CUB23 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 101

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101

File number: MLG 2048 of 2023

Judgment of: JUDGE KENDALL

Date of judgment: 6 February 2025

Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to assess a protection claim or an integer of a claim – whether the Tribunal should have investigated the applicant’s protection claims for itself – whether the Tribunal’s approach to credibility was “unreasonable” – whether the applicant was denied procedural fairness – whether the Tribunal relied on incorrect information or decided using facts from another case – whether the Tribunal failed to comply with the mandatory requirement under s 424A of the Migration Act 1958 (Cth) (read with s 424AA of the Act) to give the applicant particulars of information it considered would be part of the reason for affirming the decision under review – no jurisdictional error – application dismissed.

Legislation:
Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Item 25

Migration Act 1958 (Cth), ss 5AAA, 5J, 36, 422B, 424, 424A, 424AA, 425, 476, 477 and Division 4 of Part 7

Migration Regulations 1994 (Cth)

Cases cited:
ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67

ASG17 v Minister for Immigration & Anor [2019] FCCA 1492

AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616

Craig v State of South Australia (1995) 184 CLR 163

DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2

DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

DVO16 v Minister for Immigration and Border Protection [2021] HCA 12

DZH16 v Minister for Immigration & Anor [2020] FCCA 1041

Maazuddin v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1349

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZKRT [2013] FCA 317

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32

Minister for Immigration & Border Protection v Singh [2014] FCAFC 1

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3

SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089

VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123

Division: Division 2 General Federal Law

Number of paragraphs: 137

Date of hearing: 23 August 2024

Place: Perth

Applicant: Applicant appeared in person

Counsel for the First Respondent: Ms A Ismailjee

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore
ORDERS

MLG 2048 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CUB23

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

6 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND

This is an application for judicial review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) dated 16 November 2023. By that decision, the Tribunal affirmed a decision made by a delegate of the first respondent (the “Minister”) dated 16 November 2023 refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the “visa”).
Recent Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
As noted above, this judgment relates to a decision of the Tribunal. That decision is dated 16 November 2023 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Court notes that the Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicant’s migration history
The applicant in this matter is a citizen of Malaysia (Court Book (“CB”) 9 & 29-32). He identifies as Malay and as a Muslim (CB 84).
The applicant arrived in Australia in August 20217 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 46).
On 12 October 2017, the applicant applied for the visa the subject of this judgment. As summarised by a delegate of the Minister, the applicant raised the following claims for protection in his visa application:
(a)he left Malaysia because the poor economic conditions caused him to have “financial issues”; and
(b)if he returns to Malaysia he will face “serious financial issues” because he will not have a job.
On 14 December 2017, that delegate refused to grant the applicant the visa (CB 46-54). The delegate did not accept that the applicant would face serious harm because of his race, religion, nationality, political opinion or membership of a particular social group if he returned to Malayasia (CB 47).
The delegate also did not accept that there was a real risk that the applicant would suffer significant harm if he were removed to Malaysia in the foreseeable future (CB 48).
On 16 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 55-56).
On 14 March 2023, the Tribunal invited the applicant to provide any additional or updated information relevant to his case (the “invitation”) (CB 63-65). The Tribunal did so pursuant to s 424(2) of the Act.
On 15 March 2023, the applicant responded to that invitation and advised the Tribunal that he wanted to update his claims to include “political opinion” and “conflicting religion opinion” (CB 66-71).
On 21 March 2023, the applicant provided further information to the Tribunal (by email) as follows (without alteration):
… after i read the previous information i decide to change again the claims of protection because im not part of any politic group, and i dont want being misunderstood….
Attached to the 21 March 2023 email was a further response to the invitation, which removed all references to “political opinion” and “conflicting religion opinion” and included his belief that all religions are true (in contradiction to the Islamic faith).
On 19 October 2023, the Tribunal invited the applicant to attend a hearing before it on 13 November 2023 (CB 73-76). The applicant was advised that he was required to provide all documents upon which he intended to rely to the Tribunal by 6 November 2023.
The applicant attended that Tribunal hearing (on 13 November 2023) with the assistance of a Malay interpreter (CB 78-80). He was not represented at that hearing.
At the hearing, the applicant withdrew his claims as to economic conditions in Malaysia (CB 88 at [46]) and claimed to only fear harm based on his religious opinions (CB 88-89 at [47]).
On 16 November 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 83-101).
On 21 November 2023, the application filed an application for judicial review in this Court seeking a review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
The application for judicial review is filed pursuant to s 476 of the Act (not s 477 of the Act – as incorrectly claimed by the Minister in written submissions filed in this Court on 23 July 2024). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in detail.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons as this helps draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when (as was the case here) the grounds of review filed by the applicant lack particulars and when the applicant appeared before the Court without legal representation and was unable to articulate any concerns about the Tribunal’s decision (see [64] below).
The Tribunal’s decision is 19 pages in length and spans 132 paragraphs (CB 83-101). The final three pages include relevant legislative provisions from the Act as they relate to the “meaning of refugee”, “well founded fear of persecution” and the criterion for the grant of a protection visa generally (CB 103-105).
The Tribunal began by detailing the applicant’s protection visa application and relevant visa history (at [4]-[5]).
Having outlined the delegate’s decision (at [7]-[8]), the Tribunal then explained (at [11]) that on 14 March 2023 the applicant (who was unrepresented in relation to his application to the Tribunal) was invited (pursuant to s 424(2) of the Act) to provide additional information in support of his application for review.
The Tribunal continued:
12.The applicant responded to that invitation on 15 March 2023. In that response, the applicant indicated that he wished to update his claims for protection and inserted the words “political opinion” and “conflicting religion opinion”. No other information was provided.
13.The same response appeared in answer to the question about whether there was any other information in the original visa application that the applicant wished to change or update.
14.On 21 March 2023, the applicant emailed the Tribunal, stating:
after reading the previous information i decide to change again the claims of protection because im not part of any politic group, and i don't want being misunderstood… [sic].
15.Attached to that email was a further response to the s 424(2) invitation, which removed references to “political opinion” and “conflicting religion opinion” and instead included:
contradiction in religion opinion-my views as muslim that thinks all religion is true were considered misleading and called liberal, in terms of freedom and right between men and women are not same.
The Tribunal then outlined the material before it, noting that the applicant appeared before the Tribunal on 13 November 2023 to give evidence and present arguments, the hearing was conducted with the assistance of an interpreter in the Malay and English languages and, where relevant, the applicant’s oral evidence would be detailed in the Tribunal’s statement of decision and reasons (at [16]-[18]).
The Tribunal then provided an overview of the law relevant to protection visa applications, highlighting, relevantly, the alternative criteria for the grant of a protection visa set out in s 36(2)(a) of the Act (the refugee criterion) and s 36(2)(aa) of the Act (the complementary protection criterion) (at [19]-[34]).
The Tribunal then explained that for the reasons that would follow, it had concluded that the delegate’s decision should be affirmed (at [36]).
Relevantly, the Tribunal explained that it accepted that the applicant is a Malaysian citizen and, as such, it would assess the applicant’s claims against Malaysia as both the country of nationality and the receiving country (at [37]).
The Tribunal then detailed the applicant’s personal background, including his place of birth (at [38]-[42]).
The Tribunal noted that the applicant had engaged fully in the hearing process and, generally, struck the Tribunal “as a confident, intelligent and articulate individual” (at [43]).
The Tribunal then outline the applicant’s protection claims, past and current ([44]-[46]).
On the basis of the current information before the Tribunal, as provided by the applicant, the Tribunal noted as follows:
47.The only remaining claim by the applicant was a claim to fear harm based on his religious opinions and views. In substance, the applicant claims that he is a non-practising Muslim who has liberal thoughts which conflict with Islamic doctrine. He claims that he believes all religions are true, which conflicts with Islamic doctrine. He also claims that he is opposed to, and does not follow, certain aspects of Islamic law.
The Tribunal then explained the nature of credibility assessments (at [50]-[52]).
Having done so, the Tribunal summarised its credibility findings in relation to the applicant as follows:
53.I did not regard the applicant to be either a credible, or reliable, witness. There were a number of reasons for this.
54.First, the applicant was prepared to sign and submit a protection visa application form which he knew did not actually reflect his claims.
55.Second, there was a considerable delay in the applicant raising his claims based on his religious opinions and views. That delay was not satisfactorily explained.
56.Third, despite being asked which Sharia laws he was opposed to, he applicant did not, at least initially, identify the requirement to fast. That is despite his later claim of having been detained for breaching those provisions.
57.Fourth, the failure to raise, until well into the hearing, the claim that he had been detained for a month for eating during a period of fasting was inexplicable. I reject the applicant’s explanation that he did not consider that it was “important” enough to raise. It beggars belief
58.Fifth, the applicant was unable to recall the name of the facility that he was, as he claims, detained in for a month shortly prior to his departure from Malaysia.
59.Sixth, aspects of the applicant’s evidence and claims were internally inconsistent. By way of one example, the applicant claimed that he was of the opinion that all religions were “true” whereas Islam considers there to be only one true religion. The applicant offered examples of religions that he claimed he considered were true, but when asked to explain why he considered a particular religion to be “true”, he eventually conceded he had no real knowledge of the religion that he had himself nominated.
60.Seventh, the applicant’s demeanour when answering questions central to his claimed beliefs caused me to doubt that his credibility.
61.Eighth, the applicant's case was something of a contradiction. For example, the applicant quite clearly considered himself to be a “good Muslim” and, indeed, desired to be perceived as a “good Muslim” by others in Australia. The applicant was insistent on identifying as a Muslim and a follower of the Islamic faith, despite simultaneously claiming that his opinions and views about Islam were inconsistent and opposed to that faith, resulting in him being exposed to harm in Malaysia.
In relation to any findings that relied on the applicant’s demeanour, the Tribunal explained further:
62.I am conscious that “[t]he utilisation of demeanour, without more, to substantiate adverse credibility findings is ‘fraught with dangers’”.
63.I have avoided making any conclusion based entirely on the applicant’s demeanour. I have, however, referred below to aspects of the applicant’s demeanour that represented a marked departure from his demeanour during other parts of the hearing. Where there was a marked shift in the applicant’s demeanour, it was accompanied by answers to questions that were evasive or non-responsive to the question that had been asked.
The Tribunal then emphasised its overall credibility assessment, stating as follows:
64.As a result of my concerns as to the applicant’s credibility and reliability, I do not accept any of the applicant's evidence in relation to his religious opinions and views as being credible. I consider that his evidence in this regard has been crafted with the aim of attempting to satisfy the criteria for the grant of a protection visa.
In relation to the applicant’s claimed religious opinion and views, the Tribunal highlighted that:
65.In his original protection visa application, the applicant did not claim to fear harm on account of his religion. The claim in relation to his religious opinion was first raised in the applicant’s original response to the written invitation. The claim and evidence in support of the claim at that time was limited to the words “conflicting religion opinion” [sic].
66.That claim was later clarified and expanded upon by the amended response to the written invitation, wherein the applicant claimed:
contradiction in religion opinion-my views as muslim that thinks all religion is true were considered misleading and called liberal, in terms of freedom and right between men and women are not same.
67.As I have noted, the applicant did not raise his religious opinions and views as grounding his claim to protection until March 2023, some five and a half years after the protection visa application was originally made - the Tribunal noting that “on his own case, these views were not new. They existed, so the applicant claims, prior to his departure from Malaysia”.

