FQI17 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1452
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FQI17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1452
File number: SYG 3971 of 2017 Judgment of: JUDGE FORBES Date of judgment: 5 September 2025 Catchwords: MIGRATION – protection visa – judicial review of decision of Administrative Appeals Tribunal - where Minister concedes Tribunal was non-compliant with s 424A of the Migration Act 1958 (Cth) – whether error is jurisdictional – whether materiality is relevant - whether error leads to practical injustice – where relief is discretionary - whether useful result could ensue if the application were allowed – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 65, 359A, 424A, 424AA, 476(1)
Migration Regulations 1994 (Cth) cl 785.221(2) of sch 2
Cases cited: DBF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1496
DME16 v Minister for Immigration and Border Protection [2019] FCA 2135
DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; (2024) 98 ALJR 610
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration, Citizenship and Cultural Affairs v Qazizada [2024] FCA 989
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon (2023) 298 FCR 400; [2023] FCA 717
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; (2021) 390 ALR 590; [2021] HCA 17
Naikar v Minister for Immigration and Border Protection [2019] FCA 502
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 232 FCR 282; [2009] FCA 486
SZVSP v Minister for Immigration (2016) 309 FLR 476; [2016] FCCA 1339
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 238 FCR 588
Division: Division 2 General Federal Law Number of paragraphs: 104 Date of last submission/s: 19 September 2024 Date of hearing: 19 September 2024 Place: Melbourne Representative for the Applicant: Self Represented Counsel for the First Respondent: Mr Hibbard Solicitor for the First Respondent: Sparke Helmore Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3971 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FQI17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The application seeking judicial review of the decision of the Administrative Appeals Tribunal made on 30 November 2017 is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 26 August 2015, a delegate of the Minister refused to grant the applicant a Temporary Protection (Class XD) visa pursuant to section 65 of the Migration Act 1958 (Cth) (Act). The applicant sought review of that decision, and on 30 November 2017 the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision.
By an application dated 20 December 2017, the applicant seeks judicial review of the Tribunal’s decision. The applicant raises two unparticularised grounds of review being that the “AAT did not afford me procedural fairness” and the “AAT applied the wrong legal test”. The application for review does not articulate any basis for these claims, nor did the applicant do so in his written or oral submissions to the court.
The Minister submitted that the asserted grounds do not establish jurisdictional error and that the application should be dismissed as unmeritorious.
However, acting as a model litigant, the Minister identified error in the Tribunal’s reasons, that being a failure by the Tribunal to comply with section 424A of the Act. As I explain in more detail below, that provision requires the Tribunal to give an applicant written notice of any information which would be a reason for affirming the delegate’s decision and to afford the applicant an opportunity to comment upon or respond to it. In this case, the Tribunal found inconsistencies in the applicant’s evidence upon which it then relied to make adverse findings about his credibility. The Minister concedes that the Tribunal was obliged by s 424A to raise these inconsistencies with the applicant and that it failed to do so in the manner prescribed by the legislation.
The Minister concedes that this court is bound to follow High Court authority which has held that non-compliance with the procedural requirements of s 424A is per se jurisdictional error and that there is no “materiality” threshold to be met.
Notwithstanding the concession that the Tribunal fell into jurisdictional error, the Minister submits that it remains open to this Court to exercise its discretion to refuse the applicant prerogative relief when it would be inutile to do so. The Minister submits that this proceeding presents an occasion for the court to refuse relief because compliance with s 424A could not have made any difference to the outcome.
For the reasons set out in this judgment and based on the Minister’s concession, I have concluded that I must find jurisdictional error by reason of the Tribunal’s non-compliance with s 424A. However, I have also concluded that no useful result could ensue[1] by remitting this application to the Tribunal for redetermination. In my view, having regard to the particular circumstances of this case, the court should exercise its discretion not to grant the relief sought by the applicant.
[1] SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [28] citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400.
BACKGROUND
The applicant is a Sri Lankan national. He arrived in Australia by boat in 2012 and was granted a Bridging visa E on 23 October 2012. On 3 December 2012, the applicant applied for a Protection (Class XA) (Subclass 866) visa. However, the application was converted to a Temporary Protection (Class XD) (Subclass 785) visa application following the introduction of legislative amendments to the Act and the Migration Regulations 1994 (Cth) (Regulations) in 2014.
On 26 August 2015, a delegate of the Minister refused to grant the visa. The applicant claimed that he would suffer discrimination and physical harm in Sri Lanka because of his Tamil ethnicity and imputed involvement with the Liberation Tigers of Tamil Elaam (LTTE). Additionally, the applicant claims he has an outstanding legal matter relating to an earlier attempt to depart Sri Lanka illegally and fears that if he is convicted of these charges he will be fined and sent to prison”[2]. The delegate found that the applicant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act.
[2] CB 85.
On 25 September 2015, the applicant,with the assistance of a registered migration agent, applied to the Tribunal for review of the delegate’s decision.
On 8 June 2017, the applicant was invited to attend a hearing before the Tribunal scheduled for 19 July 2017. The applicant was also invited to provide submissions prior to the hearing.
