Yeow v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1331

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant, born 30 November 1988, is a citizen of Malaysia who applied for a Student (Temporary) (class TU) (subclass 500) visa (the visa) on 29 November 2019.
2. On 8 January 2020, a delegate (the delegate) of the Department of Home Affairs (Department) refused the visa application (the primary decision) on the grounds that the applicant did not satisfy the 'genuine temporary entrant' criterion in cl 500.212 of sch 2 of the Migrations Regulations 1994 (Cth) (the Regulations).
3. On 28 January 2020, the applicant applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (the Tribunal)) for review of the primary decision.
4. On 29 September 2021, the Tribunal dismissed the application for Tribunal review under s 362B(1A)(b) of the Migration Act 1958 (Cth) (the Act) due to the applicant's non-appearance at the scheduled hearing. On that same day, the Tribunal notified the applicant of the Tribunal decision and informed him of his right to lodge a reinstatement application within 14 days (that is, by 13 October 2021). The applicant did not apply for reinstatement within the designated time and subsequently, the Tribunal confirmed its decision to dismiss the application on 14 October 2021 (the Tribunal's decision).
5. On 16 November 2021, the applicant lodged the current application in this Court seeking judicial review of the Tribunal's decision pursuant to s 476 of the Act. That application was lodged within the time specified in s 477(1) of the Act.
6. The issue for determination in this matter is whether the Tribunal failed to effectively notify the applicant of the hearing and in doing so, failed to afford the applicant procedural fairness in the review process.
7. For the reasons that follow, the current application must be dismissed with costs.

1. The evidence in respect of the current application is comprised of a court book (the court book) which was prepared by the first respondent and which contained relevant documents from the Department concerning the applicant's visa application, and documents from the Tribunal's file. The court book was received into evidence at the hearing of the matter without objection by the applicant.
2. In addition, the Court received into evidence without objection the affidavit of the applicant filed 16 November 2021 which annexed the respective decision records of the Department (being the primary decision) and the Tribunal.
3. The Court made orders on 19 February 2025 providing the parties an to file any amended application (in the case of the applicant), any affidavit evidence, a written outline of submissions and a list of authorities.
4. The applicant did not subsequently file any amended application, any further affidavit evidence, any written submissions, nor any list of authorities. The first respondent filed a list of authorities, an outline of submissions, and an affidavit of service (which, in the event, did not become relevant at hearing).

1. It is uncontentious in this matter that the applicant's application for review was in respect of a "Part 5-reviewable decision", and that provisions within pt 5 of the Act governed the Tribunal's conduct of the review.
2. Part 5 of the Act contained, at the time of the Tribunal's decision, provisions concerning the method of communication between the Tribunal and an applicant for review as follows.
3. Section 379G of the Act provided that an applicant may, in regard to a review by the Tribunal, authorise another person to receive communications in connection with the review:

(1) If:

(a) a person (the applicant) applies for review of a Part 5-reviewable decision; and

(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

(1A) For the purposes of subsection (1):

...

(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3) Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.

(3A) In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

...

(Emphasis added)

1. Section 360A of the Act stipulated that, in addition to the requirement to notify the applicant of the date and time of the scheduled hearing:

(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant:

(a) ... by one of the methods specified in section 379A; or

1. Section 379A of the Act set out the methods by which the Tribunal was permitted to provide documents to a person. Transmission by email was permitted by s 379A(5), requiring:

Transmission by fax, email or other electronic means

(5) ...transmitting the document by:

...

(d) the last...email address or other electronic address...provided to the Tribunal by the recipient in connection with the review; ...

1. Contained within a note under s 379A(1A) is the following:

Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.

1. Section 379C of the Act made provision regarding when a person was taken to have received a document. It provided, inter alia:

Transmission by fax, email or other electronic means

...

(5) If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

1. Part 5 of the Act also contained provisions governing the holdings of hearings, and the opportunity to be afforded to the applicant to participate in a hearing.
2. Section 362B of the Act provided that where an applicant is invited to appear before the Tribunal under s 360 of the Act and fails to appear at the hearing on the day, or at the time and place the hearing is scheduled to take place, the Tribunal is empowered to do the following:

362B Failure of applicant to appear before Tribunal

...

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.

Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review.

Note 2: Under section 362C, 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 362C, apply to the Tribunal for reinstatement of the application.

