FTA18 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 56

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FTA18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 56

File number(s): MLG 3292 of 2018

Judgment of: JUDGE CUTHBERTSON

Date of judgment: 23 January 2025

Catchwords: MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal to not grant the Applicant a Protection (Subclass 866) visa – protection claims relating to loan sharks – Tribunal found the applicant had not provided any supporting evidence – adverse credibility findings – whether the Tribunal provided a meaningful hearing – what constitutes an oral statement pursuant to s 430D(2)(a) of the Migration Act 1958 (Cth) – where the oral statement departs from the written statement – whether the Tribunal’s decision was illogical, irrational or unreasonable – whether the applicant was put on notice of issues arising in relation to decision under review – Tribunal’s decision affected by jurisdictional error – application granted – writs issued

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 2A

Migration Act 1958 (Cth) ss 5AAA, 5H, 5J, 36, 65, 91X, 411, 414, 415, 420, 422B, 424, 424AA, 425, 424, 427, 430A, 476

Migration Amendment (Protection and Other Measures) Act 2015 (Cth)

Migration Regulations 1994 (Cth) reg 4.35F

Cases cited:
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

EYG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1309

Gupta v Minister for Immigration and Border Protection [2016] FCA 1004

Kaur v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 117

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108

Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62

Nguyen v Refugee Review Tribunal (1997) 74 FCR 311

R v Lazarus (2017) 270 A Crim R 378; [2017] NSWCCA 279

R v Walker (1993) 61 SASR 260

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630236 FCR 593; [2003] FCAFC 184

Division: Division 2 General Federal Law

Number of paragraphs: 114

Date of last submission/s: 3 December 2024

Dates of hearing: 11 September 2024, 10 October 2024

Place: Melbourne

Applicant: In person

Counsel for the First Respondent: Mr C. Hibbard

Solicitor for the First Respondent: Mills Oakley

Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 3292 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FTA18

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CUTHBERTSON

DATE OF ORDER:

23 JANUARY 2025

THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent dated 9 October 2018 (Tribunal Case No. 1705541).
3.A writ of mandamus issue, directed to the Administrative Review Tribunal, requiring it to determine the application made to the Administrative Appeals Tribunal for review of the decision of the delegate of the first respondent dated 21 March 2017 according to law.

