BMA19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1939

1. Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal.
2. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) to refuse to grant the Primary, Second and Third Applicants Protection (Subclass 866) visas.
3. Before this Court only the Second and Third Applicants remain as parties.
4. To obtain relief from this Court, the remaining Applicants must show that the Tribunal fell into jurisdictional error when it rejected the Primary Applicant's claims for protection (which the Primary Applicant no longer presses).
5. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal's decision.
6. The application for judicial review is, accordingly, dismissed with costs.

1. The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.

1. The primary issue is whether the Administrative Appeals Tribunal (Tribunal) committed jurisdictional error in affirming the decision of the Delegate refusing the Applicants Protection (subclass 866) visas (Protection Visas).

1. The Primary Applicant is a citizen of Malaysia[1] who arrived in Australia on 28 December 2015[2] with his wife and daughter[3], as holders of visitor 601 visas.[4]
2. On 6 April 2016, the Primary Applicant lodged an application for protection.[5] The Primary Applicant's wife and daughter were included in the application as members of the same family unit, however they did not make their own independent protection claims.[6]
3. In summary, the Primary Applicant characterised their protection claims as follows:

(a) he was actively involved in campaigns opposing the Malaysian government, including a "Bersih" rally on 29 August 2015;

(b) he left Malaysia as he did not feel at home anymore, due to the country becoming difficult to raise his child, bad decisions made by the government and corruption;

(c) he had concerns about freedom of speech, human rights, and pointed to the example of a colleague's son being detained by authorities without a judicial process;

(d) he would be a target of political discrimination and feared he would be detained by police if he returned to Malaysia. Further, he would suffer financial hardship and be deprived of human rights if he returned;

(e) he did not experience harm in Malaysia;

(f) he did not try to relocate because the entire country was ruled by the same government and policies; and

(g) he did not seek assistance from authorities due to distrust, corruption and abuses of power.[7]

1. On 18 May 2016, the Delegate refused to grant the Primary Applicant a Protection Visa.[8] As the Second and Third Applicant's visas were entirely dependent upon the success of the Primary Applicant, their applications were accordingly refused.
2. The Delegate's reasons for refusal were that:

(a) the financial hardship claims would not threaten the Primary Applicant's capacity to subsist in or return to Malaysia;

(b) information before the Delegate indicated that the Primary Applicant was a low-level participant in political activity and country information did not support that low-level participants in protests faced a real chance of being targeted or persecuted by authorities; and

(c) they were not satisfied that there was a real chance of the Primary Applicant being harmed for reasons of his political opinions or actions and for the same reason, they were not satisfied that there was a real risk that the Applicant would suffer significant harm if he was removed to Malaysia.

1. Based on these findings, the Delegate was not satisfied that:

(a) the Primary Applicant faced a real chance of harm because of a Convention reason in s 5J(1)(a) of the Migration Act 1958 (Cth);

(b) there was a real risk of significant harm if the Primary Applicant returned to Malaysia.

1. Accordingly, the Primary Applicant was unable to satisfy either ss 36(2)(a) or 36(2)(aa) of the Act and thus did not enliven Australia's protection obligations.
2. By operation of the Act, this Court has no power to review the decision of the Delegate.[9]

1. On 6 June 2016, the Applicants applied to the Tribunal for review of the Delegate's decision.[10]
2. On 20 September 2017, the Tribunal invited the Applicants to attend a hearing in Sydney on 13 October 2017. The Applicants were requested to complete a Response to Hearing Invitation - MR Division form within seven days.[11]
3. After several adjournments, the hearing was held on 19 March 2019. The Applicants attended the scheduled hearing in person, assisted by a Malay interpreter.[12]
4. At the hearing, the Applicants conceded that the protection claims originally made had been fabricated by a man who had prepared the Protection Visa applications. They then made new claims for protection orally.[13]
5. On 20 March 2019, the Tribunal affirmed the Delegate's decision not to grant the Applicants protection visas.[14]

