FPL18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 322
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FPL18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 322
File number(s): SYG 2987 of 2018 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 7 March 2025 Catchwords: MIGRATION – judicial review – protection visa –whether Tribunal failed to inquire – whether inquiry obvious – whether inquiry would have gleaned information that could have led to a different outcome – no jurisdictional error established – application dismissed. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss5(1)(e) and 5(2)(g)
Migration Act 1958 (Cth) s 5AAA
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
ATY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 677
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196
Minister for Immigration and Citizenship v Le (2007) 164 FCR 151
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 55
Singh v Minister for Immigration & Anor [2013] FMCA 222
STKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 251
SZTPJ v Minister for Immigration & Anor [2015] FCCA 1992
WZARE v Minister for Immigration and Citizenship [2013] FCA 122
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 23 January 2025 Place: Sydney Solicitor for the Applicants: M Jones of Parish Patience Immigration Lawyers Counsel for the Respondents: T Reilly Solicitor for the Respondents: The Australian Government Solicitor ORDERS
SYG 2987 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPL18
First Applicant
FPM18
Second Applicant
FPN18
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 23 October 2018, as amended, 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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 27 September 2018. By this decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) on 19 November 2015, to refuse to grant the applicants a Subclass 866 Protection (Class XA) visa (protection visa).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
This case requires the Court to consider whether the Tribunal constructively failed to exercise its jurisdiction to review the decision of the delegate by failing to make an obvious inquiry about a critical fact, the existence of which could easily have been ascertained.
Tribunal reviews of the inquisitorial variety brought pursuant to Parts 5 and 7 of the Act invariably involve the asking and answering of, often many, questions. Depending upon the issues to be addressed, the material before it and the availability of potential sources of reliable information, a Tribunal will embark upon a fact-finding process by deciding what questions it will ask, how they will be asked, when they will be asked and of whom. Apart from the forum of the hearing within which the Tribunal can elicit information and test credibility, the Tribunal may request information, and invite comment upon information, from applicants in writing before and after a hearing. In most cases, a well-structured and focused series of inquiries will yield a range of responses that will, subject to procedural fairness obligations having been met, allow a Tribunal to comfortably satisfy itself that it has asked enough questions and can fairly proceed to make a decision on the review application. Put simply, there comes a point where a Tribunal decides that no further inquiries need to be made in order for the review application to be determined.
In this case, the applicants contend that this point had not been reached because the Tribunal had failed to make a particular inquiry of the second applicant at hearing. They argue that the Tribunal was required to ask the second applicant when the first applicant had been assaulted and hospitalised in Bangladesh in 2014. In my view, the circumstances of this case did not warrant or mandate the asking of such a question. I explain my reasons for that conclusion below.
BACKGROUND AND RELEVANT FACTS
The background and relevant facts of this matter are largely derived from the parties’ written submissions filed in the latter months of 2024.
The applicants are nationals of Bangladesh. The first and second applicants are respectively husband and wife, with the third applicant being their first born child.
The applicants first entered Australia on 24 October 2014 as holders of Subclass 600 Visitor (Class FA) visas.[1] On 17 May 2016, a second child of the first and second applicant was born.
[1] Court Book (CB) 142.
In order to examine whether the Tribunal, at hearing, was required to ask the second applicant about when the first applicant had been assaulted and hospitalised in Bangladesh in 2014 so as to establish a critical fact as part of the Tribunal’s fact-finding process, it is important to consider the broader factual and procedural context including the nature of the material that had been iteratively presented to the Tribunal in relation to that claim.
The protection visa application
On 5 December 2014, the first applicant submitted a valid application for a protection visa, in which the second and third applicants were included as members of his family unit.[2] The third applicant was four years old when the protection visa application was made.[3] The applicants were assisted by a registered migration agent, Mr Huq of East West Migration Services (first representative), in the preparation and lodgment of their visa application.
[2] CB 1 to 112.
[3] CB 100.
The claims for protection were set out in an undated statement provided by the first applicant ‘in support of his protection visa application’.[4] That undated statement was attached to the visa application form and the claims therein are summarised as follows:
[4] Supplementary Court Book (SCB) 1 to 3.
(a)The first applicant was a businessman in Malkha Nagar, Munshiganj, who later worked in Dhaka, becoming a partner in the company North South Packaging Industry.
(b)Whilst undertaking his studies, the first applicant was a member of the student wing of the Jamaat-e-Islami (JEI) political party. Upon completion of those studies, he became a member of JEI. He became actively involved in activities affiliated with JEI, and then founded a business. As a result of his active involvement with the JEI, he left the village where he founded the business because he feared he would become the subject of targeted attacks by members of, or persons affiliated with, the local Awami League (AL) political party.
(c)The first applicant relocated to Dhaka and was employed with a packaging company, North South Packaging Industry, whilst simultaneously running his business and continuing his involvement in JEI activities in Malkha Nagar. A few years later, the first applicant received a promotion at his workplace in Dhaka and became President of the JEI for Malkha Nagar. AL members in Malkha Nagar became aggressive toward the applicant. The first applicant was concerned for his safety but, as a result of his JEI presidency and his business, was unable to avoid visiting Malkha Nagar.
(d)AL affiliated business partners of North South Packaging Industry in Dhaka developed a hostile attitude towards the first applicant because of his JEI activities and presidential role. He attempted to reconcile with his aggrieved business partners. During the reconciliation process, he received numerous anonymous threatening phone calls to cease his involvement with JEI or he would face serious consequences. Unable to reach agreement with his fellow business partners of North South Packaging Industry, he was told that if he resigned he would be paid out all his entitlements within three months.
