Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 914

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. On 24 April 2019, the second respondent (Tribunal) confirmed a decision it had made on 8 April 2019 to dismiss the applicant's application for review by reason of his non-appearance at a Tribunal hearing, pursuant to section 362B(1A)(b) of the Migration Act 1958 (Cth) (Act).
2. In an application for judicial review filed on 28 May 2019, the applicant sought to impugn the Tribunal's decision to confirm its dismissal, on the basis that he was not made aware of the Tribunal's hearing. The first respondent (Minister) opposes the application.
3. Having heard and considered the parties' submissions, I am satisfied that the decision of the Tribunal was not affected by jurisdictional error. Accordingly, the application is dismissed.

1. The applicant is an Indian national. He first arrived in Australia on 14 August 2013 as the holder of a Student (Class TU) Student (Subclass 573) visa which was valid until 15 March 2017[1].
2. The applicant applied for a Student (Temporary) (class TU) Student (Subclass 500) visa (visa) on 30 March 2017[2]. A migration agent was nominated as his representative[3].
3. On 17 October 2018, a delegate of the Minister refused the applicant's application for the visa on the basis that they were not satisfied that the applicant met the genuine entrant criterion pursuant to clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). The applicant was notified of the decision the same day[4].
4. On 2 November 2018, the applicant applied to the Tribunal for review of the delegate's decision. A migration agent, again, was nominated as his representative[5].
5. On 19 March 2019, the Tribunal wrote to the applicant, via the nominated email address of his representative, inviting the applicant to attend a hearing scheduled to commence on 8 April 2019 at 9:30am. The invitation instructed the applicant to arrive at 9:00am.
6. On 5 April 2019, the representative wrote to the Tribunal seeking an adjournment of the hearing due to the applicant's health issues, and provided a medical certificate of even date. On the same day, the applicant telephoned the Tribunal "to make sure that the Tribunal has received the request for postponement". The Tribunal confirmed the request had been received but that no decision on the request had been made, and that the hearing would go ahead at 9:30am the next business day, if the applicant does not receive a response[6].
7. On 8 April 2019 at 9:11am, the Tribunal sent an email to the applicant, via the nominated email address of his representative advising that the Tribunal was not prepared to grant an adjournment of the hearing on the basis of the medical evidence provided, but that the applicant could attend the hearing via telephone.
8. The Tribunal's Hearing Record recorded that the hearing on 8 April 2019 was "cancelled by the member at 9:42am, due to the applicant's non-appearance".
9. The Tribunal's Case Notes also record that the following telephone exchanges subsequently occurred on the day of the scheduled hearing:

(1) At 11:03am, the Tribunal telephoned the representative to advise that the hearing would proceed that morning. A voice message was left for the representative to call the Tribunal;

(2) At 1:33pm, the applicant telephoned the Tribunal saying "that he has just received the notification of the hearing postponement being refused" as his representative was in India. The applicant was informed that an email would be sent to the representative that afternoon outlining what steps could be taken in relation to a hearing which been dismissed for non-attendance; and

(3) At 2:39pm, the representative telephoned the Tribunal advising that he was in India, and that it was 4:30am at the time of the Tribunal's phone call to him. He conceded that he did not advise the Tribunal of his availability or his travels and apologised. The Tribunal advised further correspondence from the Tribunal was forthcoming.

1. On 8 April 2019 at 2:39pm, the Tribunal sent an email to the representative, notifying the applicant of its decision to dismiss the application and providing a Non-Appearance Decision record. The correspondence which accompanied the Non-Appearance Decision informed the applicant that an application for reinstatement may be made by 23 April 2019. That correspondence also was accompanied by a fact sheet which set out the matters which should be addressed in any such application, including an explanation of why the applicant failed to appear at the hearing and any other information on which the applicant wishes to rely.
2. On 23 April 2019, the applicant's representative sent an email to the Tribunal which attached a written statement from the representative, two medical certificates pertaining to the agent's daughter and a letter from the applicant.
3. In his statement to the Tribunal, the representative explained that he had departed for India on 21 March 2019 for personal and business reasons. He said that his daughter fell ill shortly thereafter, was hospitalised for a period and was under regular treatment until 9 April 2019. Relevantly, in his statement the representative conceded that "Rajinder tried to contact me, and explained me his health condition. He sent me his medical certificate and requested to provide it to the AAT".
4. The statement from the representative submitted to the Tribunal that the applicant got confused due to miscommunications and because the representative was busy and stressed with his daughter's health condition. He submitted that the applicant's own personal health issues were a further complicating factor.
5. In his letter to the Tribunal, the applicant states that he believed he would get an adjournment on the strength of the medical certificate he provided. He deposes to the extent of his illness, including intolerable back pain and an inability to stand properly or speak for long. The applicant said he was in no position to attend a hearing alone and that it was impossible for him to walk without any help.

