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[2026] HCA 6
respondent. Application dismissed with costs.
6 cited instruments linked from this judgment.
San Bao missed the deadline for seeking merits review of a refused visa nomination. It then asked the High Court to quash the refusal, arguing that the delegate had overlooked an organisational chart and had acted unreasonably. The Court said that the loss of the usual review route was not, by itself, enough to justify using the High Court’s original jurisdiction. It nevertheless considered the merits. The chart had been provided with a separate sponsorship application, but the delegate’s reasons were about whether the material explained how the proposed cook would fit into the staffing structure and how duties would be divided. The Court found no error and dismissed the application with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,388 words · generated 03/10/2026
San Bao Pty Ltd operated a Sydney restaurant serving Chinese street food under the brand “Yummy Street Food” ([1]). It sought approval as a standard business sponsor and separately applied to nominate Ms Haiming Du for a Subclass 482 Skills in Demand visa. The nomination depended on the Minister being satisfied that the position associated with the nominated occupation was genuine under reg 2.72(10)(a) of the Migration Regulations 1994 (Cth) ([8]).
San Bao lodged its standard business sponsorship application on 5 June 2025 and uploaded an organisational chart ([9]). It also lodged a nomination application describing the Burwood restaurant, the planned Hurstville store, and the business’s anticipated need for additional cooks ([11]-[12]). The chart showed current and proposed employees, but did not explain how the positions related to one another or how duties were divided ([10]).
On 16 October 2025, the same delegate approved the sponsorship application and refused the nomination ([13]). The delegate was not satisfied that San Bao had provided sufficient evidence to establish that the nominated cook’s position was genuine. The reasons referred to the existing cooks, the lack of information about how duties were split, and whether the nominee’s likely tasks would substantially match the nominated occupation ([14], [18]).
The delegate notified San Bao of a 28-day period for applying to the Administrative Review Tribunal (ART), and said that the deadline could not be extended ([13]). San Bao did not apply within that period. It later applied to the High Court for certiorari to quash the refusal and mandamus requiring the Minister to determine the application according to law ([1]). It argued that the delegate had constructively failed to exercise jurisdiction, and that the decision-making process was legally unreasonable, because the delegate had supposedly proceeded on the mistaken premise that no organisational chart had been provided ([15]).
The High Court dismissed the application with costs ([22]). It considered the procedural problem created by the missed deadline, then examined the asserted errors on their merits.
The Court began by explaining the consequences of San Bao’s missed ART deadline. San Bao accepted that it had not applied for merits review within 28 days ([2]). Because the decision was a reviewable migration decision challenged outside the prescribed period, it was treated as a primary decision for the relevant jurisdictional provisions. The Federal Circuit and Family Court of Australia (Division 2) therefore lacked jurisdiction to judicially review it, and the matter could not be remitted to that court ([2]). The Court also said that the parties had identified no jurisdiction for the Federal Court to hear it or for the High Court to remit the matter there ([2]).
The Court emphasised that its original jurisdiction is not an alternative review system for applicants who miss statutory or instrument-based deadlines. The usual route for review, judicial review or appeal proceeds through the established tribunal and court hierarchy. The Court said that bypassing that hierarchy, or seeking to revisit decisions made through it, will often be an abuse of process ([3]). Crucially, the fact that the ordinary process is no longer available does not, by itself, amount to an exceptional reason to invoke the High Court’s original jurisdiction ([4]).
The Court noted that a deliberate decision to let ordinary review avenues expire could support an abuse-of-process concern, as might circumstances where the delay was manifestly the plaintiff’s fault ([4]). San Bao provided no evidence explaining its delay. The Court said that this glaring absence might itself have been sufficient to dismiss the application ([5]). It nevertheless took a “prudential” approach and considered the merits because the parties agreed to determination on the papers by a Full Court, the Minister did not ask the Court to dispose of it on another basis, and the Court concluded that the application failed on its merits ([5]).
On the merits, the Court focused on what the delegate’s reasons actually said. San Bao characterised the refusal as resting on “no evidence” of an organisational chart. The Court rejected that description as taking the reasons out of context ([17]). The delegate’s conclusion was that the material did not sufficiently establish that the position was genuine. The stated concern included whether the duties of the nominee would substantially match those of the nominated occupation, given the existing cooks and the lack of detail about how duties were allocated ([18]).
