ENL21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1824

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 24 November 2021, dismissing an application of a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Protection (Subclass 866) visa (the visa). The application was dismissed after the non-appearance of the applicant at a hearing of the Tribunal.
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of Malaysia.
2. The applicant first arrived in Australia on 2 August 2017 on an Electronic Travel Authority (ETA) visa.
3. On 6 November 2017, the applicant applied for the visa, claiming that she participated in the 'Bersih 4.0 Rally' on 29 August 2015, that the rally was seeking to reform Malaysian elections, that the rally was banned by the Malaysian government. As a result of her participation in the rally, if she returned to Malaysia, she would be arrested.
4. On 12 December 2017, the delegate refused to grant the applicant the visa on the basis that they were not satisfied that s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) were met.
5. On 8 January 2018, the applicant lodged an application for review with the Tribunal. The application was lodged without representation and provided an email address (Email A) for service.
6. On 24 March 2020, the applicant emailed the Tribunal requesting to update her residential address in the Tribunal's records.
7. On 24 June 2020, a Migration Agent, emailed the Tribunal with the subject line 'Re: [APPLICANT NAME] - Request for access to documents under the Freedom of Information Act 1982'. The email stated:

We refer to the above matter and we advise that we act on behalf of the above named. Please see attached Request for access to documents under the Freedom of Information Act 1982 and copy of passport for your kind attention.

1. The email attached a copy of the applicant's passport and a signed freedom of information (FOI) request for a '[c]opy of the Department and Tribunal file'. The freedom of information request provided a phone number and email (Email B) for the Migration Agent's employer.
2. On 1 July 2020, the Tribunal released documents on the applicant's file to

the Migration Agent's employer. 3. On 20 April 2021, the applicant emailed the Tribunal requesting a Medicare letter from Email A. 4. On 5 October 2021, the Tribunal sent the applicant, via an Email, an invitation to attend a hearing listed for 9 November 2021. This was sent to the applicant's personal email address she had supplied to the Tribunal (Email A). It included information that if the applicant did not appear at the hearing the application could be dismissed without further consideration of the material before the Tribunal. 5. On 13 October 2021, the Tribunal sent the applicant, via an email to Email A, an invitation to attend a Microsoft Teams test call on 3 November 2021. 6. On 1 November 2021, the Tribunal sent the applicant, via an SMS, a reminder for the hearing to her personal phone number she had supplied in the application. 7. On 3 November 2021, the applicant failed to attend the Microsoft Teams test call. An officer of the Tribunal called the applicant's mobile phone number three times; however, the call was not answered. 8. On 8 November 2021, the Tribunal sent the applicant, via further SMS, another reminder for the upcoming hearing. Again, the calls were made to the applicant's personal mobile phone number. 9. On 9 November 2021, the applicant failed to attend the hearing. An officer of the Tribunal called her mobile phone number eight times; however, the call were not answered. No message was left on her phone number. 10. As the Tribunal determined the applicant had failed to appear, the Tribunal dismissed the application pursuant to s 426A(1A)(b) of the Act. The applicant then failed to request a reinstatement of her application within 14 days of notification of the dismissal decision. 11. On 24 November 2021, the Tribunal confirmed its dismissal decision.

1. The Tribunal's decision in this matter comprises of one page and five paragraphs.
2. At [1], the Tribunal set out the application for review.
3. the Tribunal noted on 9 November 2021, it dismissed the application under s 426A(1A)(b) of the Act because the applicant did not appear before the Tribunal to give evidence and present arguments [2].
4. At [3], the Tribunal noted that it notified the applicant of the dismissal decision and provided a copy of the reasons for the dismissal, in accordance with s 426B(5). The Tribunal advised the applicant that a reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14-day period would result in confirmation of the dismissal.
5. The Tribunal noted that the applicant failed to apply for a reinstatement of the application within the 14-day period therefore, the Tribunal was required to confirm the decision to dismiss the application [4].
6. Accordingly, at [5], the Tribunal confirmed the decision to dismiss the application for review.

