Nagaki v MIBP

This matter concerned an application for review by the applicant, Mr Nagaki, against a decision of the Migration Review Tribunal (MRT). The applicant contended that the MRT's decision was affected by jurisdictional error, specifically alleging a failure to comply with subsection 357A(3) of the *Migration Act 1958* by not acting in a way that was just and fair to the applicant and the sponsor. The core of the applicant's argument was that neither he nor the sponsor were provided with clear particulars of the issues the MRT considered when forming its findings regarding potential undue financial hardship for the sponsor or adverse effects on the sponsor's relationship with his children if he were to leave Australia.

The legal issues before the court were whether the MRT had complied with its obligation under subsection 357A(3) of the *Migration Act 1958* to act in a way that was just and fair. This involved determining whether the applicant and sponsor were given a fair opportunity to address the specific issues that ultimately underpinned the MRT's adverse findings. The applicant argued that statements made by the presiding tribunal member during a video hearing, which suggested the applicant and sponsor would be alerted to any adverse issues and given an opportunity to comment, created an expectation of procedural fairness that was not met.

The court considered that the statements made by the tribunal member, assuring the applicant and sponsor that they would be contacted if any adverse issues arose and given an opportunity to comment, created a legitimate expectation of procedural fairness. The fact that the MRT did not subsequently contact the applicant or sponsor to discuss the specific issues that informed its adverse findings, particularly concerning financial hardship and family impact, meant that they were denied a reasonable opportunity to make comprehensive submissions. This failure to provide particulars of the adverse considerations and to allow for a response meant the MRT did not act in a way that was just and fair, thereby constituting a jurisdictional error.