(e)On 2 May 2014, the first applicant was physically assaulted by AL activists on his way to his workplace at North South Packaging Industry in Dhaka. The first applicant sustained injuries during that assault which required him to obtain treatment at a medical clinic in Dhaka. He stayed at that clinic for three days before being discharged. Paragraph 14 of the applicant’s statement read:
14. Please note, probably my legitimate claim for entitlements leading to an argument made my partners angry and as a result a group of unknown awami league activists assaulted me on 02 May 2014 on my way to work and I was seriously injured and had to seek medical attention in a clinic called- Moon Light Clinic and I had stay in the clinic for three days for treatment. Please find attached my clinic admission and treatment documents in that regard.
(f)The first applicant then relocated his family to another part of Dhaka as a result of fearing that they would suffer harm from members of, or persons affiliated with, AL. The first applicant gave notice of his intention to resign from his workplace in Dhaka. The first applicant’s residence in Malkha Nagar was ransacked by members affiliated with AL.
(g)The first applicant received further numerous anonymous threatening phone calls. He found out that people were frequenting his residences searching for him.
(h)The first applicant believed he was being targeted and was unsafe in Bangladesh. He then made a decision to flee Bangladesh with his family.
In support of the claims relating to the first applicant’s assault and hospitalisation in Bangladesh in May 2014, detailed at paragraph 11(e) above, the following documents were included with the visa application:[5]
(a)Moon Light Clinic Discharge Certificate, dated 5 September 2014, in which a doctor certified that the first applicant ‘was under treatment’ at the clinic from 2 to 5 September 2014 as he ‘had been suffering from multiple lacerated wound with a scalp injury following a physical assault’;[6] and
(b)Moon Light Clinic Hospital Bill for the first applicant, dated 2 September 2014, covering various items including three days’ bed rental, investigation charges and operating theatre charges.[7]
[5] CB 11.
[6] CB 106 to 107.
[7] CB 108.
On 2 July 2015, the first applicant attended a Departmental interview where he gave oral evidence in relation to his protection claims.[8] The second and third applicants were not specifically invited to attend the interview and did not do so.[9] At interview, the delegate invited the first applicant to comment upon the discrepancy in his evidence in relation to the claimed assault in 2014 whereby he had indicated in his original statement that it occurred on 2 May 2014 but the documents from the Moon Light Clinic indicated that it had occurred on 2 September 2014.[10]
[8] CB 126 to 134.
[9] CB 127 and 146.
[10] CB 156 to 157.
On 19 November 2015, the delegate refused to grant the first applicant a protection visa having found that he was not a person in respect of whom Australia has protection obligations as he was neither a refugee nor owed complementary protection.[11] The delegate found the first applicant was not a credible witness with regard to certain protection claims made.[12] In particular, the delegate did not accept the applicant’s explanation for the discrepancy in his evidence in relation to the claimed assault and hospitalisation and found that the first applicant had not been assaulted on 2 May 2014. The delegate gave the following reasons in their decision:[13]
[11] CB 158.
[12] CB 157.
[13] CB 156 to 157.
Admission to Moon Light Clinic
The applicant also claims that following the assault on 2 May 2014 he was admitted to a local clinic – Moon Light Clinic – for three days. He submitted a hospital bill and medical notes, including a discharge certificate, from the clinic as supporting evidence. At interview I asked the applicant to explain why, if he was assaulted on 2 May 2014, both the hospital bill and clinic operation note are dated 2 September 2014. He responded that he thought they had made a mistake, he did not get them to write the documents for him, he was injured. He reiterated that they must have made a mistake. I put to him that it was unlikely that a mistake of being wrong by four months. He responded that he was admitted on the 2nd and he stated for three days. I put to him that he claimed he had been attacked on 2 May 2014 and the documents were dated the 2nd of the 9th month. He responded that it should be 5 instead of 9. Asked why the date was recorded as the 9th month not the 5th, he said he was sick and asked, rhetorically, how could he tell me how that happened? I pointed out to him that the discharge certificate signed by the doctor is dated 5 September 2014 which suggested that whatever incident the documents referred to took place in September 2014 not May 2014. The applicant said he remembered it happening in May.
…
Assessment of claims
…
I am also not satisfied that the applicant was assaulted as claimed on 2 May 2014. The supporting documentation he provided contains dates that do not match his claim and at interview the applicant was unable to provide a reasonable explanation for that discrepancy. Given the country information regarding the availability of false and fraudulent documents in Bangladesh, I am not satisfied that the medical documents provided are genuine. As I am not satisfied that the claimed 2 May 2014 assault occurred, it follows that I’m also not satisfied associated claims are true, including that the applicant was targeted by the AL…
Having found that the first applicant met neither of the criteria in ss 36(2)(a) or (aa), the remaining applicants were refused the grant of protection visas as they were not members of the family unit of a person to whom Australia owed protection obligations.[14]
[14] CB 160.
The review application
On 14 December 2015, the applicants sought review of the delegate’s decision by the Tribunal. The first representative assisted the applicants with the making of their review application. A copy of the delegate’s decision was lodged with the Tribunal when the review application was made.[15]
[15] CB 161 to 167.
