Lotay v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1510
•15 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lotay v Minister for Immigration and Citizenship [2025] FedCFamC2G 1510
File number(s): SYG 324 of 2022 Judgment of: JUDGE CLEARY Date of judgment: 15 September 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visas – whether Tribunal ignored relevant material – whether failure by the Tribunal to disclose the existence of the s 376 certificate was material - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
CZL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1301
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 59
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 3 September 2025 Place: Parramatta Applicant: In Person Counsel for the Respondents: Mr J Wherrett Solicitor for the Respondents: Ms Q Ren of HWL Ebsworth ORDERS
SYG 324 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURNOOR SINGH LOTAY
Applicant
AND: MINISTER FOR IMMIGATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
15 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,500.
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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.
REASONS FOR JUDGMENT
JUDGE CLEARY
INTRODUCTION
Before the Court is an application made under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 February 2022 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the first applicant a Subclass 500 (Student) visa (student visa) under s 65 of the Act.
BACKGROUND
On 10 July 2015, the applicant, a citizen of India, first arrived in Australia as the holder of a Class TU (Student) Subclass 573 (Higher Education Sector) visa.
On 29 November 2019, the applicant lodged an application for a student visa.
On 24 February 2020, a delegate of the First Respondent refused to grant the visa.
On 2 March 2020, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 17 December 2020, a delegate notified the Tribunal that a certificate under s 376 of the Act had been issued in respect of the information received on 26 November 2020.
On 10 September 2021, the Tribunal wrote to the applicant under s 359(2) of the Act inviting him to provide information that demonstrated that he was enrolled in a registered course of study, and that he was a genuine applicant for entry and stay as a student. The applicant provided the Tribunal with a completed “Response for Student Visa Information” form.
On 22 September 2021, the Tribunal received a request from the applicant for an extension of time to provide a time to provide further information. The extension of time to provide further information was granted on 23 September 2021.
On 22 October 2021, the Tribunal invited the applicant to appear at a hearing on 9 November 2021 to give evidence and present arguments.
On 4 November 2021, the Tribunal informed the applicant that the hearing had been postponed. On 30 November 2021, the Tribunal invited the applicant to attend a hearing by telephone on 16 December 2021.
On 16 December 2021, the applicant and his representative appeared before the Tribunal.
TRIBUNAL DECISION
On 4 February 2022, the Tribunal affirmed the decision under review not to grant the applicant a student visa on the basis that that the applicant did not satisfy cl 500.212. In summary, the Tribunal was not satisfied the applicant was a genuine applicant for entry and stay as a student.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal had regard to the factors specified under Direction No. 69.
In determining the applicant’s circumstances in his home country, potential circumstances in Australia and value of the course to the applicant’s future, the Tribunal found as follows.
The Tribunal recorded that the applicant had undertaken a number of courses from 2015 to 2019 and that for the period of May 2020 to October 2021 the applicant did not continue his studies. The applicant claimed he was unable to continue his studies for this period for the following reasons:
(a)the applicant’s grandfather passed away in November 2019;
(b)the applicant had moved in with a girlfriend and due to the COVID-19 pandemic lockdowns he became the victim of domestic violence from his girlfriend;
(c)the applicant claimed that he separated from his girlfriend in November 2020 and that she was subsequently convicted by reason of that domestic violence;
(d)the applicant claimed he could not study from November 2020 because he was stressed and under pressure and that to get away from his girlfriend, he locked himself and lived in a 20ft container and entered into a deep depression.
The Tribunal considered these reasons carefully but found, while sympathetic with the applicant losing his grandfather, it did not consider that it provided a proper reason for not undertaking studies. In respect of the applicant being the victim of domestic violence, as of November 2020 he was no longer the subject of said violence and his reason for not undertaking study during that time is unclear.
