FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717

ORDERS

THE COURT ORDERS THAT:

1.    The respondents be granted leave to raise the ground identified in their notice of contention and leave to rely on the affidavits of the first respondent dated 21 March 2022 and 1 April 2022.

2.    The appellant be granted leave to file a further amended notice of appeal in the form of the draft amended notice of appeal dated 15 May 2023 and leave to raise the additional ground identified in the further amended notice of appeal despite it not having been advanced in the court below.

3.    The appeal be allowed.

4.    Orders 2 to 6 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 5 November 2021 be set aside and in lieu thereof the following orders be made:

2.    The application be dismissed.

3.    The applicants pay the first respondent’s costs of and incidental to the proceedings.

5.    There be no order in respect of the costs of the appeal.

6.    The respondents be granted a costs certificate in respect of the appeal pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    Mr Paul Antoon, an Australian citizen, is married to Ms Nada Jawhar, a citizen of Lebanon. Mr Antoon sponsored Ms Jawhar to migrate to Australia and Ms Jawhar applied for a visa on the basis that she was Mr Antoon’s partner. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused that visa application. Mr Antoon applied to the Administrative Appeals Tribunal for a review of that decision. That application was unsuccessful and the Tribunal affirmed the delegate’s decision. Mr Antoon and Ms Jawhar next commenced proceedings in the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)). They alleged that, in conducting its review of the delegate’s decision, the Tribunal failed to comply with s 359A(1) of the Migration Act 1958 (Cth) and its decision was therefore affected by jurisdictional error.

2    That argument was successful and the primary judge quashed the Tribunal’s decision and made a number of other orders: Antoon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 224 (J).

3    Section 359A of the Act required the Tribunal to give Mr Antoon particulars of information that it considered would be a reason for affirming the decision under review, ensure that Mr Antoon understood why the information was relevant to the review, and invite Mr Antoon to comment on or respond to the information. The primary judge found that, while the Tribunal had given Mr Antoon particulars of the information in question, it did not inform him (in writing) why the information was relevant to the review and the consequences of it being relied on, or invite him to comment on it: J [52]. Importantly, however, the primary judge also found that in the particular circumstances of the case, compliance with those requirements would have made no difference to the overall outcome: J [55]. That was because Mr Antoon and Ms Jawhar were well aware of the information, it having been discussed with them during the Tribunal hearing: J [55]. His Honour nevertheless held that he was bound to find that the Tribunal’s decision was affected by jurisdictional error: J [56]-[57].

4    The central question raised by the Minister’s appeal from the judgment of the primary judge is whether the primary judge was in error in finding that the Tribunal’s failure to comply with s 359A of the Act gave rise to a jurisdictional error even though compliance would have made no difference to the outcome. That, however, is not the only issue.

5    Mr Antoon and Ms Jawhar filed a notice of contention in which they contended that the primary judge should have found that the failure of the Tribunal to comply with [s 359A] of the Act could have made a difference to the result. Mr Antoon and Ms Jawhar required leave to advance that contention on appeal as they did not advance that argument before the primary judge. They also sought leave to adduce evidence in support of that contention.

6    The Minister also shifted ground during the course of the appeal. After the hearing of the appeal had concluded, the Minister applied to amend his notice of appeal to include a new ground of appeal. That ground was that the primary judge erred by failing to consider whether to exercise his discretion to refuse to grant relief to Mr Antoon and Ms Jawhar on the basis that no useful result could ensue if the relief were granted.

7    For the reasons that follow, the Minister’s appeal must be allowed. While the primary judge did not err in finding jurisdictional error on the part of the Tribunal, his Honour erred in failing to consider exercising the discretion to refuse relief. The Tribunal’s failure to comply with s 359A of the Act could have made no difference to the outcome of the Tribunal’s review and no useful result could have ensued if the review had been remitted to the Tribunal.

VISA APPLICATION AND REFUSAL

8    Ms Jawhar applied for a Partner (Provisional) (Class UF) visa on 17 January 2017. One of the criteria for the grant of that visa was that the visa applicant met public interest criterion 4007 (PIC4007): reg 309.225(a) of the Migration Regulations 1994 (Cth). One of the requirements of PIC4007, which was in sch 4 of the Regulations, was that the applicant was “free from a disease or condition in relation to which … a person who has it would be likely to … require health care or community services … and … the provision of the health care or community services would be likely to … result in a significant cost to the Australian community in the areas of health care and community services”: PIC4007(1)(c)(i)(A) and (ii)(A).

9    The Minister, however, had a discretion to waive the requirements of PIC4007(1)(c) if the applicant satisfied all other criteria for the grant of the relevant visa and the Minister was satisfied that the “granting of the visa would be unlikely to result in … undue cost to the Australian community; or … undue prejudice to the access to health care or community services of an Australian citizen or permanent resident”: PIC 4007(2).

10    Regulation 2.25A(1) of the Regulations provided that in determining whether an applicant satisfied the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person meets the requirements of, inter alia, PIC 4007(1)(c), other than in two circumstances that are not presently relevant. Regulation 2.25A(3) provided that the Minister was to take the opinion of the Medical Officer on a matter referred to in reg 2.25A(1) to be correct for the purposes of deciding whether a person met a requirement or satisfied a criterion.

11    On 13 June 2017, a Medical Officer provided an opinion that Ms Jawhar did not satisfy PIC 4007(1)(c)(ii)(A) because she was not free from a condition which would be likely to require health care or community services and the provision of which would be likely to result in a significant cost to the Australian community. The Medical Officer found that Ms Jawhar had multiple sclerosis which would be likely to require pharmaceuticals and medical services at a cost to the Australian community which was estimated to be $1,238,450.

12    On 14 June 2017, the Minister’s department (the Department of Immigration and Border Protection) wrote to Ms Jawhar and invited her to comment on the Medical Officer’s opinion. On 26 July 2017, Ms Jawhar’s migration agent responded to that invitation and requested a waiver of the health requirement. The submissions in support of the waiver included that Mr Antoon’s financial position was such that he could meet Ms Jawhar’s needs. The Department subsequently requested, and Ms Jawhar’s agent subsequently provided, further information and documentation in respect of the waiver request.

13    On 2 May 2018, a delegate of the Minister refused Ms Jawhar’s visa application. The delegate found that Ms Jawhar did not satisfy the “health requirement” in PIC4007(1)(c)(ii)(A) and declined to waive that requirement. In the context of declining to waive the health requirement, the delegate found, among other things, that she was not satisfied that “the significant cost identified [by the Medical Officer] was outweighed by mitigating factors and/or compassionate and compelling circumstances”. The delegate was also plainly not satisfied with the information provided concerning Mr Antoon’s financial position and concluded that Mr Antoon and Ms Jawhar had “a limited capacity to mitigate the potential costs involved, particularly over the 47 year period that the Medical Officer of the Commonwealth has indicated that the applicant will require pharmaceuticals for”.

THE TRIBUNAL’S REVIEW

14    Mr Antoon applied to the Tribunal for a review of the delegate’s decision on 21 May 2018.

Events preceding the hearing

15    On 5 November 2020, the Tribunal wrote to Mr Antoon asking him to advise by 12 November 2020 if he wanted to obtain a current Medical Officer assessment and opinion. Mr Antoon promptly responded in the affirmative and the Tribunal confirmed that a further opinion would be arranged. The Tribunal asked Mr Antoon to complete a form to enable that to occur. He did so on 19 November 2020.

16    The Tribunal also wrote to Mr Antoon on 16 November 2020 and requested that he explain, inter alia, how he and Ms Jawhar “will mitigate the cost to the Australian community of the estimated pharmaceutical costs” of Ms Jawhar’s medical condition. Mr Antoon responded to that request on 27 November 2020 and explained that he: collected monthly rent of $4,200 for two business premises in Redfern and $250 per week for a granny flat at his residential premises; earned an annual income of $63,000; had $50,000 in a bank account; and had taken out a home loan of $100,000.

17    On 30 November 2020, a Medical Officer issued a further opinion that Ms Jawhar did not satisfy PIC4007(1)(c)(ii)(A). The opinion was in virtually identical terms to the first opinion, save that the estimated total cost of the pharmaceuticals and medical services likely to be required by Ms Jawhar was $187,500. That estimate was self-evidently significantly less than the estimate given in conjunction with the first opinion.

The Tribunal hearing

18    Mr Antoon and Ms Jawhar attended a hearing before the Tribunal (conducted via videolink) on 22 December 2020. During the hearing, the Tribunal drew to Mr Antoon and Ms Jawhar’s attention the second Medical Officer’s opinion and discussed with them its contents and effect. The Tribunal specifically noted that the “big difference” between the first and second Medical Officer opinions was that the estimated cost of Ms Jawhar’s medical treatment had been “reduced” to $187,500 and that the significantly lower estimate was “very good” for them. The Tribunal explained that it had the power to waive compliance with PIC4007 if the cost of health care or community services specified in the second opinion was unlikely to be “undue” and that, in determining whether that cost was unlikely to be undue, it would consider whether Mr Antoon had the capacity to mitigate or contribute to some of that cost. Much of the hearing was devoted to addressing that issue.