Note: Section 379C 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.

1. Section 362C of the Act provided, as at the date of the Tribunal's decision, as follows, inter alia:

362C Failure to appear - Tribunal's decisions, written statements and notifying the applicant

...

Notice to applicant

(5) The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is taken to have been made; and

(b) by one of the methods specified in section 379A.

(6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).

1. Section 362B(1E) - (1F) of the Act were as follows:

(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 368.

Note: Under section 368A, 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.

(Emphasis added)

1. The Court may only grant a remedy to an applicant seeking relief in proceedings under s 476 of the Act if the Tribunal's decision is affected by an error that is jurisdictional in character. Absent such error, such a decision will be a "privative clause decision" within the meaning of s 474 of the Act, and excluded from review.
2. Jurisdictional error describes a failure, by a person or body that is given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of a statutory power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [2]- [3] (LPDT).
3. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7].
4. The applicant advanced two grounds as follows (reproduced without alteration):
   1. The Administrative Appeals Tribunal failed to assess my application fairly with all the documentations [sic] I have previously submitted.
   2. No hearing was conducted to assess my case and my case was dismissed without fair consideration of the documents I previously provided.
5. Those grounds are considered below, following a recitation of the history of the matter.

1. The applicant, born 30 November 1988, is a citizen of Malaysia who was present in Australia as an international student between April 2013 and November 2019, when he applied for the visa on 29 November 2019.
2. On 8 January 2020, the applicant was notified by the Department of the decision of the delegate to refuse his application for the visa (that is, the primary decision). The delegate was not satisfied that the applicant was a genuine temporary entrant for the purposes of cl 500.212 of sch 2 of the Regulations.
3. The delegate was concerned regarding the length of time the applicant had remained in Australia, having spent only 50 days outside of the country since first arriving in April 2013. The delegate also had apprehensions regarding the strength of the applicant's incentive to return home due to the infrequency of his visits to his parents and siblings in his home country, as indicated by his travel history.
4. The delegate formed the view that the applicant's extensive residence in Australia may outweigh any incentive for him to return to Malaysia, particularly given that residence in Australia until the completion of his proposed course of study would result in the applicant having remained in the country for approximately eight years post his initial arrival on temporary visas or associated bridging visas.
5. The delegate found that the applicant's proposed course of study, being the Diploma of Human Resources Management, lacked any apparent value to the applicant's future and was, therefore, indicative of an absence of genuine intent to remain in Australia temporarily. The delegate noted that the applicant, in their statement of purpose, had indicated that they wished to open a restaurant in their home country but had provided sparse details concerning what steps had been taken and failed to provide evidence to substantiate any such intention.
6. The delegate having weighed the applicant's length of residence in Australia, value of the course of study, and study history against the absence of any countervailing incentives to return to their home country, was ultimately not satisfied that the applicant intended to remain temporarily as a genuine entrant for study in Australia.

1. On 28 January 2020, the applicant applied to the Tribunal for review of the primary decision. On the application form, the applicant indicated that he had appointed a registered migration agent as his representative (referred to in these reasons as Mr W) and provided an email address for Mr W ending @ACIC.COM.AU (the ACIC address). The applicant also provided the ACIC address in the personal details section of the application for review form.
2. On 12 August 2021, the Tribunal sent an 'Invitation to Provide Information' form to the ACIC address. The applicant apparently returned a completed form to the Tribunal. The applicant indicated on the form that he did not consent to the Tribunal deciding the review without a hearing, and under the heading 'declaration and submission' provided an email address ending @yandex.com (the Yandex address).
3. On 6 September 2021, the Tribunal sent to the applicant, via email to Mr W at the ACIC address, an 'Invitation to Attend a Hearing' scheduled to take place on 29 September 2021 via phone and attaching a 'Response to hearing invitation' form (hearing response form) to be completed and returned within seven days.
4. On 14 September 2021, the Tribunal emailed Mr W at the ACIC address notifying him that no completed hearing response form had been received. At approximately 4:00pm of that day, Mr W responded to the Tribunal's email, from the ACIC address, and wrote the following:

Dear Sir/Madam,

... I have forwarded the AAT hearing invitation to review applicant dated on 6/9/2021.

Since then, I have been notified that the review applicant will nominate another agent to follow up so that my migration service for AAT review has been terminated.