The Tribunal accepted that the applicant would improve his employment prospects and level of remuneration in his home country by undertaking the automotive courses and Graduate Diploma of Management (Learning), however, as the applicant has already obtained qualifications in India which would enable him to work as a mechanic, the degree of improvement would be limited.
The Tribunal considered the applicant’s change in career paths from business to accounting to automotive repairs but had concerns that the applicant had enrolled in a course for the purposes of maintaining permanent residency in Australia.
The Tribunal had regard to the applicant’s economic circumstances and considered that the high levels of income in Australia would provide the applicant with a substantial economic incentive to remain here rather than to return home.
While the applicant did not identify that he had any assets either here in Australia or in India, he submitted documentation regarding property holdings held by his parents. The Tribunal, having regard to the applicant’s asset position and the high level of income that he is able to earn in Australia, observed that the applicant’s asset position presents him with a significant incentive to remain in Australia rather than to return home to India.
The Tribunal found that based on the applicant’s evidence and circumstances in his home country including his education, support from his family and his family’s asset position that relative to others in that country he is in a good position, and it would not provide a significant incentive for him not to return home.
The Tribunal found that the applicant has both personal ties in Australia and in India. However, in circumstances where the applicant has not seen his family since 2015 and where the applicant had remained in Australia for 6.5 years, the Tribunal found the applicant’s ties to his family not all that strong.
The Tribunal found that the applicant has substantial ties to Australia. The applicant indicated he had friends that assisted him after the breakdown of his relationship and, on the evidence, has stable employment on a high level of income.
The Tribunal was not satisfied the applicant intends to study temporarily and considered that the applicant’s primary objective is to maintain ongoing residence in Australia.
Accordingly, the Tribunal was not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
The Tribunal affirmed the decision not to grant the applicant’s student visa.
APPLICATION FOR REVIEW
On 24 February 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 4 January 2022. The application contains ten (10) grounds of review. They are (as written):
1. The decision of Administrative Appeals Tribunal involves jurisdictional e1rnr.
2. The Tribunal ignored relevant material.
3. The Tribunal focussed heavily on the fact that I am making an income of AUD 45,000 per annum as a Truck Driver and assumed that to be a very high income.
4.The Tribunal although acknowledged the qualification that I have completed in Australia; however, ignored it to be in line with the qualifications that I am currently emailed in.
5.The Tribunal ignored the USP of Australian vocational education, being the teachers with practical experience in their respective field.
6.The Tribunal assumed a Diploma of vocational education to be a very short course.
7.The Tribunal although acknowledging the fact that I offered to provide a full business plan to evidence my proposed business upon returning to India; however, assumed that the business turnover figures provided were only aspirational. The Tribunal also ignored the offer to provide the full business plan in support of this figure.
8.Although the Tribunal was informed of my intention to return to India and operate a business of my own, the Tribunal however compared my possible income to that of an Auto Mechanic in determining the incentive that I might have to return to India upon completion of my studies.
9.The Tribunal assumed that Diesel Mechanic qualification obtained from India is similar or same to the Light Motor Vehicle Mechanic qualification that I am currently enrolled in.
10.The Tribunal ignored the fact that I was in depression and that just to ensure that I do not suffer anymore, I continued working.
On 19 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. I made a further order to extend the time for the first respondent’s written submission to 22 August 2025. The applicant did not file any documents in accordance with the Order. The first respondent filed their written submissions as required by the Order.
On 24 July 2025, the proceedings were docketed to me and set down before me for final hearing on 3 September 2025.
HEARING ON 3 SEPTEMBER 2025
At the hearing of this matter on 3 September 2025, the applicant was unrepresented. Mr J Wherrett of counsel, instructed by HWL Ebsworth, appeared for the first respondent.
At the commencement of the hearing, I identified a technical deficiency in the application. The applicant had not sought an order for a writ of certiorari. He had only sought an order for a writ of mandamus. With the agreement of the applicant, and the consent of the first respondent I will amend the application so that both forms of relief were sought: see CZL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1301 at [29].
