Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1818

1. The applicant applied for a Skilled Migration (Subclass 189) visa (visa) on 19 December 2016. The applicant's wife was the primary visa applicant and applied for the visa with the nominated position of electrical engineer. The applicant was included in the visa application as a secondary applicant.
2. On 24 October 2018 a delegate of the Minister decided not to grant a visa to the applicant or his wife. The delegate found that the applicant's wife did not meet cl 189.215 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) because she did not satisfy Public Interest Criterion (PIC) 4020. PIC 4020 requires that there is no evidence before the Minister that an applicant has given, or caused to be given, to the Minister a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant has held in the 12 months before the visa application was made. The delegate found that the applicant to this proceeding did not meet cl 189.311 in Sch 2 to the Regulations because he was not a member of the family unit of a person who holds a subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa.
3. At the time of the delegate's decision, the applicant was in Australia and his wife was outside of Australia. The consequence of this, for reasons explained further below, was that the applicant had a right to apply to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate's decision but his wife did not have merits review rights. On 2 November 2018 the applicant applied to the Tribunal for merits review of the delegate's decision.
4. On 3 November 2020 the Tribunal affirmed the delegate's decision not to grant the applicant a visa. The Tribunal found that it did not have jurisdiction in respect of the decision relating to the applicant's wife because she was not a party to the review and was unable to make a valid application for review of the decision in relation to her, as she was not in the migration zone at the relevant times. The only decision the Tribunal could review was the decision relating to the applicant. The Tribunal found the applicant was not a member of a family unit of a person who holds a subclass 189 visa and that he made no claims to meet the primary criteria for the grant of the visa. The Tribunal found that the applicant did not satisfy the requirement of cl 189.311 for the grant of the visa as the secondary applicant.
5. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
6. For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.

1. In his judicial review application filed on 26 November 2020, the applicant advanced the following ground (reproduced without alteration):

The tribunal decision made on 3/11/2020 was affected by Jurisdiction of error in that the tribunal denied me procedure of fairness.

Hasn't reviewed on the decision, During whole hearing keep asking me to prove if I have review rights. I have review rights is written in number of documents like

1. In notification of Refusal letter send by immigration

2. checklist - Disclosure decision of AAT.

3. Digital Assistance of official website on Home affairs.

4. official website of AAT.

On 16/9/20 AAT send us "invitation to comment or respond" if I am valid candidate for review on 8/10/20 AAT agreed on my rights to review the case & send me hearing date 23/10/20.

But during hearing keep asking me to prove review rights again inspite of reviewing of file.

(a) an affidavit filed by the applicant with his judicial review application, annexing a copy of the Tribunal decision;

(b) the court book filed by the Minister on 4 March 2021;

(c) an affidavit of Claudia Calabrese filed on behalf of the Minister on 16 January 2025, regarding the applicant's visa history and movements records; and

(d) an affidavit of Michelle Elizabeth Stone filed on behalf of the Minister on 1 September 2025, annexing an extract of the Department's policy.

CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

The issues raised by the applicant's ground and submissions

1. The applicant's ground, oral submissions and written submissions filed after the hearing give rise to the following issues:

(a) complaints the applicant makes about the delegate's decision and the process adopted by the delegate and whether that causes jurisdictional error in the Tribunal decision;

(b) the Tribunal's findings in relation to its jurisdiction, including whether it had jurisdiction to review the decision in relation to the applicant's wife; and

(c) whether the Tribunal otherwise denied the applicant procedural fairness.

