Federal Court of Australia

Baig v Minister for Immigration and Citizenship [2026] FCA 1197

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first appellant pay the Minister’s costs as agreed or taxed.

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 the orders and judgment delivered in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 27 March 2025 (Baig v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 272). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal) made on 15 July 2021. 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 first appellant a Student (Temporary) (Class TU) (Subclass 500) visa under s 65 of the Migration Act 1958 (Cth) (student visa), and the requisite accompanying visas to his wife (the second appellant) and his young children (the third and fourth appellants).

2    The appellants were not represented by a lawyer before the Tribunal or before the primary judge. Prior to the commencement of the appeal today, there was no appearance for the appellants. The only email address for the appellants is the email address of the first appellant. The registry had corresponded by email with the first appellant on 31 July 2026 at 1:04 pm seeking submissions in accordance with the orders of 9 July 2026 (which varied the orders of 5 May 2025) and again yesterday by confirming this courtroom and the time of today’s hearing.

3    When the appellants had not appeared by 2:15 pm, the court officer was requested to check with the registry and the court foyer to see if the appellants had been held up or were located there, but they were not. My associate requested the solicitor for the Minister to telephone the first appellant but there was no answer, and the call went to voicemail. The court officer then, when I came on the bench, called the matter outside the courtroom and there was no appearance. It is now 2:37 pm and the appellants have not appeared. The Minister applied to have the appeal dismissed for non-appearance under r 36.75(1)(a)(i) 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.

4    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 (see r 36.75(2)). Before dismissing an appeal for non-appearance, the Court would need to be satisfied that the appellant had been notified of the hearing date, or at least that every reasonable step had been taken to do so. The Court may 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) (FCA Act) (see the summary of r 36.75 of the Rules in DND18 v Minister for Immigration and Citizenship [2026] FCA 293 (Hill J) at [17] and the cases cited therein).

5    I am satisfied that the first appellant was notified of this hearing date by the registry. He was also sent a hard copy of the appeal book at his residential address and was contacted by the registry in relation to the hearing. The first appellant has not provided any explanation for his non-appearance. He has not been in contact with either my chambers or with the Minister’s legal representatives. The appellants have not taken any steps to advance the appeal after filing the notice of appeal and affidavit in support on 29 April 2025, the date they were accepted for filing having each been lodged on 11 April 2025. The registry made orders on 5 May 2025 for the preparation for the appeal, including for the filing of written submissions. The appellants did not file any written submissions.

6    I am satisfied that the appellants have 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: 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 allow the appellants to appear, and favour dismissing the appeal for their non-appearance. The final factor to be considered is whether the appeal raises any arguable points. The grounds of appeal in certain respects reflect the grounds of review brought to the primary judge.

7    As noted, the delegate refused the first appellant’s application for a student visa on 18 February 2019, by which time he had spent some 10 years in Australia. On application for review of the delegate’s decision to the Tribunal, which was dated 6 March 2019, the appellants were invited, pursuant to s 359 of the Migration Act, to provide information in relation to their application. They provided some information and the hearing in the Tribunal proceeded on 14 July 2021 on the basis of the material provided and on further supporting material including a submission and a statement. On 15 July 2021, the day after the hearing, the Tribunal affirmed the decision under review and made findings that the evidence provided by the appellants did not demonstrate that there was a genuine intention to return to Pakistan or that they intended only to stay in Australia temporarily as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).

8    The Tribunal was concerned, in particular, by the length of the stay in Australia and the fact that the first appellant had undertaken a number of courses and completed a Bachelor of Business (Professional Accounting) as well as a Diploma of Business and Certificate III in Financial Services (Accounts Clerical). The application for the student visa being determined by the Tribunal was for a Graduate Diploma of Management, after which the first appellant intended to undertake a Graduate Diploma of Strategic Leadership and then return to Pakistan and reopen the general store that he had operated with his family and before the death of his father. The Tribunal considered these matters and made determinations to the effect that it was not satisfied that the first appellant was a genuine temporary entrant.

9    On review before the primary judge, the appellants sought to establish jurisdictional errors in relation to some purported errors in the Tribunal’s decision: a finding as to the first appellant’s economic circumstances which would present a significant incentive for the appellants not to return to Pakistan; reliance in making that finding on the United Nations’ Human Development Report 2020 (and on a failure to provide the Report to the appellants for comment); and, thirdly, a statement by the primary judge that there was a failure by the Tribunal to consider a submission about the first appellant’s intentions, where the primary judge found that the first appellant had not made this submission in his visa application or at any other time.

10    The primary judge considered the impact of the purported errors and it appears that it was conceded by the Minister that the Tribunal did, in referring to the appellants’ representation by an agent, make a typographical (but not a jurisdictional) error because the agent did not attend the hearing. The primary judge then went on to deal with the question of whether the Report was required to be provided to the appellants pursuant to the rules of procedural fairness. The primary judge found that it was not and cited the exemption from the procedural fairness obligations in Division 5 of Part 5 of the Migration Act, which is found in s 359A(4A). Section 359A of that Act reads:

359A Information and invitation given by ART

(1) Subject to subsection (2), the ART must:

(a) give to the applicant, in the way that the ART considers appropriate in the circumstances, clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on it.

