ETA20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 398

1. Before this Court is an application filed on 10 November 2020 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 October 2020. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate), dated 5 May 2017, to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
2. This is a case about whether the applicant was afforded procedural fairness. The applicant claims that he did not receive an invitation to the Tribunal hearing and that the Tribunal was required to send the invitation to his postal address. He claimed that the Tribunal was required to consider the merits of the case, rather than dismissing the application. He also claims that an agent committed fraud. The first respondent opposes the application.
3. A hearing of this matter took place at the Sydney Registry of the Court on 18 November 2025.
4. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
5. The application is dismissed for the reasons that follow**.**

1. The applicant is a citizen of China (Court Book (CB) 42). The applicant arrived in Australia on 12 December 2016 on a Visitor Visa (Subclass FA-600) (CB 65).
2. On 28 February 2017, the applicant applied to the Department of Home Affairs (Department) for the protection visa (CB 1-41).
3. The applicant claimed to fear arrest and imprisonment in China on the basis that he had been convicted of obstructing the economic development of his family's land by the local government and had slandered Chinese officials (CB 36).
4. On 5 May 2017, the Department refused to grant the applicant the protection visa, finding that the applicant did not meet the requirements under s 36(2) of the Act (CB 61).
5. On 29 May 2017, the applicant applied to the Tribunal for review of the Department's decision (CB 73-74).
6. On 29 May 2017, the Tribunal acknowledged the application (CB 76) by way of email to his authorised recipient as nominated in his application for review (CB 74). In the acknowledgment letter, the applicant was invited to provide material and written arguments for the Tribunal to consider (CB 77).
7. On 11 June 2019 the applicant sought to update his contact details (CB 79). He attached a completed 'Change of Contact Details - MR Division' form (change of contact details form) and nominated his own email address for all future correspondence (CB 81-82).
8. On 12 June 2019, the Tribunal sent the applicant a letter by way of email which confirmed that his application was pending for the purpose of his Medicare eligibility (Affidavit of Tutti Copping on 3 November 2025 (Minister's Affidavit), pp.23-24).
9. On 7 May 2020, the applicant informed the Tribunal that his Medicare card had expired and requested a further confirmation letter (Minister's Affidavit, p.23).
10. On 14 September 2020, the Tribunal invited the applicant to attend a hearing by telephone on 30 September 2020 (CB 84-85). The invitation was sent to the applicant's email address as nominated in the change of contact details form (CB 81). In the hearing application letter, the applicant was invited to provide any documents he intended to rely on at least 7 days before the hearing. In the letter, the Tribunal also requested that the applicant advise the Tribunal if the recorded telephone number was not the applicant's correct number.
11. A Tribunal hearing was held on 30 September 2020. The applicant did not attend the hearing (CB 91-93). The Tribunal made three attempts to contact the applicant on his telephone, however the applicant did not answer. At 3.00pm the Tribunal member recorded the hearing as a 'No Show' (Minister's Affidavit, p.5).
12. On 30 September 2020, the Tribunal dismissed the application without further consideration pursuant to s 426A(1A)(b) of the Act, as the applicant had not appeared at the scheduled hearing (CB 97). The applicant was notified of this decision on 2 October 2020 by way of email to his nominated address. In the attached letter, the applicant was notified that reinstatement must be applied for by 16 October 2020 (CB 95).
13. On 22 October 2020, the Tribunal confirmed the decision to dismiss the application as the applicant had not applied for reinstatement (CB 103-104). The applicant was notified of this decision on the same day by way of email to his nominated address (CB 102).

Dismissal Decision dated 30 September 2020 (Dismissal Decision)

1. The Tribunal recorded that the applicant was invited under s 425 of the Act to appear by telephone before the Tribunal (CB 97 (TD [1])), and that the Tribunal had sent SMS reminders about the hearing (CB 97 (TD [1])).
2. The Tribunal recorded that the applicant did not appear before the Tribunal (CB 97 (TD [2])).
3. The Tribunal dismissed the application under s 426A(1A)(b) of the Act (CB 97 (TD [3])).

