Federal Court of Australia

EIS18 v Minister for Immigration and Citizenship [2026] FCA 1225

ORDERS

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2. Leave be refused for the appellant to rely on ground 1 of the Notice of Appeal.

3. The appeal be dismissed.

4. The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STELLIOS J:

1 The appellant, EIS18, appeals from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) given on 7 February 2024 dismissing his application for judicial review of a decision of the second respondent, the then Administrative Appeals Tribunal.

2 The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse to grant EIS18 a Protection (Class XA) (subclass 866) visa (protection visa or visa). The reasons of the primary judge were reported as EIS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 163 (primary judgment or PJ).

3 The issues on appeal relate to whether the Tribunal erred in its application of s 424AA of the Migration Act 1958 (Cth) (or, the Act) and whether EIS18 was denied procedural fairness.

4 For the following reasons, the appeal is dismissed.

background

5 The background facts are set out in the Tribunal’s reasons at [2]–[4] and the primary judge’s reasons at [1] and [5].

6 EIS18 is a citizen of Pakistan who most recently arrived in Australia on 1 December 2011. He applied for a protection visa on 20 February 2015. His claims for protection are summarised at [5] of the primary judgment. Briefly, EIS18 claims to have been a member of a political party, Mutehada Qoumi Movement (MQM). As a result of his political activities, he alleges his family was threatened by the Pakistani authorities, and that he was arrested for holding an unlawful protest, fired upon in public and kidnapped on three occasions.

7 On 29 July 2015, a delegate of the Minister refused to grant him a protection visa under s 65 of the Migration Act on the basis that he is not a person in respect of whom Australia has protection obligations.

8 On 21 August 2015, EIS18 applied to the Tribunal for a review of that decision. He was represented at the Tribunal hearing on 27 March 2018 and provided written submissions dated 23 March 2018. On 31 July 2018, the Tribunal affirmed the delegate’s decision.

9 EIS18’s application for judicial review of the Tribunal’s decision was heard and determined by the primary judge on 7 February 2024.

10 EIS18 was self-represented before the primary judge and in this Court.

grounds of appeal

11 The notice of appeal filed on 5 March 2024 advances two grounds of appeal. It relevantly read:

The Federal Circuit and family Court erred in law by upholding that the Tribunal did not commit any jurisdictional error through the procedure prescribed under Sec 424AA of the Migration Act was adhered to by the Tribunal [sic].

…

The Federal Circuit and Family Court erred in law by dismissing the Judicial review application. The Federal Circuit Court failed to ensure that the appellant as a litigant does not suffer a disadvantage from exercising his right to be self represented.

12 EIS18 did not advance Ground 1 before the primary judge and therefore required the leave of this Court to rely upon it. The Minister opposed leave being granted and, in any event, submitted that the ground is not made out.

legislative framework

13 The appellant’s notice of appeal appeared to contend that the Tribunal did not follow, or did not adequately follow, the procedure set out in s 424AA of the Migration Act. That section, which was later repealed by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), was in the following terms at the relevant time:

Section 424AA 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 425:

(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 426A(1F).

14 At the relevant time, the Migration Act also included s 424A, which set out an obligation for the Tribunal to furnish the same particulars in writing. It read:

Section 424A    Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) 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 441A; or

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

(2A) 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 424AA.

(3) 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.

(4) 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 426A(1F).

15 The relationship between ss 424AA and 424A of the Migration Act was considered by a Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415. Having considered the legislative history of the two provisions, Tracey and Foster JJ explained that the two provisions were to “operate in a coherent and complementary fashion”: at [80]. Moore J, concurring with Tracey and Foster JJ, stated that “[i]t cannot be doubted that s 424AA and s 424A are intended to be complementary”, and that “[t]his is obvious from the legislative history and the terms of both sections”: at [2].

