Nguyen v Minister for Immigration

The applicant, Ms. Nguyen, sought judicial review of a decision by the Migration Review Tribunal to dismiss her partner visa application due to her non-appearance at a scheduled hearing. The applicant had appointed former lawyers as authorised recipients of documents. The Tribunal sent an invitation to a hearing and a notice purportedly containing the effect of section 362B of the Migration Act 1958 to these former lawyers. The applicant did not appear at the hearing, leading to a non-appearance decision. Although the former lawyers were served with the decision and advised of the right of reinstatement, no such application was made, and the Tribunal subsequently confirmed its dismissal decision.

The primary legal issues before the court were whether the notice provided to the applicant's former lawyers adequately stated the effect of section 362B of the Migration Act 1958, rendering it invalid. The court was also required to determine if any error in the notice, or the Tribunal's subsequent decisions to dismiss and confirm the dismissal, constituted jurisdictional error. Furthermore, the court considered whether the Tribunal failed to take into account mandatory relevant considerations when exercising its discretion to dismiss the application for non-appearance, and if such failure amounted to legal unreasonableness.

The court reasoned that while the notice regarding the effect of section 362B was deficient, this error did not render the Tribunal's decisions invalid. The court applied principles of statutory construction, distinguishing between substantive and procedural requirements of the Act, and noted that the legislative purpose of the power to dismiss for non-appearance was not intended to be undermined by such an error. Crucially, the court found that reinstatement of the application was available, mitigating any potential practical injustice. Regarding the alleged failure to consider relevant factors, the court held that for a failure to take into account a consideration to be an error of law, the consideration must be mandatory, meaning the Tribunal was expressly or impliedly required to take it into account by the legislation. The court determined that the factors raised by the applicant – the sending of SMS reminders to her instead of her lawyers, the language of the reminders, and her pregnancy – were not mandatory relevant considerations under the Act.

Consequently, the court found no jurisdictional error and dismissed the application for judicial review.