Zhuang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The relevant visa criteria 5 One of the criteria to be met by an applicant for a temporary business visa was criterion 3004, specified in Schedule 3 of the Migration Regulations 1994 (Cth). Amongst other things, it required the Minister to be satisfied that Mr Zhuang was 'not the holder of a substantive visa because of factors beyond [his] control' and that there were 'compelling reasons for granting the visa' (Criterion A). It also required the Minister to be satisfied that Mr Zhuang would have been entitled to be granted the temporary business visa had he applied on the last day he held a substantive visa (being a day in 2009 when his student visa expired) (Criterion B).

Mr Zhuang's submission in support of his application 6 Mr Zhuang provided a submission in support of his application in the following terms (errors in original): 1. Mr Zhuang entered into Australia on a student visa in July 2007, at age 17. He started to study in an English course, which was enrolled to evenutally enable him to study at a High School course in 2008. He had solely relied on his family's financial support to commit to his studies in Australia. 2. Not long after he entered Australia, on about his eighteenth birthday, his father entered Australia. He continued to rely on his family's financial support. But at the time, his father's business in China deteriorated and eventually failed, leading to numerous creditors coming for Mr Zhuang senior. 3. In his visit to his home in about mid 2008, he saw his family's circumstances first-hand: Financially, there was no support coming from them. There were various creditors chasing the family for debts owed by his father's business. He returned to Australia, scared and worried for his studies, his life and his future. 4. From 2008 on, he had to attend various work sites to be trained and worked as a site assistant, then gyprocker and plasterer, to pay for his own study fees as well as his living expenses. He did not dare to go back to China. He submits that during the time of his studies, he strictly complied with the student visa conditions, mainly attending classes diligently, and keeping up his academic performance satisfactorily. He had not received any Notice from the school regarding any possible breach when he held the student visa. 5. Mr Zhuang's student visa expired in 2009. Without sufficient funds to renew the student visa, he chose to stay on in Australia, mainly due to his worsening family situation back in China, and that his 19-year-old life had gradually gotten used to the way of life, work, and environment of Australia. Also, due to his further commitments to the work at various site, he was unable to have sufficient energy to hold a student visa and comply fully with its conditions. This decision was not taken lightly. It became a very huge burden in his heart. His hair had since become grey prematurely. 6. Mr Zhuang was able to receive assistance from his accountants to register his companies (DDZ Projects Pty Ltd in 2010 and then DDZ Interiors Pty Ltd in 2014 --noting that his Chinese character name is Dong Dong Zhuang: intitaled DDZ) for him to take up construction work as a business subcontractor. He understood it as he was allowed to work under the DDZ companies in Australia. 7. Mr Zhuang, under his DDZ companies, had assisted many Australian companies in their construction projects and developments. His current employer AKM Projects, was expanding its business in the industry and had agreed to directly employ him to head the biggest project team in the company, which comprise mostly of plasterers who speak Chinese, but limited English. Mr Zhuang has sufficient English ability to communicate with AKM's top management as well as the Chinese team members. He has made great contributions to AKM's business, in its expansion. His value had be acknowledged and accepted from the time that he subcontracted AKM's work through DDZ. Without Mr Zhuang, AKM would suffer great business losses, as well as personnel losses due to lapse of communications within the company's management and its tradespersons. He is able to claim exemption from an IELTS report on the basis of his current salary level of $102,000 pa. 8. In summary, Mr Zhuang submits that he had been in a set of compassionate circumstances that were beyond his control surrounding the time that his student visa expired in 2009. During his days as student visa holder, he had complied with all the visa conditions substantially. Also, compelling circumstances exist for the grant of his work visa due to AKM' s past, existing and future need for his skill sets. 9. Further, Mr Zhuang submits that since 2008 he had been trained in the field of work site constructions tradeskills as well as work site projects management. (This was also submitted in the 457 visa application form.) His skills sets had already been established by the time that his student visa expired in 2009, albeit they maybe not honed to his current level. It would mean that he could have been granted a 457 work visa in 2009, having sufficient skills to perform the tasks as the currently nominated plasterer team leader. 10. Lastly, Mr Zhuang submits that it had been a long and frightening road that he had gone along from 2009 to 2016, which he was very unlikely to go back and experience again, holding no visa in Australia. He has now been offered good employment, contributing greatly to an Australian company's growth in the industry, and is now having this chance to regularise his visa status in Australia. It would be impossible that he has any inclinations to breach his 457 visa conditions to ruin the opportunity.