On 18 July 2017, the applicant’s representative provided the Tribunal with updated submissions on the applicant’s claims. Annexed to the submissions was an English translation of court documents in relation to charges against the applicant[3]. The court documents were submitted to support the applicant’s claims that there were outstanding legal proceedings against him as a result of an earlier attempt to illegally depart Sri Lanka. The submissions also claimed that in October 2012 the applicant’s aunt appeared in court in Sri Lanka on behalf of the applicant. As he had not appeared in court at that time, the applicant was charged with attempting to leave Sri Lanka illegally, and a court date was set for February 2013[4].
[3] CB 198-211.
[4] CB 176.
On 19 July 2017, the applicant appeared via video link at a hearing before the Tribunal. The applicant’s legal representative and an interpreter also appeared at the hearing.
On 1 August 2017, the Tribunal provided a copy of the audio recording of the hearing to the applicant’s representative. On 4 August 2017, the applicant’s representative provided further submissions based on the issues that arose as identified by the Tribunal during the hearing.
Tribunal decision
On 30 November 2017 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The Tribunal considered the applicant’s claims and gave detailed reasons as to why it found that Australia did not owe the applicant protection obligations or complementary protection obligations.
The Tribunal’s reasons run to 19 closely-typed pages. The Tribunal considered each of the applicant’s claims that he was at risk of serious or significant harm if returned to Sri Lanka because of his Tamil ethnicity [19]-[27], his suspected involvement with the LTTE [28]-[35], his fear of being harmed by “grease men” [36]-[38], because as a fisherman he would be impacted by the construction of a navy camp in the local area [39]-[40], his being the subject of extant legal proceedings due to an attempted illegal departure from Sri Lanka in 2012 [41]-[89] and due to his status as a failed asylum seeker [90]-[110].
As will be self-evident from the length of the reasons, the Tribunal traversed the applicant’s written and oral evidence, the documentation on which he sought to rely and an array of country information. The Tribunal recorded its questioning of the applicant and his answers, finding that his evidence was confusing and inconsistent, was in part is not credible and that at least one of the documents on which he sought to rely (a document from the Chief Magistrates Court in Sri Lanka) was fraudulent.
Relevantly, from [41] to [89] the Tribunal explored and considered the applicant’s claim that he had been detained overnight and appeared in court in relation to a failed attempt to leave Sri Lanka in late May 2012. The applicant claimed that there were a number of court hearings relating to this alleged offence prior to and following his departure from Sri Lanka and that he remained at risk of serious or significant harm because he had failed to attend court to face the charges. This particular issue had been the subject of oral and written submissions to the delegate and again to the Tribunal. Based on the reasons, it was also the subject of considerable discussion between the Tribunal member and the applicant and his representative at the hearing on 19 July 2017.
The Tribunal did not find the applicant’s evidence regarding his claimed attempt to leave Sri Lanka illegally in May 2012 to be credible [61]. It found that the applicant’s evidence regarding the progress of the alleged case was “confused and contradictory” [62] and that he had provided differing accounts about hearing dates, visits to his home by the police and other matters [63]-[68]. The Tribunal found that a supporting statement prepared by the applicant’s father contained false evidence and had been procured by the applicant to support his claim for protection [70]. The Tribunal found that a court document provided in support of his claim regarding the alleged attempt to leave Sri Lanka illegally was fraudulent [75], [87]. The Tribunal was not persuaded that the applicant had given honest evidence [67], that his account of the claim was manufactured [73] and untrue [74], that he was willing to manufacture false evidence [70] and that his claim to have a case still pending in Sri Lanka was concocted [72].
The main focus of this judicial review application is centred around an apparent error at [66] – [68] of the Tribunal’s reasons, as will be outlined below.
APPLICATION FOR JUDICIAL REVIEW
The applicant’s grounds of review, as set out in his application dated 20 December 2017, are vague and unparticularised. Verbatim, the applicant alleges:
1. The Administrative Appeals Tribunal did not afford me procedural fairness
2. The Administrative Appeals Tribunal applied the wrong legal test.
Prior to the hearing, the applicant and the Minister filed written submissions and the Minister filed a Court Book.
For the most part, the applicant’s written submissions did not engage with the Tribunal’s reasons, nor did they explain how the Tribunal had fallen into jurisdictional error. The applicant asserted that he had told the delegate about his arrest by the Sri Lankan authorities, that he had provided evidence about that request but he did not believe that it was looked at by the Tribunal. The applicant also asserted that at the time of the hearing he did not have enough time to provide evidence. Otherwise, the applicant’s written submission was directed to other matters, including the claim that his father had recently gone missing after participating in a protest, a restatement of his claim that Sri Lanka was not safe for Tamils and assertions about the state of his mental health and his ongoing fear of being harassed, abused or even killed if returned to Sri Lanka.
The Minister’s written outline of submissions contended that the applicant had failed to identify any jurisdictional error. However, the Minister went on:
12. As model litigant, the Minister raises for the Court’s consideration an apparent error by the Tribunal, concerning the requirements of s 424A of the Act.