I have also forwarded this email to the review applicant's latest updated email address.

...

1. On 17 September 2021, the Tribunal again sent an email to Mr W at the ACIC address enclosing a letter to the applicant regarding the application for review. The letter stated that:

...

We recently received advice that your nominated representative and recipient, [Mr W], is no longer providing assistance with your review application.

We are required to continue to send all correspondence to [Mr W] unless you advise otherwise, in writing. While [Mr W] continues to be your authorised recipient we will also send you copies of all correspondence.

If you wish to appoint another person as your authorised recipient and representative, please submit a completed 'Appointment of representative / appointment of authorised recipient - MR Division' form - MR5 (a copy is attached) to us.

If you wish to cancel your previous appointment of [Mr W] as your authorised recipient and representative but do not wish to appoint another person as your authorised recipient and representative, please submit a completed 'Change of contact details - MR Division' form - MR6 (a copy is attached) to us.

...

(Emphasis added)

1. On 17 September 2021 at around 11:00am, Mr W sent to the Tribunal (from the ACIC address) the following email:

Dear Sir/Madam,

Thank you for your email. I have forwarded all AAT emails to review applicant.

Please find the review applicant's contact details in our record :

...

Email: [redacted]@hotmail.com

Should you require any further information, please feel free to contact me.

...

1. The Hotmail email address the representative provided for the applicant had not previously been provided by the applicant nor the representative in connection with the Tribunal's review (the Hotmail address).
2. On 20 September 2021, the Tribunal sent a further email addressed to both Mr W at the ACIC address and the applicant at the Hotmail address confirming the date of the hearing for 29 September 2021 and reiterating that it had not received a completed hearing response form which had been due for return seven days after it was sent with the hearing invitation on 6 September 2021.
3. The Tribunal also sent text messages to the applicant's phone on 21 September 2021 and 28 September 2021. The text messages stated as follows:]

Your AAT hearing is on 29/09/31. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

1. The Tribunal's "Migration Hearing Record", which is produced in the court book, shows that on 29 September 2021, the Tribunal hearing commenced at the scheduled time of 9:30am. The applicant was not present at commencement and the Tribunal then, unsuccessfully, attempted to contact the applicant via phone three times: at 9:34am, 9:41am, and 9:46am. On the face of the Migration Hearing Record, a handwritten note appears stating that, following the unsuccessful call to the applicant at 9:41am, the interpreter present at the hearing "left a voicemail for the Tribunal to call back." Although it is not clear whether the message invited the applicant to call the Tribunal, or indicated the Tribunal would call again, it is not necessary to determine that question. The Tribunal called the applicant again. In the Tribunal's reasons of 29 September 2021, the Tribunal Member records that the interpreter left a voicemail message stating the reason for the call.
2. The Migration Hearing Record contains the notation "member directed non-appearance", which I infer to be a reference to the Tribunal Member concluding that the applicant had failed to appear, and to proceed on that basis.

