Kumar v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1148
•24 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1148
File number: ADG 254 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 24 July 2025 (and delivered by Judge Humphreys by telephone pursuant to s 210 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) Catchwords: MIGRATION – Business Innovation and Investment visa – decision of the then Administrative Appeals Tribunal – whether the interpretation services used at the Tribunal hearing were inadequate – whether the length of the Tribunal hearing was “too short” – whether the Tribunal failed to give the first applicant “clear particulars” – whether the Tribunal failed to give the first applicant an opportunity to provide further information in support of the review application – whether the Tribunal erred by affirming the delegate’s decision in relation to the second, third and fourth applicants – no jurisdictional error – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 11.10
Migration Act 1958 (Cth), ss 338, 359AA, 360 & 476
Migration Regulations 1994 (Cth), reg 1.03 and cll 188.225 & 188.311 in Schedule 2
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 13 May 2025 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms M Pappas Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
ADG 254 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAMENT KUMAR
First Applicant
URMILA KAUSHIK
Second Applicant
PRAGYA
Third Applicant
RIDHHI
Fourth Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application be dismissed.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Recent Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 8 August 2023 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time that the application for judicial review was filed (being on 24 August 2023), the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter on 13 May 2025) substituting the ART as the second respondent in this proceeding.
The applicants’ migration history
The applicants are citizens of India (Court Book (“CB”) 14-23, 53-55, 119 & 122). The first and second applicants are husband and wife respectively (CB 14-15, 21-22 & 64). The third and fourth applicants are their minor daughters (CB 17-20).
On 10 December 2019, the first applicant applied for a Business Innovation and Investment (Provisional) (Class EB) (Subclass 188) visa in the Business Innovation stream (the “visa”) (CB 14-36). The first applicant’s family (being the second, third and fourth applicants) were included in that visa application as members of his family unit (CB 17-22). In the visa application, the first applicant provided contact details (including an email address) for his migration agent (the “first representative”) (CB 25).
On 11 December 2019, the Department of Home Affairs (the “Department”) asked the first applicant (through his first representative) to provide more information in relation to his visa application (CB 40-50).
On 9 January 2020, the applicants’ first representative provided the Department with additional documents in support of the applicants’ visa application (via email) (CB 51-124).
On 17 February 2021, the Department again asked the first applicant (through his first representative) to provide more information in support of his visa application (CB 125-144).
No response was received by or on behalf of the applicants.
On 23 March 2021, the Department again asked the first applicant (through his first representative) to provide more information in support of his visa application (CB 145-164).
On 21 April 2021, the Department wrote to the first applicant (via email) advising that no response had been received from the applicants’ first representative in response to their request for further information letter (sent to the first representative on 23 March 2021) (CB 165).
On 21 May 2021, the applicants’ first representative provided the Department with additional documents in support of the applicants’ visa application (via email) (CB 166-309).
On 26 May 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 316-322). The delegate was not satisfied that the first applicant had an “ownership interest” in one or more established “main businesses” that had an annual turnover of at least $500,000 AUD for at least two of the four fiscal years immediately prior to the time of invitation to apply for the visa (as required by cl 188.225(1) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 319). The delegate also found that the second, third and fourth applicants did not meet cl 188.311 in Schedule 2 of the Regulations because they were not members of the family unit of a person who held a Subclass 188 visa (CB 319-322).
On 8 June 2021, the applicants sought review of the delegate’s decision by the Tribunal (CB 349-351). In that review application, the applicants appointed a new migration agent to assist them with their Tribunal review (the “second representative”) and provided the Tribunal with contact details for that second representative (CB 351).
On 29 June 2023, the Tribunal invited the applicants (via email and through their second representative) to attend a hearing before it on 3 August 2023 (by video conference) to give evidence and present arguments in support of their review application (CB 363-367).
On 25 July 2023, the applicants’ second representative notified the Tribunal (via email) that he would no longer be representing the applicants and provided a completed Change of Contact Details form (CB 383-386).
On 27 July 2023, the first applicant provided additional documents to the Tribunal (via email) in support of the applicants’ review application (CB 387-404).
