Federal Court: April 2026

MIGRATION

Application for judicial review of decision of Administrative Appeals Tribunal – non-revocation of visa cancellation – whether Tribunal erred by failing to consider effect of non-revocation decision on Australian business interests or by failing to make inquiries before making adverse findings

In Pillay v Minister for Immigration and Citizenship [2026] FCAFC 24 (‘Pillay’), the Federal Court provided useful guidance on when a failure to inquire will be legally unreasonable.

In a unanimous decision, Collier, McDonald and Longbottom JJ held a decision of the Administrative Appeals Tribunal (‘Tribunal’) (as it was then) was affected by legal unreasonableness because the Tribunal made a particular finding of fact without making an obvious inquiry which would have shown that finding to be incorrect.

While various cases suggest a failure to conduct a relevant inquiry can, in theory, amount to jurisdictional error, administrative lawyers know those arguments are rarely successful in practice. Pillay provides a useful recap of the principles and a worked example of the pathway to establishing this error.

The Tribunal finding

Mr Pillay was convicted of multiple fraud offences. While serving a custodial sentence, his Subclass 857 visa was cancelled.

Mr Pillay sought the revocation of the cancellation of his visa. The Tribunal affirmed the decision of the Minister’s delegate not to revoke that cancellation. The Tribunal’s decision was then quashed and remitted for reconsideration. Mr Pillay went once more unto the breach, this time armed with a 2,158-page bundle of documents from the first hearing (‘remittal bundle’).

At the hearing, Mr Pillay relied on the report of a psychologist, Dr Jacqui Yoxall. Mr Pillay asserted correctly, under cross-examination, that he had sent Dr Yoxall the remittal bundle. However, when Dr Yoxall was then cross-examined, she was asked whether the material she reviewed included certain documents. Her answer was to the effect that she had not been provided or ‘had not seen’ those documents, which were in fact in the remittal bundle.

The Tribunal made strong adverse credit findings against Mr Pillay including on the inconsistencies between the evidence of Mr Pillay’s criminal offending which was before the Tribunal and the details he provided to Dr Yoxall. In particular, the Tribunal found Mr Pillay ‘selectively provided material to Dr Yoxall’ to prevent her from fact-checking what he told her. That finding weighed on the Tribunal’s overall assessment.

Failure to make an inquiry can be legally unreasonable in some circumstances

Mr Pillay contended the Tribunal’s finding was factually wrong and, in the circumstances of this case, the Tribunal constructively failed to exercise its jurisdiction by reason of its failure to make obvious inquiries which, if made, could easily have established the premise was factually wrong.

The Full Court essentially agreed, applying a line of reasoning developed by the High Court since Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 and culminating in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.

The key principle from those cases is that, while there is no general duty for an administrative decision-maker to make inquiries, in certain circumstances, a failure to make an inquiry may involve legal unreasonableness. This analysis is heavily fact-dependent and is informed by the apparent importance of the fact to the decision actually made, the obviousness of the inquiry, and the ease with which it could have been made and the relevant fact ascertained.

Pillay shows how those factors can be applied and fleshed out (see, in particular, [72]). Amongst other things, the Court considered the important factors were:

• Mr Pillay was legally unrepresented;
• the controversy arose after his unchallenged evidence;
• the contradiction in the evidence and its significance was not pointed out to Mr Pillay;
• the relevance of the issue;
• the consequences of the finding on the issue; and
• the nature of the finding.

Caution

Pillay should not be read as endorsing a ‘duty to inquire’. The touchstone is legal reasonableness in the performance of the decision-maker’s duty to review, rather than any freestanding duty to inquire. Such ‘duty’ language is also misconceived because of the other ways in which the Tribunal could have potentially reached a legally reasonable decision without making the obvious further inquiry. The Tribunal could have pointed out to Mr Pillay the conflict between his evidence and Dr Yoyall’s, and explained the possible consequences (including adverse credit findings). The Tribunal could have also avoided drawing the adverse conclusion from the conflicting evidence or ensured Mr Pillay was recalled for examination on the inconsistency.

Nevertheless, in the ‘right’ circumstances, a failure to inquire can be legally unreasonable. The question is establishing those circumstances. Practically, this may require circumstances such as a clear and resolvable factual error, a deficient hearing process and a material adverse finding. Accordingly, unreasonableness is likely to be the exception rather than the rule. Even in a case like Pillay, which involved an ‘unusual constellation of circumstances’ (at [72]), the Court suggested its decision was ‘finely balanced’, perhaps with a view to dampening enthusiasm for a swathe of ‘duty to inquire’ claims (at [76]).

Establishing unreasonableness by virtue of a failure to make an inquiry thus remains an onerous exercise. However, Pillay provides a useful guideline and a checklist of particular factors (lack of legal representation, the relative significance of the issue for the impugned finding and the counterfactual analysis of what the Tribunal could have done) for reference when drafting grounds in judicial review applications.