1. In its reasons for decision dated 29 September 2021, the Tribunal dismissed the review under s 362B(1A)(b) of the Act. In a brief decision, the Tribunal noted that the applicant was invited to appear at the hearing and was warned that the matter may be dismissed for non-attendance. It also noted that the Tribunal had sent SMS reminders to the applicant about the hearing five business days and one business day prior to the hearing. The Tribunal stated that it was satisfied that the applicant had been properly invited to the hearing in accordance with s 379A(5) of the Act, the applicant could not be reached despite three telephone calls, and no satisfactory reason for the non-appearance had been given.
2. The Tribunal sent an email to both Mr W at the ACIC address and the applicant at the Hotmail address on 29 September 2021, enclosing a letter to Mr W, which in turn enclosed a letter to the applicant, noting the applicant's failure to attend the hearing, and the Tribunal's decision to dismiss the application. The letter to the applicant stated that the applicant could apply in writing to reinstate his application by 13 October 2021.
3. The letter stated that it enclosed the dismissal decision and an information sheet about dismissal applications, described as "MR20 - Information about dismissal of applications".
4. In the event, the applicant did not make an application to reinstate his application for review.
5. On 14 October 2021, the Tribunal made a further decision confirming the decision to dismiss the application for review. The decision noted the decision made on 29 September 2021, the fact that the decision was given to the applicant, that he was advised that reinstatement could be sought within 14 days of receiving the dismissal statement, and that a failure to apply for reinstatement would result in confirmation of the dismissal decision. The decision concluded that as the applicant had not sought reinstatement, the decision under review was taken to be affirmed. The Tribunal confirmed the decision to dismiss the application.
6. On 15 October 2021, the Tribunal sent an email to both Mr W at the ACIC address and the applicant at the Hotmail address, enclosing a letter to Mr W, which in turn enclosed a letter to the applicant advising that the Tribunal had decided to affirm the decision under review. The notification letter attached the decision record dated 14 October 2021 and informed the applicant that the decision to dismiss the application had been confirmed as no reinstatement had been filed within the stipulated time limit.
7. On 22 October 2021, the applicant wrote to the Tribunal by email from the Yandex address attaching a copy of his passport and a 'Change of Contact Details - MR Division' Form. Relevantly, at parts 'D' and 'E' of the Form, the applicant withdrew his previous authorisation of Mr W to receive correspondence and act as his representative. At sections 'A' and 'F' of the Form, the applicant indicated that all communication should be sent to the Yandex address.
8. On 25 October 2021, the Tribunal replied to the applicant's email and reiterated that the decision to dismiss the application for review had been finalised on 14 October 2021. The Tribunal's email was sent to the Yandex address and to the ACIC address.
9. On 27 October 2021, the applicant sent a further email to the Tribunal from the Yandex address stating the following (reproduced without alteration):

Dear Officer,

I am deeply apologize for the inconvenience caused, my email has been hacked and all my information has gone, my previous agent wasn't operate during covid-19 and I keep searching for many ways to get the things done but unfortunately I did not successful. As you refer to latest email, I am immediately made change of contact after I have successfully found my previous agent for your contact.

May I please ask if I could still reinstate my application with the AAT given my circumstances?

If I could not reinstate my student visa application, do I have enough time to lodge my application to Federal Court?

Thank you.

...

1. On 28 October 2021, the Tribunal replied to the applicant at the Yandex address advising that the Tribunal was unable to reinstate the application for review, and that once the Tribunal has sent a decision record, the Tribunal has no power to revoke or vary that decision, pursuant to its powers under the Act.
2. On 16 November 2021, the applicant lodged the present application with this Court.

*** The Administrative Appeals Tribunal failed to assess my application fairly with all the documentations [sic] I have previously submitted.**

1. The applicant did not elaborate this ground at all when he appeared before this Court in person.
2. In those circumstances, the ground may be understood as a complaint that the Tribunal proceeded to determine his application on 29 September 2021 on the basis of his non-appearance (and then confirm that decision when he failed to seek reinstatement of his application), rather than following a consideration of the substance of his application for review.
3. The applicant has not demonstrated any error by the Tribunal in so proceeding.
4. The Tribunal proceeded under s 360 of the Act to invite the applicant to appear before the Tribunal. It did so by its letter of 6 September 2021.
5. The fact that the Tribunal invited the applicant to appear before it indicates that the Tribunal had been unable to decide the review in favour of the applicant on the material that was before it. If it had been able to decide the review in the applicant's favour, it was not obliged to invite the applicant to appear: s 360(2)(a) of the Act.
6. That invitation was compliant with s 360A of the Act (as it appeared as at the date of the Tribunal's decision), in that it specified the day, the time, and the place at which the applicant was scheduled to appear (albeit the "place" of the hearing was by telephone due to the Tribunal employing special measures during the COVID-19 pandemic). The invitation included a statement of the effect of s 362B of the Act at the bottom of the second page of that invitation, as required by s 360A(5) of the Act. That part of the letter stated:

If you do not participate in the scheduled hearing (that is, you do not answer your phone at the scheduled date and time), 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 I 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. The invitation was sent to the email address provided by the applicant on his application for review, being the ACIC address. The Tribunal was obliged by s 379G of the Act to give the invitation to Mr W as the applicant had nominated Mr W, on his application for review, as his representative and the applicant had not withdrawn his authorisation for Mr W to receive documents in connection with the application for review at that time. The Tribunal was obliged to give the invitation to Mr W in one of the ways specified in s 379G of the Act: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; [2007] FCAFC 62 at [39].
2. It was incumbent on the applicant, if he wished to withdraw Mr W's authorisation, and to have any correspondence sent directly to him, to communicate that to the Tribunal himself. The Tribunal advised the applicant by its letter of 30 January 2020 (providing acknowledgment of receipt of the applicant's application for Tribunal review) that it was his responsibility to advise the Tribunal of any change in contact details or change of personal circumstances. In Somjich v Minister for Home Affairs (2019) 168 ALD 219; [2019] FCA 1921 (Somjich), Rangiah J said at [57] (inter alia):

