CTB20 v Minister for Immigration and Multicultural Affairs [2026] FedCFamC2G 22

1. The application be dismissed.
2. The applicant pay the first respondent's costs fixed in the sum of $9,097.93.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. In this matter, which seeks judicial review of an Administrative Appeals Tribunal (Tribunal) decision of 19 May 2020, none of the unparticularised pleaded grounds of alleged jurisdictional error contained in the application are made out. One issue remains because the Minister, as a model litigant, brought to the Court's attention an admitted breach of former s 418(3) of the Migration Act 1958 (Cth) (the Act) which was in force when the Tribunal made the decision.
2. Section 418(3) then stated:

"The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision."

1. For the reasons which follow, in the particular circumstances of this matter, the breach of s 418(3) in relation to what this judgment calls "the subpoena issue" does not give rise to jurisdictional error by the Tribunal.
2. The application must be dismissed with costs.

1. The applicant is a Chinese citizen who held a Student Guardian (Class TU) (Subclass 580) visa until April 2012, and then applied for a Protection (Class XA) (Subclass 866) visa (protection visa) in June 2015. The Minister's delegate refused the protection visa application in November 2016, a subsequent review in the Tribunal was heard and then decided in May 2020, an application for judicial review was brought in this court in June 2020, and it was heard by me on 10 December 2025, shortly after my appointment to this court.
2. There was a preliminary jurisdictional issue. The application filed by the applicant, who appeared in person with the assistance of an interpreter, originally only sought final relief in the form of a quashing order, ie certiorari. Had the application remained unchanged, for the reasons given by me in BGJ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1841 (BGJ22), the Court would have lacked jurisdiction and I could only have dismissed the application.
3. When the matter came on for hearing, I asked the applicant whether, in addition to setting aside the Tribunal's decision, she wished the Tribunal to decide her matter again. Having indicated that she did, with the consent of the Minister, I exercised my power under r 1.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) to amend the application so that a writ of mandamus against the Tribunal was sought. For the reasons set out in BGJ22, the Court's jurisdiction was then properly invoked.
4. The applicant claimed that she was entitled to a protection visa as a refugee (s 36(2)(a) of the Act) or under s 36(2)(aa) as:

"a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm."

1. The Tribunal was not satisfied either basis for granting a visa was made out, principally because it concluded that "the applicant [had] fabricated ... events and claims in order to obtain a visa to remain in Australia": decision at [53]. It is necessary to set out key claims, noting they changed over time.
2. The essence of the applicant's claim was as follows:
3. In 2013, her husband worked as a supervisor in a Chinese police station. He complained to the District Public Security Bureau that his superior was corrupt and took bribes, but he did not hear back from the Bureau, instead he was suspended and himself reported by the superior for alleged "abuse of power and violations of the law". A "trusted follower" of the superior then detained and assaulted the husband and accused him of making false allegations against the superior. An attempt by the husband to take the complaint higher up in the hierarchy in China led to a threat to put him in a mental health hospital.
4. When the applicant wife and her daughter made online posts about the husband's treatment by the superior, the husband was once again called in for investigation and a subpoena (or summons), which is of some significance in this matter, was issued against the applicant and her daughter in relation to an allegation that she had defamed the police superior.
5. Later, the applicant's husband was struck by a motorcycle and injured. The responsible person has not been found. The applicant claimed she fears she will be caught and punished for her comments and for supporting her husband.
6. The applicant was interviewed by a delegate of the first respondent in August 2016. On 6 September 2016, the applicant sent to a departmental officer a copy of the subpoena for interrogation issued to her by the relevant Chinese Public Security Bureau Branch in November 2013, along with a letter of accusation by another person against the superior of the applicant's husband. The copy of the subpoena (described by the Minister's counsel as an "alleged subpoena") and the letter of accusation, written in Chinese, together with a transcription, if accepted, would provide support for the allegations made by the applicant.
7. The delegate refused the grant of the protection visa. Proceedings were begun by the applicant in the Tribunal, where the review came on for hearing. The applicant gave sworn evidence. The transcript of that hearing records the following:

AAT: And then what happened as a result of you making those posts?

