CNS20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 164

1. The applicant, a citizen of China, seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 7 May 2020. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a Protection (Class XA) (Subclass 866) visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. The applicant sought to impugn the Tribunal's reasons and findings on the grounds set out at [15] of this judgment. For the reasons set out at [23] to [27] of this judgment, I find the applicant has not demonstrated jurisdictional error in relation to the grounds.
3. Given that the applicant was self-represented, the Minister also properly brought to my attention the decision of Horan J in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17) and whether the Tribunal's exercise of discretion pursuant to s 426A(1A)(a) of the Act, which was enlivened by the non-appearance of the applicant at the Tribunal hearing, to proceed to make a decision on the papers without taking any further action to allow the applicant to appear before it was legally unreasonable. For the reasons set out at [28] to [33] of this judgment, I find the Tribunal's exercise of discretion was not legally unreasonable. Accordingly, as no jurisdictional error has been demonstrated in this case, I dismiss the application.

1. On 29 April 2016, the applicant applied for the protection visa and attached a written statement of claims (Court Book (CB) 1 to 38). On 5 January 2017, the applicant attended an interview with a delegate (CB 69). On 12 January 2017, the delegate refused to grant the applicant a protection visa. The delegate found the applicant's responses at the interview lacked plausibility and credibility given his inability to provide significant information about his claims of persecution (delegate's decision) (CB 68 to 77).

1. On 10 February 2017, the applicant applied to the Tribunal for review of the delegate's decision. In that application, the applicant gave his mobile number as M1 and an email address as his correspondence details (CB 80 and 81).
2. On 16 April 2020, the Tribunal wrote to the applicant and advised him that after considering the material it had regarding the application, it could not make a favourable decision on that information alone (CB 89 to 91). The Tribunal invited the applicant to give evidence and present arguments at a telephone hearing on 6 May 2020. The invitation referred to the telephone number the applicant had provided, (M1), as the number it would call prior to the commencement of the hearing. The hearing invitation stated that if M1 was not the correct phone number or if the applicant would prefer the Tribunal to call on another number, then he should advise the Tribunal. The hearing invitation expressly stated that if the applicant did not participate in the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it or it may dismiss the application for review in which case he could seek to reinstate the matter within 14 days of receiving notice of the dismissal.
3. On 20 April 2020, the Tribunal received a "Change of Contact Details" form from the applicant stating that he had changed his telephone number to M2 (CB 100 and 101). I note the said form is dated 20 April 2019, however, it is clear that this is a typo and the year ought to have been noted as 2020. This is apparent from the covering email which enclosed the Change of Contact Details form which notes the email was sent on 20 April 2020 (CB 99).
4. On 29 April 2020 and 5 May 2020, the Tribunal sent SMS messages to M2 reminding the applicant that the Tribunal hearing was scheduled for 6 May 2020 and recorded that if the applicant had any questions to call a number at the Tribunal (CB 103).
5. On 6 May 2020, on the day and time of the hearing, the Tribunal rang the M2 mobile number. The Tribunal was informed by a man who answered the call that the Tribunal had the wrong number. The Tribunal attempted to contact the applicant on the M1 mobile number but that number had been disconnected (CB 104 and 105).
6. The applicant did not appear before the Tribunal on the day and time of the scheduled hearing. The Tribunal's reasons at [8] recorded that it waited until the end of the day in the hope the applicant might contact the Tribunal. The Tribunal did not hear from the applicant.

1. The Tribunal's reasons at [4] to [8] set out that a hearing invitation had been sent to the applicant and noted the matters referred to at [6] to [10] of this judgment. The Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) of the Act and that the invitation was received by him. Further, the Tribunal noted its attempts to contact the applicant ([9] of its reasons). The Tribunal decided pursuant to s 426A of the Act to make its decision on the review without taking any further action to enable the applicant to appear before it.
2. The Tribunal set out the applicant's claims at [19] and [20] of its reasons. I adopt the Minister's summary of the applicant's claims as set out at [19] and [20] of the Tribunal's reasons as follows:

(a) In early 2012, village leaders in the applicant's home village sold land in the area to build an electroplating factory without a formal agreement. The factory was built and the smoke and toxic waste it produced affected villagers.

(b) Villagers reported the problem to the police "many times" but the "village committee" were "perfunctory about it".

(c) In January 2014, the applicant anonymously reported the problems to the Dacheng County Environmental Protection Bureau (Bureau). Village leaders discovered that he had made a report. The "village head" came to his house one night and warned him to be careful. A few days later, "village punks" beat him with sticks so badly that he passed out and was hospitalised.

(d) On 20 March 2014, the applicant tried to report the issue to the Dacheng County Government Office, but he was told to go to the Bureau. Later, some policemen came and detained him for five days for "disturbing public service". He was still harassed by villagers after he was released and had the windows of his home smashed and dead rats and cockroaches left in front of his house. As he lived in fear every day, the applicant came to Australia on 28 July 2014.

