Wong v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1569

The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules)), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. Mr Kim Lun Wong seeks judicial review of a decision of the Administrative Appeals Tribunal made on 13 December 2021. The Tribunal decided to affirm an earlier decision made by a delegate of the minister (the first respondent) to refuse Mr Wong's application for a Medical Treatment (Visitor) (Class UB) visa. The Tribunal's decision was made after Mr Wong failed to appear at the remote hearing and the Tribunal elected to proceed with its review on the material before it pursuant to s 362B(1A)(a) of the Migration Act 1958 (Cth).
2. Mr Wong says the Tribunal's decision is affected by material jurisdictional error because he was denied natural justice and procedural fairness. He is wrong.
3. The single ground of review is not made out. The application for judicial review must therefore be dismissed. I explain my reasons for that conclusion below.

1. Mr Wong first arrived in Australia on a visitor's visa in 2011. That visa lapsed and he remained in Australia unlawfully before he eventually applied for a protection visa in 2015. A delegate of the minister refused to grant the protection visa. The Tribunal affirmed that decision on review. Mr Wong appealed the Tribunal's decision to the Federal Circuit Court. When he was unsuccessful, he applied to the Federal Court. His last appeal was dismissed on 22 May 2018. On 14 June 2018, Mr Wong applied for the medical treatment visa under consideration here.
2. The application was refused by the delegate on 10 July 2018. Mr Wong sought review of that decision in the Tribunal. The Tribunal invited Mr Wong to attend a hearing but he did not appear. The Tribunal elected to dismiss the application without proceeding to a review pursuant to s 362B(1A)(b) of the Act. Mr Wong did not seek reinstatement and the dismissal was confirmed on 17 August 2020. It turned out there was a defect in the hearing invitation which the Tribunal had issued: the Tribunal did not give the applicant enough notice of the hearing. After Mr Wong sought judicial review of the dismissal, the matter was remitted by consent on 28 April 2021.
3. Following the remittal, the Tribunal invited Mr Wong to comment on information in accordance with the obligation in s 359A of the Act. A copy of the invitation to comment is reproduced in exhibit one (the court book) at pp 116-117. The letter containing the invitation referred to information about debts the applicant owed to the Commonwealth. The letter explained that information might be a reason (or part of a reason) for deciding the case against the applicant. Mr Wong was asked for any comments on the information by 29 November 2021. He did not reply.
4. In the meantime, the Tribunal issued a fresh hearing invitation on 17 November 2021. The hearing invitation is reproduced in the court book at pp 120ff. The hearing invitation confirmed the Tribunal was unable to make a decision favourable to the applicant on the basis of material already provided. It listed a hearing to be held by video conference - not telephone - on 6 December 2021. The hearing invitation confirmed an interpreter in the Mandarin language would be provided. The letter asked the applicant to complete and return a 'response to hearing invitation' form within 7 days together with any additional information or requests that he wanted the Tribunal to consider. The letter also explained:

If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing as arranged, you need to advise us as soon as possible. Please note that we will only make changes to this hearing if satisfied that it is reasonable and there are good reasons for doing so.

The Presiding Member will consider any submissions and you will be advised of the outcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise. [Emphasis added]

1. The applicant did not respond to the invitation nor did he attend the hearing. The Tribunal exercised the discretion to decide the matter without further reference to the applicant pursuant to s 426A(1A)(a) of the Act.

1. The Tribunal's reasons for decision are reproduced in the court book at pp 134ff. The Tribunal's statement of reasons recounts the applicant being invited to the hearing and his failure to either respond to the invitation or appear. The Tribunal notes the registry attempted to contact the applicant by telephone in advance of the hearing, and says it tried to contact the applicant at the appointed time on the morning of the hearing. The Tribunal also pointed out the applicant had been before the Tribunal on a previous occasion. The Tribunal then said it would proceed, explaining at [17]:

Given the Tribunal had been unable to make contact with the applicant, the Tribunal determined in the interests of procedural fairness to not cancel the hearing but proceed to provide an opportunity for the applicant to make submissions on the matters raised both in the delegate's decision and in the Tribunal's letter to the applicant of 29 November 2021.

1. The Tribunal does not explicitly mention the discretion it was exercising under s 426A(1A)(a) of the Act, and its explanation for proceeding at [17] is not illuminating. That is not fatal, as I explained in EGA19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 614 at [37]:

The Tribunal is not required to expressly articulate its reasons for electing to proceed under s 426A(1A)(a), nor is it required to expressly refer to the alternative courses that did not foreclose further engagement with the Tribunal's processes. That much was made clear in the Federal Court's decision in [DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975] at [102] per Horan J. But as Horan J explained in DNK17 (at [99]), "... the decision by the Tribunal must [still] be within the bounds of legal reasonableness, and must have an evident and intelligible justification." Where the reasons do not offer an express explanation for the Tribunal's decision to proceed as it did, DNK17 suggests (at [94]) one must look to "the 'decision-making pathways' that were reasonably open to the Tribunal".