Events following the hearing

19    On 24 December 2020, two days after the hearing, the Tribunal wrote to Mr Antoon. The Tribunal’s letter attached a copy of the second opinion of the Medical Officer, though it did not discuss the contents of that opinion other than noting that it included “new estimated costs to the Australian community”. The letter also attached Mr Antoon’s individual tax return and notice of assessment for the year ended 30 June 2017. The Tribunal referred, in that context, to Mr Antoon’s oral evidence at the hearing that he earned approximately $5,200 in rent per month and noted that that income had not been declared in his tax return. Mr Antoon was invited to respond to the letter by 8 January 2021.

20    Mr Antoon provided a response to the invitation in the Tribunal’s letter on 7 January 2021. That response made no reference to the second opinion of the Medical Officer.

The Tribunal’s decision

21    The Tribunal affirmed the delegate’s decision.

22    In its Statement of Decision and Reasons dated 11 January 2021, the Tribunal first addressed whether Ms Jawhar satisfied PIC4007(1). It noted, in that context, that it was required by reg 2.25A(1) to seek the opinion of a Medical Officer unless either of the two exceptions in that regulation applied: Reasons [11]. It found that neither of those exceptions applied and that an opinion from a Medical Officer was therefore required: Reasons [12]. The Tribunal also noted that reg 2.25A(3) required it to take the Medical Officer’s opinion as correct, so long as it was satisfied the Medical Officer had applied the correct test in forming the opinion: Reasons [11]-[12]. The Tribunal recorded that it was satisfied that the Medical Officer had applied the correct test and that the opinion was therefore valid: Reasons [14].

23    It should be noted, in that context, that there is no suggestion that Mr Antoon or Ms Jawhar had submitted to the Tribunal that the Medical Officer’s opinion was invalid, or that the Tribunal was not required to take the opinion to be correct for the purposes of deciding whether Ms Jawhar met PIC4007(1)(c). It was, in those circumstances, not surprising that the Tribunal accepted as correct the Medical Officer’s opinion that Ms Jawhar did not meet PIC 4007(1)(c): Reasons [16].

24    The Tribunal next addressed whether the requirements of PIC4007(1)(c) should be waived pursuant to PIC4007(2). That required the Tribunal to determine whether it was satisfied that the granting of the visa would be unlikely to result in either “undue cost” to the Australian community, or “undue prejudice” to the access to health care or community services of an Australian citizen or permanent resident. The Tribunal noted, in that regard, that the “evaluative judgment of whether the cost to the Australian community or prejudice to others is ‘undue’ may import considerations of compassionate or other circumstances”: Reasons [18]. The Tribunal also referred to the “discretionary element” to waiver and noted the broad range of considerations that may be relevant to the exercise of the discretion.

25    The Tribunal gave detailed consideration to Mr Antoon’s submission that he had the capacity to mitigate the likely cost to the Australian community of the medical services and pharmaceuticals required by Ms Jawhar, as well as the information that Mr Antoon had provided in support of that submission. Ultimately, however, the Tribunal was not satisfied that Mr Antoon had provided “clear or reliable information about the source of his income” (Reasons [39]), or that he had been “completely clear and open about his businesses, and his sources of income”: Reasons [40]. The Tribunal was not satisfied that it could rely on the evidence that Mr Antoon “may mitigate the likely significant cost to the Australian community in the areas of health care and/or community services”: Reasons [40]. In those circumstances, the Tribunal was “not satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b)”: Reasons [42]. It therefore concluded that “PIC4007(1)(c) cannot be waived” (Reasons [42]), and that, as Ms Jawhar had not met the requirements of PIC4007, the decision under review must be affirmed: Reasons [43].

IN THE COURT BELOW

26    Mr Antoon and Ms Jawhar applied for an extension of time to commence proceedings in the Circuit Court seeking prerogative relief pursuant to s 476 of the Act in respect of the Tribunal’s decision.

27    The primary judge accepted the explanation for the delay in filing the application: J [23]. In those circumstances, his Honour considered that it was appropriate to allow the application for an extension of time and hear “in detail” the merits of the application and the proposed ground of challenge to the Tribunal’s decision: J [24]-[25].

28    As noted earlier, the sole ground of challenge to the Tribunal’s decision was that it had failed to comply with s 359A of the Act because it did not invite Mr Antoon and Ms Jawhar to comment on the report of the Medical Officer dated 30 November 2020, that report being the second opinion of the Medical Officer.

29    Sections 359AA and 359A of the Act provide as follows:

359AA Information and invitation given orally by Tribunal while applicant appearing

(1)     If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)     the Tribunal may orally give to the applicant 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)     if the Tribunal does so—the Tribunal must:

(i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)     orally invite the applicant to comment on or respond to the information; and

(iii)     advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)     if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)     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 362B(1F).

359A Information and invitation given in writing by Tribunal

(1)     Subject to subsections (2) 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 379A; or

(b)     if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)     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 359AA.

(4)     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.

(5)     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 362B(1F).

30    While Mr Antoon’s and Ms Jawhar’s ground of challenge to the Tribunal’s decision referred to s 359A of the Act, and that was clearly the applicable provision, the primary judge’s reasons for judgment mistakenly refer to the cognate provision in s 424A of the Act. The references in his Honour’s reasons to s 424A of the Act may be taken to be references to s 359A of the Act.

31    The primary judge found that the Tribunal had failed to comply with s 359A of the Act: J [50]-[54]). The Minister does not challenge the primary judge’s finding that the Tribunal failed to comply with s 359A of the Act. His Honour’s reasons for so finding may accordingly be set out in relatively brief terms.

32    First, the primary judge found that the Tribunal did not fully comply with s 359AA of the Act: J [50]. While the Tribunal orally gave Mr Antoon and Ms Jawhar clear particulars of the relevant information in the second opinion of the Medical Officer and outlined its consequences for the review (cf s 359AA(1)(a) and (b)(i) of the Act), it did not clearly invite them to comment on that information or advise them that they could seek additional time to comment on it. The Tribunal therefore did not comply with ss 359AA(b)(ii) or (iii) of the Act. It followed that the Tribunal was not relieved of the obligation to comply with s 359A in respect of the second opinion of the Medical Officer.

33    Second, the primary judge found that the Tribunal did not satisfy all of the requirements in s 359A of the Act. While the Tribunal gave Mr Antoon and Ms Jawhar a copy of the second opinion of the Medical Officer under cover of its letter dated 24 December 2021 (J [51]), the Tribunal’s letter did not explain why the information in the second opinion was relevant to the review, or the consequences of it being relied upon, or expressly invite Mr Antoon and Ms Jawhar to comment or respond to that information: J [52]. The Tribunal accordingly did not comply with s 359A(1)(b) or (c) of the Act.

34    Third, the primary judge was not satisfied that the exceptions in s 359A(3) applied: J [53]. The information was personal to Mr Antoon and Ms Jawhar, so the exception in s 359A(3)(a) did not apply: J [53]. The information was also not provided by Mr Antoon or Ms Jawhar and was not non-disclosable information, so the exceptions in ss 359A(3)(b), (ba) and (c) of the Act did not apply: J [54].

35    The primary judge found that the Tribunal’s failure to comply with s 359A of the Act constituted a jurisdictional error: J [52], [57]. That was despite his Honour’s emphatic finding that nothing that Mr Antoon and Ms Jawhar could have said about the second opinion of the Medical Officer “would have affected the [Tribunal’s] consideration” of that opinion and that the Tribunal’s error in failing to comply with s 359A therefore “would have made no difference to the overall outcome”: J [55], [57].

36    The Minister had submitted to the primary judge that the Tribunal’s breach of s 359A of the Act was not a material error or breach and was therefore not a jurisdictional error. Mr Antoon and Ms Jawhar submitted that a breach of s 359A was sufficient to constitute jurisdictional error. His Honour was taken, in that context, to the decision of the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; (2021) 390 ALR 590; [2021] HCA 17 “regarding the need to show materiality prior to finding jurisdictional error”: J [57]. His Honour considered, however, that he was bound to follow two judgments of this 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: see J [56]-[57]. In those judgments, single judges of this Court had followed and applied the earlier decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24. The majority in SAAP had held that the Tribunal’s compliance with s 424A of the Act was a condition of the valid performance of the duty to review.

37    Having found jurisdictional error on the part of the Tribunal, his Honour granted the relief sought by Mr Antoon and Ms Jawhar in their substantive application: J [58].

