Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1693

You are required to provide evidence of your English language proficiency to achieve the relevant English language test score.

We will only accept the following English language tests from one or more of the test providers listed below:

• The International English Language Testing System (IELTS)

• Test of English as a Foreign Language internet-Based Test (TOEFL iBT)

• Pearson Test of English Academic (PTE)

• Cambridge English: Advanced (CAE) also known as Certificate in Advanced English

• Occupational English Test (OET)...

• TOEFL Paper-Based Test (PBT)...

...

The English test must have been taken two years immediately before the date of Student visa application is made or two year immediately before a decision is made on the application.

...

1. In response to this, the applicant relevantly provided to the Department a document showing that he had an appointment to sit a 'PTE-A: Pearson Test of English Academic' test on 12 December 2018.
2. On 10 December 2018 the Department sent a further letter to the applicant requesting more information, again including a request that the applicant provide evidence of his English language proficiency. The applicant did not respond to this request.
3. On 22 January 2019 the Department again wrote to the applicant requesting further information, including in relation to his English language proficiency. The applicant provided documents in response to some other aspects of the request for information but did not provide anything in relation to his English language proficiency.
4. On 25 February 2019 a delegate of the Minister refused to grant the applicant a student visa. The delegate found that the applicant did not satisfy cl 500.213 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) because he did not provide evidence of his English language proficiency.
5. On 4 March 2019 the applicant applied to the Tribunal for merits review of the delegate's decision.
6. On 5 March 2019 the Tribunal wrote to the applicant requesting that he provide evidence that he met the English language requirements by 19 March 2019. The applicant did not respond to this request for information.
7. On 17 April 2019 the applicant was invited to attend a hearing before the Tribunal on 7 May 2019 to give evidence and present arguments in relation to the issues arising in the review. The invitation also requested that the applicant provide all documents he intended to rely on to establish that he met the criteria for the grant of the visa, including:

Evidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument.

1. The applicant did not provide any documents in response to this request.
2. On 6 May 2019 the applicant's representative wrote to the Tribunal requesting an extension to attend the hearing. The Tribunal responded on 6 May 2019 stating that the Presiding Member had considered the request carefully but had decided not to postpone the hearing and reminding the applicant that a decision may be made if the applicant did not attend the scheduled hearing. The Tribunal's letter of 6 May 2019 again included a request that the applicant provide evidence that he met the English language proficiency requirement.
3. The applicant's representative responded advising that the applicant would not be able to attend the hearing, but did not provide any evidence in relation to the English language proficiency requirement.
4. On 7 May 2019 the applicant did not appear at the scheduled hearing. The Tribunal decided to make a decision on the review without taking any further steps to enable the applicant to appear before it and affirmed the delegate's decision not to grant the applicant a student visa.

1. The Tribunal recorded its satisfaction that the applicant was properly invited to attend a hearing in accordance with s 379A(5) of the Migration Act, the invitation had not been returned to sender and two SMS reminders were sent to the applicant about the hearing. In these circumstances, pursuant to s 362B of the Migration Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
2. The Tribunal recorded that the issue in the present case was proof of English language proficiency. The Tribunal recorded that, to meet cl 500.213, the applicant was required to provide evidence that he had a level of English language proficiency that met the requirements specified in an instrument, namely IMMI 18/015.
3. The Tribunal noted that the applicant did not respond to the requests for information by the Tribunal and did not provide any information to the Tribunal. Therefore, the Tribunal found that there was no information before it that the applicant was enrolled in a course of study or that the applicant satisfied the English language proficiency requirements as set out in cl 500.213 in Sch 2 to the Regulations. The Tribunal was not satisfied the applicant met cl 500.213.