The applicant's complaints about the delegate's decision

1. This Court does not have jurisdiction to review the delegate's decision in relation to the applicant. That decision was reviewable by the Tribunal and is therefore a primary decision within the meaning of s 476(4)(a) of the Migration Act, as it applied at the time of the application to this Court. The Court does not have jurisdiction to review a primary decision: s 476(2)(a) of the Migration Act. The applicant's wife is not a party to this proceeding and I am not by this proceeding assessing whether there was any jurisdictional error in the delegate's decision relating to her.
2. It is nevertheless appropriate to summarise the applicant's complaints about the delegate's decision, and the facts to which the complaints relate, as this provides context to the other matters raised by the applicant.
3. The applicant's wife provided to the Department two documents on the letterhead of a particular company (company) to support her claims of past employment. In confirming the veracity and genuineness of the applicant's wife's employment claims, an officer of the Department contacted the company. The manager of the company to whom the Department officer spoke was unable to confirm that the applicant's wife was an employee or past employee of the company and refused to provide the contact details of someone who could. The Department conducted further inquiries and identified a number of inconsistencies. The Department invited the applicant's wife to comment on the adverse information, by way of letters sent to her pursuant to s 57 of the Migration Act on 21 September 2017 and 31 July 2018 (natural justice letters). The applicant's wife responded to the natural justice letters and provided further information to support her claims.
4. The delegate found that the applicant's wife did not meet PIC 4020, as she provided a bogus document to the Department. In reaching this finding, the delegate accepted the explanations provided by the applicant's wife in relation to many of the issues raised in the natural justice letters. However, the delegate gave greater weight to the spontaneous answers provided by the employee of the company during the verification check by telephone than to the information in the applicant's responses. The delegate noted that the employee, without hesitation, stated that they were the only general manager and did not change their answer until they were asked about the applicant's wife. The delegate also considered it questionable that the employee disconnected the call when asked to be put through, or given contact details for, the other manager. The delegate considered that the more credible reason for this was that there was no other general manager.
5. At the hearing before the Court, the applicant submitted that:

(a) this whole case is dependent on one random phone call that went to a wrong place and the instantaneous reply of the person who answered the phone;

(b) the applicant's wife gave strong evidence, including evidence approved by the government, in response to the natural justice letters, to show that the company existed and was active and the delegate accepted that;

(c) however, the delegate then raised the question of why the general manager is not the same person;

(d) the Department called the wrong place and spoke to the wrong person;

(e) the delegate relied on the same phone call without doing any further checks, even though they accepted everything else;

(f) the general manager became the director and had a unique identification number, which is a government approved number and which the applicant's wife provided to the Department, but still the delegate gave credit to the call to the unknown number and the spontaneous reaction of the person and dismissed the case on that basis;

(g) the applicant made a freedom of information (FOI) request, but the Department sent to him a corrupted FOI disk, and a follow up request did not provide the documents that the applicant needed naming the person that the Department spoke to;

(h) when he and his wife spoke to the general manager, the general manager said that there was no phone call;

(i) the Department checked the company number from an open source;

(j) the case was rejected because of the general manager, but the case is about the candidate; and

(k) in the file itself, it was clarified that the person afterward said there was a general manager somewhere, it was not the main company, and that they could call that person, but they never called.

1. As the Court is not, in this proceeding, reviewing the delegate's decision, these matters cannot directly give rise to jurisdictional error in the delegate's decision or the Tribunal decision. In referring to these matters, the applicant submitted that the Tribunal relied on irrelevant material, ignored relevant material and made an illogical decision. I therefore understand the applicant's submission to be that what he asserts was a flawed process adopted by the Department has led to jurisdictional error in the Tribunal's decision by causing the Tribunal to rely on irrelevant material, ignore relevant material and make an illogical decision.
2. This submission needs to be considered in the context of the decision the Tribunal was in fact reviewing. The Tribunal only reviewed the decision in relation to the applicant and, for the reasons explained later in this judgment, was correct to find that it did not have jurisdiction to review the decision relating to the applicant's wife. The applicant was required to meet the secondary criteria for the grant of a visa, including the requirement of cl 189.311 which required him to be a member of the family unit of a person who holds a subclass 189 visa on the basis of satisfying the primary criteria. This was the only issue before the Tribunal. Irrespective of whether the delegate's decision-making process was flawed (and I express no view on this), there was no evidence before the Tribunal that the applicant was a member of the family unit of a person who held a subclass 189 visa on the basis of meeting the primary criteria. The Tribunal decision therefore cannot be said to be illogical. The Tribunal was not required to have regard to the applicant's complaints about the delegate's decision in relation to his wife. The Tribunal did not fail to consider any relevant material and nothing relied on by the Tribunal in making its decision was irrelevant material that the Tribunal was precluded from taking into account.
3. The applicant's complaints about the delegate's decision-making process do not establish jurisdictional error in the Tribunal decision.