The organisational-chart references formed part of that reasoning. The delegate was concerned that there was no chart or other information showing how the nominated position fitted into the staffing structure, rather than simply whether a chart existed in some form ([19]-[20]). The chart San Bao had supplied showed roles but did not set out relationships between employees, allocation of duties, or how the proposed cook would fit into the structure across the business’s locations ([10], [20]-[21]).
The delegate had also approved the sponsorship application on the same day and stated that relevant Departmental file information had been considered ([13]-[14], [21]). In that context, the Court found no sufficient basis to infer that the delegate mistakenly believed no chart had been provided. The more obvious inference was that the chart did not supply the specific information the delegate considered missing ([21]). Since that factual premise failed, the Court found no error supporting either asserted ground ([21]).
This judgment applies the statutory and regulatory framework set out in its reasons; it does not purport to amend that framework. The Migration Act 1958 (Cth) provisions described in the judgment provide for approval of work sponsors and nomination of proposed visa applicants. Section 140E provides for approval of prescribed classes of work sponsor where prescribed criteria are satisfied ([6]). Section 140GB provides for nomination of an applicant or proposed applicant for a prescribed visa, and requires approval where the relevant prescribed criteria are satisfied ([7]).
For a Subclass 482 nomination, the relevant criterion identified by the Court was reg 2.72(10)(a) of the Migration Regulations: the Minister must be satisfied that the position associated with the occupation is genuine ([8]). The judgment applies that criterion to the delegate’s assessment of the evidence about the proposed cook’s role, the existing staff, and the division of duties ([18]-[21]).
The judgment’s principal procedural discussion concerns the relationship between missed statutory review deadlines and the High Court’s original jurisdiction. It states that original jurisdiction is not a concurrent mechanism for someone who has failed to use the usual review route in time ([3]). A deadline’s expiry and the consequent unavailability of the ordinary route do not, standing alone, make the case exceptional ([4]). The Court refers to Bussa in discussing the usual hierarchy and the risk of abuse of process ([3], footnote 9). It also refers to Tu'uta Katoa when describing its “prudential” approach to dealing with the application on its merits ([5], footnote 10).
The judgment does not state that every late application is necessarily an abuse of process. Rather, it identifies circumstances that may matter, including deliberate abstention from ordinary processes and delay manifestly attributable to the plaintiff ([4]). It also leaves open the relevance of other circumstances by discussing the assessment as one made in light of all the circumstances ([4]).
On unreasonableness, the Court records San Bao’s argument as one about the decision-making process, not the ultimate decision itself ([15]). It refers to Minister for Immigration and Citizenship v Li and to reasoning in Minister for Aboriginal Affairs v Peko-Wallsend Ltd concerning manifest unreasonableness where an important relevant factor has been inadequately weighted, or an irrelevant factor excessively weighted ([15]). The Court did not decide how that approach would apply if the delegate had made the alleged mistake, because it found the factual allegation was not established ([16]).
Accordingly, the judgment’s “after” position is best described as an application of existing provisions and cited principles to this record, not as a stated change in the law. It confirms the importance of context when assessing whether an administrative decision-maker overlooked information: a reference to missing information about the staffing structure did not necessarily mean the delegate believed no chart had ever been supplied.
At [3], the Court said its original jurisdiction “does not exist as a concurrent review mechanism” for a person who misses strict statutory or instrument-based deadlines. In plain English, the High Court is not a second route that becomes available simply because the ordinary review deadline has passed.
At [4], the Court said that the mere unavailability of the usual process is not, by itself, an exceptional reason to invoke the High Court’s original jurisdiction. It gave deliberate inaction until ordinary review avenues expire as an example that could amount to an abuse of process. The passage makes clear that the circumstances matter; it does not state that every late case has the same result.
At [5], the Court observed that San Bao gave no evidence explaining its delay and that this “might, by itself, be sufficient to dismiss the application”. It nevertheless proceeded to the merits. The practical significance is limited to this case: the Court chose not to dispose of the matter solely on the unexplained delay, given the parties’ positions and its view of the merits.
At [18], the delegate’s reasons were summarised as expressing concern about how the duties were split between the cooks and whether the nominee’s likely tasks substantially aligned with the nominated occupation. In plain English, the issue was not just how many cooks the restaurant had, but whether the evidence explained the proposed role’s work.
At [20]-[21], the Court interpreted the organisational-chart concern as a concern about the detail the chart did not provide. It did not show how the additional cook would fit into the staffing structure, including the allocation of duties. The Court therefore rejected the contention that the delegate had simply overlooked a chart.
