FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In this case, the appellants, who are Chinese nationals, sought a review of the decision of the Administrative Appeals Tribunal (the Tribunal) not to reinstate their application for protection visas. The appellants were represented by a migration agent who failed to notify them of the hearing date due to an administrative error. The Tribunal had sent SMS reminders to the first appellant, but these were not acted upon. The Tribunal dismissed the application on the basis of the appellants' non-appearance at the hearing. The appellants appealed to the Federal Circuit Court, arguing that the Tribunal's decision was legally unreasonable and that the Tribunal should have considered the merits of their application for review.

The court considered whether the Tribunal's decision was legally unreasonable and whether the Tribunal should have considered the merits of the application for review. The court found that the exercise of the discretionary power not to reinstate the application was within the scope of the Tribunal's powers and was not affected by jurisdictional error. The court also found that the Tribunal was not legally obliged to consider the merits of the application for review when deciding whether or not to reinstate it. The court held that in circumstances where the power being exercised arises out of a failure on the part of an appellant to attend his or her hearing for the purpose of presenting evidence and making submissions in support of an application for review, it would be inconsistent with the nature and purpose of s 426A to hold that the Tribunal was bound to consider the merits of an application for review in circumstances where the appellant had failed to appear at the hearing.

The court dismissed the appeal and ordered that the appellants pay the first respondent's costs fixed in the amount of $5,813. The court found that the Tribunal's decision was not legally unreasonable and that the Tribunal was not required to consider the merits of the application for review when deciding whether or not to reinstate it. The court also found that the appellants had received adequate notice of the hearing and had failed to act upon the SMS reminders sent by the Tribunal. The court held that the Tribunal was entitled to give significant weight to the SMS text reminders in circumstances where the appellants gave no evidence as to why they were not acted on by the first appellant.