16 Tracey and Foster JJ considered that s 424A(1) imposed an obligation on the Tribunal to comply with the requirements of that provision to give the applicant certain information and invite the applicant to comment on or respond to that information: at [81]. Each of the methods identified in s 441A of the Act to comply with the obligation in s 424A(1) required “transmission of a written document”, with oral communication being “[in]sufficient”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [12] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

17 That duty was subject to two exceptions (SZMCD at [70(b)], [81], [91]):

(1) Where the Tribunal exercised its discretion (at [86]) to invite the applicant to comment or respond to that information under s 424AA of the Migration Act, as contemplated by s 424A(2A). Put differently, s 424AA was, by virtue of s 424A(2A), an exception to the obligation contained in s 424A: “[s 424AA] is one way by which the Tribunal can satisfy the substance of what is required of it under s 424A(1)”: at [90]. Where the Tribunal elected to proceed under s 424AA, it did “so expediently and by way of oral communication rather than by written communication”: at [90]; and

(2) Where the information in question fell within a category identified in s 424A(3) of the Migration Act, including information that was “not specifically about the applicant or another person” and was “just about a class of persons of which the applicant or other person” was a member (at [82]): s 424A(3)(a). As explained by their Honours, “[t]his type of information is generally called country information”: at [83] (emphasis added).

18 Moore J understood the relationship between the two sections in materially the same way: at [2].

19 It should also be emphasised at this stage that the obligation in s 424A(1) of the Migration Act applied to “any information that the Tribunal consider[ed] would be the reason, or a part of the reason, for affirming the decision that is under review”: s 424A(1)(a). In SZBYR, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said the following about the kind of “information” contemplated by the obligation in s 424A(1) (at [18], footnote abbreviated):

Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information” [(2004) 206 ALR 471 at 476-477].

“does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

20 The ambit of the discretionary power in s 424AA(1) of the Act was also defined by reference to “any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”: subsection (1)(a). As Tracey and Foster JJ stated in SZMCD, “the information covered by each section [ss 424AA and 424A] must be the same”: at [91].

21 As will be explained below, a proper understanding of the operation of these provisions is fatal to ground 1.

the tribunal’s reasons

22 The Tribunal found that EIS18 “does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the [Migration] Act” (Tribunal Reasons (TR) at [78]). Further, the Tribunal was “not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act” (TR at [82]). Accordingly, the Tribunal was not satisfied that EIS18 was someone to whom Australia owes protection obligations under s 36(2)(a) or s 36(2)(aa) (TR at [83]).

23 The Tribunal’s reasons record that it put several matters to EIS18 during the Tribunal’s hearing purportedly pursuant to s 424AA of the Migration Act:

(1) EIS18 did not make any claims about being abducted in his protection visa application. However, during his interview with the Department of Home Affairs on 21 July 2015, EIS18 claimed he was kidnapped on three occasions. During the Tribunal hearing, EIS18 claimed that he was kidnapped on two occasions. The Tribunal then noted (TR at [26]):

The Tribunal put to [EIS18] the information he gave the Department about his abductions during his interview, pursuant to s 424AA of the Act, and noted that his failure to mention any abduction in his visa application and the subsequent inconsistencies in his evidence about the abductions raised concerns about his credibility and the veracity of his claims.

(2) EIS18 claimed during his interview with the Department that he reported the first abduction to the police but not the second and third abductions. During the hearing, EIS18 claimed he did not report either of the two abductions (alleged before the Tribunal) to the police. Purportedly pursuant to s 424AA, the Tribunal put to EIS18 the information that he had provided to the Department about reporting the first abduction to the police, and noted that the inconsistencies in what he had said in relation to whether or not the claimed abductions were reported to police raised concerns about his credibility and the veracity of his claims (TR at [28]).