GROUNDS OF APPEAL

38    The Minister’s main grounds of appeal were as follows:

1.    The primary judge made an appealable error in holding that the failure by the second respondent (Tribunal) to comply with the requirements of s 359A or s 359AA of the Migration Act 1958 (Cth) in respect of a report of a Medical Officer of the Commonwealth dated 30 November 2020 (MOC Report) amounted to a jurisdictional error, despite having found that compliance would have made no difference to the overall outcome: at [55], [57].

2.    Having found that compliance with s 359A or s 359AA of the Act in respect of the MOC Report at least could not have made a difference to the Tribunal's decision on review, the primary judge should have held that that decision was not affected by jurisdictional error.

3.    In making orders 3 and 4, the primary judge fell into an appealable error, in circumstances where:

a.    contrary to the terms of order 4, no "recommendation of the independent Protection Assessment Reviewer" was made in the present case;

b.    contrary to the terms of order 5, there was no "future decision" or "other action" of the appellant (Minister) or their Department, officers, delegates or agents the subject of the proceedings such that the grant of an injunction was warranted; and

c.    in their written submissions, the Applicants did not refer to the prayers for relief in their application filed on 23 March 2021 corresponding to orders 4 and 5, such that it should have been understood by the primary judge that they were not pressed.

(Emphasis in original)

39    As adverted to earlier, the Minister belatedly applied for leave to include an additional ground of appeal (ground 4). The essence of the proposed new ground of appeal was that the primary judge erred in failing to consider whether to decline to grant Mr Antoon and Ms Jawhar the relief sought by them on discretionary grounds on the basis that the Tribunal’s failure to comply with s 359A of the Act could not have made any difference to the result of the Tribunal’s review. The Minister’s application for leave to amend and that additional appeal ground are considered separately later in these reasons.

40    The critical question raised by appeal grounds 1 and 2 is whether 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 primary judge clearly found that Tribunal’s breach of s 359A of the Act was immaterial to the outcome of the Tribunal’s decision. If an immaterial breach of s 359A of the Act does not constitute a jurisdictional error, his Honour erred in concluding that the Tribunal’s breach of s 359A in the circumstances of this case was a jurisdictional error and therefore erred in granting the relief sought by Mr Antoon and Ms Jawhar.

41    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 decisions of the High Court, albeit decisions that did not directly concern breaches of s 359A (or s 424A) of the Act. The main decisions relied on by the Minister in that regard were: 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; and MZAPC.

42    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, would have made some difference to the relevant outcome. In the Minister’s submission, while the decision in SAAP had not been expressly overruled, it is nevertheless necessary to read it in light of the more recent authorities concerning materiality. The Minister also submitted that the primary judge was not bound to follow DYI16 because the reasoning in that judgment concerning materiality and SAAP was clearly obiter dicta.

43    For their part, Mr Antoon and Ms Jawhar effectively conceded that the primary judge was not bound to follow DYI16, but maintained that the primary judge was bound to follow SAAP, which had not been overruled and was still good law. In their submission, SAAP establishes that any breach of s 424A of the Act constitutes jurisdictional error, irrespective of the materiality of the breach in question to the outcome of the review. That finding necessarily applies to the cognate provision in s 359A of the Act.

44    The arguments concerning appeal ground 3 are considered later in these reasons. It is really only necessary to determine appeal ground 3 if the Minister’s other appeal grounds fail.

NOTICE OF CONTENTION

45    Mr Antoon and Ms Jawhar filed a notice of contention. The sole ground in the notice of contention was that “the failure of the Tribunal to comply with section 424A of the Migration Act 1958 could have made a difference to the result”. The reference to s 424A of the Act may be taken to be a reference to s 359A of the Act, which (despite the primary judge’s repeated reference to s 424A of the Act) was in fact the provision in question in this matter.

46    Mr Antoon and Ms Jawhar sought to adduce affidavit evidence on appeal in support of their notice of contention. That evidence comprised affidavits sworn by Mr Antoon on 21 March 2022 and 1 April 2022. The content of those affidavits was effectively the same. Mr Antoon’s evidence was that if the Tribunal had informed him in writing that a reason for allowing his application would be that it was not satisfied that he could mitigate the amount of $187,500, being the amount referred to in the second opinion of the Medical Officer, he would have responded in writing that he was “prepared to pay all what [his] wife’s health needs and treatment when it is required” and that he would give security over his property “for it”. He also said that he did not give that evidence in the court below because there was “binding higher Court authority that materiality was not a matter that had to be established if there was a breach of s 359A of the Act”.

47    The Minister contended that the Court should refuse to grant Mr Antoon and Ms Jawhar leave to raise the ground in the notice of contention and should refuse to admit the affidavit evidence of Mr Antoon. In the Minister’s submission, he would be prejudiced by the ground in the notice of contention being raised for the first time on appeal. The Minister maintained that, had that ground, and Mr Antoon’s affidavit evidence in support of it, been advanced in the court below, he would have cross-examined Mr Antoon and sought the production of documents relevant to Mr Antoon’s assets. The Minister also submitted that no satisfactory explanation had been provided as to why the ground in the notice of contention had not been advanced in the court below and that the new ground was, in any event, a “bad one”.

48    The issues raised by the notice of contention and Mr Antoon’s evidence are best considered after addressing the Minister’s primary grounds of appeal.

MATERIALITY, JURISDITIONAL ERROR AND S 359A OF THE ACT

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?

The decision in SAAP

50    The facts in SAAP were that a visa applicant (A) had applied to the Refugee Review Tribunal (RRT) for the review of a decision to refuse to grant her a protection visa. The RRT conducted a hearing via videolink. It took evidence from A’s elder daughter in A’s absence. The RRT then raised with A several issues arising from her daughter’s evidence which were potentially adverse to A’s case. It invited A to respond orally. The RRT did not, however, give A written particulars of the issues arising from her daughter’s evidence. Section 424A required it to do so.

51    The Court, at first instance, found that while the RRT had failed to comply with s 424A of the Act, there had been no failure to accord procedural fairness. The Court declined to grant A the relief she had sought on that basis: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577. The Full Court dismissed an appeal from that judgment: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411.

52    A’s appeal to the High Court was seen to raise four questions: first, whether the RRT had breached s 424A; second, whether there had been a denial of procedural fairness; third, whether the breach of s 424A of the Act, or the denial of procedural fairness, gave rise to a jurisdictional error; and fourth, whether there was any basis for withholding discretionary relief under s 39B of the Judiciary Act 1902 (Cth). The majority in the High Court (McHugh, Kirby and Hayne JJ) held that the RRT had breached s 424A, that breach gave rise to a jurisdictional error and that there were no grounds to exercise the jurisdiction to refuse to grant relief.

53    It is, for present purposes, unnecessary to consider the separate reasons of the majority justices for finding that there had been a breach of s 424A of the Act. What matters is the basis upon which their Honours found that that breach gave rise to a jurisdictional error. Brief consideration should also be given to the reasoning concerning the discretionary withholding of relief.

54    McHugh J considered that the question whether a breach of s 424A amounted to a jurisdictional error essentially turned on the question whether compliance with s 424A was an imperative duty: SAAP at [72]. That, in turn, depended on whether, having regard to the language of the provision and the scope and object of the whole statute, it was a purpose of the legislation that any act done in breach of the provision would be invalid: SAAP at [73] citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91], [93]. His Honour concluded (at [77]) that, because compliance with s 424A was mandatory, “failure to comply means that the Tribunal has not discharged its statutory function”. Similarly, his Honour reasoned (at [77]) that, because Parliament had made s 424A “one of the centrepieces of its regime for 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”: SAAP at [77].

55    As for the discretionary withholding of relief, McHugh J held that there was no basis to refuse relief on discretionary grounds because there was no “delay, waiver, acquiescence or unclean hands”. Perhaps more significantly, his Honour reasoned (at [84]) that the issue as to whether A was in fact deprived of the opportunity to deal with the adverse material arising from her daughter’s evidence “should not affect the discretion to grant relief”.

56    Hayne J emphasised the imperative language in s 424A of the Act, which stood in sharp contrast to the permissive terms of other provisions, including s 424 of the Act. His Honour concluded as follows (at [208]):

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.

(Emphasis in original)

57    As for the discretion to withhold relief, like McHugh J, Hayne J pointed to the absence of any suggestion of delay, waiver, or acquiescence. His Honour held (at [211]) that the fact that A was aware of and had sufficient opportunity to meet anything arising from her daughter’s evidence was not a consideration which bore on whether “certiorari should go to quash what is found to be an invalid decision”.

