Resolution
85 On this appeal, I am required to reach my own conclusion as to whether or not the Tribunal's decision was legally unreasonable: SZVFW at [18] (Kiefel CJ), [20], [56] (Gageler J), [76], [85], [117] (Nettle and Gordon JJ), [154]-[155] (Edelman J). Accordingly, the question is whether the primary judge was correct, as opposed to whether her Honour's conclusion was open on the evidence or unaffected by error.
86 If the Tribunal exercises the power conferred by s 426(1A)(a) to make a decision on the review, it must give a written statement of decision under s 430. As the Tribunal in fact gave reasons for exercising the power under s 426(1A)(a) in the present case, its stated reasons provide a "focal point" for the Court's assessment of legal unreasonableness: compare SZVFW at [66] (Gageler J), [84] (Nettle and Gordon JJ).
87 The relevant aspects of the Tribunal's reasons are extracted in paragraph 32 above. Those reasons can be dissected as follows.
(a) The Tribunal commenced by addressing the timing and content of the medical certificate dated 3 July 2017, referring to the delay in its provision to the Tribunal, the general nature of the diagnosis provided, and the "vague and open-ended" advice provided to the appellant. The Tribunal was not satisfied based on the medical certificate that the appellant was unable to attend the scheduled hearing at 11.30 am on 5 July 2017.
(b) While the Tribunal acknowledged that its refusal of the third adjournment request on the morning of 5 July 2017 did not leave the appellant with sufficient time to travel to the hearing, the Tribunal considered that the appellant should have assumed that the hearing would go ahead unless otherwise advised, and that he had sufficient time to contact the Tribunal to provide additional information or "to request a later start time". The Tribunal indicated that it would have given consideration to any such request if it had been made.
(c) Neither the appellant nor his representative had contacted the Tribunal to provide additional information "or other reasons why he could not attend at the scheduled time", nor to "seek a further postponement". In relation to the former, this appears to have been directed to the possibility that the appellant might have responded to the refusal of the third adjournment request by supplementing the medical certificate with further evidence to show he was unfit or unable to attend and participate in the scheduled hearing. In relation to the latter, this might be taken as referring to the possibility of seeking a change in the "start time" of the hearing, as opposed to seeking an adjournment to a later date. However, it might also be interpreted as a more general reference to the absence of any further request to reschedule the hearing, including in the days following the hearing and prior to the Tribunal's decision.
(d) The Tribunal relied on these circumstances in making a decision under s 426A(1A)(a), that is, to make a decision on the review without taking any further action to enable the appellant to appear before it. The Tribunal did not expressly advert to the alternative power to dismiss the application under s 426A(1A)(b), nor did it give any further reasons why it had decided not to exercise that power.
88 Any examination of the question whether the Tribunal's decision was legally unreasonable must take into account the scope and purpose of the powers conferred by s 426A, in the context of the Tribunal's review functions under Pt 7 of the Migration Act.
89 Even prior to its amendment in 2015, it was recognised that s 426A was "directed to the aims of efficiency": see SZVFW at [13] (Kiefel CJ). If the review applicant failed to appear after having been invited to a hearing before the Tribunal, s 426A(1) (in its form prior to the 2015 Amendment Act) gave the Tribunal power to proceed to make a decision on the review rather than deferring its decision in order to reschedule the hearing or otherwise take action to allow or enable the applicant to appear before it. This reflected analogous powers under s 424C in circumstances where an applicant failed to respond to an invitation to give information under s 424 or to comment or respond to adverse information under s 424A.
90 As Nettle and Gordon JJ recognised in SZVFW at [97], the exercise of discretion under the former s 426A(1) in any given case was "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". Such considerations may militate in favour of or against any adjournment or further adjournment of the hearing in the particular case. While this is not a question of "prejudice" to the Tribunal or any other party, there are nevertheless interests in the timeliness and efficiency of the review process: see Li at [10] (French CJ). Within the bounds of legal reasonableness, the Tribunal had a "genuinely free discretion" as to the exercise of the power conferred by s 426A(1): SZVFW at [97] (Nettle and Gordon JJ). In other words, it was accepted that the Tribunal had "a degree of latitude in determining what is fair and just in a given case": SZVFW at [13] (Kiefel CJ).