Applicant: It was really bad.

AAT: So did anything happen to your husband or, what happened?

Applicant: Firstly is to me, due to this post I was subpoenaed by the director of the police station. And he said I was making a defamation to him online. And you know freedom of speech is not happening in China. Particular when you making an accusation against the Chinese official.

AAT: And what did the subpoena say?

Applicant: The subpoena was simply saying I need to go to the police station for a interview or for [?].

AAT: ... And where is this subpoena now?

Applicant: I am thinking maybe my friend got this subpoena translated into English either send it to the immigration office or to the Tribunal.

AAT: Well I've never seen this subpoena I have to say.

Applicant: I think I send it to immigration office, let me just think about, think about it. I think it's possible the original report or complaint letter [?] send it to the immigration office, it was quite a few pages missing all this stuff the [?] has done in his district for quite a few illegal activities.

AAT: Well I can tell you that there's a written statement on the department file but there's no evidence of any subpoena.

Applicant: I asked my friend to send out the translated version of the subpoena and the copy to the immigration office---

AAT: Okay do you still have it?

Applicant: Yes I have it.

AAT: You still have the translated version and the original version?

Applicant: I don't think I have the original copy, I've moved quite a few times, maybe lost during the move but I do have the copy of the subpoena and the translation version of the subpoena, I had a photo in my phone of the subpoena.

AAT: Well, it's difficult to consider evidence when we don't have the original document, but if you want me to consider any of that you either have to look for the original document or send me what you have.

Applicant: How do I send this copy to you your Member?

AAT: Well you can just email it to the Tribunal.

Applicant: I thought I send it to the immigration office.

AAT: Okay well I'm telling you that I haven't seen it so if you wish me to consider it you need to email it to the Tribunal.

1. At the conclusion of the hearing before the Tribunal, the Member said:

... earlier you mentioned you may wish to provide some further information so I'm going to give you seven days to do that. If I don't receive it by then I'm just going to make a decision based on the information that I have available alright?

1. The subpoena the applicant referred to was not provided to the Tribunal by the applicant and there is no explanation for that failure. She had provided it to the Department in September 2016: an email from her to the Department attaching it was tendered by the Minister's counsel at the hearing before me. The Minister's submissions concede there was a breach of s 418(3) of the Act (set out above) insofar as the Secretary to the Department did not provide the "alleged subpoena" to the Tribunal, and this entails a concession that the document was or should have been "considered by the Secretary to be relevant to the review of the decision" within the meaning of s 418(3).
2. The Tribunal concluded it could not be satisfied there ever was such a subpoena. At [37] of the Tribunal's decision, the following is stated:

When asked if anything happened as a result of the post she said that she was subpoenaed by the former Director of her husband's police station. She said she was accused of defaming the Director in public. She said the subpoena requires her to go to the police station for enquiries. When asked if she could produce the subpoena the applicant said that her friend had it translated and she believes it was provided to the Department. The Tribunal advised that there is no evidence of any subpoena, either on the Department or Tribunal files and invited her to produce the document post hearing. The applicant undertook to do so.

1. While the tribunal was satisfied the applicant's husband was a police officer in China, its decision states at [47]:

However, for the reasons that follow the Tribunal has serious concerns about the veracity of other key aspects of the applicants claims which cause it to doubt that the claimed incidents in China and Australia occurred.