The Tribunal then detailed its concerns about the applicant's “changing” protection claims (at [68]-[79]), ultimately emphasising as follows:
80.The reasons cited by the applicant for the delay in raising his present claims were, in substance, a combination of:
(a)the vague suggestion that he ‘maybe’ was afraid to include his actual claims in his original protection visa because [his friend] was a Muslim;
(b)his unfamiliarity with filling out forms, which was both the reason why he claims that he enlisted the assistance of [his friend] and why, despite this application being on foot for five and a half years, he did not update his claims with the Tribunal; and
(c)his consideration of the refugee criterion after the decision of the delegate.
On the basis of the above, the Tribunal concluded:
81.My overall impression is the applicant’s claims have constituted what might be best described as an iterative process.
82.The willingness of the applicant to sign the protection visa application which, on his own evidence, he knew did not accurately reflect his claims, does not reflect well on him. This is part of the reason why I have serious doubts about the credibility of the applicant’s claims and evidence.
83.The apparent lack of concern from the applicant that his protection visa application accurately reflected his claims was also of concern.
84.Moreover, the last integer of the claims to be made by the applicant, his month-long detention, was not only the most significant claim to be raised but also raised at a point where the applicant had not been able to explain why he held the views that he claimed to hold. His reasons for the delay in making those claims are unconvincing.
85.I do not accept that the applicant has a reasonable explanation for not raising his actual claims and presenting the evidence in support of them either before the delegate made her decision or earlier in the review process with the Tribunal. The delay, in all of the circumstances, creates doubt that the claims and evidence advanced by the applicant are genuine or credible.
The Tribunal then outlined the applicant’s evidence about his religious opinions and views.
Having outlined the applicant's submissions that he was opposed to Sharia law (which, he claimed, is why he sought protection in Australia (at [86])), the Tribunal continued:
88.I asked the applicant whether anything had ever happened to him because of his views about Islam. The applicant said “yes” and explained that the general consensus “would be” that he would be propagating deviant teaching, which would affect the position of Islam and the belief in God.
89.The applicant did not, at that time, claim that he had ever experienced harm on account of his views.
The Tribunal then outlined its concerns about the applicant’s demeanour and the answers provided by him when he was asked questions about his religious beliefs, highlighting as follows:
90.The applicant also expressed that he did not agree with the aspect of Islam that considered other religions to be “not true”. The applicant claimed that he considered all religions to be “right”. I asked the applicant when he first had that realisation. The applicant claimed that it was after he had finished high school.
91.I asked the applicant what caused that realisation. That question appeared to unsettle the applicant. His response, punctuated by an unusually long pause during which the applicant gazed up to the roof, was evasive and avoided the question.
92.When he eventually responded, the applicant’s response was to claim that he didn’t consider himself a good Muslim and that he didn’t know the Muslim faith very well. He said that it wasn't that he did not respect or “revere” the Islamic religion, he just felt that all religions were equal. The applicant then referred, in very general terms, to seminars about Islam not being able to accept other religions whereas he felt that all religions are equally important.
93.I cannot, however, ignore what I regarded to be a marked change in the applicant's demeanour when being asked how he came to realise that his views on Islam were different to mainstream views. The applicant was, in my opinion, clearly uncomfortable and unprepared for that question. I was left with a clear impression that the delay in answering the question was not because the applicant was searching for the right words or because he was trying to remember traumatic events, but rather because the applicant was attempting to craft a response that he hoped would assist his application. Had the applicant genuinely experienced a realisation that was inconsistent with Islamic doctrine, I would have expected the applicant to be readily able to identify what it was, in particular, that caused him to think in this way.
94.Moreover, the answer given sought to avoid the question. It did not address what it was that caused the applicant to form his stated beliefs. In substance, the applicant simply re-stated that his view was that all religions are equal, which was inconsistent with Islam. This was not the only occasion where the applicant's response to a question attempted to avoid engaging with the question that had been asked.
95.When further pressed about his religious beliefs, the applicant volunteered that he “never thought Christianity or Buddhism were wrong religions”. When pressed for detail about why he had that belief about Buddhism, the applicant again appearing uncomfortable with the question. He eventually responded that he “couldn’t put it in words” before eventually offering that all religions “have merit, their goodness.”
96.Those responses were, I considered, vague and unpersuasive. They did nothing to expose the basis for the applicant’s stated departure from Islamic beliefs. Pressing further, I asked the applicant what the merit in Buddhism was, as this was one of the religions that the applicant himself offered as an example.
97.The applicant’s response was again punctuated by an uncomfortable, long pause together with a gaze towards the roof. When he did respond, his answer was that “I don’t know what the right answer is”. I explained to the applicant that I was asking about his opinion on the merit of Buddhism as a religion. The applicant responded that it was a “unique religion”. I asked the applicant what Buddhism teaches, and, at that point, the applicant conceded that he doesn't actually know a lot about Buddhism.
98.The exchanges about Buddhism did not reflect well on the applicant's credit. Buddhism was a religion that was referred to by him in his evidence as being a religion that the applicant did not, contrary to Islam, consider was “wrong”. When confronted about why he held those views, rather than immediately concede that his knowledge of Buddhism was limited, the applicant endeavoured to answer questions to avoid exposing his lack of knowledge of that faith.
99.The applicant did nothing to persuade me that he held a genuine belief that all religions were true. I accept that it is plausible that the applicant is tolerant of other religions and respects the right of others to choose their faith. However, I do not consider that the applicant genuinely believes that “all other religions are true” such that his views are in opposition to, and conflict with, Islamic doctrine.
The Tribunal detailed its assessment of the applicant’s claimed experiences of harm, highlighting as follows:
100.After this exchange, I asked the applicant what made him decide to get on a plane and come to Australia. The applicant said that he felt that he wasn’t given enough freedom to live his life as a Muslim. Again, in his response to this question, the applicant did not refer to the long period of detention that he would later mention.
101.I asked the applicant what freedom he felt he was missing. He claimed that he couldn't consume alcohol in public and had to fast. The applicant denied eating, or wanting to eat, pork products.
102.The applicant also claimed that if he were to live with his family, he would have to perform the five daily prayers. However, the applicant conceded that he would not live with his family if he was returned to Malaysia. The applicant indicated that he would most likely live in Kuala Lumpur if returned to Malaysia.
103.Kuala Lumpur is a large city with many tourists and faiths. It was only after I asked questions about why he would be at risk in Kuala Lumpur and whether he claimed that the police would arrest him that the applicant raised his claimed period of detention.