Confirmation Decision dated 21 October 2020 (Confirmation Decision)

1. The Tribunal confirmed the decision to dismiss the application as the applicant did not apply for reinstatement of the application within the 14-day period (CB 104 (TD [2]-[4])).

1. The applicant applied to this Court for judicial review in an application filed on 10 November 2020.
2. The applicant also filed an affidavit deposed on 10 November 2020 attaching a copy of the Tribunal Decision and containing a number of statements.
3. The matter was docketed to me on 6 August 2025. By orders of the Court on 8 September 2025, the applicant was ordered to file and serve an amended application, any affidavit evidence and submissions by 4pm on 20 October 2025. No documents were filed.
4. The applicant's grounds for judicial review are set out in the application filed on 10 November 2020. The applicant seeks orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
5. On 18 November 2025 the applicant appeared before this Court as a litigant in person. Mr Sheedy from Sparke Helmore appeared for the Minister. A Mandarin interpreter assisted the Court. The applicant confirmed that he could understand the interpreter.
6. The following documents were before the Court - the initiating application for judicial review filed on 10 November 2020, the supporting affidavit of the applicant filed on 10 November 2020, a Court Book (numbering 104 pages and marked as Exhibit 1R) filed 22 January 2021, written submissions of the Minister filed on 3 November 2025, an affidavit of Bethany McNamara, a solicitor from Sparke Helmore, affirmed on 4 November 2025 and an affidavit of Tutti Copping, also from Sparke Helmore, affirmed on 3 November 2025 which annexed a number of documents that had been omitted from the Court Book. The affidavits were read in Court, and statements contained in the applicant's affidavit were treated as submissions by this Court, with no objection from the Minister.
7. The solicitors for the Minister in written submissions filed 3 November 2025 noted that the applicant had forward to their office an affidavit deposed on 27 November 2020 (27 November Affidavit), which had not been filed. As model litigant, the Minister did not object to the filing of this Affidavit on the basis that the applicant could be cross examined as to the new evidence contained therein.
8. At the hearing, the applicant sought leave to amend his application to include a ground of fraud by a third party. Given that the applicant was a litigant in person and there was no objection by the Minister, I granted leave for amendment of the application and ordered that the Court dispense with compliance with r 1.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). I also granted leave for the November Affidavit to be read.

1. A court has an intrinsic duty to assist unrepresented litigants: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Hamod v New South Wales [2011] NSWCA 375 per Beazley JA (Giles and Whealy JJA agreeing). At [309] to [316] in Hamod, Beazley JA outlined the relevant principles in ensuring there is the right balance between impartiality and assisting litigants in person (citations omitted):
   • The duty reposes in the individual judicial officer hearing a case.
   • The touchstone is that of fairness.
   • The duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented.
   • Trial judges should ensure that litigants do not remain ignorant of fundamental procedures which if invoked may prove advantageous.
   • The court has an obligation to ensure a fair trial for all parties such that the impartial function of the judge should be preserved, and no advice should be given as to how rights should be exercised.
   • The unrepresented litigant should have sufficient information about the practices and procedure of the court so far as reasonably practicable for the purpose of ensuring a fair trial.
2. These principles apply in civil cases: Mortimer J in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [70] - [75]. Mortimer J referred to various authorities noting that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. She endorsed the approach of Smith J in Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, 15 September 1997) at [9] who observed that while judges should maintain neutrality, the boundaries of legitimate intervention are flexible.
3. In the case before me, I confirmed that the applicant had a copy of the Court Book and the Minister's submissions. These submissions were interpreted for the applicant. At the hearing I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the applicant were to succeed in his application. I explained that jurisdictional error is a kind of serious legal error and outlined some common categories, noting that these categories were not exhaustive. I explained that the Court cannot undertake a merits review of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The applicant confirmed that he understood.
4. During the hearing I took the applicant through the grounds for review advanced in the application, and provided the applicant with an opportunity to provide further particulars of each of the grounds, and to make oral submissions (in accordance with principles in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 per Feutrill J at [22] and [25]). I also explained the principles of admission of new evidence and the purpose of cross examination.