91 Nevertheless, the nature of the discretion to be exercised under s 426A has since been affected by the 2015 Amendment Act. Rather than a choice between making a decision on the review or rescheduling the hearing, the options available to the Tribunal under ss 426A(1) and (1A) now also include dismissing the application without any further consideration of the application or information before the Tribunal.
92 There have been numerous cases in the Federal Circuit Court and on appeal to this Court that have considered whether the Tribunal acted reasonably in making or notifying an application of a "non-appearance decision" under s 426A(1A)(b) or in confirming such a decision under ss 426A(1C)(b) or (1E) (or the cognate provisions under Pt 5 of the Migration Act): see e.g. Singh v Minister for Immigration and Border Protection (2018) 226 FCR 459 at [26]-[30], [35]-[39] (Colvin J, with whom Kenny and Bromberg JJ agreed); EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [5], [16]-[18], [22]-[24] (Lee J); Sran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 377 at [105]-[125] (Greenwood J); BSU15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 50 at [19]-[29] (Nicholas J); BUV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1075 at [25]-[30] (Rares J); BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 at [4], [20]-[21], [32] (Burley J).
93 There is less authority on the application of s 426A in the context of a decision not to dismiss an application under s 426A(1A)(b) but instead to make a decision on the review under s 426A(1A)(a). There are many cases in the Federal Circuit Court which have involved unsuccessful challenges to decisions made by the Tribunal in the applicant's absence under s 426(1A)(a) (or the equivalent provision in Pt 5, s 362B(1A)(a)). At least one such decision was the subject of an appeal to this Court: see Sapkota v Minister for Home Affairs [2020] FCA 167 at [17]-[18], [21], [23]-[24], [30]-[33] (Griffiths J). Most of these cases were principally concerned with whether it was reasonable for the Tribunal to make a decision on the review as opposed to granting an adjournment or a rescheduled hearing. In so far as it was alleged in some cases that the Tribunal had unreasonably failed to adopt the option of dismissing the application with a right to seek reinstatement, the argument does not appear to have been developed or explored at any length.
94 Any determination of the question whether there is an intelligible justification for the Tribunal's decision, including whether the Tribunal has come to that decision through an intelligible decision-making process, requires an examination of the "decision-making pathways" that were reasonably open to the Tribunal: compare ABT17 at [21] (Kiefel CJ, Bell, Gageler and Keane JJ). As discussed above, there are differences between the consequences that attach to an exercise of the powers conferred by ss 426A(1A)(a) and (b) respectively. The amendments were intended to give the Tribunal "the option of dismissing the application or making a decision on the review": see the extract from the Explanatory Memorandum set out at paragraph 59 above. The new additional power was intended "to increase tribunal efficiency by providing for a quick resolution of a case", so as to allow the tribunal "to focus resources away from matters that are not actively being pursued by the review applicant". Thus, in exercising the dismissal power under s 426A(1A)(b), the Tribunal is not required to give any further consideration to the application or the information before the Tribunal.
95 Unless the review applicant seeks reinstatement of the application within the 14-day period, the dismissal of the application will be confirmed under s 426A(1E). The review applicant therefore has a final opportunity to keep the application on foot, provided that he or she can satisfy the Tribunal that it is appropriate to do so under s 426A(1C)(a). This could potentially encompass any explanation for the applicant's failure to appear at the scheduled hearing, together with the substantive merits or prospects of the review application and the information relied on in support of that application.
96 On the other hand, if the Tribunal proceeds to make a decision on the review under s 426A(1A)(a), the Tribunal will be required to consider the application and the information before the Tribunal in order to reach the correct or preferable decision on the available evidence. As the appellant submitted, the Tribunal's consideration will take place in a context in which the Tribunal has previously formed a view that it cannot make a favourable decision on the review on the basis of the material before it. Accordingly, unless additional material has subsequently been provided to or obtained by the Tribunal, it is unlikely that the Tribunal's decision on the review under s 426A(1A)(a) will be in the review applicant's favour. The Tribunal will nevertheless be required to make findings on all material questions of fact and identify the evidence or other material on which those findings were based: s 430(1).
