The Tribunal said it would write to her. It never did. Her refusal was set aside

Tribunal procedural fairness sounds abstract until it happens to you. Imagine your visa review hearing has just ended. The Tribunal member says she will think about what you told her. She says she will write to you if she has any more questions, or if she wants more documents, and that you will have seven days to reply. You go home and wait for the letter. It never comes. Instead, a decision arrives refusing your visa.

That is what happened in Harpreet v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 1848, decided by Judge Forbes on 22 September 2026. The Court set the decision aside. This article explains why, in plain English, and what it means for anyone with a hearing ahead.

A note on sources. The judgment text was not publicly accessible when this article was written. It is based on the Migration Institute of Australia’s summary in MIA Notice 19 of 25 September 2026. We will update it if the full judgment adds anything.

What happened

The applicant was an Indian citizen on a student visa. She represented herself at the Tribunal. It was her first time in any court or tribunal.

At the end of her hearing, the member said she would consider the evidence and would write to the applicant with any further questions or an invitation to provide more documents. The applicant would have seven days to respond. The applicant confirmed her contact details so that the letter would reach her.

No letter was sent. The Tribunal then affirmed the refusal of her student visa. Its reason was a record on the Department’s student database showing she was not enrolled in a current course. At the hearing, she had said she could obtain her confirmation of enrolment. The Tribunal decided without it.

Why the Court set the decision aside: Tribunal procedural fairness

The Court read the hearing transcript closely. Taken as a whole, the member’s closing words would have led a person in the applicant’s position to believe that any outstanding issue, including her enrolment, had been folded into the one promised letter. She was waiting for that letter to deal with everything.

The Minister’s side pointed out that the Tribunal had no legal duty to write again. The Court accepted that, and said it did not matter. Applying the High Court’s reasoning in a case called NAFF, the Court held that once the Tribunal created that expectation, it had two fair choices. It could send the letter. Or it could tell the applicant that no further letter was coming. It did neither. Deciding in silence denied her procedural fairness.

Three things reinforced that conclusion. She was unrepresented. It was her first hearing. And she had specifically confirmed her contact details for the letter. Any ambiguity in what the member said was resolved in her favour.

The same failure had a second consequence. Because the Tribunal never received the enrolment material, it decided without considering relevant evidence about her course progress. The Court found the decision legally unreasonable for that reason as well.

Jurisdictional error was established on three of the four grounds argued. The decision was set aside and sent back to the Tribunal to be decided again according to law.

What this means in plain terms

• A promise made at a hearing counts, even one the law did not require the Tribunal to make.
• If the Tribunal changes its mind about writing, it has to say so before it decides.
• A decision made without the material the Tribunal said it would ask for can be unlawful on two separate grounds.
• Being unrepresented does not weaken this argument. In this case it strengthened it.

How this affects people with a hearing ahead

A student whose enrolment lapsed during the review

Her college closed a course and she moved to a new one. At the hearing the member asks for the new confirmation of enrolment and says she will write with a deadline. If that letter does not come and the visa is refused, the student has a real argument that the process was unfair. The first step is to get the transcript, because the exact words matter.

A partner visa applicant told to send more relationship evidence

The member says he will write to say which documents he wants. The applicant waits for the list. The refusal arrives instead, citing thin evidence. On the reasoning in Harpreet, the Tribunal could not treat the evidence as thin without first sending the letter it promised or withdrawing the promise.

An applicant who was represented

The principle does not depend on being unrepresented. However, a representative would normally follow up in writing after the hearing, confirming what the member said and asking when the letter will come. That record makes the argument stronger if the letter never arrives, and it often prompts the letter.

What to do at your next hearing

• Listen for any statement that the Tribunal will write, ask for more, or give you time. Write it down as soon as the hearing ends, with the member’s words as closely as you can recall them.
• Confirm your contact details on the record, as the applicant did here.
• If you are told to expect a letter, follow up in writing within a few days. Ask when it will be sent.
• Send anything you offered at the hearing anyway, without waiting to be asked. The Tribunal cannot ignore material it has received.
• If a refusal arrives without the promised letter, get advice at once. Judicial review has strict time limits.

Our articles on the Administrative Review Tribunal and on decision ready applications explain the review process and the evidence that avoids these problems in the first place.

Frequently asked questions

Does the Tribunal have to write to me after a hearing?

No general duty exists. However, in Harpreet the Court held that once a member says they will write, the Tribunal must either send the letter or tell the applicant that none is coming before it decides.

What is procedural fairness?

It is the requirement that a decision maker gives a person a fair opportunity to put their case before deciding against them. Creating an expectation and then deciding in silence can breach it.

Did it matter that she represented herself?

It reinforced the Court’s conclusion. She was a first time, self represented litigant who had confirmed her contact details in anticipation of the letter, and any ambiguity was resolved in her favour.

What happened to her case?

The decision was set aside and remitted to the Tribunal to be determined according to law. That means a fresh decision, not an automatic grant.

Sam Kanjo, Migration Lawyer, Skyline Migration Lawyers, Melbourne.

Sources: Harpreet v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 1848, as summarised in MIA Notice 19 of 25 September 2026.

Did the Tribunal decide before doing what it said it would?

Time limits for judicial review are short. Call 03 8108 8748 or email info@skylinemigrationlawyers.com.au and bring your hearing notes.

This article is general information only. It is not legal advice. Outcomes depend on the facts of each case. Please seek advice about your own circumstances before you act.