Acharige v Minister for Immigration and Multicultural Affairs

1. This decision is about whether the then Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error when it affirmed a decision of the then Minister for Home Affairs' Delegate (Delegate) refusing the Applicant a Training (subclass 407) visa (Training Visa).
2. For the reasons that follow, the Court, as presently constituted, has determined that the Tribunal's decision was not affected by error. Consequently, the application for judicial review must be dismissed.

1. The Applicants are citizens of Sri Lanka.[1] The First (Primary Applicant) and Second Applicant are spouses.
2. On 27 February, the Primary Applicant applied for the Training Visa. The Second Applicant was listed as an accompanying member of the same family unit.[2]
3. The Training Visa application identified NV Global Pty Ltd - a company of which Niroshan Ranaweera (Sponsor) was a director - as the Primary Applicant's Nominator. The Primary Applicant was to be trained in the position of Sales and Marketing Manager.[3]
4. The application was prepared with the assistance of the Applicants' migration agent, Dr Professor Kamal Kithsiri Karunadusa Hewawasam Revulge (Migration Agent), of TAI Migration Lawyers.[4]
5. The Application was acknowledged by the Department the day of lodgement.[5]

1. On 14 February 2019, the Sponsor sought approval for the nomination (Sponsorship Application).
2. On 26 March 2019 the Sponsorship Application was refused because the Department delegate found that "the evidence did not establish a workplace-based component for the role comprising at least 30 hours per week in order to enhance the nominee's skills"; accordingly, subclause 2.72B(6) of the Regulations was not met.[6]
3. On 11 April 2019, the Nominator sought review of the Delegate's refusal with the Tribunal.[7]
4. On 24 October 2022, the Tribunal affirmed the refusal of the nomination.[8] The procedural history of the nomination matter, and the refusal decision, is not in the materials before this Court.

1. On 26 March 2019, the Delegate invited the Applicant to comment on information in respect of the Training Visa. The letter stated that the Primary Applicant had "not been identified in an approved [Training Visa] nomination", meaning at the time of the letter, she was unable to satisfy clause 407.214 of Schedule 2 of the Migration Regulations 1994 (Cth) (Criterion 407.212) which required (emphasis added):

If the approved sponsor is not a Commonwealth agency:

(a) the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1)(b) of the Act; and

(b) the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A; and

(c) the approval of the nomination has not ceased under regulation 2.72A; and

(d) either:

(i) there is no adverse information known to Immigration about the sponsor or a person

associated with the sponsor; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor

1. The invitation letter indicated the Primary Applicant "may wish to contact [her] sponsor in regards to" the deficiency in her application. The Primary Applicant was provided 28 days to provide a response.[9]
2. On 12 April 2019 (within the prescribed time frame), the Migration Agent responded to the Delegate. The letter asserted that the Delegate had "arrived at the wrong decision when she considered irrelevant information and failed to consider relevant information". It further informed the Delegate that on 11 April 2019, an appeal had been filed with the Tribunal in respect of the Nomination Refusal. [10]
3. On 15 May 2019, the Delegate concluded that the Primary Applicant did not satisfy Criterion 407.214; accordingly, the Training Visa application was refused. The refusal decision was emailed to the Applicants' Migration Agent that same day.[11]
4. This Court has no jurisdiction to review the Delegate's decision.[12]

1. On 29 May 2019, on behalf of the Primary Applicant, the Migration Agent lodged with the Tribunal an application for review of the Delegate's Training Visa refusal.[13] The application was acknowledged by the Tribunal on 31 May 2019.[14]
2. On 11 June 2019, the Primary Applicant was notified (by email, sent to the Migration Agent) of the Second Applicant's visa refusal (dated 15 May 2019). The Delegate concluded the Second Applicant did not satisfy clause 407.311 in schedule 2 of the Migration Regulations 1994 (Cth) (Criterion 407.311) which required that he be a member be of the family unit of a person holding a Training Visa.[15]
3. On 28 May 2021, the Primary Applicant updated her details, with Dr Revulge remaining her representative.[16]
4. As stated above, on 24 October 2022, the Tribunal affirmed the refusal of the nomination.[17]
5. On 9 March 2023, the Applicants were invited to attend a Tribunal hearing scheduled for 31 March 2023; the invitation was sent to the Migration Agent.[18]
6. On 20 March 2023, the Primary Applicant sought an adjournment of the Tribunal hearing on the basis that she was "having serious medical issues". A medical certificate certified that she was "unfit to continue her usual occupation".[19]
7. On 24 March 2023, the Tribunal responded to the request, seeking further evidence of the medical basis for adjournment. It asserted the medical evidence should identify:

(a) the date of the Primary Applicant's medical appointment;

(b) that the Primary Applicant was not fit to give evidence; and

(c) when the medical practitioner believed the Primary Applicant would be fit to give evidence.[20]

1. On 27 March 2023, an additional medical certificate was forwarded to the Tribunal; it anticipated the Primary Applicant would be fit to give evidence in 3-6 months with treatment.[21]
2. On 28 March 2023, the Tribunal responded to the supply of the new medical certificate, stating it was "not satisfied that the new medical certificate [was] sufficient for the applicant's request" of a 3-6-month adjournment. It asserted the hearing would not be postponed and any such adjournment would require a certificate which outlines "the applicant's condition and sufficient reasons for the request".[22]
3. Two subsequent medical certificates were forwarded by the Migration Agent:

(a) on 28 March 2023, a psychologist referral drafted by the Primary Applicant's GP, identifying she was showing "symptoms suggestive of post-natal depression";[23]

(b) on 29 March 2023, a brief psychologist report, provisionally diagnosing the Applicant with moderate anxiety, and severe depression. A treatment plan was outlined.[24]

1. On 30 March 2023, the Migration Agent was notified that the request for adjournment had been denied and that accordingly, that the hearing would proceed as scheduled the following day.[25]
2. On 31 March, the Applicants attended the hearing via telephone with the assistance of an interpreter. Their Migration Agent did not attend.[26]
3. On 31 March 2023, the Primary Applicant emailed the Tribunal requesting that the decision be sent directly to her email address.[27]
4. On 31 March 2023, the Migration Agent was notified that the Tribunal had affirmed the Delegate's refusal decision.[28]

1. The Tribunal's decision record is 43 paragraphs long and spans 7 pages.
2. The Tribunal began by summarising the matters procedural history including:

(a) the reasons for both the refusal of the nomination, and Training Visa.[29] The Tribunal asserted it was "not aware of any current appeal to a court in respect" of the Tribunal's affirmation of the nomination refusal;[30] and

(b) the Primary Applicant's (refused) requests for adjournment. It asserted that the psychologists report did "not address the impending Tribunal hearing... comment on the applicant's ability to respond orally at a telephone hearing or provide any anticipated timeframe suitable for... attendance at the Tribunal".[31]

1. The Tribunal went on to describe the hearing of 31 March; this included that:

(a) the Primary Applicant indicated she was willing to proceed by telephone and answer questions;[32]

(b) the Primary Applicant asserted she was:

1. ... unaware of the review outcome by the nominator, and that in fact, her representative had informed her that the "nomination was approved". The applicant said she had had difficulties contacting her representative who had not responded to her earlier. She said this was the first time (the hearing) that she had learnt what had happened with the nomination. She said that she had spoken with the nominator who had told her that the nominator was still prepared to pursue a nomination application on her behalf. The Tribunal explained the nomination decision following the Tribunal's nomination review and read to the applicant from the Tribunal decision in those proceedings finalised on 24 October 2022.
2. The Tribunal asked if the applicant wished to respond to any of this information, most of which she said she was hearing for the first time. She stated that she now understood. The applicant said she had been unaware of the nomination rejection because her agent "was unhelpful". The Tribunal informed her that any complaint concerning the agent could be taken up with the Department, but the review was only concerned with whether the applicant was subject to an approved nomination for the Training visa and relevant circumstances for such approval.