1. Examples of inconsistent evidence or lack of evidence are then set out set out at paras 48-54 of the Tribunal's decision:
   1. Firstly, the Tribunal is concerned that the applicant has provided inconsistent and incomplete evidence about key aspects of her claims. As noted above, she has at different times in the proceedings claimed her husband was physically beaten in detention while she informed the Tribunal he was only ever emotionally harmed while in detention. Further, the evidence she gave orally to the delegate is that her husband was arrested and detained on two different occasions for periods of between three and five days whereas she confirmed to the Tribunal under questioning that he was only ever once detained for five days.
   2. The Tribunal has considered the applicants responses to these matters, namely that she is over 50 and the events occurred more than five years ago. The Tribunal acknowledges the claimed events in China occurred several years ago but there is no independent evidence before the Tribunal to indicate that the applicant's memory is compromised as a result of any trauma or medical condition or due to her age. The Tribunal also considers that serious events such as her husband's deprivation of his liberty and subsequent mistreatment in detention are not matters which would ordinarily be easily forgotten or confused with the passage of just five years. Nor does the Tribunal accept that physical abuse such as stripping and tying a person up and striking them are actions which would be regarded as anything other than physical abuse, even in China. The Tribunal considers these concerns reflect poorly on the applicant's credibility.
   3. Of particular concern to the Tribunal is that the applicant omitted to make any mention of the significant fact that her husband travelled to Beijing on several occasions to petition higher officials over his treatment in either her written claims or in her oral evidence to the delegate. The Tribunal notes her claim to have done so out of fear but does not accept this. As discussed with her during the hearing she was quite prepared to document his appeals to city and provincial officials in earlier proceedings despite the claimed mistreatment to her husband as a result of these actions. There appears to be little to be gained from withholding the information about his trips to Beijing and if the applicant's evidence is to be believed the revelation of his appeals to city and provincial officials would arguably be just as adverse to the applicant in the circumstances. The Tribunal considers the applicant has embellished her claims by introducing this new claim at the hearing. The Tribunal considers this also reflects poorly on her credibility.
   4. Secondly, the applicant claims to fear harm personally as a result of the online post she made in November 2013. She further claims this action resulted in her being issued with a subpoena to attend the police station for investigation. The Tribunal notes the applicant has no independent evidence to verify that either of these events occurred. She claims the online post was quickly taken down and the Tribunal does not discount this possibility. However, in respect of the subpoena she indicated to both the delegate and the Tribunal that she has evidence to support this claim and yet she failed to produce it to either the department or the Tribunal despite being afforded an opportunity to do so. The Tribunal has concluded that there is no proof of any subpoena being issued in the applicant's name and this is why she has failed to provide the evidence she claims to have. The Tribunal is not satisfied that any subpoena was issued in the applicant's name.
   5. Thirdly, the applicant claims that the fears for her own safety arose following the discovery of her online post in November 2013, yet she only applied for a Protection visa in June 2015. The Tribunal notes that prior to these claimed events commencing the applicant was already living unlawfully in the community. When this was discussed with her in the hearing the applicant put the delay down to her hope that the problems her husband was experiencing would be fairly resolved in China and her lack of knowledge of the appropriate procedures for seeking protection in Australia. On the first point the Tribunal notes the applicant said at hearing that she was motivated to make the post in November 2013 because she believed the government was taking a stand against corruption. However, her evidence is that her post was immediately taken down and her husband was threatened that she and her daughter would be harmed if they continued to raise such matters on a public forum. In the circumstances, the Tribunal does not accept she remained hopeful that her husband's problems would be resolved fairly. The Tribunal is also not persuaded that she was unable to explore her options for remaining in Australia lawfully. In forming this opinion, the Tribunal notes the applicant has an adult daughter who has secured permanent residency after marrying an Australian citizen and seeking an appropriate permanent visa. The applicant herself has previously applied for and held various Australian visas. The Tribunal does not accept she was so unfamiliar with departmental procedures or without any support to find out her options well before she eventually lodged an application for a Protection visa. The Tribunal has formed the opinion that the applicant, after living in Australia for around ten years, wishes to remain here to continue to be close to her only child who has settled here permanently and she has lodged the application for a Protection visa as a means to achieving this outcome.
   6. Having carefully considered the available evidence the Tribunal is not satisfied that the claimed events involving the applicant's husband in China occurred. Nor is the Tribunal satisfied that the applicant made an online post in Australia in November 2013 which was critical of Chinese authorities or that she, her husband or her daughter's safety was threatened as a result. Nor does the Tribunal accept that the applicant was issued with a subpoena in connection with these events. The Tribunal is satisfied that the applicant has fabricated these events and claims in order to obtain a visa to remain in Australia.
   7. In view of the above the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm if she returns to China now or in the reasonably foreseeable future for the reasons claimed or for any other reason. Therefore, the Tribunal finds the applicant does not have a well-founded fear of persecution in China.
2. It can be seen that the failure by the applicant to honour her undertaking to produce the "subpoena" led to the Tribunal not being satisfied that there was any such subpoena, and in turn that was a factor in the ultimate finding of fabrications of evidence which directly led to the rejection of the applicant's claims at [53].