On 25 July 2017, the first representative lodged a written submission with the Tribunal (written submission dated 25 July 2017).[16] Paragraphs 18 and 19 of this submission read:
18. Finally the compromising effort was exhausted and those awami supporting partners were about to kick the applicant out of his business deceiving his all entitlements in the business and as the applicant was placing his legitimate claims of his entitlements, the applicant was again assaulted by some of the awami activists by the instigation of those awami directors in the business on 02 May 2014 on his way to work and the applicant was seriously injured seeking medical attention by admitting in Moon Light Clinic for three days –
19. After the assault incident on 02 May 2014, the applicant relocated his family to his brother’s place in another part of Dhaka city and also notified his North South Packaging to quit his business and on 15 July 2014 -
[16] CB 202 to 208.
On 4 July 2018, the Tribunal wrote to the applicants inviting them to attend a hearing before the Tribunal on 30 July 2018.[17] The invitation relevantly stated the following information:
You should provide a written submission setting out all claims made and maintained by the applicants by 23 July 2018. The submission should be accompanied by a signed declaration from the applicants that the submission has been read and explained to them and that it accurately completely presents their claims.
If you are proposing that a witness give evidence at the hearing, a witness statement setting out the witness’s evidence should be provided to us by 23 July 2018. Where a witness is unable to adopt or sign a witness statement, particulars of the evidence the witness is expected to address and how it is relevant to the case should be provided by this date.
[17] CB 210 to 211.
On 16 July 2018, by way of response to the Tribunal’s hearing invitation, the first representative lodged the following documents: [18]
(a)A completed ‘Response to hearing invitation – MR Division’ form in which it was specified that the first and second applicants would ‘take part in the hearing’, that the first representative would not attend the hearing and that the Tribunal was not requested to take oral evidence from a witness at the hearing.
(b)The first representative’s written submission dated 12 July 2018 (written submission dated 12 July 2018) which, among other things, repeated paragraphs 18 and 19 of the written submission dated 25 July 2017 set out above. Critically, the first representative repeated their submission that the assault occurred on 2 May 2014.
(c)A signed declaration from the first applicant in which he attested to the first representative having read and explained the written submission dated 12 July 2018 and confirm its accuracy.
It was not specified in any of these documents what oral evidence, if any, the second applicant could or would provide to the Tribunal at hearing. Furthermore, the second applicant did not provide a signed declaration to the Tribunal in accordance with the request made in its letter of 4 July 2018. Accordingly, the second applicant did not notify the Tribunal that the written submission dated 12 July 2018 had been read and explained to her and that it accurately and completely presented the claims for protection that had been raised.
[18] CB 215 to 226.
On 30 July 2018, the applicants attended a hearing before the Tribunal.[19] At hearing, the Tribunal made a number of inquiries of the first applicant in relation to his claimed assault and hospitalisation in 2014. The Tribunal hearing transcript reveals the following exchange between the Tribunal Member and the first applicant:[20]
[19] CB 229 to 231.
[20] Tribunal hearing transcript, p 16 line 22 to p 17, line 29.
Q. Okay. But I’m still struggling. You were in Dhaka and you say that a group of unknown Awami League activists assaulted you? So, why do you think these people were associated with Mr Mohidien or anyone else?
A. Saying that I understood from some employees from my factory, they told me that some people from my area went to talk to my partners. After a couple of days, I mean this incident took place is what he’s saying.
Q. All right. So, what injuries did you sustain? When you were attacked on the 2nd of May 2014 what injuries did you receive?
A. They pushed me down and they, they hit me. They hit me. I was very – I mean sick after that and I had to stay in..(not transcribable)..clinic for three days.
Q. Sorry, what injuries did you get?
A. He’s saying in my back, back and neck. And this – okay – X-rays were taken and the doctors said that although nothing broken but strained this sort of things happen. I mean strained.
Q. Strained? Things were strained? Anything else?
A. He is saying that after that we moved into my brother’s house.
Q. Okay. But I’m wanting to know exactly what happened to you? You said you had back, neck and nothing was broken. But things were strained?
A. Yes. That’s right.
Q. All right. That’s pretty vague. What was wrong with your back? Was it just strained?
A. It was so painful that for two days I was unable to walk by myself.
Q. What – I don’t need to know whether it was painful. What I want to know is what were your injuries? And that is all I would really like to know. So, you’ve said - -
A. Okay. They, they kicked my back and as I said that I had marks, hitting marks on my back of the neck. And, and also, I had knee pain. He saying that he is - I feel pain in my knees.
Q. And that was because of the assault in May 2014? Was it?
A. Yeah. After that I started feeling knee pain.
Q. Okay. Was that the result of May 2014?
A. Yes, I think so.
Q. Okay. Look I think you, you gave some documents to the Department of Immigration. All they talk about are multiple lacerated wounds and a scalp injury. And the other things about –
A. He’s saying that what I am saying at neck, but this is head.
Q. The other thing about those hospital documents is they’re all dated September 2014. Not May 2014.
A. I didn’t collect the papers immediately but after some time I realised that this might be needed and then I went to them and they provided the documents. At the time, I mean at that date.
Following this exchange, the Tribunal raised various concerns with the first applicant’s narrative and that it may not accept his claim in relation to the assault and hospitalisation given the vague nature of his oral evidence in relation to the injuries he sustained and the discrepancies in his own evidence as to when the assault and subsequent hospitalisation had occurred.[21] The first applicant did not address this concern at hearing.
[21] Tribunal hearing transcript, p 17 line 31 to p 18, line 25.
