DLQ20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2076

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

1. In this matter, the sole arguable ground of jurisdictional error concerned the decision of the Administrative Appeals Tribunal (Tribunal) to proceed to hear and determine the application on the papers. In circumstances where there was to be a telephone hearing during COVID, notice of the telephone hearing had been sent to the nominated email, and it seems clear that this email was received, however, the phone number appeared to be disconnected. The Tribunal could have adjourned the proceedings and attempted to contact the applicant again. It could, alternatively, have dismissed the proceedings with the capacity to reinstate within 14 days. Instead, it dismissed the proceedings on the papers. The question is whether that was unreasonable in the sense discussed by Horan J in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17). For the reasons which follow, that decision is distinguishable, no jurisdictional error is shown and the application must be dismissed with costs.

BACKGROUND AND PROCEDURAL FAIRNESS AT THE COURT HEARING

1. The applicant is a citizen of China who held a Visitor (Class FA) (Subclass 600) visa when she arrived in Australia in 2017 from China. Shortly afterwards, she lodged an application for a protection visa. She was invited to attend an interview with the first respondent's Department (Department). She did not attend, and her protection visa was refused. The applicant then applied for review in the Tribunal of the delegate's decision. Her application nominated an email address, but no telephone number.
2. On 9 June 2020, which was, I accept, during COVID when there were extensive restrictions in force on movement, the Tribunal wrote to the applicant by email inviting her to attend a hearing by telephone, the telephone number being the applicant's mobile number provided to the Tribunal from the Department's Integrated Client Service Environment system. The emailed hearing invitation informed her that this was the mobile phone number the Tribunal proposed to use and invited her to indicate if that was not the correct number and if another number should be used. There was no response.
3. The hearing was set for 26 June 2020. On 19 and 25 June, two SMS hearing reminders sent to that telephone number were marked as having failed to deliver, and on the day of the hearing at the nominated time, a further attempt was made to telephone her on that number, but the number was not connected. The Tribunal member proceeded to hear and determine the matter on that day in the absence of the applicant. Relevantly, the Tribunal's reasons said:
   1. The applicant failed to attend the telephone hearing with the Tribunal on the day and at the time and place at which he was scheduled to attend nor did he contact the Tribunal to explain his failure to appear. There is no evidence that the hearing invitation was returned to the Tribunal nor was there a request for a postponement of the hearing. Pursuant to section 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

...

1. The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is either genuine or 'well-founded'. The applicant is required to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559) at 596:

'the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for reasons of political opinion. It remains for the Minister in the first place to be satisfied and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.'

1. The Tribunal dismissed the appeal, and published its reasons on 2 July 2020.
2. The applicant then filed an application in this Court under s 476 of the Migration Act 1958 (Cth) (Act) seeking to quash the decision and for an order for mandamus. The grounds of the application, which, despite my invitation to do so, were not further particularised at the hearing, were:
   1. AAT was not right to refuse my application and didn't follow the law correctly.
   2. I should be provided a proper opportunity to give my evidence, so AAT should arrange another interview date for me.
   3. Because of the corona virus pandemic, it is unfair to simply refuse my application without giving me second chance.
   4. AAT failed to consider the special circumstances which is not within my control and should not be my fault.
3. Although I was satisfied that both the court book and the Minister's written outline of submissions had been provided to the applicant in good time before the hearing, I nevertheless briefly adjourned the proceedings to allow the written submissions of the Minister to be translated for the applicant by the accredited interpreter who appeared to interpret at the final hearing in this Court, and I also gave the applicant a further seven days after the conclusion of the hearing in person before me to put in any further submissions she wished, but she did not.

1. I agree with the Minister that ground 1 "AAT was not right to refuse my application and didn't follow the law correctly" is so general that it does not advance the applicant's application. It impermissibly invites merits review, contains no particulars and cannot succeed.

1. The question of the proper opportunity to give evidence in the Tribunal appears to be raised by this ground: "I should be provided a proper opportunity to give my evidence, so AAT should arrange another interview date for me."
2. It is clear on the evidence that a proper hearing invitation was provided to the email address indicated on the application filed in the Tribunal by the applicant. There was therefore compliance with ss 425(1), 425A and 426 of the Act, and that is because, as the Minister's written submissions stated:

1. On 9 June 2020, the Tribunal sent the applicant a hearing invitation by email (CB 75-83) in compliance with ss 425(1), 425A and 426 of the Act:

(a) The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1) of the Act. > > (b) The hearing invitation set out the date, time and place (by telephone) of the hearing: s 425A(1) of the Act. > > (c) The Tribunal notified the applicant of the hearing by email, being one of the methods specified in s 441A of the Act: s 425A(2)(a) of the Act. > > (d) The hearing invitation was sent to the last email address provided to the Tribunal by the applicant in connection with the review, being the applicant's nominated email address provided in her review application: s 441A(5)(d) of the Act. > > (e) The notice period from 9 June 2020 to 26 June 2020 complied with the prescribed period of 14 days: s 425A(3) of the Act, reg 4.35D(3) of the Migration Regulations 1994 (Cth). > > (f) The fact sheet attached to the hearing invitation advised the applicant of the effect of s 426A of the Act (CB 79-83), including the Tribunal's power to make a decision without taking further action (s 426A(1A)(a)) or dismiss the application (s 426A(1A)(b)) if the applicant failed to appear, the applicant's right to seek reinstatement of a dismissed application, and the Tribunal's power to reinstate the application or confirm the dismissal: s 425A(4) of the Act. > > (g) The fact sheet also advised the applicant that she was invited to appear before the Tribunal to give evidence and that she might within 7 days give the Tribunal written notice of the name of witnesses whom she wished the Tribunal to obtain oral evidence from (CB 79): ss 426(1), (2) of the Act.

3. I accept that it was logical, during the COVID pandemic, to have a hearing by telephone, and given the only telephone number that the Tribunal had access to was the applicant's mobile phone number previously provided to the Department, it was open to the Tribunal to utilise that number, and the precaution was taken of sending it via email to the proper email address of the applicant, and giving the applicant an opportunity to either confirm that was the correct number or to nominate an alternative.
4. It was clear at the hearing before me that this email was received and that the applicant understood that she was being given an opportunity to "appear by telephone before the ... Tribunal" rather than in person because of COVID. It follows, in my view, that there was full compliance with the obligations in ss 425 and 425A of the Act to be notified of the hearing.

1. Ground 4 was not particularised as no "special circumstances ... not within my control" were specified in the application or at the hearing, despite being given an opportunity to particularise. That ground necessarily fails.

1. That leaves ground 3 that it was "unfair to simply refuse my application without giving me second chance." The Minister submits that, read beneficially, this may be a challenge to the reasonableness of the Tribunal's decision to proceed under s 426A(1A)(a) when the applicant failed to appear at the hearing. The Minister, acting properly under his duty as a model litigant, brought to attention the decision of Horan J in DNK17, where it was held in the particular circumstances of that case that it was legally unreasonable for the Tribunal to act under s 426A(1A)(a), that is to say, to decide the hearing on the papers as opposed to dismissing under subsection (b), where there would be for a brief period an opportunity to apply for reinstatement of the application. Relevantly, s 426A(1A) of the Act provides as follows:

426A Failure of applicant to appear before Tribunal

(a) is invited under section 425 to appear before the Tribunal; but

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A) The Tribunal may:

(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

...

1. As Horan J said at paragraphs 105 and 107 of DNK17:

[105] In the particular circumstances of this case, it can be inferred that the Tribunal decided not to exercise the dismissal power under s 426A(1A)(b) for reasons that were similar to, if not the same as, the reasons given for refusing the adjournment request and making a decision on the review under s 426A(1A)(a). The difficulty, however, is that those reasons do not provide any intelligible justification for deciding not to dismiss the application pursuant to s 426A(1A)(b), rather than making a decision on the review.

...

[107] To the extent that the Tribunal considered the exercise of the dismissal power under s 426A(1A)(b), 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. In the circumstances, the possibility of dismissal under s 426A(1A)(b) was a live option, and the Tribunal's reasons for refusing the adjournment request and making a decision on the review do not provide an intelligible basis for deciding not to exercise the power to dismiss the application under s 426A(1A)(b).

The issue is not whether it was reasonable to have a telephone hearing at all. Plainly enough, the existence of the COVID pandemic, which was adverted to in the relevant letter providing notice of the hearing to the applicant, was an intelligible and indeed a sufficient reason to have a telephone hearing. Adequate notice was given: see above. The issue, rather, is whether, in the particular circumstances of the case, it was unreasonable for the Tribunal to make a decision on the papers, rather than adjourning and attempting again to contact the applicant, or proceed under subsection (b), which would have briefly provided an opportunity to reinstate.

1. In his careful submissions, Mr Qian, for the Minister, made four points which he said distinguished the facts in this case from the particular circumstances considered by Horan J:

(a) First, he said that there was an intention by the applicant not to engage, which may be inferred from the failure to engage before the Ministerial delegate and the complete absence of any communications from the applicant to the Tribunal after the original application was filed.