The decision by the Minister's delegate 7 The application was refused by a delegate of the Minister. The reasons specified the applicable legislation, quoted the submission of Mr Zhuang in full and then reasoned: Two requirements must be satisfied: • There must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and • Those factors must have been beyond the applicant's control. Factors beyond the applicant's control refer to circumstances 'external' to the applicant and over which they had no control. I am not satisfied that the reasons stated in the applicant's submission constitute factors that were beyond the applicant's control. Having regard to the information provided in the applicant's submission, I am not satisfied that there exists compelling reasons to grant the visa and that the reasons why the applicant was not the holder of a substantive visa was beyond his control. Given that the applicant has not provided evidence to demonstrate external circumstances beyond his control which led to him becoming a person in Australia without a substantive visa I am therefore not satisfied that clause 457.211 has been met. 8 Significantly, no aspect of the factual matters advanced by Mr Zhuang in support of his visa application was expressly doubted by the delegate. In effect, the factual position was accepted but it was found to be insufficient to satisfy the statutory criteria, particularly Criterion A. There was no consideration of Criterion B.

The hearing before the Tribunal 9 Mr Zhuang sought review of the decision in the Tribunal. He was given notice that there would be a hearing on 12 December 2017. The notice said: Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. 10 Plainly, the notice invited Mr Zhuang to respond to the basis upon which the delegate had decided to refuse his application. 11 The hearing on 12 December occupied just over 30 minutes. 12 The Tribunal member commenced the hearing by saying: We are here today because the Department made a decision not to grant you a 457 visa. And the reason was that you didn't satisfy what is referred to as a 'schedule 3 criteria'. And the reason was set out in the Decision Record which is attached to your Application for a review. You should know that the Tribunal is independent of the Department and I will make a decision on the evidence that I have here in front of me and the evidence you provide today. You should know that I have the Department's file and I have access to the Department's databases which includes things such as your previous interactions with the Department and movement records. You should also know that this application is your opportunity to put to me matters that you feel are important and relevant to the decision I am making today. You should also know that I am applying the same law and regulations. 13 The Tribunal member asked Mr Zhuang a number of questions. 14 Then the Tribunal explained, in substance, that Mr Zhuang had to demonstrate that he satisfied Criterion A. The Tribunal member asked whether there was anything Mr Zhuang wanted to say about being entitled to the grant of a visa on the last day that he held a substantive visa, to which Mr Zhuang responded 'Do I tell you my experience now?'. Mr Zhuang then narrated the circumstances which led to him being in Australia past the expiry of his student visa. 15 The Tribunal member then intervened and said: 'I've got most of his history here which I'm reading now that you're telling me so that hasn't changed is that right?'. Mr Zhuang responded to the effect that the history had not changed but he wanted to tell the history in more detail. 16 Mr Zhuang then continued to recount the history. 17 The Tribunal member then turned to Criterion B and the following exchange occurred: Tribunal: And then the compelling reasons for granting the visa and you're saying that at the time of application you would have been eligible for this visa? Sorry at the time of your last substantive visa which was in 2009 you were eligible for the grant. Mr Zhuang: Yes Tribunal: Okay because it seems to me at that time you may not have had the skills because you're saying, he was asking you to obtain skills in 2009. Mr Zhuang: It was in 2008 when I came back from China I just following my father and learned the skills from my father. Tribunal: Okay so what was the occupation? Mr Zhuang: Gyprocking and plastering. Tribunal: Okay. Alright. Alright so that's the issue for me to look at today. Is there anything further you want to tell me … 18 The Tribunal did not challenge or question the account given by Mr Zhuang or put to him any matters which might be a reason why his account may be doubted. The Tribunal did not ask any questions about whether Mr Zhuang could have secured a sponsor prior to the expiry of his student visa. Plainly he had not secured a sponsor in 2009 because the nature of his application was such that he was seeking a visa on the basis that he had not made the application for a temporary business visa before his student visa expired. 19 Mr Zhuang then returned briefly to matters concerned with Criterion A. 20 Mr Zhuang's representative then made a submission to the effect that while Mr Zhuang was working during the student visa period he was working each week and in addition to plastering and gyprocking he was also learning management skills, so his current occupation as a plasterer team leader matched those skills. 21 The hearing then concluded.

