Shrestha v MIBP

This matter concerned an appeal by Mr Shrestha against a decision of the Migration Review Tribunal (MRT). The MRT had affirmed the decision of the Minister for Immigration and Border Protection to refuse Mr Shrestha's application for a Skilled — Independent (Class SA) visa. The dispute centred on Mr Shrestha's failure to provide requested information to the MRT within the prescribed timeframe.

The primary legal issue before the Federal Circuit Court was whether the MRT had erred in law by proceeding to make a decision on the review without further inquiry, despite receiving some, but not all, of the requested information after the deadline. Specifically, the court was asked to consider the application of sections 359C, 360(3), and 363A of the *Migration Act 1958* (Cth) in circumstances where the applicant failed to provide all required documentation by the specified date and did not seek an extension of time.

Judge Nicholls found that the MRT had correctly applied the relevant legislative provisions. The court noted that the MRT had provided Mr Shrestha with a clear deadline of 20 February 2013 to provide evidence addressing specific requirements, including those related to financial capacity and other matters. The MRT had also explicitly warned that failure to provide the information or seek an extension by that date would result in the Tribunal making a decision based on available information and the loss of entitlement to appear. As no extension was sought and the full information was not provided by the deadline, the MRT was entitled to proceed under section 359C and, consequently, Mr Shrestha was not entitled to a hearing under section 360(3). The court affirmed that, in accordance with section 363A, if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear.

The court therefore dismissed Mr Shrestha's appeal, upholding the MRT's decision to determine the review on the information available without further steps to obtain additional information from the applicant.