At [22], the formal order was: “The Company's application should be dismissed with costs.” San Bao’s application for constitutional writs did not succeed, and the Court ordered costs against it.
The judgment is most directly relevant to an application that seeks to use the High Court’s original jurisdiction to challenge an administrative decision after the ordinary merits-review deadline has expired. It highlights the need to distinguish between the fact that the ordinary route is now unavailable and the separate question whether the circumstances justify invoking original jurisdiction ([3]-[4]). A record that does not explain the delay may be a significant concern, as it was here ([5]).
It is also relevant where a jurisdictional-error claim rests on an assertion that a decision-maker overlooked a document. The Court’s method was to examine the reasons as a whole and ask what information the decision-maker said was missing. Here, references to an organisational chart concerned whether it demonstrated relationships between roles and division of duties, not whether any chart had been submitted ([19]-[21]).
For migration nomination decisions, the judgment may be relevant where the genuine-position criterion is assessed against evidence about the employer’s existing staff and the proposed employee’s expected tasks. This case involved an additional cook, existing cooks, and a proposed expansion to a second location ([10]-[12], [18]-[20]). The reasons do not establish a universal evidentiary checklist or require a particular chart format. They show that a chart’s usefulness depends on whether it addresses the issue the decision-maker is considering.
The judgment is less directly determinative where the record establishes that a decision-maker actually failed to consider a relevant document, or where the document contained details absent from San Bao’s chart. The Court expressly left unresolved whether a hypothetical failure to recognise the chart could amount to constructive failure to exercise jurisdiction or legal unreasonableness ([16]).
The judgment text supplied here does not discuss any later judicial treatment of San Bao v Minister for Immigration and Citizenship. It is therefore not possible, on this source alone, to say whether later courts have followed, distinguished, applied, or questioned it.
The authorities the Court itself references are earlier decisions. Bussa is cited in the discussion of the usual hierarchy of review ([3]). Tu'uta Katoa is mentioned in connection with the Court’s prudential approach to deciding the application on its merits ([5]). Li and Peko-Wallsend are cited in the discussion of manifest unreasonableness and the weighting of relevant or irrelevant considerations ([15]). The judgment does not describe those cases as later treatment of San Bao; they are sources informing the Court’s reasoning.
For research use, the important source limitation is that the judgment provides no post-decision citation history. Any account of subsequent treatment would require materials beyond the supplied judgment, which this analysis does not rely on.
The Court did not decide what consequences would follow if a plaintiff deliberately allowed the usual tribunal and court processes to become unavailable. It described such conduct as likely to raise abuse-of-process concerns, while also referring to an assessment of all the circumstances ([4]). The judgment does not provide a comprehensive test or determine how particular explanations for delay would be weighed.
It also did not decide whether an actual failure to recognise that a document had been provided would amount to constructive failure to exercise jurisdiction. Nor did it decide whether such an error could concern a factor of great importance and support legal unreasonableness ([16]). Those questions were unnecessary because the Court found that the delegate’s reasons were about insufficiency of detail, not the non-existence of the chart.
The judgment does not set out a general evidentiary standard for proving that a nominated position is genuine, or prescribe what organisational charts must contain. Its conclusion is specific to the material described in the reasons: the chart did not explain how the proposed cook would fit into the staffing structure or how duties would be divided ([10], [20]-[21]).
Finally, the Court did not determine the wider boundaries of the High Court’s original jurisdiction in every case where statutory review rights have expired. It decided that the mere unavailability of usual processes was insufficient by itself, and then dismissed San Bao’s case on its merits ([4]-[5], [22]). This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
EDELMAN, STEWARD AND GLEESON JJ
SAN BAO PTY LTD PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT
San Bao Pty Ltd v Minister for Immigration and Citizenship
[2026] HCA 6
Date of Judgment: 11 March 2026
S160/2025
ORDER
Application dismissed with costs.
Representation
The plaintiff is represented by Kingstone Lawyers
The defendant is represented by Sparke Helmore
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
San Bao Pty Ltd v Minister for Immigration and Citizenship
Administrative law – Judicial review – Jurisdictional error – Where application for approval of nomination of individual for Subclass 482 (Skills in Demand) visa refused – Where refusal was based, amongst other things, on consideration of documents and information provided by plaintiff – Where delegate not satisfied that position associated with nominated occupation is genuine – Where application for constitutional or other writ is brought because no other tribunal or court has jurisdiction, respectively, to review or judicially review decision – Whether delegate of Minister constructively failed to exercise jurisdiction by refusing nomination application – Whether delegate's decision was legally unreasonable.
