Federal Court of Australia

Gade v Minister for Immigration and Citizenship [2026] FCA 1008

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed under r 36.75 of the Federal Court Rules 2011 (Cth).

3.    The Appellant pay the First Respondent’s costs, fixed in the sum of $3,000.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): Gade v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 328 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellant a Temporary Graduate (Post Study Work Stream) (subclass 485) visa (a temporary graduate visa).

2    For the following reasons, the appeal should be dismissed for non-appearance, with costs.

background

3    Completion of Australian Masters degree (Feb 2017): The Appellant is a citizen of India. He undertook a Masters of Information Technology at Charles Sturt University between 2015 and 2017. The University’s letter of completion dated 31 May 2017 states that the Appellant successfully passed all of the subjects to meet the requirements of this degree on 24 February 2017.

4    Application for temporary graduate visa (Aug 2017): On 27 August 2017, the Appellant applied for a temporary graduate visa (J [1], [3]).

5    Visa criteria (cl 485.231): At the time of application, the criteria for this visa were set out in Pt 485 of Sch 2 to the Migration Regulations 1994 (Cth). By cl 485.231, the specific criteria for the Post-Study Work stream were as follows:

485.231

(1)     The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

(2)     Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.

(3)     The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made. (emphasis added)

6    “Australian study requirement” was defined in reg 1.15F. The Masters degree at the University came within this definition. A degree was “completed” for these purposes when the academic requirements for its award were met (see reg 1.15F(2)).

7    Delegate refuses visa (Nov 2017): On 8 November 2017, a delegate refused the application. The delegate found that the Appellant applied for the visa on 27 August 2017, but the letter of completion stated that the Appellant had successfully passed all of the subjects required on 24 February 2017. That was more than 6 months ending immediately before the day the application was made.

8    Application to AAT (Nov 2017): On 27 November 2017, the Appellant applied to the Tribunal for merits review of the delegate’s decision.

9    AAT affirms refusal (Mar, May 2019): The Tribunal held a hearing on 27 March 2019, and gave oral reasons for affirming the decision at the hearing. On 14 May 2019, the Tribunal sent written reasons for its decision to the Appellant’s authorised recipient. These written reasons are in substance the same as the Tribunal’s oral reasons. The relevant parts of the Tribunal’s reasons are as follows:

(a)    At the hearing, the Appellant was asked to respond to the delegate’s concern that the visa application had been made more than 6 months after the Appellant had completed his course of study. The Appellant responded that the letter of completion states 24 February 2017, but his academic transcript was released on 1 March 2017, and he was unable to view his academic results until 15 March 2017 (the date he used in the visa application). The Tribunal asked for evidence that the Appellant had received his result on 1 March 2017, and the Appellant said his academic transcript is dated 1 March 2017. The Tribunal responded that this is the date that the transcript was issued, but it was not evidence that the Appellant had completed assessments for that qualification on 1 March 2017 (Tribunal’s written reasons (AAT) [12]).

(b)    The Tribunal stated that, as it indicated to the Appellant at the hearing, it was not satisfied that there was any evidence to indicate that the Appellant completed his course on 1 March 2017, and not 24 February 2017 as stated in the University’s letter of completion. The study requirement was that the Appellant’s study for the relevant qualification needed to have been completed in the period of 6 months ending immediately before the day the application was made. The Appellant had been unable to provide any evidence that he met this criterion (AAT [13]).

(c)    The Tribunal found that the Appellant’s study for the specified qualification did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Accordingly, cl 485.231(3) was not met (AAT [14]-[15]).

10    Application for judicial review (Apr 2019): On 5 April 2019, the Appellant applied to the FCFCOA for judicial review of the Tribunal’s decision. The Appellant contended that the Tribunal failed to observe the requirements of natural justice, by failing to provide a written record of its decision (ground 1); that the Tribunal failed to give consideration to relevant factors in the decision (ground 2); and the Tribunal based much of its decision on an irrelevant factor (ground 3).

11    Primary judge dismisses application (Feb 2025): On 6 February 2025, the primary judge heard this application, and dismissed it.

    On ground 1 (natural justice), the primary judge observed that the Tribunal was authorised to give oral decisions by s 368D of the Migration Act 1958 (Cth), and the Tribunal had given the Appellant written reasons a little after he had filed his originating application (J [5]). To the extent this ground sought to challenge something that occurred during the Tribunal hearing, there was no evidence that the Tribunal did not adequately explain to the Appellant what was going on or give him an opportunity to respond (J [6]).

