BSI23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 217

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant, allocated the pseudonym BSI23, is a citizen of India, born in 1984. He applied to the Department of Home Affairs (Department) for a Medical Treatment (subclass 602) visa on 24 December 2021 (the visa application).
2. The visa application was refused by a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (now the Minister for Immigration and Citizenship (the Minister)) (the delegate) on 19 July 2022 (the delegate's decision).
3. The applicant applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)) on 8 August 2022 for review of the delegate's decision.
4. On 31 May 2023, the Tribunal affirmed the decision not to grant the visa, on the basis that the applicant did not meet the relevant criteria set out in cl 602.215 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) (the Tribunal's decision).
5. The applicant applied to this Court pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of the Tribunal's decision on 5 July 2023.
6. The matter was listed for a callover before a Registrar on 24 March 2025. The applicant did not appear and the Registrar dismissed the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (as was applicable at the time the orders were issued) (the 2021 GFL Rules).
7. On 28 March 2025, the applicant filed an application in a proceeding seeking to set aside the orders made by the Registrar on 24 March 2025 (the reinstatement application).
8. On 28 August 2025, a Registrar dismissed the reinstatement application (the Registrar's decision).
9. By application pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) made on 10 September 2025, the applicant now seeks judicial review of the Registrar's decision.
10. For the reasons that follow, the application for review of the Registrar's decision should be dismissed with costs.

1. At the interlocutory hearing for review of the Registrar's decision before this Court on 2 December 2025, the following documents were received into evidence, without objection:

(1) a court book, filed 2 August 2023, compiled by the first respondent and comprised of relevant documents from the Department and Tribunal concerning the visa application and the application for Tribunal review;

(2) an affidavit affirmed by the applicant on 5 July 2023 made in support of the applicant's originating application and annexing the Tribunal decision record;

(3) an affidavit affirmed by the applicant on 28 March 2025 made in support of the reinstatement application, and annexing a copy of the Registrar's orders made 24 March 2025 (dismissing the originating application for non-appearance) and correspondence exchanged between the Court's migration team and the applicant following the applicant's non-appearance at the callover before the Registrar on that same date; and

(4) an affidavit affirmed by the applicant on 11 September 2025, annexing a copy of the Registrar's orders made 28 August 2025 (dismissing the reinstatement application with costs) and a copy of the Registrar's written reasons (being BSI23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1378).

1. The first respondent did not require the applicant for cross-examination.

1. The reinstatement application before the Registrar was conducted in accordance with the 2021 GFL Rules. The 2021 GFL Rules were in effect until 1 September 2025, when the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the 2025 GFL Rules) came into effect. There has been no relevant change to the Rules which affects either the approach to be taken by the Court in the conduct of the present review or the circumstances that enliven the Court's discretion to summarily dismiss an application.
2. As the present application seeks review of a decision made by a Registrar exercising delegated powers, a hearing de novo of the applicant's interlocutory application is required: r 21.04 of the 2021 GFL Rules; r 3.08 of the 2025 GFL Rules. The applicant may prosecute his interlocutory application for reinstatement again.
3. The originating application was dismissed pursuant to r 13.06(1)(c) of the 2021 GFL Rules on account of the applicant's non-appearance. Rule 22.04(1)(a)(i) of the 2025 GFL Rules empowers the Court to make the same order in the event an applicant fails to appear at a hearing.
4. The Court is empowered by r 24.04(a) of the 2025 GFL Rules (the analogue of r 17.05(2)(a) of the 2021 GFL Rules) to exercise its discretion to reinstate the applicant's application for judicial review, should it so choose. That section of the 2025 GFL Rules (which is relevantly identical to r 17.05(2)(a) of the 2021 GFL Rules) provides:

24.04 Varying or setting aside a judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a) it was made in the absence of a party

...