1. The function of this Court is to review the Tribunal Decision and determine whether the Tribunal has fallen into error.
2. Section 476 of the Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
3. A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
4. The role of judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allsop J, Besanko and O'Callaghan JJ at [17] as follows:

...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2-3] (footnotes omitted):

Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. The Tribunal was required to consider whether the applicant met the legislative criteria for a Protection (Class XA) (Subclass 866) visa.
2. Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Migration Regulations 1994 (Cth) (Regulations) prescribe the criteria for classes of visas: s 31(1) and (3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
3. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act. The Tribunal considers the criteria on review.
4. Subsections 36(2)(a) and 36(2) (aa) of the Act set out the criteria for a protection visa.
5. Section 425 of the Act requires the Tribunal to invite the applicant to a hearing:

425 Tribunal must invite applicant to appear

(1) The Tribunal must invite 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.

...

1. Section 426A of the Act applies if the applicant does not appear at a hearing:

426A Failure of applicant to appear before Tribunal

Scope

(1) This section applies if the applicant:

(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 of information before the Tribunal.

Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part

...

(1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

...

Other measures to deal with failure of applicant to appear

(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

426B Failure to appear - Tribunal's decisions, written statements and notifying the applicant

Decisions to which this section applies

(1) This section applies in relation to the following decisions (each of which is a non‑appearance decision):

(a) a decision to dismiss an application under paragraph 426A(1A)(b);

(b) a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.

Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.

Written statement of decision

(2) If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:

(a) sets out the decision; and

(b) sets out the reasons for the decision; and

...

CONSIDERATION - WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?

1. The applicant has alleged that he was denied procedural fairness by the Tribunal. In submissions made at the hearing before me, he said that it was unfair that he had not had a Tribunal hearing. The grounds advanced by the applicant are considered below.

1. The applicant contends that the first ground of jurisdictional error was:
   1. I have never received an invitation to a hearing.
2. At the hearing before me I invited the applicant to make submissions in relation to this Ground, but the applicant said he did not wish to do so. The applicant's evidence in the 27 November Affidavit was that he never received any email, text or call from the Tribunal.
3. Section 425(1) of the Act at the relevant time required that the Tribunal must invite 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. The Tribunal is required to send an invitation to a hearing pursuant to s 425 of the Act by one of the methods specified in s 441A of the Act: s 425A(2). The Tribunal is permitted to give documents by means of email: s 441A(5) of the Act.
4. In this case, the nominated email address was the applicant's email address. On 11 June 2019 the applicant had emailed the Tribunal (CB 79). He said that (reproduced without alteration):

Also, I want to change the authorized recipient to myself and all correspondences should be sent to my own email address.