1. The applicant filed an application for judicial review on 3 June 2019. The application was made within 35 days of the Tribunal decision as required by s 477(1) of the Migration Act.
2. The applicant raises six grounds in his application (reproduced without alteration):
   1. I am an Indian national and application for student visa to study English and other business studies were lodged. Visa application was refused by DoHA as I did not meet the criteria for student visa and I made a review application with AAT.
   2. AAT accepted my application and shortly after lodging this review application AAT requested whether I was enrolled into any studies and also English language requirement. I have provided AAT with copy of my current enrolment but not my English language test I was waiting for my results and further I was about to book a new test so I could provide AAT required results.
   3. I was unable to attend my hearing as my English results were not yet out and the fore as a result AAT decided on my visa application review application. I strongly believe that AAT has made an error in law while deciding on my matter. I requested an extension to provide requested document which is very usual process and AAT refused to give me an extension and continue with their decision as they never received any request from my side. This is totally unfair treatment and I would like to make an appeal application so that I could get fair treatment on this matter.
   4. AAT member has paid no regard to the document provided and neither I was offered any further time extension to provide all the documents so that review application could be assessed properly. I have paid $1764 for this review application and AAT could not be bothered asking for or giving me extension to provide all the required docs so that my application could have positive outcome.
   5. I have bene treated unfairly by AAT and AAT member has not assessed my application according to their standard practice. I would like to make an appeal application to seek new orders and replace old orders made by AAT member and offer me an extension to provide all required documents so that I could get positive outcome of my matter.
   6. Please take this application and set new orders and replace old orders made by AAT so that this matter could be remitted to AAT with new directions. AAT has made an error in law while deciding on my matter and this unfair treatment need to be stopped.
3. The evidence before the Court comprises an affidavit filed by the applicant with his judicial review application, annexing a copy of the Tribunal decision, and the court book filed on behalf of the Minister on 8 December 2021.

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority 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.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

The applicant's oral submissions at the hearing

1. In his oral submissions to the Court, the applicant submitted that he just wants one more chance to finish his study and secure his future. He submitted that when he applied for the visa, he was supposed to do an English test. When he first sat the test, he did not pass and when he was going to do the test again his visa was refused. He wanted to sit the English test again but then Covid happened and he could no longer sit the test.
2. In his reply submissions, the applicant repeated some of the matters that he referred to in his earlier submissions. He also submitted that he told his representative that he was not medically fit, but does not know what the representative conveyed. He gave further information that when he was going to sit the test a second time, Covid came, the college was closed and he was not able to sit his English test.
3. The applicant's oral submissions, to the extent that that they request a further opportunity for him to complete his study, do not assert jurisdictional error in the Tribunal decision and cannot establish jurisdictional error in the Tribunal decision.
4. Likewise, to the extent that the applicant's submissions refer to factual matters such as his unsuccessful attempt at sitting an English test and his desire to sit a further English test, they do not assert or establish jurisdictional error in the Tribunal decision.
5. I make the additional observation that the applicant's assertion that he was unable to sit an English test because of Covid appears to be an assertion of fact that was not made to the Tribunal and which relates to an event after the Tribunal decision. The Tribunal made its decision in May 2019, before the impacts of Covid were felt. Any assessment of jurisdictional error must be based on the state of affairs that existed at the time of the Tribunal decision: Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]. Therefore, any references to the impact of Covid cannot establish jurisdictional error in the Tribunal decision.
6. I consider the applicant's submissions relating to information that he told his representative, possibly in relation to his request for an adjournment, in the context of the grounds below.

1. Grounds 1 and 2 provide a narrative of background facts and do not assert or establish jurisdictional error in the Tribunal decision. Ground 6 is, for the most part, a request for the Court to grant relief. To this extent it does not assert or establish jurisdictional error.
2. Ground 6 also asserts that the Tribunal made an error of law in deciding his matter and refers to 'unfair treatment'. The applicant has not indicated any matter to which this assertion may refer that is separate to the matters raised in his oral submissions at the hearing or the allegations raised in grounds 3 to 5, which are considered below.

(a) the wording of grounds 3, 4 and 5;

(b) the manner in which the Minister has responded to the grounds, giving them a beneficial interpretation and raising additional matters as a model litigant; and

(c) the grounds considered in the context of the Tribunal's reasons and factual matters evidence from the court book,

these grounds appear to give rise to four main questions.

(a) Did the Tribunal fail to have regard to a relevant document?

(b) Did the Tribunal unreasonably fail to give the applicant further time to provide evidence of his English language proficiency?

(c) Did the Tribunal unreasonably refuse to grant the applicant an adjournment of the hearing?

(d) Did the Tribunal act unreasonably in making a decision on the review without giving the applicant any further opportunity to be heard, in accordance with s 362B(1A)(a) of the Migration Act?

Did the Tribunal fail to have regard to a relevant document?