1. The applicant advances two grounds of judicial review contained in an Amended Application filed with the Court on 30 June 2025. They are as follows:
   1. The Tribunal's decisions to dismiss the applicant's application for non-appearance and confirm such dismissal under s 426A were made without power because such power was not enlivened.
      1. The power arose only if the applicant was "invited under section 425 to appear": s 426A(1)(a).
      2. Notice of such invitation, was to be given according to ss 425A and 441G.
      3. On 24 June 2020, the Tribunal was informed by email from the applicant's agent that she "act[s] on behalf of" the applicant, providing her name and address: CB 110.
      4. That notification was a notified of the kind in s 441G(1)(b), appointing the agent as an authorised recipient.
      5. Accordingly, the Tribunal was to give notification of the invitation to appear to the authorised recipient: s 441G(1).
      6. However, the Tribunal did not send the invitation to the authorised recipient, and thus the applicant was not "invited under section 425 to appear".
   2. The Tribunal unreasonably exercised its discretion to dismiss the application for non-appearance and confirm such dismissal under s 426A.
      1. The applicant had personally interacted with the Tribunal in the course of her review application from lodgement in 2018 to at least 2021 (see e.g. CB 140), and had also appointed an agent in 2020 who had interacted with the Tribunal.
      2. The Tribunal failed to contract the applicant's agent despite her appointment, without explanation.
      3. The Tribunal failed to leave any voice message on the eight occasions the Tribunal apparently telephoned the applicant, without explanation.

1. Ground One is confined to whether the email from the Migration Agent to the Tribunal and its attachment, amounted to the applicant having 'giv[en] the Tribunal written notice of the name and address of another person' to 'receive documents in connection with the review'.
2. The power to dismiss an application for review for non-appearance is under s 426A(1A) of the Act. The manner in which authorised recipients were to be appointed was governed by s 441G.
3. Section 441G(1)(b) does not contemplate any particular form by which an applicant 'gives the Tribunal written notice of the name and address of another person' to receive documents.
4. While the Tribunal provides a pro-forma form that may be used to give notice, there is no statutory requirement to use the provided form: s 495 of the Act. All that is required is that some form of 'written notice' is given: Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 at [36]. The Applicant contrasted the lack of a statutory requirement in s 441G(1)(b) with ss 347(1)(a), 362(1)(a), and 412(1)(a) of the Act.
5. The phrase used by the Migration Agent, 'we advise that we act on behalf of [the applicant]', was sufficient to provide written notice that they are the authorised recipient. It was acknowledged that the attachment to the email was an FOI request, however, that does not mean the Migration Agent 'act[ed] on behalf of [the applicant]' only for the limited purpose of the FOI request. The general words used by the Migration Agent in her email did not contain any such qualification.
6. The FOI request contained the necessary notification to the Tribunal from the applicant, providing 'written notice of the name and address of...[the migration agent to] ...receive documents in connection with the review'. The language used in the FOI form was authorisation for the Migration Agent 'to access the documents containing my [the applicant's] personal information'.
7. The email attachment from the Migration Agent provided to the Tribunal, included the information page from the pro-forma form (MR5), which is not required, but commonly used to notify the Tribunal of an authorised recipient. The inclusion of that page and the totality of evidence, when objectively assessed, suggests that the Migration Agent's email amounted to the applicant having given 'the Tribunal written notice of the name and address of another person... authorised by the applicant to receive documents in connection with the review'.
8. Following the applicant notifying the Tribunal she had appointed her Migration Agent as an authorised recipient, the Tribunal failed to provide all subsequent correspondence to the agent, particularly the hearing invitation under s 425 of the Act, and therefore the precondition for the non-appearance dismissal power under s 426A(1A) was not met.
9. Accordingly, the non-appearance decision, and subsequent confirmation decision, was made without the power to do so, constituting a jurisdictional error.
10. By Ground Two, the applicant contends that the Tribunal did not act reasonably when it dismissed the application for non-appearance.
11. The Tribunal could have, amongst other things, rescheduled the hearing, or delayed its decision: s 426A(2). The Tribunal was bound to exercise the power to dismiss for non-appearance reasonably: AZAFB v Minister for Immigration and Border Protection [2015] 224 FCR 144 at [19].
12. The applicant had demonstrated to the Tribunal, her genuine intention to participate in the review process as evident by making a meaningful and atypical protection claim; by providing her personal information to the Department as requested; by corresponding with the Tribunal; by appointing (or attempting to appoint, even if only for a limited purpose) a Migration Agent; by engaging with the Tribunal; and by calling the Tribunal on at least two occasions in connection with her review.
13. On the eight occasions the Tribunal attempted to call the applicant at the hearing, the Tribunal failed on any occasion to leave a voicemail. The Tribunal made three calls in relation to the Microsoft Teams test call and likewise did not leave a voicemail. The Tribunal records claim that 'no other number is listed on case', a claim that is factually wrong as the Tribunal had the Migration Agent's phone number in the file.
14. The evidence before the Tribunal indicated that the applicant genuinely intended to engage with the Tribunal and that the case was not an 'enough is enough' case: Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [81] - [82]. The applicant was not dilatory before the Tribunal, consistent with her timely application for judicial review.
15. In a consideration of reasonableness, the Tribunal at least ought to have assessed the language of the Migration Agent's email, 'we act on behalf of [the applicant]', according to the Tribunal's own practice guidance. The Applicant cited the Tribunal's 'Procedural Law Guide' providing:

8.8.9 If there is any ambiguity as to whether the applicant had provided notice of an authorised recipient, or who that person is, the Tribunal may contact the applicant and seek clarification.