(c) the Primary Applicant had no further information to submit;[33]

(d) the Tribunal "informed [the Primary Applicant] that without an approved nomination, the visa review cannot succeed";[34]

(e) the Primary Applicant "asked if she could seek an adjournment to obtain advice from someone else other than the existing representative and to consider her position"; the Tribunal declined this request;[35] and

(f) the Tribunal did not accept the Primary Applicant's claim she had been unaware of the Tribunal's decision to affirm the Nomination Refusal.[36]

1. The Tribunal subsequently identified that the issues before it were whether the Primary Applicant met Criterion 407.214, and whether the Second Applicant satisfied Criterion 407.311. It was concluded that neither criterion was satisfied; accordingly, the Tribunal affirmed the decisions of the Delegate to refuse the Training Visa.[37] Having regard to the factual circumstances, the decision of the Tribunal was the only decision it could make. This was accepted by counsel for the Applicants at the hearing before this Court.[38]

1. On 11 April 2023, the Applicants filed an application with this court seeking review of the Tribunal's decision (Originating Application). Throughout proceedings, this application has undergone three substantial amendments; the final amendment was filed 5 January 2026 (Final Amended Application).
2. The Final Amended Application articulates two grounds for judicial review (reproduced below) and seeks the following orders:

(a) an order that the decision of the Tribunal be quashed;

(b) a writ of mandamus directed to the Tribunal requiring them to determine the applicant's application according to law.

(c) an injunction restraining the Minister, by himself or by his department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings;

(d) costs;

(e) leave to cross examine the Migration Agent and Sponsor; Dr Kamal Kithsiri Karunadasa Hewawasam Revulge and Mr Niroshan; and

(f) leave for the Applicants to use any documents, information, or evidence obtained in these proceedings by compulsion (including pursuant to subpoena or Court order), notwithstanding the implied undertaking described in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, for the purpose of commencing and prosecuting civil proceedings arising out of the conduct the subject of these proceedings.

1. On 28 June 2023, the Respondent filed a response seeking that the application be dismissed as it did not establish jurisdictional error.
2. On 22 January 2025, a bundle of documents (Court Book) was filed.
3. The application for judicial review was dismissed by a Registrar of this Court on 30 January 2025 for non-appearance.
4. On 25 February 2025, the Applicants filed an interlocutory application seeking reinstatement of the application (Reinstatement Application). The Reinstatement Application was accompanied by an affidavit, affirmed by the Primary Applicant on 19 February 2025. In the affidavit, the Primary Applicant claimed her "mobile phone was broken and [she] was not getting any emails or phone calls"; as such, she had not been aware of the hearing.
5. On 28 February 2025, the Primary Applicant filed written submissions to support her application for reinstatement. In addition to reiterating the claims made in respect of her broken phone, the Applicant cited her lack of financial resources, and mental health issues as further reasons contributing to her non-attendance.
6. On 11 March 2025, the First Respondent (Minister) filed an affidavit affirmed by Amron Rath. This affidavit annexed a copy of an email sent by the Department to the Minister's solicitors confirming that the Primary Applicant's Nominator had not sought judicial review of the Nomination Refusal. The email attached an ICSE screenshot confirming the Delegate's refusal of the nomination, and the subsequent affirmation of this refusal by the Tribunal.
7. On 11 March 2025, the First Respondent filed an outline of submissions opposing the reinstatement application.
8. On 19 March 2025, a Registrar of this Court made orders which included reinstatement of the judicial review application as well as the matter's listing for final hearing before the Court as presently constituted; the final hearing was listed for 2 May 2025. The following orders were made in respect of the filing of documents:

(a) Applicant to file any amended application, written submissions and further evidence by 3 April 2025; and

(b) Minister to file any written submissions and further evidence in reply by 17 April 2025.

1. On 3 April 2025, the Primary Applicant on her own behalf filed submissions in support of her application for judicial review. For the first time, the submissions included claims about the Migration Agent and Sponsor's unethical conduct as well as submissions about errors in the decision-making process of the Tribunal. The Court apprehended that the Applicants might contend that, by reason of the actions of the Migration Agent and/or Sponsor, there had been a fraud perpetrated on the Tribunal.
2. On 17 April 2025, this Court made orders extending the deadline for the Minister's filing of written submissions/further evidence to 23 April 2025.
3. On 22 April 2025, the date of the final hearing was adjourned to 1 May 2025.
4. On 23 April 2025, the Court made orders converting the 1 May hearing to a directions hearing. The Minister sought these orders to adequately respond to the Applicants' allegations concerning the Migration Agent and Sponsor's fraud.
5. On 1 May 2025, a directions hearing before this Court was held via Microsoft Teams. The following orders were made:

(1) the application for judicial review be listed for final hearing on 16 July 2025;

(2) the Applicants file and serve an amended application, written statement (Affidavit), written submissions and any additional evidence on or before 13 June 2025; and

(3) the First Respondent file and serve written submissions in reply and any additional evidence on or before 11 July 2025.

1. On 2 May 2025, the First Respondent filed the Affidavit of Kristina Petrovski. The Affidavit annexed the transcript of the Tribunal hearing of 31 March 2023.
2. On 2 June 2025, the Applicants sought adjournment because of their legal representative's unavailability. At this time, there had been no indication that the Applicants were obtaining representation. Nonetheless, on 3 June 2025, the final hearing was adjourned to 22 July 2025.
3. On 13 June 2025, the Applicants forwarded a number of files directly to Chambers, ostensibly to support their claims concerning misconduct by the Migration Agent/Sponsor.
4. Later that day, the Applicants sought an extension of time in respect of these directions. Accordingly (and after having sought the Minister's position), on 19 June 2025, orders were made granting the Applicants an extension to 20 June 2025, to file any amended application, witness statements, submissions and any additional evidence.
5. On 19 June 2025, the Applicants complied with 19 June Orders and filed an amended application and affidavit deposed by the Primary Applicant.
6. On 11 July 2025, the Minister wrote to the Court seeking orders that the final hearing scheduled for 22 July 2025 be converted into a directions hearing. The Minister sought further time to:

(a) issue subpoenas to the Migration Agent and Sponsor who the Applicants alleged were fraudulent; and

(b) consider the information received, prior to preparing written submissions and filing any further evidence.

1. On 11 July 2025, orders were made for a directions hearing to be held on 22 July 2025. The orders also directed that:

(a) the Applicants file and serve any further submissions 28 days before the final hearing; and

(b) the First Respondent file and serve written submissions in reply and any additional evidence 14 days before the final hearing.

1. On 22 July 2025, the directions hearing proceeded before this Court as presently constituted, in the Melbourne Registry. The Applicants appeared in person without legal representation; Jonathan Barrington, of counsel, appeared for the Minister. The following orders were made:

1. By no later than 23 July 2025 the First Respondent must issue any subpoenas to the First Applicant's:

1. sponsor Niroshan Ranaweera; and 2. migration agent Dr. Hewawasam Revulge Kamal Kithsiri Karunada;

1. Any subpoenas issued by the First Respondent must be returnable on 5 August 2025; 2. By no later than 4:00pm (AEST) on 12 August 2025, the First Respondent must file in the Court and serve on the Applicants any written submissions and evidence upon which it seeks to rely; 3. By no later than 4:00pm (AEST) on 18 August 2025, the Applicants must file in the Court and serve on the First Respondent any reply submission and evidence upon which they seek to rely; and 4. The proceedings be listed for Final Hearing before His Honour Judge Johns on 20 August 2025 at 2:00pm (AEST).
2. On 23 July 2025, the First Respondent complied with the 22 July 2025 Orders and issued subpoenas to the Sponsor and Migration Agent.
3. On 4 August 2025, the subpoenaed material was received by the Court.
4. On 6 August 2025, the Minister filed a Notice of Request to Inspect for both sets of subpoenaed documents.
5. On 7 and 11 August 2025, the Minister's representative wrote to the Court seeking an update on the release of the subpoena materials.
6. There was a delay in the Minister receiving the Subpoena material and hence, on 18 August 2025, the following orders by consent were made:
   1. Orders 3 to 5 of the Orders of Judge Johns dated 22 July 2025 be vacated;
   2. By 25 August 2025, the First Respondent file and serve any written submissions and evidence upon which it seeks to rely;
   3. By 1 September 2025, the Applicants file and serve any submission in reply and evidence upon which they seek to rely; and
   4. The proceedings be listed for final hearing before Judge Johns on 8 September 2025 at 10am.
7. On 20 August 2025, the Sponsor filed an affidavit, in which he "firmly and unequivocally refute[d] all claims made" by the Applicant. In particular, the Sponsor alleged that the Applicants had borrowed considerable sums of money from him, and that "[a]ny money transferred by [the Applicants] was merely a repayment of the funds they had borrowed". He further alleged that the Applicants had "manipulated the entire narrative with the help of another lawyer who does not have a good relationship with [the Sponsor] due to professional competition".
8. On 25 August 2025, the Minister complied with the Court's orders and filed written submissions.
9. On 1 September 2025, the Court was informed that the Applicants' legal representative required further time to prepare submissions and prepare for the final hearing; accordingly, the hearing scheduled for 8 September 2025 was vacated. The following orders were made:
   1. By no later than 4:00 pm (AEST) on 29 October 2025, the Applicants must file in the Court and serve on the First Respondent any reply submission and evidence upon which they seek to rely; and
   2. The proceedings be listed for final hearing before his Honour Judge Johns on 5 November 2025 at 10:00am
10. On 21 October 2025, both the Primary and Second Applicants filed a Notice of Address for Service, identifying solicitors at JT Lawyers as their representative.
11. On 27 October 2025, representatives for the Applicants sought leave to inspect the subpoenaed documents. Leave was granted. That same day, the Second Applicant filed an affidavit in which he stated that:

...

