Donado v Minister for Immigration and Citizenship [2025] FedCFamC2G 1244

Donado v Minister for Immigration and Citizenship [2025] FedCFamC2G 1244 | Case summary | Zoe

Parties

Applicant/Plaintiff:

Donado

Respondent/Defendant:

Minister for Immigration and Citizenship [2025] FedCFamC2G 1244

Legislation Cited (1)

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Cases Cited (4)

The Minister contends that this application for judicial review turns on a simple point. As the applicants did not seek reinstatement of their review application within the prescribed period, the Minister submits that the Tribunal had no lawful ability to do anything other than confirm the dismissal of the application: FGB17 v Minister for Home Affairs [2019] FCA 725, at [12] (per Yates J); AYT16 v Minister for Immigration and Border Protection [2017] FCA 252, at [10] (per Perram J).
In his oral address, Mr Daly submitted that although one might have sympathy for the applicants' predicament, the decision made by the Tribunal was not unreasonable. The Minister submitted that the medical certificate provided in support of the adjournment application, contained very limited information. The applicant was informed about the Tribunal's concern and had an opportunity to provide more information, but did not. Mr Daly submitted that the letter dated 30 January 2020 from the Tribunal to the applicant's representative should have prompted an astute representative to obtain and provide more information about their client's medical condition.
Mr Daly also submitted that the Tribunal was cognisant of the fact that there had been a previous postponement of the hearing and was entitled to take that into account. He also reminded the court that the Tribunal waited for the applicants to attend on the day of the hearing and took steps to contact the applicant before dismissing the matter more than an hour after the scheduled commencement time.
In his oral submissions Mr Daly also pointed out that it was open for the second applicant to attend the Tribunal hearing and give information as to the first applicant's whereabouts or why she could not attend. No explanation was given for the second applicant's nonattendance.

I accept the Minister's submissions. In relation to the confirmation decision made on 17 February 2020, it was not open to the Tribunal to have made any other decision in the circumstances.
In respect of the invitation to the initial hearing, the Tribunal complied with its procedural fairness obligations under Part 5, Division 5 of the Act as it was at that time. The hearing invitation dated 14 January 2020 complied with ss 360 and 360A of the Act in that it (1) gave notice of the day, time and place of the scheduled hearing; (2) was sent by email to the last email address provided in connection with the review; (3) complied with the prescribed notice period; and (4) contained the statement required by s 362B of the Act. Compliance with those legislative requirements was sufficient to enliven the Tribunal's power to dismiss the application for non-appearance.
Further, and in any event, I am satisfied on the available evidence that the applicant herself was aware of the scheduled hearing time. I accept that there may have been communication issues between the applicant and her representative and perhaps even an assumption on her part that the medical certificate would have been enough to secure an adjournment. But the Tribunal made clear in correspondence to the applicants' nominated representative that the adjournment request been considered and it was not satisfied about the sufficiency of the information provided in support of it. I agree with the Minister that once appraised of the Tribunal's position, it remained open to the applicants' representative to provide additional information to persuade the Tribunal otherwise. There was an evident and intelligible justification for the Tribunal's refusal to postpone the hearing.
When the applicants failed to attend, and after efforts were made to contact them, there was no error in the Tribunal's decision to dismiss the application without further consideration of the application or the information before it.
The remaining substantive question is whether the applicant has demonstrated any jurisdictional error in the Tribunal's decision to confirm the dismissal.
In Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459; [2018] FCAFC 184 the Full Court (Kenny, Bromberg and Colvin JJ) neatly explained the statutory context applying to a reinstatement application. Their Honours said:

(2018) 266 FCR 459

(2007) 159 FCR 199

In deciding whether there was jurisdictional error by the Tribunal, it is also necessary to consider the statutory context in which a reinstatement application may be brought. When there is an application for review under Div 5 of Pt 5 of the Migration Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the decision under review (save in circumstances that are not applicable for present purposes): s 360(1). If an applicant is invited to appear, but does not do so, then the Tribunal can make a decision on the review without taking further action to allow the applicant to appear or it can dismiss the application without any further consideration: s 362B. If the latter course is followed then the applicant may apply to reinstate the proceedings within 14 days and the applicant must be notified of that statutory right within 14 days after the dismissal: s 362B(1B) and s 362C(5).
The evident purpose of the right to apply for reinstatement is to provide an avenue by which the application may be dealt with on the merits rather than dismissed procedurally. It is a protection that is only afforded if there is due consideration of the reasons advanced on a reinstatement application. If consideration on a reinstatement is confined to whether a person has been "correctly notified" then little purpose would be served by the statutory provision allowing for an application to reinstate. It would confine reinstatement to those instances where the Tribunal itself had not followed the notification procedure in the Migration Act. However, there would be no need for such a right because a dismissal that occurred without proper notification would be no dismissal at all. As I have noted there is a statutory obligation to notify an applicant of a scheduled hearing. Further, the Migration Act is quite specific about how the notification is to be given: s 360A. Satisfaction of such requirements is necessary in order for the power to make a decision on the review to be enlivened: SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63; (2007) 159 FCR 199 at [29]- [30] (Besanko J, with whom Moore J agreed at [1]) and [53] (Buchanan J).
Even so, it is for the applicant to advance the application for reinstatement and any material relied upon. After all, such an application is only made in circumstances where the applicant has failed to appear at a scheduled hearing.

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)