Federal Court of Australia

Junaid v Minister for Immigration and Citizenship [2026] FCA 1128

ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the Minister’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

Delivered ex tempore, revised from transcript

NEEDHAM J:

1 This is an appeal from a judgment delivered in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 27 February 2025 (Junaid v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 234) (the primary judgment). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal) made on 8 October 2020. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (as he was then known) not to grant the appellant a Student (Class TU) (Subclass 500) visa under s 65 of the Migration Act 1958 (Cth) (student visa). The appellant did not, in the delegate’s view, meet the financial requirements outlined in the Migration Regulations 1994 (Cth) (see cl 500.214 of Sch 2).

2 Section 65 of the Migration Act reads:

65  Decision to grant or refuse visa

(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

3 Clause 500.214 of Schedule 2 of the Regulations reads:

500.214

(1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

(2) While the applicant holds the visa, sufficient funds will be available to meet:

(a) the costs and expenses of the applicant during the applicant’s intended stay in Australia; and

(b) the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.

(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

Note: For arrangements for the use of a computer program, see section 495A of the Act.

(4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

4 The appellant appeared in person at the hearing before the primary judge and was assisted by an interpreter. However, at the commencement of the appeal hearing, he did not appear and I will deal below with the efforts to locate him. The Minister was represented by Ms Gutmann, solicitor of MinterEllison. An interpreter was on hand to enable the appellant to have access to the proceedings in his native language of Urdu, however that was not required due to his absence.

5 The Minister applied to have the appeal dismissed for non-appearance under r 36.75 of the Federal Court Rules 2011 (Cth):

36.75 Absence of party

(1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a) if the absent party is the appellant:

(i) the appeal be dismissed; or

(ii) the hearing be adjourned; or

(iii) the hearing proceed only if specified steps are taken; or

(b) if the absent party is the respondent:

(i) the hearing proceed generally or in relation to a particular claim for relief in the appeal; or

(ii) the hearing be adjourned; or

(iii) the hearing proceed only if specified steps are taken.

(2) If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a) setting aside or varying the order; and

(b) for the further conduct of the hearing.

6 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 that order set aside or varied. 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.

7 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 the summary of r 36.75 in DND18 v Minister for Immigration and Citizenship [2026] FCA 293 at [17] (Hill J) and the cases cited therein).

8 I will deal now with the circumstances of the appellant. I am satisfied that the appellant was notified of this hearing date. He has not been in contact with my chambers. Ms Gutmann has not heard from the appellant either. The orders of the registrar on 21 March 2025 for the filing of written submissions were sent to the appellant at the email address noted on his notice of appeal. After that, an email was sent on Monday, 3 August 2026 from the registry seeking an update as to whether the appellant sought to put on any submissions and there was no reply. A further email was sent yesterday at 11:17am from the registry confirming the courtroom and time of hearing today.

9 When the matter was called, the appellant, as I have said, was not present. The court officer was asked to, and did, check the registry and the court foyer to see if he was held up or waiting at either of those places; he was not. Ms Gutmann for the first respondent called the appellant and the call went to voicemail. Finally, the matter was called outside the court, and I came on the bench just after 10:30am. I am satisfied that adequate attempts have been made to contact the appellant. He has not taken any steps to advance the appeal after filing the notice of appeal in March 2025, and as noted he did not file any written submissions.

10 I am satisfied that the appellant has had ample time to prepare for the appeal. I note that a lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal (see Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19] (McKerracher, Farrell and Banks-Smith JJ)). The above matters all tend heavily against adjourning the appeal to enable the appellant to appear and in favour of dismissing the appeal for non-appearance.

11 The final factor is whether the appeal raises any arguable point. The grounds of appeal are, in summary, that the Tribunal’s finding on the appellant’s genuine access to funds in relation to his student visa was an unreasonable conclusion by the Tribunal and the primary judge should have held that that was a jurisdictional error (ground 1);  and that the Tribunal denied the appellant procedural fairness and the primary judge should have set aside the Tribunal decision on that ground (ground 2). Each of these grounds was particularised. Ground 1 is based on the Tribunal’s reasoning at paragraph 25 of that decision and [35] of the primary judgment.

