EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 327

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. By notice of appeal filed on 8 September 2022, the appellants seek to appeal the decision of Judge Given in the Federal Circuit and Family Court of Australia (Division 2) on 12 August 2022, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was): EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 638 (primary judgment or PJ). On 30 August 2017, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) refusing to grant the appellants a Protection (Class XA) (Subclass 866) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Tribunal decision or T).
2. The first appellant is a citizen of Bangladesh, and arrived in Australia on 3 November 2008. The first appellant applied for a protection visa on 15 July 2014, which was refused by a delegate of the Minister on 23 March 2016. The second appellant is the wife of the first appellant and is included in the first appellant's visa application as a member of his family unit.

1. The first appellant appeared in person at the hearing of the appeal. He did not have the benefit of legal representation. He was assisted by a Bengali-speaking interpreter. At previous hearings before the Tribunal and primary judge, the appellants had the assistance of an interpreter in the Bengali language (PJ [10], [22]; T [3]). The second appellant did not appear in person or by means of audio-visual link provided to the appellants. When asked whether the first appellant was speaking on behalf of the second appellant, the first appellant explained that he was the primary visa applicant, and that the second appellant did not have an independent claim.

1. The Minister relies on written submissions filed on 10 February 2026. The appellants did not file or serve any written submissions in this appeal. When this was raised with the first appellant at the hearing of the appeal, the first appellant indicated that he was relying on his statements to the Tribunal. When it was explained to the first appellant that this was an appeal from the decision of Judge Given, and therefore confined to the question of error in that decision, the first appellant raised "humanitarian grounds" in the consideration of his protection visa application. The Court explained further that this went beyond the scope of the appeal, as delimited by the grounds of the appeal he posited.
2. The first appellant was provided with an opportunity to explain why leave should be given to raise a new ground of appeal. The first appellant did not satisfy the Court on this point. The appeal is a conduit for the correction of error. The new ground lacks merit as a complaint arising from the decision of Judge Given. It was not raised as a ground of review of the Tribunal's decision in the court below. In the manner in which it was presented to this Court, the submission is in the nature of an appeal to compassion, and acknowledgement of the first appellant's claimed service to the community. It is a statement often repeated by this Court, which might suggest that it is not well-understood, that the appeal does not afford the appellant the opportunity to revisit the merits of the Tribunal's decision. Nor does it empower the Court to dismiss the appeal on compassionate grounds.

1. The migration history of this matter is conveniently summarised at paragraphs [2]-[12] of the primary judgment and in the Tribunal decision at paragraphs [2]-[3] and [13]-[24].
2. This appeal concerns the appellants' second application for a protection visa, made on 15 July 2014. The first appellant previously applied for a protection visa on 4 December 1997, which was refused in March 1998 (a decision later affirmed by the Refugee Review Tribunal in February 2000).
3. Relevant to this appeal, on 26 April 2016 (prior to the hearing before the Tribunal), a delegate of the Minister issued two certificates pursuant to s 438(1)(a) of the Migration Act (s 438 Certificates) in respect of information held by the Minister's department which related to the visa application. That section has since been repealed. However, due to the restructuring of Part 5 of the Migration Act, s 438 subsists in a similar (although not identical) form in s 376 of the Migration Act.
4. On 3 August 2017, the Tribunal invited the appellants to comment on certain information pursuant to s 424A of the Migration Act, to which the appellants provided a written response (PJ [11]).
5. In the proceeding before the primary judge, the Minister raised an additional issue in relation to the two s 438 Certificates, contending that there was no jurisdictional error arising from the Tribunal's treatment of those certificates (PJ [57], [70]). The issue was not raised in the appellants' originating application.
6. The primary judge accepted that there was no jurisdictional error, for the following reasons:

(1) In relation to the first certificate, by disclosing the fact of its existence to the appellants, explaining the information and documents covered by it and its relevance to the review, the Tribunal complied with its procedural fairness obligations under the Migration Act (PJ [61]).

(2) In relation to the second certificate (which the Minister later conceded was invalid), the Tribunal disclosed to the appellants the existence of the certificate, and that there was one document the subject of the certificate that the Tribunal considered relevant to its review (PJ [62]). The Tribunal provided information to the appellants pursuant to s 424AA of the Migration Act, both at the hearing and in its letter issued to the appellants pursuant to s 424A of the Migration Act (PJ [68]). The first appellant responded to the letter on 17 August 2017 (PJ [68]). Despite the invalidity of the certificate, there was no jurisdictional error, as the substance of the material was put to the appellants in any event (PJ [69]). Reliance by a Tribunal on an invalid certificate only results in jurisdictional error if the breach is material in the sense that it could deprive the appellants of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2], [3], [38], [44] (Bell, Gageler and Keane JJ) (PJ [65]).