Following the hearing, on 31 July 2018, the Tribunal wrote to the applicants inviting them to comment on or respond to certain information which the Tribunal considered would, subject to the applicants’ comments or responses, be the reason, or part of the reason, for affirming the decision under review.[22] In essence, the Tribunal invited comment upon the inconsistencies between the first applicant’s evidence in relation to his residential address in Bangladesh as well as the nature and timing of threats he had received from AL members and affiliates.
[22] CB 240 to 242.
On 2 August 2018, the applicants’ newly appointed representative, a registered migration agent by the name of Mr Mahalingam Sutharshan from Parish Patience Lawyers (second representative), wrote to the Tribunal requesting documents pursuant to the Freedom of Information Act 1982 (Cth).[23]
[23] CB 243 to 247.
On 8 August 2018, the Tribunal provided various documents to the second representative in satisfaction of the freedom of information request.[24] That material included a copy of the audio recording of the Tribunal hearing held on 30 July 2018.
[24] CB 257 to 261.
On 18 September 2018, the second representative provided the Tribunal with a lengthy written submission spanning 75 pages which contained numerous references to, and extracts from, a range of country information sources but did not address the discrepancy within the first applicant’s evidence in relation to when the assault and hospitalisation had occurred in 2014. The second representative also provided two statutory declarations to the Tribunal – one declared by the first applicant on 14 September 2018, another declared by the second applicant on the same date. By way of these statutory declarations:
(a)The first applicant changed his evidence in relation to the alleged assault by stating that it had occurred on 2 September 2014.[25] No explanation was given as to why his evidence in relation to this claim had suddenly changed at this point. Paragraph 14 of the first applicant’s statutory declaration declared on 14 September 2018 read:
14. On 2 September 2014 when I was going to work through road, there some unknown persons suddenly attacked me. Due to the attack I sustained injuries. The attackers left me when local people came for my rescue. After that I was admitted in Moonlight Clinic with the help from one of my friends and local persons. I sustained injury in my neck, head, back and knees. As a result I could not walk alone for two days. After staying for three days in clinic, my family and I due to fear decided to go to my brother rather then my residence. At the time of staying in the residence of my brother, one group of Awami League went to my residence in Mirpur and after not getting me they threatened that where I remain in Bangladesh they would find out me.
(b)The second applicant did not specifically address any of the concerns the Tribunal had raised with the first applicant, instead declaring that her ‘husband has explained clearly and response to the concerns of the Tribunal’.[26] In particular, the second applicant did not proffer any evidence in support of the first applicant’s claim in relation to the alleged assault in 2014 or explanation in relation to the discrepancy that had been identified by the delegate and the Tribunal in her husband’s evidence in support of that claim. No explanation was given by the second applicant for the change in the first applicant’s evidence following the hearing as to when the assault and hospitalisation had occurred.
[25] CB 268.
[26] CB 273.
On 27 September 2018, the Tribunal affirmed the delegate’s decision not to grant the applicants’ protection visas and, [27] on 28 September 2018, the applicants were notified of the Tribunal’s decision.[28]
[27] CB 366.
[28] CB 361.
Tribunal’s decision
The Tribunal accepted the applicants were nationals of Bangladesh.[29] The Tribunal set out the claims and evidence in considerable detail, noting the iterative manner of their presentation before the Department and the Tribunal. The Tribunal set out its post-hearing invitation to comment, in which various concerns were raised,[30] along with the information provided by way of response to that invitation including aspects of country information detailed within the second representative’s written submission dated 18 September 2018 and the first applicant’s statutory declaration made on 14 September 2018.
[29] CB 367 at [2].
[30] CB 373 to 374 at [23].
In coming to its decision, the Tribunal recorded various inconsistencies in, and concerns with, the first applicant’s evidence and how such matters made it difficult to accept various claims he had raised. The Tribunal generally found the applicants were not credible and rejected the entirety of their claims, including the claim the first applicant was associated with JEI.[31] Specifically, the Tribunal:
(a)recorded its concern about the first applicant’s limited knowledge of JEI and its membership requirements, the vague nature of his explanation in relation to why JEI had been deregistered, and found this inconsistent with his claims that he was a JEI member or JEI President in Malkha Nagar.[32]
(b)recorded the changing nature of the first applicant’s evidence in relation to his residential address in Bangladesh, and rejected the various explanations given by him and the second applicant for these variations, and found he did not live in Dhaka after December 2004.[33]
(c)recorded its concerns about the genuineness of various documents and noted country information issued by the Department of Foreign Affairs and Trade that ‘there were many fraudulent documents from Bangladesh’.[34]
(d)rejected the first applicant’s claims in relation to his JEI profile and activities in Mulkha Nagar partly because it did not accept he had been harmed in Bangladesh. In particular, the Tribunal did not accept:
(i)the first applicant’s claim that he had been threatened by AL members and affiliates because of the inconsistencies in his evidence as to whether those threats had occurred over the telephone or in person;
(ii)the first applicant’s claim that he had been attacked by AL members or affiliates on his way to work at North South Packaging Industry in 2014 because of the inconsistencies in his evidence in relation to when the attack occurred in 2014 and the nature of the injuries sustained during that attack.[35]
[31] CB 385 at [57].
[32] CB 371 at [10], 372 at [15] and 382 at [47].
[33] CB 371 at [11], 373 at [21] and 383 at [48] to [50].