1. Although the applicant referred in ground 4 to the Tribunal failing to consider a document that was before it, he did not address this in his oral submissions and he has not identified any relevant document that the Tribunal failed to take into account.
2. The Tribunal decision was made on the basis that the applicant did not provide evidence to show that he satisfied the English language proficiency requirements. There is no evidence in the court book to suggest that the applicant had satisfied the English language proficiency requirements. Having reviewed the court book, I am unable to identify any document that the applicant provided to the Department or the Tribunal that the Tribunal was required to, but did not, consider in assessing whether the applicant met the English language proficiency requirement.
3. No jurisdictional error arises on the basis that the Tribunal failed to consider relevant evidence.

Did the Tribunal unreasonably fail to give the applicant further time to provide evidence of his English language proficiency?

1. In ground 3, the applicant asserts that he requested an extension to provide the requested documents. It is unclear whether this refers to a request for an extension of time to provide additional evidence, or his request for the hearing to be adjourned. I consider here whether the Tribunal acted unreasonably in not granting the applicant additional time to provide evidence, and I address below whether the Tribunal acted unreasonably in not adjourning the hearing. The consideration of whether the Tribunal acted unreasonably in not affording the applicant further time to provide evidence is also relevant to ground 4, in which the applicant asserts that the Tribunal did not offer him more time to provide the requested documents.
2. This assertion of error fails for two interrelated reasons.
3. First, there is no evidence before the Court to suggest that the applicant requested further time to provide documentary evidence that he met the English language proficiency requirement.
4. Second, the alleged assertion of error needs to be considered in the context of the history of the matter. As noted in the background summary above, prior to the delegate's decision, the Minister's Department wrote to the applicant on 3 November 2018, 10 December 2018 and 22 January 2019 requesting, amongst other things, evidence that he met the English language proficiency requirement. The only document provided by the applicant relating to his English language proficiency is a confirmation of a PTE English exam booking to sit a test on 12 December 2018. The applicant did not provide to the Department any evidence that he met the English-language proficiency requirement.
5. When the matter was before the Tribunal, the Tribunal wrote to the applicant on 5 March 2019 to request that he provide evidence that he meets the English language requirements. In the hearing invitation sent on 17 April 2019, the applicant was again invited to provide evidence that he met the English language proficiency requirement and this was reiterated when the Tribunal wrote to the applicant on 6 May 2019 confirming that the hearing will go ahead on 7 May 2019.
6. Thus, it can be seen that the Department and the Tribunal between them invited the applicant to provide evidence of his English language proficiency on six occasions over a period of approximately six months. The applicant did not respond to those requests other than to provide a confirmation of a booking to sit a test scheduled for almost five months before the Tribunal decision. In these circumstances, there is nothing unreasonable in the Tribunal proceeding to make a decision without affording the applicant further time to provide the evidence that had been requested on six occasions. This is particularly so in the absence of any request for further time or any indication that the applicant intended to provide the relevant evidence if given more time.
7. No jurisdictional error arises from the applicant's complaints that the Tribunal did not afford him more time to provide documentary evidence to show that he met the English language proficiency requirement.

Did the Tribunal unreasonably refuse to grant the applicant an adjournment of the hearing?

1. Ground 3 can beneficially be interpreted as asserting that the Tribunal acted unreasonably in refusing the applicant's request for the hearing to be adjourned.
2. In considering this issue, it is appropriate to set out more detail regarding the communications between the Tribunal and the applicant or his representative.
3. The hearing invitation sent to the applicant on 17 April 2019 contained information about requesting adjournments of the hearing. The hearing invitation said, under a heading 'Other things to note' (emphasis in original):

If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment.

If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you wish to have your hearing adjourned on medical grounds, you must provide us with a medical certificate certifying that you are unable to attend and give oral evidence. The certificate must also indicate when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you have a representative acting on your behalf, medical certificates should be submitted no later than two business days before the scheduled hearing day, where available: Migration and Refugee Matters Practice Direction, at paragraph 7.4.

Additionally, it is the Tribunal's general practice to conduct a hearing by telephone if an applicant is unable to attend in person. If you are unable to participate in a hearing by telephone on medical grounds, you must provide a medical certificate that clearly states this.