Grounds of appeal

Grounds in relation to section 438 certificates

1. (a) Her Honour erred in relation to the certificate (First Certificate 438) that there is no jurisdictional error, her honour should hold that the certificate is invalid and it is material to the outcome of the decision. Furthermore, the material not put clearly or there, or the terms section 424(AA) not complied with.

(b) Her Honour also erred in relation to the certificate (2) that's not jurisdictional error.

2. Her Honour unreasonably denied adjournment sought by the appellants in this matter, the appellants do not have the legal qualifications or capable to present the argument in relation to the two certificates relied upon and the details affidavit by Mengqi Ren dated 11/07/2022 just one week before the hearing.

(1) whether any jurisdictional error arose in relation to the Tribunal's treatment of two s 438 Certificates; and

(2) whether the appellants were denied procedural fairness, on the basis that the primary judge refused to grant the adjournment sought by the appellants, in circumstances where the appellants did not have legal representation.

1. The first ground of the notice of the appeal contends that there was jurisdictional error in relation to each of the s 438 Certificates. There is no contest that both certificates were invalid.

1. A certificate issued under s 438 of the Migration Act triggered procedural obligations on the Tribunal to disclose the existence of the certificate to the appellants. However, to establish jurisdictional error, any failure in this regard must be material to the Tribunal's decision: SZMTA at [2], [38], [45]-[47] (Bell, Gageler and Keane JJ); MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [46], [76].
2. A breach is material if it gives rise to "practical injustice", in that it operates to deny the appellants an opportunity to give evidence or make arguments to the Tribunal, and that denial is material to the Tribunal's decision: SZMTA at [2], [38]. Furthermore, the failure to disclose the existence of a s 438 Certificate, although a denial of procedural fairness, is not a (material) jurisdictional error in circumstances where the Tribunal had no regard to the information referred to in the certificate in reaching its decision: MZAOL at [76], [78].
3. As the first respondent submits, unlike SZTMA and MZAOL, the Tribunal disclosed the existence of both certificates to the appellants. The appellants, therefore, were on notice of the certificates and could challenge the validity of the s 438 Certificates.
4. The appellants have not established any jurisdictional error in the manner of that disclosure.

1. In disclosing the existence of the first s 438 Certificate, the Tribunal indicated to the appellants that it considered that the certificate may not be valid. It is not evident on what basis the appellants assert that the invalidity of the certificate is material to the outcome of the Tribunal's decision.
2. The Tribunal stated that it would not consider the documents to which the first s 438 Certificate pertained in the course of the review as it did not consider them to be relevant. A review of that information bears this out. The Tribunal noted that the first appellant indicated that he understood this and made no further comment.
3. As the Tribunal did not rely on the information the subject of the certificate, no disclosure obligation arose in relation to s 424AA of the Migration Act.
4. I find that the primary judge did not err in concluding that no jurisdictional error arose in relation to the Tribunal's treatment of the first s 438 Certificate (PJ [61]).

1. While the Tribunal proceeded on the basis that the second s 438 Certificate was valid, in the proceeding before the primary judge, the first respondent conceded that the certificate was invalid (PJ [64]).
2. The question of the validity of the certificate is a distraction from the real issue, which is the manner in which the Tribunal disclosed the information the subject of the certificate on which the Tribunal relied.
3. The Tribunal advised the applicant that, while it would not be relying on certain documents the subject of the second s 438 Certificate, one document was considered relevant to the review, viz., the record of the first appellant's community status resolution interviews with the Department.
4. The relevant circumstances are as follows:

(a) First, the Tribunal discussed this information with the first appellant, and put to him that during the course of five interviews with the Department, the reasons he provided for not wanting to return to Bangladesh did not include a fear of persecution by reason of his political opinion, and that only later in an interview on 22 July 2014 did he state that he had decided to apply for a protection visa.

(b) Second, the Tribunal explained that this information appeared to undermine his claims of fearing persecution in Bangladesh for political reasons, and that if it were to rely on this information it may find that his evidence is not credible and reject his claims.

(c) Third, the Tribunal invited the first appellant to comment on or respond to the information, and advised that the first appellant may seek additional time to do so.

(d) Fourth, the first appellant requested more time in which to respond in writing.

(e) Fifth, in a letter sent to the first appellant on 3 August 2017, the Tribunal reiterated this information, explained its relevance and invited comment.

(f) Sixth, in a letter to the Tribunal dated 17 August 2017, the first appellant stated that he is and always was a political activist in Bangladesh, and the current situation in Bangladesh after his departure and his active participation in politics is what compelled him to lodge an application for a protection visa.

1. The appellant does not indicate in what respect it is said that the oral exchange before the Tribunal fell short of the requirements of s 424AA of the Migration Act, other than to suggest that the "material [was] not put clearly". I reject that submission. Clear particulars of the (potentially adverse) information, and its potential relevance, were put to the first appellant, which is reflected in the Tribunal's letter of 3 August 2017. The appellants have not identified any information the subject of the second s 438 Certificate that: (a) the Tribunal took into account; (b) was adverse to them; and (c) was not put to them for comment.
2. I find that the primary judge did not err in concluding that no jurisdictional error arose in the circumstances of the Tribunal's reliance on certain information the subject of the second s 438 Certificate (PJ [69], [70]).