1. The Tribunal's decision is 10 pages long and spans 45 paragraphs.
2. At paragraphs 8 to 12 of their outline of submissions filed on 28 August 2024, the Minister's representative summarised the Tribunal's reasons. The Court as presently constituted has carefully read the Tribunal's reasons and accept the summary as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment (citations omitted):
   1. The Tribunal found that the first applicant was a witness of truth, and that the second applicant was generally a credible witness; however, it had some concerns with the second applicant had not been entirely truthful in relation to her interactions with the man who prepared the visa applications, her knowledge of the claims contained within and about the visas generally.
   2. The Tribunal accepted the applicants' evidence provided at hearing in relation to their general backgrounds and past. The Tribunal also accepted that the applicants had a "friend" complete the visa application forms and had "fabricated" the contained 3 claims. The Tribunal; accordingly, rejected the claims in their entirety.
   3. The Tribunal accepted that the applicants had no fears about returning to Malaysia and that they came to Australia to improve their economic situation, have a better life and an opportunity to study in Australia.
   4. The Tribunal accepted that the third applicant may not be able to get the same standard of education in Malaysia as she would in Australia; however, it found that would be a result of Malaysia's economic situation rather than because the third applicant would be targeted for any reason under s 5J(1)(a) of the Act. In this regard, the Tribunal had regard to country information which indicated that schooling was free in Malaysia and that the third applicant would benefit from special status due to her Malay ethnicity.
   5. The Tribunal found the applicants did not have a well-founded fear of persecution, nor was there a real risk that they would suffer significant harm. The Tribunal found that the applicants did not satisfy the criterion in ss 36(2)(a) and 36(2)(aa) of the Act.
3. Based on the findings made by the Tribunal, the Primary Applicant was unable to satisfy either s 36(2)(a) or 36(2)(aa) of the Act and thus did not enliven Australia's protection obligations. Accordingly, the Tribunal affirmed the Delegate's decision to refuse the Applicants protection visas.

1. The Applicants filed an application for judicial review on 9 April 2019 (Originating Application). The application is brought pursuant to s 476 of the Act and was made within the 35-day time limit prescribed by the Act.[15] The Applicants seek orders that the decision of the Tribunal be quashed and that it be remitted to be determined according to law.
2. The Applicants list four grounds of alleged error. The Applicants' grounds of review, extracted from the Originating Application, are as follows:

1. The Tribunal failed to consider many vital evidence that are relevant to my case. 2. The Member has failed to do her duty. 3. The Tribunal deprived me of procedural fairness;

a) the tribunal member failed to ask me questions about the types of harm relevant in my case.

1. On 7 May 2019, the First Respondent (Minister) filed its response, opposing the orders sought by the Applicant and seeking that the application be dismissed.
2. On 4 August 2021, the Minister filed a bundle of relevant documents (Court Book).
3. On 12 August 2024, a callover was attend by the Second Applicant with no appearance by or on behalf of the Primary Applicant. A Registrar of this Court issued an Order (Registrar's Order) directing that the:

(a) Second Applicant be appointed as litigation guardian for the Third Applicant;

(b) Second Applicant file any amended application with proper particulars, written submissions and further evidence by 21 August 2024; and

(c) Minister file any written submissions and further evidence in reply by 28 August 2024.

1. On 23 August 2024, the Minister filed an amended response seeking that the application be dismissed.
2. The Second Applicant did not file an amended application, nor did she provide further particulars of the grounds for judicial review, despite being invited to do so.
3. On 28 August 2024, the Minister complied with the Registrar's Order by filing written submissions.
4. In June 2025, the Primary Applicant was removed from Australia.
5. On 18 June 2025, a Registrar of the Court made Orders to remove the Primary Applicant as a party to proceedings.
6. On 1 July 2025 the matter was allocated to the Court as presently constituted. On 2 July 2025, the matter was listed for hearing on 5 August 2025.