58    Justice Kirby essentially agreed with Hayne J that, because of the mandatory language of s 424A, any breach is sufficient to constitute jurisdictional error: “[a]n imperative obligation for the conduct of a review by the Tribunal has not been complied with” (at [173]). His Honour also agreed with Hayne J that such submissions as had been advanced for the refusal of relief on discretionary grounds were “unconvincing” (at [174]).

59    The following two points emerge from the reasoning of the majority justices in SAAP.

60    First, each of the majority justices clearly found that, given the mandatory language and importance of s 424A of the Act to the RRT’s review, any breach of s 424A would constitute a jurisdictional error. It should perhaps be noted, in that context, that while there have been a number of amendments to div 4 of pt 7 of the Act (and div 5 of pt 5 of the Act) since SAAP was decided, the mandatory language of s 424A remains.

61    Second, none of the majority justices suggested 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 RRT’s review could have been different. That may have been a product of the way the Minister argued the appeal. The Minister’s main argument in SAAP was that s 424A was not an imperative duty, at least where compliance with it was not essential in order to provide procedural fairness. While the Minister appeared to argue that the breach in question did not give rise to any unfairness and that compliance could have made no difference, that argument was advanced in the context of the question whether it was appropriate to decline to grant relief on discretionary grounds. Nevertheless, the point remains that there is no suggestion in the reasoning of any of the majority justices that the breach would not amount to a jurisdictional error if it was not material.

62    The decision in SAAP has not been the subject of any detailed consideration by the High Court.

63    In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 10; [2007] HCA 26 at [13], SAAP was referred to by the plurality to be authority for the proposition that that the effect of s 424A of the Act was “mandatory, in that a breach of the section constituted jurisdictional error”. The plurality ultimately found that s 424A was not engaged in the circumstances of the case and that there was therefore no jurisdictional error.

64    It is important to emphasise that in SZBYR, the Court made it clear that had there been a breach of s 424A, it would nevertheless have been appropriate to refuse relief on discretionary grounds because, in effect, compliance would have made no difference to the outcome (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [29]; Kirby J at [32], [87]-[90], Hayne J at [91]). It is equally worth noting that according to Kirby J (at [74]), the Minister declined to challenge SAAP, “despite a few hints from the bench”, and accepted it as correctly stating the law on s 424A.

65    In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16, a judgment handed down only four months before the judgment in Hossain was handed down, SAAP was cited in a footnote (at [11]) as authority for the proposition that compliance with s 57(2) of the Act “is a condition of the valid performance of the duties of the Minister to consider a valid [visa] application … with the consequence that non-compliance renders a decision to refuse to grant a visa invalid in the sense that the decision is ineffective in law to achieve the result”. Section 57(2) of the Act is in similar terms to s 359A(1) and 424A(1) of the Act. That passage from Plaintiff M174/2016 was cited, without qualification, in Plaintiff M7/2021 v Minister for Home Affairs (2021) 95 ALJR 404; [2021] HCA 14 at [49], a case decided after Hossain and SZMTA.

The “threshold of materiality” – Hossain, SZMTA, MZAPC

66    Starting with the decision in Hossain, the High Court has made it clear in a number of cases 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. While none of those cases concerned a breach of ss 359A or 424A of the Act, nor does the reasoning in any of the cases clearly exclude any provision of the Act from that general proposition.

67    In Hossain, a delegate of the Minister refused to grant a visa to the visa applicant (H). The Tribunal affirmed that decision on review. The Tribunal was not satisfied that H had met two prescribed criteria for the grant of the visa. In subsequent judicial review proceedings, the Minister conceded that the Tribunal had erred in law in its consideration of one of the criteria. That error was found to constitute a jurisdictional error. The High Court held, however, that the Tribunal’s error was not a jurisdictional error because it could not have affected the decision that the Tribunal in fact made. That was because the Tribunal could not, in any event, have been satisfied that H had met the other criterion.

68    The plurality (Kiefel CJ, Gageler and Keane JJ) noted (at [27]) that the question whether a particular failure to comply with an express or implied statutory condition amounted to a jurisdictional error is to be answered by construing the statute in question. More significantly, their Honours held (at [29]) that ordinarily a statute is “not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition”; rather the stature is “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”. Their Honours continued (at [30]):

Whilst a statute on its proper construction might set a higher or lower threshold of materiality [fn. cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24], the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

69    Footnotes have been omitted from this extract from the judgment of the plurality, save for the footnoted reference to SAAP. The import of that reference is somewhat unclear. As the earlier discussion of the majority judgments in SAAP made clear, there was no reference to any “threshold of materiality” in SAAP, save perhaps in the context of the discretion to refuse relief.

70    Justice Edelman (with whom Nettle J agreed), also held that in order to determine whether a breach of a statutory condition leads to invalidity it is necessary to construe the statute in question (at [66]). More significantly, his Honour reasoned that “not every express or implied condition must be construed in a binary way” and that it is unlikely to be concluded that the legislature intended that “a decision be rendered invalid by an immaterial error” (at [67]). His Honour summarised the position concerning materiality in the following terms (at [72]):

In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome.

(Footnote omitted)

71    Justice Edelman went on to note that there may be “unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome”. One such example may be an “extreme case of denial of procedural fairness”.

72    The issue of materiality next arose in SZMTA. In that case, the Secretary gave the Tribunal a notification pursuant to s 438 of the Act concerning the non-disclosure of certain documents. The notification in question turned out to be invalid. The High Court held that procedural fairness obliged the Tribunal to disclose the invalid notification to the review applicant. That did not occur. There was, therefore, a denial of procedural fairness. Justices Bell, Gageler and Keane also held that the provision of the invalid notification amounted, without more, to “an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review” (at [44]). It did not necessarily follow, however, that there was a jurisdictional error. That would only be the case if the breach in question was material. Their Honours said in that regard (at [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.

73    The issue of materiality arose again in MZAPC, another case involving a notification under s 438 of the Act which was not disclosed to a review applicant. The Minister conceded that the non-disclosure of the notification breached the implied condition of procedural fairness in respect of the review. The review applicant’s judicial review application was nevertheless dismissed on the basis that the applicant was unable to demonstrate that the breach was material. In dismissing the appeal, the majority (Kiefel CJ, Gageler, Keane and Gleeson CJ), considered the qualification “ordinarily” in the principle of statutory interpretation enunciated in Hossain; that a statute is “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”. Their Honours said (at [33]):

The qualification “ordinarily”, and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, noncompliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.

(Footnotes omitted)

74    The principle of statutory interpretation concerning the threshold of materiality was most recently affirmed again in Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 at [30]-[33] (Kiefel CJ, Keane and Gleeson JJ) and [45]-[47] (Gageler J). In that case, it was made clear that in some cases the standard of “reasonable conjecture” as to whether the decision in fact made could have been different had the relevant condition been complied with is “undemanding” (at [33], Kiefel CJ, Keane and Gleeson JJ) and “not onerous” (at [47], Gageler J). That will particularly be the case where a party was denied an opportunity to present evidence or make submissions.

Recent cases in this Court

75    The issue as to the construction of s 359A of the Act in light of the recent High Court cases concerning materiality has received surprisingly little considered attention in this Court. When the issue has been considered, the approach that has been taken has not been entirely consistent.

76    The issue received some attention in DME16 v Minister for Immigration and Border Protection [2019] FCA 2135. In that case, the Tribunal did not disclose the existence of a s 438 notification to the review applicant. Justice Flick found, however, that the non-disclosure of the notification did not amount to a denial of procedural fairness because the Tribunal did not rely on any of the material covered by the notification. His Honour followed SZMTA and concluded that the non-disclosure was accordingly not material: DME16 at [25].

77    More significantly, Flick J also found that the Tribunal had failed to comply with s 424A(2) of the Act. Citing SAAP, his Honour stated (at [30]): “[n]on-compliance with s 424A constitutes jurisdictional error and it is not relevant to inquire further as to whether the procedures that were followed by the Tribunal were otherwise procedurally fair”; and “[non] compliance renders a decision invalid”. Somewhat confusingly, however, his Honour subsequently concluded (at [41]) that the breach of s 424A(2) did not give rise to a denial of procedural fairness because the breach was not material. His Honour accordingly rejected the contention that the breach constituted a jurisdictional error. While it is not entirely clear, it would appear that his Honour applied the reasoning in SZMTA to the breach of s 424A, despite having earlier referred to SAAP as authority for the proposition that non-compliance with s 424A constitutes jurisdictional error and therefore renders the resulting decision invalid.

78    Perhaps not surprisingly, the Minister in this matter submitted that DME16 supported the proposition that a breach of s 424A of the Act must be material to the decision on review in order to attract relief.

79    It should also be noted that Flick J also concluded (at [44]-[45]) that he would in any event have declined to grant any relief arising from the breach of s 424A on the basis that compliance would not have led to a different outcome.