13. Section 424A provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
14. The Tribunal’s decision relied in part on adverse conclusions it made about the applicant’s credibility. The Tribunal reached those conclusions based on inconsistencies between evidence the applicant provided orally to the delegate and to the Tribunal. At [66]-[68] of its decision record, the Tribunal stated (emphasis added):
[66] I also note that the applicant claimed at the hearing that the police came to his home a few days after a hearing of his case in February 2013 and his family told him about this in a telephone call shortly afterwards. This is at odds with his evidence during his interview with the delegate in August 2013 when he said that he was not aware of any attempt by the authorities to contact him after he left Sri Lanka.
[67] In considering this issue I have also noted the applicant's evidence at the hearing that his family told him about the police visit after his interview with the delegate. I find this his inconsistency a further indication that he has not provided honest evidence regarding claimed attempt to leave Sri Lanka illegally in 2012.
[68] In a submission provided following the hearing the applicant's representative noted that the affidavit from his father provided to the Department prior to the delegate's interview confirmed that the police were looking for the applicant and submitted that he had failed to mention the police visit during his interview with the delegate because he believed he had already provided this information. I do not accept this explanation. The affidavit suggests that the police came looking of the applicant several times prior to 2 September 2012 which is at odds with the applicant's claim that the police only came looking for him once and that occurred around February 2013.
15. What the applicant said to the delegate – that he was not aware of any attempt by the authorities to contact him after he left Sri Lanka (the underlined part of the extract above)[5] – constituted “information” for the purposes of s 424A. The material was information “that was provided orally by the applicant to the Department”, and in those circumstances the information is not excluded from the operation of s 424A by reason of s 424A(3)(ba).
[5] The relevant “information” is this statement to the delegate, and not the Tribunal’s belief that there was an inconsistency between the applicant’s statement and his subsequent evidence to the Tribunal: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [16]-[19] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ).
16. It can be inferred that the Tribunal must have considered that the information “would be the reason, or a part of the reason, for affirming the decision that is under review” (s 424A(1)(a)). That is because the information, in isolation from any inconsistency issue, would itself have harmed the applicant’s case.[6] The Tribunal was accordingly obliged to “give to the applicant, in the way that the Tribunal consider[ed] appropriate in the circumstances, clear particulars of” that information (s 424A(1)(a)).
[6] See SZVSP v Minister for Immigration [2016] FCCA 1339 at [37] (Judge Driver). Cf Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [24] (French CJ, Heydon, Crennan, Kiefel and Bell JJ).
17. In order to provide clear particulars of that information for the purpose of s 424A, the Tribunal was required either:
(a) to provide a written invitation in that regard under s 424A(2); or
(b)to provide clear particulars of the information to the applicant orally during the hearing, in which case the Tribunal must invite the applicant to comment on or respond to the information or advise him that he could have additional time to do so (s 424AA).
18. The Tribunal did not provide a written invitation in accordance with s 424A(2). And although the Tribunal put the issue to the applicant during the hearing, the Tribunal does not appear to have complied with its obligations under s 424AA.
19. Even though the Tribunal did not comply with s 424A (or s 424AA) in respect of the applicant’s statement to the delegate, the applicant’s representative provided detailed submissions about that information after the Tribunal’s hearing. Further, the representative did so after apparently receiving a copy of a recording of the interview with the delegate (CB 222).
20. The submissions commence at CB 225. At [15]-[27] of the submissions (CB 227-229), the representative set out detailed submissions addressing the circumstances in which the applicant told the delegate that he was not aware of any attempt by the authorities to contact him after he left Sri Lanka. The Tribunal took those submissions into account in reaching its decision (at [68]).
21. Accordingly, the Court should conclude that the applicant did all that he would have done had the Tribunal complied with its obligations under s 424A – that is, it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made[7].
[7] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [16].
Hearing
The parties came before me on 19 September 2024. The applicant appeared with the assistance of a Tamil interpreter. Mr Hibbard of counsel appeared for the Minister.
As is my usual procedure with self-represented applicants, I explained the course the hearing would follow, including the order of oral submissions and the applicant’s right of reply. I informed the applicant that the Court could not reconsider the merits of his application or the Tribunal’s decision or grant the applicant the visa that he seeks. I explained that the role of the Court was restricted to determining whether the Tribunal had made an error in arriving in its decision, by exceeding or misunderstanding its statutory authority. I was satisfied that the applicant understood the explanation and I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.
The applicant confirmed that he had received a copy of the Court Book and the Minister’s written submissions.
Applicant’s submissions
The applicant’s submissions, both written and oral, can be summarised as follows.
The applicant said that if he is returned to Sri Lanka he will be put into custody, as there are still outstanding legal proceedings against him. He said that he presented his evidence to the Tribunal and they did not believe it. The applicant stated that during the Tribunal hearing, he had told the Tribunal that if he was to pay money to the police in Sri Lanka they would release him from custody. In the applicant’s opinion, the Tribunal was wrong to conclude that the applicant’s life is not in danger because he may be able to evade custody.
The applicant stated that he had evidence regarding his arrest and charges that he could submit to the Court, including video footage and newspaper articles. I clarified with the applicant whether this information was provided to the Tribunal at the time of his application. The applicant said that he was not able to collect all the information in time, and therefore was unable to submit it to the Tribunal. The applicant said he had requested the Tribunal to grant him an extension of time to submit further information but it had declined.
The applicant added that his father had gone missing in Sri Lanka in May 2024. The applicant said that his father had been in a protest, had been questioned by the authorities and then taken away. At this point during the hearing, the applicant became very emotional, and I adjourned Court to provide the applicant with a short break.