97 In some cases, of which the present case is an example, the information before the Tribunal in support of the application might be bereft of sufficient detail to establish the claims made by the review applicant. In such circumstances, it might be relatively straightforward for the Tribunal to make findings and reach a decision on the review based on the insufficiency of the material provided in support of the application. However, that is arguably encompassed within the types of cases to which the dismissal power conferred by s 426A(1A)(b) is addressed. Not only does dismissal in such circumstances advance the interests of efficiency, it leaves the review applicant with a brief window of opportunity in which to seek reinstatement of the review application.
98 That is not to say that an exercise of power to dismiss a review application under s 426A(1A)(b) following the non-appearance of the review applicant at a scheduled hearing will always be advantageous to the review applicant. There is no unconditional right to have the application reinstated, and any reinstatement application must be made promptly within 14 days, without any power to extend that period. If the application is not reinstated, the dismissal will be confirmed and the decision under review will be taken to be affirmed: s 426A(1F). In such circumstances, the protection visa application will have been finally determined. For these reasons, the power to dismiss an application under s 426A(1A)(b) has significant consequences for the review applicant, and should be exercised with proper attention to those consequences. It may be that the power should be exercised "sparingly", at least in so far as it may be appropriate to take into account other available courses of action such as granting an adjournment or rescheduling the hearing: compare Charara v Commissioner of Taxation [2016] FCA 451; 160 ALD 57 at [79] (Wigney J), considering the different dismissal power conferred by s 42A(5) of the AAT Act; see also Guse v Comcare [1997] FCA 961; 49 ALD 288 at 291 (Burchett J). In some cases, however, it may be apt to characterise the option of dismissal of an application under s 426A(1A)(b) as "a middle path", in that it carries with it the possibility of reinstatement, and to view the option of making an adverse decision on the review as a "harsher response": see Ijaz v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 688 at [41] (Judge Champion).
99 Nothing in the foregoing discussion is intended to constrain the options available to the Tribunal in the event that a review applicant fails to appear at a scheduled hearing. It remains within the area of the Tribunal's decisional freedom to consider which of the available options is appropriate in the particular circumstances of each case - whether to grant an adjournment and reschedule the hearing, to make a decision on the review, or to dismiss the application. However, the decision by the Tribunal must be within the bounds of legal reasonableness, and must have an evident and intelligible justification.
100 Turning to the particular facts of this case, the Tribunal's reasons were largely directed to the considerations against granting a further adjournment or rescheduling of the hearing. Those reasons reveal an intelligible justification for refusing to reschedule the hearing or to take any further action to allow or enable the appellant to appear before the Tribunal. While this was not a case where the appellant had failed to appear "without explanation" (compare SZVFW), his most recent request for an adjournment came against a background of repeated non-appearances and previous adjournments granted by the Tribunal. The appellant had been advised that adjournment requests should be made as early as possible and that, if an adjournment was sought for a medical reason, it should be accompanied by a medical certificate stating that he was not able to attend the scheduled hearing. It was open to the Tribunal to find that the medical certificate dated 3 July 2017 did not show that the appellant was unable to attend the hearing on 5 July 2017.
101 The Tribunal having refused to grant an adjournment, the hearing proceeded on 5 July 2017 at 11.30 am. When the appellant failed to appear at the hearing, the Tribunal was faced with the three options identified at paragraph 55 above. Relying principally on the failure by the appellant or his representative to contact the Tribunal "to provide any additional information or other reasons why the [appellant] could not attend at the scheduled time or seek a further postponement", the Tribunal decided to exercise the power to make a decision on the review under s 426A(1A)(a).
102 As previously noted, the Tribunal's written statement of reasons does not directly address the possible exercise of the power to dismiss the application under s 426A(1A)(b), nor does it provide reasons for any decision not to exercise that power. There is no statutory obligation on the Tribunal to provide reasons for a procedural decision not to dismiss an application under s 426A(1A)(b). In these circumstances, two factual questions arise. First, did the Tribunal in fact consider whether or not to exercise the power conferred by s 426A(1A)(b)? Secondly, if the Tribunal did consider the exercise of the power to dismiss the application under s 426A(1A)(b), why did it decline to exercise that power? An unreasonable failure to consider the exercise of the dismissal power, or an unreasonable decision not to exercise that power, would be susceptible to challenge by way of judicial review.