104.The applicant claimed that in around January 2017, he was arrested for eating in public during a fast. He claimed that he was detained for one month and had to pay 1,000 ringgit as bail or a bond. He claims he was released at the end of January 2017. He claims his parents knew about his detention.
105.I was surprised that the applicant had not yet given that evidence prior to that point of the hearing. I consider that he had ample opportunity to do so. I had asked the applicant why it was he decided to come to Australia. He made no reference to having been detained and wanting to leave as a result. I had asked the applicant again what made him decide to get on a plane and come to Australia. He did not refer to being detained. I had also asked the applicant whether anything had happened to him because of his religious views. He did not refer to being detained and instead referred to general views that people would have of him.
106.I asked the applicant why he didn’t tell me about being detained until then. The applicant's response was to claim that he did not think it was important enough.
Ultimately, the Tribunal rejected the explanation provided by the applicant about his claimed detention (at [107]), finding as follows:
108.The applicant had explained during the hearing that he changed his claims because, in part, he had considered the refugee criterion in the delegate’s decision. I also explained to the applicant at the commencement of the hearing that to meet the definition of a refugee, I had to be satisfied that there was a real chance that he would be exposed to serious harm if he were returned to Malaysia.
109.The applicant claims to fear harm because of his religious opinion and views, which includes his non-observance of aspects of Islamic law. The detention was a clear example of the applicant being harmed because of his non-observance of Islamic law. It occurred during the same year that he travelled to Australia. I do not accept that the applicant would have considered his lengthy detention for breach of Islamic law as being “unimportant”.
110.When pressed for detail on his detention, the applicant was able to identify the Court that he claimed that he was taken to but could not identify the name of the facility at which he was detained. If a person was detained for an entire month, I consider that they would be able to recall the name of the facility that they had been detained at.
Ultimately, on the basis of the above, the Tribunal did not accept that the applicant’s claim to have been detained to be a credible claim (at [111]).
The Tribunal then noted that at the end of the Tribunal hearing, the applicant claimed that he would “be persecuted in Malaysia if he married a non-Muslim in Australia” but conceded that he had not married a non-Muslim (at [112]). This led the Tribunal to conclude that this was not “a claim genuinely raised”.
The Tribunal continued:
113.… However, to avoid doubt, the I find that the applicant does not face a real chance of serious harm based on his marriage to a non-Muslim because he has not married (and has made no claim of an intended or imminent marriage to) a non-Muslim wife.
Finally, the Tribunal noted as follows in relation whether the applicant would face harm from his family if returned to Malaysia:
114.The applicant did not claim to be at risk of harm from his family on account of his religious opinions and views. He did not point to any past harm or future potential risk. That is notwithstanding his family’s asserted knowledge of his past detention. He continues to communicate with his parents, albeit infrequently. I am not satisfied that there is a real chance of serious harm from the applicant's family if he were to be returned to Malaysia.
The Tribunal then outlined its findings in relation to the refugee criterion relevant in s 5J of the Act and s 36(2)(a) of the Act, providing as follows:
115.The applicant has not claimed to have renounced or converted from Islam. I am not satisfied that the applicant is genuinely a non-practising Muslim. I have rejected that he was previously detained for breaching Islamic law.
116.I am not satisfied that the applicant genuinely holds the religious opinions and views that he claims to hold. I consider that the applicant's claimed religious opinions and views have been crafted for the purposes of improving his claims for protection.
117.I have only accepted that it is plausible that the applicant is tolerant of other religions. I do not, however, accept that he faces a real risk of serious harm because he might be tolerant of other religions.
118.Article 3(1) of Malaysia’s Constitution states “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”. Article 11(1) states every person has the right to profess and practise his religion and, subject to cl (4), to propagate it.
119.The applicant’s plausible tolerance of other religions is consistent with the sentiment towards religion that is reflected in the Malaysian Constitution. There is no suggestion that the applicant will seek to proselytise those other religions. There is no suggestion that the applicant has, either in Malaysia or Australia, sought to proselytise his tolerance of other religions to other Muslims. There is no suggestion that he has converted. I am not aware of any credible country information which suggests that Muslim’s in Malaysian who are merely tolerant of other religions are at a risk of harm.
On the basis of the above, the Tribunal concluded that that it was not satisfied that there was a real risk that the applicant would face serious harm if he were returned to Malaysia. The Tribunal also considered the applicant’s claims cumulatively, concluding that there was no feature of any of the applicant’s claims which, when combined with one or more or all of the other claims, would lead the Tribunal to conclude that the applicant had a well-founded fear of persecution within the meaning of s 5J of the Act or otherwise engages Australia’s protection obligations under s 36(2)(a) of the Act (at [120]-[121]).
On the basis of the above, the Tribunal determined that the applicant was not a refugee within the meaning of s 5J of the Act (at [120]).
The Tribunal then assessed whether the applicant was entitled to complementary protection pursuant to s 36(2)(aa) of the Act. Relying on its anterior findings above, the Tribunal found as follows:
123.To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm.
124.The concept of significant harm looks to others engaging in conduct towards an applicant, whether as an individual or as a member of a group or community. It requires that there be some act, or omission, intentionally inflicted upon the applicant as an individual or as a member of a group or community.
125.I have not accepted that the applicant will face a real chance of serious harm if returned to Malaysia on account of his religious opinions and views or for any other claimed reason.
126.The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.
127.I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that the applicant would suffer significant harm as that term is exhaustively defined in s 36(2A) of the Act.
On the basis of the above, the Tribunal was not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm (as required by s 36(2)(aa) of the Act) if he returned to Malaysia (at [128]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 21 November 2023 contains four grounds of review as follows (without alteration):
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
2.THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE.
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELEVANT IN MY CASE.
On 13 December 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents (such as written submissions or any amended application for judicial review) were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 21 November 2023 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 101 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 23 July 2024.
The applicant appeared before the Court (on 23 August 2024) without legal representation. He was assisted by a Malay interpreter.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
As is now the expected practice in this Court, the Court explained to the applicant that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].