[34] CB 373 at [18] and 385 at [55].
[35] CB 372 at [14]; CB 383 at [51] to 384 at [52].
Specifically in relation to the claimed assault on, and hospitalisation of, the first applicant in 2014, the Tribunal rejected that claim at paragraphs 51 to 52 of its decision in the following terms:[36]
51. … The Tribunal also finds that although the applicant stated that he was attacked on his way to work in May 2014 and stated at hearing that they kicked his back and hit him on the back of his neck and he received injuries on his back, neck and had knee pain and that things were strained but not broken, he provided a medical discharge certificate that talks about multiple lacerated wounds and scalp injury which does not appear to be consistent with the applicant’s account of being injured on his back and neck. In addition, the medical documents are dated September 2014 and not May 2014. While the applicant has stated that he collected the documents in September, this explanation does not explain why there is an operation note dated 2 September 2014, a discharge certificate dated 5 September 2014 and a hospital bill dated 2 September 2014.
52. The Tribunal has considered various medical documents that the applicant has provided in support of his evidence however given the documents’ inconsistencies in relation to the alleged injuries he sustained and dates the applicant was allegedly injured, the Tribunal does not accept that these medical documents are genuine or evidence of the alleged offence contained therein or that the applicant was treated following a physical assault. Indeed, the Tribunal’s overall impression of the applicant’s evidence was that he was not recalling an event that had actually happened.
[36] CB 384.
Taking into account these particular findings and other bases upon which to reject the applicant’s claims, the Tribunal ultimately did not accept any of the claims raised in relation to the first applicant’s:
(a)membership of JEI;
(b)participation in JEI-related political and support activities;
(c)experiences of having been harassed, assaulted or otherwise targeted by AL members or affiliates;
(d)brother having been assaulted by AL members or affiliates;
(e)business associates targeting him or otherwise depriving him of various entitlements because of his JEI affiliation or profile.[37]
[37] CB 384 at [53].
Having rejected those claims, as well as others raised by the applicants, the Tribunal concluded the applicants did not have a well‑founded fear of persecution for any Convention reason and,[38] for the purpose of the complementary protection criterion, did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh there was a real risk they would suffer significant harm.[39] Accordingly, the Tribunal found the applicants did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act and, as a result, the applicants were unable to satisfy the criteria within ss 36(2)(b) or (c) of the Act.[40] On that basis, the Tribunal affirmed the decision not to grant the applicants protection visas.[41]
PROCEEDINGS BEFORE THIS COURT
[38] CB 386 at [61].
[39] CB 385 at [56], 386 at [61].
[40] CB 386 at [62].
[41] CB 386 at [63].
Originating application
The applicant commenced the proceeding by way of an originating application filed on 23 October 2018, amended on 25 January 2019 and further amended on 22 January 2021. That further amended application contains the following particularised ground (reproduced without alteration):
Ground 1: The Tribunal constructively failed to exercise its jurisdiction to review the decision of the delegate by:
(a) failing to make an obvious inquiry about a critical fact, the existence of which could easily have been ascertained; and / or
(b)failing to bring an issue to the attention of the Second Applicant that the Tribunal considered relevant to the decision.
Particulars
(1)A critical fact relating to the credibility of the First Applicant was whether he had been hospitalised following an assault in May 2014 or September 2014. When the Tribunal called the Second Applicant at the hearing, it did not alert her to this issue or ask her when the assault and hospitalisation had occurred.
The applicant reads and relies upon the affidavit of Ms Winnie David, affirmed on 7 January 2019, and filed with the Court on 25 January 2019. This affidavit contains one annexure which comprises a transcript of the Tribunal hearing on 30 July 2018 (Tribunal hearing transcript).
CONSIDERATION
At the hearing before the Court, the applicants only pressed Ground 1(a) contained within their further amended application. Accordingly, the key issue for the Court’s consideration is whether the Tribunal fell into jurisdictional error by failing to make an obvious inquiry directed to the second applicant about a critical fact, being the date of the claimed assault and hospitalisation of the first applicant in 2014, the existence of which could have been easily ascertained.
Before considering that question, including by way of addressing the parties’ submissions, I set out below a summary of the relevant legal principles in relation to a failure to inquire.
Relevant legal principles
Judicial discussion of a failure to inquire in the migration context ordinarily commences with Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 55 (Prasad). In Prasad, Wilcox J expressed an albeit tentative view, in obiter dictum, that it was unreasonable for a decision-maker not to have sought explanations for certain inconsistencies in the material provided in support of a spouse visa application. The question before the Court was framed in terms of whether it would be improper for a decision-maker to proceed to a decision without making further inquiries. His Honour considered that question in terms of whether, in the making of the decision, there had been an improper exercise of the power conferred by the enactment: see s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). It was understood that an improper exercise of power included an exercise of power that is so unreasonable that no reasonable person could have exercised the power: see s 5(2)(g) of the ADJR Act. Wilcox J made the following salient remarks about the circumstances which may give rise to a failure to inquire on the part of decision-maker (emphasis added):
Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.
It is well-established that a decision-maker has no duty to make his or her own enquiries in order to make out an applicant’s case: see STKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 251 at [25]. In Abebe v Commonwealth of Australia (1999) 197 CLR 510 (Abebe), Gummow and Hayne JJ reconciled this well-established principle with the inquisitorial nature of Tribunal proceedings in the following terms at [187]:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Their Honours rejected a submission that the Tribunal should have made further inquiries about the possibility that the applicant had been raped in detention. They did so on the basis that ‘[n]o plausible or possible line of inquiry was suggested, whether in this Court or in the course of the Tribunal’s inquiries, that the Tribunal might have undertaken and that might have shed any light on the issue’: Abebe at [194].