1. The obvious starting point for that enquiry will be the Tribunal's statement of reasons. The statement of reasons must be read as a whole, without an eye attuned to error, and with due regard to the pressures which face an executive decision-maker.
2. In this case, it is entirely obvious from the Tribunal's summary of the procedural history why the Tribunal elected to exercise the discretion to proceed to make a decision without further reference to the applicant. The Tribunal noted the applicant had not engaged with the review process despite the lengthy history which included another hearing where the applicant failed to appear. (The Tribunal's notice of the earlier hearing was found to be defective and the dismissal was set aside on appeal, but the applicant was surely aware as a result that non-appearance was a serious matter.) The Tribunal also noted it had made repeated attempts to contact the applicant in advance of the hearing and on the day of the hearing itself. The Tribunal plainly formed the view that the time had come to finally resolve this matter. It was not unreasonable to proceed under s 426A(1A)(a) in those circumstances, particularly given the thinness of the material before the Tribunal.
3. The Tribunal correctly identified (at [18]) the question(s) that required resolution:

...whether the applicant has provided sufficient information for the Tribunal to be satisfied he meets the criteria for the visa and whether the Tribunal is satisfied the applicant genuinely is intending to stay in Australia only for the purposes of treatment and whether he is able to meet public interest criteria 4004.

1. The Tribunal noted the requirements of the visa were relevantly contained in cl 602.212 of sch 2 to the Migration Regulations 1994 (Cth). The Tribunal found the applicant could not take advantage of the exemption in cl 602.212(6) that was available in some circumstances to persons who were medically unfit to leave Australia. The Tribunal also noted cl 602.215(1) imposes a requirement that the applicant intends to stay temporarily in Australia for the purpose for which the visa was granted.
2. The Tribunal concluded it was not satisfied the applicant met cl 602.215(1). It explained at [26]-[27]:

26. The applicant has not provided the Tribunal with any medical evidence to indicate that he has been receiving treatment on an ongoing basis or that he requires ongoing medical treatment in the future. He has not provided any medical evidence that a long flight would be injurious to his health.

27. Accordingly, after taking into account the evidence on file, the Tribunal finds it cannot be satisfied that the applicant meets the requirements for the visa as there is no information or evidence to suggest that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

1. Mr Wong said he was assisted by a friend who was a lawyer to draft the single ground set out in his application for judicial review. He declined to identify the lawyer, saying that individual had returned to Malaysia. That creates a challenge: the Court must try and divine the applicant's arguments without the assistance of the person who devised them.
2. The single ground contends the Tribunal's decision was affected by jurisdictional error because the applicant was said to have been denied natural justice and procedural fairness. The particulars to that single ground go somewhat further. I will deal with the five different sets of particulars below.
3. The applicant contends in ground 1(a) the Tribunal "failed to take critically relevant information and social circumstances into account" when it made a "rushed decision" without affording him a "fair opportunity of physical presence at a real hearing." It became apparent during submissions before me the reference to a "real hearing" meant a hearing conducted 'in-person'.
4. There is no basis for saying the Tribunal's hearing was rushed. It invited the applicant to attend a hearing in a timely way. The hearing invitation appears to conform to the legislative requirements. The applicant did not identify any shortcomings in the notice that was provided on this occasion. The applicant was also put on notice of information that might be relevant to the outcome of the hearing (although that information was not a decisive factor in the final decision).
5. The applicant's concerns about the remote hearing process were the subject of further particulars in ground 1(b). He said the Tribunal should have anticipated his physical and mental health deteriorated during the COVID-19 pandemic, and that it was therefore inappropriate to rely on a video-link for the hearing. He contended:

The proposed video link hearing could never said to be a fair hearing for a non-English speaking, medically ill patient after a long suffering period of lock-down.

1. After pointing out the New South Wales local courts had already returned to 'in-person' hearings by later 2021, the applicant criticised the Tribunal for failing to offer the applicant:

...the alternative choice of presence in person, which clearly was never raised with the applicant in the first place. In other word, the AAT pre-determined mode of hearing without consulting with the applicant and hence its relevant notification of such hearing fell into jurisdictional error [sic].