The Tribunal's findings in relation to its jurisdiction, including whether it had jurisdiction to review the decision in relation to the applicant's wife

1. The ground as raised by the applicant in his application asserts that the Tribunal did not review the decision and instead kept asking the applicant to prove that he had review rights.
2. As indicated above the Tribunal reviewed the decision in relation to the applicant but found it did not have jurisdiction to review the decision in relation to the applicant's wife.
3. There is nothing in the materials before the Court to suggest that the Tribunal ever expressed doubt about whether it could review the decision in relation to the applicant. The issue that was placed before the Tribunal by the applicant, as I understand the documents in the court book, was whether through the exercise of the applicant's review rights, the Tribunal could also review the decision in relation to the applicant's wife.
4. As noted in the Minister's submissions, whether the Tribunal had jurisdiction to conduct a review of the decision relating to the applicant or his wife is a jurisdictional fact that can be determined by this Court: see Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [19].
5. In the present case, I accept the Minister's submission that the Tribunal was correct to find that it had jurisdiction to review the decision relating to the applicant but not that relating to his wife.
6. The decisions to refuse to grant the applicant and his wife subclass 189 visas in this case were Part 5-reviewable decisions within the meaning of s 338(7A) of the Migration Act, which provides:

A decision to refuse to grant a non-citizen a permanent visa is a Part 5-reviewable decision if:

(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and

(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.

1. A subclass 189 visa can be granted to an applicant who is in or outside of Australia, but not in immigration clearance: cl 189.411. It is a permanent visa. The applicant's movements records are annexed to the affidavit of Ms Calabrese. These records confirm that the applicant was outside of Australia at the time of the visa application on 19 December 2016. The information in the visa application suggests that the applicant's wife was also outside of Australia at the time of the visa application and that has not been disputed by either party in this proceeding. There is no evidence before the Court to suggest that the applicant's wife may have been in Australia at the time of the visa application.
2. Section 347 of the Migration Act addresses how applications for review of Part 5-reviewable decisions may be made to the Tribunal and who can make them. Relevantly to the issues in the present case, s 347(2)(a) provides that an application for review of a Part 5-reviewable decision covered by subsection 338(7A) may only be made by the non-citizen the subject of the decision. Section 347(3A) provides that an application for review of a Part 5-reviewable decision covered by s 338(7A) may only be made by a non-citizen who was physically present in the migration zone both at the time when the decision was made and at the time when the application for review is made.
3. The applicant's movements records confirm that he was in Australia at both the time of the delegate's decision and at the time he made the application to the Tribunal. There is no evidence that the applicant's wife was in Australia at those times.
4. Accordingly, the applicant had standing to apply to the Tribunal to review the delegate's decision relating to him. The applicant's wife, being outside of Australia at the time of the delegate's decision, did not have standing to commence any review application before the Tribunal. Likewise, the applicant did not have standing, under s 347(2)(a) of the Migration Act or any other provision, to apply for review of the decision relating to his wife. Upon the applicant making a valid application to the Tribunal for review of the decision relating to him, the Tribunal was required to review that decision: s 348(1) of the Migration Act. There was no power pursuant to which the Tribunal could review the decision in relation to the applicant's wife.
5. The applicant submitted that the visa application was a combined application. He submitted that if he was granted review rights, then the Tribunal needed to listen to the whole case including that relating to his wife, as the grant of his visa was dependent on his wife's case. However, for the reasons just explained, the applicant's wife did not have standing to make an application for review of the decision relating to her and the applicant did not have standing to make an application on behalf of his wife. Therefore, the Tribunal could not review the decision in relation to the applicant's wife, irrespective of whether the outcome of the applicant's application was dependent on whether his wife held a subclass 189 visa.
6. The Minister annexed to Ms Stone's affidavit a copy of a Departmental policy called 'GenGuideA-All visa- Visa application procedures' as in force on 24 October 2018. Counsel for the Minister explained at the hearing that, although the Minister did not consider this document to be necessary to determine the extent of the Tribunal's jurisdiction, it was provided to assist the applicant to understand that, where there is a combined visa application, the applications are really separate applications and each applicant is a separate applicant in their own right. The policy states:

Effect of a combined application

It is irrelevant that, in a combined application, only one application form has been completed and lodged. Each person who combines their application with another person:

• is an applicant in their own right
• in law, has made their own application and
• must be considered against primary criteria and secondary criteria.