After receiving the Court Book into evidence, I asked the applicant if he wanted to make any submissions about his grounds of review, or more generally about why he says the Tribunal made a jurisdictional error or made a wrong decision. I gave a brief explanation to the applicant about what a jurisdictional error meant. I told him it was a serious legal error or mistake such as a failure to apply the law correctly, or a failure to follow a procedure set out in the Act.
The applicant did not address the specific grounds in his application. Rather, he made general submissions, including about his time in Australia, the study he had undertaken, and the employment he had previously as a truck driver. I asked him if he wanted to take me to any particular paragraph in the Tribunal decision, or tell me why, for example, in ground 2, he said that the Tribunal had ignored relevant material. He told the Court the application had been prepared by his agent, and he did not have anything further to say on the grounds contained within it. He did make submissions about one of the findings made by the Tribunal, namely the finding in paragraph [44], regarding his salary as a truck driver. He submitted that he disagreed that his ability to earn more income in Australia than in India should be a reason why the Tribunal’s considered he was not a genuine temporary entrant.
Mr Wherrett made brief oral submissions summarising the first respondent’s written submissions on the grounds.
In relation to the matters which the applicant submitted orally at the hearing Mr Wherrett submitted those matters, particular the submissions made about paragraph [44] of the Tribunal decision, went to the merit of the claims made in the Tribunal by the applicant, and could not be reviewed in this Court. I agree with Mr Wherrett submission as to the matters referred to by the applicant orally at the hearing before me. They went to the merits of the Tribunal decision and are not reviewable in applications made under s 476 to the Court.
CONSIDERATION
To obtain the relief sought the applicant must prove that the Tribunal’s decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76].
In LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] – [3] (LPDT) the High Court explained that:
Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, in most cases, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32]. Further, in reviewing the Tribunal’s decision, the Court does not review the merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
Below I set out my consideration of the 10 grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error. I also consider the matters raised by the first respondent as a result of the Tribunal’s failure to disclose the existence of a s 376 Certificate to the applicant. For the reasons given on that issue, I do not find the Tribunal committed a material jurisdictional error.
Ground 1
Ground 1 contains an unparticularised assertion the Tribunal decision “involves jurisdictional error”.
In DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [8] – [11], the Federal Court held that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation, where the applicant is unrepresented, without giving the applicant an opportunity to explain what he or she meant by the ground.
At the hearing the applicant chose not to say anything about ground 1.
Ultimately, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [44]-[45] and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 59 at [67] (SZGUR).
The applicant has failed to do so in ground 1.
Ground 1 is dismissed.
Ground 2
Ground 2 also merely makes an unparticularised statement that the Tribunal ignored relevant material.
As in ground 1, I asked the applicant what he meant by ground 2, and what “relevant material” he was referring to. He chose not to say anything about ground 2.
Again, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal. Ground 2 is also rejected.
Remaining grounds of review
Grounds 4 to 10 appear to take issue with factual findings and the weight given by the Tribunal to the applicant’s evidence. I agree with the first respondent these matters are part of the fact-finding function of the Tribunal and go to the merits of the Tribunal decision not its legality: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and Djokovic. This Court is not permitted to review the merits of the Tribunal decision in applications for judicial review under s 476 of the Act.
I will address each ground for completeness.
Ground 3
In this ground 3 the applicant says the Tribunal, “focussed heavily on the fact that I am making an income of AUD 45,000 per annum as a Truck Driver and assumed that to be a very high income”.
In making its decision the Tribunal was required to have regard to economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, which would include the matters referred to by the applicant in this ground: see clause 9(c) in Direction 69.
The argument in this ground is really an attempt to challenge the merits of the Tribunal findings about these matters, which is not permissible: see Djokovic.
Ground 3 has no merit.
Ground 4
As to ground 4 the applicant says, “[t]he Tribunal although acknowledged the qualification that I have completed in Australia; however, ignored it to be in line with the qualifications that I am currently enrolled in”.