    On ground 2 (failure to consider relevant factors), the primary judge held that the Tribunal was bound to consider the time between the completion of the last course undertaken and the application for this visa. The Tribunal was not obliged to consider issues about the Appellant’s study or his personal circumstances or anything else (J [8]). The Tribunal was right to rely on the date in the University’s certificate of completion, rather than the later date of the Appellant’s academic transcript (J [9]).

    On ground 3 (irrelevant factor), the primary judge held that the Tribunal had not relied on any irrelevant factor (see J [12]). The Appellant’s oral submissions to the primary judge largely dwelt on social reasons; however, the FCFCOA could only remit a matter to the Tribunal if there had been a jurisdictional error and in this case there had not been (J [13]). Even if there had been some sort of jurisdictional error, the Appellant had not applied for a visa within 6 months, as required by the Regulations, and no other decision could be made (J [14]).

12    Appeal to this Court (Feb 2025): On 27 February 2025, the Appellant filed a notice of appeal in this Court. That notice contains three grounds of appeal:

    Appeal ground 1 contends that the primary judge misconstrued or misapplied cl 485.231 of Sch 2 to the Regulations “and for that reason fell into jurisdictional error”;

    Appeal ground 2 contends that the primary judge overlooked the relevant information “and for that reason fell into jurisdictional error”;

    Appeal ground 3 contends that the primary judge “failed to consider that each case has its own facts and merits and ought to [be] consider[ed] on a case-by-case basis”.

13    The Appellant’s supporting affidavit affirmed on 26 February 2025 relevantly states:

5.     I believe the decision of the Court/Tribunal was affected by an incorrect application of legal principles.

6.     I was self-represented during the proceedings and required legal assistance for the hearing.

7.     The Honourable Judge Riley’s decision to refuse the 485 visa did not afford me procedural fairness and natural justice.

8.     I firmly believe that I have a genuine and arguable case and that the Federal Circuit and Family Court of Australia erred in dismissing my application on 6 February 2025.

14    Hearing (Jul 2026): The appeal was heard on 28 July 2026. The Appellant did not appear at the assigned courtroom at 10.15am, the scheduled hearing time. The courtroom was changed on the morning of the hearing, and my chambers informed the parties of this change by telephone and email around 9.30am that morning. At my request, the Minister’s lawyer checked whether the Appellant was at the initial courtroom, at Registry, or in the line to enter the courtroom building. The Appellant was not found at any of those places. The Minister’s lawyer called the Appellant on the mobile telephone number set out in the notice of appeal, and left a message stating that the appeal was being heard, and asking the Appellant to return the lawyer’s call. The hearing was adjourned until 11am. The Appellant did not appear at this later time, and did not return the telephone call from the Minister’s lawyer.

consideration

15    Dismissal for non-appearance (Rules r 36.75): The Minister applied to have the appeal dismissed for non-appearance under r 36.75 of the Federal Court Rules 2011 (Cth). Rule 36.75(1)(a) confers power on the Court to dismiss an appeal if (relevantly) the appellant does not appear. If an order is made in a party’s absence, the party may apply to have the order set aside or varied (r 36.75(2)).

16    Before dismissing an appeal for non-appearance, the Court would need to be satisfied that the appellant has been notified of the hearing date (or at least that every reasonable step has been taken to do so). The Court would also consider matters such as the following:

    whether there is any explanation for the non-appearance;

    whether the appeal raises any arguable point;

    whether the appellant has taken any step to advance the appeal, apart from filing a notice of appeal; and

    the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth).

See my summary of r 36.75 in DND18 v Minister for Immigration and Citizenship [2026] FCA 293 at [17], and the cases cited.

17    Appellant’s circumstances: I am satisfied that the Appellant was notified of this hearing date. In the week before the hearing, my chambers rang the Appellant to inquire why he had not filed submissions in accordance with the timetabling orders made for the hearing of the appeal. He stated in that conversation that he had received the emails from the Court setting out the hearing date.

18    The Appellant has not provided any explanation for his non-appearance. In that conversation with my chambers, he stated that he had been unable to get any help from a lawyer, and asked if he could get an extension of the hearing. He was told that, if he intended to ask for an adjournment, he would need to make an application in writing and include the Minister’s lawyers in that email. He did not send any email. The Minister’s lawyer stated at the hearing that they had not heard from the Appellant either.

19    The Appellant has not taken any steps to advance the appeal, after filing the notice of appeal in February 2025. The Court made orders on 19 March 2025 for the filing of written submissions. As just noted, the Appellant did not file any written submissions.