Words and phrases – "abuse of process", "business sponsor", "constitutional writs", "constructive failure to exercise jurisdiction", "delay", "jurisdictional error", "legally unreasonable", "nomination", "organisational chart", "original jurisdiction", "Skills in Demand", "unavailability of the usual court process".
Administrative Review Tribunal Act 2024 (Cth), ss 18(1), 295(1).
Administrative Review Tribunal Rules 2024 (Cth), r 6(3).
High Court Rules 2004 (Cth), r 25.02.
Migration Act 1958 (Cth), ss 140E, 140GB, 338(1), 338(9), 476, 476B.
Migration Regulations 1994 (Cth), regs 2.58(1)(a), 2.59, 4.02(4)(d), Div 2.17.
EDELMAN, STEWARD AND GLEESON JJ.
The plaintiff, San Bao Pty Ltd ("the Company"), is a company that operates a restaurant in Sydney serving authentic Chinese street food under the brand "Yummy Street Food". On 20 November 2025, the Company filed this application for a constitutional writ of certiorari—to quash the decision of a delegate of the defendant, the Minister for Immigration and Citizenship ("the Minister"), made on 16 October 2025, which refused the Company's application for nomination of a Subclass 482 (Skills in Demand) visa1—and for a constitutional writ of mandamus, requiring the Minister to determine that nomination application according to law.
The Company asserts, and there is no dispute by the Minister, that it brought the application for constitutional writs in this Court because no other tribunal or court has jurisdiction, respectively, to review or judicially review the decision. The Company accepts that the reason for the need to bring the application in this Court is that the Company did not challenge the decision of the Minister within the 28‑day period for seeking review by the Administrative Review Tribunal ("the ART").2 Since the challenged decision of the Minister is a "reviewable migration decision"3 which is sought to be challenged outside the prescribed time period, the decision is a "primary decision" and the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction to judicially review the decision.4 The matter cannot be remitted to that court.5 Nor, in the absence of any jurisdiction conferred upon the Federal Court of Australia (and the parties did not point to any), can this Court remit the matter to the Federal Court or to any other court.6
Although the Company has brought its application for constitutional writs within the time limits required in this Court,7 the original jurisdiction of this Court does not exist as a concurrent review mechanism for a plaintiff who, for some reason, does not file an application for review of a decision within strict time limits provided by legislation or legislative instruments. Other than in exceptional cases, where the importance, merits, or urgency of a case requires otherwise, the usual process which an application for review, application for judicial review, or appeal should follow is through the hierarchy of tribunals and courts culminating (usually after satisfying the requirement of special leave to appeal) in a decision of this Court. That is why it will often be an abuse of process to seek to circumvent that hierarchy, or to revisit the result of decisions made within that hierarchy, by invoking the original jurisdiction of this Court.
Section 140E(1) of the Migration Act 1958 (Cth) provides that the Minister "must approve a person as a work sponsor" in relation to certain prescribed classes of work sponsor if "prescribed criteria are satisfied". One of the prescribed classes is that of "standard business sponsor".10 The Migration Regulations 1994 (Cth) provide for criteria that must be satisfied for the Minister to approve an application under s 140E(1) by a person to be a standard business sponsor.11
Section 140GB(1)(a)(i) of the Migration Act relevantly provides that "[a] person who is, or who has applied to be, an approved work sponsor ... may nominate ... an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to ... the applicant or proposed applicant's proposed occupation". Section 140GB(2)(b) provides that the Minister must approve a person's nomination if, amongst other conditions, the prescribed criteria are satisfied.
Division 2.17 of the Migration Regulations ("Nominations") applies, amongst other things, to any person who is, or has applied to be, a standard business sponsor.12 Within Div 2.17, reg 2.72 provides for the criteria for approval of various nominations, including a nomination of a proposed occupation in relation to an applicant or a proposed applicant for a "Subclass 482 (Skills in Demand) visa". One of the criteria, provided by reg 2.72(10)(a), is that "[t]he Minister is satisfied that the position associated with the occupation is ... genuine".