Contrary to the applicant’s assertion, the Tribunal was entitled to make findings of fact about whether courses studies by the applicant were not connected and not complementary to each other and do not lead to a career path or position in employment, particularly as the applicant himself claimed the studies he was enrolled in would assist him in operating his business: see Tribunal decision at [34].
Again, this argument is an attempt to challenge the merits of the Tribunal findings about these matters, which is not permissible under s 476 of the Act: see Djokovic.
Ground 4 is also rejected.
Ground 5
Ground 5 asserts the Tribunal “ignored the USP of Australian vocational education, being the teachers with practical experience in their respective field”. This bare assertion does not contain an arguable jurisdictional error and is rejected.
Ground 5 has no merit.
Ground 6
Likewise in ground 6, the applicant’s bare assertion that the Tribunal “assumed a Diploma of vocational education to be a very short course” does not contain an arguable jurisdictional error and is also rejected.
Ground 6 is rejected.
Ground 7
As to ground 7, the applicant seems to be arguing that the Tribunal was under an obligation to assist or investigate or impress upon the applicant to provide information to support its claims, in particular, regarding evidence about a future business plan to start his proposed business.
There is no general obligation on a Tribunal to investigate an applicant’s claims: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Further, it is well settled that it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he has a well founded fear of persecution for a Convention reason: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. The Tribunal must then decide whether that claim is made out.
Ground 7 has no merit.
Ground 8
Ground 8 does not disclose any arguable jurisdictional error. It merely states that “although the Tribunal was informed of my intention to return to India and operate a business of my own, the Tribunal however compared my possible income to that of an Auto Mechanic in determining the incentive that I might have to return to India upon completion of my studies”. This ground does not disclose any legal error on the part of the Tribunal. It appears to be seeking to challenge factual findings of the Tribunal, which is not permissible, for the reasons outlined above: see Djokovic.
Ground 8 has no merit.
Ground 9
As to ground 9, the applicant claims the Tribunal, “assumed that Diesel Mechanic qualification obtained from India is similar or same to the Light Motor Vehicle Mechanic qualification that I am currently enrolled in”. Again, this type of assertion does not contain any arguable jurisdictional error. It merely seeks to cavil with factual findings made by the Tribunal and seek impermissible merits review of those findings.
Ground 9 has no merit.
Ground 10
As to ground 10, the applicant claims the Tribunal, “ignored the fact that I was in depression and that just to ensure that I do not suffer anymore, I continued working”.
As the first respondent correctly points out this ground fails at a factual level. The Tribunal considered the claim at paragraph [30] of its decision. It found that the claim was not supported by any evidence and that there was, “no corroborating evidence before the Tribunal to suggest that he had depression at the time and could not have studied or undertaken an enrolment”.
Ground 10 has no merit.
Certificate issued under s376 of the Act
The first respondent has properly raised with the Court an arguable ground of jurisdictional error not identified by the applicant. It relates to the issue by the delegate to the Tribunal of a certificate issued under s 376 of the Act (s 376 Certificate), and the failure by the Tribunal to disclose the existence of that certificate to the applicant.
Section 376 of the Act relevantly provided at the time of the Tribunal decision:
(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) Where the Tribunal is given a document or information and is notified that the section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), the High Court considered a certificate that had been issued in respect of certain information under s 438 of the Act. Section 438 in Part 7 of the Act is a cognate provision to s 376 in Part 5 of the Act. A plurality of the High Court (Bell, Gageler and Keane JJ) held at [2] that:
2.…the fact of notification [under s 438] triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
At [38] their Honours elaborated further on s 438 (or s 376 in the present case):
38.Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision.
At [45]-[47] their Honours discuss materiality in the context of a breach of s 438 (or s 376 in the present case);
45.Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
46.Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
47.The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.
In MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 (MZAOL), the Full Court of the Federal Court applied SZMTA in a case concerning s 438 of the Act. In that case the Full Court concluded that there was a denial of procedural fairness by reason of the failure of the Tribunal disclose the existence of the certificate under s 438, but found that it was not a material jurisdictional error because, the Court found, applying SZMTA at [46], the Tribunal had no regard to the information referred to in the certificate in reaching its decision. Their Honours held at [76]:
76.In this case, it must be presumed that the Tribunal acted on the basis that the certification and notification made under s 438 was valid. The Tribunal did not exercise its discretion under s 438(3)(b) to disclose any of the impugned information to the appellants. So much is apparent from the fact that none of the impugned information was disclosed. In those circumstances, and particularly given the highly prejudicial nature of the information which emanated from the New South Wales police, there is good reason for thinking that a fair-minded Tribunal member in the regular administration of the Act and acting on the basis that s 438 had application would not have affirmatively exercised the discretion to have regard to the impugned information without good reason. If good reason for the exercise of the discretion existed, it is not apparent. Additionally, absent any contrary indication in the Tribunal’s reasons or elsewhere in the evidence that the Tribunal gave active consideration of the s 438(3)(a) discretion, there is further justification for inferring that the Tribunal paid no regard to the impugned information in reaching its decision (see SZMTA at [47] (Bell, Gageler and Keane JJ)).
Turning to the present case, on 17 December 2020, a delegate notified the Tribunal that a s 376 Certificate had been issued in respect of the information received on 26 November 2020. The first respondent at paragraph [28] of his submissions makes the following concession about the s 376 Certificate:
28.The Tribunal did not disclose to the applicant the fact that a certificate under s 376 had been issued. The Minister accepts that, consistent with SZMTA, the failure to disclose the existence of the certificate constituted a denial of procedural fairness.
The first respondent submitted that despite this, the denial of procedural fairness was not a jurisdictional error because it was not material. This is because, the first respondent submitted, there was nothing in the reasons, or elsewhere in the evidence, that would indicate that the exercise of the discretion under s 376(3)(a) was considered by the Tribunal. In those circumstances, the court can be justified in inferring that the Tribunal did not exercise its discretion under s 376(3)(a), and therefore it paid no regard to the document in reaching its decision. It was submitted the Tribunal’s failure to disclose the certificate to the applicant was immaterial to the decision it in fact made. The first respondent cited LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] in support of its submission that there was no material jurisdictional error.
I agree for the following reasons.
It is now well established that (as occurred here) the Tribunal’s failure to disclose the fact that a s 376 Certificate had been issued, is a jurisdictional error. Applying SZMTA it is a denial of procedural fairness.
However, nowhere in the Tribunal’s reasons, and/or elsewhere in the Court Book, is there any evidence that the Tribunal either considered exercising its discretion, or in fact exercised its discretion, under s 376(3) to disclose the document the subject of the s 376 Certificate to the applicant. In other words, the Tribunal in fact paid no regard to any document that was subject to the s 376 certificate when it made its decision. Thus, applying SZMTA and MZAOL, as the Tribunal did not consider the document that was subject to the s 376 certificate when making its decision, its failure to disclose the existence of the s 376 Certificate to the applicant was not material to its decision: see also LPDT at [7] and [32].
For completeness, the first respondent also drew the Court’s attention to another potentially arguable ground of review in relation to the s 376 Certificate, namely apprehended bias. The first respondent referred to CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17) in drawing this possible argument to the Court’s attention. There is no evidence before me to support a finding of apprehended bias by the Tribunal based on what the High Court said in CNY17.
Accordingly, while there was a denial of procedural fairness in this case, applying SZMTA, I find the Tribunal did not commit any material jurisdictional error in relation to the s 376 Certificate.
CONCLUSION
The applicant has not established that the Tribunal’s decision is vitiated by material jurisdictional error.
As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
The application is dismissed.
COSTS
The first respondent seeks costs fixed in the sum of $7,500. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 15 September 2025
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