Key Takeaways

The proposed amendments will allow the Tribunal to identify matters that it considers can be adequately determined without a hearing. Key points to note are:

• The Tribunal must give parties a reasonable opportunity to make submissions before exercising this power
• The expansion of the Tribunal’s powers will lead to further judicial consideration and commentary in relation to when it will be reasonable to proceed to making a decision without holding a hearing, and any additional procedural fairness obligations that may arise
• Agencies and practitioners should monitor developments in this area as the courts interpret and apply the new provisions.

Reaching a decision without holding a hearing

Section 106 of the ART Act currently sets out the circumstances in which the Tribunal may make a decision without holding a hearing. 

The Bill proposes amendments to s106 of the ART Act to allow the Tribunal to make a decision without holding a hearing if it appears to the Tribunal that:

• The issues for determination in the proceeding can be adequately determined in the absence of the parties
• It is reasonable in the circumstances to make the decision in the proceeding without holding the hearing of the proceeding (see proposed s106(6) of the ART Act, at Items 2 and 3 of Schedule 1 of the Bill).

Before the Tribunal can exercise this power, it must give the parties (other than a non-participating party), a reasonable opportunity to make submissions to the Tribunal in relation to the Tribunal exercising its power to make a decision without holding a hearing, and the Tribunal must have taken into account any submissions received (see proposed s106(7) of the ART Act, at Items 2 and 3 of Schedule 1 of the Bill).

Adequately determining the issues in the absence of the parties

In 2010120 (Refugee) [2025] ARTA 550 (BXFHJ), the Tribunal constituted by Justice Kyrou, President, Deputy President S Burford, and Deputy President K Dordevic, considered whether 'it appeared to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding'. In relation to the relevant components of this phrase, the Tribunal held:

• ‘It appears to the Tribunal’ suggests that the Tribunal has formed a view regarding the determination of the issues that does not necessarily reach a state of satisfaction or definitive conclusion
• ‘The issues for determination in the proceeding’ are the issues that can be identified from the documents lodged with the Tribunal in relation to the application.Those issues might be the statutory criteria for the decision in question, the issues identified in the decision being reviewed, or arise on the information submitted by a participating party and
• ‘Can be adequately determined in the absence of the parties’ requires a consideration of the statutory context of the ART Act, such that the Tribunal could not made a decision without holding a hearing if it would not be ‘just and fair’, would not enable the Tribunal to give ‘proper consideration to the matters before the Tribunal’, would not comply with relevant procedural fairness requirements or would not enable the Tribunal to make the ‘correct and preferable decision’. This does not require the Tribunal to be satisfied that it has sufficient information to determine the case in favour of the applicant, provided the applicant has been provided with a reasonable opportunity to present evidence and made submissions (as required by s55 of the ART Act).

These principles were cited with approval in BYI25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1671 (BYI25).

Reasonable in the circumstances

The Tribunal will not be able to exercise the power under the proposed s106(6) unless it appears to the Tribunal that it would be reasonable in the circumstances to make its decision without holding a hearing.    

Whether a decision of the Tribunal is reasonable in the circumstances, will require the consideration and application of the well settled jurisprudence in relation to legal unreasonableness (for example Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; HCA 16 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18 (Li)). The phrase 'reasonable in the circumstances' will likely be interpreted consistently with these administrative law principles, requiring the Tribunal to exercise the power within the bounds of legal reasonableness. While each matter will turn on its own set of facts, the following matters may suggest that it is not reasonable for the matter to be determined without the opportunity to attend a hearing:

• A witness’s credibility or bona fides are in issue
• The genuineness of the documentary evidence may be in issue
• Where the matter raises serious issues such as fraud or criminality, where the opportunity to be invited to give oral evidence and be provided with appropriate warnings would be required
• A party would be prevented from being able to present their case without an oral hearing (for example, where the party may have difficulty communicating in writing, either due to an impairment, or language barriers)
• The matter is of sufficient complexity that a hearing is required or
• There has been a very significant period of time between the commencement of the application and the decision to dispense with a hearing (particularly if there has otherwise been some engagement between the party and the Tribunal).

Any decision that it would be reasonable in the circumstances to dispense with a hearing, must have an intelligible justification for the decision (Li at [105]).

Procedural Fairness

The power to proceed without a hearing under the proposed s106(6) will not be able to be exercised unless the Tribunal complies with the proposed s106(7), by providing the parties with a reasonable opportunity to make submissions in relation to the possibility of the Tribunal proceeding to make a decision without holding a hearing. The Tribunal must take into account any submissions received.

The Tribunal is under no general duty to undertake their own enquiries to supplement information provided by a party: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429. However, given the Tribunal only needs to form a view that the issues can be adequately determined in the absence of a hearing, where the Tribunal decides to dispense with a hearing, it may be subject to an ongoing obligation to seek information, for example, where the Tribunal’s initial view that the issues for determination can be adequately determined without a hearing changes in the course of writing its decision.

In BYI25, Judge Marquard suggested that in such a scenario, the Tribunal may need to write to the party to resolve any outstanding questions before proceeding to make its decision. 

Practical considerations for practitioners

Practitioners should ensure that any submissions opposing a decision without a hearing are lodged promptly and address the criteria in proposed s106(6) directly. In particular, submissions should identify specific reasons why the issues cannot be adequately determined in the absence of the parties, and why it would not be reasonable in the circumstances to dispense with a hearing. Reference to the factors identified in BXFHJ and BYI25 will assist in framing such submissions.

Conclusion

As the Courts consider and apply the ART Act, and Parliament continues to consider mechanisms to assist the Tribunal to meet its objective to resolve matters as quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits, we will continue to see this area of law, and the judicial review of Tribunal decisions evolve. It will be important for agencies and practitioners to monitor these developments as they arise.

Further information / assistance regarding the issues raised in this article is available from the author, Sarah Thompson, Partner, or your usual contact at Moray & Agnew.