The Tribunal's decision 22 On 18 December 2017, the Tribunal affirmed the delegate's decision. Unlike the delegate, the Tribunal dealt with the factual basis for the claim that Criterion A was met. The Tribunal's reasoning was as follows: (1) It recounted the evidence of Mr Zhuang as to the history of how he came to be working in Australia without a visa and noted that the written submission recounted similar circumstances. (2) The Tribunal made some brief adverse findings as to that evidence and concluded that it was 'not satisfied that the father's creditors in China constitute factors that would cause [Mr Zhuang] to stay in Australia without a visa since 2009'. (3) The Tribunal went on to find that it did not accept that Mr Zhuang did not have the support of his father in Australia because, on Mr Zhuang's account, it had been his father who had helped him to acquire the relevant skills. (4) The Tribunal made other adverse findings concerning the account given by Mr Zhuang. They were to the effect that issues with creditors in China did not explain why he and his father had lived and worked in Australia for nine years earning a substantial amount and no harm had come to his family in China. The Tribunal found expressly that it did not accept that Mr Zhuang and his family are at risk from violent creditors in China. (5) The Tribunal then noted: The applicant states that he is trained and skilled and would be able to contribute to an Australian company. No representative of the company provided evidence to the Tribunal. (6) The Tribunal concluded that it was not satisfied as to Criterion A and affirmed the decision of the delegate to refuse the visa application.

The application for judicial review in the Federal Circuit Court 23 Mr Zhuang then brought an application for judicial review in the Federal Circuit Court. Of the grounds raised there, only three continue to be relevant for the purposes of the appeal to this Court. 24 First, it was claimed that Mr Zhuang was entitled to assume that the issue to be dealt with on review was the issue whether the facts as alleged by him were sufficient to meet Criterion A. Instead, the Tribunal, without informing him that the credibility of his account was in issue, rejected key parts of that factual account. In doing so, the Tribunal failed to afford procedural fairness to Mr Zhuang. 25 Second, it was claimed that the Tribunal failed to consider a substantial, clearly articulated argument, namely that he had experienced insufficient energy levels to continue with his studies. 26 Third, it was claimed that the Tribunal failed to consider a further substantial, clearly articulated argument, namely his claims regarding his academic performance and dedication before ceasing to hold a student visa. 27 All three grounds were rejected. In addition, the primary judge found that, in any event, the relief sought should be refused on discretionary grounds because there would be no utility in granting relief. In effect, so the primary judge held, Mr Zhuang had failed to demonstrate that he could have met Criterion B as he had not shown that he had an approved sponsor for the purposes of the temporary business visa application as at the time when his student visa expired: Zhuang v Minister for Home Affairs [2019] FCCA 3699 at [50].