1. On 24 April 2019, the Tribunal confirmed its decision to dismiss the application.
2. In its decision record, the Tribunal found that it was not appropriate to reinstate the application having regard to:

(a) the failure of the applicant to attend the scheduled hearing after having been given proper notice of the hearing via his representative in accordance with s 360 of the Act;

(b) the limited information contained in the medical certificate provided by the applicant, via his representative. The medical certificate from Westgate Medical Centre stated only that the applicant was unfit for work which the Tribunal considered was not sufficient to demonstrate that he was unfit to participate in a hearing either in person or via telephone. The Tribunal noted that the certificate contained no opinion on the applicant's ability to participate in the hearing in that manner;

(c) various telephone discussions between the applicant and his representative on the day of the hearing but after the scheduled commencement time; and

(d) the written submissions and statements received in support of the reinstatement application on 23 April 2019.

1. In relation to the submissions and statements received in support of the reinstatement application, the Tribunal held at paragraph [11] of its decision that:

The Tribunal has had regard to the letter submitted by the review applicant and the review applicant's agent via email on 23 April 2019. The review applicant and the review applicant agent explained their reasons for not appearing before the Tribunal on 8 April 2019. The Tribunal notes that the review applicant did not submit any further medical evidence regarding his reasons for not attending. The Tribunal acknowledges the agents daughter was ill during their time over in India however the medical notes (AAT Folios 43-44) from the doctor in India are dated 5 April 2019, 3 days prior to the scheduled hearing. At the time of the scheduled hearing the review applicant's agent had admitted that he had been in India since 21 March 2019 until 15 April 2019. The Tribunal finds that this is not an acceptable explanation for the review applicant not attending the hearing at the scheduled date and time.

1. The application for judicial review was filed with this Court on 28 May 2019 and was supported by an affidavit of the applicant affirmed the same day. The applicant's sole ground for judicial review reads, verbatim, as follows:

Member made an error in establishing that there was a ground for refusal. I believe that member did not properly look at the relevant facts. There was difficulty in articulating it as it was dismissed. I did not get any notification to attend hearing. There was no correspondence. I called them. Then I knew my application has been disregarded.

I believe that member had made an error in judgement. If this application is not accepted that I would be denied the procedural fairness. On top of that, I request that the court accept on the ground of fair justice as my whole life depends on the decision.

1. Orders made by a Judicial Registrar on 23 October 2024 afforded the parties an opportunity to file written submissions prior to the hearing. Despite being afforded the opportunity, the applicant did not file any further affidavit in support of his application or an outline of submissions. The Minister filed a court book and an outline of submissions prior to the hearing.
2. The application for judicial review was heard on 29 April 2025. The applicant appeared on his own behalf, and the Minister was represented by a solicitor advocate, Mr Mangos.
3. At the outset of the judicial review hearing, I carefully explained to the applicant the Court's task and the process which would be followed. I informed the applicant that the Court could not engage in a merits review of the Tribunal's decision or grant the visa he sought. Given his command of English, I am confident the applicant understood that he needed to demonstrate error in the Tribunal's consideration of his application for reinstatement.

1. In his oral address to the Court, Mr Singh said that the lawyer he had hired did not mention anything about the Tribunal hearing. Referring to his lawyer's conduct, Mr Singh said "he did not mention the hearing to me at all" and "he did not tell me he was going overseas".
2. The applicant said that when he learnt that his application had been dismissed, he went to another lawyer and did whatever that lawyer asked him to do. He said he wrote a letter to explain why he had not attended the initial hearing. Mr Singh said that his reason for non-attendance was his lawyer's fault.
3. When asked what relief he was seeking, the applicant said he just wanted another opportunity to present his case. Mr Singh said that the Tribunal was not wrong, rather it was his lawyer's fault. In a brief oral reply, Mr Singh repeated that he had done whatever his lawyer had asked him to do and that he just wanted another chance.