80    As discussed earlier, the primary judge placed particular reliance on the judgment in DYI16. So too did Mr Antoon and Ms Jawhar.

81    In DYI16, Wheelahan J considered, but rejected, the contention by the appellant in that case that the Tribunal had breached s 424A of the Act. It followed that his Honour was not required to consider the submission advanced by the Minister that the alleged breach of s 424A was not material and therefore did not constitute a jurisdictional error: DYI16 at [82]. His Honour nevertheless addressed how the decision in SAAP can be reconciled with the more recent High Court decisions concerning materiality. His Honour’s view (at [67]) was that the effect of the judgments of the majority justices in SAAP was that non-compliance with s 424A(1) is necessarily material, because the provision prescribes the content of an imperative obligation to accord procedural fairness, compliance with which is a necessary condition of the validity of the review.

82    The Minister submitted that the view expressed by Wheelahan J in DYI16 was wrong, or if it were necessary to go so far, plainly wrong.

83    A different view was taken in Naikar v Minister for Immigration and Border Protection [2019] FCA 502. In that case, O’Callaghan J considered, but rejected, the contention by the appellant that the Tribunal had breached s 359A of the Act. It is also readily apparent that his Honour considered that, if there had been a breach, that breach would not have been a material breach. His Honour noted, in that context, that the “relevant test” that the Court was bound to apply was the test in Hossain at [30], that test being that “the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made”: see Naikar at [25]-[27]. His Honour did not attempt to grapple with how the “test” in Hossain could be reconciled with the earlier decision in SAAP when it came to breaches of s 359A and 424A of the Act.

84    The same view appears to have been taken by Anastassiou J in DBF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1496, though once again it was not necessary for his Honour to decide the issue because his Honour had concluded that there had been no breach of s 424A of the Act. His Honour did not refer to SAAP.

85    Finally, in Hasnat v Minister for Immigration and Border Protection [2020] FCA 784, brief reference was made (at [102]) to the fact that the breach of s 359A of the Act that had been alleged by the appellant could not realistically have resulted in a different decision and was therefore not material. It is, however, readily apparent that the Court had found that there was no such breach. There also does not appear to have been any real argument concerning requirement of materiality in the context of a breach of s 359A.

86    It is apparent from this brief review of the relevant judgments in this Court that the issue as to how SAAP is to be read in light of the authorities concerning materiality has not been the subject of detailed consideration. With the possible exception of the judgment of Flick J in DME16, the consideration has been obiter dicta as the Court had found that there had been no breach of ss 359A or 424A as the case may be. Such consideration as was given to the issue in DME16 was, with respect, somewhat confusing.

The Minister’s contentions

87    The Minister did not contend that SAAP was no longer good law, or that it had been overruled by Hossain, SZMTA or MZACP. Rather, he submitted that, because no party in SAAP had submitted that there was a “threshold of materiality in the Act, the establishment of which is a component of jurisdictional error”, SAAP “lays down no legal rule concerning that issue”. The Minister cited, in support of that proposition, the judgment of McHugh J in Coleman v Power (2004) 220 CLR 1 at [79].

88    The difficulty for the Minister, however, is that even if that proposition is accepted, unless SAAP is overruled or qualified by a later decision of the High Court, it remains authority for the proposition that want of compliance with s 424A renders the decision invalid; or, as the plurality put it in SZBYR at [13], compliance with s 424A is “mandatory, in that a breach of the section constituted jurisdictional error”. That must also apply in the case of s 359A of the Act.

89    There could be little doubt that the categorical and unconditional nature of the decision of the majority in SAAP sits uncomfortably with the reasoning in Hossain, SZMTA and MZAPC concerning the implication of a threshold of materiality. It is difficult to see why, as a matter of statutory construction, ss 359A and 424A would not be subject to the threshold of materiality in the event of non-compliance. It is difficult to see any basis for finding that the legislature intended that all breaches of those provisions would result in the invalidity of the Tribunal’s decision, even if compliance in the circumstances could not have made any difference to the outcome. That said, the statement of principle in Hossain, SZMTA and MZAPC was qualified by the expression “ordinarily”. More importantly, none of those cases expressly overruled SAAP. Nor would it be appropriate for a single judge of this Court, albeit sitting as the Full Court, to conclude that they impliedly overruled SAAP. In any event, as has already been noted, the Minister did not contend that SAAP had been impliedly overruled.

90    The Minister suggested that the footnoted reference to SAAP in Hossain (at [30]) might indicate that the plurality viewed SAAP as now having to be read subject to the implication identified in Hossain. That would appear to be somewhat speculative. More fundamentally, that is tantamount to suggesting that Hossain impliedly overruled SAAP. If SAAP was to be read subject to the implication identified in Hossain, it would no longer be authority for the unqualified proposition that want of compliance with s 424A renders the decision invalid, or that compliance with s 424A is mandatory, in that a breach of the section constitutes jurisdictional error.

91    The Minister submitted, in the alternative, that the reference to SAAP in Hossain might suggest that their Honours intended to suggest that SAAP is an example of a case where the breach of s 424A in question was such that the threshold of materiality had been met. It is, however, difficult to read into the reasoning of the majority justices in SAAP any finding that the breach of s 424A in question was material in the requisite sense. Indeed, if anything, the reasoning of the majority would suggest that their Honours were of the view that, as a matter of statutory construction, any breach of s 424A of the Act is a material breach.

Conclusion – a breach of s 359A amounts to a jurisdictional error

92    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.

93    It is also possible, at least to some extent, to reconcile the majority judgments in SAAP with the reasoning in Hossain, SZMTA and MZAPC. The majority justice in SAAP may be taken to have concluded either that the nature of the obligation in s 424A is such that no “additional threshold” of materiality need be met (cf MZAPC at [33]), or that the threshold of materiality is set very low (cf Hossain at [30]), in the sense that the “standard of reasonable conjecture” is “undemanding or not onerous” (cf Nathanson at [33], [47]). In other words, little if anything is required to establish that any breach of s 424A is material, in the sense that compliance in the circumstances could reasonably have led to a different outcome.

94    That reconciliation is broadly consistent with the reasoning of Wheelahan J in DYI16 at [67]. To the extent that the judgment in DYI16 is inconsistent with the judgment of Flick J in DME16, the better view is that the judgment in DME16 is plainly wrong. Likewise, to the extent that DYI16 is considered to be inconsistent with the obiter dicta in Nakair, DBF16 and Hasnat, the dicta in those cases is wrong and should not be followed.

95    It follows that, while the primary judge may not have been bound to follow DYI16, his Honour did not err in doing so. His Honour was in fact bound by SAAP to conclude that the breach of s 424A constituted a jurisdictional error with the result that the Tribunal’s decision was invalid. That was so despite his Honour’s finding that the “error” on the part of the Tribunal would have made no difference to the outcome of the review. The Minister’s appeal grounds 1 and 2 have accordingly not been made out.

96    The question whether the primary judge erred in granting relief is another matter. Before considering that question, it is convenient to address the notice of contention filed by Mr Antoon and Ms Jawhar.

NOTICE OF CONTENTION - WAS THE BREACH MATERIAL?

97    Mr Antoon and Ms Jawhar did not contend, before the primary judge, that the Tribunal’s breach of s 359A of the Act was a material breach, in the sense that compliance could, in all the circumstances, reasonably have led to a different result. That was not a contention which was included in their initiating application in the court below. Nor does the transcript of the hearing in the court below suggest that they sought to persuade the primary judge that the Tribunal’s failure to comply with s 359A was material in the relevant sense. That perhaps explains why Mr Antoon and Ms Jawhar did not adduce any evidence in the court below. It is tolerably clear that Mr Antoon and Ms Jawhar made the forensic decision, no doubt based on the advice of their counsel, to proceed on the basis that they did need to establish the materiality of the Tribunal’s breach.

98    Mr Antoon and Ms Jawhar also sought to adduce evidence in support of their notice of contention in the form of affidavit evidence of Mr Antoon. As adverted to earlier, that affidavit evidence addressed two issues.

99    First, it sought to explain why the evidence which he seeks to adduce on appeal was not adduced in the court below. That explanation was that “there was binding higher Court authority that materiality was not a matter that had to be established if there was a breach of s 359A of the Act as alleged by the applicants”. That evidence does little more than confirm that Mr Antoon made a forensic decision to rely on what was considered to be “binding higher Court authority” and not seek to establish that the breach was, as a matter of fact, material in the requisite sense.

100    Second, the evidence identifies and sets out precisely what evidence Mr Antoon and Ms Jawhar would have adduced in the Court below in respect of the issue of materiality. That evidence was as follows:

Had the Tribunal informed me in writing that the reason for not allowing my application would be that it was not satisfied that I could mitigate the amount of $187,500 in the medical officer’s opinion then I would have responded in writing that I was prepared to pay all what my wife’s health needs and treatment when it is required, and that I would give security over my property for it, to enable my wife and children to live with me in Australia.