The Court also explained to the applicant that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks (even if the Court disagrees with the Tribunal’s ultimate findings). Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant told the Court that he had “chosen to live in Australia because, even though he is a Muslim, he respects all religions and respects LGBT people”. Further, he believes that he “could have a better, legal life here” in Australia. The applicant also confirmed to the Court (in response to questions asked) that, whilst he had initially raised protection claims relating to economic concerns, he no longer pressed those claims. Rather, his claims instead related only to his “religious beliefs”.
CONSIDERATION
The applicant’s grounds of review are not particularised, no written submissions were filed by the applicant and his oral submissions before this Court did not address the issue of jurisdictional error or any of the grounds of review as articulated in his application before this Court. This is not a criticism. What occurred here common in this Court and often expected – where, regrettably, applicants appear without legal representation and where court proceedings can be intimidating.
In the circumstances, the Court will interpret the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error (as is now the accepted practice in this Court).
Ground one
As outlined above, ground one provides as follows:
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
Read as broadly as possible, and having reviewed the Tribunal’s decision in detail, the Court considers that ground one raises three issues:
(a)whether the Tribunal failed to assess a protection claim or an integer of a claim;
(b)whether the Tribunal should have investigated the applicant’s protection claims; and
(c)whether the Tribunal’s approach to credibility was “unreasonable”.
Whether the Tribunal failed to assess a protection claim or an integer of a claim
As summarised above, by the time the applicant appeared before the Tribunal, he had changed his protection claims.
As correctly summarised by the Tribunal (at [11]-[15] of its reasons) on 14 March 2023 the applicant was invited in writing (pursuant to s 424(2) of the Act) to provide additional information in support of his application for review (CB 63-65).
The applicant responded to that invitation on 15 March 2023 (CB 66-71).
In that response, the applicant indicated that he wished to update his claims for protection and inserted the words “political opinion” and “conflicting religion opinion” (CB 69).
The same response appeared in answer to the question of whether there was any other information in the original visa application that the applicant wished to change or update (CB 69).
On 21 March 2023, the applicant emailed the Tribunal, stating (CB 72):
after i read the previous information i decide to change again the claims of protection because im not part of any politic group, and i dont want being misunderstood… [sic].
Attached to that email was a further response to the s 424(2) invitation, which removed references to “political opinion” and “conflicting religion opinion” and instead included (CB 88):
contradiction in religion opinion-my views as muslim that thinks all religion is true were considered misleading and called liberal, in terms of freedom and right between men and women are not same.
On the basis of that information, the Tribunal then explained the applicant’s protection claims, as follows:
47.The only remaining claim by the applicant was a claim to fear harm based on his religious opinions and views. In substance, the applicant claims that he is a non-practising Muslim who has liberal thoughts which conflict with Islamic doctrine. He claims that he believes all religions are true, which conflicts with Islamic doctrine. He also claims that he is opposed to, and does not follow, certain aspects of Islamic law.
The Tribunal then proceeded to undertake a lengthy assessment of the applicant’s protection claim as to harm feared on the basis of his religious opinion and views (in relation to s 5J of the Act at [65]-[67], [86]-[99], [100]-[111] & [115]-[120] and in relation to s 36(2)(aa) of the Act, at [123]-[128]).
In addition to the claim as articulated, the Tribunal also assessed a further concern about harm resulting from a claimed detention raised by the applicant at the Tribunal hearing. The Tribunal explained the applicant’s concerns in this regard as follows:
104.The applicant claimed that in around January 2017, he was arrested for eating in public during a fast. He claimed that he was detained for one month and had to pay 1,000 ringgit as bail or a bond. He claims he was released at the end of January 2017. He claims his parents knew about his detention.
105.I was surprised that the applicant had not yet given that evidence prior to that point of the hearing. I consider that he had ample opportunity to do so. I had asked the applicant why it was he decided to come to Australia. He made no reference to having been detained and wanting to leave as a result. I had asked the applicant again what made him decide to get on a plane and come to Australia. He did not refer to being detained. I had also asked the applicant whether anything had happened to him because of his religious views. He did not refer to being detained and instead referred to general views that people would have of him.
106.I asked the applicant why he didn't tell me about being detained until then. The applicant’s response was to claim that he did not think it was important enough.
Ultimately, the Tribunal rejected the explanation provided about the claimed detention (at [107]), finding as follows:
109.The applicant claims to fear harm because of his religious opinion and views, which includes his non-observance of aspects of Islamic law. The detention was a clear example of the applicant being harmed because of his non-observance of Islamic law. It occurred during the same year that he travelled to Australia. I do not accept that the applicant would have considered his lengthy detention for breach of Islamic law as being “unimportant”.
110.When pressed for detail on his detention, the applicant was able to identify the Court that he claimed that he was taken to but could not identify the name of the facility at which he was detained. If a person was detained for an entire month, I consider that they would be able to recall the name of the facility that they had been detained at.
Ultimately, on the basis of the above, the Tribunal did not accept that the applicant’s claim to have been detained to be a credible claim (at [111]).
As discussed above, the Tribunal also noted that the applicant also claimed (at the hearing) that he would “be persecuted in Malaysia if he married a non-Muslim in Australia” but conceded that he had not married a non-Muslim (at [112]). This led the Tribunal to conclude that this was not “a claim genuinely raised”.
The Tribunal continued:
113.… However, to avoid doubt, the I find that the applicant does not face a real chance of serious harm based on his marriage to a non-Muslim because he has not married (and has made no claim of an intended or imminent marriage to) a non-Muslim wife.
Finally, the Tribunal noted as follows in relation whether the applicant would face harm from his family if returned to Malaysia:
114.The applicant did not claim to be at risk of harm from his family on account of his religious opinions and views. He did not point to any past harm or future potential risk. That is notwithstanding his family's asserted knowledge of his past detention. He continues to communicate with his parents, albeit infrequently. I am not satisfied that there is a real chance of serious harm from the applicant's family if he were to be returned to Malaysia.
It cannot be said here, on the basis of the above, that the Tribunal failed to assess any of the applicant’s claims for protection or concerns more broadly about the risk of harm should he return to Malaysia.
No jurisdictional error arises in this regard.
Whether the Tribunal should have investigated the applicant’s protection claims
If the applicant is stating that the Tribunal should have better investigated the applicant’s protection claims, the Court disagrees for the reasons that follow.
The Court notes that s 5AAA of the Act provides as follows:
5AAA  Non‑citizen’s responsibility in relation to protection claims
(1)This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3)       The purposes of this Act include:
(a)the purposes of a regulation or other instrument under this Act; and
(b)the purposes of any administrative process that occurs in relation to:
(i)        this Act; or
(ii)       a regulation or instrument under this Act.
(4)To remove doubt, the Minister does not have any responsibility or obligation to:
(a)specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b)       establish, or assist in establishing, the claim.
As this Court has recently explained in AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 (“AVH24”), it is not the Tribunal’s responsibility to investigate an applicant’s claims or seek further evidence by itself in relation to what may or not be a protection claim: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. That responsibility falls on the applicant.
This does not mean, however, that the Tribunal should not assist an applicant (particularly an applicant who appears without legal assistance, who is not fluent in the English language and who speaks through or with the assistance of an interpreter) better articulate his or her concerns and the evidence he or she seeks to present and rely on.
That approach was adopted here.
Relevantly, the Tribunal raised any concerns it had with the applicant’s evidence with the applicant and detailed those concerns with him. The Tribunal also assessed late claims raised by the applicant about an alleged detention in Malayasia and the possibility that he might be harmed by his family or others because of his claimed religious beliefs or because he might marry a non-Muslim woman.
Overall, as in AVH24, the Tribunal here actively sought to elicit as much information as it could from the applicant in relation to any claims raised or implied.
No jurisdictional error arises in this regard.
Whether the Tribunal’s approach to credibility was “unreasonable”
Finally, if the applicant is suggesting that the Tribunal’s emphasis on “credibility” was “unreasonable”, the Court disagrees.
This court has previously summarised the principles of legal unreasonableness in relation to credibility findings in its decision in ASG17 v Minister for Immigration & Anor [2019] FCCA 1492 (at [129]-[130]).
The Court relies upon and repeats the overview provided in that judgment, as follows.
There is no single test or formula for determining whether a decision is “unreasonable”.
In DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 (“DAO16”), the Full Court of the Federal Court of Australia (the “Full Court”) (Kenny, Kerr and Perry JJ) summarised the principles of legal unreasonableness in relation to credibility findings, providing as follows:
3. RELEVANT PRINCIPLES: LEGAL UNREASONABLENESS
30. The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
In this matter, the Tribunal clearly outlined why it found the applicant’s evidence to be lacking. Relevantly, the Tribunal determined as follows:
54.First, the applicant was prepared to sign and submit a protection visa application form which he knew did not actually reflect his claims.
55.Second, there was a considerable delay in the applicant raising his claims based on his religious opinions and views. That delay was not satisfactorily explained.
56.Third, despite being asked which Sharia laws he was opposed to, the applicant did not, at least initially, identify the requirement. That is despite his later claim of having been detained for breaching those provisions.
57.Fourth, the failure to raise, until well into the hearing, the claim that he had been detained for a month for eating during a period of fasting was inexplicable. I reject the applicant's explanation that he did not consider that it was “important” enough to raise. It beggars belief.
58.Fifth, the applicant was unable to recall the name of the facility that he was, as he claims, detained in for a month shortly prior to his departure from Malaysia.
59.Sixth, aspects of the applicant’s evidence and claims were internally inconsistent. By way of one example, the applicant claimed that he was of the opinion that all religions were “true” whereas Islam considers there to be only one true religion. The applicant offered examples of religions that he claimed he considered were true, but when asked to explain why he considered a particular religion to be “true”, he eventually conceded he had no real knowledge of the religion that he had himself nominated.
60.Seventh, the applicant’s demeanour when answering questions central to his claimed beliefs caused me to doubt that his credibility.
61.Eighth, the applicant's case was something of a contradiction. For example, the applicant quite clearly considered himself to be a “good Muslim” and, indeed, desired to be perceived as a “good Muslim” by others in Australia. The applicant was insistent on identifying as a Muslim and a follower of the Islamic faith, despite simultaneously claiming that his opinions and views about Islam were inconsistent and opposed to that faith, resulting in him being exposed to harm in Malaysia.
Having reviewed the Tribunal’s decision in detail, the Court is satisfied that the findings made by the Tribunal and the approach adopted were not “extreme”, “arbitrary”, “perverse” or “capricious”. All findings made were made after extensive questioning by the Tribunal in relation to the evidence the applicant put to the Tribunal.
Further, this is not a case where the credibility of the applicant was “damned by an objectively minor fact”. On the contrary, the Tribunal had significant concerns.
Nor can it be said that there was any clearly identified “[u]nwarranted assumption” by the Tribunal that caused it to disregard the applicant’s evidence: DAO16 (at [30]), (citing SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at [22]).