1. The Minister contested Mr Singh's submission that he knew nothing of the Tribunal hearing before it was dismissed for non-appearance. The Minister submits that a number of facts and circumstances give rise to a compelling inference that Mr Singh, and not just his representative, were aware of the hearing.
2. First, on 19 March 2019, the Tribunal emailed the applicant's nominated email address and invited the applicant to attend an in-person hearing on 8 April 2019. The email was sent to the email address of the migration agent nominated by the applicant in his application for review of the delegate's decision.
3. Secondly, the Minister's outline of submissions at [5] states that the hearing invitation requested the applicant to;

(a) provide a complete response to the hearing invitation within seven days;

(b) provide all documentation the applicant intended to rely on to establish that they had met the visa criteria at least seven days before the hearing date;

(c) advise as soon as possible as to whether the applicant was unable to attend the hearing, noting the change of hearing date would only occur if the Tribunal was satisfied that there is a very good reason for an adjournment to be granted, that any adjournment request made on medical grounds must be accompanied by medical certificate certifying that the applicant is unable to attend and give oral evidence at the hearing (whether in person or via telephone) and must also indicate when the medical practitioner considered the applicant would be able to attend a hearing and give oral evidence (whether in person or by telephone); and

(d) if represented submit all medical certificates no later than two days before the scheduled hearing date, where applicable.

1. The hearing invitation also stipulated that if the applicant did not attend the scheduled hearing, the Tribunal may dismiss the application without any further consideration of the application on the information before it, noting that an application for reinstatement can be made within 14 days of receiving the notice of dismissal.
2. Thirdly, the Minister notes that the hearing invitation was sent to the applicant's representative two days before the representative travelled to India.
3. Fourthly, on 5 April 2019, the last working day prior to the scheduled hearing, the applicant's representative emailed the Tribunal and requested an adjournment. The adjournment was sought on the basis that the applicant is "facing some health issues and unable to attend his AAT hearing on 8 April 2019". The email attached a copy of a medical certificate which stated that the applicant attended the Westgate Medical Centre on 5 April 2019, and which certified him as "unfit for work" from 5 April 2019 to 12 April 2019 inclusive[7].
4. I infer the applicant was aware of the scheduled hearing by 5 April 2019 at the latest. It is self-evident that the applicant attended the Westgate Medical Centre that day to obtain a certificate to be used as evidence in support of an adjournment application. The adjournment application was made by the representative and it included a copy of the medical certificate. This circumstance could only have arisen if there had been communication between the applicant and his representative about the scheduled hearing and the requirement for the applicant's attendance.
5. Fifthly, shortly after the representative made a request for an adjournment, the applicant himself contacted the Tribunal to ascertain the status of that request. The Tribunal's case notes record a call from the applicant at 3:38pm on 5 April 2019 to one of the case management officers as follows[8]:

He wanted to make sure that the Tribunal has received the request for postponement. I advised the Tribunal has. The Member has no[t] made a decision to postpone the hearing. As the hearing is the next business day at 9:30am, I advised if the applicant does not have a response from the Tribunal, the hearing will go ahead.

1. I agree with the Minister that it is difficult for the applicant to sustain a submission that he was not aware that the hearing of his application had been scheduled for 9:30am on 8 April 2019. Given that the written invitation was sent to his representative, the applicant most likely learned of the hearing from him, possibly as early as 19 March 2019. The forthcoming hearing must have been discussed between the applicant and his representative, and the applicant must have been informed that an application for an adjournment would be made on his behalf, and that supporting evidence would be required. The applicant's telephone enquiry to the Tribunal on the afternoon of 5 April 2019 removes any doubt about his awareness of the hearing.
2. The applicant failed to attend the hearing at the scheduled time and his application for review was dismissed for non-attendance. In its Non-Appearance Decision dated 8 April 2019, the Tribunal noted that a written invitation had been sent to the applicant's representative and that "The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing".
3. There is no evidence in the Tribunal's case notes of any SMS reminders being sent to the applicant. The Minister's solicitor agreed with my observation that SMS reminders are typically recorded and that, in the absence of the usual record, it is possible that the Tribunal member was mistaken. Nonetheless, the Minister submitted that even if the Tribunal mistakenly believed that text messages had been sent to the applicant, it would not constitute a material error in the decision to dismiss the application because the facts otherwise clearly establish that the applicant was aware of the hearing. The Minister submits that it was plainly open to the Tribunal to dismiss the application for non-appearance as it did.
4. On the afternoon of 8 April 2019, the applicant again telephoned the Tribunal and stated that he had just received notification that his hearing postponement request had been refused, and that his representative was in India. I infer that the applicant must have learned of this fact from his representative - again reinforcing my conclusion that the applicant was aware of the scheduled hearing.