Ground 2 - procedural fairness and unreasonableness

1. The second ground of the notice of appeal takes issue with the primary judge's refusal to grant an adjournment sought by the appellants for the purpose of obtaining legal representation (PJ [32]). It is expressed in terms of unreasonableness. I have also addressed the ground on the basis of a claimed denial of procedural fairness.
2. The primary judge noted that there is no right to legal representation in migration proceedings, citing SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] (Katzmann J) (PJ [31]).
3. The primary judge acknowledged (at [31]) that the rules of procedural fairness in civil proceedings do not extend to the provision of legal representation or the grant of a stay to ensure the provision of such representation: New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309 at 331 (Mason CJ, Dawson, Toohey and McHugh JJ). As such, procedural fairness does not dictate that the matter could not proceed unless and until the appellants are represented by counsel.
4. Acknowledging that "doubtless" the appellants might have had a better chance if they had been legally represented (SZQRU at [24]), I have also considered whether the circumstances of the primary judge's refusal to adjourn the proceeding indefinitely or until such time as legal representation could be obtained (i.e., indefinitely), was legally unreasonable.
5. The primary judge's refusal was based on her view of the utility in adjourning the matter.
6. First, the primary judge was not satisfied by the first appellant's explanation that he did not know that he needed to find his own lawyer or that he was not smart enough to obtain a lawyer himself (PJ [26], [31]).
7. The first respondent contends that the appellants were notified by letter from the Minister's solicitors dated 25 October 2017 that they should obtain legal representation. Whether the appellants received the 25 October 2017 letter was in dispute between the parties at first instance. The primary judge accepted that the letter was sent to the correct address, and presumed that it was received by the appellants (PJ [30]).
8. Second, the primary judge was not satisfied that the appellants had taken proper steps in the almost five years in which the proceedings have been on foot to obtain legal representation or explore the possibility of free legal service providers (PJ [32]).
9. In my view, these are rational and compelling bases for the finding that there was no utility in adjourning the proceeding. Whether in the process of reasoning, or in its outcome, the decision to refuse the requested adjournment was not legally unreasonable.
10. The first respondent contends that the appellants have not demonstrated that any "practical injustice" arose from the refusal of the primary judge to grant the adjournment. This is because the appellants remain without legal representation in this appeal, and there is nothing that the appellants could say in relation to the material in the affidavit of Mengqi Ren affirmed on 11 July 2022, which was filed in the primary proceeding and annexes copies of the two s 438 Certificates, and the documents the subject of those certificates (PJ [57]). The affidavit does not address any factual circumstance on which the appellants could give evidence. Furthermore, it does not give rise to any factual dispute.
11. It is not necessary to decide this question, as it is accepted that procedural fairness does not dictate an adjournment to ensure the provision of such representation. Nevertheless, I accept that the appellants have not demonstrated that they lost an opportunity to obtain legal representation as a consequence of the failure to adjourn the proceeding. What is missing is evidence of the appellants' efforts to obtain legal representation and/or evidence of the prospect of obtaining representation. In the absence of that evidence, and given the time in which the appellants had the opportunity to seek legal representation, it was not illogical or unreasonable for the primary judge to infer that there was no utility in adjourning the proceeding in order for the appellants to obtain representation.

1. For the above reasons, the appeal should be dismissed, with costs.

1. At the appeal hearing, the first respondent made an application for costs fixed in the amount of $7613.54, which is said to represent 75 per cent of solicitor/client costs and disbursements in full, by reference to item 15.2 of Schedule 3 of the Federal Court Rules 2011 (Cth), which sets the maximum amount that may be claimed in a migration matter where the application is dismissed after the hearing (short form bill amount). The amount sought is less than the short form bill amount.
2. An order for lump sum costs may be made pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) and r 40.02(b) of the Rules.
3. On 17 March 2026, the first respondent filed an affidavit of Meaghan Isabelle Prefontaine sworn on 12 March 2026 in support of the application for a lump sum costs order. That affidavit details the resources allocated to the matter and the professional fees incurred to date. That amount exceeds the order sought.
4. At the appeal hearing, the first appellant submitted that he was not in a financial position to meet any such costs order. He was provided with an opportunity to file and serve evidence in support of his submission by 19 March 2026. The first appellant has not put on any evidence, despite being provided with a further opportunity to file any such evidence by 23 March 2026.
5. In exercising my discretion to award costs in a fixed amount in accordance with the overarching purpose under s 37M of the Act, it is relevant to consider that the matter has a lengthy migration and procedural history. I accept that the amount sought by the first respondent is reasonable, and in light of the first appellant's failure to put on any evidence in support of his submission of financial hardship, that a lump sum costs order facilitates the efficient disposition of this matter.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Younan.