1. When deciding whether to reinstate an application that has been dismissed due to the non-appearance of the applicant, the Court is required to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) (per Flick, Robertson and Lee JJ at [50] to [52]). The Full Court there observed that there are three factors that are often considered in such applications, namely:
   1. a reasonable explanation for the applicant's absence at the trial or hearing;
   2. material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
   3. no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
2. However, their Honours rejected an argument that the factors above are mandatory considerations; rather, they are potential aspects informing as to where the interests of justice lie in any case and are to be considered only so far as they are relevant in any particular matter.
3. If there is no arguable case on judicial review, it is unlikely that the interests of justice will be served by exercising the discretion to reinstate: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4], per Mortimer J (as her Honour then was). There can be no point in directing the resources of the justice system to hearing an unarguable case. However, in assessing whether a ground of review is "arguable", the Court should not expect a fully developed ground of review to be presented, particularly in circumstances where an applicant is non-legally trained and non-English speaking. Rather, if the ground is not illogical, fanciful, devoid of merit, or impermissible, but has a level of rationality and a basis in the material before the Court, the threshold will be met: CAL15 at [6].

1. The applicant is a citizen of India.
2. The applicant entered Australia on 28 February 2006 as the holder of a Tourist (Subclass 676) visa and, as at 30 December 2021, had not departed.
3. On 18 April 2006, the applicant applied to the Department for a permanent Protection visa. That application was refused by the Department and Tribunal, such decisions being affirmed by this Court upon appeal by the applicant. Following the applicant's unsuccessful appeal for judicial review, he was subject to an adverse costs order in the amount of $8,950. That debt to the Commonwealth remained outstanding for payment as at the date of the applicant's application for the medical visa in 2021.
4. On 16 October 2006, the applicant's bridging visa expired. Notwithstanding that expiration, the applicant remained onshore as an unlawful non-citizen.

1. The applicant made an application for the Medical Treatment (subclass 602) visa to the Department on 24 December 2021. The applicant appointed a registered migration agent to act on his behalf (the authorised agent). The applicant also provided his email address (the Yahoo address) on his visa application form. The visa was sought to enable the applicant to undergo surgery on his cervical spine.
2. The applicant provided with his visa application a letter from his neurosurgeon describing the surgery and the post-surgical rehabilitation process.
3. On 19 July 2022, the visa application was refused by the delegate. A copy of the notification of refusal letter and the decision record which it annexed was provided to the authorised agent.
4. The delegate was not satisfied that the applicant met the criteria in cl 602.215 of Sch 2 of the Regulations, namely, that he intended to stay temporarily in Australia for the purpose for which the visa is granted, being the medical treatment. The delegate expressed particular concern about the fact that the applicant had been in Australia since 28 February 2006, and sought to prolong his stay even further by the present visa application. The delegate ultimately concluded that the applicant was attempting to utilise the medical treatment visa as a means to maintaining ongoing residence in Australia.
5. Clause 602.215(2) of sch 2 of the Regulations provided that the requirements of cl 602.215(1) did not apply if the requirements of cl 602.212(6) were met in relation to the applicant. Subclause 602.212(6) applied where the visa applicant was over 50 years of age, otherwise met the visa criteria, had been refused the visa, but was medically unfit to depart Australia. The delegate observed that the applicant had not demonstrated that he was unfit to depart Australia.

1. On 8 August 2022, the applicant made an application to the Tribunal for review of the delegate's decision. In the Tribunal application, the applicant nominated a migration agent (from the same migration agency as that on his application to the Department) as his representative. Under a section headed 'Recipient details', the Tribunal application form stated the following:

Correspondence will be sent either to the person seeking review or to the person nominated to receive correspondence on their behalf. Any document that is sent to a person authorised by the person seeking review to receive correspondence will be taken to have been given to them.

...

You have indicated that you appoint a representative to act on the applicant's behalf, which also appoints them as the authorised recipient of communication from the AAT

1. On 9 August 2022, the Tribunal sent to the applicant (via email to the authorised agent) an acknowledgement of application letter. This letter, inter alia, set out the following:

It is important that you:

• tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;

• tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

...

1. On 21 March 2023, the Tribunal sent to the applicant (via email to the authorised agent) an invitation to attend a hearing (the invitation), a fact sheet containing information about hearings in the Tribunal, and a response to hearing invitation form. The invitation set out on its front page that the hearing was to take place at 2.00 pm on 12 April 2023 at the Tribunal at its address in Canberra. The invitation also set out the following (emphasis in original):

What will happen if you don't appear

If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:

• if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;

1. The enclosed fact sheet also contained the same information in substantially identical wording.
2. On 21 March 2023, the authorised agent made a request that the hearing be postponed, due to the unavailability of the authorised agent. The Tribunal acceded to that request on that same day, and reissued an invitation to attend a hearing, to take place at 1.00 pm on 21 April 2023.
3. On 28 March 2023, the applicant provided to the Tribunal a completed 'Response to hearing invitation form', stipulating that he would be participating in the hearing, but that his authorised agent would not be participating, and that he required the assistance of a Punjabi or Hindi interpreter.
4. On 21 April 2023, the Tribunal conducted the hearing, during which the applicant attended and gave oral evidence. The authorised agent did not attend the hearing before the Tribunal.