101    The Minister was afforded the opportunity to cross-examine Mr Antoon. He did not avail himself of that opportunity.

102    It is necessary to first consider whether Mr Antoon and Ms Jawhar should be granted leave to raise an argument that was not raised in the court below. The question of whether Mr Antoon and Ms Jawhar should be permitted to lead evidence on appeal in respect of that argument can then be addressed.

Leave to raise the new contention

103    Leave to argue a new ground of appeal not raised before the primary judge should only be granted if it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration, Multicultural, and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]. The same can be said concerning leave to raise a contention which was not raised before the primary judge.

104    The following observations of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7 are pertinent to whether it is expedient in the interests of justice to permit a new point to be raised for the first time on appeal:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

105    After referring to those observations in Coulton, the Full Court in VUAX (Kiefel, Weinberg and Stone JJ) said (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

106    There are a number of factors that militate against granting Mr Antoon and Ms Jawhar leave to raise the new argument concerning the materiality of the Tribunal’s breach of s 359A of the Act.

107    First, while the evidence provides an explanation for why the contention concerning the materiality of the Tribunal’s breach was not raised before the primary judge, that explanation is far from adequate or acceptable. The explanation is that Mr Antoon and Ms Jawhar made the forensic decision to rely on “binding higher Court authority”. It is unclear exactly what “higher Court authority” was relied on in that regard. Whatever it was, it must have been readily apparent to Mr Antoon and Ms Jawhar that the Minister contended that the Tribunal’s breach of s 359A was not material and was therefore not a jurisdictional error. In those circumstances, it would not be unreasonable to hold Mr Antoon and Ms Jawhar to the forensic choice they made in the court below.

108    Second, the issue concerning the materiality of the alleged breach by the Tribunal was plainly a factual issue that could and should have been raised at first instance. More importantly, there is some force in the Minister’s contention that he may be prejudiced if the factual issues relevant to materiality are permitted to be ventilated for the first time on appeal. The Minister indicated that Mr Antoon would have been required for cross-examination if the evidence he sought to adduce on appeal had been adduced at first instance. The Minister also maintained that he would have issued a notice to produce in respect of documents relevant to Mr Antoon’s assertion that he had property that was both available and sufficient to secure the anticipated costs of Ms Jawhar’s medical treatment.

109    Third, the contention that the Tribunal’s breach of s 359A was material in the requisite sense appears, at least at first blush, to have insufficient merit to warrant the grant of leave.

110    While those three considerations tend to weigh against the grant of leave, I am nonetheless satisfied that it is expedient in the interests of justice to permit Mr Antoon and Ms Jawhar to raise the contention that the Tribunal’s breach of s 359A of the Act was material and that the primary judge erred in finding otherwise.

111    While it is true that Mr Antoon and Ms Jawhar appear to have made a forensic decision not to raise that contention at first instance, that was perhaps understandable in all the circumstances. The decision in SAAP had not been expressly overruled by the High Court and this Court in DYI16 had fairly recently reasoned that it remained authority for the proposition that compliance by the Tribunal with s 424A(1) (and by analogy s 359A) was a condition of the valid performance of the duty to review. Counsel who appeared for the Minister at first instance also appeared to concede during oral submissions that a failure by the Tribunal to comply with s 359A of the Act would amount to a jurisdictional error even if it was a technical breach.

112    It is equally true that it would have been preferable for the factual issue concerning materiality to have been determined at first instance and that the Minister may suffer some prejudice as a result of the issue being raised first on appeal. That said, it was open to the Minister to cross-examine Mr Antoon in this Court, on the assumption that he may be granted leave to adduce evidence on appeal. The Minister chose not to do so. The Minister could also have issued a notice to produce to Mr Antoon requiring production of documents at the hearing of the appeal. He did not do so. It follows that any prejudice suffered by the Minister as a result of the issue being ventilated for the first time on appeal was not material.

113    Perhaps most significantly, the question whether the Tribunal’s breach of s 359A of the Act was material, in the requisite sense, is a critical, if not determinative, issue in the proceeding. It is also a relatively discreet and confined factual issue. Moreover, the stakes are relatively high for Mr Antoon and Ms Jawhar. It is, in all the circumstances, preferable to permit them to raise the issue concerning materiality in response to the Minister’s appeal.

Leave to adduce evidence on appeal

114    The Court has a discretion to receive evidence on appeal: s 27 of the Federal Court of Australia Act 1976 (Cth). There are no fixed rules governing the exercise of such discretion. The discretion will, however, generally be exercised favourably to the party seeking to adduce it if the Court is satisfied of two matters. Those matters are: first, that the evidence in question could not, with the exercise of reasonable diligence, have been adduced in the court below; and second, that if the evidence had been adduced, it might have led to a different result: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL (2021) 284 FCR 1; [2021] FCAFC 48 at [21].

115    It is somewhat difficult to accept that the evidence that Mr Antoon and Ms Jawhar now seek to adduce could not, with reasonable diligence, have been adduced in the Court below. Rather, as has already been noted, it appears that they simply made a forensic decision not to adduce that evidence because they did not consider it necessary for them to prove that the Tribunal’s breach of s 359A of the Act was a material breach. It is equally rather difficult to accept that Mr Antoon’s evidence, had it been adduced in the Court below, was likely to have led to a different result.

116    I am nevertheless satisfied that it would be in the interests of justice to permit Mr Antoon and Ms Jawhar to adduce evidence on appeal. The evidence in Mr Antoon’s affidavit is narrow in compass and not lengthy or complex. The Minister chose not to cross-examine Mr Antoon. For the reasons already given, any prejudice to the Minister arising from the fact that the evidence is to be led on appeal, rather than at first instance, is not material.

The Tribunal’s breach of s 359A was not material

117    Having determined that it is appropriate to grant Mr Antoon and Ms Jawhar leave to raise the contention and evidence concerning materiality, the critical question is, in essence, whether the outcome of the Tribunal’s review could realistically have been different if the Tribunal had not breached s 359A of the Act. That question must be considered in light of Mr Antoon’s evidence of what he would have said or done if the Tribunal had fully complied with s 359A of the Act.

118    I am not satisfied that the Tribunal’s failure to comply with s 359A of the Act, in the particular circumstances of this case, was material. When consideration is given to the nature of the breach and the basis upon which the Tribunal affirmed the decision to refuse to grant the visa to Ms Jawhar, I am not persuaded that the Tribunal’s decision in respect of the review might have been different if the Tribunal had fully complied with s 359A of the Act.

119    There could be no doubt that Ms Jawhar did not satisfy PIC4007(1)(c)(ii)(A). That is because the opinion in both the first and second Medical Officer opinions was that Ms Jawhar did not meet that criterion. Having found that the second opinion of the Medical officer was valid, the Tribunal was required to take that opinion to be correct. The only issue, then, was whether the Tribunal could or should waive PIC4007(1)(c)(ii)(A). If the Tribunal did not decide to waive PIC4007(1)(c)(ii)(A), it was inevitable that the Tribunal would have to affirm the decision to refuse to grant Ms Jawhar a visa.

120    The Tribunal could only waive PIC4007(1)(c)(ii)(A) if it was satisfied that the granting of the visa would be unlikely to result in either “undue cost” to the Australian community, or “undue prejudice” to the access to health care or community services of an Australian citizen or permanent resident. In considering that issue, the Tribunal plainly had regard to the estimate of the costs to the community in the second opinion of the Medical Officer. That estimate was significantly less than the estimate in the first opinion of the Medical Officer and was therefore, in that respect at least, favourable to Mr Antoon and Ms Jawhar.

121    The Tribunal also gave close consideration to Mr Antoon’s claim that he would mitigate the costs to the Australian community of the estimated pharmaceutical costs and that his assets were sufficient to enable him to do so. The fundamental problem for Mr Antoon and Ms Jawhar is that the Tribunal was not satisfied that it could rely on the information that Mr Antoon had provided in relation to his assets.

122    The Tribunal breached s 359A of the Act because, when it sent a copy of the second Medical Officer’s opinion to Mr Antoon and Ms Jawhar two days after the hearing, the Tribunal did not expressly invite them to comment on the report, or tell them that they could seek additional time to do so. At the hearing, however, the Tribunal had clearly not only informed Mr Antoon and Ms Jawhar of the information in the report, it discussed that information and its relevance to their case with them. There is no suggestion, let alone evidence, that Mr Antoon did not understand the relevance to the review of the information in the second Medical Officer’s opinion. While the Tribunal may not have explicitly invited Mr Antoon and Ms Jawhar to comment on the report, they nonetheless had every opportunity to, and to a certain extend did, comment on the information in the report at the hearing. They also had a further opportunity to provide any comment or further submissions relating to or arising from the second Medical Officer’s opinion when it was sent to them shortly after the hearing.