1. Between 1 April and 14 August 2021, I made regularly fortnightly payments of $2,250 to the sponsor, Mr Niroshan Ranaweera, through a combination of bank transfers and cash payments.
2. These payments were made on the instructions of both the sponsor and the migration agent, who advised that the payments were required to maintain my wife's training arrangement and position.
3. The total amount during this period exceeded $78,750, representing approximately 35 separate payments made at intervals of around two weeks.
4. These payments were not voluntary. I understood at the time that they were a condition of continuing my wife's visa sponsorship and training placement, as directed by the migration agent and Mr Ranaweea.
5. I was told these payments represented "wages" or "training contributions", although no payroll records, payslips, or superannuation statements were ever issued by NV Global Pty Ltd to my wife.

1. Appended to the affidavit were extensive bank records, ostensibly verifying the abovementioned transactions.
2. On 29 October 2025, the Primary Applicant filed an affidavit in which she claimed that she:

(a) had not been notified of the Nomination Refusal by her Migration Agent;

(b) had not consented to, nor been notified of the appeal made to the Tribunal in respect of the Delegate's refusal of her Training Visa. Accordingly, she had not personally supplied any information or submissions to the Tribunal prior to the hearing;

(c) had worked for the Sponsor between February and April 2020, but had received no salary;

(d) had only become aware of the Tribunal hearing on 20 March 2023; and

(e) had never borrowed money from the Sponsor and that any funds ostensibly borrowed by the Applicants "were paid my husband to facilitate the fraudulent salary scheme".

1. A considerable number of documents were appended to the Affidavit. In light of subsequent concessions made by the Applicant's representatives during the hearing on 3 February 2026, in respect of claims of fraud on the Tribunal, it is unnecessary to discuss these in detail.
2. Also on 29 October 2025, the Applicants filed an amended application, which substantively amended the grounds for review enumerated before they had obtained legal representation. These grounds, unaltered in the Final Amended Application, were as follows:

GROUND 1: BREACH OF STATUTORY PROCEDURAL FAIRNESS

1. The Tribunal's decision is vitiated by jurisdictional error due to a failure to afford the First Applicant statutory procedural fairness, resulting from the non-compliance with the mandatory disclosure regime under the Migration Act 1958 (Cth).

A. The Tribunal elected to orally disclose the adverse information (that the nomination was refused) to the unrepresented First Applicant, purporting to satisfy its duty under s 359AA(1) of the Migration Act 1958.

B. The Tribunal failed to comply with the mandatory condition for effective oral disclosure under s 359AA(1)(b)(iii) by not advising the First Applicant that she may seek additional time to comment on or respond to the adverse information.

C. This failure to advise the mandatory right under s 359AA(1)(b)(iii) meant the strict conditions for dispensing with the requirement for written disclosure under s 359A(3) were not satisfied.

D. The result is a constructive failure by the Tribunal to discharge

GROUND 2: UNREASONABLE EXERCISE OF POWER AND CONSTRUCTIVE FAILURE OF JURISDICTION (STULTIFICATION)

2. The Tribunal's decision is vitiated by jurisdictional error because the Tribunal exercised its power unreasonably, resulting in the constructive failure to exercise its jurisdiction, by refusing an adjournment in circumstances where the First Applicant's ability to participate was disabled by third-party fraud and medical vulnerability.

A. The First Applicant's attendance and capacity to respond were materially impaired due to a sustained course of deliberate third-party fraud and concealment by her former migration agent and sponsor (including unlawful fee extraction and concealing adverse decisions for nearly four years).

B. At the hearing, the Tribunal rejected the First Applicant's spontaneous request for an adjournment, despite:

(a) The First Applicant being unrepresented;

(b) Being medically vulnerable (with supporting evidence of Post Natal Depression and severe anxiety); and

(c) Being unaware of the core adverse fact (the nomination refusal) underpinning the Minister's decision.

C. The Tribunal's rejection of the request for time in these circumstances contravened its mandatory obligation under s 359AA(1)(b)(iv) to adjourn the review if it reasonably needed additional time to comment or respond.

D. The cumulative disabling effects of the systemic third-party fraud, coupled with the refusal to grant time, stultified the operation of the Tribunal's statutory function, thereby rendering the ultimate decision legally void (applying the principle in SZFDE v Minister for Immigration and Citizenship).

E. The refusal to grant an adjournment in the totality of the circumstances was an exercise of power that was legally unreasonable.

1. On 31 October 2025, the Court made orders by consent vacating the 5 November 2025 hearing. The consent orders were requested to provide the Minister's representatives sufficient time to review the considerable amount of material filed by the Applicants and address the new grounds. It was also anticipated that the hearing would be required to be heard over two days.
2. On 5 January 2026, the Applicants filed the Amended Application; the primary amendment therein related to "ancillary relief... sought to permit the use of compelled material obtained in the proceedings for related civil proceedings arising from the same factual matrix."
3. On 20 January 2026, the Minister filed consolidated submissions, addressing the new grounds for review. In respect of the sought ancillary relief, the submissions asserted that the Minister was "unable to formulate a position on this order in circumstances where no information about the anticipated or pending civil proceedings [had] been given."
4. On 30 January 2026, a solicitor for the Minister (Ms Petrovski) filed an affidavit which appended the applicant's Tribunal application fee statement; this had not been reproduced in the Court Book.
5. On 2 February 2025, a solicitor for the Applicants (Ms Tam) filed an affidavit of service, which affirmed that a number of documents, filed in respect of this proceeding, had been served by email on the Migration Agent and Sponsor.
6. That same day, the Minister filed a supplementary Court Book, as well as an outline of authorities.

1. The judicial review hearing proceeded on 3 February 2026 in the Court's Melbourne Registry. The Applicants were represented by Shannon Finegan, instructed by JT Lawyers. The Minister was represented by Jonathan Barrington, instructed by Sparke Helmore Lawyers. The Applicants, Migration Agent and Sponsor were also in attendance, in anticipation of the giving of evidence.
2. Prior to the commencement of the hearing, Chambers furnished the parties with an overview chronology of the matter before the delegate and the Tribunal in respect of both the Applicants' visa application and the application by the Nominator/Sponsor. The correctness of the chronology was not disputed. In summary, the following events occurred:

• Primary Applicant says this information was concealed from her.

• Because no underlying nomination.
• Primary Applicant says this information was concealed from her.

• Primary Applicant says she did not provide instructions to Migration Agent to do this.

• Primary Applicant says she only found out about hearing on 20 March 2023.
• 23, 27 and 29 March 2023: Primary Applicant attempts to adjourn for medical reasons.
• 30 March 2023: adjournment denied.
• Primary Applicant says adverse information not provided to her.
• Primary Applicant says she needed more time to meet adverse information.