(b) Second, unlike DNK17, there were no credibility concerns which were resolved in this case. Rather, as is evident in paragraphs 18 and 20 of the Tribunal decision in this matter:

[18] In this case the applicant's written claims lack detail. She has provided no evidentiary material to support her claim such as a land or property title document, photos of the property, or any other documents or photographic evidence associated with the demolition or petitions. Neither is there any evidence of her husband's alleged injuries or hospitalisation or of her alleged arrests, torture and administrative detention.

...

[20] Given the ease with which the applicant appears to have left China and the absence of any supporting information with respect to the alleged land ownership or seizure, or actions against her by the police I am not satisfied that the applicant ever had her house demolished, was detained by police, arrested or tortured, I therefore do not accept that there is a real chance that that the applicant would face serious harm in China in the reasonably foreseeable future based on her reaction to the demolition of her house.

There was simply a lack of satisfaction by the Tribunal that the allegations said to give rise to obligations by Australia towards the applicant had been made out, which is not the same as there being "no credibility". In that regard, the Minister relies on what Judge Cleary said in APX20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1530 (APX20), where his Honour wrote:

[51] Further, unlike the situation in DNK17, the applicant in this case did not make an adjournment application on, or immediately before, the scheduled hearing on 29 January 2020. She simply did not appear at the hearing. I consider that this is a significant factual matter which distinguishes DNK17 from the present case.

[52] Another distinguishing feature of the present case was the absence of any credibility concerns finding by the Tribunal about the applicant's claims. In DNK17 Horan J found at [106] that the Tribunal had credibility concerns about the applicant's claims that could not be resolved without a hearing based on "limited and contradictory" material. There were no such concerns in the present case. Rather, the basis on which the Tribunal was not satisfied there was any protection obligations owing to the applicant was because of a lack of "essential details", "unclarified claims" and "unanswered" questions, and not because of inconsistencies in the evidence.

(c) Third, as in APX20 at paragraph 51 just cited, it was not a case where the applicant had already sought adjournment applications, and this was a further adjournment application. Rather, she never appeared on any occasion.

(d) The final point of distinction the Minister relies on is that this was always a telephone hearing. The applicant had been put on notice that the hearing would be conducted on the telephone number previously provided by her to the Department as opposed to the Tribunal, but which the Tribunal had nominated as the correct number while inviting her to indicate any alternative number.

1. I am bound as a matter of precedent by the ratio decidendi of DNK17. That is to say, I am bound by the rule of law expressly or implicitly treated by the court as a necessary step in reaching its conclusion having regard to the line of reasoning adopted by it: see eg Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 at [28]; Telstra Corp Ltd v Treloar [2000] FCA 1170 at [23]; Bristol Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316 at [160]. In my opinion, each of the four matters raised by the Minister are proper grounds for distinguishing DNK17 such that I am not bound to follow the result in that case.
2. Rather, the question of unreasonableness is a matter for me to decide based on all the evidence before me in the particular circumstances of this case. Those facts are in fact closer to those considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [66]. Thus, Gageler J (as the Chief Justice then was) said:

The Tribunal was under no obligation to give reasons for the choice that it made in purported exercise of the power conferred by s 426A. But in fact it did give reasons. The record of the Tribunal's decision to affirm the decision of the delegate contained the following explanation:

"The delegate's decision record, which the applicant provided to the Tribunal with his review application, indicates that the applicant was invited to attend a Department interview but did not attend or otherwise contact the Department. While the applicants sought this Tribunal's review in respect of the delegate's decision, he did not provide the Tribunal with any further documentation in support of his claims for Australia's protection.

By letter dated 15 August 2014 the Tribunal invited the applicants to appear before it on 10 September 2014 to give evidence and present arguments. That letter was sent to the applicants' last identified address for correspondence and noted that if the applicants did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable them to appear. The applicants did not respond to that invitation or make any contact with the Tribunal in respect of their scheduled appearance or the review application more generally.

Based on the evidence before it the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and in the circumstances, pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it."

1. At [97] and [121], Nettle and Gordon JJ said (citations omitted):

[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.

...

[121] Moreover, the primary judge paid no regard to the lack of interaction of SZVFW and his wife with the delegate of the Minister when they did not attend to be interviewed by the delegate, where there could be no suggestion that they had not received a written invitation to attend that interview and even after being contacted by telephone. That is, there was no suggestion that the failure of SZVFW and his wife to attend the hearing before the Tribunal was unexpected or remarkable. [emphasis added]

[141] The decision by the Tribunal, for the reasons it gave, was not legally unreasonable. Three further reasons, additional to those given by the Tribunal, are also relevant. First, in the original applications by the respondents to the Minister, they undertook to inform the Department if they intended to change their address for more than 14 days while their applications were being considered. No change of address was provided. It was reasonable for the Tribunal to draw the inference that the respondents were still accessing mail at that address. Secondly, the letter from the Department refusing the respondents' original applications was sent to their nominated address. Thirdly, prior to the decision of the delegate, the respondents had not attended a scheduled interview with the Department, despite apparently being made aware of the interview by letters sent to their nominated address and a telephone call rescheduling the interview. It would have been reasonable to infer that a rescheduled hearing before the Tribunal might have been futile.