(2) If the information or invitation is given to the applicant in writing, the information and invitation must be given:

 (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or

 (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information; or

(d) that was included, or referred to, in the written statement of the decision that is under review; or

(e) that is prescribed by regulation for the purposes of this paragraph.

(4A) The ART is not required to give particulars of information mentioned in subsection (4) to the applicant before making a decision on the application under section 105 of the ART Act or section 349 of this Act.

…

11    In relation to the third ground of appeal, the primary judge determined that, because the Tribunal had stated at paragraph 9(c) of its reasons that it had had regard to all written material filed by or on behalf of the first appellant and specifically noted that it had referred only to information which it found to be fundamental or materially significant, the Tribunal would have had regard appropriately to the “cultural responsibilities contention”, and accordingly, there was no jurisdictional error in relation to any of those grounds. On the current notice of appeal, the appellants seek effectively to restate the Tribunal grounds of appeal, and in his submissions, the Minister set out the grounds of appeal before this court and linked them to the review grounds before the primary judge.

12    The third ground of appeal before this court appears to be submissions rather than grounds of appeal. The Minister made submissions in relation to each of the appeal grounds, noting, of course, the well-known passage from Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 291-3 at [24], which states that the weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker – in this case, the Tribunal. In that case as well, there is a stricture against looking at every line of a decision-maker’s determination with an eye finely attuned to error. In other words, errors need to be material and have an impact upon the outcome of the proceedings.

13    The first appeal ground is whether the Tribunal failed to consider criteria for genuine temporary entrants with active intellectual engagement and failed to carefully consider the amended application and submissions within the Court Book; the appellants also made observations about a failure by the Minister’s lawyers to act as a model litigant. It is clear that model litigant obligations are not matters which attract the jurisdiction of this court in judicial review proceedings (see Dunkerley v Comcare [2020] FCAFC 8 at [47]-[49] (Katzmann, Robertson and Abraham JJ)). The error particularised about the agent is not one which, for the reasons expressed by the primary judge, bases a jurisdictional error. Whether the submissions were made by the agent or otherwise is immaterial, and the appellants did not make any submission to the primary judge that they did not the make the statements attributed to the agent. Accordingly, there does not appear to be a jurisdictional error identified in either the Tribunal’s decision or the primary judge’s findings.

14    In relation to ground 2 and the alleged failure by the Tribunal to provide the Report, as noted above, the Tribunal’s obligation to provide procedural fairness to the appellants does not extend to general information such as country information or, here, a United Nations report (see s 359A(4A) of the Migration Act) because it does not specifically refer to the appellants. Instead, it deals with classes of persons, including citizens of Pakistan. The primary judge was likely correct to determine that there was no breach of procedural fairness obligations on the part of the Tribunal. In relation to ground 3, the question of overlooking relevant considerations while assessing the genuine temporary entrants criteria and the primary judge’s statement at [40] that the first appellant did not make a particular submission in his visa application or any other time to the Department or the Tribunal and that:

… this contention must fail as the Tribunal cannot be faulted for not considering something that was never put to it,

the Minister acknowledged in his written submissions at paragraph 48 that the primary judge did err in making this statement when, in fact, the first appellant had made the contention in the visa application.

15    However, the Minister then went on to submit that that factor does not mean that the error must result in disturbing the decision of the Tribunal in the context of an appeal by way of rehearing (see s 24(1)(d) of the FCA Act, and the cases cited in Tandukar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1267 at [47] (Derrington J)). The first appellant needs to demonstrate how that error lead to an appellable error by the primary judge, and the Minister submitted that the other considerations looked at by the Tribunal member, including the weight given to the kind of study which was chosen by the first appellant, his intentions to go back to Pakistan either to operate the family business or (so that he had two options) find a job in a relevant field, weighed more on the decision-maker’s mind than the question of the portion which was inadvertently mischaracterised by the primary judge.

16    It seems to me that this submission is correct. The Tribunal is not required to refer to every piece of evidence, and where the Tribunal and then the primary judge referred to a number of other factors, including the cultural responsibilities contention (that the first appellant needed to return to Pakistan to assist his family as the eldest son), this was not a matter that should be given sufficient weight in light of the fact that the first appellant had not returned to Pakistan since 2013 and his parents had both died by 2018. The first appellant also noted in the portion of his notice of appeal, which reads as submissions, that he has a share of property which he received from his parents. As the Minister stated at paragraph 60 of his submissions, at AB.113 is a letter from the first appellant’s brother to the Department that essentially states that the first appellant’s brother was holding AUD 40,000 on trust for the first appellant. The Minister submitted that this is not an indication that the Tribunal did not have regard to that document, given that it stated that it had had regard to all the material filed by the appellants.

17    On my review of the notice of appeal, the reasons of the Tribunal and of the primary judge, and the Minister’s submissions, I am of the view that there is no sufficiently arguable point to outweigh the non-appearance of the appellants this afternoon, but for completeness and because the appellants were not legally represented, I have also 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)).

18    I am satisfied, in the absence of any appearance by the appellants, that there is not any obvious error in either decision. Accordingly, the proceedings are dismissed pursuant to r 36.75(1)(a)(i) of the Rules.

Associate:

Dated:    24 August 2026