1. At the commencement of the hearing, before the making of submissions, it was put to the Applicants' representatives that the Tribunal's affirmation of the Delegate's decision was the only decision it could make. Ms Finegan, for the Applicants, conceded that this was the case.[39]
2. The Court further put to the Applicants' representative that the issue of whether the Primary Applicant was made aware of (or gave instructions for the purposes of) the application to the Tribunal was not dispositive. This is because, had the appeal never been lodged by the Migration Agent, the Tribunal would never have made a decision challengeable before this Court, in the valid exercise of its jurisdiction.[40] Ms Finegan also accepted this proposition.[41]
3. The Court subsequently asked how - even if all facts as pleaded by the Applicants were true - the Tribunal decision had been stultified (as pleaded in Ground 2) or, in any way, affected by the Migration Agent/Sponsor's impugned conduct.[42] Ms Finegan responded that, "The Tribunal clearly didn't understand that the Applicant was completely in the dark" and that it was "open for the Tribunal to find that fraud has occurred".[43] The Court responded by inquiring how there had been fraud on the Tribunal (c.f. fraud on the Applicant). Ms Finegan referred to the case of Singh v Minister for Immigration[44] in which a migration agent's lodgement of a Tribunal application without the Applicant's knowledge, had ostensibly constituted fraud on the Tribunal.[45] Ms Finegan took the Court to the following passage, in which Justice's Kenny, Griffiths and Mortimer stated:

[51] The issue of the operation of s 48 of the Migration Act where it is claimed that there has been fraud by a third party on a visa applicant, which fraud has affected the decision-making process in relation to that visa application, is a matter of real interest to both the appellant and the Minister. Furthermore, the issue is one which affects not only the appellant here, but also other visa holders whose visa applications are rejected in circumstances where there is fraud on the part of a migration agent or third party and the relevant statutory processes are also stultified. There is considerable public interest in the due and lawful administration of statutory provisions in the Migration Act relating to such matters as the making of visa applications and their determination and review in circumstances where there has been fraud on the part of a third party. As the High Court observed in SZFDE at [11], these concerns, which arise in a public law context, relate to the due administration of the laws of the Commonwealth and have important constitutional underpinnings.

1. The Court again requested Ms Finegan to explain what the alleged act of "fraud on the Tribunal" was, and how it had affected the making of the impugned decision.[46] Ms Finegan responded that, "Had the Tribunal been aware of the circumstances of the level of fraud that was committed against [the] Applicant, it was open to put that information into its summary decision, which... authorises the Minister to intervene at a Ministerial Intervention level".[47] The Court subsequently suggested that the Tribunal's decision would have nonetheless, not been altered.[48] Ms Finegan responded by suggesting, "It would have also been open to the Tribunal to remit the decision back to the Delegate"; the Court inquired which power this remittal could have been exercised pursuant to.[49] An adjournment was given, to enable Ms Finegan to prepare a response, and consult with her instructor.[50] After the adjournment, Ms Finegan again conceded that the only option for the Tribunal was to affirm the Delegate's decision.[51] The Court asked why, in those circumstances, it was necessary to hear from the Migration Agent and Sponsor.[52] Ms Finegan conceded it was not necessary, and the Sponsor and Migration Agent were accordingly excused.[53]
2. The Court notes that despite the serious allegations made against the Migration Agent and the Sponsor, these claims remain untested. Indeed, the Applicants' representative confirmed that, at the time of hearing, no action had been taken by the Applicants to take action against either individual in respect of the serious allegations made against them.[54]

THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS

1. In Bhasker v Minister for Immigration and Multicultural Affairs[55] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
   1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
   2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[56]
   3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[57]
   4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[58] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[59] Different kinds of error may overlap.[60] The categories are not closed.[61] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[62]
   5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[63] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[64] It has been described as an "undemanding" standard.[65]
2. The Court as presently constituted respectfully adopts his Honour's summary of the task before it.
3. Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[66]

1. Section 359A of the Act details the Tribunal's obligation to disclose adverse information to an Applicant; at the time of the Tribunal's decision, it read:

Section 359A - Information and invitation given in writing by Tribunal

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in

section 379A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information

...

1. Section 359AA of the Act permits the Tribunal to provide oral particulars of any information it considers would be relevant to its affirmation of the Delegate's decision. At the time of the Tribunal's decision, it read:

359AA Information and invitation given orally by Tribunal while applicant appearing

(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) if the Tribunal does so - the Tribunal must:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

1. The relevant authorities are Antoon,[67] Qazizada,[68] SAAP,[69] and EAO22.[70]
2. Another relevant case is FQI17 v Minister for Immigration and Citizenship ('FQI17').[71] In FQ117, the Applicant, a citizen of Pakistan, sought judicial review of a decision of the Administrative Review Tribunal. The Tribunal had affirmed a decision of the delegate to refuse to grant the Applicant a Temporary Protection visa. The grounds of review were unparticularised. However, as a model litigant, the Minister identified error in the Tribunal's reasons - namely that the Tribunal failed to comply with section 424A of the Act (i.e. the Tribunal failed to give the Applicant written notice of necessary information). In FQI17 the Minister conceded that a failure to comply with the procedural fairness requirement "is per se jurisdictional error and that there is no 'materiality' threshold to be met". However, the Minister further contended that "it remain[ed] open to the Court to exercise its discretion to refuse the applicant prerogative relief when it would be inutile to do so." FQI17 is relevant because, in the present matter, the Minister made substantially the same submissions.
3. In FQI17 Judge Forbes usefully and correctly summarised the previous authorities as follows (footnotes omitted):

SAAP

55. In SAAP the majority (McHugh, Kirby and Hayne JJ) held that the Refugee Review Tribunal had breached s 424A, that the breach gave rise to a jurisdictional error and that there were no grounds to exercise the court's discretion to refuse to grant relief.

56. McHugh J held that the language, scope and object of the Act made clear that compliance with s 424A was an imperative and mandatory duty, such that non-compliance would mean the Tribunal had not discharged its statutory function. His Honour reasoned that, because Parliament had made s 424A "one of the centrepieces of its regime of statutory procedural fairness" the "best view of the section is that failure to comply with it goes to the heart of the decision-making process". It followed that "a decision made after a breach of s 424A is invalid".

57. Hayne J similarly emphasised the imperative language in s 424A of the Act. At [208] Hayne J stated:

Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.

58. Kirby J essentially agreed with Hayne J holding that, because of the mandatory language of s 424A, any breach is sufficient to constitute jurisdictional error.

59. Each of the three justices also found no reason to refuse relief to the applicant on discretionary grounds. There was no evidence of delay, waiver, acquiescence or unclean hands. The court found that even if the applicant was aware of and had an opportunity to address the relevant issue, that was not a consideration which bore on an "invalid decision".

Antoon

60. In Antoon, the primary judge in this court found that the Tribunal had failed to comply with section 359A (the cognate provision to s 424A) but was emphatically of the opinion that the error would have made no difference to the overall outcome of the review. Although the Minister submitted that the breach was therefore not material and not jurisdictional (MZAPC), the primary judge considered himself bound to follow two judgments of the Federal Court: SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 232 FCR 282; [2009] FCA 486 and DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 which had each followed and applied the earlier decision of the High Court in SAAP.

61. In the appeal before Wigney J, the central question raised by the Minister was whether the primary judge was in error in finding that any failure to comply with s 359A of the Act constitutes a jurisdictional error, or whether only those failures that are material to the outcome of the decision constitute jurisdictional error. The Minister also contended that that the primary judge erred by failing to consider whether to exercise his discretion to refuse to grant relief to Mr Antoon on the basis that no useful result could ensue if the relief were granted.

62. As in the present case, the Minister contended that only material breaches of s 359A of the Act constitute jurisdictional errors. The Minister relied, in support of that submission, on a number of relevantly recent "materiality" decisions of the High Court: Hossain, SZMTA, and MZAPC, albeit decisions that did not directly concern breaches of s 359A (or s 424A) of the Act.

63. The Minister submitted that the earlier decision of the High Court in SAAP did not squarely address whether a breach of ss 359A or 424A of the Act would only constitute a jurisdictional error if it was a material breach, being breaches that, if they had not occurred, could have made some difference to the relevant outcome. In the Minister's submission, while the decision in SAAP had not been expressly overruled, it was nevertheless necessary to read it in light of the more recent authorities concerning materiality.

64. In their submission, the applicants in Antoon argued that SAAP establishes that any breach of s 424A of the Act constitutes jurisdictional error, irrespective of the materiality of the breach to the outcome of the review. Mr Antoon maintained that the primary judge was bound to follow SAAP, which had not been overruled and was still good law.