103 In relation to the first factual question, on balance, I would not infer that the Tribunal overlooked or failed to consider the power to dismiss the application under s 426A(1A)(b). Although the Tribunal did not refer to s 426A(1A)(b) in its reasons, there was no requirement to provide reasons for deciding not to dismiss (or, perhaps, not deciding to dismiss) the application under that provision. The hearing invitation letter had canvassed the consequences of a failure to attend the scheduled hearing, including the possibility that the application might be dismissed without any further consideration, subject to a right to apply for reinstatement. In such circumstances, I do not consider that the mere failure by the Tribunal to address s 426A(1A)(b) in its written reasons provides a basis on which it should be inferred that the Tribunal overlooked the existence of the power conferred by that provision. It is perhaps curious that the Tribunal expounded its reasons for making a decision under s 426A(1A)(a) at such length without any mention of the alternative option of dismissing the application under s 426A(1A)(b). However, that can be explained on the basis that the Tribunal was setting out its reasons for making the decision that it had in fact made, as opposed to addressing a procedural power that it had not decided to exercise: compare J [64]. I also agree with the primary judge's conclusion (at J [65]) that there is nothing in the Tribunal's correspondence with the appellant on 5 July 2017 that supports an inference that the Tribunal failed to consider the option of dismissing the application under s 426A(1A)(b).
104 But that is not the end of the matter. If the Tribunal is not prepared in the circumstances to grant an adjournment and reschedule the hearing, s 426A(1A) provides the Tribunal with two alternative options. When exercising the discretion under s 426A(1A) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, the Tribunal is necessarily also declining to take the alternative option of dismissing the application without any further consideration of the application or information before it. One way of analysing this may be to treat the availability of the dismissal power under s 426A(1A)(b) as a mandatory relevant consideration in the exercise of the power to decide the review under s 426A(1A)(a), and vice versa. Another approach is to observe that the reasons for adopting one option can often be regarded as encompassing the reasons for not adopting the other option.
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.
106 This was accentuated by the basis on which the Tribunal proceeded to reject the appellant's claims on credibility grounds, namely, based on the insufficiency and lack of detail in the information before the Tribunal and the "limited and contradictory available material". In this regard, the Tribunal emphasised that the appellant's appearance at a hearing "would have been an opportunity to address the various gaps and contradictions, and to provide further information and details": Tribunal's reasons at [30].
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. It can be accepted that the appellant had provided very limited information in support of his application, had not taken up the opportunity of an interview by the delegate, and had sought late adjournments shortly before three successive scheduled hearings before the Tribunal. The first two adjournment requests were based on medical conditions of a short-term nature, and the medical evidence provided in support of the third adjournment request could be described as equivocal. In the light of this procedural history, there might have been some understandable scepticism on the part of the Tribunal as to the genuineness of the appellant's claims. However, it was not unlikely that the appellant would have applied for the reinstatement of the application if it had been dismissed under s 426A(1A)(b), which would have given the appellant a further and final opportunity to provide additional information in support of his claims. This was not a case in which, for example, the Tribunal accepted the claims that had been advanced by a review applicant but found that they did not attract protection obligations. 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).
108 If it were wrong to infer that the Tribunal's reasons for not dismissing the application under s 426A(1A)(b) were encompassed in its reasons for refusing the adjournment request and making a decision on the review, one is left with an implied decision by the Tribunal not to exercise the power under s 426A(1A)(b) but without any express reasons having been given for that procedural decision. In such circumstances, the outcome of that decision can be characterised as one that no reasonable decision-maker would have reached. Given the matters set out above, it was beyond the bounds of legal reasonableness for the Tribunal to decide not to dismiss the application (with a limited right to seek reinstatement) and instead to make a decision on the review that was based almost entirely on the insufficiency and lack of detail in the information before it. The Tribunal's exercise of the power under s 426A(1A)(a), rather than the dismissal power under s 426A(1A)(b), did not have sufficient regard to the purposes for which each of those powers is conferred. While the Tribunal's reasons identified the considerations in favour of refusing the adjournment request and making a decision on the review, it failed to address the countervailing considerations in favour of exercising the power to dismiss the application under s 426A(1A)(b).
