CWO23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1795

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 29 November 2023, the applicant applied for judicial review to this Court of a decision of the then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal refused to reinstate the applicant's application for review of a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) ("the delegate"), not to grant him a Protection (Class XA) (subclass 866) visa.

1. Before turning to consider the application for judicial review, it is useful to set out some of the background to the proceedings.

Application for a visa and the delegate's decision

1. The applicant is a citizen of Timor-Leste. The applicant last arrived in Australia on 9 May 2022 (Court Book ("CB") 8).
2. On 3 January 2023, the applicant made an application for a Protection (Class XA) (subclass 866) visa ("the visa") (CB 1-17).
3. On 29 August 2023, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the visa applicant was a person in respect of whom Australia had protection obligations as provided for by section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act") and was not a member of the same family unit as a non-citizen in respect of whom the Minister was satisfied Australia had protection obligations (CB 64-71) ("delegate's decision").

Application for review to the Administrative Appeals Tribunal

1. On 5 September 2023, the applicant applied to the Tribunal for a review of the delegate's decision (CB 72). The applicant provided a mobile phone number ("nominated mobile number") and an email address ("nominated email address") for the purpose of correspondence with the Tribunal (CB 72-80).
2. On 8 September 2023, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 82). The applicant did not respond.
3. On 2 October 2023, the Tribunal wrote to the applicant by way of letter to the nominated email address and invited the applicant to attend a hearing on 23 October 2023 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 91). The Tribunal further stated that if the applicant did not appear at the scheduled hearing, it may make a decision on the review without taking further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before it (CB 93). Annexed to the letter was an 'Information about Hearing' fact sheet detailing that should the applicant not appear at the scheduled hearing, that it may make a decision on the review without taking further action (CB 93).
4. The applicant did not respond to the invitation.
5. On 16 October 2023 and 20 October 2023, the Tribunal sent the applicant an SMS to the nominated mobile number reminding him of the hearing scheduled for 23 October 2023 (CB 118).
6. On 23 October 2023, the applicant failed to attend the hearing (CB 102).
7. On 24 October 2023, the Tribunal dismissed the application for review without any further consideration of the application or information before it pursuant to (the then) section 426A(1A)(b) of the Act on the basis that there was no appearance on behalf of the applicant (CB 110).
8. On the same day, the Tribunal wrote to the applicant by way of letter to the nominated email address providing a copy of a written statement setting out the reasons for its decision to dismiss the application (CB 110-111). In its letter, the Tribunal informed the applicant he may apply for reinstatement of the application by 8 November 2023; that in a reinstatement application, he should set out why he failed to appear at the hearing and provide any other information he would want the Tribunal to taken into consideration when deciding whether his reinstatement application should be granted (CB 105-111).
9. On 1 November 2023, the applicant wrote to the Tribunal from the nominated email address indicating that he wished to apply for reinstatement of the application, stating that (CB 112):

I was unable to present on the date mentioned since I work the night shift in LJM Company, I did not check my email address as I was very busy and tired, I did not realised if I received the importance notification from Tribunal for the Hearing".

1. On 9 November 2023, the Tribunal made a decision to dismiss the reinstatement application. Accordingly, the decision under review was taken to be affirmed ("Decision") (CB 117).

1. The Tribunal identified that the application before it was an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 August 2023 to refuse to grant the applicant a protection visa under the Act ("the application") [1].
2. The Tribunal recounted that on 24 October 2023, it dismissed the application under (the then) section 426A(1A)(b) of the Act as the applicant did not attend the scheduled hearing on 23 October 2023 ("the dismissal decision") [2] .
3. The Tribunal recounted that the applicant was notified of the dismissal decision and given a copy of a written statement setting out the reasons for the dismissal decision, in accordance with (the then) section 426B(5) of the Act [3].
4. The Tribunal stated that the applicant had applied for reinstatement of the application within 14 days after receiving notice of the dismissal decision by email in which the applicant stated [4]:

I was unable to present on the date mentioned since I work the night shift in LJM Company, I did not check my email address as I was very busy and tired, I did not realised if I received the importance notification from Tribunal for the Hearing".

1. For the following reasons, the Tribunal said that it did not consider it appropriate to reinstate the application: firstly, the hearing invitation was sent on 2 October 2023, being a full three weeks before the hearing; and secondly, the Tribunal also sent the applicant SMS reminders reminding him about the hearing five business days and one business day before the scheduled hearing [5].
2. The Tribunal said it was not satisfied that the applicant was unaware of the hearing [5].
3. The Tribunal confirmed the decision to dismiss the application and affirmed the decision under review [6], [7].

1. These proceedings were commenced pursuant to section 476(1) of the Act by application filed on 28 November 2023. The applicant also filed an affidavit in support of the application for judicial review. The affidavit annexes a copy of the Tribunal's decision.
2. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. The material before the Court was the application, the applicant's affidavit, the first respondent's response, the first respondent's written submissions, and the Court Book. The applicant appeared before the Court with a copy of the Court Book. Before the hearing commenced, the Court ensured the applicant had the other material in Court with him.
4. The applicant appeared before the Court on his own behalf with the assistance of an interpreter in the Tetum and English languages.