Requesting your hearing be adjourned on medical grounds without providing appropriate medical evidence may result in the Tribunal refusing your request.

1. As set out above, on 6 May 2019, just one day before the scheduled Tribunal hearing, the applicant's representative wrote to the Tribunal requesting that the hearing be adjourned. Despite the applicant being on notice from the hearing invitation that the hearing date would only be changed if the Tribunal was satisfied that there was a very good reason for doing so, no reason was given for the applicant's adjournment request. The email from the applicant's representative read:

Dear Officer

Hope you are well

We would like to apply for extension to attend hearing. Kindly grant us next possible hearing date for this application.

Should you have any further queries, please don't hesitate to contact us ...

1. The communication from the Tribunal sent to the applicant on 6 May 2019, advising that the request for an adjournment had been declined, did not contain detailed reasons for the refusal. The relevant paragraph of the notification read:

On 6 May 2019 the Tribunal received a request that the hearing be postponed. The Presiding Member has considered the request carefully but has decided not to postpone the hearing.

1. In the Tribunal's reasons for decision, provided after the scheduled hearing date, the Tribunal referred to the request for an adjournment of the hearing made on 6 May 2019 and said at [8]:

The Tribunal gave consideration to the request for an EOT. As no reasons were advanced and no documentation were before the Tribunal relating to the EOT the Tribunal was unable to accommodate the request for an EOT.

(a) the Tribunal in its hearing invitation clearly indicated to the applicant that the hearing would only be adjourned if the Tribunal was satisfied that there was a very good reason for doing so; and

(b) the applicant requested an adjournment the day before the hearing without giving any reason for the request,

it was not unreasonable for the Tribunal to refuse the request for the hearing to be adjourned.

1. I accept the Minister's submission that the Tribunal's reasons for refusing the adjournment request demonstrated an evident and intelligible justification: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh) at [47]. The refusal to grant the adjournment request was within the Tribunal's area of decisional freedom: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [29], [66]; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [62].
2. At the hearing before the Court, in his reply submissions, the applicant submitted that he told his representative that he was unwell and does not know what the representative passed on. Although not clear from the applicant's oral submissions, I infer that this is an assertion that relates to the applicant's request for seeking an adjournment of the hearing.
3. This assertion does not alter my conclusion that it was not unreasonable for the Tribunal to refuse to grant the applicant's request for the hearing to be adjourned.
4. First, there is no evidence before the Court to support the applicant's assertion that he was unwell, or that he told his representative that he was unwell. I note in passing that, at face value, the assertion may conflict with the assertion in ground 3 of his judicial review application that he was unable to attend the hearing as his English results were not yet out.
5. Second, and relatedly, there was no information before the Tribunal to suggest, directly or indirectly, that the reason the applicant sought an adjournment of the hearing was because he was unwell. This is particularly relevant in circumstances where, in the hearing invitation, the Tribunal emphasised the need for medical evidence to be provided to support any request for an adjournment on medical grounds.
6. Any assessment of whether the Tribunal acted unreasonably in declining to grant the adjournment must be based on the information and evidence before the Tribunal at the time of its decision (in this case, the decision to refuse to adjourn the hearing): Singh at [42]. Even if the applicant could establish with evidence that he was unwell at the time of the Tribunal hearing and informed his representative of his illness, the Tribunal was unable to take it into account as no communication was made to the Tribunal about any illness of the applicant. The Tribunal's decision not to adjourn the hearing is not unreasonable due to any failure to take into account a medical condition of which it was not informed.

Did the Tribunal act unreasonably in making a decision without giving the applicant any further opportunity to be heard?

1. Although not expressly raised by the applicant, the Minister in his submissions also addressed whether the Tribunal acted unreasonably in making a decision in the absence of the applicant when the applicant failed to appear at the hearing on 7 May 2019. The Minister referred to the Federal Court's judgment in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17) and addressed whether the Tribunal erred in this case in the same way in which the Tribunal erred in DNK17.

Section 362B of the Migration Act and relevant authorities

1. Section 362B of the Migration Act sets out the options for the Tribunal if an applicant fails to appear at a hearing. The section provides, in part:

(a) is invited under section 360 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 368, 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 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

...

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.