In this regard, it is noted that the Tribunal assessed the applicant’s demeanour and any adverse findings in that regard with caution. This is important and required. As stressed in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 (“DVO16”), there are certain considerations a Tribunal must take into account when making an assessment in relation to demeanour and credibility, as follows:
54The errors that can arise from interpretation are not limited to the consequences of incorrect interpretation. They extend also to the pernicious effect of adverse credibility assessments based upon matters of demeanour and impression. A former member of the Refugee Review Tribunal has correctly described how “[t]he utilisation of demeanour, without more, to substantiate adverse credibility findings is ‘fraught with dangers’”. Empirical studies have also suggested that the medium of an interpreter can affect assessment of demeanour, and therefore credibility, “by the interpreter’s voice, dress, mannerisms, linguistic competence, age, race and gender”. As Professor Groves has observed, decision makers “may struggle to distinguish between the words and demeanour of an interpreter and those of the person being interpreted”. Further, the unspoken relationship between the interviewee and the interpreter, especially if there is not complete trust between them, can sometimes present a distorted impression of, or distorted context for, the interpreted words. These problems for credibility assessments based, in part, upon impression and demeanour are compounded by cultural issues that may not be known to the decision-maker such as the impoliteness in some cultures of direct responses to questions or the extreme discomfort involved in discussion of some topics in particular cultures. All of these considerations compound the usual problems of assessment of demeanour, particularly in the context of evidence in an atmosphere that is very commonly one of high pressure and which also can commonly concern highly distressing matters…
The Court is satisfied that the Tribunal in this matter properly understood what was required of it and determined accordingly. The Tribunal itself noted that:
Assessment of credibility
50.In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
51.Assessment of credibility is an inherently difficult task. The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. Inconsistencies in an applicant’s account may or may not be significant. I must assess the significance of any inconsistency found to exist, the weight to be given to it, and carefully consider whether there is an acceptable explanation for the inconsistency such that it should attract little if any weight.
52.I must be cautious when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution. I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims. I am not required to uncritically accept any or all of the allegations made by an applicant. Any assessment of credibility I make must be legally reasonable.
….
62.I am conscious that “[t]he utilisation of demeanour, without more, to substantiate adverse credibility findings is ‘fraught with dangers’”.
63.I have avoided making any conclusion based entirely on the applicant’s demeanour. I have, however, referred below to aspects of the applicant’s demeanour that represented a marked departure from his demeanour during other parts of the hearing. Where there was a marked shift in the applicant’s demeanour, it was accompanied by answers to questions that were evasive or non-responsive to the question that had been asked.
The Tribunal then detailed its concerns as follows:
88.I asked the applicant whether anything had ever happened to him because of his views about Islam. The applicant said “yes” and explained that the general consensus “would be” that he would be propagating deviant teaching, which would affect the position of Islam and the belief in God.
89.The applicant did not, at that time, claim that he had ever experienced harm on account of his views.
The Tribunal then outlined its concerns about the applicant’s demeanour and the answers provided by him when he was asked questions about his religious beliefs, highlighting as follows:
90.The applicant also expressed that he did not agree with the aspect of Islam that considered other religions to be “not true”. The applicant claimed that he considered all religions to be “right”. I asked the applicant when he first had that realisation. The applicant claimed that it was after he had finished high school.
91.I asked the applicant what caused that realisation. That question appeared to unsettle the applicant. His response, punctuated by an unusually long pause during which the applicant gazed up to the roof, was evasive and avoided the question.
92.When he eventually responded, the applicant's response was to claim that he didn't consider himself a good Muslim and that he didn't know the Muslim faith very well. He said that it wasn't that he did not respect or “revere” the Islamic religion, he just felt that all religions were equal. The applicant then referred, in very general terms, to seminars about Islam not being able to accept other religions whereas he felt that all religions are equally important.
93.I cannot, however, ignore what I regarded to be a marked change in the applicant's demeanour when being asked how he came to realise that his views on Islam were different to mainstream views. The applicant was, in my opinion, clearly uncomfortable and unprepared for that question. I was left with a clear impression that the delay in answering the question was not because the applicant was searching for the right words or because he was trying to remember traumatic events, but rather because the applicant was attempting to craft a response that he hoped would assist his application. Had the applicant genuinely experienced a realisation that was inconsistent with Islamic doctrine, I would have expected the applicant to be readily able to identify what it was, in particular, that caused him to think in this way.
94.Moreover, the answer given sought to avoid the question. It did not address what it was that caused the applicant to form his stated beliefs. In substance, the applicant simply re-stated that his view was that all religions are equal, which was inconsistent with Islam. This was not the only occasion where the applicant's response to a question attempted to avoid engaging with the question that had been asked.
95.When further pressed about his religious beliefs, the applicant volunteered that he “never thought Christianity or Buddhism were wrong religions”. When pressed for detail about why he had that belief about Buddhism, the applicant again appearing uncomfortable with the question. He eventually responded that he “couldn't put it in words” before eventually offering that all religions “have merit, their goodness.”
96.Those responses were, I considered, vague and unpersuasive. They did nothing to expose the basis for the applicant's stated departure from Islamic beliefs. Pressing further, I asked the applicant what the merit in Buddhism was, as this was one of the religions that the applicant himself offered as an example.
97.The applicant's response was again punctuated by an uncomfortable, long pause together with a gaze towards the roof. When he did respond, his answer was that “I don't know what the right answer is”. I explained to the applicant that I was asking about his opinion on the merit of Buddhism as a religion. The applicant responded that it was a “unique religion”. I asked the applicant what Buddhism teaches, and, at that point, the applicant conceded that he doesn't actually know a lot about Buddhism.
98.The exchanges about Buddhism did not reflect well on the applicant's credit. Buddhism was a religion that was referred to by him in his evidence as being a religion that the applicant did not, contrary to Islam, consider was “wrong”. When confronted about why he held those views, rather than immediately concede that his knowledge of Buddhism was limited, the applicant endeavoured to answer questions to avoid exposing his lack of knowledge of that faith.
99.The applicant did nothing to persuade me that he held a genuine belief that all religions were true. I accept that it is plausible that the applicant is tolerant of other religions and respects the right of others to choose their faith. However, I do not consider that the applicant genuinely believes that “all other religions are true” such that his views are in opposition to, and conflict with, Islamic doctrine.
The approach taken above is indicative of a cautious and conservative approach that reflects a required sensitivity to the concerns canvassed in DVO16.
Contextually, the Court is satisfied that it was not unreasonable for the Tribunal to engage with the applicant as it did and to make adverse credibility findings on the basis of that interaction and the answers ultimately provided by the applicant.
Overall, there is an evident and intelligible justification for the Tribunal’s concerns in relation to the applicant’s credibility. These concerns formed the basis of the Tribunal’s eventual rejection of the applicant’s claim to fear harm in Malaysia on the basis of his religious beliefs. It cannot be said that the analysis undertaken, approach adopted and reasons provided are unreasonable or demonstrative of a failure to adequately assess the applicant’s claims for protection.
No error arises in relation to ground one.
Ground two
Ground two provides:
2.THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.
Arguably, the applicant is suggesting here that that the Tribunal failed to comply with its obligations under s 422B of the Act – that is, the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule.
As previously explained by this Court in ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
For the reasons that follow, the Court is satisfied that the applicant here was afforded natural justice. He was given multiple opportunities to provide evidence to the Tribunal and present arguments in support of his case.
Relevantly, the Court notes that:
(a)the applicant was advised by the Tribunal on 19 December 2017 that his application to the Tribunal had been received and that he was entitled to provide material or written arguments to the Tribunal (CB 58);
(b)the applicant was advised by the Tribunal on 8 July 2020 that he had not provided the Tribunal with a copy of the delegate’s decision record and was asked to do so (CB 60);
(c)the applicant was invited in writing (pursuant to s 424(2) of the Act) to provide additional information in support of his application for review (CB 63-65);
(d)the applicant responded to that invitation on 15 March 2023 (CB 66-71);
(e)in that response, the applicant indicated that he wished to update his claims for protection and inserted the words “political opinion” and “conflicting religion opinion” (CB 69);
(f)the same response appeared in answer to the question about whether there was any other information in the original visa application that the applicant wished to change or update (CB 69);
(g)on 21 March 2023, the applicant emailed (CB 72) the Tribunal, stating:
after i read the previous information i decide to change again the claims of protection because im not part of any politic group, and i dont want being misunderstood… [sic].
(h)attached to that email was a further response to the s 424(2) invitation, which removed references to “political opinion” and “conflicting religion opinion” and instead included:
contradiction in religion opinion-my views as muslim that thinks all religion is true were considered misleading and called liberal, in terms of freedom and right between men and women are not same.
(i)the applicant was invited to a hearing before the Tribunal on 13 November 2023 (as required by ss 425 and 425A of the Act) (CB 74); and
(j)the applicant attended the hearing on 13 November 2023, clarified his protection claims and was given ample opportunity to provide oral evidence to the Tribunal about his now altered amended claims for protection (Tribunal decision at [69]-[79], [88]-[92], [95]-[97], [100]-106] & [108]-[110]).
The Court is satisfied that the Tribunal gave the applicant every opportunity to provide evidence in support of his case and that the applicant was afforded natural justice in this matter.
No jurisdictional error arises in relation to ground two.
Ground three
Ground three states:
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE.
It is not clear what the applicant is suggesting in relation to ground three. If the applicant is suggesting that the Tribunal failed to comply with the mandatory requirement under s 424A of the Act (read with s 424AA of the Act) to give him particulars of information it considered would be part of the reason for affirming the decision under review, to ensure that the applicant understood why that information was relevant to the review and the consequence of it being relied upon, and to invite the applicant to comment upon or respond to that information, the Court disagrees for the reasons that follow.
This Court has previously outlined the requirements of ss 424A of the Act and s 424AA of the Act in its decision in CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616 (“CCU23”) (at [49]-[54] & [57]-[58]). The Court repeats and adopts the analysis provided in that judgment as follows.
Section 424A of the Act requires that the Tribunal put certain adverse information to an applicant for comment or response (subject to the Tribunal’s power to use, in the alternative, s 424AA of the Act) and relevantly states:
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).
Section 424AA of the Act relevantly provides as follows:
424AAInformation 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).
As can be seen from the legislative extracts provided above, the Tribunal is required to comply with s 424AA of the Act (or s 424A of the Act) in respect 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”.
Information is not defined under the Act or the Migration Regulations 1994 (Cth). However, in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) the High Court defined “information” as meaning the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies, or the absence of evidence” or the Tribunal’s disbelief.
Essentially, as summarised by this Court in CCU23, for the purpose of s 424A of the Act and s 424AA of the Act, “information” does not include the following:
(a)information referenced in s 424A(3) of the Act, being information:
(i)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: s 424A(3)(a) of the Act;
(ii)that the applicant gave for the purpose of the application for review: s 424A(3)(b) of the Act;
(iii)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: s 424A(3)(ba) of the Act; and
(iv)that is non‑disclosable information: s 424A(3)(c) of the Act;
(b)“the Tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (“VAF”) at [24] per Finn and Stone JJ; SZYBR at [18]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 (“SZGUR”) at [9];
(c)“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”: VAF at [24] per Finn and Stone JJ; SZYBR at [18]; SZGUR at [9]; and
(d)doubts, inconsistencies or the absence of evidence: SZYBR at [18].

