Zaidi v Minister for Immigration & Citizenship [2025] FedCFamC2G 1949

Documents received/Comments:

During the hearing, the applicant requested a Malay interpreter. The hearings team contacted interpreting agencies to fill the request. Hearing was adjourned pending the arrival of an interpreter and the hearing recording was stopped. The Member left the hearing meeting link. A hearing attendant remained. During this period the Rep made a request for an adjournment of the hearing (to the hearing officer) even if there was to be an interpreter as he stated the applicant was too sick to continue. Message was relayed to Member. Hearing and recording resumed. Rep and applicant asked the Member for the hearing be adjourned for the day and resumed at a future date.

The hearing was adjourned a second time. After this 5 minute adjournment, the hearing and recording resumed. The applicant and rep advised that the applicant did not wish to have a hearing and was giving consent to the Tribunal to making a decision on the papers. The Member then advised that she was happy to consider any further submissions sent by COB 24/01/2023. No Malay Interpreter was available for that present time due to short notice. Hearing was completed.

1. On 25 January 2023, the Tribunal sent a letter to the applicant, via Mr Issa, confirming his consent at the hearing to proceed to make a decision in his matter on the papers. The Tribunal informed the applicant about the issue on review, being whether he had the financial capacity to support himself for the period of his intended stay in Australia (cl 602.216), and requested him to provide any additional information he wanted the Tribunal to consider by 6 February 2023.
2. On 27 January 2023, the Tribunal sent the applicant (via Mr Issa) a s 359A invitation for the applicant to comment on or respond to information which, subject to his comments or response, would be the reason or part of the reason for affirming the decision under review. The invitation set out the following particulars:

On 30 December 2021 you submitted to the Tribunal a Request for Fee Reduction of 50% of the $3000 Tribunal application fee for your Medical Treatment visa. In your responses to questions in your application form:

3. Do you receive financial support from a partner, relative or friend? it yes, provide details of the person providing financial support and the type and amount of support received.

You stated that you did not receive any financial support and that your parents had been supporting you financially, but they were currently on Bridging visa E which did not entitle them to work. You also stated that you were currently on a Bridging visa which did not entitle you to work.

8. Do you have any expenses or other debts, loans or financial commitments?

You stated that you have to pay for your medical treatment (cancer treatment), have not been working for the past 5 years as you have been very ill and receiving treatment for your cancer.

1. The Tribunal explained that the information was relevant to the cl 602.216 requirements and that, if it relied on the information, it may conclude that he did not have, or have access to, adequate means to support himself during the period of his intended stay in Australia.
2. On 14 February 2023, the Tribunal affirmed the delegate's decision to refuse the visa. The applicant was notified of the decision on 15 February 2023.
3. The Tribunal recorded in a case note made on 22 February 2022, that the applicant contacted the Tribunal requesting a copy of the Tribunal's decision, which the Tribunal advised had already been sent to Mr Issa: at CB 220.

1. The Tribunal provided a summary of the applicant's visa application history before setting out the legislative criteria for a Medical Treatment visa: at [2]-[23]. The Tribunal identified the requirements for the grant a Medical Treatment visa as set out in Part 602 of Schedule 2 of the Regulations: at [29].
2. The Tribunal found that the applicant did not satisfy cl 602.212(6). Accordingly, the requirement in cl 602.216 to have, or have access to, adequate means to support himself during the period of his intended stay applied.
3. In considering whether the applicant satisfied the requirements in cl 602.216, the Tribunal reasoned as follows:

37. The applicant stated in his visa application that his parents would cover 'all costs' relating to his intended stay in Australia for medical treatment. However, no evidence was provided to the Department to demonstrate that the applicant's parents would provide such support and he failed to respond to the Department's request for information in this regard.

38. Nor was any evidence provided to the Tribunal that the applicant had adequate means, or access to adequate means to support himself during the period of his intended stay in Australia. As noted in paragraphs 22 and 23, the applicant was invited to provide any additional information to demonstrate that he satisfied clause 602.216 of the Migration Regulations but failed to do so.

39. Further, the Tribunal notes that in his application form for an application fee reduction, the applicant stated that he had to pay for his medical treatment (cancer treatment) but had not been working for the past 5 years due to his illness. He stated that he did not receive any financial support and that his parents had been supporting him financially, although their visa did not entitle them to work. As noted in paragraphs 24 - 27, the Tribunal put this information to the applicant under s.359A seeking his comment or response. However, no response was received from the applicant.

40. The Tribunal is therefore not satisfied that the applicant has adequate means or access to adequate means to support himself during the period of his intended stay in Australia.

