DAT22 v Minister for Immigration and Citizenship [2025] FCA 1497

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The appellant is a citizen of Malaysia. In August 2017 a delegate of the Minister refused the appellant's application for a protection visa. In September 2017 the appellant lodged an application for review of the delegate's decision in the Administrative Appeals Tribunal. In that application the appellant provided her postal and email address. In July 2021 the Tribunal wrote to the appellant via email and requested that she provide updated contact details. The appellant did not respond to that request. In May 2022 the Tribunal invited the appellant via email to provide information pursuant to s 424 of the Migration Act 1958 (Cth). The appellant did not respond to that invitation. In July 2022 the Tribunal invited the appellant via email to attend a hearing on 10 August 2022. The appellant did not attend. On 11 August 2022 the Tribunal dismissed the appellant's application for review under s 426A(1A)(b) and gave the appellant notice via email of that decision and of her right to apply for reinstatement. The appellant did not apply for reinstatement. On 1 September 2022 the appellant applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the Tribunal's decision. On 8 September 2022 the Tribunal confirmed its decision under s 426A(1F). The appellant was notified of that confirmation decision via email on 9 September 2022. On 24 March 2023 a judge of the Circuit Court dismissed the appellant's application for judicial review.
2. The appellant represented herself in the Circuit Court and in this appeal. Her grounds of review in the Circuit Court were not informative and were not directed to the nature of the decisions that had been made in the Tribunal. The primary judge afforded the appellant an opportunity to elaborate on her grounds of review and provided her with an explanation of the concept of jurisdictional error. The primary judge was not able to identify any potential ground of judicial review from the appellant's oral submissions. His Honour then proceeded to consider whether there was any self-evident jurisdictional error arising from the Tribunal's decisions and statements of reasons. The primary judge considered whether: the appellant had been properly invited to attend the Tribunal hearing; the Tribunal had acted unreasonably in exercising its discretion to dismiss the appellant's proceeding for non-appearance; any error arose from the Tribunal's confirmation decision; and the Tribunal had exceeded its jurisdiction by inviting the appellant to attend a hearing. His Honour concluded that there was no apparent error arising from any of these matters.
3. Like the appellant's grounds of judicial review in the Circuit Court, her grounds of appeal in this Court are uninformative and do not identify any proper ground of appeal. At the hearing of the appeal, the appellate process and necessity to identify error in the primary judge's decision was explained. The appellant was also provided with an explanation of jurisdictional error and given an opportunity for an adjournment to collect her thoughts and prepare her oral submissions after the explanation was provided. Notwithstanding that opportunity, the appellant chose to make her oral submissions immediately.
4. The issue that emerged from the appellant's oral submissions was a contention that the primary judge was in error for failing to conclude that the Tribunal had made a jurisdictional error and (or) had failed to accord her procedural fairness because the appellant had changed her email address and had not received the Tribunal's invitation to appear and, in those circumstances, it was legally unreasonable for the Tribunal to have exercised its power to dismiss the review proceeding.

Was it legally unreasonable for the Tribunal to exercise its power to dismiss?

1. At the relevant time, Pt 7 of the Act made provision for the Administrative Appeals Tribunal to review decisions relating to the grant or cancellation of protection visas: ss 408, 409(1). The Tribunal could affirm, vary, remit, substitute, or in the event of non-attendance, dismiss the application under review: s 415(2). Section 422B provided the Tribunal's review procedure as set out in Div 4 of Pt 7 constituted 'an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it dealt with'. Under s 425 the Tribunal was obliged to invite the applicant for a review of a Pt 7 decision to appear before the Tribunal and present evidence and arguments in respect of the issues under review. Section 425A(1) required the Tribunal to set out the day, time and place at which the applicant was to appear. Under s 425A(3) the Tribunal was required to provide the applicant with notice within the prescribed period, which at the relevant time concluded 14 days following receipt of the invitation to appear before the tribunal: Migration Regulations 1994 (Cth) reg 4.35D(3). Section 441A(5)(b) empowered the Tribunal to provide documents to the applicant via email. By operation of s 441C(5) a person was taken to have received a document at the end of the day on which it was transmitted by the Tribunal.
2. An applicant's failure to appear before the Tribunal enlivened the Tribunal's power either to (a) make a decision on the review without taking any further action; or (b) dismiss the application without further consideration: s 426A(1A). If the Tribunal dismissed the application it was required to make a statement setting out the reasons for that decision and notify the applicant of the decision by giving a copy of that statement to the applicant within 14 days: s 426B(2), s 426B(5). The applicant may have applied for reinstatement of the application within 14 days after receiving notice of the decision to dismiss the application: s 426A(1B). If the applicant failed to do so the Tribunal was obliged to confirm the decision to dismiss the application by issuing a notice under s 430: s 426A(1E). The Tribunal also had power to adjourn the review from time to time: s 426A(2), s 427(1)(b).

