Fang v Minister for Immigration & Border Protection

The applicant, Ms. Fang, a citizen of China, sought judicial review of a decision by the Migration Review Tribunal (MRT) affirming a delegate's refusal to grant her a Student visa. The delegate had refused the visa on the basis that Ms. Fang was not a "genuine applicant for entry and stay as a student," citing inconsistencies in her provided information, including her occupation and family circumstances. The MRT subsequently affirmed this decision after Ms. Fang failed to attend a scheduled hearing, despite receiving an invitation via email and SMS reminders.

The central legal issue before the Federal Court was whether the MRT had erred in law by sending the hearing invitation exclusively to the applicant's email address, despite her having provided both a postal and an email address. This question was framed within the broader context of whether this communication method constituted a breach of procedural fairness.

Emmett J considered the provisions of section 379A of the *Migration Act 1958* (Cth), which permits the Tribunal to communicate with applicants by various methods, including email. His Honour referred to *Minister for Immigration & Border Protection v Kim* [2014] FCA 390, where it was held that the Minister retained a discretion to choose among the prescribed methods of communication. Emmett J found that the MRT also possessed such a discretion under section 379A. The Court noted that Ms. Fang had submitted her application electronically and that both the Department and the Tribunal had communicated with her via email throughout the process, including when she submitted supporting documents. Furthermore, Ms. Fang had been informed at the time of lodging her application that the Tribunal would communicate by email. In these circumstances, the Court concluded that the Tribunal's decision to send the hearing invitation solely by email did not breach procedural fairness, as Ms. Fang could not have held a reasonable expectation of communication by post.

The application for judicial review was dismissed.