On 3 August 2023, the first applicant appeared at the Tribunal hearing to give evidence and present arguments in support of the applicants’ review application (CB 405-408). The second third and fourth applicants did not appear at the Tribunal hearing and the first applicant was assisted at that hearing by an interpreter in the Hindi and English languages (CB 405).
On 8 August 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 432-437).
On 24 August 2023, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 1-8). That application was accompanied by an affidavit which was affirmed by the first applicant on 24 August 2023 (and filed in this Court on 24 August 2023) (CB 9-13).
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is six pages long and spans 31 paragraphs (CB 432-437).
The Tribunal began by outlining that the applicants had applied for the visas on 10 December 2019 and that a delegate of the Minister had refused to grant those visas on 26 May 2021. The Tribunal explained that the delegate was not satisfied that the first applicant had demonstrated an ownership interest in a main business or with the claims made in relation to the annual turnover of the business. The Tribunal also confirmed that the first applicant had appeared at a hearing before it on 3 August 2023 and was assisted at that hearing by an interpreter in the Hindi and English languages (at [1]-[5]).
The Tribunal identified that the issue before it was whether the first applicant met cl 188.225 in Schedule 2 of the Regulations. The Tribunal explained that cl 188.225 in Schedule 2 of the Regulations required that for at least two of the four fiscal years immediately prior to the time of the invitation to apply for the visa, the first applicant had an ownership interest in one or more established main businesses with an annual turnover of at least $500,000 AUD. The Tribunal then defined the terms “ownership interest”, “main business” and “qualifying business”. The Tribunal also explained that the first applicant was invited to apply for the visa on 5 November 2019 and that he relied on Indraprasth Education Society (the “Society”), trading as Adi Sankracharya Convent Public School (the “School”) as the business against which the requirements set out in cl 188.225 in Schedule 2 of the Regulations were to be assessed (at [7]-[12]).
The Tribunal confirmed that the applicants had provided various documents to the Department, including a Memorandum of Association (“MOA”) containing relevant information about the Society, including its objectives, the powers, functions and duties of the committee established to achieve the objectives and conditions outlined in the MOA. The Tribunal had regard to a “Certificate of amendment in the Memorandum/By-laws of the Society” which stated that the Society was registered on 26 November 2013 and detailed the relevant legislation by which the Society was registered. The Tribunal pointed out that the relevant legislation provided that no society was to be registered under that legislation unless it prohibited payment of any dividend or distribution of any assets, income or profits to its members, their dependents or legal heirs. On the evidence before it the Tribunal was satisfied that the Society was set up in accordance with the relevant legislation for a charitable purpose and not to generate profits (at [13]-[20]).
The Tribunal detailed the first applicant’s evidence, as follows:
(a)his father and grandfather had been involved in providing education and the School was a family business, that his family had built the School and the land was owned by the first applicant and two others (at [21]);
(b)until 2012, the school had been owned by the family but in 2013, new legislation was introduced which meant that the legal documentation showed that the Society owned the School, however, it was really his family that did (at [22]);
(c)he acknowledged that he could not demonstrate his ownership of the School and that the MOA stated that any profit earned had to be utilised by the School (at [23]);
(d)he has had, and currently has, businesses in Australia which he had some difficulty setting up when he arrived in Australia due to the onset of the COVID-19 pandemic (at [24]); and
(e)he did not have any other business that he could nominate or anything else that could be considered to be a “main business” (at [25]).
The Tribunal ultimately concluded that, given the legislation under which the School operated and the MOA, the School was not a qualifying business in accordance with reg 1.03 of the Regulations (because it did not operate for the purpose of making a profit). The Tribunal also noted that the first applicant had acknowledged that he did not have an ownership interest in the Society that was legally responsible for the School’s operation (although his family built and ran the School). The Tribunal was therefore satisfied that the School did not meet the definition of a main business of the first applicant and the first applicant did not meet the requirements set out in cl 188.225 in Schedule 2 of the Regulations or the criteria for the grant of the visa (at [26]-[30]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [31]).
APPLICATION TO THIS COURT
The application for judicial review (filed in this Court by the applicants on 24 August 2023) contained three “grounds of review” as follows (without alteration) (CB 4-5):
1.The Administrative Appeals Tribunal made a jurisdictional error in not providing a fair hearing on 8 August 2023 through the defective use of an interpreter in the Hindi language. The Tribunal Member did not adequately the interpreter despite this being requested by the Applicant. The Applicant was not provided with a reasonable opportunity to be heard and present the case.
