Syed v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1316

Syed v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1316

The appeal failed because the primary judge correctly held that the proposed procedural fairness ground was not arguable. The appellant had completed and signed a response indicating that his representative would not attend the Tribunal hearing, made no adjournment application, and said nothing to alert the Tribunal that he expected representation or needed an adjournment. There was no refusal to adjourn and no procedural unfairness or legal unreasonableness. In any event, any alleged error was not material because the appellant was not enrolled in a course, had no offer of enrolment, was not an eligible VET student, and therefore could not satisfy cl 572.223 of the Migration Regulations...

Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Migration Appeal From Dismissal of Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of Student (temporary) (class Tu) Vocational Education and Training Sector (subclass 572) Visa / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed with costs; application to rely on fresh evidence refused.
Legal Topics
['student Visa Refusal' 'genuine Temporary Entrant Criterion' 'tribunal Adjournment' 'legal Unreasonableness' 'materiality of Jurisdictional Error' 'fresh Evidence on Appeal']
['migration' 'administrative Law' 'procedural Fairness'] ['student Visa Refusal' 'genuine Temporary Entrant Criterion' 'tribunal Adjournment' 'legal Unreasonableness' 'materiality of Jurisdictional Error' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Migration Appeal From Dismissal of Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of Student (temporary) (class Tu) Vocational Education and Training Sector (subclass 572) Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the primary judge erred in refusing leave to argue that the Tribunal denied procedural fairness by not adjourning the hearing when the appellant's migration agent was absent." "Whether the Tribunal's failure or refusal to adjourn was legally unreasonable or plainly unjust." 'Whether any alleged procedural fairness or legal unreasonableness error was material given the appellant was not enrolled in a course and had no offer of enrolment.' 'Whether fresh evidence consisting of call records should be admitted on appeal.']

Ratio Decidendi

The appeal failed because the primary judge correctly held that the proposed procedural fairness ground was not arguable. The appellant had completed and signed a response indicating that his representative would not attend the Tribunal hearing, made no adjournment application, and said nothing to alert the Tribunal that he expected representation or needed an adjournment. There was no refusal to adjourn and no procedural unfairness or legal unreasonableness. In any event, any alleged error was not material because the appellant was not enrolled in a course, had no offer of enrolment, was not an eligible VET student, and therefore could not satisfy cl 572.223 of the Migration Regulations...

Court Disposition

Appeal dismissed with costs; application to rely on fresh evidence refused.

Orders

  • ['The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth)."]