1. I agree that this policy is not necessary to determine the Tribunal's jurisdiction, which I have addressed above. However, I have set it out in this judgment in the hope that it will assist the applicant to understand.

Whether the Tribunal otherwise denied the applicant procedural fairness

1. The applicant's procedural fairness complaints are closely tied to the issues addressed above. The procedural fairness complaints raised in the written grounds relate to the communication regarding the Tribunal's jurisdiction. The procedural fairness complaints raised at the hearing relate to the Tribunal's refusal to review the decision relating to the applicant's wife.

Communication relating to the Tribunal's jurisdiction

1. On 16 September 2020 the Tribunal sent to the applicant an invitation to comment or respond to information, issued pursuant to s 359A of the Migration Act. The invitation said in part:

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

...

The particulars of the information are:

• You applied for this visa on the basis of being a member of the family unit of the primary visa applicant, Ms Karamveer Kaur Uppal.

• Ms Uppal applied for the visa on 19 December 2016. Departmental records indicate that at the time of the visa application, Ms Uppal was not in the migration zone and therefore the Department's decision in relation to her is not a reviewable decision under s.338(2) of the Act. As the Tribunal has no jurisdictional to review Ms Uppal's application, the Department's decision refusing her Subclass 189 visa still stands.

The above information is relevant to the review because it is a requirement for grant of the visa that, as a secondary applicant, you are the member of the family unit of a person who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.189.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

If the Tribunal relies on the above information, it would find that you do not satisfy cl.189.311 of the Regulations. This would be the reason, or part of the reason, for affirming the decision under review.

1. In response to this invitation, the applicant provided documents relating to the jurisdiction of the Tribunal to review the decision, including:

(a) a fact sheet of the Tribunal titled 'Information on making an application for review - Migration', in which the following words were highlighted: 'The Department's letter providing notification of the decision will specify whether the decision can be reviewed by the AAT and who may apply for that review';

(b) an extract from the website of the Department of Home Affairs, with a digital assistant box which said: 'If your application has been refused, you will need to check your notification letter (sent by the Department to you) to find out if you have the right to seek review of the Department's decision at the Administrative Appeals Tribunal (AAT)';

(c) an extract from the Department of Home Affairs website that says: 'If the visa applicant or holder is in Australia, then they are the person who should apply for review. If the visa applicant is overseas, then in most cases the Australian sponsor, nominator or family member makes the application for review';

(d) an extract from the Tribunal's website which said:

Who can apply for review?

The decision letter sent by the department should explain whether the decision can be reviewed by us and who can apply for review.

We can only accept an application for review made by a person who has the right to apply for review. In some cases the only person who can apply for review is the visa applicant or former visa holder, in other cases it can only be the sponsor or a close relative. In some cases the review applicant must be within Australia at the time of decision or at the time the application for review is lodged, or both. ...;

(e) an email from a registered migration agent dated 26 October 2018, which read in part:

For the AAT APPEAL ,,,,,,,,,,, because she is offshore she cannot appeal as stated in the Immigration letter.

BECAUSE YOU ARE THE SECONDARY APPLICANT - and you have been refused because of her refusal then if you can go to the AAT and win a case on the based that Karamveer Kaur UPPAL's application should have been approved ,, then you both can get the end visa.

