Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1361

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 applied for judicial review to this Court of a decision of the then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs, (as the Minister was then called) ("the delegate"), to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.
2. On 14 January 2025, the parties were notified that the matter had been listed for a final hearing on 3 March 2025. On 15 January 2025, the first applicant ("the applicant") emailed the Court requesting the hearing be postponed due to legal proceedings which required his in-person appearance in India. By email on 16 January 2025, the Court advised the applicants that the hearing would proceed on 3 March 2025 remotely by Microsoft Teams.
3. The applicant appeared on 3 March 2025 by Microsoft Teams. He was in India. He was assisted by an interpreter in the Punjabi and English languages who appeared in-person in Court. The hearing did not proceed as the applicant did not have with him the material with which he had been served, including the Court Book and the first respondent's submissions. For that reason, the hearing was adjourned to 10 April 2025, with the applicant's personal appearance required. The Court's order made on 3 March 2025 included a notation that the Court explained to the applicant, the necessity for him to attend the hearing on 10 April 2025 with the relevant documents in his possession.
4. The applicant did not appear at the hearing on 10 April 2025.
5. The application was dismissed on 10 April 2025 pursuant to rule 13.06(1)(c) of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) ("the Rules") because of the non-appearance of the applicants.
6. On 16 April 2025, the applicants filed an application for reinstatement of their application for judicial review. It is that application which is presently before the Court for determination.

1. Before turning to consider the application for reinstatement, it is useful to set out some of the background to the proceedings of this application.

Application for a visa and the delegate's decision

1. The applicant is a citizen of India. He arrived in Australia on 17 July 2014 as a dependent on a Student (Temporary) (Class TU) (subclass 500) visa of his then wife, Ms Mandeep Kaur ("the visa applicant"). The second applicant, born on 8 January 2015, is the child of the applicant and the visa applicant (Court Book "CB" 37).
2. On 25 September 2019, the visa applicant made an application for a Student (Temporary) (Class TU) (subclass 500) visa ("the visa") on the basis of her enrolment in a Diploma of Nursing (CB 12-34). The applicant and the second applicant were included in the visa application as members of the visa applicant's family unit (CB 15-19).
3. On 17 January 2020, the delegate refused to grant the visa applicant the visa on the basis that the delegate was not satisfied she was a genuine temporary entrant pursuant to clause 500.212 of Schedule 2 of the Migration Regulation 1994 (Cth) ("the Regulations") (CB 66-73). Accordingly, the delegate found that the applicant and the second applicant did not meet the criterion in clause 500.311 of Schedule 2 of the Regulations which required they be members of the family unit of a person who holds a student visa (CB 72) ("delegate's decision").

Application for review to the Administrative Appeals Tribunal

1. On 29 January 2020, the visa applicant, the applicant and the second applicant ("the review applicants") applied to the Tribunal for a review of the delegate's decision (CB 74-76). They appointed a registered migration agent to act as their representative (CB 75-76).
2. On 18 May 2020, the visa applicant notified the Tribunal of a change in circumstances stating that she is no longer living with the applicant, was separated from him and will apply for a divorce. The visa applicant said that the applicant should "not be in [her] visa application" (CB 84-86).
3. On 12 August 2021, the Tribunal wrote to the review applicants advising them that they would need to provide sufficient information to satisfy the Tribunal that the visa applicant met the requirements for the visa, that she was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The Tribunal invited the review applicants to provide, in writing, all relevant information about the course(s) of study the visa applicant was undertaking and her entry and stay as a student (CB 90-91). The Tribunal said that specific details about the information requested are set out in the Request for Student Visa Information form ("RSVI form") and provided a link to that form. The Tribunal also said that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69: 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' ("Direction No. 69"). A copy of Direction No. 69 was attached (CB 92-96).
4. On 17 August 2021, the visa applicant completed the RSVI form and provided it to the Tribunal along with supporting documents (CB 98-109). The visa applicant appointed a new registered migration agent to act as her representative and authorised recipient and provided the agent's email address as the address to which the Tribunal was to send correspondence ("the nominated email address") (CB 138-139).
5. On 26 August 2021, the visa applicant provided to the Tribunal a narrative titled "Change in Circumstances". The visa applicant explained she was currently pursuing studies in a Diploma of Mental Health in Adelaide and was living separately from the applicant and the second applicant (CB 141-142).
6. On 6 September 2021, the Tribunal sent an email to the nominated email address inviting the review applicants to attend a hearing on 24 September 2021, to give evidence and present arguments relating to the issues arising in their case, stating that it was unable to make a favourable decision based on the information before it alone (CB 144-147).
7. The visa applicant submitted a response to the hearing invitation. The respondent noted that the applicant and second applicant would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow them to appear (CB 148-151).
8. On 24 September 2021, the visa applicant attended the hearing (CB 166-168). The visa applicant was assisted by her migration agent and an interpreter in the Punjabi and English languages. The applicant and second applicant did not attend the hearing. At the hearing the Tribunal affirmed the delegate's decision and gave an oral statement of reasons for its decision.
9. On 12 October 2021, the Tribunal gave written reasons for its decision ("Decision") (CB 177-184). The Tribunal notified the review applicants by email to the nominated email address and provided them with a copy of the written reasons (CB 174-176).