As Collier J observed in Khan v Minister for Immigration and Border Protection [2015] FCA 125 at [21], s 379A(5) makes it the responsibility of an applicant to ensure the currency of their contact details. The purpose of s 379A(5) is both to place an onus [on] the applicant to keep the Tribunal notified of his or her address for the receipt of documents and to allow the Tribunal to comply with its obligation to provide documents by sending them to the address provided. In this context, the expression "provided to the Tribunal ... in connection with the review" is not satisfied merely by an applicant providing an email address that has some tenuous, unclear and uncertain relationship with the review. The provision requires that applicant make it sufficiently clear to the Tribunal that the email address provided is the email address that is to be used for the provision of documents.

(Emphasis added)

1. Although the applicant had included the Yandex address at the bottom of the Request for Student Information form, it was not clear from the inclusion of the email address that he wished that to be his contact address for the purposes of the review, and that he no longer wished to have Mr W acting as his representative in the matter. The mere inclusion of the email address on the form was not sufficient to communicate that intention: Somjich at [59].
2. Having given notice of the hearing as required by the Act, when the applicant failed to appear, the Tribunal had (at least) two options. First, it could proceed, pursuant to s 362B(1A)(a) of the Act to make a decision on the review; that is, the Tribunal could have made a decision determining the application on the material it had to hand. In that event, given the operation of s 360(2) of the Act, which only required a party to be invited to appear before the Tribunal if the Tribunal was unable to decide in the party's favour on the papers, it may be inferred that the Tribunal would have found against the applicant on the review.
3. Alternatively, it was open to the Tribunal to dismiss the application pursuant to s 362B(1A)(b) of the Act without further considering the application or the material before it.
4. In the latter event, the Tribunal was obliged by s 362C(2) of the Act to give a written statement of its decision that set out the decision, set out the reasons for the decision, and recorded the day and time the statement was made. Pursuant to s 362C(3) of the Act, the decision was taken to have been made by the making of the statement on the day and at the time the statement was made. The Tribunal was then obliged by s 362C(5) of the Act to give the applicant notice of the decision within 14 days after it was taken to have been made by one of the methods in s 379A of the Act. Section 379A(5) of the Act specified, as a means of giving a document to a person, transmission by email to the last email address provided to the Tribunal in connection with the review.
5. There is no question in the present matter that the Tribunal's statement of its decision complied with s 362C(2) of the Act. It set out the decision the Tribunal made (dismissal under s 362B(1A)(b) of the Act), set out the reasons for the decision, namely the applicant's failure to appear before the Tribunal, and set out the date and time the decision: 29 September 2021 at 1:23pm.
6. Nor is there any question about whether the Tribunal gave notice of that decision in the manner the Act required. The Tribunal sent that decision to Mr W by email to the ACIC address on 29 September 2021 at 3:42pm, that is, less than three hours after the decision was taken to have been made. The decision was also transmitted to the applicant at the Hotmail address. The Tribunal gave notice as required under s 362C(5) of the Act, by giving that notice within the time specified therein, by the means specified in s 379A(5) of the Act.
7. The decision to dismiss the application upon the applicant's non-appearance meant that the applicant could, within 14 days of receiving the notice of the decision, apply to the Tribunal pursuant to s 362B(1B) of the Act, to reinstate the application. The advantage of that approach, from the applicant's perspective, was that, subject to him persuading the Tribunal to exercise its discretion to reinstate his application, it preserved the possibility of his having an opportunity to appear before the Tribunal to give evidence and present arguments in favour of his review application. The former approach would mean that the applicant's only means of recourse would be to a Court on the ground of jurisdictional error.
8. It could not be said that the Tribunal's decision to exercise its power under s 362B(1A)(b) of the Act dismiss the application for non-attendance consistent was beyond the Tribunal's power. That was one of the options open to the Tribunal. Nor has the applicant advanced any argument that might clear the high hurdle involved in alleging that the decision was legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. Given that the course the Tribunal opted to take gave the applicant an opportunity to persuade the Tribunal to give him another chance to attend a hearing, it is difficult to imagine an argument that could render such a decision legally unreasonable in the relevant sense.
9. It was of course open to the Tribunal to adjourn the hearing of its own motion and to make further attempts to contact the applicant. In Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915, Mortimer J found a decision by the Tribunal to dismiss an application legally unreasonable in circumstances where the applicant had been very engaged with the Tribunal about her application for review, and her failure to appear at the hearing was "out of character" (at [95]). The same could not be said here. The applicant had returned the Request for Student Information form (which was necessary in order to preserve his right to appear) but had otherwise not been engaged with the Tribunal. Although Mr W advised the Tribunal on 14 September 2021 that the applicant wanted to nominate another agent, the Tribunal was obliged by s 379G of the Act to give all notices to him until the applicant withdrew the authorisation of Mr W. Mr W advised the Tribunal in any event that he had given the applicant the hearing invitation.
10. On 20 September 2021 (prior to the hearing), the Tribunal emailed the applicant at the email address it was provided by his authorised representative (being Mr W), that is, the Hotmail address. It did not receive a reply from the applicant. The Tribunal twice sent text message reminders about the hearing to the applicant's mobile telephone number. When the hearing was scheduled on 29 September 2021, the Tribunal attempted three times to call the applicant on the mobile telephone number he advised with his application and left a voicemail message for the applicant. The Tribunal also sent the 29 September 2021 decision to the applicant's Hotmail address as well as to Mr W, even though the Tribunal was not obliged to do so by the Act. The Tribunal took steps in addition to those required by the Act to enable the applicant to participate in a hearing before it, to notify him of the fact the hearing was taking place, and to preserve the possibility that he would have an opportunity to appear before it to persuade it to make a favourable decision on the review. The Tribunal did not exercise its discretion unreasonably.
11. Once the Tribunal had decided to deal with the matter on 29 September 2021 by a dismissal, in the absence of an application to reinstate being made within 14 days, the Tribunal was bound by s 362B(1E) of the Act to confirm the decision to dismiss the application. The Tribunal had no discretion to do otherwise as the language of that subsection is mandatory.
12. To the extent the Tribunal decided not to deal with the matter on 29 September 2021 by making a decision in the applicant's absence, that was not a legally unreasonable exercise of discretion. As set out above, had the Tribunal proceeded to determine the application, that would, absent a last minute change of view on the Tribunal's part, have resulted in the Tribunal affirming the decision below. Dismissing the application instead, gave the applicant an opportunity to seek to reinstate his application. That was more favourable for the applicant. The exercise of the Tribunal's discretion to preserve the applicant's rights to a greater extent could not be characterised as legally unreasonable.
13. The Tribunal did not err in the manner described in Ground 1 of the originating application.