1. Some of these documents are the documents referred to in the ground in the written application.
2. None of these documents, nor any other documents in the court book, questioned whether the applicant had a right to apply to the Tribunal for review of the decision in relation to him. Most referred to the notification letter from the Department. The notification of refusal of the visa application, sent to the applicant and his wife on 24 October 2018, clearly indicated in relation to the applicant's wife that there was no right of merits review for the decision. In relation to the applicant, the notification letter indicated that he could apply to the Tribunal for merits review, within 21 days of the day on which he was taken to have received the letter, if he was physically present in Australia at the time the application for merits review was made.
3. There is nothing in the information provided by the Tribunal about the review rights of the applicant or his wife that could, in any way, indicate that the applicant was denied procedural fairness. The advice the applicant received from a migration agent was incorrect, but that does not indicate that the Tribunal denied the applicant procedural fairness.
4. The applicant at the hearing before the Court made submissions to the effect that first, someone said they would see if the applicant could file the case, then after a few days they said the Tribunal could review his case. They gave him rights to the Tribunal and they had a combined application in the Tribunal. He then paid the fee. A similar submission was made in the applicant's post-hearing written submissions.
5. There is no evidence before the Court to support the applicant's submission that there was ever a period of a few days when the Tribunal considered whether the applicant could make an application. Such a submission is not consistent with the clear information about review rights in the notice of the delegate's decision. However, even if there was a short period during which there was some uncertainty in relation to whether the applicant could make an application to the Tribunal, that would not amount to any denial of procedural fairness. The Tribunal ultimately accepted that the applicant had review rights in relation to the decision about him and reviewed that decision.
6. Further, contrary to the applicant's submission, there was never a combined application to the Tribunal. The applicant was the only person named in the application for review and, as discussed above, even though the applicant's wife was the primary visa applicant, she did not have any right to seek merits review of the delegate's decision relating to her. No denial of procedural fairness is established by this aspect of the applicant's submission.
7. In his written submission provided to the Court after the hearing, the applicant submitted that after he lodged his application to the Tribunal, the Tribunal said that his case cannot be reviewed because he is dependent on the primary visa applicant who did not meet the criteria for the grant of the visa. I infer that this is a reference to the s 359A invitation. The Tribunal did not say in this invitation that the decision in relation to the applicant could not be reviewed. Rather, it invited him to comment on the information that the delegate refused to grant the applicant's wife a visa, that decision stood and the applicant's wife did not have review rights, and that the Tribunal may find that, as a secondary visa applicant, the applicant was unable to meet cl 189.311 in Sch 2 to the Regulations. There is no denial of procedural fairness in that approach. Rather, in sending the invitation pursuant to s 359A of the Migration Act, the Tribunal was complying with its procedural fairness obligations under Division 5 of Part 5 of the Migration Act.

The Tribunal's refusal to review the decision relating to the applicant's wife

1. The applicant submitted that the Tribunal did not listen to his whole case. If he had review rights, the Tribunal ought to have listened to the case about the primary visa applicant as well, and the applicant's case is dependent on hers. He submitted that if he has review rights, his case must be listened to, otherwise there is no point in providing review rights. As the person who was onshore, he should have had the opportunity to present the case to the Tribunal, but the Tribunal only saw him as dependent on his wife and rejected his application.
2. The applicant submitted the decision came from one phone call. He submitted that the Department did something wrong and it was for the Tribunal to correct that.
3. For the reasons I have already addressed above, the Tribunal only had jurisdiction to review the decision in relation to the applicant and not his wife. It therefore had no jurisdiction to determine whether the delegate made any error in relation to the decision refusing to grant the applicant's wife a visa.
4. The relevant issue for the Tribunal was whether the applicant was a member of the family of a person who holds a subclass 189 visa on the basis of meeting the primary criteria. The reasons the applicant's wife did not hold a visa, and whether the delegate made any errors in making that decision, did not need to be determined by the Tribunal in deciding, as a question of fact, whether the applicant's wife held a subclass 189 visa. It is not a fair characterisation of the Tribunal's approach to suggest that the Tribunal failed to listen to the whole of the applicant's case. Rather, the issue on the review became quite narrow because of the delegate's refusal to grant the applicant's wife a visa and the inability of the applicant's wife to seek merits review of that decision.
5. The review rights of the applicant and his wife are conferred by legislation. In this case, because of the delegate's decision and the inability of the applicant's wife to seek merits review, the issue on review of the decision relating to the applicant was limited and the applicant did not ever have any meaningful prospect of success before the Tribunal. However, that is different from the question of whether he had review rights which, as I indicated above, he did.
6. I accept the Minister's submission that the Tribunal appropriately identified the manner in which the lack of jurisdiction to review the decision relating to the applicant's wife limited the issue for consideration in the review relating to the applicant, made findings on that issue that were open on the evidence and did so in a procedurally fair way. The applicant has not established that the Tribunal denied him procedural fairness.

Other matters raised in the parties' submissions

1. I briefly address some of the other matters raised in the parties' submissions to the Court, which are not already addressed above.