After the adjournment, I asked the applicant to inform the Court what errors he believes the Tribunal made in its decision. The applicant said that the Tribunal did not take his arrest or his safety seriously, and it was wrong to conclude that the applicant would not be in danger in Sri Lanka. The applicant also blamed his father’s disappearance on the Tribunal, stating that if the Tribunal had handled his case properly, his father would not have gone missing.
Minister’s submissions
The Minister firstly responded to the matters raised in the applicant’s oral submissions. Regarding the applicant’s father’s disappearance, the Minister submitted that, while distressing for the applicant, it cannot impact the Tribunal decision which is the subject of the review before the Court. I accept that submission.
In response to the applicant’s alleged “new evidence” regarding his arrest, the Minister reiterated that this information was not before the Tribunal, and it is unclear whether it existed at the time of the Tribunal’s decision. In any event, throughout the Tribunal review the applicant was represented by experienced lawyers and migration agents who provided submissions and evidence and attended the hearing with the applicant. The Minister argued that the applicant had been afforded ample opportunity to provide evidence, given that the original visa application was made in 2012, the Tribunal hearing was in July 2017 and the Tribunal’s decision was made in November 2017.
Regarding the applicant’s statement to the effect that the Tribunal didn’t take the fact of his arrest seriously, the Minister submitted that no error is revealed on a fair reading of the Tribunal’s reasons and that the applicant is seeking impermissible merits review.
The Minister then responded to the applicant’s references to the Tribunal’s reasoning that he would be able to pay the police to evade custody. The Minister said that this matter was addressed at [95] of the Tribunal’s reasons, where the Tribunal noted that people who are charged with illegal departure are usually fined as a deterrent if they plead guilty. If they do not plead guilty, they are usually released on bail on the basis of personal surety. The Minister submitted that there is no error with the Tribunal’s reasoning at [95].
Findings on the pleaded grounds
The applicant has not persuaded me that he was denied procedural fairness for the reasons he claims or that the Tribunal applied any wrong legal test. The applicant’s grounds of review are generalised and unparticularised and his submissions did not shed any further light on them. The applicant did not point me to jurisdictional error. I consider the application for review has been advanced in the hope that the court will engage in a merits review of the Tribunal decision. That is not the Court’s task.
Although I see no merit in the application as pressed by the applicant, I must turn my attention to the error which was identified and conceded by the Minister.
The s 424A error
In the course of his oral submissions, Counsel for the Minister explained the reason why the Minister had conceded a failure by the Tribunal to comply with its obligations under s 424A of the Act. That explanation reinforced the explanation in the Minister’s written submissions (extracted above).
The Minister submits that the conundrum for the court in this case is to decide what follows from the Tribunal’s error.
The Minister explained that the Tribunal’s error arises from its reliance on adverse conclusions it made about the applicant’s credibility. Those conclusions were based on inconsistencies between the evidence the applicant provided orally to the delegate at an interview in August 2013 and his evidence to the Tribunal during the course of its hearing. At the delegate interview the applicant said that he was not aware of any attempt by the authorities to contact him after he left Sri Lanka. However, during the Tribunal hearing the applicant disclosed that he had been told by family members that the police were looking for him and had visited his home several times. The Minister conceded that the inconsistency between what the applicant had told the Tribunal and what he had previously told the delegate would have been a reason, or part of the reasons, for affirming the decision under review and thereby should have triggered the Tribunal’s obligation under s 424A.
The Tribunal did not provide a written invitation to the applicant to comment upon inconsistencies in the evidence he gave to the Tribunal and what he had stated to the delegate during his interview in August 2013. In that respect, the Tribunal failed to comply with its obligations under s 424A. Further, although the Tribunal did put the inconsistency to the applicant during the oral hearing, the Tribunal did not provide clear particulars or invite the applicant to comment on or respond to it or advise him that he could have additional time to do so as required by section 424AA of the Act.
The Minister submits, however, that notwithstanding this non-compliance, the applicant’s representative provided detailed post-hearing submissions to the Tribunal about the applicant’s statement to the delegate. Those submissions were prepared after the applicant’s representative had received a copy of a recording of the interview with the delegate. Thirteen (13) paragraphs of those post-hearing written submissions addressed the circumstances in which the applicant had told the delegate that he was not aware of any attempt by the authorities to contact him after he left Sri Lanka. Critically, the Tribunal’s reasons reveal that it took those submissions into account in reaching its decision (at [68]).
The Minister submits that the Tribunal’s non-compliance with ss 424A and 424AA did not lead to any practical unfairness or injustice. The applicant was ultimately afforded an opportunity to address the inconsistencies in his evidence, just as what would have occurred if the Tribunal had complied with the statutory obligation to give notice. The Minister submits that the applicant effectively did what he would have done if there had been no error and that the court should conclude that the outcome would inevitably have been the same if the error had not been made.
The Minister submitted that in other circumstances he would argue that the identified error was not material and therefore not jurisdictional, relying on recent High Court authority such as Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; (2021) 390 ALR 590; [2021] HCA 17, Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26; and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610.