1. The grounds of the application were in the following terms:
   1. "AAT doubted my credibility without substantiated evidence. Some reasoning was subjective, which was adverse to me.
   2. AAT considered irrelevant facts, which was not in favour of my case.
   3. AAT ignored evidence supporting my claims."
2. Having explained to the applicant at the hearing the need for her to establish a jurisdictional error, I invited the applicant to expand on her grounds. She indicated that she did not wish to do so. The pleaded grounds in themselves are unparticularised and would ordinarily fail as a result, however, there is a question concerning the effect of the breach of s 418(3) of the Act in relation to the "alleged subpoena" which I will deal with separately.

1. The challenge in this Court to an applicant's credibility is a difficult one to make out, provided there is a logical, rational or probative basis for any relevant findings: so much is established by the frequently cited decision of the Full Court of the Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30], thus:

"The relevant principles can be summarised as follows.

(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

1. ... A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), "[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54]." Equally jurisdictional error may be established by "a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document": SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

1. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny...

(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions" (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, "[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality": CQG15 at [61]."

1. The Minister submits that the Tribunal was not required to uncritically accept any claims made by the applicant, nor does it have to possess rebutting evidence before holding that a particular assertion is not established. As Perry J said in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]:

The existence of such inconsistencies in important aspects of the appellant's claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal's adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451-452 (Beaumont J); Guo at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see e.g. Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).

1. In the face of this binding authority, this unparticularised ground must therefore fail.

1. Grounds two and three can be dealt with together. There is no indication of which allegedly irrelevant evidence or facts the Tribunal is said to have wrongly considered, or conversely evidence it was bound to, but failed, to consider, and it is essential that these are identified: see the discussion by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39-42. Again, as with ground 1, grounds 2 and 3 lack any particulars and must fail, as must the application as a whole unless they can be enlivened by the "alleged subpoena" issue, which was very properly raised by the Minister acting as model litigant, by his counsel, Mr Reilly, to which I now turn.

1. Section 418(3) is set out above. In the Minister's written submissions, it was said:

... it appears that the Secretary did not comply with s 418(3) of the Act in relation to the alleged subpoena, but no jurisdictional error by the Tribunal is thereby made out: see now DXF22 ... [2024] FCAFC 75 ... at [23-30]. The applicant was told that the Tribunal did not have the alleged subpoena, and she was invited to provide it to the Tribunal but failed to do so. No undermining or stultifying of any power or duty of the Tribunal is apparent.

1. At the hearing, Mr Reilly expanded on this matter and, without objection, and to assist the Court, tendered a copy of the subpoena attached to an email from the applicant to a representative of the Department after her interview with the Ministerial delegate, but well before a decision was made by the delegate. In short, it appears to be a translated copy of the subpoena, addressed to her, as she alleged, for example, when she gave evidence before the Tribunal.
2. The transcript of the proceedings before the Tribunal has been quoted from above. The cited decision in DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75 (DXF22) is determinative, and must be set out at some length as follows:

Ground 1(a)-(b): Non performance of the Secretary's duty under s 418(3)

[23] It is not suggested that the Tribunal failed to perform any requirement imposed on it by the Act. However, it is clear that in some circumstances performance of a statutory obligation by a person other than the decision maker can constitute an indispensable requirement for a valid decision: see, eg, Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 (Wei).