(3) During the Tribunal hearing, EIS18 told the Tribunal that his role as a member of MQM was to set up the stage, chairs and catering for party gatherings and functions. He explained that other party members, who only gave speeches, were threatened but not abducted. The Tribunal found it implausible “that low level supporters or members doing the sort of tasks described by him would come to the adverse attention of members of rival parties let alone the Police and other security forces” (TR at [30]). The Tribunal also found it implausible that EIS18 “would have been abducted but other ‘party workers’ and members who gave speeches were not” (TR at [31]). When the Tribunal raised this issue with EIS18, he replied that he worked more than others, he was getting popular in his area and there was a chance he would go to a higher level in his unit. The Tribunal considered this explanation to be implausible and that these issues raised further concerns about his credibility and the veracity of his claims (TR at [29]–[31]).

(4) EIS18 had given evidence to the Tribunal that he had no other problems with the police after March 2009; his parents were last threatened in 2009; and he continued to reside in his family home until he left Pakistan in April 2010 and also when he returned in 2011. The Tribunal considered that this evidence raised concerns about the credibility of his claims that he was at risk of serious or significant harm from Pakistani authorities if he returned home (TR at [34]).

(5) The records of the Department indicated that EIS18 was granted a student visa on 12 March 2010 but did not arrive in Australia until 14 April 2010. Purportedly pursuant to s 424AA, the Tribunal put this information to him, noting that his delay in leaving Pakistan and arriving in Australia after he was granted the student visa “was not consistent with his claims and raised concerns in relation to his credibility and the veracity of his claims” (TR at [35]).

(6) The records of the Department indicated that EIS18 arrived in Australia on 14 April 2010 on a student visa, which was a temporary visa and did not allow him to live in Australia permanently, and he did not apply for a protection visa until 20 February 2015. Purportedly pursuant to s 424AA, the Tribunal put this information to him, noting “that his delay of almost 5 years after his arrival in Australia to apply for a protection visa raised concerns about his credibility and the veracity of his claims” (TR at [38]).

(7) The records of the Department indicate that EIS18 came to Australia on 14 April 2010, then departed Australia on 26 October 2011, and returned to Australia on 1 December 2011. The Tribunal put this information to EIS18, purportedly pursuant to s 424AA, noting “that his voluntary return to Pakistan and the length of his stay in Pakistan was not consistent with his claims and raised concerns in relation to his credibility and the veracity of his claims” (TR at [41]).

(8) The applicant gave evidence that he returned to Pakistan in 2011 to see his family because the Pakistan People’s Party was in power at the time and had formed a coalition with MQM, the political situation was good, and the government had stopped killing “party workers”. However, in his last week in Pakistan things started getting worse and the coalition government was terminated a month after he returned to Australia. The Tribunal noted that this was not consistent with the evidence he gave the Department during his interview, during which “he stated that he returned to Pakistan in 2011 because his mother was very sick and he wanted to visit her” (TR at [43]). Purportedly pursuant to s 424AA, the Tribunal put this information to EIS18. In its reasons, the Tribunal noted the inconsistencies in the applicant’s evidence in relation to why he returned to Pakistan in 2011 and what he did when he was there. That raised for the Tribunal further concerns about EIS18’s credibility (TR at [44]).

24 With the exception of the matters in [23(7)] and [23(8)], these matters were the subject of complaint in ground 1.

25 Ground 1 also included a complaint about a passage of the Tribunal’s reasons that noted that country information indicated that, following elections in February 2008, the MQM formed a coalition government with the Pakistan People’s Party, and a provincial government in Sindh Province. In those circumstances, the Tribunal found that it was implausible “that the MQM coalition government would target its own MQM members and direct the Police, Military and other security forces to do so” and that the coalition government would arrest him and hire killers to kill him because of his MQM activities. Given the existence of the coalition government, it was also “not plausible that the Police and Prosecutor would not assist him” because of his membership of MQM. The Tribunal found that “[t]his raises further concerns about his credibility and the veracity of his claims” (TR at [33]). There was no reference in the Tribunal’s reasons to this matter being put to EIS18 pursuant to s 424AA of the Act.

consideration

Ground 1

26 EIS18 did not raise ground 1 before the primary judge. The Minister opposed leave being granted for EIS18 to rely on ground 1 on appeal.