The Minister submitted, however, that the “materiality” argument was not open due to prevailing High Court authority which stands for the proposition that any breach of s 424A constitutes jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.
SAAP (which I discuss in more detail later) was decided by the High Court prior to its recent jurisprudence which introduced an implied materiality threshold in the assessment of whether error is jurisdictional. The Minister acknowledged that the judgment in SAAP which found that a breach of s 424A was per se jurisdictional, sat uncomfortably with the courts’ more recent approach to the assessment of error.
The Minister noted that the tension between SAAP and the High Court’s later reasoning in materiality cases had confronted Wigney J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon (2023) 298 FCR 400; [2023] FCA 717. In that case his Honour considered himself bound by SAAP, finding that until it was expressly overruled by the High Court, non-compliance by the Tribunal with s 424A must be taken to be jurisdictional error which results in the invalidity of the Tribunal’s decision[8].
[8] Antoon at [82].
Although the Minister formally submitted that SAAP and Antoon were wrongly decided, at least to the extent that they establish that even an immaterial breach of s 424A results in jurisdictional error, the Minister accepts that this Court is bound by those decisions.
Notwithstanding all of the above, the Minister submits that there is a principled and practical approach to resolve the conundrum.
If the court accepts that remitting the application for a fresh hearing before a differently constituted Tribunal is only going to produce the same result, the Minister submits that it is open to the court to exercise its discretion not to grant relief to the applicant. The Minister submits that the grant of constitutional writs is a matter of discretion and that the discretion ought not be exercised if no useful result could ensue or the circumstances do not make it just: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28].
The Minister submits that a long line of authority which reinforces the discretionary nature of prerogative relief in cases of jurisdictional error, has not been disturbed by SAAP. Perram J recently opined to that effect in obiter in Minister for Immigration, Citizenship and Cultural Affairs v Qazizada [2024] FCA 989.
The Minister submits that I should find that the Tribunal’s contravention of s 424A did not meet the threshold of materiality as described in recent High Court jurisprudence such as LPDT, in the sense that the decision of the Tribunal would not have been any different had the error not occurred. It is submitted that such a finding would justify the court exercising its discretion to decline the relief sought by the applicant. On that basis it is submitted the application should be dismissed.
CONSIDERATION
SAAP
In SAAP the majority (McHugh, Kirby and Hayne JJ) held that the Refugee Review Tribunal had breached s 424A, that the breach gave rise to a jurisdictional error and that there were no grounds to exercise the court’s discretion to refuse to grant relief.
McHugh J held that the language, scope and object of the Act made clear that compliance with s 424A was an imperative and mandatory duty, such that non-compliance would mean the Tribunal had not discharged its statutory function. His Honour reasoned that, because Parliament had made s 424A “one of the centrepieces of its regime of statutory procedural fairness” the “best view of the section is that failure to comply with it goes to the heart of the decision-making process”. It followed that “a decision made after a breach of s 424A is invalid”[9].
[9] SAAP at [77].
Hayne J similarly emphasised the imperative language in s 424A of the Act. At [208] Hayne J stated:
Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.
Kirby J essentially agreed with Hayne J holding that, because of the mandatory language of s 424A, any breach is sufficient to constitute jurisdictional error.
Each of the three justices also found no reason to refuse relief to the applicant on discretionary grounds. There was no evidence of delay, waiver, acquiescence or unclean hands. The court found that even if the applicant was aware of and had an opportunity to address the relevant issue, that was not a consideration which bore on an “invalid decision”.
Antoon
In Antoon, the primary judge in this court found that the Tribunal had failed to comply with section 359A (the cognate provision to s 424A) but was emphatically of the opinion that the error would have made no difference to the overall outcome of the review. Although the Minister submitted that the breach was therefore not material and not jurisdictional (MZAPC), the primary judge considered himself bound to follow two judgments of the Federal Court: SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 232 FCR 282; [2009] FCA 486 and DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 which had each followed and applied the earlier decision of the High Court in SAAP.
In the appeal before Wigney J, the central question raised by the Minister was whether the primary judge was in error in finding that any failure to comply with s 359A of the Act constitutes a jurisdictional error, or whether only those failures that are material to the outcome of the decision constitute jurisdictional error. The Minister also contended that that the primary judge erred by failing to consider whether to exercise his discretion to refuse to grant relief to Mr Antoon on the basis that no useful result could ensue if the relief were granted.
As in the present case, the Minister contended that only material breaches of s 359A of the Act constitute jurisdictional errors. The Minister relied, in support of that submission, on a number of relevantly recent “materiality” decisions of the High Court: Hossain, SZMTA, and MZAPC, albeit decisions that did not directly concern breaches of s 359A (or s 424A) of the Act.
The Minister submitted that the earlier decision of the High Court in SAAP did not squarely address whether a breach of ss 359A or 424A of the Act would only constitute a jurisdictional error if it was a material breach, being breaches that, if they had not occurred, could have made some difference to the relevant outcome. In the Minister’s submission, while the decision in SAAP had not been expressly overruled, it was nevertheless necessary to read it in light of the more recent authorities concerning materiality.
In their submission, the applicants in Antoon argued that SAAP establishes that any breach of s 424A of the Act constitutes jurisdictional error, irrespective of the materiality of the breach to the outcome of the review. Mr Antoon maintained that the primary judge was bound to follow SAAP, which had not been overruled and was still good law.