[24] In the case of s 418 of the Act, there is a line of authority holding that failure to perform the Secretary's duty does not invalidate a subsequent decision by the Tribunal.

(a) In Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 (Muin), Gaudron J observed at [46] that there was nothing in the Act to suggest that compliance by the Secretary with s 418(3) was a precondition to the Tribunal's conduct of review proceedings or the making of a decision.

(b) The issue arose squarely in WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103; 151 FCR 413 (Moore, North and Mansfield JJ) (WAGP). The Court framed the essential question as "whether the failure by the Secretary to comply with s 418(3) will result in the Tribunal - even though it has conducted its review in accordance with Div 4 of Pt 7 and has provided the visa applicant with procedural fairness ... - committing jurisdictional error, or in some way being disempowered from making a valid review" and answered that question in the negative: at [62]-[64].

(c) In SZNZK v Minister for Immigration and Citizenship [2010] FCA 651 at [20], dealing with a subtle argument concerning the relationship between s 418(2) and s 425, Perram J said: "I do not see that an error in the performance of a function under s 418 by the Secretary can result, at least without something more, in a jurisdictional error by the tribunal". (His Honour does not appear to have been taken to Muin or WAGP.)

(d) SZOIN was similar to the present case in that it involved a breach of s 418(3) arising from the Secretary's failure to form an opinion about whether a document was relevant to the Tribunal's review. Bennett and McKerracher JJ said (at [60]-[65]):

The circumstances in which a third party breach not known to the Tribunal may result in jurisdictional error would be extremely limited. One example is SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 [(SZFDE)], in which a third party represented himself to the then appellants to be a solicitor and migration agent duly licensed and received a substantial fee for acting for the family with respect to the Tribunal proceeding. The appellants followed the advice given by the third party, in particular, not to attend the Tribunal hearing. The High Court upheld the dissenting judgment of French J, as his Honour then was, in the Full Court. His Honour was of the view that the Tribunal had fallen into jurisdictional error because whilst it had made its decision blamelessly, its decision-making process was compromised by "third party fraud".

The High Court (at [53]) emphasised that the consequences of its finding of jurisdictional error was limited and that bad or negligent advice to an appellant "or some other mishap" that applies to the appellant's detriment does not vitiate the decision made. The High Court referred to French J's decision at [125] and following. His Honour emphasised at [128] that it was not about unfairness but about the effect of fraud on the Tribunal's decision-making process.

There is no assertion in the present case that any part of the process has been tainted by fraud or that the action of the Secretary was other than inadvertent.

In Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 French J (at [41]) rejected a submission that there was support in Muin for a proposition that failure to comply with s 418(3) could amount to jurisdictional error. On appeal, the decision was upheld although this ground was not expressly considered (Applicant S1693 of 2003 v Refugee Review Tribunal [2005] FCAFC 151).

More recently in SZNZK v Minister for Immigration and Citizenship [2010] FCA 651; (2010) 115 ALD 332 at [20] Perram J followed French J in Applicant S1693 of 2003 [2004] FCA 1512, noting that an error in the performance of a function under s 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal. His Honour observed that this follows from the fact that it has been held that a breach of s 418 does not constitute jurisdictional error.

We cannot agree that WAGP was clearly wrong. It is not only directly in point insofar as the crucial question is concerned but is also based on sound reasoning which is consistent with the approach taken by members of the High Court in Muin and also with S487 and SZNZK.

[25] These statements are not limited to final decisions by the Tribunal, on the merits, under s 415 of the Act. They are directed more generally to the conduct of the Tribunal's review. Nor is there any reason in principle why the conclusion expressed as to the effect of non-compliance with s 418(3) on decisions of the Tribunal should be regarded as limited to decisions of a particular kind. The reasoning in the cases to which we have referred should be regarded as extending to all dispositive decisions by the Tribunal, including a decision disposing of a review under s 426A(1A). The concession that the Secretary failed to carry out her duty under s 418(3) is therefore not sufficient for the appellant to succeed.