1. On 31 May 2023, the Tribunal made a decision to affirm the delegate's decision not to grant the applicant the visa (the Tribunal's decision).
2. On 1 June 2023, the Tribunal sent the applicant (via email to the authorised agent) a notification of decision letter, which attached the Tribunal's decision and a fact sheet with information about Tribunal decisions.
3. The Tribunal observed that the applicant was not over the age of 50 years. Accordingly, he could not satisfy the "unfit to depart" criterion in cl 602.212(6) of Sch 2 of the Regulations, and the applicant had to satisfy the Tribunal that he met the criterion in cl 602.215(1), namely, that he intended to remain in Australia temporarily.
4. The Tribunal found that the applicant's immigration history, including his significantly lengthy stay as an unlawful non-citizen, weighed heavily against him in assessing whether the applicant satisfied the criteria for the medical treatment visa (at the second paragraph numbered [8] of the Tribunal's reasons, below the heading "Consideration of Claims and Evidence").
5. The Tribunal considered that the applicant did not provide any evidence to the Tribunal of an incentive to return to India following the completion of his medical treatment, and the Tribunal was not satisfied that the applicant planned to depart Australia following medical treatment. Noting the applicant had not undergone the planned surgery, the Tribunal considered the applicant was delaying his treatment for the purpose of remaining in Australia.
6. The Tribunal was not satisfied that cl 602.215 of Sch 2 of the Regulations was met and affirmed the decision under review to refuse the grant of the visa.

1. On 5 July 2023, the applicant filed the present application with this Court. The application did not identify a legal representative for the proceeding. The applicant provided the Yahoo address as his email address on the footer of his originating application.
2. The applicant's originating application contained the following grounds (as per original):

Ground 1

The Tribunal failed to provide sufficient information related to his appeal rights and therefore, it failed in its duty to provide adequate procedural fairness to the applicant.

Particulars

The AAT in its website or in the uploading section failed to brief or advise the applicant that if he provides the Departmental decision record then the Tribunal has no obligation to put information under s 359 A or S 359 AA under the Migration Act.

Ground 2

The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

Particulars

a) The Tribunal noted that and raised concern on the basis of applicant's immigration history, particularly his unlawful period for 15 years.

b) The applicant has a partner in Australia.

1. The applicant applied for a permanent protection visa which was refused, and he sought a review of the decision before the Tribunal and the Federal courts.

   d) The applicant has been in Australia continuously since he arrived on 28 February 2006 holding a Tourist (Subclass 676) visa.

Ground 3

The tribunal decision is infected with a legal error because there is no evidence provided by the Tribunal in support of its decision.

Particulars

The Tribunal noted that the applicant could pay for suitable medical treatment in India. However, the tribunal failed to provide any evidence that there is available medical treatment in India where the applicant would be able to get quality and standard of medical treatment and care similar to Australia.

1. On 23 May 2024, the Court's migration team sent an email to the parties (directed to the applicant's Yahoo address) attaching a set of timetabling orders which had been made in Chambers by a Registrar. The body of the email to which the orders were attached stated the following, inter alia (emphasis in original):

Reminder for all applicants:

If you change address, telephone number, email address or lawyer, please ensure you complete a Notice of Address for Service form (available from the Forms section on the Federal Circuit and Family Court website) and file this with the Court either:

• via eLodgment (first-time users will need to register); or

• in person or by post to your local Registry

If you are unable to file using the methods above you may be able to file by email. Please contact your local Registry for further information.

1. On 3 March 2025, the Court's migration team sent a further email to the parties. The email was sent to the applicant at the Yahoo address. It stated the following (emphasis in original):

Your matter has been listed for callover before Judicial Registrar Munro on 24 March 2025 at 10:15am (AEDT/Sydney and Melbourne Time).

The callover will be conducted by telephone (dial in). You must join the telephone hearing 15 minutes before it starts (at 10:00am AEDT) by dialling +61 [redacted] followed by the conference ID: [redacted]

The callover is not the final hearing and you will not be expected to make legal arguments.