1. These judicial review proceedings (BRG482/2021) were commenced pursuant to s 476(1) of the Migration Act 1958 (Cth) ("the Act") by application filed on 27 October 2021. The applicant also filed an affidavit affirmed on 27 October 2021. The affidavit annexes a copy of the Tribunal's decision, and the applicant explains why he considers the Tribunal erred. The visa applicant filed a separate application for judicial review (MLG2756/2021). That application was discontinued by the visa applicant on 18 May 2022.
2. Procedural orders were made in these judicial review proceedings permitting the applicants to file and serve an amended application and any additional evidence on which they seek to rely and requiring the applicants to file and serve written submissions. The first respondent was also ordered to file and serve written submission and any additional evidence on which it seeks to rely.
3. The matter came on for final hearing on 3 March 2025. As explained above, the hearing was adjourned to 10 April 2025 and the Court explained to the applicant, through the interpreter, the necessity for the applicant to attend the hearing on 10 April 2025 with the relevant documents in his possession. As explained above, the applicant did not appear at the rescheduled hearing on 10 April 2025, and the application was dismissed pursuant to rule 13.06(1)(c) of the Rules because of the absence of the applicant. The applicant was ordered to pay the first respondent's costs in the sum of $6,500.00.

1. On 16 April 2025, the applicants filed an application in these proceedings seeking reinstatement of the application for judicial review and that the costs order made by the Court be vacated. The applicant filed an affidavit in support of the application for reinstatement.
2. The reinstatement application was listed for hearing on 23 May 2025 and subsequently adjourned to 14 August 2025. Orders were made on 2 May 2025 requiring the applicant to file and serve written submissions and any further affidavit he intends to rely on by 16 May 2025. The applicant has not complied with those orders. The first respondent was ordered to file and serve written submissions by no later than 21 May 2025. The first respondent filed written submissions.
3. When the reinstatement application came on for hearing, the relevant documents before the Court were:

(a) The application for judicial review filed on 27 October 2021;

(b) The applicant's affidavit filed on 27 October 2021 in support of the application for judicial review;

(c) The first respondent's further amended response filed on 7 August 2024;

(d) The first respondent's written submissions in relation to the application for judicial review filed on 27 August 2024;

(e) The application for reinstatement filed on 16 April 2025;

(f) The applicant's affidavit filed on 16 April 2025 in support of the application for reinstatement;

(g) The first respondent's written submissions in relation to the application for reinstatement filed on 21 May 2025; and

(h) The Court Book.

1. The applicant appeared in-person on his own behalf. He had the assistance of an interpreter in the Punjabi and English languages. Prior to the hearing commencing, the applicant requested and was given time for the interpreter to translate the first respondent's submissions in relation to the application for reinstatement.
2. When the hearing commenced, the Court confirmed with the applicant whether he had the relevant documents in Court with him. The applicant told the Court that he had access to the relevant documents on his telephone, but he did not have any hard copies in Court with him. The Court provided the applicant with hard copies of each of the relevant documents.
3. The Court's power to set aside the order dismissing the application is contained in rule 17.05(2)(a) of the Rules which provides that:

Setting aside or varying judgments or orders

(2) The Court or a Registrar 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. The power to reinstate a proceeding dismissed for non-appearance by a party is discretionary. In exercising that discretion, the Court is required to determine whether reinstatement is in the interests of justice (FBS18 v Minister for Home Affairs [2019] FCAFC 196 ("FBS18") at [50] per Flick, Robertson and Lee JJ). In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, Ryan J held (at [7]) that the discretion requires the consideration of three factors, and whether on balance, they tend for or against reinstatement. Those three factors, which are non-exhaustive, are:

(a) Whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out;

(b) The existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the Court is empowered to grant;

(c) Whether the applicant has a reasonably arguable prospect of success on the substantive application.

1. The Court has taken the approach of considering those factors in determining whether it should exercise the discretion to reinstate the application for judicial review.
2. The Court explained to the applicant that before it was a hearing of an application to determine whether the order dismissing his application for judicial review, because of his absence at the final hearing, should be set aside and his application for judicial review be reinstated. The Court explained to the applicant that it would first consider the reason why the applicant did not attend the hearing and whether there was a satisfactory excuse for him not doing so; and second, whether the applicant had a reasonably arguable case on the merits of his grounds for judicial review so that there was utility in setting aside the order dismissing his application for judicial review. The Court also explained to the applicant the first respondent's submission with respect to futility.
3. Despite the order requiring him to do so, the applicant did not file any submissions in support of his application for reinstatement but was given the opportunity to make oral submissions with the assistance of the interpreter.

1. The applicant's affidavit, filed in support of his application for reinstatement, addresses in paragraphs [7] - [11] the reason the applicant did not attend the final hearing:
   1. The primary reason for the non-appearance is that on the day of the court hearing, my son was not feeling well, and he was extremely upset.
   2. I am the primary caretaker for my son and his mother has abandoned us. My son who is 10 years old knows about this legal proceeding and he became very upset on that day and would not allow me to leave by his side.
   3. It was a very difficult day for us as a family because the court was going to decide on our future in Australia.
   4. I am not dealing very well with this case, and I feel anxious and very difficult to cope with the legal matters.
   5. I just want my son to have a better life in Australia and he lives in the same country as his mother lives.
2. In oral submissions, the applicant told the Court that he is the primary care giver for his son and that on 10 April 2025 his son had gone to school but that the school telephoned him that morning to say that his son was not well. The applicant explained that he collected his son from school but did not take him to see a doctor as he was physically fine but was not well mentally, so he decided to stay with him. The Court asked the applicant why he did not contact the Court. The applicant explained that he did not have time to contact the Court as 'it was already 10 April'.
3. The first respondent submitted that this was not a satisfactory explanation for the following reasons (first respondent's reinstatement submissions ("FRRS") [17]):

(i) There is no evidence to corroborate that the applicant's or his son's health were compromised to the extent that the applicant was unable to attend the hearing;

(j) That the mutual anxiety of the applicant and his son, for whom he is the primary care giver, are extraneous to the factors bearing upon whether the Court should order reinstatement (referring to AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [4]);

(k) The applicant's explanation is illogical because his claim to have been cognisant of the gravity of the proceedings and anxious about the outcome is inconsistent with his failure to appear in circumstances where he knew his attendance was required and his failure to communicate his want of appearance until some six days after the proceedings were dismissed. The first respondent submitted that it is not unreasonable to expect that the applicant would have communicated with the Court and sought an adjournment as he had done previously.

1. The Court is not convinced that the alleged anxiety of the applicant is necessarily extraneous to the factors bearing upon whether the Court should order reinstatement but is otherwise of the view that the explanation given by the applicant is not satisfactory for the reasons submitted by the first respondent.
2. The lack of a satisfactory explanation for the applicant's non-appearance weighs against reinstatement of the application. However, even if the Court were to accept the applicant's explanation as satisfactory, the Court would not be prepared to reinstate the proceedings for the reasons given later in this decision with respect to the merits of the grounds of judicial review and because, as explained, granting the relief sought would be futile.