1. The Tribunal at [11] to [16] of its reasons correctly identified the relevant legal principles for assessing the applicant's protection claims.
2. Ultimately, the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion because it needed more details regarding what appeared to be bold and unsupported claims. In particular, the Tribunal wanted to discuss with the applicant: the circumstances of his wife and children whom he had apparently left in China in a place that he described as dangerous to his health; why he retuned voluntarily to China instead of lodging a protection visa application at that time; how he was able to re-enter China and depart legally again without any difficulty; and why it took a further year and a half after his arrival in Australia for him to lodge a protection visa application ([21] and [22] of its reasons).

1. The applicant's application for judicial review raised the following grounds:

AAT made errors in my case.

1. AAT doubted my credibility without substantiated reasons.

1. AAT did not try its best to reach me, even though it realized my phone number was not correct.

3. AAT did not consider all relevant information in my case.

4. AAT did not consider I was harmed in China.

5. AAT did not consider I would be harmed if I return to China

1. I note that on 27 June 2025, a Judicial Registrar of this Court made orders that pursuant r 8.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) that the application filed on 5 June 2020 was taken to have been amended so as to seek a writ of mandamus, and dispensed with any requirement for the applicant to file or serve any amended application.

1. The applicant appeared at the hearing before me as litigant in person, assisted by an interpreter in the Mandarin and English languages. The Minister was represented by Mr T Qian, a solicitor from Mills Oakley. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application for judicial review, the applicant's affidavit affirmed on 24 May 2020 and the Minister's written submissions dated 26 November 2020 and 22 January 2026. I ensured the applicant had interpreted to him the relevant documents except the Court Book.
2. The applicant relied on his affidavit affirmed on 24 May 2020, which I accepted as submissions. Those submissions are as follows:
   1. I reported the pollution problem to the Dacheng County Environmental Protection Bureau.
   2. The problem was not solved, but I was beaten so badly and taken to hospital treatment.
   3. I went to report in Dacheng County Government Office.
   4. I was locked up for 5 days on the accusation of disturbing public service.

5. The village leaders did not stop their retaliation on me.

6. My family and I lived in threat and terror every day.

7. I came to Australia in 2014 and dared not go back.

1. The Minister relied on his written submissions dated 26 November 2020 and 22 January 2026. Mr Qian also made oral submissions at the hearing. The evidence before the Court comprised of the Court Book, tendered by the Minister and marked "Exhibit R1".

1. I took the applicant through the relevant pages of the Court Book so that he understood the nature of the material before this Court. I took the applicant to the hearing invitation (CB 89 to 91). The applicant accepted that the email address the hearing invitation was sent to was the email address the applicant provided to the Tribunal in his application for review to the Tribunal (CB 80 and 81) and that he received the hearing invitation and was aware that he was being invited to a hearing before the Tribunal by telephone. The applicant also confirmed he was aware the hearing date was on 6 May 2020 and the Tribunal would contact him by telephone on the mobile number M2.
2. I took the applicant to the "Change of Contact Details" form dated 20 April 2020 (CB 100). The applicant confirmed that the mobile phone number provided in that form was his mobile phone number and that he had provided his change of contact details after receiving the Tribunal's hearing invitation.
3. The applicant also told me that his lawyer told him he could attend the hearing or not, and the applicant said he decided not to attend the hearing. The applicant said that on 6 May 2020 on the date of the hearing he gave his mobile phone, M2, to a friend and asked them to answer the call from the Tribunal.

1. Ground 1 alleges that the Tribunal doubted the applicant's credibility without substantiated reasons. At the hearing before me in relation to this ground, the applicant when invited to expand on this ground said "there isn't any". I find that ground 1 does not disclose any legal error because the Tribunal did not make any findings about the applicant's credibility and instead found that it was unable to reach the requisite level of satisfaction that the applicant met the criteria for the grant of a protection visa on the basis of the limited information before it.

1. Ground 2 alleges that the Tribunal did not try its best to reach the applicant, even though it realised his phone number was not correct.
2. I asked the applicant whether the matters he had told me referred to at [20] to [22] of this judgment were correct, that is: he was aware of the hearing date; that the Tribunal would contact him on his mobile number M2; the applicant decided not to attend the hearing by telephone and when the Tribunal called on the day of the hearing the applicant gave his mobile phone to a friend to answer who advised that the mobile number M2 was not that of the applicant. The applicant confirmed that he had correctly told me what had happened. I again asked the applicant why he then says the Tribunal made an error in not trying its best to reach him by telephone for the hearing. The applicant answered "there isn't any".
3. I find ground 2 does not disclose any legal error given that the Tribunal validly invited the applicant to a hearing and in circumstances where the applicant was aware of the hearing date and chose not to take the Tribunal's telephone call but rather give it to a friend to answer, who informed the Tribunal that the mobile number was not that of the applicant. Further, the Tribunal made attempts to contact the applicant by calling his previous mobile M1 and waited throughout the day of the scheduled hearing for the applicant to make contact. I find the Tribunal was under no obligation to take any additional steps to ensure that the applicant was aware of the Tribunal hearing: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439 at [39]; NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045; (2006) 152 FCR 592.