There will be a number of matters listed at the same time. You must wait on the line until your matter is called and then speak when the Registrar asks for your appearance. Do not hang up until your matter has been called and dealt with.

If you experience any difficulty in dialling into the telephone hearing, please call [redacted] and ask to be put through to the Migration Team.

It is very important you attend the callover. If you miss the callover and do not appear by telephone, your matter may be dismissed and costs may be ordered against you.

1. Text which was bolded and underlined also appeared highlighted in yellow in the original email.
2. The callover proceeded before the Registrar on 24 March 2025. There was no appearance by or on behalf of the applicant at that listing. The Registrar made orders that the application be dismissed for non-appearance pursuant to r 13.06(1)(c) of the 2021 GFL Rules. The Court sent a copy of those orders by email to the parties on 24 March 2025. The email was sent to the applicant at the Yahoo address. The Court later that day sent an email to the parties (including to the applicant at the Yahoo address) attaching an amended order, which included the costs order that was made in favour of the first respondent by the Registrar in the callover (such order not having been included on the first version of the sealed orders due to a clerical error).
3. At 8.22 am on 25 March 2025, the applicant replied to the email from the Court, from his Yahoo address, stating:

I am writing in regards to the missed hearing on 24/03/2025.

It was due to the technical fault, as email address has been provided was not able to get retrieve.

Due to change of mobile device the important court hearing was missed, as I was unaware about the time and day.

Please suggest further process to this email.

...

1. On 28 March 2025, the applicant filed an application in a proceeding seeking reinstatement. The applicant filed an affidavit in support of the application in a proceeding. That affidavit set out the following:

1. I am the Applicant in these proceedings.

1. I am a self-represented applicant with limited English and technical knowledge.
2. On 24 March 2025 Registrar Munro dismissed my matter for not attending the Court. Annexed and marked hereto as AK-2 is a copy of the orders made on 24 March 2025
3. I am applying to the Court to set aside the orders above pursuant to 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) record from the ART.
4. I have limited English capabilities as I don't come from an English-speaking background.
5. Due to technical fault in my emails, I could not access to my emails. The error is beyond my capacity and it was a technical mistake.
6. I did not receive any phone calls from the Honourable Courts reminding about the Court hearing. The Honourable Court has my phone number and could have called on my phone and I would have at least attended the hearing by phone.
7. I am also providing a copy of an email annexed and marked as AK-3 that I sent to the court on 25 March 2025 explaining unable to retrieve the email message as I have changed phone and I have issues regarding my emails.
8. I respectfully submit that it is in the interest of administration of justice to reinstate my case because I have reasonable merit in my judicial review proceeding because the Tribunal made a jurisdictional error.
9. Based on the above compelling and compassionate reasons, I respectfully request the Honourable Court to reinstate my case.

Whether the applicant has an adequate explanation for the non-appearance

1. The first respondent did not cross-examine the applicant to challenge the evidence he gave in his affidavit attributing his failure to attend the callover to a technical problem with his phone that prevented him from accessing his emails. I am not persuaded by the applicant's explanation. It is not clear how the applicant could have had a technical problem that prevented him from retrieving the email dated 3 March 2025 advising him of the callover at any time prior to 24 March 2025, and that same technical problem did not prevent him from receiving the email from the Court at 4.50 pm on 24 March 2025 advising the application was dismissed. Both emails were sent to the same Yahoo address.
2. Notwithstanding the absence of a satisfactory explanation, the applicant responded to the Court in a timely fashion once he became aware of the missed callover and the orders made as a consequence of his default.

Whether there is any prejudice to the Minister if the matter is reinstated

1. No prejudice to the Minister has been identified.

Whether the applicant has an arguable case on judicial review

1. The applicant did not provide the Court with any written submissions in support of the grounds in his application. At the hearing he did not make any submissions which addressed the merit of his grounds. Accordingly, I have assessed the grounds on their face and have endeavoured to give them a generous reading.
2. The grounds in the originating application are addressed in turn below.

Ground 1: The Tribunal failed to provide sufficient information related to his appeal rights and therefore, it failed in its duty to provide adequate procedural fairness to the applicant.

1. The particulars to ground 1 appeared in the originating application as follows:

Particulars

The AAT in its website or in the uploading section failed to brief or advise the applicant that if he provides the Departmental decision record then the Tribunal has no obligation to put information under s 359 A or S 359 AA under the Migration Act.