1. He provided an email beginning with 'shu' (CB 82).
2. In the attached 'change of contact details' he inserted his own name as well as a postal address, telephone number and the email beginning with 'shu'. He inserted his own name as the 'representative'. He said that 'I now wish all correspondence to be sent to me'. He said 'I agree to you sending all correspondence by email' (CB 82).
3. On 30 September 2020 the Tribunal sent an invitation to the hearing to the nominated email address (CB 84).
4. The email was deemed to have been received by the applicant on the same day it was sent: s 441C(5) of the Act. This provision applies even if the applicant did not 'receive' the email: Ahmad v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 897 (Ahmad) at [46] - [47]. The relevant statutory scheme deems receipt: Ahmad at [47].
5. Notably, on 7 May 2020 the applicant had emailed the Tribunal from this nominated email address and requested a letter to be used for Medicare purposes (Minister's Affidavit, p. 23)).
6. Furthermore, as set out in the Minister's Affidavit, on 23 and 29 September 2020, even though not required to do so, in addition to the formal hearing invitation by email, the Tribunal also sent the applicant SMS reminders to the applicant's nominated telephone number (Minister's Affidavit, p.5). Furthermore, an officer of the Tribunal called the applicant with the assistance of an interpreter on 23 September 2020 and left a message requesting that any pre-hearing submissions be sent as soon as possible (Minister's Affidavit, p.6).
7. In contrast to the evidence in the Court Book about these notifications, in the 27 November Affidavit the applicant claimed that on 11 June 2019 he appointed Jenny Li of Success 4 U Consultancy to act for him in his application for review with the Tribunal. The applicant claimed in evidence to this Court that Ms Li did not contact him to tell him of the invitation to hearing. He also said that he did not receive any emails or messages from the Tribunal.
8. At the hearing before me, under cross examination, the applicant accepted that the Tribunal file showed that SMS reminders were sent to his telephone (Tp 13.36-14.6). He did not accept that he was notified of the hearing by SMS (Tp 14. 26-34). He said that he does not speak English and there was a lot of fraudulent information on mobile telephones. He said that he deleted the SMS messages without reading them (Tp 15.1-5). He said that he also did answer the telephone although he was called by the Tribunal three times in 45 minutes on 30 September 2020. He said that he thought that the calls were fraudulent (Tp 15.1-17).
9. Mr Sheedy in cross-examination referred the applicant to a note on page 5 of the annexure to the Minister's Affidavit. In a file note dated 24 September 2020 a Tribunal officer said:

I called applicant via interpreter and left message that any pre-hearing submissions be sent in ASAP.

1. The applicant said at the hearing before me that he could not understand the message as a lot of telephone calls were fraudulent and he did not answer telephone calls unless they came from his contacts (Tp 15.15-18).
2. In cross examination, when asked by Mr Sheedy why he did not contact Ms Li to check his visa status, he said that she did not contact him until the decision was made by the Tribunal. He said that she had told him she would contact him when the Tribunal made the decision and it was 'impossible' for him to make enquiries every week. He said he was content for her to manage the Tribunal proceedings (Tp 19.29-40).
3. The Minister contended that it was not credible that the applicant would receive multiple telephone calls and messages from the Tribunal without knowing of the hearing. I accept this submission. The applicant had informed the Tribunal that he was the authorised recipient, and all correspondence should be sent to him. The Tribunal was entitled to rely on this information. Letters relating to Medicare were sent back and forth to this email address indicating it was in active use. Furthermore, in addition to an invitation to hearing being sent by means of email, SMS messages and a telephone message with the use of an interpreter were left for the applicant.
4. I am satisfied that an invitation to hearing was sent in accordance with the legislative requirements. I am satisfied that the applicant was notified of the hearing and that he was aware of it. I do not accept his evidence to this Court that he ignored the messages sent to him by means of telephone and text, given the multiple methods used and the fact that he had nominated himself as recipient.
5. There was no jurisdictional error by way of failure to invite or notify the applicant of a hearing.

1. The applicant contended that the second ground of review was that:
   1. I have never received any notification by email, text messages or letter to my postal address regarding the hearing.
2. At the hearing before me, the applicant did not wish to further particularise or make any further submissions in relation to this Ground.
3. As referred to in Ground 1, the nominated email address was the personal email address provided by the applicant on 11 June 2019 (CB 79).
4. The applicant consented to receiving correspondence from the Tribunal via email: (CB 82).
5. The method the Tribunal uses to ensure that an applicant receives the invitation was a matter for the Tribunal (Minister for Immigration & Border Protection v Kim [2014] FCA 390; (2014) 220 FCR 494 (Kim)). There was no obligation for the Tribunal to provide an invitation by post: Kim at [60]; BHJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3065 (BHJ20) at [60].
6. Furthermore, as referred to in preceding paragraphs, even though not required to do so, on 23 and 29 September 2020, the Tribunal sent the applicant SMS reminders to the applicant's nominated telephone number (Minister's Affidavit, pp. 5-6). An officer of the Tribunal also called the applicant with the assistance of an interpreter on 24 September 2020 and left a message requesting that any pre-hearing submissions be sent as soon as possible (Minister's Affidavit, p. 5).
7. There is no jurisdictional error disclosed in Ground 2.