At [49], Wigney J posed the questions which fell for determination:
[49] As has already been noted, the central question raised by the appeal is whether a breach of s 359A of the Act only constitutes jurisdictional error in circumstances where the breach was a material breach, in the sense that if there had been no such breach, the outcome of the Tribunal’s review could have been different. The starting point, in answering that question, is to consider the decision in SAAP. Is SAAP authority for the proposition that any breach of s 359A constitutes a jurisdictional error, irrespective of the materiality of the breach; or is the issue of materiality not squarely addressed in SAAP? If the issue of materiality is not squarely addressed in SAAP, is it necessary to read SAAP in light of the subsequent High Court cases that deal squarely with that issue? Can SAAP, which does not appear to have been overruled, be reconciled with those later authorities concerning materiality?
These are the same questions which fall to be determined in this case, albeit with the benefit of further judicial consideration.
In Antoon, Wigney J noted that none of the majority in SAAP suggested in their reasoning that a breach of s 424A would only amount to a jurisdictional error if the breach was material, in the sense that, if there had been no such breach, the outcome of the Tribunal’s review could have been different. However, in a number of cases, all of which post-dated SAAP, the High Court has made it clear that a breach of a provision of the Act dealing with the Tribunal’s conduct of a review does not constitute a jurisdictional error unless the breach was material: Hossain, SZMTA, MZAPC, Nathanson, LPDT. None of those cases have concerned a breach of ss 359A or 424A of the Act, but the reasoning in those cases does not clearly exclude any provision of the Act from the general proposition.
Wigney J explored the anatomy of the High Court’s reasoning in each of the materiality cases. It is not necessary to do so again here, save to note that the tension between the “categorical and unconditional nature of the decision” in SAAP and the more recent materiality cases was not lost on his Honour or that a number of subsequent Federal Court judgments[10] had failed to resolve it satisfactorily.
[10] DME16 v Minister for Immigration and Border Protection [2019] FCA 2135 (Flick J), DYI16 (Wheelahan J); Naikar v Minister for Immigration and Border Protection [2019] FCA 502 (O’Callaghan J), DBF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1496 (Anastassiou J).
In Antoon, the Minister submitted that because no party in SAAP had argued that there was a threshold of materiality in the Act, it was open to the court to find that the later materiality cases had now done so. The Minister accepted however that SAAP had not been expressly overruled or qualified by any of the materiality decisions.
Despite there being a strong argument, as a matter of statutory construction, that the implication of a threshold of materiality should apply to all provisions within the Act, Wigney J held that it would be inappropriate for a single judge of the Federal Court (or even a Full Court) to impliedly overrule SAAP when the High Court had not expressly done so. At [92] of his reasons, Wigney J said:
There is undoubtedly a degree of tension between the decision of the majority justices in SAAP and the reasoning of the majority justices in Hossain, SZMTA and MZAPC. It is difficult to see any sound basis for concluding that the implication of the threshold of materiality would not apply in the case of breaches of ss 359A and 424A of the Act. Nevertheless, SAAP has not been overruled, expressly or impliedly, and remains authority for the proposition that a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision. Any tension or inconsistency between that proposition and the reasoning in Hossain, SZMTA and MZAPC must be resolved by the High Court, not a single judge of this Court.
Wigney J then turned to consider the Minister’s alternative ground, namely that the primary judge should have but failed to consider whether, as a matter of discretion, not to grant the applicant prerogative relief.
Wigney J found that the issue concerning discretionary refusal of relief was not squarely raised before the primary judge, but held that it was nevertheless incumbent on the court below to consider whether it was or was not appropriate to exercise the discretion to grant or withhold the relief sought by the applicants. That is because the discretionary nature of the relief attended the jurisdiction conferred on the primary judge by s 476(1) of the Act. Further, the obligation on the primary judge to consider whether to withhold relief on discretionary grounds was particularly acute given his Honour’s emphatic finding that the Tribunal’s error “would have made no difference to the overall outcome”.
Wigney J found at [142] that the primary judge’s finding that strict compliance by the Tribunal with s 359A of the Act could not have made a difference to the outcome of the review, meant that the Tribunal’s breach of s 359A was, in the particular circumstances of the case, “technical and immaterial” and that there was no “unfairness or practical injustice” to the applicants. Because the result of a remittal to the Tribunal would almost certainly be the same, it would have been inutile to grant the relief sought by the applicants.
The critical question is whether the Court can be positively satisfied that compliance with the relevant obligation “could not have made any difference”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
Qazizada
An important aspect of the Minister’s concession in the present case is that the court is bound by SAAP and Antoon. At [24] of the written outline, the Minister goes on to add:
The Minister further submits that the Tribunal’s decision was affected by the error identified above, such that there is no independent basis on which to conclude that the Tribunal’s decision is not affected by jurisdictional error[11]
[11] Cf Minister for Immigration, Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989 at [24]-[25] (Perram J).
By that statement, the Minister sought to draw a distinction between the circumstances in the present case and those which confronted Perram J in the recent case of Qazizada.