27 The Minister submitted that: (a) resolving this ground is likely to require new evidence that could and should have been adduced at trial; (b) the appellant has provided no explanation for failing to raise this ground before the primary judge; and (c) the ground has insufficient merit to justify leave being granted.

28 If leave were to be granted, the Minister submitted that: (a) there was no relevant adverse information before the Tribunal which would enliven the Tribunal’s obligation under s 424AA of the Migration Act; (b) in the alternative, EIS18 has not discharged his onus of proving that the Tribunal breached s 424AA; and (c) in the further alternative, any breach of s 424AA (even if established) was not material to EIS18, given he had been afforded a period of four months after the conclusion of the hearing and up to the Tribunal’s decision to provide any further material.

29 At a reasonably impressionistic level (see NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31] (Farrell, Wigney and Perry JJ)), I formed the view that ground 1 lacked merit. Accordingly, it is not in the interests of justice to grant leave for EIS18 to rely on ground 1: see WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 at [18] (Rares, Moshinsky and Stewart JJ). In any event, having considered ground 1 more closely, it cannot succeed.

30 In the notice of appeal, EIS18’s complaint under ground 1 is that the primary judge erred by finding that the Tribunal did not commit any jurisdictional error even though the procedure prescribed under s 424AA was adhered to. Despite the way it was presented in the notice of appeal, as it was explained at the hearing, the complaint appears to be that s 424AA required the Tribunal to provide EIS18 with more time to provide evidence to address the matters identified by the Tribunal (and set out at [23] and [25] above). EIS18 further explained that, had he been given that further opportunity, he would have been able to provide further information to address the Tribunal’s confusion.

31 Leaving aside the fact that EIS18 was represented by a solicitor before the Tribunal, there are two unavoidable difficulties with EIS18’s position.

32 First, in relation to the matters identified at [23] above, I accept the Minister’s submission that there was no obligation to put those matters to EIS18. As explained earlier at [17]–[20], no obligation was imposed by s 424AA(1) of the Act, and the obligation under s 424A(1) was limited to information of the kind identified in the provision.

33 The matters identified at [23] can be categorised as (a) findings of inconsistency between different parts of EIS18’s evidence; (b) findings of implausibility of EIS18’s explanations; (c) the expression of concerns about EIS18’s evidence; and (d) findings of inconsistencies between his evidence and departmental information about his movements in and out of Australia. These matters cannot be characterised as falling within the scope of s 424A of the Migration Act for the following reasons:

(1) They are accurately characterised in one or other of the following ways: (a) the Tribunal’s doubts or disbelief about the evidence; (b) inconsistencies arising from the evidence; (c) the Tribunal's subjective appraisals, thought processes or determinations; or (d) identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ explained in SZBYR, information within those categories is not “information” for the purposes of s 424A.

(2) The information relied on by the Tribunal in forming its opinion about the implausibility of the appellant’s evidence, or the inconsistencies that arose, could not be characterised as information that “would be the reason, or part of the reason, for affirming the decision that is under review”. As the plurality said in SZBYR, “[t]he statutory criterion does not … turn on the ‘reasoning process of the Tribunal’, or ‘the Tribunal’s published reasons’”: at [17]. Whether that condition is met “is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case”: SZBYR at [17]. Further, for the condition to be met, the information “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [9] citing SZBYR at [17]. As Gageler, Keane and Nettle JJ further said in Plaintiff M174/2016, “the information must in its terms be of such significance as to lead the [Tribunal] to consider in advance of reasoning on the facts of the case that the information of itself ‘would’, as distinct from ‘might’, be the reason or part of the reason”, relevantly in this case, for affirming the decision: at [9]; see also [72]. None of the information relied on by the Tribunal, in its terms, alone and in advance of the Tribunal’s reasoning process, could be characterised as information that would be the reason, or part of the reason, for affirming the decision that is under review.