1. The applicant did not elaborate on this ground, but it is fundamentally flawed.
2. The argument proceeds, effectively, that the Tribunal should have warned him against attaching a copy of the delegate's decision with his application, because if he had not, the Tribunal would have been obliged by s 359A of the Act to put the contents of the very decision that was in his possession, back to him for comment. The argument proceeds by reference to the decision in Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30 (Brar). A Full Court of the Federal Court (North, Greenwood and Besanko JJ) there concluded, at [74], where the review applicant had attached a copy of the delegate's decision to the review application, that information which was substantially similar to that in the delegate's decision need not be given to an applicant for comment in compliance with s 359A(1) of the Act. That was because s 359A(4)(b) of the Act excluded information that the applicant gave for the purpose of its review from the scope of the obligation imported by the section.
3. The applicant's argument imports an obligation upon the Tribunal, before it had any application before it, to provide a warning to an applicant not to provide a copy of the decision he challenged so that he (a person represented by a registered migration agent) might preserve the forensic advantage of the Tribunal being required to put back to him for comment the very decision he challenged. The applicant did not identify how the Tribunal giving him such a warning could have availed him in the circumstances, other than by preserving a ground of review in the event the Tribunal had failed to refer him to something that appeared in the decision below. To describe the Tribunal's failure to warn about such a matter as procedurally unfair is absurd.
4. The Tribunal's procedural fairness obligations, so far as they imported an obligation to notify the applicant about matters adverse to him and afford him an opportunity to address those matters, were dealt with in s 357A of the Act (as then in place):

357A Exhaustive statement of natural justice hearing rule

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

1. That is, the Tribunal's procedural fairness obligations were codified by the provisions referred to in that section.
2. None of the provisions to which s 357A of the Act refers obliged the Tribunal to warn prospective applicants about the operation of s 359A of the Act at the time they lodged their applications.
3. This ground does not have sufficient merit that the interests of justice require the application be reinstated so that it may be fully argued and considered.

Ground 2: The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

1. The particulars to Ground 2 appeared in the originating application as follows:

Particulars

a) The Tribunal noted that and raised concern on the basis of applicant's immigration history, particularly his unlawful period for 15 years.

b) The applicant has a partner in Australia.

1. The applicant applied for a permanent protection visa which was refused, and he sought a review of the decision before the Tribunal and the Federal courts.

   d) The applicant has been in Australia continuously since he arrived on 28 February 2006 holding a Tourist (Subclass 676) visa.

1. Sections 359A and 359AA of the Act operate together. Section 359A(3) of the Act provides that where the Tribunal has given clear particulars of the information and invited comment orally, under s 359AA of the Act, the Tribunal is not obliged to give particulars nor invite a response pursuant to s 359A of the Act.
2. Section 359A of the Act does not apply to information that the applicant gave for the purpose of the application for review: s 359(4)(b) of the Act.
3. The decision record that the applicant provided along with his application for review contained the following passages:

On 16 October 2006 the applicant's Bridging Visa expired and the applicant remained in Australia as an unlawful non citizen for more than fifteen years.

...

On 18 April 2006 the applicant demonstrated his intention to obtain a permanent visa by applying for a permanent Protection Visa.

The application was refused and the applicant sought review of the Department's decision at both the RRT and judicially.

Departmental records demonstrate that the applicant last entered Australia on 28 February 2006 as the holder of a Tourist (Subclass 676) Visa and has not departed since this time.

1. The matters in particulars (a), (c) and (d) of Ground 2 were the subject of discussion in the delegate's decision that was provided to the Tribunal by the applicant at the time he lodged his application. As such they are excluded from the obligation in s 359A: Brar at [74]. None of those matters gave rise to any obligation under s 359A and therefore do not support Ground 2 of the applicant's originating application.
2. However, the fact that the applicant had a partner was not mentioned in his visa application, nor was it mentioned in the delegate's decision.
3. The Tribunal (in the first paragraph numbered [11]) said:

The Tribunal put to the applicant that has a partner in Australia and asked what he plans to do when he is required to depart. He said many people have long distance relationships and they will do that also.

1. The Tribunal records the source of that information (at the second paragraph numbered [9])

At the hearing the applicant gave evidence that he has a partner in Australia and only has his father and a brother in India.