Appeal ground 1: Alleged failure to afford procedural fairness 28 When Mr Zhuang and his representative attended before the Tribunal they were entitled to assume that there was no issue with Mr Zhuang's version of events as presented in his submission to the Department. That version had been accepted by the delegate. When notified by the Tribunal of the hearing, Mr Zhuang was pointed to the delegate's decision to identify the issues. As noted above, the delegate provided very brief reasons. In effect, they were expressed in a single sentence: 'Having regard to the information provided in the applicant's submission, I am not satisfied that there exists compelling reasons to grant the visa and that the reasons why the applicant was not the holder of a substantive visa was beyond his control'. By expressly stating that there were not compelling reasons 'having regard to the information provided' by Mr Zhuang in his submissions, the delegate did not dispute the veracity of Mr Zhuang's account. Rather, the delegate was acting on the basis of that information. If indeed the delegate did not accept part or all of that account then it would be expected that the delegate would not have had regard to that information. The delegate did not describe the matters provided in the submissions as claims or allegations or assertions, referring instead to 'information provided'. Further, the delegate had earlier set out in full the submissions without qualification or criticism. 29 At no point during the course of the hearing did the Tribunal put to Mr Zhuang any suggestion that his version of events should not be accepted for reasons of the kind ultimately expressed by the Tribunal as the basis for not accepting his account. Indeed, the Tribunal member interrupted the account in a manner that suggested the account in the submissions was accepted. A person in Mr Zhuang's position would be entitled to assume that the issue was whether the matters he had raised were sufficient to satisfy Criterion A, not whether he was to be believed as to his account. 30 The Tribunal in the result proceeded to make a number of adverse findings as to Mr Zhuang's account: see above and the Tribunal's reasons at paras 29, 32, 35-36. 31 By s 360 of the Migration Act 1958 (Cth), the Tribunal must invite an applicant to appear to give evidence and present arguments 'relating to the issues arising in relation to the decision under review'. The right to do so would be empty if particular issues only emerged after the hearing. As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]: The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are 'the issues arising in relation to the decision under review'. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 32 The primary judge found that it was not appropriate to suggest that in dismissing the visa application the delegate implicitly accepted the applicant's claims. Further, that the delegate's decision, when read as a whole, reveals that the delegate did not accept Mr Zhuang's claims or at least found them deficient: at [15]. The primary judge also referred to the general statements made by the Tribunal member at the outset of the hearing. With respect, those statements did not identify that there was an issue as to whether Mr Zhuang's account was to be accepted. Nor, for the reasons I have given, was there any suggestion that the delegate did not accept Mr Zhuang's account. On the contrary, the delegate acted by having regard to the appellant's account. 33 It was procedurally unfair for the Tribunal to conduct the hearing without providing any indication that despite the fact that the delegate had proceeded on the basis of Mr Zhuang's account, the Tribunal may not accept the credibility of that account. For the purposes of Mr Zhuang's application the natural justice hearing rule was exhaustively stated in the Migration Act: s 357A. Under those provisions, by reason of the terms of s 360, he was entitled to know the issues in relation to the decision under review. It was a breach of that provision and procedurally unfair not to put Mr Zhuang on notice that there was an issue as to whether his account may be accepted so that Mr Zhuang may have a reasonable opportunity to respond and to provide further evidence. The first ground of appeal is made out.

Ground 2: Alleged unreasonableness 34 Ground 2 in the notice of appeal was not pressed at the hearing of the appeal.

Grounds 3 and 4: Alleged failure to consider important claims 35 A failure to respond to a substantial, clearly articulated argument relying upon established facts may amount to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [24]-[26] (Gummow and Callinan JJ, Hayne J agreeing); and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), [105] (Nettle and Gordon JJ). 36 The appellant has demonstrated that the matters the subject of grounds 3 and 4 were included in his submissions but were not expressly addressed by the Tribunal. However, failure to consider a peripheral matter is not a failure to consider a substantial argument. The matters relied upon by grounds 3 and 4 were not important to the claim that Criterion A had been met. It required Mr Zhuang to show that he was not the holder of a substantive visa because of factors beyond his control. 37 Ground 3 concerned Mr Zhuang's claim that he had insufficient energy levels to continue with his studies. Ground 4 concerned his claim that he had been diligent in pursuing his studies before he ceased holding his student visa. These matters do not explain why he did not apply for a temporary business visa before his student visa expired or why the making of the application was beyond his control. At best, they are part of his explanation as to why he did not seek to renew his student visa. They may be matters that support the overall veracity of his account. In that respect they are matters to which reference might have been made if the Tribunal had told Mr Zhuang that the credibility of his account was in issue. However, that aspect has been addressed by upholding ground 1. 38 For the above reasons, grounds 3 and 4 have not been made out.