1. For the applicant to be successful the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error in deciding not to reinstate the application for review and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa or that his application for review to the Tribunal should or should not be reinstated.
3. The applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
   1. I would like to advice FCC that I had a strong fear for my life in Timor Leste as I have debt which I have not paid and I have been threaten.
   2. Tribunal dismissed my application has also provided no regard to my potential situation in Timor Leste upon return. I have been completely unfairly treated by AAT when they refuse to accept the application for reinstatement.
   3. Quoate AAT Decision No. 2. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it" end quote. Although the applicant had stated the reasons why the applicant could not attend the "Hearing" AAT exercised its power not to accept the re-instatement application. AAT also does not care about the applicant's answer and considers the applicant to be the same as people from other countries. Not only is it difficult for the applicant to understand how important the "Hearing" is, even the applicant is unaware and aware of the consequences of the absence. Therefore the applicant appeals to be given consideration again for this reinstatement application.
   4. Australia has obligation to protect people under refugee convention and I would like to use my right in Australia to be protected.
   5. I also seeking review at FCC as I have intention to request Judge to look into this matter in order to give the natural justice.
   6. According to the protection claims, I believed I have met the criteria of 866 Subclass under the Migration Act 1958.
4. Despite the procedural order requiring him to do so, the applicant did not file written submissions. The applicant was given the opportunity to make oral submissions in support of the application for judicial review and in reply to the first respondent's oral submissions.
5. The applicant told the Court that he had paid someone to draft the grounds of review and that he not had those grounds into the Tetum language. Accordingly, the Court read out the grounds of review in the application for judicial review and the interpreter translated them for the applicant.

1. By ground one, the applicant contends that he has a strong fear for his life in Timor-Leste because he has an unpaid debt and has been threatened.
2. In oral submissions, the applicant told the Court that this ground was factually incorrect, that there was no debt and that he had not been threatened. He said that he did have his own "true reason" as to debt but that he had not been threatened. The applicant went on to say that after checking his emails, he sought advice because he really wanted to present his case and that he paid a person to get him a second visa.
3. Whatever may now be the factual basis for the applicant claims for a protection visa, ground one does not identify any jurisdictional error but invites the Court to engage in impermissible merits review as to whether the applicant satisfied the criteria for a protection visa.
4. No jurisdictional error is established on ground one.

1. By ground two, the applicant contends that the Tribunal dismissed his application with no regard to his situation should he return to Timor-Leste.
2. In the applicant's absence at the scheduled hearing, the Tribunal was not required to consider the applicant's situation should he return to Timor-Leste. The Tribunal had a discretion, pursuant to (the then) section 426A of the Act to dismiss the application because of the applicant's failure to appear at the scheduled hearing and a discretion pursuant to (the then) subsection 426A(1C) to reinstate the applicant's application for review.
3. The Tribunal's task was not to consider the applicant's situation should he return to Timor-Leste or otherwise consider the merits of the applicant's protections claims (first respondent's submissions "FRS" [23] citing FGB17 v The Minister for Home Affairs [2019] FCA 725 at [12]) but to consider whether it should exercise its discretion to reinstate the applicant's application having regard to the applicant's explanation for his non-attendance at the scheduled hearing. That is what the Tribunal did. The Tribunal concluded that it was satisfied that the applicant was aware of the scheduled hearing for the reasons given (at [5]).
4. No jurisdictional error is established on ground two

1. By ground three, the applicant makes two contentions, first that the Tribunal did not properly consider the applicant's reasons for reinstatement. The second is that it was difficult for the applicant to understand the importance of the hearing and the consequences of not attending.
2. The Tribunal expressly considered the applicant's reasons for reinstatement in its decision and gave an evident and intelligible justification for refusing the reinstatement application, being that it was not satisfied the applicant was unaware of the hearing in light of the fact that the applicant had three weeks' notice of the hearing and that the Tribunal had sent SMS hearing reminders to the applicant. The Court agrees with the first respondent's submissions (FRS at [26]) citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [4]- [9], that the exercise of the Tribunal's discretion to not reinstate the applicant was reasonable.
3. As to the second contention, the Court finds that the Tribunal sent the applicant a valid hearing invitation which complied with the relevant statutory requirements in that the invitation:

(a) contained an invitation to the applicant to appear before the Tribunal to give evidence in accordance with (the then) subsections 425(1) and 426(1)(a) of the Act;

(b) notified the applicant that he could give the Tribunal written notice to obtain oral evidence from a person or persons in accordance with subsection 426(1)(b) of the Act;

(c) notified the applicant of the specified day, time and place of the hearing in accordance with (the then) subsection 435A(1) of the Act;

(d) was given to the applicant by one of the means specified in (the then) section 441A of the Act (namely, by email) in accordance with (the then) subsection 425A(2)(a) of the Act;

(e) was dispatched to the last email address provided by the applicant in connection with the review (namely, the applicant's nominated email address) in accordance with (the then) subsection 441A(5)(b) of the Act;

(f) was taken to have been received by the applicant at the end of the day on which it was transmitted in accordance with (the then) subsection 441C(5) of the Act;

(g) provided the applicant with a period of time that was at least the prescribed period of 14 days (as specified by regulation 4.35D of the Migration Regulations 1994 (Cth)) in accordance with (the then) subsection 425A(3) of the Act; and

(h) contained a statement describing the effect of section 426A in accordance with (the then) subsection 425A(4) of the Act.