1. In relation to grounds 3 to 5, which allege that the Tribunal did not consider all relevant information in the applicant's case and the harm in China the applicant would face if returned, the applicant when invited to expand on these grounds said "there isn't any". I find the Tribunal had correctly at [19] and [20] of its reasons identified the applicant's claims as advanced in his protection visa application. The Tribunal's reasons disclose that it considered those claims but ultimately was not satisfied given the lack of evidence that the applicant had a well-founded fear of persecution by reason of those claims. Accordingly, I find that grounds 3 to 5 do not disclose any jurisdictional error.

1. This matter raises an additional issue as to whether the Tribunal's exercise of discretion pursuant to s 426A(1A)(a) of the Act to proceed to make a decision on the papers without taking any further action to allow the applicant to appear before it was legally unreasonable. This issue arises in light of the decision in DNK17 where Horan J held that it was legally unreasonable for the Tribunal to exercise its discretion to make a decision on the review under s 426A(1A)(a), as opposed to exercising its discretion to dismiss the application under s 426A(1A)(b), in the circumstances of that particular case where the Tribunal declined the applicant's adjournment request less than an hour before the scheduled hearing and did not provide reasons for why it chose to exercise the power under s 426A(1A)(a) as opposed to s 426A(1A)(b).
2. I accept the Minister's submission that in assessing the legal reasonableness of the Tribunal's exercise of discretion, this Court is not confined to the reasons provided by the Tribunal and can look at the factual circumstances of the case and form its own conclusion. This approach is supported by the High Court decision in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [18] per Kiefel CJ, [27] per Gageler J, [123] per Nettle and Gordon JJ, [154] and [155] per Edelman J. The issue in that case was whether the Tribunal's decision to proceed to determine the matter on the papers when the applicant failed to appear at the hearing was legally unreasonable. Nettle and Gordon JJ at [84] in SZVFW when considering the nature of the Court's task on review stated that:

...legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

1. I note that various judges of this Court have accepted that DNK17 does not stand for the principle that it will always be unreasonable for a decision-maker exercising the power under s 426A(1A)(a) to make a decision on the review in circumstances where an applicant failed to appear at a scheduled hearing. The following decisions have distinguished the decision of DNK17 on the particular facts and circumstances of those cases: Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 at [50] and [51] per Symons J, EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173 at [30] per Gostencnik J, APX20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1530 at [53] per Cleary J and DLQ20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2076 at [23] per Renwick J.
2. In this case, the Tribunal's reasons at [4] to [8] set out the steps taken by the Tribunal to invite the applicant to a hearing, including reminding the applicant by SMS to his nominated mobile number as to the hearing date five business days before the scheduled hearing and sending a further SMS reminder the day before the hearing. The Tribunal's reasons also disclose its attempts to reach the applicant on the mobile phone number he had provided without success and having waited until the end of the day for the applicant to contact the Tribunal, which the applicant did not do. Therefore, the Tribunal's reasons in deciding to make its decision on the review without taking any further action was on the basis that in light of the steps the Tribunal had taken, it was unlikely that the applicant wished to engage with the Tribunal or the review process. Therefore, I find that the Tribunal's reasons provided an evident and intelligible justification for its decision to proceed under s 426A(1A)(a) of the Act.
3. Further, I accept the Minister's submissions that for the following reasons the present matter is distinguishable from DNK17 and that the Tribunal's exercise of its discretion under s 426A(1A)(a) of the Act was not legally unreasonable:

(a) In this case, unlike in DNK17 where three adjournments of the Tribunal hearing were sought, other than providing a new mobile phone number as the applicant's new contact details, the applicant did not engage with the Tribunal substantively during the review process. After filing the application for review, the Tribunal sent the applicant a letter dated 13 February 2017 (CB 83 to 87) in which it invited the applicant to provide further material if he had not done so to support his application. Notwithstanding that letter, the applicant did not engage with the Tribunal from 2017 to 2020. Further, the invitation to attend a hearing dated 16 April 2020 again raised that the applicant could provide further material in support of his application. Notwithstanding that invitation, the applicant did not provide any further information. Given the applicant's non-responsiveness, I find the Tribunal's exercise of discretion to proceed to make a decision on the papers without taking further action to allow the applicant to appear before it was not legally unreasonable: SZVFW at [2], [14] (Kiefel CJ), [70] (Gageler J), [78], [123] (Nettle and Gordon JJ), [140] and [141] (Edelman J); DNK17 at [74].

(b) Unlike the applicant in DNK17, the applicant in this case had not sought an adjournment of the hearing before the Tribunal, which factual matter distinguishes DNK17 from the present case.

(c) The Tribunal's decision in this case was based on a lack of detail in the applicant's written evidence, unlike in DNK17 where the Tribunal proceeded to reject the applicant's claims on credibility grounds (at [106] of DNK17).

1. Given that I have found there was an evident and intelligible justification for the Tribunal to proceed pursuant to s 426A(1A)(a) of the Act, I find the Tribunal's decision to proceed was not legally unreasonable.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.