Ground 3 - dismissal without consideration of merits

1. The applicant contended that the third ground of review was that:
   1. My application was dismissed without even being assessed.
2. At the hearing before me, the applicant refrained from providing further particulars or making submissions on Ground 3.
3. In this ground, the applicant appears to be claiming that instead of dismissing his matter, the Tribunal should have considered it on the merits, and in not doing so, it fell into jurisdictional error.
4. Sections 426A(1A)(b) of the Act provides:

...

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

Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

1. The background to the dismissal in the case before me was as follows. On 14 September 2020 the Tribunal invited the applicant to a hearing (CB 84-85). The applicant did not respond to the hearing invitation and on 30 September 2020 the applicant did not attend the hearing (CB 91-93).
2. On 30 September 2020 the Tribunal dismissed the application pursuant to s 426A(1A)(b) of the Act and notified the applicant on 2 October 2020 (CB 95-96, TD [3]).
3. On 21 October 2020 the Tribunal confirmed the dismissal (CB 97).
4. The applicant has complained to this Court that the Tribunal did not assess the merits of his case. However, the Tribunal was not required to consider the merits of his claims when dismissing his application under s 426A(1A)(b) of the Act as this provision provides that the Tribunal may by written statement under s 426B of the Act dismiss the application without any further consideration of the application or information before the Tribunal.
5. A decision to dismiss must be exercised reasonably (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW)) keeping in mind the objectives of the Act. In SZVFW, Chief Justice Kiefel at [13] observed that 'clearly enough' s 426A is directed to the aims of efficiency contained within the statutory objective of 'providing a mechanism of review that is fair, just, economical, informal and quick'.
6. In SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295 (SZHSQ) at [57] the Court considered the significance of protection visa cases and that:

It is therefore a serious step for the Tribunal to decide, when the applicant has been asked to appear and, as in this case, has said that she wanted to appear, simply to rely on her non-attendance without more.

1. In the matter before me it was open for the Tribunal to dismiss the matter on 30 September 2020 as the applicant had been validly invited to the hearing (as considered in preceding paragraphs) and did not attend. In his invitation to hearing letter he had also been invited to provide documents seven days prior to the hearing, and he did not do so. He did not provide a reason for non-attendance and had not engaged with the Tribunal about the hearing. Furthermore, although the Department had invited the applicant to attend a hearing (CB 57), the applicant did not attend the hearing with the delegate, and no reason was provided (CB 66).
2. The decision to dismiss was enlivened by the applicant's failure to attend the hearing after being properly notified: s 426A(1E) of the Act. There was no obligation to provide reasons: SZHSQ at [60]. However, the Tribunal did so, explaining that the Tribunal was satisfied that the applicant had been properly invited to the hearing, the invitation had not been returned to sender and on 7 May 2020 the applicant had sent an email from the address to request a letter from the Tribunal to present to Medicare (CB 97, TD [2]). The Tribunal also noted that it had sent the applicant two separate SMS reminders about the hearing and that on the day of the hearing a Tribunal officer telephoned the applicant three times.
3. The applicant was advised that he could apply for reinstatement within 14 days, in compliance with s 426B(6) of the Act (CB 95-96).
4. In my view there was no unreasonableness in the decision to dismiss, as the invitation to the hearing was sent in accordance with the legislative requirements and the applicant did not respond to the hearing invitation or attend the hearing on 30 September 2020 despite multiple methods of notification.

(a) As mentioned in preceding paragraphs, the invitation to hearing was sent to the nominated email address on 14 September 2020 (CB 84-85). The invitation complied with the legislative requirements as it:

(b) provided the day, time and place of the hearing: s 425A(1) of the Act;

(c) was given to the applicant by one of the methods specified by s 441A (transmitted by email to the nominated email address): s 425A(2) of the Act;

(d) specified a period of notice of the hearing greater than 14 days: s 425A(3) of the Act and r 4.35D(3)(b)(i) of the Regulations; and

(e) contained a statement of the effect of s 426A of the Act: s 425A(4) of the Act.