1. At [49], Wigney J posed the questions which fell for determination:

[49] As has already been noted, the central question raised by the appeal is whether a breach of s 359A of the Act only constitutes jurisdictional error in circumstances where the breach was a material breach, in the sense that if there had been no such breach, the outcome of the Tribunal's review could have been different. The starting point, in answering that question, is to consider the decision in SAAP. Is SAAP authority for the proposition that any breach of s 359A constitutes a jurisdictional error, irrespective of the materiality of the breach; or is the issue of materiality not squarely addressed in SAAP? If the issue of materiality is not squarely addressed in SAAP, is it necessary to read SAAP in light of the subsequent High Court cases that deal squarely with that issue? Can SAAP, which does not appear to have been overruled, be reconciled with those later authorities concerning materiality?

66. These are the same questions which fall to be determined in this case, albeit with the benefit of further judicial consideration.

67. In Antoon, Wigney J noted that none of the majority in SAAP suggested in their reasoning that a breach of s 424A would only amount to a jurisdictional error if the breach was material, in the sense that, if there had been no such breach, the outcome of the Tribunal's review could have been different. However, in a number of cases, all of which post-dated SAAP, the High Court has made it clear that a breach of a provision of the Act dealing with the Tribunal's conduct of a review does not constitute a jurisdictional error unless the breach was material: Hossain, SZMTA, MZAPC, Nathanson, LPDT. None of those cases have concerned a breach of ss 359A or 424A of the Act, but the reasoning in those cases does not clearly exclude any provision of the Act from the general proposition.

68. Wigney J explored the anatomy of the High Court's reasoning in each of the materiality cases. It is not necessary to do so again here, save to note that the tension between the "categorical and unconditional nature of the decision" in SAAP and the more recent materiality cases was not lost on his Honour or that a number of subsequent Federal Court judgments had failed to resolve it satisfactorily.

69. In Antoon, the Minister submitted that because no party in SAAP had argued that there was a threshold of materiality in the Act, it was open to the court to find that the later materiality cases had now done so. The Minister accepted however that SAAP had not been expressly overruled or qualified by any of the materiality decisions.

70. Despite there being a strong argument, as a matter of statutory construction, that the implication of a threshold of materiality should apply to all provisions within the Act, Wigney J held that it would be inappropriate for a single judge of the Federal Court (or even a Full Court) to impliedly overrule SAAP when the High Court had not expressly done so. At [92] of his reasons, Wigney J said:

There is undoubtedly a degree of tension between the decision of the majority justices in SAAP and the reasoning of the majority justices in Hossain, SZMTA and MZAPC. It is difficult to see any sound basis for concluding that the implication of the threshold of materiality would not apply in the case of breaches of ss 359A and 424A of the Act. Nevertheless, SAAP has not been overruled, expressly or impliedly, and remains authority for the proposition that a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal's decision. Any tension or inconsistency between that proposition and the reasoning in Hossain, SZMTA and MZAPC must be resolved by the High Court, not a single judge of this Court.

71. Wigney J then turned to consider the Minister's alternative ground, namely that the primary judge should have but failed to consider whether, as a matter of discretion, not to grant the applicant prerogative relief.

72. Wigney J found that the issue concerning discretionary refusal of relief was not squarely raised before the primary judge, but held that it was nevertheless incumbent on the court below to consider whether it was or was not appropriate to exercise the discretion to grant or withhold the relief sought by the applicants. That is because the discretionary nature of the relief attended the jurisdiction conferred on the primary judge by s 476(1) of the Act. Further, the obligation on the primary judge to consider whether to withhold relief on discretionary grounds was particularly acute given his Honour's emphatic finding that the Tribunal's error "would have made no difference to the overall outcome".

73. Wigney J found at [142] that the primary judge's finding that strict compliance by the Tribunal with s 359A of the Act could not have made a difference to the outcome of the review, meant that the Tribunal's breach of s 359A was, in the particular circumstances of the case, "technical and immaterial" and that there was no "unfairness or practical injustice" to the applicants. Because the result of a remittal to the Tribunal would almost certainly be the same, it would have been inutile to grant the relief sought by the applicants.

74. The critical question is whether the Court can be positively satisfied that compliance with the relevant obligation "could not have made any difference": Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145.

Qazizada

75. An important aspect of the Minister's concession in the present case is that the court is bound by SAAP and Antoon. At [24] of the written outline, the Minister goes on to add:

The Minister further submits that the Tribunal's decision was affected by the error identified above, such that there is no independent basis on which to conclude that the Tribunal's decision is not affected by jurisdictional error.

76. By that statement, the Minister sought to draw a distinction between the circumstances in the present case and those which confronted Perram J in the recent case of Qazizada.

77. In Qazizada, Perram J considered a matter where the applicant claimed that the Tribunal had not complied with the requirements of s 359A (as mentioned, a cognate provision to s 424A). His Honour considered whether a breach of that provision by the decision maker is a jurisdictional error where there are other independent bases on which the refusal of the visa could be justified.

78. From [21] Perram J opined:

[21] Consistently with common sense, it has been held by this Court that where there are several independent paths to affirming a decision under review, no jurisdictional error is shown by impugning only one of those paths: see, for example, VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 ('VBAP') at [33] per North J, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 ('VCAD') at [22]-[23] per Gray J, [45] per Sundberg and North JJ; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 ('VUAX') at 600-601 [55]-[57] per Kiefel, Weinberg and Stone JJ.

[22] On the other hand, in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 ('SAAP') the High Court held that a failure to comply with a cognate provision of the Act, s 424A, constituted a jurisdictional error. In that case, there was no issue raised about materiality. Subsequently, the High Court has held that in most cases an error is not jurisdictional unless it is material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134 [29] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 444 [44] per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at 521-22 [31]- [33] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at 102 [30] per Kiefel CJ, Keane and Gleeson JJ, 132 [121] per Edelman J; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at 614 [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (Beech-Jones J agreeing at 619 [38]).

[23] SAAP has not been overruled by the High Court. Since it pre-dates the discovery of materiality, it is not couched in terms which suggest that a breach of s 424A must be material. There is an interesting question as to whether this Court remains bound to conclude that a breach of s 424A (or s 359A) constitutes a jurisdictional error without any consideration of materiality. Wigney J reached the view that SAAP did have that effect in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; 298 FCR 400 ('Antoon') at 419 [92]-[96].

[24] However, neither SAAP nor Antoon was a case where the Tribunal had at least two independent reasons for affirming a decision under review, only one of which was impugned. I do not read SAAP or Antoon as saying anything about that question. Consequently, the matter is governed by VBAP, VCAD and VUAX. In this case, the Tribunal was expressly authorised to exercise the powers that had been exercised by the delegate: s 349(1) of the Act. The power exercised by the delegate was the power in s 65. Section 65(1) required the delegate (and hence the Tribunal) to refuse the grant of the visa unless satisfied that the requirements for that visa (including both the Australian relative and carer criteria) were satisfied. Having concluded that the carer criterion was not satisfied, the Tribunal had no power under s 65(1) to grant the visa and was required by s 65(1)(b) to affirm the delegate's decision to refuse to grant it. The fact that it breached s 359A(1) in arriving at the conclusion that the Australian relative criterion was not satisfied can have no impact on the validity of its decision to affirm the decision to refuse the visa. By virtue of its conclusion that the carer criterion was not satisfied the Tribunal was under a legal duty arising from s 65(2) to affirm the delegate's decision. This analysis is concerned with power and is unrelated to materiality. There was no jurisdictional error. It is true that an alternate path to that conclusion might lie in the parallel reasoning disclosed in the High Court's decision in Hossain. However, since that case is concerned with materiality in the context of jurisdictional error, I would prefer not to reason in that fashion because of the uncertainty identified by Wigney J in Antoon concerning the operation of SAAP.

EAO22

79. The most recent occasion on which the tension between SAAP and the materiality cases was considered was in this court in EAO22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1336 (Judge Cleary).

80. In that case, Judge Cleary surveyed the judicial evolution described above in the context of a case where the applicant submitted that curial relief should be granted by reason of the Tribunal's breach of s 424A. Questions arose as to:

(a) whether the principles of materiality applied where there was a breach of s 424A?

(b) whether there was an independent basis (or separate pathway of reasoning) for the Tribunal's decision to refuse the visa, which is free of error and separate from the breach of s 424A? and

(c) if the Tribunal committed jurisdictional error, should the court exercise its discretion to refuse the relief sought by the applicant.