1. At [41], the Tribunal found that cl 602.216 was not met and affirmed the decision not to grant the applicant the visa.

1. The application which commenced proceedings in this Court contained three grounds pertaining to the extension of time and 24 grounds in respect of the proposed application for judicial review.
2. The applicant filed an affidavit in support of the application, sworn on 5 April 2023, which annexed a copy of the Tribunal's decision record and set out the 24 proposed grounds of judicial review. The affidavit was taken as read and is in evidence.
3. The Minister filed the affidavit of Lily Joelle Butterfield, affirmed on 13 June 2025, which annexed a transcript of the Tribunal hearing held on 24 January 2023 (Butterfield Affidavit).
4. The Minister filed written submissions and a list of authorities on 29 September 2025.
5. The parties appeared before the Court at the hearing on 14 October 2025. The applicant appeared in person and was assisted by an interpreter in the English and Malay languages. Ms K Hooper of Counsel appeared on behalf of the Minister.
6. The Court Book filed by the Minister was tendered into evidence at the hearing and marked Exhibit CB.

Consideration of the extension of time application

1. The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
2. Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:

(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and

(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.

1. The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He provided the following grounds (without alteration, save as to formatting) in support of his application for extension of time:
   1. The email is on the junk from 24/2/23 from officer Declan Parkee. My dad open the email and found in junk on 10/3/23.
   2. We are firing the lawyer to send the decision but he not sending and turn call. Lawyer migration not informed the decision of the MRT to me. My dad never open the emails and check the email from lawyer.
   3. Only email received on 24/2/23 and checked on 10/3/23 from AAT.
2. The Minister consented to the application to extend time on the basis that it was necessary for the interests of the administration of justice for time to be extended, however, opposed the substantive relief sought by the applicant.
3. Given the consent of the Minister to the applicant's extension of time application and the Minister's desire to address the substantive application for judicial review, the Court granted the extension of time sought pursuant to s 477 (2) of the Act.

1. The applicant's 24 proposed grounds for judicial review can be summarised as follows:
   • Grounds one to six provide details of the applicant's medical history and ill health. They do not raise any proper grounds of judicial review.
   • Grounds seven to ten provide details of the application for review lodged with the Tribunal on behalf of the applicant by Mr Issa, the request for fee reduction lodged with the application, and the reason the applicant had requested the fee reduction. Again, these grounds do not give rise to any argument of jurisdictional error.
   • Grounds 11 to 17 provide details about the hearing and the Tribunal's correspondence with Mr Issa after the hearing. The applicant said he was invited to a hearing on

17 January 2023, he attended the hearing, he was unable to speak English properly and was feeling unwell. He said his lawyer, Mr Issa, 'is very bad' and 'does not get all the matter'. He referred to the Tribunal's reasons at [23], where it said no additional information had been provided and said it was 'not fair'. He said Mr Issa had informed the Tribunal that he (the applicant) did not wish to proceed with the hearing and consented to a decision being made on the papers, which was not true and that the lawyer should have discussed this with him and should have informed him of the Tribunal's request for information. In respect of these grounds, the Minister has identified two issues which raise potential arguments of jurisdictional error. These are discussed below. * Grounds 18 to 24 provide details about the applicant feeling unwell on the day of the hearing and his desire to remain in Australia to continue treatment. These grounds also do not raise any proper grounds of jurisdictional error. 2. At the hearing before the Court, the applicant was unable to expand upon the grounds set out in his application. 3. The Minister identified two issues. First, whether the period of notice for the rescheduled hearing was reasonable. Second, whether the Tribunal erred in proceeding to make a decision on the papers.