2.The Administrative Appeals Tribunal made a jurisdictional error by failing to provide procedural fairness when making its decision. The length of the hearing from start to finish was just 45 minutes approximately. This did not allow the Applicant sufficient time to give evidence relevant to the Subclass 188 visa criteria.
3.The Administrative Appeals Tribunal made a jurisdictional error during the hearing by failing to give clear particulars about concerns regarding cl 188.225(1), and did not allow the Applicant a fair opportunity to provide additional information and supporting documents to address the concerns.
The applicants also filed an affidavit (affirmed by the first applicant on 24 August 2023) in support of the judicial review application. That affidavit simply annexed a copy of the Tribunal’s decision record and associated notification letter (CB 9-13).
On 7 May 2024, procedural orders were made by Registrar Downing of this Court giving the applicants an opportunity to file an amended application, written submissions and any additional evidence upon which the applicants sought to rely. Unfortunately, no further materials were filed by or on behalf of the applicants.
The first applicant appeared before this Court (by video link on 13 May 2025) without legal representation. Ms Maria Pappas (“Ms Pappas”) from the Australian Government Solicitor appeared on behalf of the Minister (also by video link). The Court asked the first applicant to confirm that he would speak on behalf of himself and his family. He did so. He also confirmed that he had received copies of the materials filed on behalf of the Minister in this matter.
The Court noted that the third and fourth applicants in the proceeding were still minors (being born in August 2007 and May 2012 respectively). On that basis, the Court explained to the first applicant that, because his daughters were minors, it was appropriate for a litigation guardian to be appointed on their behalf. The first applicant agreed to act as the litigation guardian for his children and the Court made orders (pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”)) accordingly – including dispensing with the requirement to file any affidavit in that regard (pursuant to r 11.10(2) of the Rules).
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 24 August 2023 (the first applicant’s affidavit being taken as read and in evidence at the hearing on 13 May 2025), a CB numbering 437 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 29 April 2025 and the affidavit of Ms Pappas affirmed and filed on 29 April 2025 (the “Pappas affidavit”) (also taken as read and in evidence at the hearing of this matter).
Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Despite being given multiple opportunities by the Court to expand on his grounds of review or to raise any other concerns that he might have had with the Tribunal’s decision or the approach taken by the Tribunal in his matter, the first applicant simply told the Court that there was “nothing at [those] moment[s]” that he wished to say.
This leaves the Court to assess the applicants’ grounds of review without further assistance from the first applicant. Noting that the first applicant (and, indeed, the applicants) did not have legal assistance, the Court will, in its duty to the applicants as unrepresented litigants, review the Tribunal’s decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
CONSIDERATION
Grounds of review
Having reviewed the applicants’ judicial review application (filed in this Court on 24 August 2023), the Court considers the applicants to have raised the following issues for consideration:
(a)whether the interpretation services used at the Tribunal hearing were inadequate;
(b)whether the length of the Tribunal hearing was too short;
(c)whether the Tribunal failed to give the first applicant clear particulars; and
(d)whether the Tribunal failed to give the first applicant an opportunity to provide further information in support of the review application.
The Court will address each of these issues in turn below.
Whether the interpretation services used at the Tribunal hearing were inadequate
The applicants complained that the Tribunal did not provide a fair hearing (on 3 August 2023) due to the “defective use of an interpreter in the Hindi language”.
In the review application filed with the Tribunal (on 8 June 2021), the first applicant indicated that he did not require the assistance of any interpreter (CB 349). However, the first applicant later advised the Tribunal, in the completed “Response to hearing invitation” form (dated 4 July 2023) that he required an interpreter in the Hindi language (CB 369).
The evidence before the Court indicates that the Tribunal provided an interpreter in the Hindi and English languages to assist the first applicant at the Tribunal hearing (CB 405).
A transcript of the Tribunal hearing (which in fact took place on 3 August 2023 and not on 8 August 2023 as indicated by the applicants in their ground of review) was included in the CB for this matter by the Minister (CB 409-429). This is of particular importance in the context of this matter and the Court has reviewed the transcript in its entirety.