1. Further, the invitation contained a statement that explained the consequence of non-attendance and was accompanied by a factsheet with more detailed information about the consequences of non-attendance.
2. No jurisdictional error is established on ground three.

1. By ground four, the applicant contends that Australia has an obligation to protect people under the Refugee Convention and that he seeks to be protected.
2. This ground misconstrues the role of the Court on judicial review. It is not the role of the Court to determine whether the applicant meet the criteria for a protection visa.
3. No jurisdictional error is established on ground four.

1. Ground five does not allege any specific jurisdictional error but asks the Court to look into the matter and "give" him judicial review. Again, this misconceives the role of the Court on judicial review.
2. To the extent that by ground five the applicant contends that the Tribunal did not afford him procedural fairness, the Court agrees with the first respondent's submissions (at [32]-[35]) that the Tribunal afforded the applicant procedural fairness because when the applicant failed to attend the scheduled hearing on 23 October 2023, the Tribunal had a discretion to dismiss the application pursuant to (the then) subsection 426A(1A)(b) of the Act, provided the exercise of that discretion was not unreasonable or capricious, citing SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [22]. In exercising its decision, the Tribunal noted in its decision that it had considered that the applicant:

(a) was invited to appear before the Tribunal;

(b) was informed in the hearing invitation that if he did not attend the hearing, then the Tribunal may dismiss the application without further consideration of the application or information before it;

(c) was properly invited to a hearing; and

(d) was sent two SMS reminders about the hearing.

1. Having complied with its obligations in (the then) sections 425(1) and 425A of the Act, the Tribunal was not required to take additional steps or make further enquiries to ensure the applicant was aware of the hearing or to enable him to appear. The dismissal was a course that was plainly within the range of possible acceptable outcomes that were defensible in respect of the circumstances of this case.
2. The Tribunal was required to and did notify the applicant of its decision to proceed under (the then) subsection 426A(1A)(b) of the Act. The Tribunal's letter of 24 October 2023 complied with the legislative requirements because it:

(a) provided the applicant with a copy of the dismissal decision in accordance with (the then) subsection 426B(5) of the Act;

(b) was sent within 14 days of the dismissal decision made on 24 October 2023 in accordance with (the then) subsection 426B(5)(a) of the Act;

(c) complied with (the then) subsection 441A(5) of the Act by transmitting the document to the last email address provided by the applicant in connection with the review (namely, the applicant's nominated email address) in accordance with (the then) subsection 426B(5)(b) of the Act; and

(d) contained a statement describing the effect of (the then) subsection 426A(1B) to (1F) of the Act, being the applicant's ability to seek reinstatement and the consequences if the applicant failed to seek reinstatement ((the then) subsection 426B(6)).

1. The applicant applied for reinstatement on 1 November 2023, which was within the prescribed period. The Tribunal decided under (the then) subsection 426A(1C) of the Act that it was not appropriate to reinstate the application and proceeded to confirm its decision to dismiss the application. The Tribunal correctly proceeded on the basis that the application had been dismissed under (the then) subsection 426A(1A)(b) of the Act and found that it would not be appropriate to reinstate the application because:

(a) the hearing invitation was sent to the applicant on 2 October 2023, a full three weeks before the hearing;

(b) the Tribunal also sent the applicant SMS reminders about the hearing five business days and one business day before the scheduled hearing; and

(c) in the circumstances, the Tribunal had regard to the applicant's explanation for his non-attendance but was not satisfied that the applicant was unaware of the hearing.

1. As the first respondent submits (FRS [36] citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [29], [63] and [88]), the Tribunal's discretion whether to reinstate the application was conditioned by the requirement of legal reasonableness.
2. The Court finds that the Tribunal's reasoning in exercising its discretion under (the then) subsection 426A(1C) was open to it for the reasons it gave. The Tribunal's decision cannot be said to and did not lack an evident and intelligent justification.
3. No jurisdictional error is established on ground five.

1. By ground six, the applicant contends that he believes he meets the criteria for a protection visa. In his submissions in reply, the applicant said that he acknowledged that the Tribunal did not make an error or a mistake. For the reasons given above, the Court agrees.
2. No jurisdictional error is identified in ground six as it otherwise speaks to invite the Court to engage in impermissible merits review.

1. Accordingly, for the reasons given above, the application for judicial review is dismissed.

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