Bajracharya v Minister for Home Affairs

The applicant, Mr. Bajracharya, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Home Affairs' refusal to grant him a Partner (Residence) (Class BS) (Subclass 801) visa. The core of the applicant's claim was that the Tribunal had made its decision without affording him an opportunity to be heard, alleging he was not invited to a hearing.

The legal issues before the court were whether the Tribunal had committed jurisdictional error by proceeding to a decision without a hearing, and whether the applicant was entitled to a hearing given the circumstances. Specifically, the court had to determine the effect of a section 359A letter sent by the Tribunal to the applicant's representative, and the applicant's failure to respond within the stipulated time.

The court found that the Tribunal had correctly applied sections 359A, 359C, and 360(3) of the *Migration Act 1958* (Cth). A section 359A letter was sent to the applicant's registered migration agent, inviting comments on information suggesting the breakdown of the applicant's relationship and the withdrawal of sponsorship. The applicant failed to respond to this letter within the specified period, nor did he seek an extension of time. The court held that this failure, in accordance with section 360(3), disentitled the applicant from appearing before the Tribunal at a hearing. Furthermore, the court noted that section 363A of the Act meant the Tribunal had no power to permit the applicant to appear at an oral hearing in these circumstances, a principle affirmed in *Hasran v MIAC* [2010] FCAFC 40.

Consequently, the court concluded that no jurisdictional error had been established and dismissed the application for judicial review.