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 CUTHBERTSON
INTRODUCTION

The applicant, a citizen of Malaysia, applied for a Protection (Subclass 866) visa on 18 October 2016. He claimed a fear of returning to Malaysia as a consequence of being threatened and assaulted when he was unable to repay money lent to him by illegal loan sharks when his business was failing. On 21 March 2017, a delegate of the first respondent (the Minister) refused to grant the applicant a visa. The applicant applied to the Administrative Appeals Tribunal for merits review of the delegate’s decision on 21 March 2017 (review application). The review application was listed for hearing on two occasions. On the last of those occasions, the Tribunal made an oral decision affirming the delegate’s decision.
The applicant applied to the Tribunal for a statement of reasons in writing. On 1 November 2018 and prior to receiving those written reasons, the applicant applied for judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) (the application).
The Tribunal ultimately provided the applicant with its statement of reasons in writing on 28 November 2018. The written statement of reasons departs from the oral statement of reasons given by the Tribunal in significant respects. Transcripts of the review hearings demonstrate the Tribunal’s approach to the statutory task it was required to undertake when conducting its review of the delegate’s decision left a lot to be desired. The applicant’s ground of review as set out in his application claims it was unreasonable for the Tribunal to proceed to decide the matter orally and refers to difficulties he had understanding the decision when it was handed down. The applicant’s submissions to the Court made both orally and in writing, were principally directed at the merits of his claim for protection.
Ultimately, this application raises the following issues:
(a)What is required of a Tribunal in fulfilling its statutory obligation to provide a meaningful hearing in substance, as well as form;
(b)What constitutes an oral statement pursuant to s 430D(2)(a) of the Act;
(c)Where a written statement provided pursuant to s 430D(4) departs from an oral statement, which set of reasons is this Court to have regard to;
(d)Whether the Tribunal’s decision was illogical, irrational or unreasonable.
For the reasons that follow, I have found the Tribunal’s decision was affected by jurisdictional error and that the error was material.
BACKGROUND
Visa Application
On 18 October 2016, the applicant lodged an application for the visa. The applicant claimed he had borrowed money from “friends”, was deeply in debt and had been threatened and assaulted because he did not have the money to repay the debt. He claimed he had tried to make a police report but it was ignored. He stated he thought he and his wife would be killed if he returned to Malaysia. He also stated he had nowhere else to go in the country and was sure that if he relocated he would be easily found. He stated he and his wife had left Malaysia as it was the only way they could be saved. There is no evidence before the Court suggesting the applicant’s wife made a claim for a protection visa either as person who was owed protection obligations or as a family member of such a person.
Delegate’s Decision
On 21 March 2017, the delegate refused to grant the applicant the visa because they were not satisfied he met the refugee or complementary protection criteria under s 36(2) of the Act. In reaching that conclusion, the delegate was not satisfied that the applicant faced a real chance of persecution for one or more of the reasons found in s 5J(1)(a) of the Act as his claim did not allege fear of harm due to race, religion, nationality, political opinion or membership of a particular social group. Consequently, the delegate was not satisfied the applicant was a refugee as defined by s 5H(1). Further, the delegate found the Malaysian authorities were able to provide an adequate level of protection from the criminal behaviour feared by the applicant, such that there was no real risk of the applicant suffering significant harm as defined in s 36(2A) of the Act if he returned to Malaysia in the foreseeable future.
The delegate also observed the applicant had outlined his situation in minimal detail and had provided no supporting evidence. The delegate also considered there were inconsistencies in his claims, including that the policeman in his village was a friend but was not prepared to help him. It was also noted the applicant claimed his wife was at risk of harm but she had not formed part of his application.
Application for review to the Tribunal
On receipt of the review application, the Tribunal wrote to the applicant advising that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. On 10 July 2018, the Tribunal wrote to the applicant inviting him to attend a hearing in Sydney on 30 August 2018 to give evidence and present arguments relating to the issues arising in his case. The location of the hearing was changed to Griffith at the applicant’s request. The applicant was advised the hearing would be conducted by video conference from the Griffith TAFE. The initial letter inviting the applicant to the hearing advised the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. Both hearing invitation letters stated the following in bold:
After hearing the member may hand down an oral decision. Consequently, it is important that all information/submissions are submitted in full 7 days before the hearing date.
On 30 August 2018, the hearing was adjourned shortly after commencing. The rescheduled hearing took place on 9 October 2018 and was again conducted by video conference. An interpreter in the Malay language was made available on both occasions. The Member immediately delivered an oral decision at the end of the second hearing which affirmed the delegate’s decision to refuse the visa. It is apparent from the transcript of the oral decision that the Tribunal was not satisfied the applicant met the refugee or complementary protection criteria under ss 36(2)(a) and (aa) of the Act or that he satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfies either of those provisions and holds a protection visa. The applicant was sent a written record of the outcome of review by email the following day. On 18 October 2018, the applicant wrote to the Tribunal requesting a written statement of decision and reasons. A written record dated 27 November 2018 was provided to the applicant on 28 November 2018.
PROCEEDINGS BEFORE THE COURT
The application contains one ground of review as follows (reproduced in full):
1. The Tribunal acted unreasonable in exercising its power to affirm the decision under review solely through an oral decision. The Tribunal abruptly made a decision to affirm the decision under review on the spot at the oral hearing itself, with no written decision or opportunity to request for transcript of the hearing before the decision on my appeal was made.
Particulars
a. On 9 October 2018, the Tribunal erroneously affirmed the decision under review. The tribunal only provided me with a single page ‘outcome of review’ in relation to the oral decision, instead of a ‘decision record’. The oral decision did not contain a statement of decisions and reasons for the decision made by the Tribunal.