The transcript indicates that the Tribunal member had a conversation with the first applicant at the start of the hearing in relation to the use of the interpreter. That conversation relevantly provided as follows (CB 410-411):
Member: Okay. Good morning, everyone. Before we go further, can I just clarify, Mr Kumar, do you need everything interpreted or do you just want to let me know if you need something interpreted because you don’t understand what I said. First applicant: Yeah, I - actually, I understand very well. Because sometimes I get nervous, so I can’t manage myself. That’s why I need an interpreter. Member: All right. So are you happy if I - if what I say isn’t interpreted, and - but if you need the interpreter to explain, then you say so? First applicant: Yes, I’m happy. Member: For that? Okay. All right. So I'll leave it to you, Mr Kumar, if you need the - assistance from the interpreter for you to say so. Make sense? First applicant: Okay. Member: All right. First applicant: Okay, yes. Member: And if you change your mind as we go through, Mr Kumar, and you want everything interpreted, what I say and what you say, then please say so. First applicant: Yeah, I understand. When I - - - Member: Okay. First applicant: I will tell to you. Member: Lovely. Thank you. Okay. First applicant: Thank you. Member: All right. Yes, fine. So - and I’ll just check - I think you can, but I’ll just check that you can hear me okay? First applicant: Yes, fine. Member: And Madam Interpreter, you also can hear me okay? Interpreter: Yes.
The Tribunal member then explained to the first applicant why he was at the Tribunal hearing and explained her function to the first applicant (being that she was required to take a fresh look at the applicants’ review application but would do so applying the same law), including what would happen if the review application was successful. She also explained to the first applicant what the focus of the hearing would be, outlined the evidence before her and explained the purpose of the hearing.
The Tribunal member then went on to explain to the first applicant how he would give evidence at that hearing and reminded him again that he could use the interpreter as necessary. That conversation is reproduced (from the transcript in the CB) below (CB 412-413).
Member: So I’ll be asking you questions and discussing with you concerns I have about your application for the visa. And it’s an opportunity for you to raise any other matters you think are relevant. Yeah. Now, Mr Kumar, if you need a break at any time, then please say so. First applicant: Okay. Member: And, Madam Interpreter, that applies to you too, if you need a break, just let me know. And so I think we’ve already established that you do understand the interpreter, Mr Kumar? First applicant: Okay. Member: But - and you may or may not use her services. If you want to explain something that you do want interpreted, if you could break it up into small segments to make it easier - - - First applicant: Okay. Member: - - - then nothing gets lost in translation. First applicant: Okay.
As can be seen from the excerpt above, the first applicant confirmed that he could understand the interpreter and acknowledged that he understood that he could make use of that interpreter as and when required.
The first applicant then elected to use the interpreter at a number of points during the hearing. The first applicant initially asked to use the interpreter to give evidence in relation to salary. Relevant parts of that conversation between the first applicant and the Tribunal member are set out below (CB 415-416).
Member: So did the school pay you a salary, or how did that work, is what
I’m trying to understand.
First applicant: No, not a salary, but just the kind of remuneration I get from the school. Member: And what was that remuneration based on? First applicant: Means? Member: How much money you had to earn. First applicant: It’s the time-to-time expenses that, like, that if I need - well, that’s not specific. If I need two, like, Indian rupees, so I will check out, take that. That’s not a criteria, how much I need. I think a particular - I - can I use interpreter to explain? Member: Yes, of course. Interpreter: Okay. Whatever I require, according to my day-to-day needs, I just take it from the school. There is no fixed salary or remuneration as such. Whether I have to do any future investments, whatever. Whatever is required, I just take it on and off when required. And whatever expenses are there for the schools are from personal resources, etcetera, I do it from the money that’s coming from there. … Member: But that’s not the same as owning the business of the school. First applicant: Means? Member: Do understand that distinction or do you want me to explain that? First applicant: Okay. Can you tell interpreter please? Interpreter: Sure.
In a later part of the hearing, during a conversation between the first applicant and the Tribunal member, the first applicant refuses the assistance of the interpreter and elects to explain on his own. That part of the Tribunal hearing is also reproduced below (CB 421).