It must also be borne in mind that when undertaking reviews in accordance with the requirements specified within Part 7 of the Act, as in the present case, a Tribunal must have regard to s 5AAA of the Act which provides that, for the purposes of the Act, it is the non-citizen’s responsibility to specify all particulars of his or her protection claims and to establish the claim. Section 5AAA further provides that a decision-maker does not have any responsibility or obligation to supply, or assist in specifying, any particulars of the non-citizen’s claim or establish, or assist in establishing the claim. This statutory provision serves to reinforce the general principle that it is for the applicant to make out their case and that the Tribunal is not obliged to supply, or assist with the specification of, the particulars of a claim or to establish, or assist in establishing, a claim.
Nevertheless, there remains some strictly limited sets of circumstances in which a decision-maker’s failure to inquire may give rise to jurisdictional error. This duality was keenly observed by Kenny J in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] (citations omitted):
On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her. These authorities stretch back over the life of the Tribunal…. On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation[1947] EWCA Civ 1; [1948] 1 KB 223.
In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ characterised a failure to make an obvious inquiry as falling within a broader duty to review. The scope of jurisdictional error of this kind was described by the majority of the Court in somewhat indefinite terms at [25] – [26]:
25 Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act [1958 (Cth) (“Migration Act”)] is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
26 The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
In a separate judgment in SZIAI, Heydon J considered whether there had been a failure to inquire after closely examining the circumstances of the case including the nature of the claims and evidence before the Tribunal, the degree to which the Tribunal had afforded the visa applicant an opportunity to address its concerns about that material, whether the visa applicant’s representatives had drawn the Tribunal’s attention to the making of the inquiry and whether the making of the inquiry would have been likely to receive illuminating answers. In finding that no such failure to inquire had arisen, his Honour’s analysis at [52] offers insight into the approach to be taken when assessing whether jurisdictional of this type can be made out:
52 The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve. The respondent had procured the certificates in the first place. Those certificates purported to be from gentlemen who knew the respondent. The respondent, it could be assumed, would know whether Mr Nuruzzaman or Mr Hossain could provide any useful information in relation to the letter of 8 January 2008. The respondent was in at least as good a position as the Tribunal to contact those gentlemen. He was represented by solicitors. Despite the letter of 8 January 2008, the respondent did not ask the Tribunal to contact either gentleman. It was not unreasonable for the Tribunal to proceed on the basis that if any further evidence was to be provided in support of the certificates, it would come from the respondent.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 at [25] (Ismail), per Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ (footnotes omitted) the High Court, at [25], explained the ‘usually high threshold’ to be met for this type of jurisdictional error:
The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.
It is clear from these authorities that the circumstances in which a Tribunal decision will be set aside on the basis of a failure to inquire are confined. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. Questions may arise in any given case as to whether the inquiry was ‘obvious’ and whether the ‘critical fact’ could be ‘easily ascertained’ by making that inquiry. In answering these questions, it can be discerned from the authorities that any allegation of a failure to inquire on the part of the Tribunal must be understood within the broader context of the circumstances of an applicant’s case, including:
(a)the factual matrix propounded by an applicant and the degree to which the Tribunal has adhered to procedural fairness requirements in dealing with matters the subject of which the applicant contends should have given rise to further inquiry;
(b)whether the applicant had sufficient opportunity to draw to the Tribunal’s attention the information that would otherwise have been made available to it had the inquiry be made;
(c)where the applicant was represented, any reason proffered for the representative not having drawn to the Tribunal’s attention the need to make the inquiry; and
(d)whether the making of the inquiry would have been likely to receive ‘illuminating answers’ that would have assisted the Tribunal to ascertain a critical fact as part of its fact-finding endeavour.
The applicants’ contention
The applicants submit the Tribunal constructively failed to exercise its jurisdiction to review the decision of the delegate by failing to question the second applicant, who had not been present during the portion of the Tribunal hearing in which the first applicant gave his evidence, in order to ascertain whether she would have given the same answers as her husband in relation to his claim that he had been physically assaulted and subsequently hospitalised. In particular, the applicants complain that the Tribunal did not make any inquiry of the second applicant at hearing in relation to the claimed assault and hospitalisation of the first applicant for the purpose of exploring whether she might corroborate or otherwise verify his evidence in support of this claim.
The Minister’s response
By way of response, the Minister submits the nature of the Tribunal’s concern about the alleged assault and hospitalisation is with the inconsistency within the first applicant’s evidence about that claim, including the reliance upon documents that were not genuine, and therefore an inquiry of the second applicant was not sufficiently obvious.
Further, the Minister submits the second applicant’s evidence on the alleged injuries would not have been of much assistance in allaying the Tribunal’s concern about the veracity of the first applicant’s claim. The Minister submits even if the second applicant had provided oral evidence that was consistent with her husband’s evidence in relation to that claim, the inconsistency between such evidence and the documentary evidence issued by the Moon Light Clinic would nonetheless remain. The Minister further notes the second applicant had an opportunity after the hearing to corroborate her husband’s claim but did not do so.
Analysis
Whilst it may be that a failure to make an obvious inquiry about a critical fact can in some circumstances be sufficiently linked to an outcome to constitute a failure to conduct a review, and that may give rise to jurisdictional error, I am of the view that no such error arose in this case.