Change of email address and failure to notify not proven

1. The primary judge considered the Tribunal's invitation to the appellant to attend a hearing. His Honour concluded that the invitation was made in accordance with s 425 and complied with s 425A by providing an invitation addressed to the appellant which indicated the date, time and means for attendance. His Honour found the invitation was sent via email in excess of the minimum notice period under reg 4.35D of the Migration Regulations and that the notice contained a statement describing the effect of s 426A of the Act and consequences for non-attendance mandated by s 425A(4) of the Act: PJ [42]. The primary judge concluded that, in accordance with s 441A(5), the appellant was 'taken to have received that document' at the time specified by s 411C(5) of that Act, being the day it was transmitted regardless of whether the document was actually received: PJ [43] citing SZNZL v Minister for Immigration and Citizenship [2010] FCA 621; 186 FCR 271 at [36] (Barker J). There is no error in the primary judge's conclusions or reasoning regarding these matters.
2. In substance, the appellant's complaint is that, notwithstanding the deeming provisions of the Act, she did not, in fact, receive the invitation to attend the hearing before the Tribunal because she had changed her email address between September 2017 and July 2022. When invited, the appellant was not able to point to any evidence before the primary judge or this Court on appeal to support the assertion that she had changed her address. Further, not only is there no evidence of any change of email address, but there is evidence that, as of August 2022, the appellant was receiving email communications sent to the email address she had given the Tribunal in her application for review. As already mentioned, on 11 August 2022, the appellant was given notice of the decision to dismiss her application for review by email sent to that address and on 1 September 2022 the appellant filed an application for judicial review in the Circuit Court. Therefore, the inference arises that, even if the appellant had changed or had a new email address, she continued to receive emails sent to her old email address as of August 2022.
3. The appellant has not demonstrated that the primary judge made any error of fact in failing to find or conclude that she had changed her email address between September 2017 and July 2022 or that the email inviting her to attend a hearing before the Tribunal was not, in fact, received by her in July 2022.

No failure to accord the appellant procedural fairness

1. Section 422B(1) was an 'exhaustive statement of the requirements of the natural justice hearing rule'. Assuming that actual, as opposed to deemed, notice of a hearing is an element of the statutory procedure and a failure to give actual notice would render any dismissal decision unauthorised, the appellant cannot succeed on the facts because the appellant has not demonstrated that the primary judge made an error in failing to find that the appellant had not received actual notice of the hearing. Therefore, the primary judge was not in error for failing to conclude the Tribunal made a jurisdictional error by denying the appellant procedural fairness.

Dismissal for non-appearance did not lack intelligible justification

1. Every statutory discretion, however broad, is constrained by law. Thus, the power conferred by s 426A is subject to a presumption of the law that the legislature intends the power to be exercised reasonably: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle and Gordon JJ), [131]-[135] (Edelman J). A decision made in the exercise of statutory power is legally unreasonable when it lacks an evident and intelligible justification. That may be so where the decision is one which no reasonable person could have arrived at on the information before the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [25]- [26] (French CJ), [68], [76] (Hayne, Kiefel and Bell JJ), [91] (Gageler J).
2. The conclusion that the primary judge made no error for failing to find that the appellant had not received actual notice of the hearing renders the appellant's task of demonstrating that the Tribunal's decision to dismiss her application for review was legally unreasonable all the more difficult. Nonetheless, it could be argued that given: the appellant's limited command of written and spoken English; her lack of response to communications in July 2021 and May 2022; and the time that had passed between lodging her application for review with the Tribunal in September 2017 and the communication in July 2021 and May 2022, the Tribunal was 'on notice' that the appellant's email address may no longer be in use and emails sent to that address may not be received. In those circumstances, exercising power to dismiss rather than adjourn could arguably be regarded as an unreasonable exercise of power and (or) one lacking intelligible justification.
3. Having found the appellant was properly invited by the Tribunal to attend a hearing and that the appellant had failed to attend, the primary judge concluded the discretion to dismiss the application under s 426A was properly enlivened. In considering whether the discretion was exercised 'reasonably' his Honour made the following findings at PJ [53] (citations omitted):