[26] Gageler and Keane JJ observed in Wei at [26] that "[to] label a particular statutory duty either 'imperative' or 'directory' is to express the conclusion of a process of statutory construction". That observation applies to the question whether non-performance by the Secretary of her duty under s 418(3) goes to the jurisdiction of the Tribunal. The conclusion reached on that point in WAGP and in SZOIN is thus a conclusion concerning the construction of the Act; ie, the intention of the legislature as to the relationship between s 418(3) and the provisions conferring decision-making power on the Tribunal. It does not depend on the seriousness of the non-performance or its materiality in individual cases. The "something more" referred to by Perram J in SZNZK must therefore be something other than an especially egregious or significant breach of s 418(3).

[27] There is a degree of affinity between these cases and the cases concerning the effect of third-party fraud on a decision of the Tribunal, of which SZFDE (referred to in SZOIN) was one. In SZFDE, the appellants' adviser had fraudulently persuaded them not to attend the Tribunal hearing. The consequence was that the Tribunal dealt with their review under s 426A. The unanimous High Court described the effect of this conduct as "stultifying the operation of the legislative scheme to afford natural justice to the appellants" (at [49]) and, for that reason, rendering the Tribunal's purported decision invalid (at [52]).

[28] SZFDE was distinguished in Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550, another case involving a fraudulent agent. The agent's misconduct in that case (lodging recycled submissions which did not address her clients' cases) let her clients down but did not prevent the Immigration Assessment Authority performing its statutory functions. The Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) said at [18]:

In this Court, the Minister correctly submitted that, as a ground of judicial review, fraud must affect a particular duty, function or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense.

[29] The same approach must in our view apply to failures by the Secretary to perform her duty under s 418(3). The cases establish that such a failure does not in itself vitiate an exercise of decision-making power by the Tribunal. It may do so if it "stultifies" the performance of a particular duty or function, or the exercise of a particular power, by the Tribunal. Attention must therefore focus on the particular duties, functions and powers of the Tribunal and how, it is said, their proper performance or exercise was affected.

[30] What we have said in the previous paragraph aligns with the approach of the Full Court in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; 248 FCR 159 (Griffiths, Kerr and Farrell JJ) (BBS15). There, the Department had accidentally failed to include a supportive letter from the appellant's pastor in the material that it sent to the Tribunal under s 418(3). The appellant did not submit the letter to the Tribunal, because the Tribunal had caused him to understand that it would receive all the documents he had submitted to the Department. The Tribunal went on to find that the appellant was not a genuine Christian and affirmed the refusal of a protection visa. Thus, the omission of the letter caused the Tribunal to mislead the appellant as to the material it had before it, leading to him not receiving the procedural fairness for which the Act provided. The Full Court, having analysed the line of cases to which we have referred above, said (at [106]):

None of the cases purports to narrow the principle established by the High Court in Muin and Aala. That is, it is a failure of s 425 of the Act if the failure to provide information causes the Tribunal (even innocently) to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant's detriment. In any event we would be bound by the hierarchy of precedent to apply the reasoning of the High Court.

[31] What occurred in the present case has some similarity with the course of events in SZFDE. Through a series of unfortunate events, the review of the delegate's decision was diverted from what might be regarded as the normal course (an oral hearing under s 425, where the appellant would have a chance to develop his case, followed by a decision on the merits), on to the pathway provided for in s 426A (which inevitably resulted in the delegate's decision being affirmed). If that diversion could be sheeted home to the Secretary's failure to comply with s 418(3), the failure could be regarded as having stultified the operation of the scheme of procedural fairness for which the Act provides.