The applicant has been in Australia continuously since he arrived on 28 February 2006 holding a Tourist (Subclass 676) visa. The applicant has not provided evidence of an incentive to return to India and the Tribunal is not satisfied he plans to depart following medical treatment. During the hearing the applicant stated he has been waiting for the outcome of his visa application before undergoing surgery so that he will have an indication of how long he can stay in Australia. This is despite being given details of the surgery by the neurosurgeon, quotations for the procedure and a proposed date of admission to Hurstville Private Hospital of 14 February 2022 and a treatment date of 15 February 2022. Based on the applicant's adverse immigration history in Australia, the Tribunal finds the applicant is delaying surgical treatment for the purpose of remaining onshore in Australia. The applicant has not provided satisfactory evidence to demonstrate he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

1. It is arguable that the fact the applicant had a partner was information the Tribunal considered would form a part of the reason for affirming the decision under review. Although the Tribunal does not say so explicitly, the reference to that fact in the paragraph where the Tribunal concluded the applicant was delaying his surgery to remain on shore provides a basis to submit that the existence of the applicant's partner provided some of the Tribunal's reason for reaching that conclusion, presumably because the Tribunal inferred that the applicant's partner presented an incentive for him to remain in Australia. Accordingly, absent the information about the applicant's partner being caught by s 359A(4)(b) of the Act, the Tribunal arguably had an obligation under s 359A(1) of the Act to ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review and the consequence of the information being relied upon, and to invite the applicant to comment upon it.
2. The Tribunal records (at [11]) that it asked the applicant, by reference to the fact that he had a partner, what he planned to do when he was required to depart Australia. However, there is nothing on the face of the Tribunal's decision otherwise to indicate that it took the steps in s 459AA of the Act, in particular, to ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review and the consequence of the information being relied upon, nor that the Tribunal advised the applicant that he could seek additional time to comment.
3. The question whether an applicant "gave" information for the purpose of the application for review (within the meaning of s 359A(4)(b) of the Act and its Pt 7 analogue, s 424A(3)(b) of the Act) with the consequence that it falls outside the scope of the Tribunal's obligation in either of those sections has been the subject of extensive discussion. In particular, in a series of judgments, single judges of the Federal Court of Australia considered whether information voluntarily and directly proffered by an applicant is to be treated in the same manner as information that is provided either indirectly (such as where it is referred to in other documents), or is given in answer to questions from the Tribunal.
4. In SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90; [2015] FCAFC 3, the Full Court of the Federal Court of Australia (Perram, Jagot and Griffiths JJ), considering s 424A(3)(b) of the Act, concluded, after discussing those authorities, as follows (at [24]):

It is apparent from the various approaches taken to s 424A(3)(b) that the question is ultimately one of fact. Consistent with the reasoning of Heerey J in VWBF and SZCJD, there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant's own volition or elicited from an applicant by the answering of the Tribunal's questions. In either case, the applicant may have given information to the Tribunal. Despite this, not every answer by an applicant to a question from the Tribunal will involve the applicant giving information to the Tribunal. The nature of the information, of the question asked by the Tribunal and the applicant's answer will all be relevant to determining whether s 424A(3)(b) is engaged.

1. I do not read the conclusion at the start of the passage above, or the authorities discussed therein, as providing a basis to doubt that information provided expressly and voluntarily by an applicant to the Tribunal at hearing (such as the information given here), will be information that the applicant gave for the purposes of the review within the meaning of s 359A(4)(b). Rather, as I read the passage above, where the specific information is not disclosed directly or is not disclosed at the applicant's initiative, there may be some scope for debate about that question, by reference to the facts of the case. However, none of the scope for argument that the passage above allows for, avails the applicant here, where the applicant gave express evidence as to his having a partner.
2. Whilst the passage above leaves open the possibility of argument based on the facts of a particular case as to whether information provided in any manner to the Tribunal falls within the scope of the subsection, the applicant has not here identified any aspect of the evidence he gave about his partner, or the way in which that information emerged, that might warrant the conclusion that he did not "give" that information to the Tribunal within the meaning of s 359A.
3. It is conceivable, in a bare theoretical sense, that s 359A of the Act had application to the information that the applicant had a partner, and obliged the Tribunal to provide particulars back to the applicant, explain the import of the information, and afford him the opportunity to comment, as well as to advise him of his right to seek more time to respond. However, the applicant has not identified any factual matters that might persuade this Court to think that the information he had a partner, which appears to have been freely volunteered, was not caught by the exclusion in s 359A(4)(b) of the Act. In those circumstances, I am unable to be persuaded that the interests of justice require reinstatement of the application to advance the ground in respect of that particular.