123    It is also important to emphasise that, to the extent that the second opinion of the Medical Officer differed from the first opinion, that difference was essentially favourable to Mr Antoon and Ms Jawhar. That is because the estimate of the costs in the second opinion was significantly less than the estimate in the first opinion. The Tribunal made that difference plain to Mr Antoon and Ms Jawhar and explained why it was favourable to them. It is, in those circumstances, not difficult to appreciate why they said little about the second opinion, either at or subsequent to the hearing.

124    In those circumstances, there could be no suggestion that the Tribunal’s breach of s 359A gave rise to any unfairness or practical injustice. The Tribunal gave Mr Antoon and Ms Jawhar a fair opportunity at the hearing to address the second opinion of the Medical Officer and to a certain extent Mr Antoon availed himself of that opportunity. Mr Antoon had previously provided information and submissions to the Tribunal in support of his claim that he had the capacity to and would mitigate the likely cost to the Australian community of the medical services and pharmaceuticals required by Ms Jawhar. He did so in the context of the first Medical Officer’s opinion, however, the information and submissions were obviously equally applicable to the lower costs estimate in the second Medical Officer’s opinion. Even if the Tribunal had fully complied with s 359A of the Act, it is difficult to see what, if anything, Mr Antoon could have added to what he had already put to the Tribunal in that regard.

125    As discussed earlier, the Tribunal ultimately decided not to waive PIC 4007(1)(c)(ii)(A) mainly because it was not satisfied that Mr Antoon had been “clear and open about his businesses, and his sources of income”: Reasons at [40]. As a result, the Tribunal was not satisfied that Mr Antoon would be able to “mitigate the likely significant cost to the Australian community in the areas of health care and/or community services”: Reasons at [40]. That conclusion would almost certainly not have changed even if Mr Antoon had, as suggested in his affidavits dated 21 March 2022 and 1 April 2022, “responded in writing” that he was prepared to pay for his wife’s “health needs and treatment” and would “give security over [his] property” in that regard. Mr Antoon had already made it clear to the Tribunal, both orally and in writing, that he was prepared to pay for his wife’s medical treatment. The problem was that, despite having been given ample opportunity to do so, he had been unable to provide credible information or persuade the Tribunal that he had the assets and income to meet those costs.

126    In those circumstances, Mr Antoon and Ms Jawhar’s contention that the failure of the Tribunal to comply with s 359A of the Act could have made a difference to the result of the review application has no merit. That is the case even having regard to the evidence in Mr Antoon’s affidavits dated 21 March 2022 and 1 April 2022. It is readily apparent that the Tribunal’s decision would have been the same even if the Tribunal had fully complied with s 359A of the Act and even if Mr Antoon had subsequently advised the Tribunal, in writing, that he would meet the cost of Ms Jawhar’s medical treatment and provide security. The Tribunal’s failure to fully comply with s 359A of the Act also gave rise to no unfairness, practical injustice, or prejudice to Mr Antoon and Ms Jawhar. The breach was, in all the circumstances, no more than a technical breach.

Conclusion in respect of the notice of contention

127    The contention advanced by Mr Antoon and Ms Jawhar in the notice of contention is unmeritorious and must be rejected. Even having regard to the evidence adduced on appeal, it cannot be accepted that the primary judge should have found that the Tribunal’s failure to comply with s 359A of the Act could realistically have made a difference to the outcome of the Tribunal’s review.

THE MINISTER’S NEW GROUND OF APPEAL

128    As has already been noted, the Minister belatedly applied to amend his notice of appeal to include a new appeal ground concerning the exercise of discretion to refuse the relief sought by Mr Antoon and Ms Jawhar. The new ground of appeal, ground 4, was in the following terms:

4.    The primary judge fell into appealable error in that his Honour made either or both of the following errors:

a.    failed to consider whether relief should be withheld from the first and second respondents on discretionary grounds on that basis that no useful result could ensue if the application for review were remitted to the Tribunal, particularly in the light of the findings made by his Honour at [55] and [57] that compliance with s 359A of the Act could not have made a difference to the outcome of the review;

b.    proceeded on the basis that, if jurisdictional error could be established in the Tribunal’s decision, the grant of relief to the first and second respondents necessarily followed.

129    The Minister required the leave of the Court to amend his notice of appeal. Moreover, the argument that the Minister wanted to advance was not squarely raised before the primary judge. Mr Antoon and Ms Jawhar opposed the grant of leave to file the amended notice of appeal. The question that must first be addressed is whether the Court should grant leave to the Minister to amend his notice of appeal and advance an argument that was not raised in the court below.

Should the Minister be granted leave to raise the new appeal ground?

130    The applicable principles in respect of amendment applications are settled and well known. It is unnecessary to recite them in detail here. It suffices to note that the decision whether to permit an amendment to a notice of appeal, particularly a late amendment, is a discretionary judgment based on the evaluation and balancing of a number of often competing considerations. Those considerations include: the nature and importance of the amendment to the party applying for it; the extent of the delay in applying for the amendment; the explanation for any such delay; any costs associated with the amendment; the prejudice that might be presumed to follow from the amendment, and that which is shown; the parties’ forensic choices in the litigation to date and the consequences of those choices; and the potential loss of confidence in the legal system which can arise where a court is seen too readily to accede to amendment applications made without adequate explanation or justification.

131    The applicable principles in respect of the grant of leave to raise an argument on appeal that was not advanced in the court below were discussed earlier. The critical question, in short summary, is whether it is expedient in the interests of justice to permit the argument to be raised for the first time on appeal.

132    Mr Antoon and Ms Jawhar submitted that the Court should not grant the Minister leave to amend or leave to raise the new argument for a number of reasons. Perhaps not surprisingly they pointed to the Minister’s delay in applying for the amendment and the costs that may be presumed to have been occasioned as a result of the amendment. In their submission, the Minister had also not adequately explained why the new argument concerning the discretion to refuse relief was not advanced either in the court below or in the Minister’s initial notice of appeal and submissions in respect of the appeal. They also contended that the argument concerning discretionary refusal of relief could have been met by evidence in the court below if the argument had been raised there.

133    While the arguments advanced by Mr Antoon and Ms Jawhar in opposition to the grant of leave to amend and to raise the new appeal ground are not without some force, I am ultimately persuaded that it would be appropriate to grant leave to amend the notice of appeal and leave to raise the new ground of appeal even though it was not squarely raised in the court below.

134    The issue concerning the discretionary refusal of relief is a relatively short point that in many respects is intimately related to the issue of materiality which was the primary focus of the arguments on appeal and the notice of contention. It may of course be accepted that the Minister’s delay in applying to amend his notice of appeal was lengthy and largely unexplained. The real explanation for the delay would appear to be that the Minister initially chose to focus on the argument, based on the recent High Court cases concerning materiality, that a breach of s 359A of the Act is a jurisdictional error only if the breach is material. In focussing on that argument, the Minister effectively overlooked that the materiality of a breach of s 359A of the Act may also provide a basis for the discretionary refusal of relief.

135    As for Mr Antoon and Ms Jawhar’s argument that the new ground could have been met by evidence in the court below, that evidence was presumably the affidavit evidence of Mr Antoon that Mr Antoon and Ms Jawhar were permitted to rely on in support of their notice of contention. Mr Antoon and Ms Jawhar did not suggest otherwise. In those circumstances, I am not satisfied that Mr Antoon and Ms Jawhar were materially prejudiced, in a relevant sense, by the late advancement of the argument concerning the discretionary refusal of relief. The arguments advanced by Mr Antoon and Ms Jawhar concerning the discretionary refusal of relief were, broadly speaking, much the same as the arguments that they advanced concerning the materiality of the breach.

136    It is, in all the circumstances, expedient in the interests of justice to permit the Minister to advance the new ground of appeal. The Minister should be granted leave to file a further amended notice of appeal in the form of the draft further amended notice of appeal dated 15 May 2023.

The discretion to refuse relief

137    In SZBYR, the appellant contended that the Tribunal had breached s 424A of the Act because it had not given him notice, in accordance with s 424A, of discrepancies between his oral evidence and his written claims in a statutory declaration. That turned out to be one of the reasons why the Tribunal did not accept the appellants’ claims. The Tribunal also found that the appellant’s claims lacked the necessary “Convention nexus”. The High Court rejected the contention that there had been any breach of s 424A in the circumstances.