(a) the hearing invitation was sent to the applicant by email at her nominated email address and there was no evidence before the Tribunal to suggest that the applicant did not receive that invitation (for example, there was no email delivery failure notice received);

(b) the applicant did not respond to the Tribunal's request to the applicant (sent via email on 24 July 2021), asking that she provide the Tribunal with a mobile number;

(c) the applicant did not respond to the Tribunal's invitation to provide information (sent to her on 11 May 2022 via email);

(d) the Tribunal exercised its discretionary powers to invite the applicant to attend a hearing before it, notwithstanding the fact that she had failed to respond to the invitation to provide information...;

(e) after lodging her review application with the Tribunal on 13 September 2017, the applicant did not engage or make contact with the Tribunal at any time;

(f) no further material had been provided to the Tribunal by the applicant in support of her review application;

(g) the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30am (WA time) on 10 August 2022; and

(h) the Tribunal waited nearly 24 hours (until 8.39am on 11 August 2022) before determining that the applicant was not going to appear at that hearing (or make any contact with the Tribunal to explain why she had not attended) and before the Tribunal member ultimately made the Non-Appearance Decision.

Based on these findings the primary judge concluded the Tribunal acted reasonably in dismissing the application pursuant to s 426A(1A)(b) of the Act and that no jurisdictional error arose: PJ [54]-[55].

1. The Tribunal provided reasons with notice of its decision to dismiss the application: PJ [18]. The Tribunal explained the communications sent to the appellant to which no response was received in 2021 and 2022. The Tribunal observed that there had been no communication with the appellant since the application for review was lodged in September 2017 and no application for an adjournment was received before the hearing date. The Tribunal indicated that the applicant was invited under s 425 to appear before the Tribunal and the invitation included notice that the application may be dismissed for failure to attend. The Tribunal inferred that the invitation to appear was received because it was not returned to sender. The Tribunal said that no satisfactory reason for the non-appearance had been given and '[i]n these circumstances' the Tribunal had decided to dismiss the application.
2. The Tribunal's reasons provide intelligible justification for the decision to dismiss the application. Further, in circumstances in which the appellant had a right to apply for reinstatement, it was not legally unreasonable to fail to exercise the power to adjourn or consider exercising that power even though the appellant had not specifically requested an adjournment. A dismissal decision was not a decision that no reasonable decision-maker could have made in the circumstances even if another decision-maker may have taken a different approach. For these reasons, the primary judge was not in error, in effect, for concluding that the appellant had not demonstrated that the Tribunal's decision to dismiss the application was legally unreasonable.
3. The primary judge observed the appellant was notified of the dismissal decision via email on 11 August 2022 and in that email the Tribunal advised her that she could seek reinstatement within 14 days of receiving notice of that decision in compliance with s 426B(6): PJ [56]. The primary judge also observed the operation of s 426A(1E) which provided that if the appellant failed to apply for reinstatement within the 14-day period the Tribunal was required to confirm the decision to dismiss by a written statement under s 430: PJ [59]. The primary judge thus concluded that no jurisdictional error arose because, as no application for reinstatement was made, the Tribunal was required to confirm the decision to dismiss the application and did so: PJ[60]-[61].
4. The Tribunal provided reasons for the confirmation decision: PJ [19]. The Tribunal's reasons set out the relevant factual background and explained that as the appellant had not applied for reinstatement of the application within the 14-day period the Tribunal must confirm the decision to dismiss the application. In the circumstances, there was no discretion to be exercised and the Tribunal was bound to confirm the dismissal decision. The reasons otherwise provide an appropriate explanation for the decision. There is nothing unreasonable in that explanation or the exercise of the statutory power. Thus, there was no error in the primary judge's conclusions.

1. For the foregoing reasons the appeal should be dismissed with costs.
2. The Minister has requested that costs be fixed in the sum of $2,000. I am satisfied that the costs should be fixed on a lump-sum basis in accordance with the principles explained in paragraph 4 of the Costs Practice Note (GPN-COSTS) and that $2,000 is a reasonable amount in which to fix those costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.