1. The Minister submitted that a rescheduled hearing does not involve a fresh invitation for the purposes of s 360 of the Act. The Minister relied upon Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572 at [79]-[82] to contend that a rescheduled hearing was a variation of the original hearing invitation.
2. The Minister submitted that the 14-day notice to an applicant to attend a hearing, as required by reg 4.21(4)(b) of the Regulations, does not apply to an invitation to a rescheduled hearing: Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358; (2011) 199 FCR 51 (Ogawa) at [27]-[35]; SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026; (2005) 144 FCR 251 at [29].
3. The Minister submitted that the period of seven days' notice given to the applicant was reasonable in the circumstances; those being, that the factual and legal issues were not complex, the applicant was legally represented by a solicitor who provided an affirmative response to the hearing invitation despite the shortened period of notice, and that the applicant and his legal representative attended the rescheduled hearing.
4. While I did not understand the applicant's complaint to be about the period of notice of the rescheduled hearing, I have nevertheless considered this issue as it has been raised by the Minister.
5. The initial invitation to appear before the Tribunal on 17 January 2023 to give evidence and present arguments relating to the issues arising in his case was sent to the applicant by email (via his authorised representative) on 21 December 2022. There is no dispute that this invitation complied with the requirement in reg 4.21(4)(b) of the Regulations to provide a period of notice of at least 14 days after receiving the notice of the invitation to appear before the Tribunal.
6. The invitation for the rescheduled hearing was sent to the applicant by email (via his authorised representative) on 17 January 2023. The hearing was rescheduled to 24 January 2023. This is a notice period of seven days.
7. I accept, as submitted by the Minister, that the prescribed period of notice of 14 days does not apply to an invitation to a rescheduled hearing. This is well established by the case law, including the authorities relied upon by the Minister. The issue then is whether the period of notice of seven days was reasonable: see Ogawa at [36]-[37]. Having regard to the types of matters for consideration set out in Ogawa at [37], I note the following: the prescribed period of notice in respect of the initial proposed hearing date was 27 days; the factual and legal issues were not complex and related to the same issue (financial capacity) on which the delegate refused to grant the visa; and, as submitted by the Minister, the applicant's solicitor did not raise any issues about the period of the notice for the rescheduled hearing being inadequate and had confirmed the applicant's attendance at the hearing; and the applicant and his representative attended the rescheduled hearing. In the circumstances, I am satisfied that the period of notice for the rescheduled hearing was not 'unreasonably short': Ogawa at [29].
8. I accept, therefore, that the period of notice given in the invitation for the rescheduled hearing does not identify error on the part of the Tribunal.

The Tribunal proceeding to make a decision on the papers

1. The applicant's grounds indicate he was aggrieved by Mr Issa consenting, on his behalf, to the Tribunal making a decision on the papers without first discussing this option with him.
2. The Minister submitted that evidence in the Court Book, being the notation in the footer of the hearing record at CB 215 (and repeated in the running record of case notes at CB 220) and the Tribunal's decision at [20] indicate that consent was given by the applicant's representative, on behalf of the applicant, for a decision to be made on the papers. The Minister observed, however, that this consent was not audible on the hearing recording, nor found in the hearing transcript. The Minister suggested that this could have been due to the recording of the hearing being stopped and started on multiple occasions: at CB 216 and Butterfield Affidavit at T17.
3. The Minister submitted the consent of Mr Issa on behalf of the applicant was confirmed by the Tribunal by way of its written correspondence. The Minister submitted that if there was a lack of consent, and Mr Issa was aware of this, it was reasonable to expect Mr Issa to have responded to the Tribunal's correspondence to correct it.
4. The Minister, in any event, accepted that the applicant did not consent for the purposes of s 360(2)(b). The Minister submitted that if Mr Issa had conveyed that the applicant consented, he may have been mistaken as to the applicant's instructions and/or there was a misunderstanding due to the absence of an interpreter. The Minister referred to the hearing invitation responses in which the applicant had indicated he would like to attend the hearing and his appearance at the hearing despite being unwell on the day.
5. The Minister noted that the applicant had adduced evidence to disprove his consent and there was no intention to cross-examine him on that evidence.
6. The Minister submitted that, in any case, because the applicant did not respond within the period prescribed by a valid s 359A invitation, he consequently lost his entitlement to a hearing, and the Tribunal lacked the authority to invite him to a hearing.
7. The Minister submitted that the information set out in the s 359A invitation letter was not excluded by any provision in s 359A(4). The Minister relied on Rokoloati & Ors v Minister for Immigration & Anor (2006) 203 FLR 258 (Rokoloati) at [25]-[30] to contend that the documents given in support of a fee waiver application, did not come within s 359A(4)(b).
8. The Minister submitted that the s 359A invitation provided 14 days to respond, as required by s 359B(2) of the Act and reg 4.17(4) of the Regulations, and that the applicant's failure to respond within the prescribed period resulted in him being disentitled to another hearing and the Tribunal had no power to invite him to a hearing: ss 359C(2), 360, 363A and Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (Hasran) at [25]-[32].
9. The Minister submitted that, assuming as a matter of jurisdictional fact, the applicant did not consent to the review being decided on the papers; irrespective of that assumption, it did not constitute a breach of s 360 of the Act because s 359C(2) applied to the applicant.
10. I accept that the Tribunal did not breach s 360(1) of the Act.
11. The obligation in s 360(1) to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review is subject to several exceptions: s 360(2). The exceptions are:

(a) where the Tribunal considers it should decide the review in the applicant's favour on the basis of the material before it: s 360(2)(a); or

(b) where the applicant consents to the Tribunal deciding the review without the applicant appearing before it: s 360(2)(b); or

(c) where subsections 359(C)(1) or (2) apply to the applicant.