b. The decision in the above matter was made on 9 October 2018 (on the date of the oral hearing), meaning that the relevant deadline to request a written statement of reasons was 24 October 2018. As a self- represented applicant I could not possibly have been aware of the above mentioned time limits for obtaining written reasons set out in the Migration Act and Regulations. Additionally, I was not given the opportunity to apply for an extension of time. This appears to be unreasonable given the gravity of the issues in my Protection claim, and that this situation is completely outside of my control. My Protection claim is very serious in that it involves people who have threatened to kill me and my wife. I have been beaten and physically abused by these people and we are very scared to go back to our home country.
c. Moreover, it is unfair as I was not provided with the transcript of the hearing when the oral decision was made. The interpreter during my oral hearing spoke Bahasa Indonesia, which is different from my language, Bahasa Malaysia. This made it very difficult for me to understand the reasons for the decision made by the Tribunal.
On 4 April 2024, orders were made by a Registrar of this Court to ready the application for final hearing. An order was made requiring the applicant to file and serve on or before 19 April 2024 any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which he sought to rely. The applicant did not file any materials in accordance with that order.
The Minister was ordered to file and serve on or before 26 April 2024 any written submissions and additional evidence on which it sought to rely. In response to those orders, the Minister filed an affidavit affirmed by Ali Zahr on 24 April 2024 (Zahr affidavit). The Zahr affidavit exhibited a transcript prepared by Mr Zahr from the recording of the oral decision handed down by the Tribunal. Written submissions were also filed by the Minister.
The matter was initially listed for hearing before me on 11 September 2024. The Minister tendered the Court Book filed in these proceedings on 11 August 2020. The Minister also relied on the Zahr affidavit. Both documents were admitted into evidence with the applicant’s consent (marked R1 and R2 respectively). The hearing was unable to be concluded on that day as the interpreter organised to assist the applicant to understand the proceedings could not attend beyond 1.30pm.
The hearing was adjourned until 10 October 2024. The applicant indicated he had obtained documents shortly prior to the 11 September 2024 hearing which had some bearing on his application. Counsel for the Minister also indicated a full transcript of the Tribunal’s hearing could be provided in light of the issues raised by the application. On 11 September 2024, I made orders that the applicant file and serve the new material he told the Court he had received two days earlier and any further submissions in relation to his application. I also ordered that the Minister file and serve a transcript of the proceedings before the Tribunal together with any further submissions relating to that transcript and the applicant’s further material.
The Minister filed an affidavit affirmed by Emma Hubball on 25 September 2024 (Hubball affidavit) which attaches transcripts of the Tribunal hearings held on 30 August and 9 October 2018. The Hubball affidavit was admitted into evidence by consent (marked R3). The Minister also filed further written submissions.
The applicant filed the following documents on 17 September 2024:
(a)Four page written submission described as “Appellant’s Appeal Brief”;
(b)Photographs of two statutory declarations made by the applicant’s brother in law declared on 12 December 2023 in Malaysia;
(c)A statutory declaration dated 8 February 2024 of Mr Harris providing a character reference for the applicant’s wife;
(d)A handwritten, undated statement signed by the applicant;
(e)An email dated 8 December 2023 authored by Ms Gason providing a reference for the applicant and his wife;
(f)A statutory declaration of Mr Staltare dated 12 December 2023 providing support to the applicant’s application to become a permanent resident in Australia;
(g)A statutory declaration of the applicant dated 6 December 2023 concerning his claim for protection;
(h)Letter authored by a social worker Mr Atkins from the Children’s Hospital at Westmead dated 19 February 2024 providing background of the applicant’s son’s injuries and treatment;
(i)A referral letter to a psychologist dated 6 September 2024 authored by a General Practitioner Dr Chai in respect of the applicant;
(j)Copy of Dr Chai’s progress notes of attendances on applicant on 30 August 2024;
(k)Copy of mental health treatment plan dated 6 September 2024 authored by Dr Chai.
(l)A two page document setting out sources of information relating to “the pervasive and violent nature of loan shark operations in Malaysia” and “the ongoing challenges in Malaysia related to police enforcement against loan sharks, underscoring the lack of effective protection for victims”.
On 2 October 2024, the applicant filed the following additional documents:
(a)a translation of a report made to the Royal Malaysian Police made by the applicant’s younger brother alleging he had been approached by three men looking for the applicant on 20 September 2024. The applicant’s brother reported being a guarantor of the applicant’s loan and being concerned about his safety as a consequence;
(b)translated screenshots of two undated SMS exchanges. In one exchange, the sender is identifiable. The recipient of the messages is not identifiable from the screenshots. The first set of messages refers to two people being looked for by moneylenders. The second set of messages (from an unidentified sender) refers to people coming several times looking for the recipient and his wife demanding loan repayments;
(c)witness statement of the applicant’s wife date 27 September 2024.
The applicant sought to rely on these documents in support of his application. The Minister objected to them being admitted into evidence. Save for the document setting out the applicant’s submissions which, in my view, are entirely directed at the merits of his claim for protection (see [17](a)), I took the documents into evidence on a provisional basis and indicated I would rule on their admissibility in the course of providing my reasons for decision. Given the findings I have ultimately made, it is not strictly necessary to consider their admissibility further. For completeness, I would not have admitted the documents. They are directed at the merits of the applicant’s claims for protection. It is not the function of this Court to review the merits of the applicant’s claim for protection or correct mistaken findings of fact. Further, it was not material that was before the Tribunal: Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27], per Perry J. Many of the documents could not have been before the Tribunal as they concern events after the hearings were conducted. At best, the statutory declarations of the applicant’s brother-in-law and his wife’s statement could be regarded as explaining the evidence they could have given during the hearing before the Tribunal if they had been called. The applicant, however, did not request that oral evidence be taken from another person in either of the ‘Response to hearing invitation – MR Division’ forms he submitted to the Tribunal prior to the hearings. Consequently, that evidence is irrelevant to this review.
THIS COURT’S JUDICIAL REVIEW FUNCTION