Ground 3: The tribunal decision is infected with a legal error because there is no evidence provided by the Tribunal in support of its decision.

1. The particulars to Ground 3 appeared in the originating application as follows:

Particulars

The Tribunal noted that the applicant could pay for suitable medical treatment in India. However, the tribunal failed to provide any evidence that there is available medical treatment in India where the applicant would be able to get quality and standard of medical treatment and care similar to Australia.

1. Other than particulars, the applicant provided nothing in the way of either written or oral submissions in support of this ground of review.
2. The "no evidence" ground is a high hurdle for a party to overcome; it will only sustain a finding of jurisdictional error where there is a complete absence of evidence, or not a skerrick of evidence, to support the relevant finding of fact: Australian Postal Corporation v D'Rozario (2014) 222 FCR 303; [2014] FCAFC 89 at [16].
3. There is some difference in the authorities as to the type of findings affected by an absence of evidence that may sustain a ground of jurisdictional error. Some of the authorities contend that the finding affected by the absence of evidence must be a jurisdictional fact to warrant the grant of relief. Others allow of the possibility of relief where there is a finding of fact which is critical to the ultimate conclusion, albeit not a jurisdictional fact, for which there is no evidential foundation.
4. On either view, the ground articulated above could not succeed.
5. In the second paragraph [10] in its reasons, the Tribunal said:

The Tribunal notes the applicant's neurosurgeon provided a letter dated 11 February 2022 stating he had been advised the applicant had obtained medical insurance to cover the cost of his treatment. The Tribunal notes that despite this, the applicant has not undergone surgery to date. In his evidence to the Tribunal the applicant did not refer to having private medical insurance but explained that since he is not eligible for Medicare, he must meet the costs himself. The Tribunal put to the applicant during the hearing that if he could afford to pay the considerable fees for private treatment in Australia, he could pay for suitable medical treatment in India. The applicant claimed he wants to obtain treatment for his spinal condition in Australia because the quality of care is better here than in India. He acknowledged there are treatment options available in India but said he did not know what that treatment or the quality would be. The Tribunal considers the applicant would be able to pursue treatment for his spinal condition and surgery in his home country if he needed to and is not satisfied he is applying for a Medical Treatment visa for genuine purposes.

1. The Tribunal's finding was that the applicant would be able to pursue treatment for his condition in his home country. That conclusion followed the applicant's acknowledgment that where he was in a position to pay his surgery costs himself, there were treatment options in India, but that he did not know the quality of such treatment. The latter concession indicated that the applicant had not investigated those options. The conclusion that the applicant could pursue such treatment was a finding that the applicant could look into and explore those options. That conclusion was logically open to the Tribunal after the applicant's admissions referred to above.
2. Assuming for present purposes that the factual finding that the applicant could pursue treatment in India was a finding of sufficient import for the no evidence ground to be available, the applicant's Ground 3 must fail on the merits given the evidence referred to above. There was an evidential basis for the Tribunal's conclusion.
3. Were it necessary to decide the question, I would conclude that the fact to which this ground refers was not a critical one in the Tribunal's reasoning. The Tribunal dealt with the question of the applicant's alternative option (treatment in India), after it reached a state of satisfaction in the prior paragraph as to the critical question, namely, whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

1. Although the applicant swiftly challenged the dismissal of his matter, and there would be no prejudice to the first respondent in reinstating the application, in considering whether to exercise the discretion whether to allow such reinstatement I am bound to have regard to the interests of justice. The interests of justice included both the interests in affording an applicant a final hearing of his application, and the broader interests in devoting the resources of the Court to matters that present an arguable issue of fact or law. Given the absence of merit in the applicant's grounds, I have not been persuaded that the interests of justice require the application to be reinstated. The grounds upon which the applicant seeks to review the Tribunal's decision are so lacking in merit that it would be contrary to the interests of justice to devote Court resources to further hearing the application.
2. I will dismiss the application for review of the Registrar's decision and order the applicant to pay the first respondent's costs. I will hear from the parties as to the quantum of such costs.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.