1. The Tribunal in this case was satisfied that the applicant was properly invited to a hearing and that he failed to appear at the hearing. Having reviewed the evidence before the Court, I am satisfied that there is no error in this finding. The invitation to attend a hearing under s 360 of the Migration Act had to comply with the requirements of s 360A. I am satisfied that it complied with these requirements because:

(a) the invitation to attend a hearing gave the applicant notice of the day on which, and the time and place at which, he was scheduled to appear and therefore complied with s 360A(1) of the Migration Act;

(b) the invitation was given to the applicant by email to the last email address he provided for the purposes of the review, which is a method of giving a document to a person in s 379A of the Migration Act (specifically, s 379A(5)), and therefore complied with s 360A(2)(a) of the Migration Act;

(c) the invitation to attend a hearing on 7 May 2019 was given to the applicant on 17 April 2019 and therefore the period of notice exceeded the prescribed period of 14 days in reg 4.21(4)(b)(i) of the Regulations, as required by s 360A(4) of the Migration Act; and

(d) the invitation contained the following statement of the effect of s 362B, as required by s 360A(5) of the Migration Act:

If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

1. In circumstances where s 362B(1) was satisfied, the Tribunal was able to exercise either of the options in s 362B(1A) of the Migration Act. It was also able to adjourn the hearing. It was required to act reasonably in its exercising its discretionary powers in s 362B: see, for example, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [4] (per Kiefel CJ).
2. The Tribunal was not required to give reasons under s 368 of the Migration Act in relation to procedural decisions. It therefore was not required to explain why it chose to exercise its discretion in s 362B(1A)(a) of the Migration Act. Where the Tribunal does provide reasons, those reasons can provide a focal point for considering the reasonableness of the Tribunal decision.
3. The Minister addressed the judgment of the Federal Court (Horan J) in DNK17. In that case, the appellant failed to appear at a Tribunal hearing after his third request for an adjournment was refused. The Tribunal made a decision on the review, exercising its power in s 426A(1A)(a) of the Migration Act, which was the Part 7 equivalent provision to s 362B(1A)(a). The Federal Court found that it was unreasonable for the Tribunal not to dismiss the application instead pursuant to s 426A(1A)(b) of the Migration Act.
4. The Federal Court inferred that the Tribunal decided not to exercise the dismissal power under s 426A(1A)(b) of the Migration Act for reasons that were similar to, if not the same as, the reasons it gave for refusing the applicant's request for an adjournment and making a decision on the review under s 426A(1A)(a): DNK17 at [105]. The Federal Court considered that those reasons did 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: DNK17 at [105].
5. Alternatively, the Federal Court held that, 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, the outcome of the decision could be characterised as one that no reasonable decision-maker could have reached: DNK17 at [108]. In that case, there would be an implied decision of 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': DNK17 at [108].
6. I accept the Minister's submission that DNK17 does not stand for a general principle that it will always be unreasonable for a decision-maker to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing. That submission has now been accepted in a number of cases before this Court including, for example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 at [51] (Judge Symons); EEV18 v Minister or Immigration and Multicultural Affairs [2025] FedCFamC2G 173 (EEV18) at [30] (Judge Gostencnik); BNF21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1529 at [51] (Judge Cleary).
7. I further accept the Minister's submission that DNK17 serves to reinforce that the power under s 362B(1A) is required to be exercised reasonably, and that a decision may lack an evident and intelligible foundation in the light of the specific circumstances of a case before the Tribunal.
8. Any assessment of whether the Tribunal has acted unreasonably in the exercise of its discretionary powers is necessarily fact dependent: SZVFW at [84] (Nettle and Gordon JJ), DNK17 at [72]. There are numerous cases, including SZVFW at [84] and DNK17 at [72] that caution against assessing unreasonableness by analysing factual similarities between individual cases.