81. In EAO22, both parties accepted that there had been a breach of s 424A by the Tribunal. Where the parties differed was on whether the Court was required to assess if the non-compliance with s 424A was material before finding that the error of law was a jurisdictional error. The applicant submitted, relying on Wigney J's judgment in Antoon, that the Court must find that non-compliance with s 424A is a jurisdictional error per se, rendering the Tribunal decision invalid regardless of whether the non-compliance with s 424A was material or not.

82. As in this case, the Minister made a formal submission that Antoon was wrong in relation to its finding that SAAP was authority for the proposition that want of compliance with s 424A renders a decision invalid without an assessment of the materiality of the non-compliance.

83. Judge Cleary found, as do I, that this Court is bound by Antoon and by the earlier High Court decision in SAAP. Absent clear High Court authority, it is not open to this court to hold that the materiality cases (Hossain, SZMTA, MZAPC, Nathanson, LPDT) apply to a breach of s 424A.

84. Judge Cleary then considered a submission by the Minister, based on Perram J's judgment in Qazizada (which cited VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; [2004] 238 FCR 588), that where there are separate and independent pathways for the Tribunal to affirm the delegate's decision under review, jurisdictional error is not shown if only one of those pathways is impugned.

85. The Minister submitted that the Tribunal's failure to comply with s 424A was only one pathway and that there was "another independent unimpugned pathway to affirming the delegate's decision under review that was unaffected by that jurisdictional error"[72]. Judge Cleary accepted the argument and found that notwithstanding the breach of s 424A, there was no jurisdictional error because the Tribunal's decision could be supported on an independent and alternative basis.

86. Judge Cleary accepted a submission from the Minister that the "modern" materiality analysis of the High Court is, "on close analysis, probably just an alternative path to the same destination as that decided in the earlier cases of VBAP, VCAD and VUAX"[73]. In reaching that conclusion, Judge Cleary considered himself bound by the observations of Perram J in Qazizada (as considered and persuasive obiter) and the earlier Federal Court decisions cited by him.

1. It is important to record that, by the time the matter came before the Court there was no allegation of fraud on the Tribunal. Ms Finigan confirmed this.[74] The only fraud asserted (in Ground Two) was fraud on the Applicants. This fraud was said to disable the Applicants from participating before the Tribunal. The Court deals with that submission below.

Ground One: Breach of Statutory Procedural Fairness

1. The Tribunal's decision is vitiated by jurisdictional error due to a failure to afford the First Applicant statutory procedural fairness, resulting from the non-compliance with the mandatory disclosure regime under the Migration Act 1958 (Cth).

PARTICULARS

A. The Tribunal elected to orally disclose the adverse information (that the nomination was refused) to the unrepresented First Applicant, purporting to satisfy its duty under s 359AA(1) of the Migration Act 1958.

B. The Tribunal failed to comply with the mandatory condition for effective oral disclosure under s 359AA(1)(b)(iii) by not advising the First Applicant that she may seek additional time to comment on or respond to the adverse information.

C. This failure to advise the mandatory right under s 359AA(1)(b)(iii) meant the strict conditions for dispensing with the requirement for written disclosure under s 359A(3) were not satisfied.

D. The result is a constructive failure by the Tribunal to discharge

(a) the Tribunal "elected to use the oral disclosure method under s 359AA(1**)**" in disclosing "the failed nomination and conclud[ing] there was 'no current nomination approved'";

(b) the Tribunal failed to comply with s 359AA, namely, subsection (1)(b)(iii), because it did not advise the Applicant that she could "seek additional time to comment on or respond to the adverse information" and indeed, denied a "spontaneous request for additional time to obtain a new agent"; and

(c) the "words of s 359A(3) makes compliance with every element of s 359AA(1) the condition precedent to dispensing with written disclosure". As such, "the ability to rely on oral disclosure is conditional on strict compliance with all prescribed sub-conditions... [and] requires perfect compliance for the oral method to be effective at law". In this sense, contrary to the Minister's contention, the Applicant's attendance at the hearing was incapable of curing the Tribunal's non-compliance with s 359AA, because "attendance cannot supply a missing statutory advisal";

(d) the Tribunal's non-compliance with s 359AA meant it failed to validly discharge its disclosure duty under s 359A(1);

(e) the Tribunal's non-compliance amounted to jurisdictional error. The Applicants', on this point:

(i) relied on the High Court's decision in SAAP as support for the proposition that "a failure to comply with the statutory procedural fairness regime vitiates the decision regardless of whether the Tribunal might otherwise have reached the same conclusion"; and

(i) submitted that that "when Parliament sets out a statutory procedure, it must be followed strictly and in full".

1. The Minister conceded that the Tribunal had not strictly comply with the requirements of s 359AA (namely, subsection (1)(b)(iii)). Notwithstanding the concession, the Minister submitted that no relief should be given.
2. The Minister contended that:

(a) it was "important to note that the Tribunal complied with most of s 359AA" even if it had not, "when inviting comment or a response to the information, advise[d] the [A]pplicants that they may seek additional time to comment on or respond to the information";

(b) on the question of the materiality of the Tribunal's error, it was "significant that, although the [Applicants were] not told that they could seek additional time to comment, they nevertheless in fact sought additional time to comment... [such that] the objective of s 359AA(1)(b)(iii) was achieved in circumstances where the applicants requested additional time despite not having been advised that they could do so, and the Tribunal considered that request and refused it";

(c) the decisions in SAAP and Antoon - which stand for the proposition that "non-compliance with s 359AA of the Act constitutes jurisdictional error without the applicant needing to demonstrate" materiality - were "wrongly decided to the extent that they establish any breach of s 359A, s 359AA or s 424A, even if the breach is not material... results in jurisdictional error";

(d) the Court should exercise its discretion not to grant relief, irrespective of the Tribunal's decision being tainted by jurisdictional error, because remittal would result in the making of the same decision, and would thus be futile. The submissions posit two conflicting (and ostensibly unresolved) approaches to assessment:

(i) a backwards-looking approach. According to a backwards-looking approach, the question of whether to grant relief is to "be addressed by looking backwards at what did happen (and constructing a past hypothetical in which the breach... did not occur)".[75] The Minister submitted, the backwards-looking "approach in Antoon should be applied and that the Court can be positively satisfied that the technical and immaterial breach of s 359AA in this case did not deprive the applicants of a realistic possibility of a different outcome";

(ii) a forwards-looking approach. According to a forwards-looking approach, the question of whether to grant relief is to be addressed "by looking forward to a rehearing (and considering what would happen at that stage)".[76] The Minister submitted that "even on the forward-looking approach.... the applicants have not put forward anything to suggest that they would be able to secure a new nomination for the visa on remittal. There is nothing before this Court to suggest that there could actually be something useful to be gained by remitting the matter". Relevant to this argument, the Minister drew attention to the decision of Perram J in Qazizada in which his Honour (in obiter) refused to accept that the "truism" that "one can never know what will happen in the future" provided a "sufficient basis for concluding that a different outcome might occur" - as was reasoned by Perram J, were this accepted, "relief could never be refused on a discretionary basis".[77]

1. In this matter the Court, as presently constituted finds that:

(a) the Tribunal breached the procedural fairness obligations imposed upon it because it did not comply with s 359AA(1)(b)(iii) of the Migration Act;

(b) consequently, the Tribunal did not discharge its statutory function;

(c) the Tribunal's breach amounted to jurisdictional error; and

(d) no issue of materiality arises.

1. However, having made the findings above, having further regard to the authorities it is necessary to determine what follows from the Tribunal's error in the present matter. This is particularly so when this Court is bound by SAAP and Antoon.
2. The Court as presently constituted is further satisfied that the breach of the Migration Act in the present circumstances was "technical and immaterial" and that there was no "unfairness or practical injustice" visited upon the Applicants. This is because, adopting the "backwards-looking approach", the Tribunal was bound to refuse the visa because the Primary Applicant lacked an approved nomination; that remained the case, irrespective of the procedural breach in question. That fact provides an independent basis for refusing the visa. Having concluded that the relevant criteria was not satisfied the Tribunal had no power to grant the visa. The Tribunal had a legal duty to affirm the decision of the Delegate. As stated above, the representative of the Applicants conceded the same before this Court. This analysis is "concerned with power and is unrelated to materiality." That means there was no jurisdictional error.
3. Consequently, remitting the matter to the Tribunal would almost certainly result in the same outcome. The Primary Applicant did not have an approved nominator. Notwithstanding that almost 3 years have passed since the Tribunal's decision, there is no evidence before this Court that at any time the Primary Applicant has sought or obtained a new nominator. Therefore, it would be pointless to grant the relief sought by the Applicants, and the Court, as presently constituted declines, to do so.
4. Ground One is dismissed.