Was the inquiry obvious?
It is perhaps unremarkable to suggest that a failure to inquire about a critical fact might well arise in circumstances where there is a distinct absence of evidence about matters about a critical fact and that this could be easily addressed by the making an obvious inquiry of a person who would conceivably be well-placed and available to provide information that would assist the Tribunal in its fact-finding process. However, the present case does not involve such circumstances and indeed is characterised by an abundance of evidence and submissions relating to the claims and documentary evidence pertaining to the first applicant’s claimed assault and hospitalisation. It is also characterised by a number of salient features which bear upon the question of whether there had been a failure to inquire and lead me to conclude that the inquiry of which the applicants contend was not obvious.
First, the applicants, both individually and through their two representatives, were afforded numerous opportunities and sufficient time to present claims and evidence in relation to the claimed assault and hospitalisation of the first applicant. Indeed, the first applicant availed himself of that opportunity by providing the Department with his undated statement lodged with the visa application, the Moon Light Clinic Discharge Certificate and Hospital Bill, as well as oral evidence at his interview with the delegate. Whilst the review application was on foot, this claim was pressed further by way of:
(a)the lodgment of the first representative’s written submissions dated 25 July 2017 and 12 July 2018 prior to the hearing;
(b)the first applicant’s oral evidence at hearing on 30 July 2018, at which time the Tribunal raised its concerns with him about this particular claim and the genuineness of the documents provided in support of the claim; and
(c)the lodgment of post-hearing material in the form of statutory declarations declared by each of the first and second applicants on 14 September 2018.
It is of moment to observe that none of this material indicated the second applicant had any particular knowledge of the alleged assault on her husband and his subsequent hospitalisation or that she wished to provide corroborative oral evidence in that regard in a hearing context. In fact, the material lodged with the Tribunal before and after the hearing suggested otherwise. Whilst the hearing invitation response form recorded that the second applicant would ‘take part in the hearing’, no information was provided in relation to what oral evidence she wished to provide to the Tribunal at that hearing. In my view, it was not apparent to the Tribunal that an inquiry should have been made of the second applicant at the scheduled hearing in relation to her husband’s claim in circumstances where she had neither provided any written statements to the Department or the Tribunal about her husband’s claim nor attested to the accuracy of that claim by way of confirming that the first representative read and explained to her the written submission dated 12 July 2018 which referred to that claim. On that basis, it is difficult to see how any inquiry of the second applicant in a hearing context would have been obvious to the Tribunal.
Second, there was nothing before the Tribunal to suggest that the second applicant wanted to provide specific evidence in relation to the alleged assault and hospitalisation or had otherwise been denied an opportunity to do so. It was patently clear in the delegate’s decision, which was lodged with the review application, that the first applicant had difficulty establishing his claims in relation to the alleged assault and hospitalisation. Despite this, the second applicant did not provide any written statements or statutory declarations in support of the first applicant’s claims either to the Department or the Tribunal before the hearing. Following the hearing, the second applicant provided a brief statutory declaration to the Tribunal which did not contain any corroborative statement in support of the first applicant’s claim in relation to his assault and hospitalisation. At this stage, the second applicant’s husband was clearly on notice of the fact that the Tribunal shared the delegate’s concerns about the veracity of his claim in relation to the assault and hospitalisation and genuineness of the documentary evidence provided in support of that claim. Had the second applicant something to say about the veracity of her husband’s claims and the genuineness of the documents lodged in support of those claims, she could have easily done so without prompting by the Tribunal. Having not availed herself of an opportunity to corroborate her husband’s evidence at any juncture during the review process, but especially after the hearing when it was clear that her husband’s claims in relation to his assault and hospitalisation might not be accepted by the Tribunal, it is difficult to see how any inquiry of the second applicant at hearing, or indeed after the hearing and before a decision was made, would have been obvious to the Tribunal.
Third, the applicants were represented by two different registered migration agents before the Department and the Tribunal. In the absence of complaint about the quality of their advice or any apparent failure on their part to present the applicants’ case, it is difficult to see how the applicants’ were deprived of an opportunity to present their case. Importantly, no reason has been given as to why either representative did not draw the Tribunal’s attention to the need to make an inquiry of the second applicant in relation to her husband’s claimed assault and hospitalisation. This could have been drawn to the Tribunal’s attention by way of pre-hearing written submissions, at the conclusion of the hearing had the first representative chosen to attend that hearing, or after the hearing by way of the second representative’s post-hearing written submissions. Indeed, it was open to the second representative to request a further hearing for the purpose of the second applicant giving that oral evidence and it is telling that no such request had been made. Again, it is difficult to accept that, in such circumstances, the need to make an inquiry of the second applicant was obvious.
Would the inquiry have gleaned information that could have assisted the Tribunal in easily ascertaining a critical fact which thereby could have led to a different outcome?
Furthermore, the High Court in SZIAI made clear no jurisdictional error based on a failure to inquire will be demonstrated unless the postulated enquiry would have produced evidence which might have led the review to an outcome different from the one reached.
In addition to the foregoing analysis, the applicants’ contention fails for reason of the inquiry not being capable of gleaning a response that would have assisted the Tribunal in its fact-finding endeavour for the purpose of accepting or rejecting the first applicant’s claim in relation to the assault and hospitalisation.