Whether the applicant is in India or Australia is not relevant to the Court's judgment

1. The applicant submitted that he returned to India while his matter was pending before the Court because 99.99% of cases are dismissed because the judge thinks the person just wants to remain in Australia. I do not consider that this is a fair characterisation of the work of this Court, but it is unnecessary to comment on the general work of this Court in migration matters in the present proceeding. For present purposes, it is sufficient to note that the applicant's entitlement to relief is dependent on him establishing that the Tribunal made a jurisdictional error. Whether the applicant has returned to India or continues to reside in Australia is irrelevant to the question of whether the Tribunal made a jurisdictional error and has not been taken into account in finding that the Tribunal did not make a jurisdictional error.

Balance of documents in favour or against the applicant's case

1. The applicant submitted that for every one document against his case, there were 10 in favour. This does not establish jurisdictional error. To be granted the visa, the applicant had to meet the relevant criteria including, in this case, whether he was a member of the family of a person who holds a subclass 189 visa on the basis that they meet the primary criteria. If the applicant could not meet this criterion, the number of documents he can provide in support of his case cannot change the outcome.

The finding that the requirements of PIC 4020 were not met

1. The applicant submitted that he would have accepted the refusal, but is concerned about the finding that the applicant and his wife did not meet PIC 4020. He would like the PIC 4020 finding removed. That finding was part of the delegate's decision, which the Court cannot review. The Court has no power to quash or alter the PIC 4020 finding in any way.

1. In response to the applicant's submission that he was not given the document he most needed when he made an FOI request, Counsel for the Minister referred to the Tribunal's treatment of a non-disclosure certificate which was issued under s 376 of the Migration Act. Counsel for the Minister submitted that the Tribunal explained to the applicant at the hearing that the documents the subject of the certificate related to his wife's claimed employment, which related to his wife's eligibility for the visa. Counsel for the Minister submitted that, as the Tribunal found it did not have jurisdiction to review the decision relating to the applicant's wife, the documents were plainly not relevant to the limited issue before the Tribunal in relation to the review of the decision relating to the applicant. The Minister submitted that the Tribunal drew the existence of the certificate to the attention of the applicant and explained why the documents covered by the certificate were not relevant to the review and no error arises from the treatment of the non-disclosure certification in this matter. In any event, the information covered by the certificate could have no effect on the outcome of the applicant's review application, limited as it was.
2. I accept the Minister's submission on this issue and would also make some further observations. The FOI request the subject of the applicant's submission has not been identified and is not readily apparent from the material before the Court. This Court is not reviewing any decision in relation to any FOI request. I do observe, however, that the applicant made a request to the Tribunal under s 362A of the Migration Act for access to the documents on the Department file. On 21 March 2019 the Tribunal provided the applicant with access to the written material before it, save for the documents covered by the non-disclosure certificate, tax file numbers and parts of some documents that contained personal information the disclosure of which was not permitted under Australian Privacy Principle 6 as set out in the Privacy Act 1988 (Cth) (Privacy Act). There is no error apparent in this approach. The entitlement to access written material, conferred by s 362A(1) of the Migration Act, is expressed to be subject to s 376. Section 376 does not require the Tribunal to disclose to an applicant information that is the subject of a certificate issued under that section. Further s 362A(2) expressly provides that s 362A does not override the requirements of the Privacy Act. The applicant has not established that there is any jurisdictional error arising from the partial provision of documents to him under s 362A of the Migration Act.
3. The Tribunal gave the applicant a copy of the non-disclosure certificate on 20 October 2020 and explained that it would be discussed at the hearing. A transcript of the hearing is not in evidence before the Court, but the Tribunal recorded in its reasons at [14]:

As explained to Mr Hundal at the hearing, even if the certificate is valid, the information covered by the certificate, which relates to information provided by third parties relating to his spouse's claimed employment, is not relevant to the issue in this review, which relates to his eligibility for the visa, as the Tribunal has no jurisdiction to review the decision made in respect of his spouse.

1. There is no apparent jurisdictional error in relation to the Tribunal's treatment of the non-disclosure certificate.

1. The applicant has not established that the Tribunal made a jurisdictional error. His application for judicial review is therefore dismissed.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.