1. No such clarification was sought and that ought to have been apparent to the Tribunal on 9 and 24 November 2021, the date of the decisions in question. The Tribunal should be held to the standards it had set publicly for itself, and it would be unreasonable for the Tribunal to not follow said standards.

1. Ground One is confined to whether the Migration Agent's email on 24 June 2020 and its attachments amounted to written notice of the name and address of another person authorised by the applicant to receive documents in connection with the review pursuant to ss 425A and 441G of the Act.
2. The email and associated attachments did not amount to written notice that an authorised recipient was being appointed for the purposes of the review. In order to satisfy s 441G(1), a written notice must be clear and unequivocal, it is not sufficient that a name and address of a person with some 'tenuous unclear and uncertain relationship with the review' are provided to the Tribunal: Somjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219 at [57].
3. It is insufficient that on 'one possible, or even open reading' of the email of 24 June 2020 (including the attachments), from the applicant's Migration Agent to the Tribunal, that it could be inferred that those documents were to notify the Tribunal that the Migration Agent was an authorised recipient. The email and its attachments do not provide sufficient clarity that the Migration Agent was being appointed by the applicant to receive documents in connection with the review.
4. The applicant has placed too much emphasis on the phrase, 'we advise that we act on behalf of' however, and has ignored the remainder of the sentence, 'we refer to the above matter'. The 'above matter' referred to the subject line of the email, '[APPLICANT NAME] - Request for access to documents under the Freedom of Information Act 1982'. The email did not quote the applicant's case number or give indication that the Migration Agent was acting in relation to the application for merits review. Consistent with the attachment, a FOI request, the email was sent to the Tribunal's FOI email address, and not to the email address provided in relation to the merits review application.
5. Whilst it is conceded that it was not a statutory requirement for an applicant to use the pro-forma form (MR5) when appointing an authorised recipient, the applicant's decision not to use the specific form prepared for the purposes of appointing an authorised recipient remained relevant to the objective assessment of whether the applicant gave written notice of an authorised recipient.
6. With regard to the inclusion of the information page from the pro-forma form (MR5) in the FOI request, the inclusion of solely the information page, whilst excluding the page concerning the appointment of authorised recipients, supports the objective conclusion that the FOI documentation did not amount to written notice of the appointment of an authorised recipient.
7. The applicant did not appoint an authorised recipient under s 441G(1) of the Act, which resulted in the Tribunal sending the hearing invitation to the applicant's last known email address. Accordingly, the hearing invitation was validly issued under s 425 and the Tribunal was empowered to dismiss the application for non-appearance.
8. Ground Two alleges that the Tribunal, in exercising its statutory discretion under

s 426A(1A)(b) to dismiss the application, exercised that power outside the bounds of legal reasonableness: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [4]. An assessment of legal reasonableness is to be undertaken with reference to the circumstances existing at the time of the relevant decision, that were known to the decision-maker, and the subject matter, scope and purpose of the Act: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [21]; Li at [23], [26]. 9. Under s 426A(1A)(b), legal unreasonableness will not occur merely because the Tribunal could have elected not to dismiss the application: SZVFW at [15] - [16]. The Tribunal was within the bounds of legal reasonableness, to exercise its free discretion to make whatever decision it wished under s 426A(1A): SZVFW at [97]. 10. Nothing in the circumstances of the case took the Tribunal into the 'realm of the extraordinary': SZVFW at [70]. The applicant's submission that because she made a 'meaningful and atypical protection' claim, invites the Court to, in an assessment of legal reasonableness, determine whether the applicant's claim had merit and was not a stereotypical claim, however such action would be impermissible: Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at [35] - [36]. In any event, the power conferred by s 426A(1A) is to be exercised 'without any further consideration of the application or information before the Tribunal'. 11. Whilst the applicant claims that it is 'inexplicable' that the Tribunal failed to leave a voicemail on any of the eleven occasions it attempted to call the applicant, such a submission ignores the fact that the Tribunal sent the applicant two SMS reminders which provided the same information that the applicant claims ought to have been conveyed via voicemail. 12. As addressed in Ground One, the Migration Agent was not an authorised recipient and therefore the Tribunal's decision to not contact the Migration Agent who had made the FOI request was unremarkable. Whilst the applicant cites the Tribunal's 'Procedural Law Guide', such document does not assist as it is neither a practice direction nor a policy. The applicant bears the onus of establishing the relevance of that document and how it informs an assessment of reasonableness. The quoted portion of the Procedural Law Guide does no more than state that the Tribunal may contact an applicant to seek clarification, it does create an obligation on Tribunal during its exercise of s 426A(1A). 13. Whilst the applicant claims that she had a desire to 'participate in the process', she merely updated her residential address, requested a Medicare letter, and via her Migration Agent, lodged an FOI request. The applicant's communications with the Tribunal did not provide the Tribunal with reasons to think her non-appearance at the hearing was out of character: Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393. 14. Whilst the applicant refers to her timely application for judicial review, such a consideration is entirely irrelevant as that course of action occurred after the Tribunal's decision, and therefore was not a circumstance within the knowledge of the Tribunal.