1. Another case with analogous facts to the present was Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091, where it was said at [52]-[53]:

[52] The reasons given by the Tribunal in this case were directed at the steps taken to invite the applicant to a hearing and the advice given that failure to appear might result in a decision without further notice. The Tribunal was satisfied that the applicant had been properly invited to the hearing, that the invitation had not been returned, that the applicant had not responded to the hearing invitation and had then not appeared at the hearing. In the circumstances of this case the reasoning, while sparse, provided an evident and intelligible justification for the decision to proceed under s 362B(1A)(a), rather than the potentially more beneficial, s 362B(1A)(b). Put simply, the narrative that underscored the Tribunal's approach was that the applicant having notice of the hearing, having been advised of the consequences of a failure to appear, and having failed to appear or to respond to the hearing invitation, was unlikely to take up any further opportunity to engage with the Tribunal or the review process. This narrative provided a rational justification for the decision of the Tribunal to exercise the power to decide the review under s 362B(1A)(a) as well as its decision to decline to exercise the dismissal power pursuant to s 362B(1A)(b).

[53] While recognising the limits of comparative exercises when it comes to assessment of legal unreasonableness (or for that matter, any category of jurisdictional error), it seems to me that the present case is more analogous to that considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541. The exercise of power in that case "was explained and justified by the history of non-responsiveness on the part of the applicants, from which it was open to infer that any attempt to contact them or to reschedule the hearing was likely to have been futile" (DNK17 at [74] with reference to SZVFW at [2], [14], [70], [78], [123], [140]-[141]).

1. Finally, EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173 at [30] and [36] is also closer to the facts in this case than in DNK17:

[30] In DNK17, the Court (Horan J) had to determine whether it had been legally unreasonable for the Tribunal to decide the review under s 426A(1A)(a) of the Act, rather than dismissing the application under s 426A(1A)(b). Horan J reasoned that it was unreasonable for the Tribunal to proceed to determine the review without explaining why it had chosen to do so instead of dismissing the review, particularly because the applicant made 3 requests for an adjournment - 2 of which were granted, and the third denied on the morning of the hearing. However, DNK17 does not, in my view, stand as a general proposition that it will always be unreasonable for a decision-maker exercising power in s 426A(1A)(a) of the Act rather than (b) of the Act, to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing if reasons for doing so are not articulated. Sometimes those reasons will be obvious or may reasonably be inferred from the circumstances. Ultimately the whole of the circumstances, taking into account the nature and purpose of the power exercised and the statutory context in which the power is exercised, must be considered in assessing whether the exercise of power in a particular circumstance was unreasonable. Put another way - whether there is an intelligible justification for the decision arrived at through an intelligible decision-making process. [emphasis added]

...

[36] I therefore agree with the first respondent that the Tribunal's approach was based on reasoning that since the applicant had been notified of the hearing, informed of the consequences of failing to attend, and yet inexplicably did not attend, it was unlikely he would take advantage of any future opportunity to engage with the Tribunal or the review process. All the more so since, as the Tribunal noted, he had not sought to further engage with the review process. By reason of the applicant's non-attendance, his failure to provide any further material despite being invited to do so and his failure to contact the Tribunal about his non-attendance before the scheduled hearing began, it was open for the Tribunal to infer that the applicant would not likely seek to take advantage of a future opportunity to engage in the review process. The reasons given by the Tribunal are not lengthy but the evident conclusion that the applicant was unlikely to engage further was open and the reasons as a whole provide an evident and intelligible justification for the decision to proceed under s 426A(1A)(a) of the Act, a decision arrived at through an intelligible decision-making process. And although the reasons make no express reference to s 426A(1A)(b), as it is evident the Tribunal considered the applicant would not likely further engage in the review process, those reasons also provide an evident and intelligible basis for the Tribunal exercising the power under s 426A(1A)(a) rather than (b). Consequently, no jurisdictional error is thereby disclosed.

1. In my opinion, the reasons, which are obvious or may reasonably be inferred from the surrounding circumstances, amply demonstrate the decision of the Tribunal in this matter was not unreasonable for each of the four reasons persuasively submitted by the Minister. DNK17 does not dictate the result.
2. For those reasons, the application must be dismissed with costs - which in my discretion can be set at $6,180.

1. The Court orders that:
   1. The application be dismissed.
   2. The applicant pay the first respondent's costs fixed in the sum of $6,180.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.