1. The first respondent accepts that there is no specific prejudice to it were the proceedings to be reinstated and that any prejudice could be cured by an award of costs (FRRS at [18], referring to FBS18 at [53], [56]). However, the first respondent also submitted that there is a significant public interest in the finality of administrative decision making, and that this interest should not be overlooked in circumstances where the visa application was lodged on 25 September 2019, nearly six years ago, and where the applicant's judicial review application was lodged three and half years ago on 27 October 2021 (FRRS at [19], referring to Re Commonwealth; Ex Parte Marks [2000] HCA 67; [2000] 75 ALJR 470 at [15]; CYT18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 121 at [11]; Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [18]- [19]).
2. Despite the public interest in the finality of proceedings, the Court agrees with the first respondent that the consideration of prejudice weighs in favour of reinstatement.
3. This then leaves the issue of the merits of the grounds of judicial review and the question of futility.

Whether reasonably arguable prospects of success on the substantive application

1. The Court considers that it is appropriate to assess the merits of the application for judicial review and in that regard, has adopted the approach taken in cases concerning applications for extension of time as apposite cases (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ; at [54] per Gordon, Edelman and Steward JJ). The task of the Court in assessing merits is to evaluate whether a ground of review is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success' (Katoa at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).

1. Before turning to consider the grounds of review, it is necessary to set out a summary of the Tribunal's Decision affirming the delegate's decision.
2. The Tribunal identified that the issue on review was whether the visa applicant was a genuine temporary entrant pursuant to clause 500.212 of the Regulations [4].
3. The Tribunal stated that in considering whether the visa applicant satisfies clause 500.212(a), it must have had regard to the specified factors in Direction No. 69 [12].
4. The Tribunal summarised the visa applicant's evidence as follows [15] - [29]:

(a) The visa applicant first arrived in Australia on a student visa that was valid from 2016 to 2017 and was then on a Temporary Graduate 485 visa that was valid between 2017 and 2019;

(b) In the current student visa application the visa applicant proposed studying a Diploma of Nursing;

(c) The courses the visa applicant had been enrolled in since arriving in Australia and that the visa applicant was currently enrolled in a Diploma of Mental Health and why she chose to study the Diploma of Mental Health in Australia rather than in India;

(d) The reason for the gap in the visa applicant's study;

(e) The visa applicant's work history in Australia;

(f) The visa applicant's family circumstances, property and connection to community in her home country and the occasions on which she had returned to India since coming to Australia;

(g) The visa applicant's circumstances in Australia: her husband and her son are her only family members living in Australia; she ceased living with them in Brisbane in October 2019; officially separated from her husband in March 2020; does not see her son anymore or talk to him on the phone due to separation.

1. The Tribunal found that the visa applicant's family ties to India did not of themselves constitute a strong incentive for the visa applicant to return and placed significant weight on the fact that she had been in Australia for over seven years and although she has visited home four times she had managed to keep in touch with her family back home via electronic means [30].
2. The Tribunal also found that the visa applicant's family ties to Australia did not of themselves constitute a strong incentive for her to remain in Australia. In making this finding the Tribunal said it placed significant weight on the fact that the visa applicant and her husband had not been living together since October 2019 and she does not presently see or speak to him anymore [31].
3. The Tribunal considered the visa applicant's evidence as to why she had changed courses and said it was concerned that the visa applicant is attempting to use or may be attempting to use the student visa system to stay in Australia for longer. In making this finding the Tribunal placed significant weight on the fact that the visa applicant had been in Australia for over seven years, had swapped the focus of her studies numerous times and had already completed the course she was intending to complete when she initially applied for the visa [36].
4. As to the value of the current course to her future, the Tribunal found that the visa applicant had provided only vague details about her future plans and had failed to explain in any meaningful detail why she required her current course in order to complete her future plans. In making this finding, the Tribunal placed significant weight on the fact that the visa applicant had not applied for any positions in the health sector back in India and already had a Diploma of Nursing, a Certificate III in Individual Support, and work experience as an enrolled nurse [41].
5. The Tribunal considered that a genuine temporary entrant would have circumstances which support a genuine intention to remain in Australia temporarily, recognising that this may change over time to utilise lawful means to remain in Australia. The Tribunal had found that the visa applicant's family ties to Australia did not of themselves constitute a strong incentive for her to remain in Australia. However, taking into account the other evidence and findings, the Tribunal said that on balance it was concerned that a further student visa may be used primarily for maintaining ongoing residence. On this basis, the Tribunal said it was not satisfied that the visa applicant genuinely intended to stay in Australia temporarily and that accordingly, the visa applicant does not meet clause 500.212(a) [45].
6. As the visa applicant was found not to meet clause 500.212 the Tribunal found that the secondary applicants (being the applicant and the second applicant) did not satisfy clause 500.311, and that accordingly, in relation to the secondary applicants, the decision under review must be affirmed [49].

1. Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):

1. Ministerial Direction no. 69 not applied properly.

2. 500.212 is applied with bias.

1. Despite the procedural order requiring him to do so, the applicant did not file any written submissions in support of his application for judicial review. The applicant was given the opportunity to make oral submissions, with the assistance of the interpreter, in support of his proposed grounds of judicial review and in reply to the first respondent's submissions.

Ground one: Ministerial Direction No. 69 not applied properly

1. The application for judicial review does not particularise how the applicant contends that the Tribunal failed to properly apply Ministerial Direction No. 69.
2. In oral submissions, the applicant was unable to articulate why he contends that the Tribunal did not properly apply Ministerial Direction No. 69 other than to say that had the Tribunal properly applied the factors then it would have made a favourable decision.
3. In paragraphs [3] - [9] of his affidavit filed in support of his application for judicial review, the applicant gives the following explanation as to why Direction No. 69 was not correctly applied (without alteration):
   1. Department of Home affair considers that the applicant's statement, my wife did not reflect the level of thought and detail of someone spending significant amounts of money on course to further their career in their home country. As such, they holds significant concerns that she has applied for further student visa for the primary purpose of securing an extension of her stay in Australia rather than due to a genuine interest in the subject matter of her studies and academic progression. He was not satisfied that the course was selected to improve her educational outcomes or further her career in her home country. He was not satisfied that the applicant has demonstrated the value of her proposed course to her future. Respected officer has made a mistake in considering all factors specified in Directions.
   2. Like many other students her intentions was to study and go back to my home country.
   3. We have family in India and there are more nearest family members who are living in India as compared to Australia.
   4. This course will add additional benefit to our future earnings, and we have sound financial background and incentives to back to my home country.
   5. Based on possibility that she may use the student visa to remain lawful in Australia is the wrongful application of direction.
   6. There is no evidence that she has misused the visa and there are no incentives to go back to our home country.
   7. Our intentions were clear to study and return back to home country and there is no inconsistent information provided.
4. Insofar as the applicants take issue with the delegate's decision, the Court has no jurisdiction to review that decision as it is a primary decision pursuant to Section 476(2)(a) of the Act.
5. The Court agrees with the first respondent's submissions filed with respect to the judicial review application on 27 August 2024 (("FRS") at [35]), that paragraph [3] of the affidavit (that to the extent that it is a complaint about the Tribunal) and paragraph [7], do no more than seek to engage the Court in impermissible merits review of the Tribunal's decision.
6. The Tribunal found that the visa applicant was not a genuine temporary entrant. Having regard to the Tribunal's reasons, the Court is of the view that this was a finding that was reasonably open to the Tribunal on the evidence before it and the Tribunal's reasons demonstrate that it was properly guided by and considered the factors in Direction No. 69. Having found that the visa applicant was not a genuine temporary entrant for stay and study as a student, there was no error in the Tribunal's consequent finding that the applicant and the second applicant - as secondary applicants - did not meet clause 500.311.
7. Otherwise, paragraphs [4], [5], [6], [8] and [9] of the affidavit did not identify any jurisdictional error and misunderstand the role of the Court on judicial review.
8. Ground one is without merit.

1. As the first respondent correctly submits (FRS at [36], referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531), bias is a serious allegation which must be firmly and distinctly made and must be clearly proven. The applicants have not provided any evidence to support a finding that the Tribunal had a pre-existing state of mind, which disabled it from undertaking, or rendered it unwilling to undertake a proper evaluation of the matter. Nor is there anything before the Court to suggest that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on their decision.
2. The applicant was unable to articulate why he contends that the Tribunal's decision was affected by bias other than to say that his feeling was that they had fulfilled the requirements for the visa, had explained everything to the Tribunal and so could not understand why the Tribunal refused to grant the visa. As the first respondent submitted, no inference of bias or pre-judgment can be drawn from the mere fact that the Tribunal made findings adverse to the applicants in its reasons (FRS at [36], referring to VFAB of 2002 v Minister for Immigration (2003) 131 FRC 102 at [21]).
3. Ground two is without merit.