20    I am satisfied that the Appellant has had ample time to prepare for the appeal. I note that lack of legal representation is not, of itself, a reason to adjourn the hearing of a long‑scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19] (the Court). The above matters all tend heavily against adjourning the appeal, and favour dismissing the appeal for non-appearance.

21    Arguments on appeal are without merit: The final factor is whether the appeal raises any arguable point.

22    Issue is whether Tribunal decision contains jurisdictional error: The ultimate issue in this appeal is whether the Tribunal’s decision was lawfully made; in particular, whether its decision contains a “jurisdictional error”: see DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing). However, the Appellant’s appeal grounds 1 and 2 refer to the primary judge committing jurisdictional error, and his supporting affidavit incorrectly states that the primary judge decided to refuse the visa (whereas her Honour dismissed an application for judicial review of a decision by the Tribunal that affirmed a decision not to grant him a visa): see [12]-[13] above. The Minister, as model litigant, submits that the Appellant’s grounds of appeal can be construed as taking issue with the Tribunal’s decision.

23    For the reasons set out below, the Appellant’s arguments in his notice of appeal are without merit. In addition, the Appellant would require leave (permission) to raise Grounds 1 and 3, because these arguments were not made to the primary judge: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]‑[48] (the Court).

24    Appeal ground 1: misconstrued cl 485.231? Appeal ground 1 (as re-interpreted) contends that the Tribunal misconstrued cl 485.231 of Sch 2 to the Regulations.

    As noted, the Tribunal found that the Appellant did not meet cl 485.231(3), because his study for the qualification (that is, his Masters degree at the University) did not satisfy the “Australian study requirement” in the six months immediately preceding the date of the visa application.

    The requirement to file the visa application within the prescribed six-month statutory period is mandatory, and there is no scope for either the Tribunal or this Court to validate an application made outside that six-month period: see Gambhir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 570 at [28], [32] (Collier J); Mohammed v Minister for Immigration and Citizenship [2026] FCA 501 at [25] (Owens J).

25    The critical issue in calculating the six-month period was to determine the point at which the Appellant “completed” his Masters degree from the University, because this is the point at which a person satisfied the “Australian study requirement”: see reg 1.15F(1) of the Regulations. As noted, “completed” was defined, in relation to a degree, to mean “having met the academic requirements for its award”: see reg 1.15F(2).

    Here, the University’s letter of completion stated that the Appellant had “successfully passed all of the subjects to meet the requirements for the [Masters degree] on 24 February 2017”. That letter addresses the statutory criterion in reg 1.15F(2) of when a qualification is completed. That date was 24 February 2017, more than six months before the visa application on 27 August 2017.

    The Tribunal correctly relied on this document, and found that the date of the Appellant’s academic transcript (1 March 2017) and the date on which the Appellant first viewed his academic results (said to be 15 March 2017) were not the date he “completed” his degree, as that term is defined: see AAT [11]-[12].

26    Other appeal grounds: Appeal ground 2 (as re-interpreted) contends that the Tribunal overlooked relevant information. However, the single determinative issue before the Tribunal was whether the Appellant had applied for the visa within six months of completing his latest degree. The Tribunal had regard to, and relied on, the single source of authoritative information to determine when the Appellant had completed his degree. As noted above, the Tribunal also considered the other evidence and information referred to by the Appellant. Information on any other matters was not relevant.

27    Appeal ground 3 (as re-interpreted) contends that the Tribunal failed to consider his case on its individual merits. However, as noted, cl 485.231(3) imposes a mandatory requirement, and there is no scope for considering individual merits if the six-month requirement is not met: see Gambhir at [28], [32]; Mohammed at [25].

28    No other obvious legal error in the Tribunal’s decision: For completeness, and because the Appellant does not have a lawyer, I have considered whether there is any obvious error in the Tribunal’s decision or in the primary judge’s decision: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [11] (Wheelahan J). I am satisfied that there is not any obvious error in either decision. To the contrary, the Tribunal made the only decision open to it on the law.

Conclusion

29    For these reasons, the appeal is dismissed for non-appearance under r 36.75 of the Rules.

30    Costs: The Minister seeks costs in a fixed sum of $3,000. This amount is significantly less than the amount that may be claimed in migration appeals from the FCFCOA that are discontinued before hearing (currently $5,648): see Rules r 40.43, Sch 3 item 15.1. I am satisfied that the amount sought by the Minister is reasonable and proportionate, having regard to the nature and complexity of this appeal: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18] (Kenny J).

Associate:

Dated:    29 July 2026