Further, the Full Court has determined that information “does not extend to the ‘prospective reasoning process’ of the Tribunal” and any such information must be information that “would” be the reason, or part of the reasons for affirming the decision (rather than information that “could” or “might” be such a reason): SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3 at [18] per Perram, Jagot and Griffiths JJ.
Having assessed the approach taken by the Tribunal in this matter in relation to the issue of credibility, its findings in that regard and noting the materials before the Tribunal, there is nothing to suggest that there was any “information” which the Tribunal was required to put to the applicant under s 424A of the Act. The Tribunal relied upon information provided by the applicant himself. Further, as set out above, the Tribunal’s thought processes or determinations or any gaps in or absence of evidence are not “information” which the Tribunal was required to put to the applicant for the purposes of s 424A or s 424AA of the Act: VAF at [24] per Finn and Stone JJ; SZYBR at [18]; SZGUR at [9].
Finally, if the applicant is suggesting that the Tribunal has “copied” or “relied” on material referenced in other decisions of the Tribunal or the delegate, the Court disagrees. There is nothing before the Court to suggest “copying” of a sort addressed by this Court in DZH16 v Minister for Immigration & Anor [2020] FCCA 1041 and Maazuddin v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1349 per Judge Gostencnik.
To the extent that the applicant is referring to the use of an appendix of statutory provisions (CB 99-101) used by the Tribunal in this matter (and, indeed, most other protection visa decisions prepared by the Tribunal) there is nothing irregular or problematic with the approach adopted. The use of template statutory summaries simply allows the applicant to better understand what the Act says and better appreciate the principles that guide the Tribunal’s reasoning process.
No error arises in relation to ground three.
Ground four
Ground four provides as follows:
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELEVANT IN MY CASE.
In relation to ground four, the Court repeats and relies in its findings above in relation to grounds one to three.
As discussed above, and as evidenced by the summary of the Tribunal’s decision above, the Tribunal questioned the applicant extensively about his religious views and opinion (at [65]-[99]). The Tribunal also addressed the applicant’s late claims that he had been detained (at [100]-[111]), assessed any concerns that the applicant might have about marrying a non-Muslim (at [112]-[113]) and any suggested harm the applicant might face at the hands of his family because of his religious opinions and views (at [114]).
No error arises in relation to ground four.
CONCLUSION
The application for judicial review filed by the applicant on 21 November 2023 has failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.