1. In BHJ20 at [76]-[81], Judge Kendall distinguished the case of SZHSQ where the court found a dismissal to be unreasonable. In SZHSQ, the applicant had responded to the hearing invitation, which did not happen in the case before me. In BHJ20, as in the case before me, there was a proper invitation to hearing and a lack of response to the hearing (at [78]).
2. The case before me can also be distinguished from BYC24 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 1661 (BYC24). In that case Judge Doust found that it was arguable that the Tribunal had acted unreasonably by dismissing an application for non-appearance. In BYC24, there had been no communications with the applicant for six years. However, in the case before me the applicant had updated his contact details on 11 June 2019. On 7 May 2020, the applicant informed the Tribunal that his Medicare card had expired and requested a further confirmation letter (Minister's Affidavit, p.23). The invitation to hearing was sent in September 2020 to the same address that the applicant had used in these communications. The fact that he had been in contact from that address indicated that the address was in use.
3. In MZALO v Minister for Immigration and Border Protection [2016] FCA 1339 at [28] her Honour Justice Mortimer considered a matter where there had been dismissal for non-attendance and found that there was no unreasonableness in the decision of the Tribunal to dismiss. In that case there had been little contact with the applicant. Her Honour said at [24]:

This is not a case where there had been a pattern of close contact with the Tribunal such that it was reasonable to expect the Tribunal to take the short and simple step of making a phone call to the appellant to see why she had not attended the hearing.

1. Importantly in this case, the Tribunal did take that 'short and simple step', and in fact took more than one step to try and contact the applicant, given there had been some contact with the applicant on 11 June 2019 and 7 May 2020. When the applicant did not attend the Tribunal hearing on 30 September 2020 (CB 91-93), the Tribunal made three attempts to contact the applicant on his telephone, however the applicant did not answer. The Tribunal also left a message with the assistance of an interpreter (Minister's Affidavit, p. 5).
2. In the case before me, there was no indication that the applicant would attend on a later date given the lack of response to the hearing invitations and later attempts to contact the applicant. For these reasons, it was reasonable for the Tribunal to exercise the discretion.
3. There was also no jurisdictional error in the decision to confirm the dismissal on 21 October 2020. The applicant had been provided with a written statement setting out the reasons for decision as required by s 426B(2) and (5) of the Act (CB 95-96). The notification included a statement which described the effect of s 426A(1B)-(1F) of the Act - the possibility of reinstatement and the consequences should he fail to apply: s 426B(6) of the Act (CB 95-6). The dismissal decision was given to him within 14 days of the decision by one of the methods specified by s 441A: s 426B(5) of the Act (CB 104).
4. The Tribunal was not required to consider the merits of the case when dismissing the application: 426A(1A)(b) of the Act; BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 (BYF16) at [21].

1. In the Affidavit deposed on 27 November 2020, the applicant made the following assertions:
   • Soon after arrival in Australia he appointed Good Fortune Co as his agent.
   • He did not attend his Departmental interview as he was sick.
   • On 11 June 2019 he appointed Jenny Li of Success 4 U Consultancy to act for him in his application for review with the Tribunal.
   • He communicated with her on WeChat.
   • In February 2020, he tried to contact her to seek help to apply for a new Medicare card. She said she no longer had an office.
   • He never received a notification from the Tribunal about a hearing. He heard from a friend that they had been invited to a hearing at the Tribunal and contacted the agent who sent him the decision record. She had not tried to contact him previously.
   • He supposed that his agent had given his contact number to the Tribunal. He never received any email, text or call from the Tribunal.
   • The Tribunal did not fairly assess the application as no hearing was offered and he was not notified.
2. The issue for this Court is whether the conduct of Ms Li (who may or may not have been a migration agent) had the consequence of stultifying the operation of the legislative scheme to afford natural justice to the applicant. While there is an assumption of regularity the question is whether the Tribunal was disabled from the due discharge of its statutory function by reason of fraud of the agent. If so, the decision of the Tribunal is not a decision at all: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189 (SZFDE) at [51].
3. The onus is on the applicant to demonstrate fraud: Maharjan v Minister for Immigration & Border Protection (2017) 258 FCR 1; [2017] FCAFC 213 at [78] (Maharjan); SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [51]. Fraud must be 'distinctly pleaded and proved': SZFDE at [15].
4. I have considered the evidence before me, and I am not satisfied that this is the kind of a case where fraud disabled or stultified the Tribunal Decision. My reasons are firstly, the evidence does not establish that an agent was appointed after 11 June 2019, and secondly, I do not accept the applicant's evidence that the applicant was not notified of the Tribunal hearing. Thirdly, even if the applicant was not notified by an agent or third party, the evidence may establish negligence but not fraud. These reasons are discussed in more detail below.