Ground Two: Unreasonable Exercise of Power and Constructive Failure of Jurisdiction (Stultification)

2. The Tribunal's decision is vitiated by jurisdictional error because the Tribunal exercised its power unreasonably, resulting in the constructive failure to exercise its jurisdiction, by refusing an adjournment in circumstances where the First Applicant's ability to participate was disabled by third-party fraud and medical vulnerability.

PARTICULARS

A. The First Applicant's attendance and capacity to respond were materially impaired due to a sustained course of deliberate third-party fraud and concealment by her former migration agent and sponsor (including unlawful fee extraction and concealing adverse decisions for nearly four years).

B. At the hearing, the Tribunal rejected the First Applicant's spontaneous request for an adjournment, despite:

(a) The First Applicant being unrepresented;

(b) Being medically vulnerable (with supporting evidence of Post Natal Depression and severe anxiety); and

(c) Being unaware of the core adverse fact (the nomination refusal) underpinning the Minister's decision.

C. The Tribunal's rejection of the request for time in these circumstances contravened its mandatory obligation under s 359AA(1)(b)(iv) to adjourn the review if it reasonably needed additional time to comment or respond.

D. The cumulative disabling effects of the systemic third-party fraud, coupled with the refusal to grant time, stultified the operation of the Tribunal's statutory function, thereby rendering the ultimate decision legally void (applying the principle in SZFDE v Minister for Immigration and Citizenship).

E. The refusal to grant an adjournment in the totality of the circumstances was an exercise of power that was legally unreasonable.

(a) the Tribunal's refusal to grant an adjournment despite the Applicant's ability to respond being "materially impaired by sustained misconduct and medical vulnerability" amounted to an unreasonable exercise of power, and breach of s 359AA(1)(b)(iv) (see [88]). In detailing the Applicant's circumstances, the following summary was provided (citations omitted):

Anusha was unrepresented, medically vulnerable (with supporting evidence), and unaware of the core adverse fact underpinning the refusal, having been denied access to relevant documents by her agent. She was subjected to a sustained course of misconduct, including inducement to pay approximately AUD60,000 under false pretences, coercion into a fabricated salary scheme involving circular fund transfers, and misinformation about visa conditions that led to over two years of unpaid labour. These actions corrupted the factual foundation before the Tribunal, disabled her capacity to respond, and raise serious concerns under Australia's anti-slavery framework.

The agent concealed the delegate's nomination and visa refusals for nearly four years, lodged an appeal without instructions, and ultimately abandoned Anusha at the final hearing while she was medically unwell. This directly impaired her ability to respond to the adverse information and compounded her vulnerability at the time of the Tribunal hearing. In that context, Anusha made a spontaneous request for time to obtain proper assistance.

(b) in line with the distinction drawn by the High Court in SZFDE v Minister for Immigration and Citizenship ('SZFDE')[78] the conduct of the Migration Agent and Sponsor went beyond mere fraud and constituted "conduct... that stultify[ed] the operation of natural justice and disable[d] the Tribunal from discharging it's [sic] imperative statutory functions". More particularly, it was contended that "the fraud... deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425",[79] once "the statutory advisal and adjournment protections were not afforded... and the adjournment... refused notwithstanding the disabling circumstances". Beyond SZFDE, the Applicants' relied upon (and summarised) a number of "fraud" cases - Singh v Minister for Immigration ('Singh'),[80] Gill v Minister for Immigration and Border Protection ('Gill')[81] and Maharjan v Minister for Immigration and Border Protection ('Maharajan')[82] - ostensibly in support of the proposition that "fraud committed by a migration agent during the visa application process can, in certain circumstances, render the application invalid", such that the Tribunal's "jurisdiction remains constructively unexercised" and its decision vitiated. More particularly, it was submitted (citations omitted)

... the same pattern of conduct in SFZDE is evident in this matter:

1. In SZFDE, the agent actively dissuaded the applicants from attending their Tribunal hearing and discouraged them from communicating with the Tribunal, depriving the invitation to the hearing of its quality of being meaningful under s 425 of the Migration Act.63

2. In this matter, Anusha was repeatedly misled and kept in the dark, and when she found out about the hearing, she was instructed not to engage with the Tribunal, was told that attendance would be futile, had her relevant documents withheld by her agent, and was ultimately abandoned at the hearing while medically unwell.

It is submitted that the misconduct in this case is more extensive and sustained than in SZFDE. It includes the extraction of unlawful sponsorship fees, coercion into unpaid labour under false visa advice, fabrication of employment records, concealment of adverse decisions over a period of years, unauthorised appeals, and complete abandonment at the final hearing. The cumulative effect of these actions not only stultified the Tribunal's function but corrupted the factual foundation of the review itself. The fraud here was systemic, deliberate, and prolonged, and it disabled Anusha's ability to participate meaningfully in the review process.

(c) the Applicant satisfied the three elements of third-party fraud outlined in Maharjan, namely:

(i) the occurrence of third party fraud. Here, the Applicants pointed to an (alleged) "sustained and deliberate pattern of fraudulent conduct by the Applicant's former migration agent and sponsor... calculated to mislead both the Applicants and the Department". Seven acts of fraud were alleged:

• (A) the Migration Agent and Sponsor's "extract[ion of] an unlawful sponsorship fee of approximately AUD60,000";
• (B) the Migration Agent and Sponsor's "orchestrat[ion of] a fabricated payroll scheme designed to create the appearance of lawful employment";
• (C) the Migration Agent's deliberate concealment of "critical adverse decisions from the Applicant for an extended period";
• (D) the Migration Agent's unauthorised lodgement of appeals with the Tribunal;
• (E) the Migration Agent's provision of "false and misleading advice that the Applicant's visa carried a 'no work' condition'... [and that] she could only work for the sponsor";
• (F) the Migration Agent's creation of "an expectation that he would discharge his professional obligations to assist the Applicant and the Tribunal" despite, inter alia, failing to provide the Applicant with critical documents, not responding to mandatory requests for information, actively encouraging the Applicant not to attend the Tribunal hearing and leaving the Applicant unrepresented at the 31 March 2023 hearing.

(ii) lack of complicity or indifference to fraud on the part of the Applicant. It was contended the Primary Applicants conduct reflected "vulnerability, reliance and a consistent effort to comply with the law and protect her position". On this point, the Applicants drew reference to the following contentions of fact:

• (A) that the Primary Applicant had "acted throughout in good faith and in reliance on professional advice" (e.g. in discontinuing her MBA studies at the behest of the Migration Agent; in paying the $60,000 sum to the Migration Agent and Sponsor);
• (B) that the Primary Applicant had "sought clarity regarding the status of her visa and made repeated inquiries to the agent for information and assistance";
• (C) that "[o]nce aware of the hearing, [the Primary Applicant] engaged with the Tribunal process diligently";
• (D) that the Primary Applicant had taken "proactive steps to seek independent legal advice" once aware that the Migration Agent "would not assist her";

(iii) the fraud impeded the Tribunal's statutory purpose. The Applicants' contended (as has been summarised above) that the review was deprived "of its quality as a genuine inquisitorial process and stultified the statutory scheme" in particular, through the Tribunal's rejection of the request for adjournment.

(d) on the question of materiality (specifically, the Minister's contention "that remittal would be futile because there is presently no approved sponsor"), the Applicants' contended that Criterion 407.214 "does not preclude the possibility of a fresh nomination being lodged and considered upon remittal". Moreover, it was asserted that remittal would afford "the Applicants the only real opportunity to obtain a fresh, legitimate nomination that is untainted by the conduct of the" Migration Agent and Sponsor.