Member: The particular criteria that the delegate was looking at, that the Department was looking at. Oh, dear. So because you had to have an ownership interest in a main business, and I can’t see there’s an ownership interest. And I can’t see there’s a main business in - with which you were involved unless there was any other business you want me to think about or consider. First applicant: What - can you explain, please? Member: Well, if you - - - First applicant: Interpreter, I’m sorry. Actually, I can explain myself. That’s our own
land and the building is created by own source of income. But in - according to 2012, the state government has changed the law.
The first applicant did not seek to utilise the interpreter at any other points during the Tribunal hearing. Further, the applicants do not appear to suggest that the interpretation provided (when requested by the first applicant) was incorrect in any way.
There is also no evidence before the Court to suggest that the first applicant was not able to understand the interpreter at any point during the Tribunal hearing or that the interpreter misunderstood the first applicant. In fact, a thorough reading of the transcript of the Tribunal hearing suggests to the Court that the first applicant was able to properly participate in the Tribunal hearing, both in English (at times) and in Hindi (with the assistance of the interpreter, when requested by him). Further, the transcript demonstrates that the first applicant understood what he was being asked and was able to respond to those questions clearly.
The Court is satisfied that the first applicant was provided with access to the assistance of an interpreter in his chosen language for the duration of the Tribunal hearing and the Tribunal member properly explained to him that he could utilise those services as required (and, as outlined above, the first applicant chose to use the interpreter or to refuse the assistance of the interpreter at various points during the Tribunal hearing).
No jurisdictional error arises in this regard.
Whether the length of the Tribunal hearing was too short
The applicants have also suggested that the Tribunal failed to afford them procedural fairness because the length of the Tribunal hearing (being approximately 45 minutes) was “too short” and did not allow the first applicant sufficient time to give evidence relevant to the Subclass 188 visa criteria.
The Court notes that the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) (as was in force at the time of the Tribunal’s decision) did not prescribe any “minimum length of time” for a Tribunal hearing. Instead, s 2A(b) of the AAT Act required that, “in carrying out its functions, the Tribunal [was required to] pursue the objective of providing a mechanism of review that: … (b) [was] fair, just, economical, informal and quick”.
The Tribunal was otherwise required to give the applicants a “real and meaningful” opportunity to attend and participate at the hearing before it. In this context, the Tribunal’s invitation must not have been seen to be a “hollow shell” or an “empty gesture”: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31].
As correctly submitted by the Minister (at [28] in written submissions filed on 29 April 2025), in this matter:
(a)the applicants provided additional documentation to the Tribunal on 27 July 2023 (being prior to the Tribunal hearing) (CB 387-404);
(b)the Tribunal invited the applicants to appear at a hearing before it to give evidence and present arguments in support of their review application (as was required by s 360 of the Act) (CB 363-367);
(c)the first applicant attended that Tribunal hearing to give evidence and present arguments as required. As outlined above, the Tribunal member engaged in a continuous dialogue to enable the first applicant to understand the issues requiring the Tribunal’s consideration, to respond to the Tribunal member’s questions and to clarify his evidence as necessary (CB 409-429); and
(d)there is no evidence before the Court to suggest that the first applicant asked the Tribunal for additional time to provide further information or that there was any additional evidence that the first applicant wanted to provide to the Tribunal but was denied the opportunity to do so.
The Court does not consider that the length of the hearing (of 45 minutes) is indicative of the a denial of procedural fairness. The Court considers that the first applicant was given a real and meaningful opportunity to give evidence and present arguments in support of the applicants’ review application.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to give the first applicant clear particulars
The applicants also claim that the Tribunal failed to give the first applicant clear particulars (during the Tribunal hearing) about concerns regarding cl 188.225(1) in Schedule 2 of the Regulations. The Court disagrees for the reasons that follow.
The Court notes that, as outlined above, on 26 May 2021, a delegate of the Minister refused to grant the applicants the visas (CB 316-322). The delegate was not satisfied that:
(a)the first applicant had an “ownership interest” in one or more established “main businesses”; or
(b)that the annual turnover of that business met the required amount;
as required by cl 188.225(1) in Schedule 2 of the Regulations (CB 319).