I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 6 February 2025

File number:	MLG 2048 of 2023
Judgment of:	JUDGE KENDALL
Date of judgment:	6 February 2025
Catchwords:	MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to assess a protection claim or an integer of a claim – whether the Tribunal should have investigated the applicant’s protection claims for itself – whether the Tribunal’s approach to credibility was “unreasonable” – whether the applicant was denied procedural fairness – whether the Tribunal relied on incorrect information or decided using facts from another case – whether the Tribunal failed to comply with the mandatory requirement under s 424A of the Migration Act 1958 (Cth) (read with s 424AA of the Act) to give the applicant particulars of information it considered would be part of the reason for affirming the decision under review – no jurisdictional error – application dismissed.
Legislation:	Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Item 25 Migration Act 1958 (Cth), ss 5AAA, 5J, 36, 422B, 424, 424A, 424AA, 425, 476, 477 and Division 4 of Part 7 Migration Regulations 1994 (Cth)
Cases cited:	ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67 ASG17 v Minister for Immigration & Anor [2019] FCCA 1492 AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616 Craig v State of South Australia (1995) 184 CLR 163 DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 DZH16 v Minister for Immigration & Anor [2020] FCCA 1041 Maazuddin v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1349 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3 SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Division:	Division 2 General Federal Law
Number of paragraphs:	137
Date of hearing:	23 August 2024
Place:	Perth
Applicant:	Applicant appeared in person
Counsel for the First Respondent:	Ms A Ismailjee
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore

MLG 2048 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	CUB23 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	6 FEBRUARY 2025