I am persuaded by the Minister’s submission on this point and am of the view that it is difficult to see how the making of the inquiry would have been likely to result in the second applicant giving illuminating answers that would have assisted the Tribunal in ascertaining when the claimed assault and hospitalisation had occurred. Assuming the second applicant gave oral evidence at the scheduled hearing that was consistent with her husband’s oral evidence that the assault and hospitalisation occurred in May 2014, this would not have overcome the residual concern about the inconsistency between such oral evidence and the documentary evidence issued by the Moon Light Clinic in relation to the date of the assault and hospitalisation. It would have also been inconsistent with the first applicant’s statutory declaration that was provided after the hearing. Accordingly, the inquiry would have not gleaned any information that would have enabled the Tribunal to ascertain the critical fact as to when the alleged assault and hospitalisation occurred.
As part of its duty to review, the Tribunal was required to determine whether it would accept or reject the first applicant’s claim in relation to the assault and hospitalisation, and, in so doing, whether it was required to make an inquiry of the second applicant in relation to the genuineness of the documents issued by the Moon Light Clinic in support of that claim. On that basis, I have chosen to broadly construe the applicants’ contention and now examine whether a further inquiry could have verified the genuineness of the Moon Light Clinic documents by seeking oral evidence from the second applicant.
The Federal Circuit Court (as it then was) considered whether a Tribunal was under an obligation to verify an applicant’s evidence in SZTPJ v Minister for Immigration & Anor [2015] FCCA 1992 (SZTPJ). In that case, the applicant submitted that the Tribunal’s duty to inquire was enlivened in circumstances where during the course of the hearing, the applicant ‘may’[42] have asked the Tribunal to ‘verify the documents’ he had presented. Having cited SZIAI, Judge Barnes observed at [79] that:
… there is no general duty to inquire (SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 at [25]). The circumstances of this case, including the exchange between the Applicant and the Tribunal set out above from p.45 of the Transcript of the first hearing, are not such as to establish that the Tribunal was under an obligation to make inquiries to “verify” the genuineness of all the supporting documentation submitted by the Applicant as appears to be contended. The Tribunal was not obliged to accept the genuineness of such documents. The circumstances before the Tribunal were not such as to indicate that there was a critical fact, the existence of which was easily ascertained, such that the Tribunal’s failure to make inquiries about the existence of that fact constituted a failure to review. Insofar as the Applicant may have intended to suggest that the Tribunal should have made or instituted calls to the persons whose telephone numbers were shown on letters of support, as in SZIAI at [26], the question of whether such documents contained false statements (for example, about the Applicant’s involvement in the BNP) “would not be able to be determined by calls placed to those telephone numbers”.
[42] SZTPJ at [77].
In ATY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 677 (ATY19), Judge Lucev examined whether a duty to inquire arose where the Immigration Assessment Authority (Authority) was not satisfied that the applicant faced a real chance of any harm in the foreseeable future if he returned to Sri Lanka, including for actual or imputed Liberation Tigers of Tamil Eelam or Tamil separatist affiliation, and did not have a well-founded fear of persecution in Sri Lanka, nor that he met the complementary protection criterion. In so doing, the Authority did not accept hand delivered letters (police memos) given to his family requesting the applicant report to the Terrorism Investigation Division were authentic. In considering whether the Authority had failed to make inquiries about the police memos’ authenticity, Judge Lucev found at [27]:
The invitation to the Authority to make inquiries about the Police Memos misconceives the role of the Authority. The Authority’s task was to conduct a review, not an inquiry, and not to make its own inquiries about ATY19’s claims, other than in respect of the most straightforward matters: SZIAI at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, and it was not obliged to make inquiries to facilitate ATY19’s case being better put to the Authority: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CH and [49] per Emmet J.
I am of the same view as their Honours in that the Tribunal is under no duty to make inquiries in an effort to verify an applicant’s documentary evidence as presented. While the applicants did not request the Tribunal contact the Moon Light Clinic in order to verify the genuineness of the documents, I see no failure on the Tribunal’s part for not having done so. Furthermore, it is difficult to see what oral evidence the second applicant could have provided in order to overcome the Tribunal’s concern about the genuineness of these documents. The second applicant did not issue these documents and there is nothing before the Tribunal to indicate that the second applicant had some understanding of the manner in which the documents had been issued or obtained. In my view, there was nothing the second applicant could have said that was likely to have been critical to the Tribunal’s reasoning process when seeking to determine whether these documents were genuine: see WZARE v Minister for Immigration and Citizenship [2013] FCA 122 at [59]-[60].
Importantly, the applicants have not adduced any evidence to demonstrate what information the Tribunal could have gleaned had it made any postulated enquiry of the second applicant. Consequently, there is no basis to conclude that such an enquiry could have produced evidence which might have led the Tribunal to make a different decision from the one it did make. It follows that the applicants have not demonstrated that an inquiry of the second applicant in relation to her husband’s claim, and the related supporting documents from the Moon Light Clinic, could have gleaned a response that would have supplied a sufficient link to the outcome of the review to constitute a failure to review and thus jurisdictional error: see Singh v Minister for Immigration & Anor [2013] FMCA 222 at [33]-[34].
Given the foregoing analysis, I conclude that the applicants have not made out jurisdictional error on the part of the Tribunal. Accordingly, the sole ground pursued by the applicants must fail.
CONCLUSION
For the above reasons, the application before this Court is dismissed.
Finally, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I will hear the parties in relation to costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 7 March 2025
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