1. If any of the above exceptions apply, then the applicant is not entitled to appear before the Tribunal: s 360(3). In the circumstances, the Tribunal has no power to permit the applicant to appear before it: s 363A.
2. While the applicant was invited to a hearing and appeared before the Tribunal at the scheduled hearing on 17 January 2023, the applicant did not have the opportunity to give evidence and present arguments on the issue under review because he had difficulty communicating in English and needed an interpreter.[2] He was also not feeling well on the day of the hearing.[3] The hearing transcript confirms that the applicant indicated on several occasions that he wished to give evidence at the hearing, however, he needed an interpreter and was not feeling well. The transcript indicated that the Tribunal adjourned briefly to give Mr Issa the opportunity to discuss with the applicant whether he wished to participate or whether he would prefer not to proceed with the hearing and for the Tribunal to make a decision on the papers.[4] There is no record (in the transcript) of Mr Issa advising the Tribunal that the applicant had consented to the Tribunal proceeding to a decision on the papers. However, there is a very detailed notation to this effect: at CB 215, CB 220. There was also the letter sent to the applicant (via Mr Issa) following the hearing which sought to confirm his consent to the Tribunal deciding the matter on the papers: at CB 224. No response was received by the Tribunal to that letter.
3. If the applicant had consented to the Tribunal deciding the review without him appearing before it, as provided for in s 360(2)(b), then he would not have been entitled to appear before the Tribunal. The applicant has put on affidavit evidence in which he said that Mr Issa's advice to the Tribunal that he 'did not want to proceed with the hearing and consented to a decision being made on the paper[s] was not true'. The Minister has not sought to cross-examine the applicant on this evidence and accepted that the applicant did not so consent. The Tribunal's reasons at [20], indicate that Mr Issa advised that the applicant had consented to a decision being made on the papers, however, the Tribunal also sought to confirm that advice by writing to the applicant after the hearing. No response was received by the Tribunal from the applicant or Mr Issa to confirm the applicant's consent.
4. The evidence before the Court does not support a finding that the applicant had consented to the Tribunal making a decision on the papers without allowing him to appear before it. It is reasonable to infer, as suggested by the Minister, that any advice conveyed by Mr Issa to the Tribunal about the applicant consenting to the Tribunal deciding the matter on the papers was likely due to either a mistaken understanding by Mr Issa as to the applicant's instructions or due to miscommunication between the applicant and Mr Issa because of the applicant's limited command of English. Mr Issa informed the Tribunal at the hearing that he did not speak the same language as the applicant and that they communicated only in English.[5] The applicant informed the Tribunal at the hearing that he can't speak English and needs an interpreter.[6] The applicant had indicated that he wanted to give evidence in support of the review and his purported consent for a decision to be made on the papers (erroneously communicated via Mr Issa at the hearing) was not confirmed after the hearing in writing, despite the Tribunal's efforts to obtain that confirmation.
5. I find that the applicant had not consented to the Tribunal making a decision on the papers without allowing him to appear before it, it follows that s 360(2)(b) did not apply to the applicant so as to disentitle him from appearing before the Tribunal.
6. The next issue for consideration is whether the applicant was not entitled to appear before the Tribunal because ss 359(C)(1) or (2) applied to him. The relevant provision in the present case is s 359(C)(2) which states if the applicant is invited under s 359A to comment on or provide information and does not do so before the time for giving them has passed, the Tribunal may make a decision on the review without taking any further action to obtain the applicant's view on the information.
7. As held in Hasran at [27], a failure to respond to the Tribunal's s 359A invitation had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
8. As to the validity of the s 359A invitation, I accept the Minister's submission that the invitation was properly issued. It was sent to the applicant by email (via his authorised representative/recipient) to the last email address provided to the Tribunal in connection with the review: s 379A(5). The invitation complied with s 359B in that it specified the way in which the comments or response may be given by the applicant, it specified the prescribed period of 14 days (reg 4.17(4)) within which the applicant was required to provide the response and indicated that the applicant could seek an extension of time.
9. As to whether the information particularised in the invitation enlivened s 359A, the Minister relied upon the reasoning in Rokoloati; a Federal Magistrates Court (FMC) authority which held that an application for a fee waiver was a separate application from the review application, such that if the Tribunal wished to rely on information provided in support of the fee waiver application in a way adverse to the applicant for the purposes of the review application, then it was required to comply with its obligation under s 359A of the Act. The FMCA found that information provided in support of a fee waiver application did not come under the exception in s 359A(4)(b) because it was not information given for the purposes of the application for review.
10. As a matter of judicial comity, and in circumstances where the reasoning of Driver FM (as his Honour then was) was not plainly wrong, I am obliged to follow that decision.[7] The applicant in the present case provided information about his financial circumstances in support of a request for a fee reduction: at CB 116-131. As reasoned in Rokoloati at [27], it is inconceivable that the applicant would have provided this information in support of his review application in circumstances where it was 'clearly adverse information' which suggested he would not have adequate means (or access to adequate means) to support himself for the intended period of his stay in Australia as required by cl 602.216. The information provided as part of the request for a fee reduction was therefore information that enlivened the Tribunal's obligation under s 359A of the Act.
11. In the present case, the Tribunal complied with its obligation under s 359A by disclosing the adverse information in the fee reduction application, explaining to the applicant the relevance of that information to his application for review of the delegate's decision to refuse to grant him the visa, and the consequences if it relied on that information.
12. The invitation given to the applicant under s 359A of the Act was valid and the applicant's failure to give comments or provide a response before the prescribed period had ended meant that s 359(C)(2) applied to him and he was no longer entitled to appear before the Tribunal:

