dismiss the application for non-appearance under s 426A(1A)(b) of the Act was legally unreasonable as per Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li) and the cases that have followed Li. I agree.
3. It was perfectly permissible for the Tribunal to have dismissed the application for non-appearance without any further consideration of the application or information before it. This is because under s 426A(1A), while it has an obligation to exercise the power under that provision reasonably, the Tribunal has a "genuinely free discretion" to exercise the power of dismissal, including whether not make a decision on the review, if the applicant fails to appear: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [97] (SZVFW).
4. In SZVFW the High Court considered whether the Tribunal had made a legally unreasonable decision when it exercised its discretion under s 426A(1A)(a) to dismiss an application for review. In SZVFW at [96]-[97], Nettle and Gordon JJ (forming part of the majority) discussing the scope and nature of the dismissal power in s 426A held:

[96] ...Parliament has conferred on the Tribunal the necessary flexibility to ensure that the Tribunal can fully perform its statutory task. Indeed, the discretion in s 426A itself provides flexibility so that the Tribunal's statutory task can be performed. Put in different terms, the legislative scheme of the Act concerning review of decisions in Pt 7 is not one that requires the exercise of power, or the performance of obligations, where conferred on the Tribunal, on a once only basis. The nature of the subject matter of the review and the manner of the exercise of the review may, on occasion, mean that the power may be exercised, and the function or duty must be performed from time to time, as occasion requires, in order to arrive at the correct or preferable decision in the case before the Tribunal according to the material before it. But, of course, the exercise of the discretion in s 426A does not require the Tribunal to postpone or refrain from making a decision on a review every time an applicant suggests they wish to provide further information, cannot meet a deadline, or fails to appear.

[97] The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness.

1. In the present case the Tribunal did not make a decision on the review, rather, it exercised the discretionary power to dismiss based on the applicant's failure to appear. This is because the preconditions to the exercise of Tribunal's discretion to dismiss the application for non-appearance under s 426A(1A)(b) of the Act were met. The hearing invitation required by s 425 was given by one of the methods specified in s 441A, namely, s 441A(5)(b), by email, as s 425A requires. Section 441C, a deeming provision, had the effect that the applicant was deemed to have received a document given by one of the methods so specified. There was no evidence before the Tribunal to the contrary. It was therefore open to the Tribunal to proceed to consider the exercise of its dismissal for non-appearance under s 426A(1A)(b) of the Act.
2. Further, as the first respondent submitted, there was no contact made by the applicant with the Tribunal at any time to seek an adjournment of the hearing on 12 March 2024, or to indicate why she would or could not attend. The applicant had 14 days after the non-appearance decision to seek re-instatement as per s 426A(1B) of the Act. She did not avail herself of that process. The Court may take these types of matters into account as "surrounding circumstances" when assessing whether the exercise of the power in s 426A was legally reasonable: see SZVFW at [121]-[122].
3. Having regard to all the circumstances, the Tribunal's decision to exercise its discretion and dismiss the application for non-appearance under s 426A(1A)(b) of the Act was not beyond power. In other words, the exercise of the power was not legally unreasonable. The Tribunal was not required under s 426A (or elsewhere) to contact the applicant by SMS to remind her of the upcoming hearing at the Tribunal. If it had in fact done so it would have merely been done as a courtesy to the applicant. Its failure to do so, or the incorrect statement in its decision that it had sent two SMS reminders, had no bearing or effect on whether the exercise of the dismissal power under s 426A(1A)(b) was legally unreasonable.
4. The second error identified by the first respondent was not jurisdictional.
5. For the reasons outlined above, the applicant has not established that the Tribunal's decision is vitiated by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision.
6. The application is dismissed.

1. The first respondent has sought an order that the applicant pay the first respondent's costs in the amount of $6,100. This amount appears fair and reasonable and is lower than the first respondent's solicitor/client costs. It is appropriate to make an order in this amount.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.