1. The Minister submitted and I accept that it was open to the Tribunal to dismiss the application when the applicant did not appear at the scheduled hearing on 8 April 2019.
2. In respect of the invitation to that hearing, the Tribunal complied with its procedural fairness obligations under Part 5, Division 5 of the Act as it was at that time. The hearing invitation dated 19 March 2019 complied with ss 360 and 360A of the Act in that it (1) gave notice of the day, time and place of the scheduled hearing; (2) was sent by email to the last email address provided in connection with the review; (3) complied with the prescribed notice period; and (4) contained the statement required by s 362B of the Act. Compliance with those legislative requirements was sufficient to enliven the Tribunal's power to dismiss the application for non-appearance.
3. Further, and in any event, I am satisfied on the available evidence that the applicant himself was aware of the scheduled hearing time and of the consequences of non-attendance. There was no error in the Tribunal's decision to dismiss the application.
4. The remaining substantive question is whether the applicant has demonstrated any jurisdictional error in the Tribunal's decision to confirm the dismissal.
5. In Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459; [2018] FCAFC 184 the Full Court (Kenny, Bromberg and Colvin JJ) neatly explained the statutory context applying to a reinstatement application. Their Honours said:
   1. In deciding whether there was jurisdictional error by the Tribunal, it is also necessary to consider the statutory context in which a reinstatement application may be brought. When there is an application for review under Div 5 of Pt 5 of the Migration Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the decision under review (save in circumstances that are not applicable for present purposes): s 360(1). If an applicant is invited to appear, but does not do so, then the Tribunal can make a decision on the review without taking further action to allow the applicant to appear or it can dismiss the application without any further consideration: s 362B. If the latter course is followed then the applicant may apply to reinstate the proceedings within 14 days and the applicant must be notified of that statutory right within 14 days after the dismissal: s 362B(1B) and s 362C(5).
   2. The evident purpose of the right to apply for reinstatement is to provide an avenue by which the application may be dealt with on the merits rather than dismissed procedurally. It is a protection that is only afforded if there is due consideration of the reasons advanced on a reinstatement application. If consideration on a reinstatement is confined to whether a person has been "correctly notified" then little purpose would be served by the statutory provision allowing for an application to reinstate. It would confine reinstatement to those instances where the Tribunal itself had not followed the notification procedure in the Migration Act. However, there would be no need for such a right because a dismissal that occurred without proper notification would be no dismissal at all. As I have noted there is a statutory obligation to notify an applicant of a scheduled hearing. Further, the Migration Act is quite specific about how the notification is to be given: s 360A. Satisfaction of such requirements is necessary in order for the power to make a decision on the review to be enlivened: SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63; (2007) 159 FCR 199 at [29]- [30] (Besanko J, with whom Moore J agreed at [1]) and [53] (Buchanan J).
   3. Even so, it is for the applicant to advance the application for reinstatement and any material relied upon. After all, such an application is only made in circumstances where the applicant has failed to appear at a scheduled hearing.
   4. When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is "appropriate" having regard to all of the circumstances advanced to support reinstatement. In such a context, the word "appropriate" connotes two aspects: fitness and propriety. That is, in order to be "appropriate", something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaudron, McHugh and Gummow JJ that:

The phrase "considers ... appropriate" indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.

1. Relevantly for present purposes, the use of the word "appropriate" requires the Tribunal to make an assessment of all of the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the Tribunal could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification.

1. As explained by the Full Court, the statutory responsibility imposed on the Tribunal is to form an opinion or make an assessment as to whether the reinstatement is "appropriate" having regard to all the circumstances advanced to support reinstatement. To properly form such a view, the Tribunal cannot confine its consideration to facts concerning notification of the hearing. Rather, there is an obligation on the Tribunal to properly engage with and make an assessment having regard to all of the matters which have been advanced by the applicant. Only then can the Tribunal reach an outcome which is "appropriate" or fit and proper in the circumstances.
2. In my view, the reasons of the Tribunal disclose that it did properly engage with the relevant facts and circumstances to inform its decision that it was not appropriate to reinstate the application. The Tribunal did not confine itself to the issue of whether the applicant had been notified of the hearing in accordance with the Act. The Tribunal took into account relevant surrounding circumstances, including the nature of the applicant's alleged illness and the adequacy of his supporting evidence, the late application for an adjournment, the relevance of and reasons for the representative's absence in India and the statement and materials provided in support of the reinstatement application on 23 April 2019.
3. I am satisfied that the Tribunal engaged with the matters advanced on behalf of the applicant and addressed them in its reasons. The reasons for the Tribunal's decision that reinstatement was not appropriate are adequately disclosed.
4. It is of no relevance that this Court might have decided the matter differently if faced with the same facts. Minds may differ about whether reinstatement is appropriate. What is relevant is for the Tribunal to form an opinion or make an assessment in the manner described by the Full Court in Singh. I am satisfied that the Tribunal did so and that its reasons do not disclose error.

1. For the reasons set out above, the application for judicial review of the Tribunal's decision must be dismissed.
2. I will hear the parties on the question of costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.