12 The appellant, in his particulars, contended that the acceptance of the primary judge that it was open to the Tribunal to so conclude, demonstrated a failure by the primary judge to engage with the Tribunal’s reasoning or to engage in an appropriate intellectual exercise. The appellant sought, by his notice of appeal, a finding that the primary judge erred in not giving proper, genuine, and realistic consideration of the appellant’s evidence as to his funds. The Minister, in his written submissions, contended that this ground appears to re-agitate aspects of ground 2 as raised before the primary judge. It is a complaint that the Tribunal’s consideration of the appellant’s income was unreasonable. The Minister submitted that the primary judge’s reasons for judgment show a consideration of the reasonableness of the Tribunal’s decision and that no appellable error was revealed.

13 The Minister submitted that the primary judge correctly identified the forms of financial capacity which were set out in Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 and that the appellant did not demonstrate that he had genuine access to the funds identified in his father’s bank account because the primary judge was not satisfied on the evidence that that genuine access was available. The Tribunal gave adequate consideration to the evidence before it in relation to the appellant’s income, and the Minister submitted that ground 1 does not reveal appellable error and should be dismissed.

14 I am satisfied that the Tribunal gave proper consideration to the issue of the appellant’s genuine access to the relevant funds. The Tribunal listed the deficits in the evidence at paragraph 25 of its reasons and took into consideration the fact that the only evidence of funds was a bank statement in the name of the appellant’s father, together with a supporting letter on a page devoid of letterhead. The primary judge properly considered that where a review applicant does not provide sufficient material for the Tribunal to be satisfied of the material facts that they wish to have taken into account, it is not a jurisdictional error on the part of the Tribunal not to be satisfied of the facts sought to be proved (see DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229; (2021) 289 FCR 346 at [80] (Bromwich, Anastassiou and Anderson JJ)).

15 The review by the primary judge, at [35] of the primary judgment, of the Tribunal’s reasons at paragraph 25 does not demonstrate a failure to engage in an appropriate intellectual exercise.  There was no jurisdictional error demonstrated, nor is the Tribunal’s conclusion unreasonable.  It was open to the Tribunal, given the evidence provided to it by the appellant, to make the finding it did and open to the primary judge to accept that finding.

16 In relation to ground 2, the Minister submitted that this ground was a re-agitation of ground 3 as raised before the primary judge. The issue here is whether the Tribunal should have given the appellant further time to provide additional evidence to the Tribunal.

17 The appellant suggested before the primary judge that it was unfair of the Tribunal not to do so.  The appellant, it is submitted, contended that the Tribunal did not properly put adverse information or its concerns to the appellant at the hearing.  The Minister submitted that there was no denial of procedural fairness committed by the Tribunal and that the primary judge was correct to find that no error arose. The Minister submitted that the second ground does not demonstrate appellable error and should be dismissed.

18 The primary judge noted that there was no evidence of any request for further time by the appellant before the Tribunal, nor was there anything in the Tribunal decision which demonstrated that there was a request for further time. The primary judge noted that no transcript had been tendered before him and that the appellant had been on notice since a letter of 23 September 2020 from the Tribunal that all documents he intended to rely on to establish that he met the criteria for the student visa needed to be provided at least seven days before the hearing. The second page of that letter provided a list of information which was required, including in paragraph 3, either:

documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia ... You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument; or

evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

19 As noted, the appellant provided only the bank statement and letter from his father, which the Tribunal, given the absence of other documentation, found to be insufficient. In the absence of any evidence of a request for an adjournment or of a need for further time, the ground of appeal based on a denial of procedural fairness cannot succeed. I find that there was no appellable error by the primary judge in this respect.

20 For completeness, and because the appellant has not appeared but also because he did 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); and 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 a decision which was open to it on the law and the facts.

21 For the reasons I have given above, the appeal is dismissed for non-appearance under r 36.75 of the Rules. The Minister seeks costs against the appellant as agreed or assessed, and I am content to make that order.

Associate:

Dated:    12 August 2026