1. Ground One is a claim that the applicant validly notified the Tribunal that she had a Migration Agent representing her and that the hearing invitation was not sent in pursuance of ss 425A and 441G of the Act.
2. This ground presupposes that the correspondence from the Agent was sufficiently clear in identifying that the Agent was the 'authorised recipient' for the purposes of notifications connected with the review.
3. I do not accept this submission. The correspondence from the Agent [CB 110] Dated 24 June 2020, had the subject heading: '[Applicant Name] - Request for access to Documents under Freedom of Information Act 1982'. The body of the email stated 'We refer to the above matter and advise we act on behalf of the abovenamed. Please see attached a Request for access to documents'. Attached to the email was a Tribunal document used for the purpose of seeking documents under the FOI Act.
4. It is common ground between the parties that s 441G(1)(b) does not contemplate any particular form by which the applicant appoints an authorised recipient for the provision of information. This then requires the Court to determine objectively whether the email of 24 June 2020 was sufficiently clear to appoint the Migration Agent as her representative for the provision of information, or whether that email was restricted to a FOI request only.
5. Given the subject title of the email begins with "FOI request" followed by a subject heading of "Request for Access of documents", I am satisfied the email and request contained therein were restricted to the Agent acting on behalf of the applicant for the purposes of the FOI request only and not for the purposes of the review generally.
6. In coming to this view, I note that the email was sent to the Tribunal's FOI Email address and not to the general review email address. I accept the respondent's submission that the notice was not clear and unequivocal, rather the construction sought to be placed on the correspondence is at best a 'tenuous, unclear and uncertain relationship with the review': Somjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219 at [57]. The email is capable of being read as the Agent only acted for the applicant in relation to the FOI request.
7. I note that the Agent did include the second page of Tribunal form MR5, which relates to the appointment of an authorised recipient. Significantly, the document did not attach the critical page which was the actual appointment form.
8. In these circumstances, I am not satisfied, based on the totality of the objective evidence before me, that the applicant clearly appointed the Migration Agent, the author of the FOI request, as an authorised recipient for the purpose of other correspondence from the Tribunal.
9. The applicant also seeks to rely upon paragraph 8.8.9 of the Tribunal's 'Procedural Law Guide' to suggest that as there was ambiguity as to whether the applicant had provided notice as to an authorised representative the Tribunal may contact in substitution of the applicant. First, the Procedural Law Guide is not binding, rather a suggested practice. Second, in my view, the correspondence from the Migration Agent was not ambiguous, rather it was clear the Migration Agent was instructed for the purposes of an FOI application only and not generally.
10. Ground One has no merit.
11. That being the case, I am satisfied that the applicant was validly invited to attend a hearing of the Tribunal in relation to her matter under s 425 of the Act.
12. Ground Two is a submission that the Tribunal acted unreasonably in first dismissing the application, and then confirming that dismissal.
13. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Li) at [28]; or where a decision has been made that lacks an "evident and intelligible justification"; Li at [76]. The test for unreasonableness is "stringent" and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
14. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

1. It is common ground between the parties that the Tribunal took a number of steps to ensure the applicant was aware of the hearing time date and place. First, this included a written notification to the applicant at her nominated personal email address. It is not suggested that this notification did not comply with all relevant requirements.
2. Second, three attempts were made prior to the hearing date to telephone the applicant on her personal telephone number to 'test' whether a video connection to the Tribunal would work. The applicant was also sent two text messages reminding her of the hearing time and date together with a telephone number to contact prior to the actual hearing date.
3. Third, on the day of the hearing, no less than eight telephone calls were made to the applicant's mobile telephone number. Each was unanswered. The applicant complains that the Tribunal did not leave a voice message. I consider this to be of no consequence. There was no requirement for the Tribunal to do so. I do not consider the failure to leave a voice message unreasonable, to the extent of reaching the stringent threshold of jurisdictional error. It was within the legitimate bounds of decisional freedom, in all the circumstances of the case, to first dismiss the matter, and then in compliance with the provisions of the Act, to confirm the dismissal after 14-days_._
4. Ground Two also has no merit.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.