[32] However, that conclusion would not be reached merely on the basis that proper performance of the Secretary's duty under s 418(3) might have led to the review being determined differently. A conclusion that the Secretary had stultified the Tribunal's review process by her misconduct would require a finding that such misconduct had set the review on an inevitable pathway to failure (as in SZFDE) or directly affected the way the hearing was conducted to the appellant's detriment (as in BBS15), or at least that such adverse consequences would not have occurred but for the Secretary's misconduct. The evidence does not warrant findings of that kind, for three reasons.

[33] First, contrary to a submission made by the appellant, it is not apparent that compliance with s 418(3) by the Secretary would necessarily have led the spreadsheet to be provided to the Tribunal. Compliance required the Secretary to form a view as to whether the spreadsheet was "relevant to the review of the decision". Assuming (as was conceded) that that formulation captures a document which is relevant only to the conduct of the review (not to the substantive issues), it would nevertheless have been open to the Secretary to come to the view that the spreadsheet was not "relevant". The Secretary cannot be assumed to have had any knowledge of what contact details the appellant had provided to the Tribunal, how the Tribunal's ability to contact the appellant (by email or any other means) would be affected by him being in custody, whether he had notified the Tribunal of his situation or was going to do so, or how long he was likely to be held on remand.

[34] Secondly, even if compliance with s 418(3) did require provision of the spreadsheet to the Tribunal, non-compliance was not fatal to the provision of a proper hearing under s 425 or to the appellant's ultimate prospects of success. That is because it was open to him, at any time between 23 October 2020 and 14 October 2021, to inform the Tribunal that he no longer had access to email and provide it with an address where he could be contacted. There is no evidence that being in custody made this especially difficult and no reason to make an inference to that effect (as the primary judge noted at [70]). It is not necessary to go so far as to assert that it was the duty of the appellant to keep the Tribunal informed of his up to date contact details. The point of significance is that nobody else was charged by statute with that responsibility. On the contrary, the terms of ss 441A(5)(d) and 425A(2) make clear that the Tribunal gives sufficient notice of a hearing if it sends the notice to the last email address provided for that purpose by the review applicant. Section 441A(3), (4) and (6), which permit other modes of communication, contain language similar to s 441A(5)(d). The clear intention embodied in those provisions is that, if relevant contact details are not kept up to date by the review applicant, that applicant cannot complain when notifications are not received. It was clearly in the appellant's interests to make sure that he received communications such as the invitation to attend a hearing.

[35] It was obliquely suggested in submissions that the appellant would have been informed, upon being taken into custody, that the fact of his custody would be communicated to the Australian Border Force (ABF). The source of this suggestion was a procedural document of Corrective Services NSW which instructed officers to inform an inmate "that the ABF will be informed of the inmate's incarceration". The appellant, who gave evidence by way of an affidavit in the Circuit Court, did not refer to having been given this information (let alone having relied on it). There is also the difficulty that the notification of the delegate's decision was on the letterhead of the Department and did not mention the ABF; and the Tribunal is a separate entity from both. Nothing in the evidence indicates that the appellant was given any reason to think that the Tribunal would find out he was in custody (let alone where he was being held or how to contact him) without him doing anything.

[36] The case can therefore be properly seen as one where the review applicant did not appear at the hearing because he had neglected to update the contact details supplied to the Tribunal. Provision of the spreadsheet to the Tribunal could have provided an impetus for that situation to be remedied. Even then, however, the Tribunal would have had to find the appellant and elicit a new address for service from him in order for that address to be available for use under s 441A. The Act does not place any onus on the Tribunal to find a review applicant and prompt them to update their contact details.

[37] Thirdly, it was not inevitable that the Tribunal would use the email address to which the appellant no longer had access when it tried to send the hearing invitation to him. The applicant's review application also listed a residential address in Haymarket, NSW as a place to which correspondence could be sent. There was no evidence as to whether a notification sent to him at that address would have been forwarded to him. The appellant therefore has not established that the failure of the hearing invitation to reach him was an inevitable consequence of his contact details not being updated. (While it may seem intuitively unlikely that a letter sent to the appellant's old address roughly a year after his arrest would reach him, the true position depends on a host of factors and would not be an appropriate matter for judicial notice. Evidence could have been led on this point.)