On 5 June 2025, the Company lodged with the Department of Home Affairs an online application for standard business sponsorship under reg 2.59 of the Migration Regulations. As part of that application the Company uploaded an organisational chart which showed the organisational structure for the Company. The organisational chart was a single page as annexed to these reasons.
The organisational chart said nothing about how the various positions related to each other. For instance, the organisational chart revealed that the Company presently employs two cooks and a pastry cook, and was proposing to employ two further cooks and a further pastry cook. But, although the proposed two further cooks and pastry cook were listed on a row below the present cooks and pastry cook, it was not clear whether the two further cooks would assist the present cooks. Nor did the organisational chart say anything about the division of duties amongst all the cooks.
The Company separately lodged a nomination application concerning a proposed occupation in relation to Ms Haiming Du for a Subclass 482 (Skills in Demand) visa under reg 2.72 of the Migration Regulations. The nomination application was eight pages. It described the operation of the Company's Burwood restaurant and the crucial role that a skilled cook plays in the operations of the restaurant. The application referred to the "upcoming Hurstville store", how that store would affect the scale of the Company’s operations, and the need for additional cooks.
The nomination application described how, although the Company had become familiar with the nominee months before making an offer of employment to her, an offer of employment to the nominee was not initially feasible due to "the uncertainty surrounding the timeline for the Hurstville restaurant's acquisition, renovation and opening" and how efforts had been made to re-engage with the nominee as the opening date for the Hurstville restaurant drew closer. The application then described how the nominee had been shown the Burwood restaurant and had been given an outline of the Company's growth plans. The application said that the nominee had agreed to join the "team".
On 16 October 2025, a delegate of the Minister wrote to the lawyers for the Company, approving the Company's application to be a standard business sponsor. On the same day, the same delegate wrote to the lawyers for the Company refusing the Company's nomination application for Ms Haiming Du for a Subclass 482 (Skills in Demand) visa. The letter from the delegate advised the Company of its rights to apply within 28 days to the ART for merits review of the decision, and the inability to extend the time for making such an application.
The delegate's reasoning in their refusal of the Company's nomination application included the following: (i) noting that they had considered documents and information provided by the Company as well as relevant information held on Departmental files; (ii) explaining that a requirement under reg 2.72 is that the Minister is satisfied that the position associated with the occupation is genuine; (iii) observing that the Company currently has seven employees working in the business (four Australian and three foreign employees); and (iv) concluding that in light of "concerns", the Company had not provided sufficient evidence to satisfy them that "the position associated with the nominated occupation is genuine" within the application of the criterion in reg 2.72(10)(a).
The Company seeks constitutional writs based upon two asserted jurisdictional errors. First, the Company argues that the delegate constructively failed to exercise jurisdiction by refusing the nomination application "on the mistaken premise that no organisation[al] chart had been provided", when an organisational chart was provided with the separate application by the Company for standard business sponsorship. Secondly, the Company asserts that the delegate's decision was legally unreasonable because it "rested on the plainly incorrect premise that no organisation[al] chart or staffing-structure evidence had been provided". It appears that the Company's unreasonableness ground was not that the delegate had acted unreasonably in the exercise of power involving the final decision itself but that the unreasonableness resided in an exercise of power concerning the process of making that decision. In Minister for Immigration and Citizenship v Li,13 three members of this Court endorsed reasoning of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,14 and said that "the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is 'manifestly unreasonable'".
If the delegate had erred in failing to realise that an organisational chart had been provided with the Company's separate application for standard business sponsorship, then there might nevertheless have been serious doubt as to whether this error could have amounted to a constructive failure to exercise jurisdiction in circumstances in which the delegate directly addressed and decided the nomination application based upon reg 2.72(10)(a). There might also have been serious doubt about whether the error was a relevant factor of great importance capable of supporting a conclusion of unreasonableness in the process of decision-making. It is unnecessary to resolve these issues because the delegate made no error.
Contrary to the Company's submissions, the delegate did not refuse the nomination application "on the basis of 'no evidence' of an organisation[al] chart". Nor, again contrary to the Company's submissions, did the delegate "identif[y] the absence of an organisation[al] chart ... as the very decisive deficiency underpinning the refusal". The Company's submissions take the reasoning of the delegate out of its context.
