Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Absence of explanation prior to hearing 6 I am satisfied that the appellants had proper notice of the hearing. The appeal was filed on 25 May 2020. Timetabling orders were made on 10 June 2020, with relevant dates being dependent on the hearing date. In circumstances where the appellants were not legally represented and required the assistance of an interpreter, the Court determined that the appeal should be listed for hearing in open court when it was possible to do so, rather than via digital technology. 7 On 17 January 2022, the parties were notified by email that the appeal was listed for hearing at 10.15 am today. 8 On 8 March 2022, the Minister filed and served an appeal book containing the record below and an outline of submissions in accordance with the Court's timetabling orders. 9 The appellants have failed to file submissions in support of their appeal. 10 On 28 March 2022, the parties were notified by email that the appeal would be heard in open court in Melbourne. 11 On 6 April 2022, the Court sent an email to the appellants confirming that the hearing of the appeal would proceed at 10.15am today and giving details of the location of the court room. 12 In those circumstances, I am satisfied that the appellants were given adequate notice of the hearing, did not appear and failed to provide an adequate explanation for their non-appearance prior to the hearing.

No arguable point of appeal arises 13 The material filed on the appeal disclosed the following background. 14 On 5 March 2015, the first appellant applied for a Student Temporary (Subclass 572) visa. The second appellant was included in the visa application as a secondary visa applicant. 15 On 29 June 2015, a delegate of the Minister refused to grant the visa because the delegate was not satisfied that the first appellant was a genuine applicant for entry and stay as a student under cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). 16 On 17 July 2015, the appellants applied to the Tribunal for review of the delegate's decision. 17 On 20 August 2015, the appellants attended a hearing before the Tribunal. 18 On 23 June 2016, the Tribunal wrote to the appellants and informed them that it had considered the material before the Tribunal but was unable to make a favourable decision on that material. The Tribunal invited the appellants to appear at a second hearing on 26 July 2016 to give evidence and present arguments in relation to the issues identified in the letter. The letter included the following information about non-attendance: If you do not attend 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. A dismissed case can be reinstated if the Member considers it 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. 19 The Tribunal's records disclose that an SMS text message reminder was issued to the first appellant's mobile number on 25 July 2016 ahead of the second hearing. 20 The appellants did not attend the scheduled hearing on 26 July 2016 and the Tribunal dismissed the application under s 362B(1A)(b) of the Act by reason of the non-appearance (without considering the merits of the application). 21 On 27 July 2016, the Tribunal wrote to the appellants informing them of the decision dismissing the application and that the appellants may apply for reinstatement of the application by 10 August 2016. 22 The appellants did not apply for reinstatement of the application and, on 11 August 2016, the Tribunal confirmed the dismissal of the application as required by s 362B(1E) of the Act. 23 On 12 August 2016, the Tribunal sent a copy of its decision of 11 August 2016 to the appellants. 24 On 8 September 2016, the appellants lodged an application and accompanying affidavit in the Federal Circuit Court seeking judicial review of the Tribunal's decision under s 476 of the Act. 25 The grounds of review stated in the application were as follows (errors in original): 1. The Tribunal failed to comply with section 368 of the Migration Act 1958 (the Act) in that it failed to record its decision. 2. The Tribunal failed to consider that the delegate engaged in conduct which amounted to jurisdictional error in that its decision that the applicant was not a genuine temporary entrant was unreasonable or illogical. 3. That the Tribunal erred in not considering that the delegate misconstrued the requirements of clause 572.223(1)(a) of… 4. The Tribunal engaged in conduct which amounted to jurisdictional error that it failed to consider; on balance, all relevant factors in assessing the applicant as a genuine temporary entrant. 26 The primary judge concluded that the appellants had not demonstrated jurisdictional error in the Tribunal's decision, whether on their stated grounds of review, or otherwise upon consideration of the Tribunal's reasons. As to ground one, the primary judge concluded that the Tribunal had complied with s 368 by recording its decision (PJ at [25]). As to the remaining grounds, the primary judge concluded that the grounds of review were misconceived because the Tribunal dismissed the application for non-appearance without considering the merits of the application, whereas the grounds of review were directed to the merits of the application (PJ at [29] and [32]). In circumstances where the appellants were unrepresented before the Court, the primary judge also considered whether the decision of the Tribunal to dismiss the application for non-appearance was legally reasonable in the circumstances of the case. The primary judge considered that the decision was legally reasonable having regard to matters including (at PJ [40]-[45]): (a) the appellants were validly notified of the hearing scheduled for 26 July 2016; (b) the appellants did not provide a response to the notification of the hearing date; (c) the appellants were sent a reminder of the hearing date; (d) the appellants were validly notified of the dismissal proceeding and had an opportunity to reinstate the application; (e) the appellants failed to apply to reinstate. 27 By their notice of appeal filed on 25 May 2020 in this Court, the appellants raise a single ground of appeal: There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1). 28 This ground of appeal was not raised before the primary judge. Accordingly, the appellants require leave to raise it on appeal. The ground has no relationship with the decision of the Tribunal and is wholly without merit. For that reason leave would be refused. 29 The appellants have not filed written submissions in support of the appeal, or taken any other step to prosecute the appeal.

Conclusion 30 I therefore dismissed the appeal with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.