138    Importantly, however, the plurality (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) also affirmed (at [28]) that the grant of relief under s 39B of the Judiciary Act 1903 (Cth) is a “matter of discretion” and that one consideration that may lead to the discretionary refusal of relief is where “no useful result could ensue”: cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [56]. Their Honours also concluded (at [29]) that no useful result could ensue from the grant of relief in the case at hand because even if there had been a breach of s 424A of the Act, that could not “overcome the tribunal’s findings that [the appellants’] claims lacked the requisite Convention nexus”. It followed that if the appellant’s review application had been remitted to the Tribunal, the result would inevitably have been the same.

139    Justice Kirby also acknowledged (at [76]) that in some instances of jurisdictional error, although jurisdictional error is established, “the circumstances do not call for the provision of judicial remedies”. Significantly, his Honour also held (at [73]) that discretionary considerations in the case at hand overwhelmingly favoured the refusal of relief because “any non-compliance with s 424A was immaterial to the ‘reason’ of the tribunal for its decision adverse to the appellants”.

140    There is no indication that the primary judge gave any consideration to whether, given the finding that the Tribunal’s breach would have made no difference to the overall outcome, the Court should decline to exercise its discretion to grant the relief sought. That was largely a result of the way the parties put their respective cases to the primary judge. The case advanced before the primary judge by Mr Antoon and Ms Jawhar was that any breach by the Tribunal of s 359A of the Act constituted a jurisdictional error and the relief they sought necessarily followed. They did not advert to the fact that the relief they sought was discretionary. The Minister’s case before the primary judge was that the Tribunal did not breach s 359A of the Act and that if it did, there was nevertheless no jurisdictional error because any such breach was not material. The Minister did not argue that if the breach did amount to a jurisdictional error, the primary judge should nevertheless decline to grant relief because the breach was not material and that no useful result could ensue if the matter were to be remitted to the Tribunal.

141    While the issue concerning discretionary refusal of relief was not squarely raised before the primary judge, it was nevertheless incumbent on his Honour to consider whether it was or was not appropriate to exercise the discretion to grant or withhold the relief sought by Mr Antoon and Ms Jawhar. That is because the discretionary nature of the relief attended the jurisdiction conferred on the primary judge by s 476(1) of the Act. The obligation on the primary judge to consider whether to withhold relief on discretionary grounds was particularly acute in this case given his Honour’s emphatic finding to the effect that the Tribunal’s error “would have made no difference to the overall outcome”: J [57]. It is readily apparent that the primary judge proceeded on the basis that Mr Antoon and Ms Jawhar were entitled to the relief as of right once jurisdictional error on the part of the Tribunal had been established. His Honour erred in proceeding on that basis.

142    For the reasons given earlier, due to the primary judge’s finding to the effect that strict compliance by the Tribunal with s 359A of the Act could not have made a difference to the outcome of the review, the Tribunal’s breach of s 359A of the Act was, in the particular circumstances of the case, technical and immaterial. There was no unfairness or practical injustice. Mr Antoon and Ms Jawhar were made aware of the second Medial Officer’s opinion and its relevance to the review and were given a fair opportunity to address the information in the opinion. That information, to the extent that it differed from the first Medical Officer’s opinion, was essentially favourable to their case. It is readily apparent that the Tribunal’s decision would have been the same even if the Tribunal had fully complied with s 359A of the Act and even if Mr Antoon had advised the Tribunal, in writing, that he would meet the cost of Ms Jawhar’s medical treatment and provide security.

143    It would, in those circumstances, have been inutile for the primary judge to have granted the relief sought by Mr Antoon and Ms Jawhar and remitted the matter to the Tribunal. The result would almost certainly have been the same.

144    It may be readily accepted that the issue concerning the discretionary refusal of relief in this matter was not and is not as clear-cut as was the case in SZBYR. As noted earlier, in that case the Tribunal had affirmed the decision to refuse the appellants’ visa applications for a reason (the absence of any Convention nexus) that was largely unaffected by or independent of the breach of s 424A of the Act. It does not follow that the discretion to refuse relief is only enlivened in those circumstances where there was an independent reason for dismissing the review.

145    It may equally be accepted that in SAAP, McHugh J appeared to suggest that the fact that the visa applicant in that case had an opportunity to deal with the adverse information, despite the breach of s 424A of the Act, did not affect the discretion to grant relief. That said, materiality is a question of fact and each case must be considered having regard to its unique facts and circumstances. The facts and circumstances of this case differed in a number of respects from the facts in SAAP.

146    In VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141, the Full Court held (at [45], [52]) that it was appropriate to refuse relief in respect of a breach of s 424A of the Act where the applicant was not in fact disadvantaged by the breach or had an opportunity to address the information in any event: see McHugh J’s reference to that decision in SAAP at [82]. 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; SAAP at [81] (McHugh J). This is a case where the Court can be positively satisfied that strict compliance by the Tribunal with the requirements of s 359A of the Act could not realistically have made any difference.

Conclusion in respect of appeal ground 4

147    The primary judge erred in failing to consider whether relief should be withheld from Mr Antoon and Ms Jawhar on the basis that no useful result could ensue if their review application were remitted to the Tribunal. His Honour erroneously proceeded on the basis that the grant of relief necessarily followed from the finding of jurisdictional error. His Honour should have declined to grant the relief because the Tribunal’s breach of s 359A of the Act was, in all the circumstances, immaterial and compliance could not have made any difference to the outcome of the review. Remittal to the Tribunal would have been pointless.

APPEAL GROUND 3

148    While it may strictly be unnecessary to address appeal ground 3, it is prudent to do so given the prospect that the case may not end here.

149    The application filed in the Circuit Court by Mr Antoon and Ms Jawhar challenged the Tribunal’s decision on the sole ground that the Tribunal failed to comply with s 359A of the Act. Mr Antoon and Ms Jawhar’s case as presented in the Circuit Court was directed solely at the Tribunal’s decision. Nothing was said concerning the validity of the decisions made by the delegate and the Authority. Yet the relief granted by the primary judge went beyond quashing or setting-aside the Tribunal’s decision on that basis. The relief extended, or potentially extended, to: quashing decisions made by the Authority and the Minister (order 2); directing the Authority and the Minister to determine the application according to law (order 3); declaring that the recommendation of the independent Protection Assessment Reviewer was not made in accordance with law (order 4); and restraining the Minister and others from making the “future decision” or taking the “other action” (order 5).

150    There was no proper basis to make order 2 insofar as it extended to any decision made by the Authority or the Minister. The decisions made by the Minister and the Authority were not subject to challenge and the Court had no power to quash them. Nor did the Court have power to issue a writ of mandamus directed to the Authority or the Minister (order 3). Order 4 is particularly mystifying given that the independent Protection Assessment Reviewer” did not make any recommendation in respect of Mr Antoon or Ms Jawhar, or if a recommendation was made, it was not the subject of any challenge, let alone evidence or argument. Nor was there any evidence, or argument, concerning the Minister, or anyone else, making any relevant “future decision” or taking any “other action”.

151    Mr Antoon and Ms Jawhar did not seek to defend any of those orders on appeal. It follows that, irrespective of the outcome of the other grounds of appeal, it would have been appropriate to vary orders 2 and 3 made by the primary judge (by deleting the references to the Authority and the Minister) and set aside orders 4 and 5.

DISPOSITION AND COSTS

152    While the Minister’s main grounds of appeal failed, the appeal must nevertheless be allowed on the basis of the new ground of appeal in the amended grounds of appeal. The primary judge erred in failing to consider whether relief should have been withheld from Mr Antoon and Ms Jawhar on the basis that no useful result could ensue if their review application were remitted to the Tribunal. His Honour should have declined to grant the relief because the Tribunal’s breach of s 359A of the Act was, in all the circumstances, immaterial and compliance could not have made any difference to the outcome of the review.

153    The orders made by the primary judge must be set aside and in lieu thereof it will be ordered that the application be dismissed and the applicants (Mr Antoon and Ms Jawhar) pay the respondent’s (the Minister’s) costs of and incidental to the proceedings.

154     As for the costs of the appeal, while costs ordinarily follow the event in the case of a successful appeal, that is not invariably the case. The Court’s discretion in relation to costs is broad and relatively unfettered. There are in my view sounds reasons for declining to order costs in favour of the Minister despite his ultimate success on appeal. The Minister did not raise the issue concerning the discretionary nature of the relief in the court below, or submit that the court should refuse to grant relief in the exercise of its discretion. Nor did the Minister raise those arguments on appeal until the very death knell. The Minister’s initial grounds of appeal and written and oral submissions were almost entirely directed to the proposition that the primary judge was not bound to follow SAAP and that there was no jurisdictional error because the Tribunal’s breach of s 359A had not been shown to be material.

155    In those circumstances, it is appropriate to make no order as to the costs of the appeal.

156    For essentially the same reasons I am also persuaded that it would be appropriate to grant Mr Antoon and Ms Jawhar a costs certificate in respect of the appeal pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).

Associate:

Dated:    30 June 2023