34 Given the complementarity of ss 424A(1) and 424AA(1) of the Act, it follows that categories (a)–(d) at [33] above must also fall outside the scope of information covered by s 424AA(1). The Tribunal’s purported reliance on s 424AA(1) in putting matters to the appellant does not enliven that discretionary power if its preconditions are not otherwise satisfied.

35 Secondly, by operation of s 424A(3)(a) of the Act, the country information referred to at [25] above is not information that is subject to the obligation in s 424A(1) (see [17(2)] above). Accordingly, it need not be, and does not appear to have been, put to the applicant under s 424AA(1).

36 Accordingly, s 424AA(1) of the Migration Act was not enlivened by the matters of concern to the Tribunal and, thus, ground 1 is without foundation. However, as indicated, I decline to give leave for EIS18 to rely upon it in the appeal.

Ground 2

37 By ground 2, EIS18 contends that the primary judge failed to ensure that he did not suffer a disadvantage in exercising his right to be self-represented. The nature and extent of this complaint was unclear.

38 The particulars to the ground in the notice of appeal stated:

a) The applicant being self represented never really understood the reasons for dismissal. The applicant comes from a non English speaking background. The Federal Circuit Court failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court (SZRUR V Minister for Immigration and Border Protection [2013] 216 FCR445) [sic]

b) It is a requirement that the court must explain in plain terms to unrepresented applicants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process. (Sherstha Vs Migration Review Tribunal [2015]229 FCR 301). [sic]

39 At the hearing, I asked EIS18 to explain what was intended by this ground and these particulars. There appeared to be two responses. First, that the Tribunal did not give EIS18 a proper opportunity to respond to the Tribunal’s concerns as expressed in its reasons. That way of explaining the ground was a re-agitation of ground 1 and cannot be accepted for the reasons set out above.

40 Secondly, that the primary judge did not explain to EIS18 that he was entitled under s 424AA(1) of the Migration Act to a further opportunity to respond to the matters of concern to the Tribunal.

41 EIS18’s particulars referred to two cases. In SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445, the appellant had sought review by the Refugee Review Tribunal (RRT) of a delegate’s decision to refuse a Protection (Class XA) visa. The RRT sent the appellant a letter notifying him of the hearing date. The response indicated that the appellant would take part in the hearing and was signed in handwritten Chinese characters beneath the statement “Signed on behalf of, and with the consent of, all applicants”. The appellant did not appear at the hearing and the RRT decided to uphold the decision under review without taking further action to enable the appellant to appear. Before the Federal Circuit Court, the appellant, as a litigant in person, claimed from the bar table that he had entrusted his application to a migration agent, that he had not been told of the hearing date, that the signature on the response to the RRT was not his, and that he had not authorised his agent to sign any documents on his behalf. The appellant made these statements from the bar table. In dismissing the review application, the primary judge considered that he did not have the evidence to support a claim of fraud.

42 On an appeal to this Court, the appellant claimed that he had been denied a fair hearing and, that in the circumstances of the case, involving a litigant in person who could not speak, read or write English and who had no understanding of the Australian legal system, it was appropriate for the Court to have assisted the appellant to present his case of fraud. A Full Court allowed the appeal, finding that the procedure adopted in dismissing the appellant’s application was not a fair one. The primary judge should have explained to the appellant what was needed to make out a case of fraud (notably the “heavy burden of proving fraud” and the “fundamentally important issues” raised in certain cases dealing with the issue of fraud: at [52]–[53]), that sworn evidence of fraud was necessary, and that statements from the bar table would not be sufficient: at [39] (Robertson J), [53] (Allsop CJ), [59] (Mortimer J, as her Honour then was).