1. Evidence from the Court Book and Tribunal Decision does not show that an agent was appointed after 11 June 2019 (although the applicant had an agent in the application to the Department and until June 2019):
   • The applicant filed an 'appointment or withdrawal of an authorised recipient' form with his application to the Department. He nominated Xuan Zuo (CB 14). An email address beginning with the address 'good..' was provided. The Department sent a confirmation of his application to this address.
   • In the application for review to the Tribunal on 29 May 2017 the applicant nominated 'MengMeng Fu' as the authorised recipient (CB 74). The same email address beginning 'good' was provided.
   • The Tribunal sent an acknowledgment letter and Medicare confirmation letters to the nominated email address starting with 'good' (CB 76; Minister's Affidavit, p.9).
   • On 11 June 2019, the applicant notified the Tribunal that he had changed his email address to a new email address, starting with 'shu' (CB 79). He said that he wanted his 'authorised recipient' to be 'himself' and requested that all correspondence be sent to his new nominated email address (CB 79). He consented to receiving correspondence from the Tribunal via email (CB 82).
   • On 7 May 2020, the applicant emailed the Tribunal from his nominated email address and requested a letter be used for Medicare purposes: Minister's Affidavit, p. 23 (Annexure 'TCI'). On 8 May 2020 the Tribunal responded to this request: Minister's Affidavit, p. 24 (Annexure 'TCI').
   • On 14 September 2020 the Tribunal sent the invitation to hearing to the new nominated email address starting with 'shu' (CB 84).
   • The Tribunal sent the dismissal and confirmation decisions to the address starting with 'shu' (CB 94; 101).
2. The Tribunal should be entitled to rely on information provided by the applicant by way of email and on official forms. In this case, the applicant informed the Tribunal by email and a Change of Contact form that he was the authorised recipient and wanted correspondence to be sent to him. The references from the Court Book set out above suggest regularity in the way the Tribunal communicated with the applicant, as communications were in accordance with the notified address.
3. The applicant's claim to this Court that he was represented by Ms Jenny Li from June 2019 is contrary to evidence in the Court Book. Under cross examination the applicant said that he authorised Ms Li to represent him in the Tribunal proceedings. He said she 'should have been' a registered migration agent. He said in the 27 November Affidavit at [9] that he contacted Ms Li after one of his friends who came to Australia told him that they had been invited to a hearing by the Tribunal.
4. I accept the submissions of the Minister that there is insufficient evidence to establish the existence of, or appointment of, an agent Jenny Li from Success 4U Consultancy. There is no documentary evidence in her name. Even if I were to accept that he was assisted by Jenny Li, it is not clear whether Ms Li was a registered agent or how she was engaged by the applicant and for what purposes, noting that the applicant had told the Tribunal in June 2019 that he wanted his 'authorised recipient' to be 'himself' and requested that all correspondence be sent to his new nominated email address (CB 79). I am not satisfied that the evidence establishes that the applicant had engaged an agent or third party to act for him in the Tribunal proceedings.

1. Under Ground One, I have considered the issue of notification. I am satisfied that the applicant was properly notified of the Tribunal hearing in accordance with the legislation. For reasons explained in preceding paragraphs I am not satisfied that the applicant was not aware of the hearing.