1. In this case, after explaining why it did not grant the applicant's request for an adjournment and referring to the email that the applicant's representative sent in response, the Tribunal said at [11] of its reasons:

The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

1. These reasons explain why the Tribunal chose to exercise one of its discretions under s 362B of the Migration Act, but do not, of themselves, explicitly explain why the Tribunal choose to exercise the discretion in s 362B(1A)(a) to make a decision on the review, rather than the discretion in s 362B(1A)(b) to dismiss the application.
2. In EEV18 Judge Gostencnik said at [30]:

However, DNK17 does not, in my view, stand as a general proposition that it will always be unreasonable for a decision-maker exercising power in s 426A(1A)(a) of the Act rather than (b) of the Act, to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing if reasons for doing so are not articulated. Sometimes those reasons will be obvious or may reasonably be inferred from the circumstances. Ultimately the whole of the circumstances, taking into account the nature and purpose of the power exercised and the statutory context in which the power is exercised, must be considered in assessing whether the exercise of power in a particular circumstance was unreasonable. Put another way - whether there is an intelligible justification for the decision arrived at through an intelligible decision-making process.

1. In this case, it is appropriate to look at the whole of the circumstances in assessing the reasonableness of the Tribunal decision.

Consideration of the reasonableness of the Tribunal's decision to proceed under s 362B(1A)(a) of the Migration Act

1. The Minister submitted that the Tribunal's decision to determine the matter without taking any further action to enable the applicant to appear before it was not legally unreasonable in circumstances where:

(a) the applicant was clearly aware of the hearing date given the request for an adjournment and the representative's response to the Tribunal's refusal to grant the adjournment request;

(b) the Tribunal sent two SMS hearing reminders directly to the applicant;

(c) there was no evidence to support a conclusion that the applicant was unable to attend the hearing due to, for example, illness; and

(d) there was nothing to indicate the failure of the applicant to attend the hearing was unexpected or remarkable.

1. I accept that each of these matters form part of the relevant circumstances of this case.
2. The Minister also submitted the present matter is distinguishable from DNK17 because:

(a) the applicant was on notice of what would happen if he failed to attend the hearing, through both the original hearing invitation, the request for a postponement and the representative's acknowledgement that the applicant would not attend the hearing, and it cannot be said that the applicant was not alive to the potential for the Tribunal to take the course it did; and

(b) in DNK17 the Tribunal rejected the appellant's claims for a protection visa on credibility grounds, including that the evidence lacked detail and was insufficient, and recording 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 detail', whereas the issue in the present matter was more nuanced, with the applicant either meeting or not meeting the English language proficiency requirement and the applicant being on notice of the issue;

1. I do not consider that the submission summarised at [77(a)] is a basis for distinguishing DNK17. Similar notices were sent to the appellant in DNK17 as were sent to the applicant in this case: compare the extracts at [49] and [62(d)] above with those at [18] and [20] of DNK17. However, I do accept that the matters referred to in the submission summarised at [77(a)] form part of the factual matrix in which the reasonableness of the Tribunal decision is to be assessed.
2. The Minister's submission summarised at [77(b)] recognises a factual circumstance that was very different from the circumstances considered in DNK17. The appellant in DNK17 applied for a protection visa. 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': DNK17 at [106]. The Tribunal in that case relied on the lack of detail in the appellant's claims in affirming the decision not to grant him a protection visa.
3. By contrast, the Tribunal in the present case found that the applicant did not meet the English language proficiency requirement in cl 500.213. The outcome of the Tribunal decision was not dependent on the level of detail provided by the applicant. The applicant either presented evidence to show that he met the criterion, or he did not. The applicant had been invited six times when his matter was before the Department and the Tribunal to provide evidence to show that he met the English language proficiency requirement and he did not provide any such evidence.
4. Further, the applicant had minimal engagement with the Tribunal. The applicant did not provide evidence to the Tribunal in response to the Tribunal's invitations. The applicant did not complete and return a 'Response to hearing invitation' form as requested by the Tribunal in the invitation to attend a hearing sent to the applicant on 17 April 2019. The only contact that the applicant appears to have made to the Tribunal after his review application was lodged was two emails sent by his representative the day before the scheduled hearing, in relation to the requested adjournment of the hearing. Neither of these communications suggested that the applicant had any further information to provide about his ability to meet the English language proficiency requirement.
5. In all of the circumstances of this case, there was an intelligible justification for the Tribunal to exercise its discretion in s 362B(1A)(a) of the Migration Act to make a decision on the review, rather than dismissing the application pursuant to s 362B(1A)(b), which would have afforded the applicant a right to seek reinstatement. The matter can be distinguished from DNK17.

1. The applicant has not established that the Tribunal made a jurisdictional error and the application for judicial review must therefore be dismissed.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.