1. No hearing was conducted to assess my case and my case was dismissed without fair consideration of the documents I previously provided.
2. It is not clear how, if it all, this ground adds anything to Ground 1. The applicant appears to repeat that the Tribunal erred by proceeding without considering the documents he had provided.
3. It is correct to say that the Tribunal reached its decision without considering those documents. However, for the reasons set out above in relation to Ground 1, the Tribunal did not err in so proceeding. Rather, the Act provided for the Tribunal to so proceed after the applicant had failed to appear at the hearing, the Tribunal had determined to dismiss his application, and the applicant had failed to apply to reinstate the matter.
4. The Tribunal's decision to proceed to dismiss the application was not legally unreasonable. It was a course for which s 362B(1A) provided. It was a course that a reasonable person would consider was more favourable to the applicant than the alternative. Given the Tribunal's text messages and voicemail to the applicant about the hearing it would have been reasonable to assume that the applicant had been made aware of the hearing, and if he wished to pursue the matter, could, with a little effort, have exercised his right to seek reinstatement.
5. No error is demonstrated by ground two.

1. The Tribunal's conduct of the review did not involve jurisdictional error. The application should be dismissed and the applicant should pay the first respondent's costs.
2. I order accordingly, and will hear from the first respondent as to the quantum of such costs.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.