109 The primary judge separately addressed whether it was unreasonable for the Tribunal not to schedule a further hearing (and to decide the review under s 426A(1A)(a)), and whether it was unreasonable for the Tribunal not to dismiss the application pursuant to s 426A(1A)(b). Her Honour concluded that the Tribunal's decision to proceed without giving the applicant a further opportunity to attend was open on the evidence, and within its area of decisional freedom: J [59]. The matters in support of that conclusion centred on the particular procedural history of the matter, including the previous adjournments, the contents of the medical certificates, and the Tribunal's obligation to provide a review process that is fair, just, economical, informal and quick: J [53]-[58]. While those matters may have cogently supported the decision not to reschedule the hearing, they did not necessarily bear upon the choice between deciding the review under s 426A(1A)(a) and dismissing the application under s 426A(1A)(b). Accordingly, in my view, it was erroneous to conclude that the decision not to dismiss the application under s 426A(1A)(b) was not unreasonable "[f]or essentially the same reasons" as the conclusion that the decision to proceed without a further hearing was not unreasonable: compare J [61].
110 In this regard, I note that the primary judge rejected an argument that the Tribunal's refusal to reschedule the hearing was not rendered unreasonable by "[t]he need for the [appellant] to elaborate on his claims": J [58]. The primary judge took into account the statutory scheme as a whole, including the fact that the Migration Act contemplates that the Tribunal can proceed in the absence of an applicant, including where he or she did not attend an interview with the delegate: J [58]. Be that as it may, s 426A(1A) now also confers on the Tribunal the option of dismissing the application without considering the application or the information before it. The Tribunal can exercise either option in the event that the review applicant fails to appear at the hearing, but must do so within the bounds of legal reasonableness.
111 In concluding that the Tribunal's decision not to dismiss the application under s 426A(1A) was not legally unreasonable, the primary judge also took into account the associated opportunity to seek reinstatement of the application within the 14-day period: J [61]-[62]. The primary judge did not accept the appellant's argument that he might have been able to provide more information in the 14-day period, suggesting that this was based on a premise that there was a possibility that the appellant may have had a valid reason for not attending the scheduled hearing despite the insufficiency of the medical certificate. The primary judge noted that the Tribunal had not made its decision on the appellant's review application until five days after the hearing on 5 July 2017, during which time the appellant had not contacted the Tribunal or provided any additional information.
112 Such matters do not appear to have been taken into account by the Tribunal for the purposes of any decision not to dismiss the application under s 426A(1A)(b), nor did the Tribunal address the appellant's position in relation to any possible 14-day reinstatement period. A failure to contact the Tribunal or to provide additional information over a five-day period following notification of the refusal of an adjournment request is not necessarily probative of whether the appellant might have sought to reinstate the application once it had been dismissed and to provide additional information within the 14-day reinstatement period. Any additional information in support of a reinstatement application would not be limited to establishing a valid reason for non-attendance at the hearing, and could include additional details of the protection claims: compare Singh at [26]-[30] (Colvin J, with whom Kenny and Bromberg JJ agreed); Sran at [115]-[118] (Greenwood J). The course that the application had taken before the delegate and the Tribunal might not inspire any great confidence that the appellant would make a compelling case for the reinstatement of his application. However, the possibility cannot be discounted that he might finally have provided further information explaining his inability to attend the hearing and elaborating on his claims, including "to address the various gaps and contradictions" that were ultimately fatal to his review application.
113 Accordingly, for the reasons set out above, I consider that either or both the decision to decide the review under s 426A(1A)(a) and the decision not to dismiss the application under s 426A(1A)(b) were legally unreasonable, and that the Tribunal's decision was therefore affected by jurisdictional error.
114 Part (b) of ground one of the notice of appeal is upheld.