1. At the hearing on 5 August 2025 the Second Applicant (BMA19) appeared on behalf of herself and her daughter (BMB19). During the hearing BMA19 made additional claims about why they now needed protection in Australia (from the Primary Applicant). Further, the Court was advised that on 2 April 2025 the Second and Third Applicants made a request for Ministerial Intervention.
2. The First Respondent was directed to file supplementary submissions by 12 August 2025, noting that the previous submissions pre-dated the Primary Applicant's removal from Australia. The hearing was adjourned to 15 August 2025.
3. On 12 August 2025, the Minister filed supplementary submissions. Importantly the Minister contended:

4. In circumstances where BMA19 and BMB19 were applicants before the Tribunal; and therefore, the 'review applicants' for the purposes of ss 477, 479 and 486C of the Migration Act, it follows that BMA19 and BMB19 have standing in these proceedings as the review applicants in the Tribunal proceedings, regardless as to whether the primary applicant has since been removed as a party of the proceedings.

...

7. The Minister respectfully relies on the written submissions filed with the Court on 28 August 2024 with respect to the applicants' grounds of review contained in their application for judicial review which expressly relate to the new claims raised at the Tribunal hearing rather than the original claims raised which the primary applicant made in his visa application and to which BMA19 and BMB19 had originally relied upon in making their protection claims.

1. On 15 August 2025, a further hearing was held - and subsequently adjourned - to enable the Minister's representative to gain instructions on the status of the Second and Third Applicants application for Ministerial Intervention.
2. On 21 August 2025, the Minister filed further supplementary written submissions. The submissions explained that an intervention under s 48B of the Act would allow the Applicants to lodge a fresh Protection Visa application, effectively lifting the bar imposed by s 48A of the Migration Act. Further, an intervention under s 351 could enable to the Minister to grant the Applicant's Protection Visas.
3. The Minister further submitted that at the time of their submissions there had been no progress on the Ministerial Intervention request, and that this request has no bearing on the judicial review application before the Court. The status of the Ministerial Intervention application was confirmed by an Affidavit from a solicitor acting for the Minister filed on 22 August 2025.
4. On 22 August 2025, a further hearing was conducted via Webex. At the hearing the Court directed the Minister to file an Affidavit deposing the Department's process for a Ministerial Intervention request once received and identifying at what stage of this process the Applicants' request was currently at.
5. On 1 September 2025, the Minister's representative wrote to the Court seeking a one-month adjournment to facilitate the Minister's evidence with respect to the applications for Ministerial Intervention.
6. On 5 September 2025, Orders were made permitting the adjournment and rescheduling the final hearing for 6 November 2025. The Minister was directed to file and serve any further evidence by way of affidavit on or before 30 October 2025.
7. On 30 October 2025, the Minister filed an affidavit containing information about the outcome of the application for Ministerial Intervention. In short, the Minister made a negative personal procedural decision (PPD) in the Applicants' case. The PPD was made because the Minister decided not to consider making a substantive public interest decision.

1. The final hearing took place on 6 November 2025. The Second Applicant appeared before the Court without legal representation, assisted by a Malay interpreter. The Minister was represented by Adam Cunynghame, solicitor at Sparke Helmore lawyers.
2. The materials before the Court were:

(a) the Originating Application for judicial review filed 9 April 2019;

(b) a supporting affidavit filed 9 April 2019;

(c) a Court Book numbering 202 pages filed 4 August 2021 (marked as Exhibit R1);

(d) the Minister's amended response filed 23 August 2024;

(e) the Minister's submissions filed 28 August 2024;

(f) the Minister's submissions filed 12 August 2025;

(g) the Minister's submissions filed 21 August 2025; and

(h) the Affidavit of Amron Rath (solicitor for the Minister) filed 30 August 2025.