In Qazizada, Perram J considered a matter where the applicant claimed that the Tribunal had not complied with the requirements of s 359A (as mentioned, a cognate provision to s 424A). His Honour considered whether a breach of that provision by the decision maker is a jurisdictional error where there are other independent bases on which the refusal of the visa could be justified.
From [21] Perram J opined:
[21] Consistently with common sense, it has been held by this Court that where there are several independent paths to affirming a decision under review, no jurisdictional error is shown by impugning only one of those paths: see, for example, VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (‘VBAP’) at [33] per North J, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 (‘VCAD’) at [22]-[23] per Gray J, [45] per Sundberg and North JJ; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (‘VUAX’) at 600-601 [55]-[57] per Kiefel, Weinberg and Stone JJ.
[22] On the other hand, in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 (‘SAAP’) the High Court held that a failure to comply with a cognate provision of the Act, s 424A, constituted a jurisdictional error. In that case, there was no issue raised about materiality. Subsequently, the High Court has held that in most cases an error is not jurisdictional unless it is material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134 [29] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 444 [44] per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at 521-22 [31]-[33] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at 102 [30] per Kiefel CJ, Keane and Gleeson JJ, 132 [121] per Edelman J; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at 614 [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (Beech-Jones J agreeing at 619 [38]).
[23]SAAP has not been overruled by the High Court. Since it pre-dates the discovery of materiality, it is not couched in terms which suggest that a breach of s 424A must be material. There is an interesting question as to whether this Court remains bound to conclude that a breach of s 424A (or s 359A) constitutes a jurisdictional error without any consideration of materiality. Wigney J reached the view that SAAP did have that effect in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; 298 FCR 400 (‘Antoon’) at 419 [92]-[96].
[24] However, neither SAAP nor Antoon was a case where the Tribunal had at least two independent reasons for affirming a decision under review, only one of which was impugned. I do not read SAAP or Antoon as saying anything about that question. Consequently, the matter is governed by VBAP, VCAD and VUAX. In this case, the Tribunal was expressly authorised to exercise the powers that had been exercised by the delegate: s 349(1) of the Act. The power exercised by the delegate was the power in s 65. Section 65(1) required the delegate (and hence the Tribunal) to refuse the grant of the visa unless satisfied that the requirements for that visa (including both the Australian relative and carer criteria) were satisfied. Having concluded that the carer criterion was not satisfied, the Tribunal had no power under s 65(1) to grant the visa and was required by s 65(1)(b) to affirm the delegate’s decision to refuse to grant it. The fact that it breached s 359A(1) in arriving at the conclusion that the Australian relative criterion was not satisfied can have no impact on the validity of its decision to affirm the decision to refuse the visa. By virtue of its conclusion that the carer criterion was not satisfied the Tribunal was under a legal duty arising from s 65(2) to affirm the delegate’s decision. This analysis is concerned with power and is unrelated to materiality. There was no jurisdictional error. It is true that an alternate path to that conclusion might lie in the parallel reasoning disclosed in the High Court’s decision in Hossain. However, since that case is concerned with materiality in the context of jurisdictional error, I would prefer not to reason in that fashion because of the uncertainty identified by Wigney J in Antoon concerning the operation of SAAP.
EAO22
The most recent occasion on which the tension between SAAP and the materiality cases was considered was in this court in EAO22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1336 (Judge Cleary).
In that case, Judge Cleary surveyed the judicial evolution described above in the context of a case where the applicant submitted that curial relief should be granted by reason of the Tribunal’s breach of s 424A. Questions arose as to:
(a)whether the principles of materiality applied where there was a breach of s 424A?
(b)whether there was an independent basis (or separate pathway of reasoning) for the Tribunal’s decision to refuse the visa, which is free of error and separate from the breach of s 424A? and
(c)if the Tribunal committed jurisdictional error, should the court exercise its discretion to refuse the relief sought by the applicant.
In EAO22, both parties accepted that there had been a breach of s 424A by the Tribunal. Where the parties differed was on whether the Court was required to assess if the non-compliance with s 424A was material before finding that the error of law was a jurisdictional error. The applicant submitted, relying on Wigney J’s judgment in Antoon, that the Court must find that non-compliance with s 424A is a jurisdictional error per se, rendering the Tribunal decision invalid regardless of whether the non-compliance with s 424A was material or not.
As in this case, the Minister made a formal submission that Antoon was wrong in relation to its finding that SAAP was authority for the proposition that want of compliance with s 424A renders a decision invalid without an assessment of the materiality of the non-compliance.
Judge Cleary found, as do I, that this Court is bound by Antoon and by the earlier High Court decision in SAAP. Absent clear High Court authority, it is not open to this court to hold that the materiality cases (Hossain, SZMTA, MZAPC, Nathanson, LPDT) apply to a breach of s 424A.
Judge Cleary then considered a submission by the Minister, based on Perram J’s judgment in Qazizada (which cited VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 238 FCR 588), that where there are separate and independent pathways for the Tribunal to affirm the delegate’s decision under review, jurisdictional error is not shown if only one of those pathways is impugned.
The Minister submitted that the Tribunal’s failure to comply with s 424A was only one pathway and that there was “another independent unimpugned pathway to affirming the delegate’s decision under review that was unaffected by that jurisdictional error”[12]. Judge Cleary accepted the argument and found that notwithstanding the breach of s 424A, there was no jurisdictional error because the Tribunal’s decision could be supported on an independent and alternative basis.