1. By paragraph [13] of the applicant's affidavit filed on 16 April 2025 in support of the reinstatement application, the applicant contends that the Tribunal did not give the applicants an opportunity to present their case. The Court agrees with the first respondent that there is no factual basis to this assertion (FRRS at [28]) for the following reasons:

(a) By letter dated 12 August 2021, the Tribunal put to the visa applicant and the applicants that the visa applicant needed to satisfy the genuine temporary entrant criterion (CB 90-91);

(b) The visa applicant responded to that request for information (CB 98-109);

(c) The Tribunal invited the applicants to attend a hearing. The invitation complied with the relevant legislative requirements (FRRS at [28]). The invitation was given to the visa applicant by one of the methods specified in s 379A, that is, by email to the nominated email address provided by the visa applicant to the Tribunal: ss 379A(5)(b), 360A(2)(a) and 379G(2) and (3). Section 379EA of the Act deems receipt so that where the hearing invitation was sent to the authorised recipient, the question of whether the applicant and the second applicant also received the invitation did not arise. The invitation complied with the content requirements in informing the review applicants of the date, time and place of the scheduled hearing and warned them of the consequences of non-appearance as required by s 362B;

(d) The visa applicant attended and gave evidence at the hearing relevant to the genuine temporary entrant criterion.

1. There was no error in the Tribunal making a decision without the applicants (the applicants in these proceedings) in attendance because they had expressly consented to the review being decided on the papers without holding a hearing (CB 148-152). That consent having been given, the Tribunal was obliged to proceed without the applicants appearing before it: ss 360(2)(b); 360(3).
2. The ground of a denial of procedural fairness is without merit.
3. The Court therefore concludes that the proposed grounds of review have no prospects of success. Accordingly, it is not in the interests of justice for the application for judicial review to be reinstated even were the Court to accept that the applicant's explanation for non-attendance at the hearing was satisfactory.

1. The Court's view on the merits of the grounds of review aside, there is an insurmountable impediment to the applicants successfully prosecuting the application for judicial review. Before turning to explain the Court's reasoning for saying that, the applicant told the Court at the hearing that his son, the second applicant, is now an Australian citizen. There was no evidence before the Court as to the second applicant's citizenship but assuming that to be so, not only is there no necessity in the second applicant pursuing the application for judicial review there would be no utility in the Court granting the relief sought by the second applicant.
2. So far as the applicant is concerned, there is no prospect that the applicant's visa application will ever succeed. Accordingly, it would be futile for the Court to grant the relief the applicant seeks in the application for judicial review. If the Court were to quash the Tribunal's decision and remit the matter to the Tribunal for reconsideration, the outcome of that reconsideration would inevitably be the same, namely, the delegate's decision to refuse to grant the applicant the visa would be affirmed. This is because the Tribunal would need to determine whether the applicant is presently a "member of the family unit" of the visa applicant for the purpose of section 5(1) of the Act and Regulations 1.12(6). The visa applicant's evidence before the Tribunal was that she and the applicant had not been living together since October 2019 and that they had officially separated in March 2020 [28]. This is consistent with the applicant's own evidence. Accordingly, the applicant would not be able to establish that he is a member of the family unit of the visa applicant and so could not satisfy the criterion in clause 500.311.
3. Furthermore, the visa applicant discontinued her application for judicial review (MLG2756/2021) of the Tribunal's decision on 18 May 2022. That put an end to the claim in those proceedings (FRS at [5], referring to Applicant A26 of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 1050 at [2]) and the visa applicant accepts that the Tribunal's decision was made without error.
4. Accordingly, it would be futile for the applicant to be granted the relief sought in the application for judicial review.

1. In conclusion, having regard to the absence of a satisfactory explanation for the non-appearance at the final hearing, the lack of merit in the grounds of judicial review and, moreover, the futility in granting the relief sought, the Court is of the view that it is not in the interests of justice to reinstate the proceedings. Accordingly, the application for reinstatement is refused.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.