1. The Court confirmed with the Second Applicant that they had received a copy of the Court Book and the Minister's written submissions.
2. To assist the Second Applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal's decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained to the Second Applicant that this Court cannot review the merits of the Tribunal's decision, grant the remaining Applicants the visa they seek, nor consider the fresh claims for protection. Rather, it was explained, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. The explanations provided to the Second Applicant were interpreted. Based on the Second Applicant's responses (both in English and through the interpreter at her election) the Court is confident she properly comprehended the scope and purpose of the hearing.
3. Noting that the Second Applicant was unrepresented, the Court gave the Second Applicant an opportunity to elaborate on her grounds of review and to outline any other concerns she might have with the Tribunal's decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
4. Before this Court, the Second Applicant made submissions in support of the grounds set out in their application. Those submissions are considered below.
5. The Minister made oral submissions consistent with the written submissions filed on 28 August 2024, 12 August 2025 and 21 August 2025.
6. Mr Cunynghame also explained the outcome of the Ministerial Intervention application. Mr Cunynghame identified that the decision did not bar the Applicants from making a new Ministerial Intervention application and that any application so made, would be assessed according to the new department guidelines, which came into effect on 4 September 2025.
7. After the Minister made their submissions, the Court invited the Second Applicant to respond to what the Minister's representative had said. The Second Applicant made further submissions also considered below.

THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS

1. Bhasker v Minister for Immigration and Multicultural Affairs his Honour Judge Fary summarised the role of the Court in judicial review proceedings:

48. 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.

49. 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.[16]

50. "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.[17]

51. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[18] 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".[19] Different kinds of error may overlap.[20] The categories are not closed.[21] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[22]

52. 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.[23] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[24] It has been described as an "undemanding" standard. [25]

1. The Court as presently constituted respectfully adopts his Honour's summary of the task before it.
2. Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[26]

1. At the hearing before the Court, the Second Applicant was invited to make submissions about:

a) why she believed the Tribunal made a jurisdictional error; and > > b) each of the four grounds of review.

*** The Tribunal failed to consider many vital evidence that are relevant to my case.**

1. At the hearing the Second Applicant submitted she understood the evidence presented at the Tribunal was not strong enough to grant protection in Australia. The Second Applicant did not identify any evidence that the Tribunal failed to consider at the hearing on 19 March 2019. Rather, the Second Applicant argued that her circumstances had since changed and that she was now attempting to obtain protection for herself and her daughter from the Primary Applicant.
2. The Court is cognisant of the allegations made against the Primary Applicant and is sympathetic to the unfortunate circumstances of the remaining Applicants; their fears of harm appear genuine and well-founded. Despite this, as explained to the Second Applicant, this Court is confined to considering whether the Tribunal's decision was made subject to any error. There can be no error where the new claims for protection were not advanced before the Tribunal.
3. In so far as this ground alleges error, the Tribunal comprehensively considered the oral and written evidence of the Applicants as well as relevant Country Information.[27] The Tribunal accepted that the Applicants did not want to rely on the original fabricated claims in their Protection Visa application[28] and heard from both the Primary Applicant and Second Applicant to ensure that both had the opportunity to present their own evidence.
4. The Court is satisfied that all the evidence before the Tribunal was considered, and that the findings it made pursuant to these materials were open for it to make.
5. Ground One does not establish jurisdictional error and is dismissed.

1. At the hearing, the Second Applicant did not provide particulars of this ground and stated she was "clueless".
2. The Court agrees with the Minister that the Tribunal member fulfilled their duty as required by Division 4, Part 7 of the Act. The Applicants were:

(a) on 27 February 2019, invited to a hearing;

(b) on notice that the evidence before the Delegate could not satisfy the requirements for protection; and

(c) on 19 March 2019, attended a hearing with a Malay interpreter where they were provided an opportunity to present evidence and arguments.

1. The Tribunal cannot be faulted in this regard and evidently complied with its statutory duty.
2. Ground Two does not establish jurisdictional error and is dismissed.

*** The Tribunal deprived me of procedural fairness;

a) the tribunal member failed to ask me questions about the types of harm relevant in my case **