As explained above, the conclusion of the delegate was that the Company had not provided sufficient evidence to satisfy them that "the position associated with the nominated occupation is genuine" within the application of the criterion in reg 2.72(10)(a). One of the concerns expressed by the delegate was that the Company "did not provide sufficient information to substantiate the nomination of cook in the business". The delegate noted that the Company already had two cooks and "[m]ore importantly, given there are two cooks in the busines[s], insufficient evidence has been provided as to how all the duties are split between the three cooks". The delegate explained:
"While some of the duties to be performed by the nominee appear at face value to be consistent with those of the nominated occupation I am not satisfied that in the context of the applicant's business, the majority of the tasks that the nominee is actually likely to perform align substantially with the tasks of the nominated occupation."
It was in this context that (without the emphasis added below) the delegate said that "[t]here is no evidence of [an] organisation[al] chart for their business to reflect the existing positions within the business, to show how the nominated position fits into the staffing structure of the business except for a declaration in their genuine position statement that there is a chef and cooks in the business". And it was in the same context that (without the emphasis added below) the delegate said that "in the absence of ... definitive and well identified roles in the form of a business organisation structure, I therefore have serious concern that the nominee may perform roles that are outside or below the scope of a Cook ... as described in [the Australian and New Zealand Standard Classification of Occupation]".
When the references by the delegate in their reasons to an "organisation[al] chart" are properly understood in their context, it can be seen that the delegate was concerned with the absence of sufficient evidence, including from an organisational chart, that explained the need for an additional cook by detailing the relationship that the additional cook would have within the existing structure. That relationship, it might be inferred, would include chains of responsibility and the division and allocation of duties of cooks (both amongst themselves and in relation to other employees), including across the two locations of the Company's operations.
There is, therefore, no sufficient basis to infer that, despite the delegate being the same person who approved (on the same day as the refusal of the nomination application) the Company's application to be a standard business sponsor, and despite the delegate's statement that relevant information held on Departmental files had been considered, the delegate had mistakenly thought that no organisational chart had been provided. The far more obvious inference, consistent with the reasoning of the delegate, is that the organisational chart provided by the Company did not provide evidence of how the position of additional cook would fit within the "staffing structure of the [existing] business", in particular "how all the duties are split" to support the need for the additional cook.
Migration Regulations 1994 (Cth), reg 2.72. ↩
Administrative Review Tribunal Act 2024 (Cth), ss 18(1), 295(1); Administrative Review Tribunal Rules 2024 (Cth), r 6(3). ↩
Migration Act 1958 (Cth), ss 140GB(2), 338(1) and (9) read with Migration Regulations, reg 4.02(4)(d). ↩
Migration Act, s 476(2)(a) and (4)(b). ↩
Migration Act, s 476B(2). ↩
Migration Act, s 476B(1) and (3). ↩
High Court Rules 2004 (Cth), r 25.02. ↩
Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 94 ALJR 497 at 501 [13]; 377 ALR 228 at 232. ↩
Compare Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at 609 [64]. ↩
Migration Act, s 140E(2) read with Migration Regulations, reg 2.58(1)(a). ↩
Migration Regulations, reg 2.59. ↩
San Bao Pty Ltd
Minister for Immigration and Citizenship [2026] HCA 6
(2020) 94 ALJR 497
(2022) 276 CLR 579
(2013) 249 CLR 332
(1986) 162 CLR 24
Application dismissed with costs.
The mere unavailability of the usual court process of an application for review, application for judicial review, or appeal through the hierarchy of tribunals and courts is not, by itself, an exceptional reason for invoking the original jurisdiction of this Court to correct an asserted jurisdictional error. For instance, it would likely be an abuse of process for an applicant to seek to pursue a parallel route of invoking the original jurisdiction of this Court by deliberately abstaining from seeking relief through the usual tribunal and court processes until those processes are unavailable. The same may also be true in an assessment of all the circumstances where one factor is that the reason for the delay is the manifest fault of the plaintiff.
In this application the Company provided no evidence at all concerning the reasons for delay and the expiry of time which precluded the availability of the usual tribunal and court processes. That glaring absence might, by itself, be sufficient to dismiss the application. Nevertheless, a "prudential"9 approach can be taken to this application, assessing it on its merits, in circumstances in which: (i) the parties agreed that this application should be dealt with on the papers by a Full Court; (ii) the Minister did not make any submission that the application should be dealt with other than on its merits; and (iii) our conclusion is that the application should be dismissed on the merits.
Migration Regulations, reg 2.70(a)(i). ↩
(2013) 249 CLR 332 at 365-366 [72]. ↩
(1986) 162 CLR 24 at 41; see also at 30, 71. ↩