Ground 5: Discretion to refuse relief on the basis of alleged lack of utility 39 It was accepted by counsel for the Minister that the issue that had been raised before the primary judge concerned the refusal of relief in the exercise of discretion on the basis that there was no realistic possibility of a different outcome. Although there was some reference to materiality in the written submissions, counsel quite properly conceded that materiality was not a matter raised before the primary judge. 40 The concession was properly made because, for the following reasons, materiality was a matter that would have gone to whether there was jurisdictional error and was not put in that way to the primary judge. 41 In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, the majority comprising Kiefel CJ, Gageler and Keane JJ held that ordinarily a statute is to be interpreted as incorporating a threshold of materiality in the event of non-compliance: at [29]. Therefore, an immaterial breach of a statutory condition to the exercise of decision-making power is not jurisdictional. Further, the statutory threshold of materiality 'would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made': at [30]. 42 An example given in Hossain of an instance where the error was not material was where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of the possibility of a successful outcome. Similarly, in SZMTA it was held that conduct is only material and therefore jurisdictional if compliance with the requirement could realistically have resulted in a different decision: at [38], [44]-[45] (Bell, Gageler and Keane JJ). 43 Much earlier, in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, the High Court had held that where in the context of an appeal it is claimed that there has been a denial of procedural fairness then in order to obtain a retrial: 'All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome': at 147. 44 The principle in Stead came to be applied in cases where relief for jurisdictional error by reason of procedural unfairness was sought. So, for example, in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [55]-[56], Gageler and Gordon JJ said: The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration. Such a breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of 'the possibility of a successful outcome' [citing Stead]. 45 By the time of Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236, delivered shortly after Hossain, the High Court observed in the context of considering whether to order a retrial that the principle stated in Stead applies where review is sought on the basis of jurisdictional error. The Court said at [38]: The catch-all, 'on any other ground', includes circumstances of a denial of procedural fairness. Those circumstances were not encompassed by the equivalent South Australian rule that was in force at the time of this Court's decision in Stead v State Government Insurance Commission. Nevertheless, the common law applied in that case, and the earlier case of Balenzuela v De Gail, contains an equivalent requirement to a 'substantial wrong or miscarriage' before the power to order a new trial would arise. That requirement, reflected also in the usual requirement before an error will be considered to be jurisdictional and certiorari will lie, is that the error must usually be material in the sense that it must deprive the party of the possibility of a successful outcome. 46 The Court then quoted the passage from Stead already set out above. The Court then said at [39]: The denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome. Unless the other party can show some reason for the exercise of discretion not to order a new trial, the power will be exercised to order a new trial. One reason that might sometimes be sufficient, and upon which the respondent relied, is where no useful result could ensue because a properly conducted trial will not make a difference. 47 Then in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, the High Court dealt with the related concepts of materiality and futility in the following way at [66]: … for a finding of jurisdictional error, materiality requires consideration of (i) whether the conduct involved a fundamental irregularity [citing Hossain], or, if not, (ii) whether, despite the unfairness or unreasonableness, the result would not inevitably have been the same or, put another way, there was a possibility of a successful outcome [citing WZARH, Hossain and Stead]. There may, however, be circumstances where a discretion might nevertheless be exercised to refuse a new hearing, including practical reasons that have subsequently arisen that would make a new hearing futile [citing Nobarani v Mariconte]. 48 It is conceivable that a breach of procedural fairness in the exercise of a statutory power to make a decision may be material in the sense that there was a failure to conform with the obligation to afford procedural fairness in a manner that was capable of having an operative effect on the result, but nevertheless did not affect the outcome because the challenged decision was inevitable for other reasons. In other words, the failure to afford procedural fairness: (a) may not itself have had any direct effect (in which case, it would not be material); or (b) may have been irrelevant because, for an entirely independent reason, the outcome would have been the same (a matter going to discretion). In the latter instance, there may be jurisdictional error by reason of a material failure to afford procedural fairness, but relief is still refused in the exercise of discretion because it would serve no purpose, sometimes described as a lack of utility or futility. 