[12] EAO22, [73]
Judge Cleary accepted a submission from the Minister that the “modern” materiality analysis of the High Court is, “on close analysis, probably just an alternative path to the same destination as that decided in the earlier cases of VBAP, VCAD and VUAX”[13]. In reaching that conclusion, Judge Cleary considered himself bound by the observations of Perram J in Qazizada (as considered and persuasive obiter) and the earlier Federal Court decisions cited by him.
[13] EAO22, [89]
Returning to the present case
In this matter the Minister concedes that the Tribunal failed to comply with the obligation imposed on it by s 424A to give the applicant notice of relevant information and to afford him an opportunity to comment and respond. I am bound to follow SAAP and Antoon and must find that the error was jurisdictional and not subject to any materiality threshold.
Unlike Qazizada and EAO22, the present case is not one where the Tribunal’s reasons reveal a separate and independent pathway to affirm the delegate’s decision. The Minister conceded as much at [24] of his written outline of submissions. I must therefore find that the Tribunal’s decision was affected by jurisdictional error.
The remaining issue is whether I should, in the exercise of my discretion, refuse to grant the prerogative relief to which the applicant would otherwise be entitled.
The discretion to refuse relief is inherent in the Court’s power to judicially review an administrative decision. In Antoon, Wigney J held that the discretion to refuse relief was not enlivened only in circumstances where there was another independent reason for dismissing the review[14]. In other words, the discretion to refuse relief is not dependent on circumstances like those that underpinned Qazizada.
[14] Antoon, [144]
I am of the opinion that the present case is an appropriate occasion for the court to refuse relief. In my view it would be inutile to remit the matter to the Tribunal where I am positively satisfied that it will return the same outcome on review.
The relevant issue upon which the Tribunal made an adverse finding about the applicant’s credibility was an inconsistency in his evidence about whether authorities had attempted to look for him or contact him after he left Sri Lanka. He told the delegate at an interview in August 2013 that he was not aware of any attempt by authorities to contact him. At the hearing before the Tribunal, he said that his family had told him that the police were looking for him. The Tribunal found at [67] of its reasons that this inconsistency was a further indication that he had not provided honest evidence regarding his claimed attempt to leave Sri Lanka illegally in 2012.
In a written post-hearing submission to the Tribunal, the applicant’s representative identified this inconsistency issue and addressed it in considerable detail over thirteen paragraphs. The representatives also attached documents to the submission including two affidavits from the applicant’s father which referred to police looking for him.
It is clear from the Tribunal’s reasons that it took the post-hearing submission into account before ultimately rejecting the applicant’s claim for protection.
The conclusion I reach is as follows. The Tribunal took into account the evidence the applicant gave to the delegate and the evidence he gave at the Tribunal hearing. During the course of the Tribunal hearing the inconsistency in applicant’s evidence was identified orally and discussed between the Tribunal and the applicant. The applicant became aware of this issue and sought to address it. After the hearing, knowing that there was an inconsistency in the applicant’s evidence about the police looking for him, his representative endeavoured to respond to the Tribunal’s concerns. The Tribunal took into account all of the evidence and relevant submissions before refusing the applicant’s visa.
In SAAP, McHugh J described s 424A of the Act as “one of the centrepieces of its regime for statutory procedural fairness”. It is a natural justice provision designed to ensure that applicants are put squarely on notice of potentially dispositive issues and are given a fair and reasonable opportunity to comment and respond.
In my view, notwithstanding jurisdictional error as a consequence of the Tribunal’s failure to comply with s 424A, the applicant was not in any practical sense denied the opportunity the provision was designed to afford. I can hardly think of a clearer case where post-hearing submissions have been directed to the very issue identified by the Tribunal. Even if there had been no error, I cannot imagine that the applicant would have framed his submissions differently or said any more than was said in those submissions.
Prerogative relief is intended to cure injustice by requiring the decision-maker to undertake its task in accordance with law. However, that relief will serve no purpose where there has been no practical injustice. The Tribunal afforded the applicant the opportunity to comment on and respond to an issue which led to it affirming the delegate’s decision, such that the contravention of s 424A could be fairly described as “technical”. I am positively satisfied that compliance with the relevant obligation “could not have made any difference”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
Although SAAP remains good law and I am bound to observe it, given the passage of time and the more recent line of authority, I suspect that if the facts of this case came before the High Court, it would find the Tribunal’s error to be immaterial.
Having regard to the above, I accept the Minister’s submission that I should exercise my discretion not to grant the relief sought by the applicant.
DISPOSITION
By reason of its failure to comply with the requirements of s 424A the Tribunal fell into jurisdictional error.
In the particular circumstances of this case, the error was “technical and immaterial” and there was no “unfairness or practical injustice” to the applicant[15]. It was not an error which, if it had not occurred, might have led to a different outcome on the review. It is an error which would not pass the threshold of “materiality” if subjected to more recent High Court analysis.
[15] Antoon, [142]
The court has a discretion not to grant relief where there would be no utility in doing so. This is such a case.
The application will be dismissed, and I will hear the parties on costs.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 5 September 2025
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