Those issues were the same issues the Tribunal was required to determine when the matter came before it. That is, the applicants were on notice of the dispositive issues as at the date of the delegate’s decision (being as at 26 May 2021). Further, the Tribunal member, at the start of the Tribunal hearing, clearly explained to the first applicant that the “focus of [the] hearing [was] whether or not [he] had ownership of a main business … before lodging [his] visa application” and also explained to the first applicant what the definitions of main business and qualifying business were under the relevant legislation (CB 412 & 414). Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter.
The Court is satisfied that there was thus no further “information” that the Tribunal was required to put to the applicant pursuant to s 359AA of the Act.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to give the first applicant an opportunity to provide further information in support of the review application
The applicants also claimed that they were not given “a fair opportunity to provide additional information and supporting documents to address the [Tribunal’s] concerns”.
As explained by the Court above, the applicants were on notice of the critical issues with their visa application from at least the date of the delegate’s decision in this matter (being as at 26 May 2021). The applicants were given an opportunity to provide additional documents to the Tribunal ahead of the Tribunal hearing and were given a further opportunity to do so at that hearing (being on 3 August 2023).
The Court notes that the applicants provided additional documents to the Tribunal (as outlined above on 27 July 2023) and the first applicant attended the Tribunal hearing (on 3 August 2023) to give evidence and present arguments in support of the applicants’ review application.
As previously stated by this Court, there is no evidence before it to suggest that the first applicant ever indicated to the Tribunal that he wanted to provide further evidence in support of the review application or that he was denied any opportunity to do so.
The Court notes that, as correctly submitted by the Minister (at [38] of the written submissions filed in this Court on 29 April 2025), it is for the applicants to supply the relevant facts and evidence in support of their case to meet the relevant visa criterion: Abebe v Commonwealth (1999) 197 CLR 510. The applicants in this case were provided every opportunity to do so and there is no evidence to suggest that they were (at any point) denied the opportunity to do so.
No jurisdictional error arises in this regard.
Additional issue raised by the Minister
In written submissions (filed in this Court on behalf of the Minister on 29 April 2025), the Minister raised an additional issue (in his capacity as a model litigant) for the Court’s consideration. Relevantly, the Minister queried whether the Tribunal had erred by affirming the delegate’s decision refusing to grant the second, third and fourth applicants the visas.
The Minister’s submissions in that regard were as follows:
(a)the Tribunal did not make any express reference to the second, third or fourth applicants in its decision, other than in its conclusion (at [30]) that the criteria for the grant of the visas were not met and affirming the decision “not to grant the visa applicants [the] visas” (at [31]);
(b)while the Tribunal decided to ‘affirm’ the decisions in relation to the second, third and fourth applicants, it had no jurisdiction to do so, because:
(i)at the time of the visa application, the second, third and fourth applicants were offshore (see the Pappas affidavit, pp 4-6);
(ii)the second, third and fourth applicants were also offshore at the time of the delegate’s decision (being on 26 May 2021) and at the time that the application for review was made to the Tribunal (being on 8 June 2021) (see the Pappas affidavit, pp 4-6);
(iii)as the second, third and fourth applicants were offshore, the decision of the delegate (insofar as it related to the second, third and fourth applicants) was not a “Part-5 reviewable decision” under s 338 of the Act (as was in force at that time). However, the delegate’s decision (insofar as it related to the first applicant), was a “Part-5 reviewable decision” under s 338(2) of the Act;
(c)the second, third and fourth applicants had no right or entitlement to merits review before the Tribunal and the Tribunal had no jurisdiction to make any decision in relation to them; and
(d)despite the Tribunal’s error in proceeding to make a decision in relation to the second, third and fourth applicants, that error is immaterial and any relief would be futile. Notably, any relief would see the second, third and fourth applicants’ decision remitted to the ART who would have no power to reconsider the application and would be bound to find that there was no jurisdiction. As such, relief would serve no useful purpose.
The Court agrees. Whilst the Tribunal should not have proceeded to make any decision in relation to the second, third and fourth applicants and should have determined that it had no jurisdiction (for the reasons set out above), remittal of the matter to the ART would not serve any useful purpose.
The Court is satisfied that, whilst the Tribunal erred in this regard, that error would not have changed the outcome for the first applicant and remittal of the matter insofar as it relates to the second, third and fourth applicants would serve no useful purpose.
CONCLUSION
The application for judicial review (filed by the applicants on 24 August 2023) has failed to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 July 2025
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