Federal Court of Australia

Banu v Minister for Immigration and Citizenship [2026] FCA 299

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed.

3.    The appellants pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWNES J:

1    This is an appeal from a decision of a judge of the Federal Circuit and Family Court of Australia: Banu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 602 (J). By that decision, dated 8 July 2024, the primary judge dismissed an application for judicial review of the second respondent (the Tribunal) dated 12 August 2019, confirming the Tribunal’s earlier decision made on 25 July 2019 to dismiss the appellants’ review application pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth). That dismissal had occurred because the appellants failed to appear at the hearing in the Tribunal.

2    The first appellant is a female citizen of India who arrived in Australia on a Visitor (Class FA) (Subclass 600) visa. The second appellant, also a citizen of India, is her husband.

3    The appellants appeared at the hearing of the appeal in this Court and were given the assistance of an interpreter. The appellants made oral submissions and handed up written submissions at the hearing.

4    The relevant background information appears at J [2]–[17]. At the hearing of the appeal, a submission was made by the appellants concerning a new fact which was not supported by evidence, and which had not been raised before the primary judge. That fact appeared in [4] of the submissions to the effect that the first appellant was unable to attend the hearing in the Tribunal because “I was told not to”. Objection was taken to that new fact being raised in this manner and for these reasons. I agree and so I give it no weight.

grounds of appeal

5    The grounds of appeal are as follows:

(1)    I can see that His Honour Judge Humphreys treated my case with utmost respect I continue to believe that the Administrative Appeal Tribunal’s decision was infected by error of law as a result of the behaviour of my authorised representative who failed to pass the information to me to attend the hearing.

(2)    I have asked the honourable Minister to intervene in my case but I still believe that the Federal Court may treat my case as requested as expected differently.

Ground one

6    This ground contains two issues: first, the conduct of the appellants’ authorised representative, Ms Vu; and secondly, that the appellants were not informed about and were unaware of the hearing in the Tribunal.

7    As to the first issue, I understand that the appellants are submitting that the primary judge erred in rejecting their allegation that they were the victims of fraud on the part of Ms Vu.

8    The primary judge rejected that contention on the basis that there was no evidence capable of supporting an allegation of fraud or any other wrongdoing: J [39]–[44]. His Honour observed that the material instead showed that Ms Vu had acted appropriately by completing the “Response to Hearing Information” form, notifying the Tribunal that she no longer had instructions, sending the appellants a Form MR6 to confirm their instructions, informing them of the hearing, and supplying the Tribunal with their nominated contact details. I was not taken to any evidence to support a finding that Ms Vu acted fraudulently or otherwise improperly, and there does not appear to be any evidence that she did so.

9    As to the second issue, I understand that the appellants are submitting that the primary judge erred in finding that the Tribunal had power under s 362B of the Act to dismiss their application for non-appearance on the basis that they were not properly informed of the details of the hearing. I note that this contention contradicts the new fact introduced by the written submissions — that is, that the first appellant was informed about the hearing but was told not to attend.

10    Notably, at the hearing before the primary judge, the appellants admitted that they were aware of the hearing date as a result of information sent to them by Ms Vu and the fact that they received two SMS reminders: J [20]; [39]. In these circumstances, the primary judge concluded that as the appellants “simply did not appear … the Tribunal was entitled to proceed in the way it did, by dismissing the application for non-appearance”: J [39], [40].

11    The primary judge was correct to reach this conclusion. The invitation issued on 5 July 2019 complied with the requirements of s 360 and s 360A of the Act: it specified the day, time and place of the hearing, stated the effect of s 362B, and was given by a permitted method to the appellants’ appointed representative, Ms Vu. Further, the appellants admitted that they were aware of the hearing as result of information sent to them by Ms Vu and the receipt of the two SMS reminders. In these circumstances, the conditions in s 362B(1) were satisfied, and the Tribunal therefore had power to dismiss the review application for non-appearance.

12    For these reasons, ground one has no merit.

Ground two

13    Ground two does not raise a viable ground of appeal. It must also fail.

Conclusion and disposition

14    For these reasons, the appeal will be dismissed with costs to follow the event. Other ancillary orders will also be made reflecting the change of name of the first respondent, which order was not opposed by the appellants.

Associate:

Dated:    19 March 2026