Lokuwithana v MIBP

This matter concerned an appeal by the applicants, Lokuwithana and others, against a decision of the Administrative Appeals Tribunal (the Tribunal). The dispute centred on the Tribunal's review of a decision made by the Department of Immigration and Border Protection (the Department) regarding the applicants' visa applications. The case was heard by Judge Jones.

The primary legal issue before the court was whether the Tribunal had failed to conduct a proper review of the Department's decision, thereby failing to exercise its jurisdiction. This question arose from the Tribunal's reliance on an erroneous case note that incorrectly stated the applicant did not have an approved nomination by a sponsor, despite departmental records indicating otherwise. The court was required to determine if this reliance constituted a failure to consider relevant evidence and, consequently, a failure to conduct a review as mandated by the Act.

Judge Jones reasoned that, while the applicants had failed to respond to a request for information, which would ordinarily entitle the Tribunal to proceed without an invitation to a hearing, the Tribunal's reliance on an erroneous case note was critical. Drawing on the principles established in *Bhardwaj*, the court held that the Tribunal's decision was not a "decision on review" because it was based on a mistaken understanding of the facts, specifically regarding the applicants' nomination status. This mistaken understanding led the Tribunal to proceed as if the applicants did not wish to be heard, when in fact the applicants believed the Tribunal possessed the correct information. This amounted to a failure to exercise jurisdiction, not merely a jurisdictional error.

The court found that the Tribunal had failed to conduct a review in accordance with the Act. Consequently, the Tribunal's decision was set aside.