43 In Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301, the parties had agreed to a timetable to progress a judicial review application in the Federal Circuit Court. The application sought to review a decision of the Migration Review Tribunal (MRT). The proposed orders included that the “First Court Date” on 5 February 2015 be vacated and for the filing of evidence, including a transcript of the hearing before the MRT. While counsel for the Minister attended the first court date, the appellant’s solicitor did not, having assumed that the orders would be made in accordance with the agreement of the parties. Counsel for the Minister announced an appearance on behalf of himself and on behalf of the appellant’s solicitor. The primary judge, however, said to counsel for the Minister that he did not see an arguable ground and was of the view that the application should be dealt with summarily. Without the presence of a representative of the appellant, the primary judge directed that the application be heard the following day at 10.15am. At the hearing on 6 February 2015, counsel for the appellant contended that there were sufficient prospects of success, including a claim of non-compliance by the MRT with analogous provisions to ss 424AA and 424A of the Migration Act; namely, that the appellant had not been offered the opportunity to seek more time to respond or, alternatively, that the appellant was not provided orally with clear particulars of certain information.

44 Despite the primary judge recognising in the course of the hearing that the appellant was asking for the opportunity to present the transcript and make submissions based upon it, summary judgment was given without the primary judge hearing from counsel for the Minister. A Full Court (Mansfield, Tracey and Mortimer JJ) considered that, in the circumstances, the primary judge had not afforded the appellant procedural fairness “because no reasonable opportunity was given to present the transcript of the hearing before the [MRT] and to make submissions based upon it”: at [57]; see further [57]–[59].

45 These cases do not assist the appellant. First, the primary judge dealt with all of the grounds that were advanced by the appellant in the application (save for ground 7 which did not raise an allegation of jurisdictional error). Ground 5 alleged a breach of procedural fairness, but was not particularised to include an alleged failure by the Tribunal to give the appellant a further opportunity to address the Tribunal’s concerns. The primary judge relevantly dealt with that ground in the following way:

In relation to the first part, the Tribunal’s procedural fairness obligations are set out in div 4, pt 7 of the Act. A review of the Tribunal’s decision record makes it quite clear that the applicant was invited to the hearing and given the opportunity to put before the Tribunal whatever material he wished it to consider. Moreover, the Tribunal put a number of matters to the applicant through the course of the hearing such as to discharge whatever obligations it may have had under s.424A and s.425(1) of the Act. It is not apparent that any other provisions of the division were of particular relevance in this case, and I am not persuaded that the Tribunal’s decision is affected by any want of procedural fairness.

46 There is no suggestion that EIS18’s particular claim about the operation of s 424AA of the Migration Act was raised in the course of the hearing below. Indeed, the thrust of EIS18’s complaint is that the primary judge should have informed him about his “right” or “entitlement” under that provision to provide further information to address the Tribunal’s concerns.

47 However, secondly, and in any event, contrary to EIS18’s arguments during the hearing, for the reasons set out earlier, s 424AA was inapplicable to the matters of concern to the Tribunal that were identified in the notice of appeal to this Court. Unlike SZRUR and Shrestha, there was no interest of the appellant’s that the court below failed to protect.

48 It should be noted that the primary judge’s reasons record that, at the hearing of the application, the primary judge explained to EIS18 that the Court’s role was not to reconsider the merits of the visa application, or substitute its own view of EIS18’s entitlement for a visa for that of the Tribunal (at [2] and [18] of the primary judgment). It could not then be said (although I do not think it was suggested by EIS18) that EIS18 was not afforded procedural fairness in that respect.

49 With no other basis advanced to impugn the primary judge’s treatment of the grounds advanced below, ground 2 cannot succeed.

disposition

50 For the foregoing reasons, I refuse leave for EIS18 to rely on ground 1. I would not have accepted it in any event. Ground 2 also has not been established. Accordingly, the appeal must be dismissed with costs as agreed or assessed.

51 The Minister seeks an order amending the name of the first respondent to read “Minister for Immigration and Citizenship”. I will make an order in these terms.

Associate:

Dated:    28 August 2026