[38] For similar reasons, it cannot be said that by reason of the Secretary's failure to consider whether the spreadsheet was relevant to the Tribunal's review, the Tribunal was disabled from exercising its discretion under s 426A(2) to consider other measures to deal with the appellant's failure to appear. That discretion was not conditioned on the Tribunal forming any view about whether the appellant had received notice of the hearing.

[39] For these reasons, we conclude that the Secretary's failure to comply with s 418(3) did not undermine or stultify the performance by the Tribunal of any of its statutory functions or duties. It therefore did not result in the breach of any condition on the validity of the dismissal decision or the confirmation decision. We therefore agree with the conclusion reached by the primary judge at [71]. We should add two further observations.

[40] It will be apparent that we have reached our conclusion by a somewhat different route from the primary judge. To the extent that his Honour's reasoning at [63]-[69] focuses on the reasonableness of the Tribunal's conduct, we consider (with respect) that this does not answer the question posed by ground 1(a) and (b). These paragraphs did not accuse the Tribunal of any wrongdoing.

[41] It will also be noted that we have said nothing above concerning the concept of materiality (as explored in, eg, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 (MZAPC)).

[42] Questions as to materiality arise when "non-compliance with an express or implied statutory condition of a conferral of a statutory decision-making authority" has been found; materiality is (usually) determinative of whether that non-compliance "results in a decision that exceeds the limits of the decision-making authority" (MZAPC at [30]-[32] (Kiefel CJ, Gageler, Keane and Gleeson JJ)). The cases to which we have referred above establish that compliance by the Secretary with s 418 is not an "express or implied statutory condition" of the conferral of "statutory decision-making authority" on the Tribunal by s 426A. The question whether lack of such compliance results in a decision that exceeds that authority is, therefore, not a question of materiality in the sense discussed in MZAPC. Instead, the question that arises (in the light of SZFDE and BBS15) is whether the Secretary's non-compliance has had the effect of stultifying or derailing the performance by the Tribunal of any functions or duties the performance of which condition the valid exercise of its power. If that were found to have occurred, questions of materiality would arise.

1. What I take from this decision are the following propositions:

(a) Compliance with s 418(3) is not a precondition to the valid conduct by the Tribunal of a review or making of a decision;

(b) Breach of s 418(3) by the Departmental Secretary of itself does not result in jurisdictional error by the Tribunal to which the material should have been sent. Rather, something more is required where, as here, there is no suggestion the s 418(3) breach is anything other than inadvertent;

(c) It is not enough that compliance might have led to the review being determined differently;

(d) Breach of s 418(3) might amount to jurisdictional error if the Tribunal gives an applicant to understand that the Tribunal will be receiving material from the Department such that it can be said that the procedural fairness scheme in the Tribunal had been stultified or set on a path of inevitable failure;

(e) It is insufficient to assert that a breach of s 418(3) affects decision making powers in an abstract sense; and

(f) Materiality questions only arise if the duties, functions or powers of the Tribunal have been shown to be stultified.

1. The Minister submitted that, here, there was no misleading by the applicant, nor were the processes of the Tribunal thereby stultified. I agree. Here, the Tribunal accurately told the applicant it did not have the subpoena. She responded that she had sent the subpoena to the Department (and that was correct), but she also undertook to provide it to the Tribunal, which gave her a reasonable period of 7 days to do so. She never did. She offered no explanation why she did not. The principles set out in DXF22 as summarised above show that it not sufficient to establish jurisdictional error by the Tribunal even though the Department failed in its duty to refer the "alleged subpoena" and covering email to the Tribunal. Materiality questions therefore do not arise. This issue was properly raised by the Minister, but it does not lead to a finding of jurisdictional error.
2. It follows that the application must be dismissed with costs. I fix the costs in my discretion as the scale amount of $9,097.93.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.