1. These complaints cannot be sustained. There is nothing inherently unfair about using a remote hearing process like a video-link. The use of those processes is authorised in s 366 of the Act. Video-links in particular became a common (indeed, ubiquitous) and useful tool for executive decision-makers and courts during the lockdowns associated with the Covid-19 pandemic. These hearings use increasingly capable web-based applications that are easily accessed. Experience shows hearings of this kind can be adapted to effectively accommodate non-English speakers and interpreters. Many persons experiencing mental and physical health challenges may find a remote hearing from their home to be less confronting and arduous than alternative modes of participation. The success of the Covid-era experiment with video-link remote hearing processes understandably led to more extensive use of them by executive decision-makers once the pandemic receded. In any event, the practices of the courts in New South Wales or elsewhere are not inevitably a model. The Tribunal controls its own processes.
2. Remote hearing processes are often a satisfactory substitute for 'in-person' hearings, but they are not suitable in every case - but the same can be said of 'in-person' hearings. That is why the Tribunal always has a choice on how it will proceed. Having opted for a remote hearing process in this case, the Tribunal made clear in the hearing invitation that it would entertain a request that it proceed in a different way: court book at p 121. It is wrong to say (as the applicant's erstwhile lawyer asserts in the particulars) that the applicant was not appropriately consulted. The applicant chose not to respond when invited to contact the Tribunal if he had concerns about the format of the hearing. The Tribunal cannot be expected to intuit much less evaluate a particular individual's preferences for a different hearing format if that individual is not prepared to engage in the process. There was nothing procedurally unfair in the way the Tribunal approached the hearing, and there was nothing unreasonable in its decision to proceed using a video-link in the absence of any protest from the applicant.
3. There is a sting in the tail of the contention of ground 1(b). It says the Tribunal was "pretending to have offered the applicant ... fairness and natural justice" when it relied on the request for a response in the hearing invitation [emphasis added]. That barely concealed allegation of bad faith on the part of the Tribunal is taken up in ground 1(c). Ground 1(c) contends the Tribunal "used the proposed faux video hearing to reject the applicant" without engaging with the merits of the applicant's case.
4. If the applicant intended to allege bias, that allegation is wholly unparticularised. There is nothing apparent in the Tribunal's decision or communications that could provide a basis for such an allegation. There is no jurisdictional error on this account. I am also satisfied there is nothing to the allegation that the Tribunal failed to engage with the evidence (such as it was). The Tribunal refers to the limited evidence that was provided at [26]. The decision ultimately turned on the Tribunal's finding about the applicant's intention to stay temporarily: at [27]. Given the paucity of the evidence before the Tribunal, it cannot be criticised for failing to engage more fully with the applicant's condition. It is the applicant's responsibility to provide the evidence the Tribunal needs to undertake its review.
5. Ground 1(d) contends the Tribunal failed to provide adequate notice of the hearing, which meant it "did not have power to dismiss the application for nonappearance under paragraph 362B(1A)(b) of the Act". This contention fails at a factual level.
6. Section 360A(4) requires the Tribunal to give notice of the hearing that is equal to or greater than the prescribed period. Sub-regulation 4.21(4) of the Regulations contemplates the applicant being given at least 14 days' notice of the hearing. That period commences on the day the applicant receives the invitation. The minister points out s 379C(5) of the Act says the applicant is taken to have received the emailed invitation at the end of the day it was transmitted.
7. In this case, the invitation was sent on 17 November 2021. The 14-day period began to run that day. The hearing was not scheduled until 6 December 2021. That means the applicant received more than the minimum notice of the hearing.
8. The reference to the Tribunal deciding to dismiss the proceedings pursuant to s 362B(1A)(b) is also wrong. The Tribunal proceeded under s 362B(1A)(a). It may be the applicant (or more likely his erstwhile lawyer) simply recycled the criticism of the Tribunal's hearing invitation and decision that resulted in the remittal in 2020. In any event, the contention cannot be sustained.
9. Ground 1(e) laments the Tribunal's failure to consider the impact of Covid on society and the physical and mental distress caused by the pandemic. The applicant asserted in the particulars that he had contracted Covid at some unspecified time. But the applicant did not give the Tribunal any evidence about the effects of Covid. The Tribunal cannot be criticised for failing to anticipate evidence and submissions that the applicant did not bother to make.

1. The single ground of review does not disclose any jurisdictional error. The application for judicial review must be dismissed.
2. I heard from the parties about costs at the end of the hearing. The minister seeks costs fixed in the amount of $5,900. The minister says this amount reflects the costs incurred in defending these proceedings, particularly in preparing detailed submissions and instructing counsel to appear before me. The minister notes this amount is less than the amount indicated on the Court's scale for matters which proceed to a final hearing. The applicant said at the hearing he would be willing to pay the minister's costs if he was unsuccessful (although he indicated he would prefer an instalment plan). In these circumstances, I am satisfied it is appropriate to make an award of costs in the minister's favour in the fixed amount of $5,900, having regard to the work done on the file and the Court's scale.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.