ss 360(2)(c) and s 360(3). Further, the Tribunal had no power to permit the applicant to appear before it at a hearing: s 363A. 13. For these reasons, I accept that the Tribunal did not breach its obligation in s 360(1). 14. In the circumstances, the Tribunal was entitled to proceed to make a decision on the review without taking any further action to obtain the applicant's views on the information:

s 359(C)(2). 15. It was not legally unreasonable for the Tribunal to proceed to a decision on the material before it in circumstances where the issue in the review was the same as that which was before the delegate, and where the Tribunal had put the applicant on notice of the issue in the review by its letter, dated 25 January 2023, in which it asked him to provide any additional information he wished the Tribunal to consider. Also, in the hearing invitation of 21 December 2022, the applicant was asked to provide the documents he intended to rely on in support of his case by 10 January 2023: at CB 154. The Tribunal's discussion of the history of the matter in its reasons and the efforts made by it to obtain information and/or comments or a response from the applicant relevant to the issue in the review, in my view, provides an evident an intelligible justification for why it proceeded to make a decision on the review on 14 February 2023 without taking any further action. 16. No error arises from the Tribunal proceeding to make a decision on the review following the applicant's failure to respond to the s 359A invitation.

1. In the application for judicial review, the applicant made several complaints about the conduct of Mr Issa. In his affidavit, the applicant said his lawyer was 'very bad' and he did not get 'all the additional information requested from MRT' and did 'not requested from me [information] to assist the MRT decision and hearing'.
2. In addressing the applicant's complaint that Mr Issa was 'very bad', the Minister submitted that without more, this did not establish jurisdictional error by the Tribunal, cf. generally SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) in the case of third party fraud vitiating the conduct of the review.
3. The complaints raised by the applicant suggest that Mr Issa did not inform the applicant of the Tribunal's request for information and/or provide the requested information to the Tribunal to assist it with its decision. At their highest, the applicant's complaints appear to raise allegations of fraud by his legal representative.
4. To establish jurisdictional error on the basis of fraud requires the applicant to demonstrate that a third party (in this case, Mr Issa) had engaged in deliberately dishonest conduct. Fraud is a serious allegation and probative evidence is required to establish such an allegation: see SZFDE at [38], [48]‑‑-[51]. It must also be demonstrated that the fraud prevented or disabled the Tribunal from conducting a review in accordance with its obligations under Part 5 of the Act: see SZFDE at [47]. It is not sufficient that there was dishonest conduct that detrimentally affected the applicant: see Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 at [52]. Failure to inform, bare negligence, or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal: Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501 at [33].
5. Even accepting the applicant's evidence that Mr Issa failed to inform him of the requests for information and/or that Mr Issa had failed to provide the requested information to the Tribunal, this did not constitute fraud. It cannot be inferred from the evidence before the Court that Mr Issa had engaged in deliberately dishonest or fraudulent conduct, and I consider it more likely that any failure to inform the applicant about the request for information and/or to provide information to the Tribunal was the result of negligence, incompetence, or oversight on the part of Mr Issa. Such conduct does not amount to fraud on the Tribunal.
6. Jurisdictional error based on the conduct of the applicant's representative has not been established.

1. As none of the grounds raised establish jurisdictional error, the application for judicial review must be dismissed.
2. I will hear the parties as to costs.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.

[2] Butterfield Affidavit at annexure LJB01, T10-T12.

[5] Butterfield Affidavit at annexure LJB01, T8[115]-[116].

[7] Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38].