ADMINISTRATIVE LAW

Whether Tribunal erred in finding that an officer of the eSafety Commissioner made a decision reviewable under s 220(2) of the Online Safety Act 2021 (Cth) – whether Tribunal erred in finding there had been a decision to issue a notice under s 88(1) of the Act

The case of eSafety Commissioner v Baumgarten [2026] FCAFC 12 (‘Baumgarten’) is an appeal to the Federal Court of Australia Full Court (‘FCAFC’) which examines section 172 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) and the FCAFC’s scope of judicial review on matters of fact finding made by the Administrative Review Tribunal.

Background facts

In late May 2024, Ms Celine Baumgarten, the respondent on the appeal, made a post on the social media service, X (previously known as Twitter), and made the same post on the social media platform, Instagram (Baumgarten at [3]). A complaint was subsequently made by an individual to the eSafety Comissioner, the appellant on the appeal.

In response to the complaint, the appellant—through her officer Ms Carnaua—sent a written communication to X referred to as the ‘complaint alert’ (at [4]). Following the complaint alert, X removed the respondent’s post (at [5]). Following that removal, the respondent sought review of the decision in the Administrative Appeals Tribunal (‘AAT’) (at [6] and [11]). Two months after the respondent lodged her review application in the AAT, X subsequently reinstated the post. Instagram did not remove the post (at [7]).

Procedural history

AAT proceedings

In her originating application before the AAT, the respondent sought review of the complaint alert pursuant to section 220(2) of the Online Safety Act 2021 (Cth) (‘OS Act’) (at [6]). In response, the applicant, in both proceedings before the AAT and the FCAFC, contended the complaint alert, as sent by Ms Caruana to X, did not constitute a formal notice for the purposes of section 88 of the OS Act and, consequently, could not fall within the terms of s 220 as a reviewable decision (at [8]).

ART transfer

Although the respondent’s application was commenced in the AAT, the proceedings were subsequently transferred to the Administrative Review Tribunal (‘ART’) in accordance with item 24 in schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (at [11]). Despite the transfer, however, the scope of the merits review was still governed by the Administrative Appeals Tribunal Act 1975 (Cth) as in force on 7 June 2024 (at [12]).

On 5 February 2025, the ART decided it had jurisdiction to review the appellant’s decision. Later, on 26 February 2025, the ART issued a decision on the merits review and found the appellant’s decision should be set aside and remitted to the appellant for reconsideration (at  [9]).

FCAFC proceedings

Pursuant to section 172 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), the applicant commenced proceedings in the FCAFC seeking judicial review of the ART’s decision.

Questions on appeal

In its notice of appeal, the appellant contended three questions of law for the FCAFC to consider:

• Did the ART have jurisdiction to hear and determine the application for review made by the respondent on 7 June 2024? (at [63]);
• Was the ART’s finding the Commissioner issued the complaint alert to X on 3 June 2024 a finding without evidence or, alternatively, an inference that was reasonably open to the ART from the facts found? (at [74]); and
• was the ART’s finding that X understood communication from the appellant to X on 3 June 2024 was a mandatory legal requirement to take all reasonable steps to remove the post within 24 hours a finding made without evidence or, alternatively, an inference that was reasonably open to the ART from the facts found? (at [79]).

Determination by the FCAFC

The below findings were made by Mortimer CJ and Beach J (Horan J concurring in a separate judgment).

The application of Haritos and May

Before determining the appeal, Mortimer CJ and Beach J examined the previous decisions of Haritos v Federal Commissioner of Taxation [2015] FCAFC 92 (‘Haritos’) and May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 (‘May’) and their application to this appeal.

Both the decisions of Haritos and May concerned the nature of an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which, in this case, was applicable to s 172 of the ART Act (Baumgarten [48]).

Based on their examination of Haritos and May, Mortimer CJ and Beach J determined there were a few applicable principles:

• While the subject matter of the Court’s jurisdiction is confined to questions of law, this should not be read as ‘pure’ or ‘only’ qualified ‘questions of law’ (at [48](a)).
• A question of law within s 44 is not just confined to jurisdictional error but extends to non-jurisdictional questions of law (at [48](b));
• The ‘statement of the question of law with sufficient precision is a matter of importance to the efficient and effective hearing and determination of appeals from the [ART]’ (at [48](c)).
• A ‘question which asks whether the [ART] erred in its interpretation of a statutory term by reference to matters the drafter … contends were not properly part of that interpretation, raises a question of law’ (at [49](a), citing May at [170]).
• The ‘misconstruction of a statutory term (or phrase) by the [ART], and application of that misconstruction to the facts as found by the [ART], can lead to a legal error of the kind susceptible to correction in an appeal under s 172’ (at [49](b), citing May at [231]).
• Finally, ‘it may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds, although such a conclusion is not to be lightly drawn’ (at [49](c), citing Haritos at [212]-[213]).

Jurisdiction

After engaging in a detailed examination of the fact finding carried out by the ART, Mortimer CJ and Beach J answered the first question of law and held that the ART was ‘well within the proper performance of its function to approach its fact finding in the way it did’ (at [151]). Horan J agreed in a separate judgment (at [227]).

Consequently, Mortimer CJ and Beach J held the second and third questions of law did not need to be determined (at [205] and [208]).

Hugo Wilesmith is a barrister at Alinea Chambers and Michael Morgan is a barrister at 13th Floor St James Hall.