49 Generally speaking, materiality is a question of fact to be determined by looking back at what occurred in the making of the decision and considering whether there was a realistic possibility that the Tribunal's decision could have been different if the denial of procedural fairness had not occurred: SZMTA at [45]-[49] (Bell, Gageler and Keane JJ). On the other hand, relevantly for present purposes, discretion looks forward to whether the relief if granted would have utility in the sense that there is a realistic possibility as to an overall successful outcome for the applicant for review if relief was granted requiring reconsideration. 50 As I have noted, in the present case it was not claimed that the alleged jurisdictional error, if established, was not material. Rather, it was said, for an entirely separate reason unrelated to the matters providing the foundation for the claimed jurisdictional error (and not considered by the Tribunal), that it was inevitable that Mr Zhuang's application had to be refused. That was to invite the Court to refuse to grant relief on a discretionary basis. 51 Before the primary judge, it was submitted for the Minister that any relief would be futile because Mr Zhuang could not demonstrate compliance with Criterion B. As has been noted, the issue of compliance with that criterion was not addressed by the delegate or by the Tribunal in its reasons for decision. The issue of Criterion B arose in the course of the Tribunal hearing but only as to whether Mr Zhuang had the requisite skills prior to the expiry of his substantive student visa. The different point made before the primary judge was that one of the matters that a party had to demonstrate in order to obtain a temporary business visa was that the person had an approved business sponsor. There was no dispute that, at the relevant time, Item 457.223(1) and (4) of Schedule 2 of the Migration Act imposed that requirement. 52 However, Criterion B did not require a visa applicant to have actually taken the particular steps required to obtain a visa. Rather, Criterion B required that 'the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive … visa'. Therefore, the criterion was itself framed in terms where it was to apply where there had been no application. It required consideration of an hypothetical, namely what would have occurred if the present visa applicant (applying after the substantive visa had expired) had actually made the application just before the visa expiry. In this case, on a date in 2009. 53 Therefore, inherent in the hypothetical is the making of an application. A party making such an hypothetical application would have been aware of the need for an approved sponsor and would have obtained one if they were able to do so. Therefore, on its proper construction, the provision required a consideration as to whether, if an application had been made on the relevant date in 2009, it could have been supported by an approved sponsor. That was a factual question which required a consideration of the position of Mr Zhuang many years earlier. It was an inquiry which was never part of the issues considered by the delegate or the Tribunal. 54 It may be that Mr Zhuang is able to demonstrate that he could have obtained a sponsor if he had made his application on the date in 2009. That is a matter that is entrusted to the Tribunal for determination. It was not for the primary judge, or this Court on review, to form a view as to whether that was the case. 55 I do not accept the submission for the Minister that in order to satisfy Criterion B, applicants such as Mr Zhuang have to demonstrate that, in fact, prior to the relevant date (in this case a date in 2009) they had in place an approved sponsor. Securing an approved sponsor is part of what would be done in order to bring an application. It is not something that would have been done if an application had not been made, being the premise upon which Criterion B operates. It would be self-defeating if a person had to have taken a step that would only be taken if an application was in fact being made in order to meet a criterion that, on its face, applies where such an application has not been made. 56 Therefore, the primary judge was in error in finding that there would be no utility in granting the relief sought.

Costs and final orders 57 For the above reasons, the appeal should be allowed. The decision of the primary judge should be set aside and in lieu thereof there should be orders allowing the application for review and orders remitting the matter to the Tribunal for determination according to law. 58 Mr Zhuang sought an order that the remittal of the matter be to the Tribunal differently constituted. No submissions were advanced opposing that order. Where, as here, the Tribunal has made adverse findings as to the credibility of the account given by the applicant for review and has done so without affording procedural fairness, it is appropriate that the relief provide for the Tribunal to be differently constituted at the time of reconsideration in accordance with the orders of this Court. 59 It was accepted that costs should follow the event. There should be orders in favour of Mr Zhuang in respect of the costs of the appeal and the costs before the primary judge. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.