(a) Ground Two suffered "from a fundamental flaw", namely, that "the reasonableness of the Tribunal's approach is to 'be judged at the time the power is exercised and turns on the circumstances known to the decision-maker at that time'". Accordingly, the Tribunal's decision was not unreasonable because (footnotes omitted):

42.1. The medical information before the Tribunal was relatively scant in nature. While it stated that the first applicant was "unfit to give evidence", there was no indication in the medical certificate as to why the applicant was unable to give oral evidence. A later report that indicated the nature of the applicant's psychological issues gave a "provisional diagnosis" and did not state that she was unfit to give evidence. At the hearing, the Tribunal revisited this question by asking whether the applicant could understand and answer some simple questions. The first applicant said she could. Further, as the Tribunal noted, the issues before it were relatively narrow in compass. The medical information did not compel the Tribunal to adjourn the review lest it act unreasonably.

42.2. The information about fraud did not go beyond mere assertion. The Tribunal had no corroborative evidence of fraud. Indeed, the first applicant's evidence was that her agent was "not very helpful really" and that he did not "very clearly explain" the reasons why her visa application was rejected. The Tribunal was not required to accept that a fraud had occurred simply because the first applicant had asserted that her agent was negligent, or even fraudulent.

(b) per SZFDE at [51], in order for fraud to be vitiating, it must occur "on" the Tribunal (c.f. in dealing with the Applicant's) and must go beyond "bad advice or negligence... even gross negligence". On these points, the Minister asserted:

(i) that it was insufficient for the Applicants to show they "themselves were defrauded" but that this fraud affected "a particular duty function or power of the Tribunal".[83] The Minister submitted that "the only particular duty, function or power identified in the [A]pplicants' submissions.... is the power to adjourn the review", but that:

• (A) it was "difficult to see how that power is of central importance for the legislative scheme laid out in Div 4 of Pt 7 of the Act";
• (B) the power was, in fact, exercised by the Tribunal in considering "the adjournment power both before and during the Tribunal hearing"

(ii) at "its highest, the Applicant's evidence shows only negligence, perhaps even gross negligence";

(c) unlike in SZFDE, the Applicant's "in fact attended the Tribunal's hearing" and did so, apparently "after 'googling' what an AAT hearing was and seeking independent legal advice";

(d) the Applicant's evidence would be subject to "challenge in various respects". In particular, the Minister drew attention to the fact that a number of the Applicant's claims were contrary to the evidence of the Migration Agent and Sponsor which was available at the time submissions were prepared;

(e) or rather, prefaced the argument (depending on the evidence adduced at hearing) that the Applicants "were complicit or indifferent to the use of lawful and dishonest means by the agent (if it was established)" - namely, because the Applicants "appeared to knowingly take part in a false scheme whereby payments from the [S]ponsor were immediately offset by funds provided by the [Primary Applicant's] husband". The Minister asserted, on this point, that it was "very difficult to see how anyone could reasonably think that this amounted to a genuine employment relationship or anything other than an artifice designed to fool the Department".

1. Nothing that happened before the Tribunal, including its denial of an adjournment, stultified the Tribunal. This is because the substantive issue before the Tribunal was narrowly confined (i.e. whether the Primary Applicant had an approved nominator). That is the basis upon which the Tribunal made its decision. In that regard it is noted that the Primary Applicant attended the hearing before the Tribunal. She was put on notice about the absence of an approved nominator. The reality is there is nothing she could have said to dispute that fact.
2. Further, the medical basis for an adjournment was inadequate. In any case, an adjournment would not have assisted the Applicant to satisfy the Tribunal that she had an approved nominator. She did not.
3. The fraud that the Applicants contend for is, is a fraud upon them, and not the Tribunal.
4. The test for unreasonableness is a stringent one.[84] The relatively recent judgment of Anderson, Feutrill and Raper JJ in King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 contains a useful summary of the applicable principles:

53 Review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised. '[T]he Court's role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances in which reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of the power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification.': Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92].

54 Accepting that statutory discretions confer an 'area of decisional freedom' a decision may be legally unreasonable if it is shown 'to be arbitrary or capricious or to abandon common sense', or if it 'lacks an evident and intelligible justification': Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], [76]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]. Such expressions are not to be regarded as rigid formulae, but rather, as assisting in the evaluative task of determining whether a decision may be properly characterised as sitting outside the boundaries of legal reasonableness: Stretton at [2]-[13] (per Allsop CJ).

1. The refusal of the adjournment was not unreasonable. It did not lack an evident and intelligible justification. In all the circumstances of this matter, where the Primary Applicant did not have an nominator, any adjournment would have been pointless.
2. Ground Two is dismissed.

3. Further, ancillary relief is sought to permit the use of compelled material obtained in these proceedings for related civil proceedings arising from the same factual matrix.

1. Plainly, Ground Three enumerates an order sought by the Applicants' and is not directed to the Tribunal decision. It does not need to be further considered.
2. Consequently, Ground Three is dismissed.

1. For the reasons set out above, this Court is satisfied that the Tribunal's reasons were not affected by jurisdictional error. Accordingly, the application for judicial review must be dismissed. And order to that affect will be issued concurrently.
2. At the hearing, Ms Finegan sought that there be "no order as to costs given the circumstances". In deciding the question of costs, the Court is required to consider:

(a) whether it is appropriate that the applicants should pay any costs at all, noting that the usual rule in courts in Australia is that an unsuccessful party pays the party/party costs of the successful party; and

(b) if the Court is so satisfied that the applicants should pay costs, what the reasonable quantum is.

1. The Court notes that the "circumstances" seemingly justifying the requested order relate to allegations of obtaining money and financial advantage by deception - grave allegations which, arguably, raise questions of criminal liability in respect of the Migration Agent and Sponsor's conduct.[85]
2. Despite this, as the Court has taken efforts to point out, these allegations remain untested at the time of judgment. Moreover, the allegations were not substantively evaluated by the Court, in this matter, because the Applicant's representative conceded that the Migration Agent/Sponsor's conduct was not dispositive to the Tribunal's decision to affirm the visa refusal.
3. It is also true that these proceedings have been before this Court for a considerable length of time and - due to the number of times pleadings have been amended, or proceedings adjourned - have demanded considerable Departmental resources. The amount of work undertaken by the Minister's representatives in responding to the Applicant's case as pleaded, is evidenced by the court file.
4. Furthermore, this Court notes that the Applicants' case concerned a number of misguided pleadings (particularly, in respect of Ground Two), the wiseness of which the Applicants' representatives should have given greater consideration to.
5. For these reasons, the Court considers it is appropriate to grant an order as to costs. The parties should confer about the reasonable quantum of costs. Absent agreement the Minister has leave to make an application to the Court.

I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[12] Migration Act 1958 (Cth) s 476.

[38] 3 February Transcript, 9 lines 33-34.

[39] 3 February Transcript, 9, line 33-34.

[40] Migration Act 1958 (Cth) s 476(2)(a).

[41] 3 February Transcript, 2 line 37 - 4 line 27.

[42] 3 February Transcript, 6 lines 11-7.

[43] 3 February Transcript, 6 lines 25-6, 7 lines 9-10.

[45] 3 February Transcript, 7 line 15 - 8 line 3.

[46] 3 February Transcript, 8 lines 5-11.

[47] 3 February Transcript, 8 lines 27-30.

[49] 3 February Transcript, 8 line 34-7.

[50] 3 February Transcript, 9 lines 4-19.

[51] 3 February Transcript, 9 lines 32-4.

[52] 3 February Transcript, 9 lines 36-7.

[53] 3 February Transcript, 9 line 39 - 10 line 3.

[54] 3 February Transcript, 10 lines 3-18.

[55] [2025] FedCFamC2G 620.

[56] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

[57] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [17] (Allson CJ, Besanko and O'Callaghan JJ).

[58] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

[59] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, [3] ('LPDT').

[60] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, [82].

[62] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, [82].

[64] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506, [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[65] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ).

[66] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, [40].

[67] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400 ('Antoon').

[68] Minister for Immigration, Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989 ('Qazizada').

[69] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24; (2005) 228 CLR 294 ('SAAP').

[70] EAO22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1336 ('EAO22').

[71] [2025] FedCFamC2G 1452 ('FQI17').

[74] 3 February Transcript, 4 lines 45-6.

[78] [2007] HCA 35; (2007) 232 CLR 189.

[81] [2016] FCAFC 142; (2016) 248 FCR 398.

[82] [2017] FCAFC 213; (2017) 258 FCR 1.

[83] Citing Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550, [18].

[84] Minister for Immigration and Citizenship v Li [2013] HCA 18, [108]-[109], [113].

[85] See, e.g., Crimes Act 1958 (Cth) ss 81, 82.