1. I am not satisfied on the evidence before me that the applicant engaged an agent or third party who acted in a fraudulent manner, such that the fraud would disable the Tribunal Decision in the sense described in SZFDE at [51].
2. Even if the applicant did get assistance from an agent or third party, which I do not accept, given the proper notification of the hearing, I am not satisfied that there was fraud by the agent. I have considered the observations of Beach J in a matter where an invitation to a hearing had been sent to a third party. Beach J observed that where the invitation was properly notified by the Tribunal, 'any fault of a third party does not deny that conclusion': BYF16 at [30]. He observed:

First, the first applicant on behalf of both applicants said to me that they had not received the invitation to appear before the Tribunal. Now as I pointed out to her, in the application for judicial review below the applicants had said that this was the fault of a "third party" but not the Tribunal. No evidence was adduced before me or the primary judge on this question. In any event the invitation was properly notified by the Tribunal. Any fault of a third party does not deny that conclusion. Accordingly, the Tribunal was quite entitled to act s`e1under s 426A(1A)(b) in making the dismissal decision.

1. In Ahmad, Judge Forbes at [48] observed that the involvement or intervention of a third party which is not known to the Tribunal can result in jurisdictional error, but only in extremely limited and rare cases (see also SZION v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123 at [60]).
2. In SZFDE, a claim of fraud was made in respect of a person who claimed to be a migration agent and solicitor. This person incorrectly and against the interests of the applicants, advised them not to attend a hearing of their review before the Refugee Review Tribunal. The Tribunal was 'disabled' from the 'due discharge' of its statutory functions with respect to the review (SZFDE at [51]) because the Tribunal process miscarried due to the fraudulent advice. That case can be distinguished from the matter before me as in SZFDE there was evidence that an agent had told the applicant not to attend the hearing, and although the agent purported that he was a practicing solicitor and registered migration agent, he was neither. Further, the agent gave fraudulent advice that the Tribunal process was a sham and that participation in it might prejudice the first applicant's prospects of a successful outcome on the basis of a submission to a Minister (at [42]). No such evidence is found in this case, tying the agent to an action adverse to the applicant's interests.
3. In the case before me, even if I were to accept that the applicant appointed an agent, which I do not, at most the actions of the agent would amount to negligence, and not fraud. There was no evidence of dishonesty or bad faith, and an inference cannot be drawn of deliberate fraudulent conduct (see Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 (SZLIX) at [29]). There is no sufficient basis for fraud where there is no evidence to suggest intentionally dishonest or misleading conduct by the agent. If Ms Li did assist the applicant, then her actions were at most incompetent or negligent. It is insufficient for allegedly 'fraudulent' conduct to be merely 'bad or negligent advice or some other mishap that leads to detriment to an applicant': Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 citing SZFDE at [15]; see also SZLIX at [30] - [33].
4. Furthermore, even if a fraud could be proven, which in this case it has not, an applicant must also satisfy the Court that they were neither 'complicit in the fraud nor indifferent to it': Maharjan at [102]. In cross-examination by Mr Sheedy for the Minister, the applicant was asked (Tp 19.29):

So it's right isn't it that you didn't make inquiries with Ms Li on a regular basis about the status of your tribunal application.

Well at the time of the application she told me, if the tribunal has any decision, she would let me know. It's impossible for me to make enquiries every week. Besides it's really troublesome to keep contacting her through WeChat.

1. Given that the applicant nominated himself as the recipient to the Tribunal, the lack of diligence in following up with Ms Li is complicity in whatever negligence he alleges: see Gill v Minister for Immigration & Border Protection (2016) 248 FCR 398; [2016] FCAFC 142 at [50]; and Singh v Minister for Immigration & Border Protection (2016) 247 FCR 554; [2016] FCAFC 141 at [20].
2. I am not satisfied that there was fraud by a third party which vitiates the Tribunal Decision.

1. For the reasons set out above, this Court is not satisfied that the Tribunal's reasons were affected by jurisdictional error.
2. Accordingly, the application for judicial review is dismissed.
3. I will hear the parties as to costs.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.