1. It is well established that the duty imposed on the Tribunal is a duty to review, not necessarily to make inquiries. A failure to make inquiries about a critical fact which can easily be ascertained may lead to a jurisdictional error, however, there is no "general duty [for the Tribunal] to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act".[29]
2. At the hearing in this Court, rather than asserting that the Tribunal member failed to ask her questions, the Second Applicant contended that she was not given the opportunity to put forward her own evidence before the Tribunal. The Second Applicant stated that at the time of the Tribunal's decision she needed to make her own protection claims. She submitted that at times the Tribunal only referred to the Primary Applicant's evidence, and the questions put to her merely sought to clarify the Primary Applicant's evidence. The Second Applicant also alleged that herself and her daughter were asked to wait outside while the Primary Applicant gave evidence and were under compulsion of the Primary Applicant to follow his instructions. The Second Applicant also contended that the Primary Applicant was abusive, and she wasn't given an opportunity to present evidence or make submissions about that to the Tribunal.
3. In response the Minister submitted that these arguments fail on the face of the Tribunal record. The Court was taken to paragraphs 22-26 of the Tribunal decision; these paragraphs summarise the evidence given by the Second Applicant. Evidently, the Secondary Applicant gave evidence of the reasons for coming to Australia (primarily, the higher standard of education and improved economic circumstances) and was asked directly if there were any reasons why she did not want to return to Malaysia. Her responses did not point to any well-founded fear of persecution, nor a real risk that she or her daughter would suffer significant harm. As summarised in the Minister's submissions:

26. The Tribunal asked the second named applicant if there was any other reason why she did not want to return to Malaysia. She responded that she is thinking about her children and wants them to have a good life in Australia.

1. At the time of the Tribunal hearing the Second and Third Applicants did not assert grounds for fearing gender-based violence on their return to Malaysia. This is likely because, at that time, the person from whom they feared this harm resided with the Second and Third Applicants in Australia and attended the Tribunal hearing with them. It would appear that it is only since the Primary Applicant's return to Malaysia that the Second Applicant has felt safe to make the allegations she now makes. That is entirely understandable, but it does not give rise to error on the part of the Tribunal.
2. The Tribunal can only make findings on the evidence before it and cannot be faulted for not considering claims and evidence which were not presented by the Applicants. With the benefit of hindsight it might have been more prudent for the Tribunal to afford the Second Applicant a separate hearing so that she had an opportunity to advance her and her daughter's claims and give evidence.
3. Ground Three does not establish jurisdictional error and is dismissed.

1. At the hearing, the Second Applicant provided no particulars about the Tribunal Member's failure to do her duty. This bare assertion does not establish jurisdictional error.
2. In the absence of a transcript, the Tribunal's decision is ordinarily accepted to be the best record of what occurred during the hearing.[30] That being the case, the Tribunal's decision evidences an orthodox and procedurally fair approach to the task undertaken by the Tribunal member. There is no evidence that the Tribunal member, in any way, failed to do her duty.
3. Ground Four does not establish jurisdictional error and is dismissed.

1. In this matter the Second Applicant failed to avail themselves of the opportunity to make convincing submissions in support of the grounds of review. The Minister's representative, as a model litigant, carefully posited each of the grounds and explained why they failed to disclose jurisdictional error.
2. For the reasons set out above, this Court is satisfied that the Tribunal's reasons were not affected by jurisdictional error.
3. Accordingly, the application for judicial review is dismissed.

1. At the hearing, Mr Cunynghame explained that the Minister, in relation to the application for judicial review, was seeking costs of $9,097.93 - an amount in line with the scale costs for a matter which is concluded at final hearing as provided in the 2025 Rules.[31]
2. The Court as presently constituted explained to the Second Applicant that:

(1) it had not made a decision about her application;

(2) the Minister was seeking costs in the event that it was successful;

(3) 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 then invited the Second Applicant to make submissions as to costs in the event the applicants were unsuccessful. In response, the Second Applicant stated that she did not have much money and had to resign from her job due to her present circumstances.
2. The Court is satisfied that costs ought to follow the event, and that it is appropriate to make an order in the amount sought by the Minister given the amount of work undertaken as evidenced by the court file.

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[9] Migration Act ss 338, 476(2)(a), 476(4).

[15] Migration Act 1958 (Cth) s 477.

[16] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

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

[18] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

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

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

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

[24] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[25] Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620

[26] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

[29] see Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429, [2], [18]-[27] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 and Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.

[30] SZVUP v Minister for Immigration & Border Protection & Anor [2015] FCCA 1287 at [13] to [14] citing Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 771 at [44].

[31] Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2025 sch 2 pt 3 division 2 item 3.