The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31]. 
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as relevantly including misunderstanding the applicable law and failing to observe some applicable requirement of procedural fairness.
The applicant was not represented in this Court. I have considered the Tribunal’s decisions and the transcripts of what transpired alert to the possibility of legal error in an effort to make the process as fair as possible to the applicant: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [100], per Mortimer J (as her Honour then was). Those matters have been raised with the Minister’s legal representatives. The Minister, as a model litigant, has also drawn to the Court’s attention to certain issues in light of the significant difference between the oral and written statements made by the Tribunal in respect of this matter.
APPLICANT’S GROUND OF REVIEW
The applicant’s ground of review in summary asserts the following errors:
(a)It was unreasonable for the Tribunal to affirm the decision only by way of an oral decision;
(b)The applicant could not have been aware of the time limits for seeking a written reasons and was not given an opportunity to apply for an extension of time;
(c)It was unfair not to have been provided with a transcript of the hearing when the oral decision was made, given the difficulties the applicant experienced in understanding the reasons for decision made by the Tribunal.
The first two of these complaints are without merit and may be dealt with shortly. First, it is not unreasonable for the Tribunal to affirm a decision only by way of an oral decision. Section 430D of the Act (which is discussed in more detail below) clearly contemplates that decisions can be made orally. Utilising that process does not give rise to jurisdictional error in and of itself: see Kaur v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 117 at [42] per Judge Given.
Secondly, the applicant was made aware of the time limits for seeking written reasons. The letter sent to the applicant by the Tribunal on 10 October 2018 and which attached the written record of the outcome of the review advised applicant he may request a written statement of decision within 14 days of the date of the oral decision. Further, the applicant did in fact request a written statement of decision in writing within the prescribed period.
As to the allegation that it was unfair not to have been provided with a transcript of the hearing when the oral decision was made, this issue is discussed further below.
The applicant has also provided submissions to the Court in support of his application and was given an opportunity to explain what he says the Tribunal did wrong. Some of those submissions were directed at the conduct of the review and will also be discussed below. The balance of the submissions addressed the impact on the applicant and his family of being returned to Malaysia and sought to persuade the Court his claimed fear of persecution was credible. He explained his wife and child need medical treatment. He explained he did not think they could survive in Malaysia. He believed he would die if he returned. He requested to stay in Australia and work.
As noted above, it is not this Court’s function to review the merits of the applicant’s claim for protection. That was the role of the Tribunal and the delegate. The applicant’s submissions in that regard do not assert jurisdictional error and are without legal merit. There are, however, other matters which emerge from the material before the Court which establish the Tribunal’s decision was materially affected by jurisdictional error. I turn to those matters now.
DID THE TRIBUNAL CONDUCT A REVIEW IN ACCORDANCE WITH THE REQUIREMENTS OF THE ACT?
The statutory scheme – conduct of review
The delegate’s decision to refuse to grant the applicant a visa was a Part 7-reviewable decision within the meaning of s 411(1)(c) of the Act as it stood at the time of the review. On receipt of a valid application and subject to an exception which does not arise in this case, the Tribunal was under an obligation to review the decision: s 414(1).
In reviewing a decision, the Tribunal was required to act according to substantial justice and the merits of the case: s 420(b). The Tribunal’s way of operating was also governed by s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) which required the Tribunal, when carrying out its functions, to pursue the objective of providing a mechanism of review that was accessible, fair, just, economical, informal and quick, proportional to the importance and complexity of the matter and which promoted public trust and confidence in the decision-making of the Tribunal. By these provisions, the Tribunal was “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law”: Minister for Immigration and Citizenship v Li(2013) 249 CLR 332; [2013] HCA 18 at [14], per French CJ.
Division 4 of Pt 7 of the Act provided an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it dealt with: s 422B(1). In applying Div 4, the Tribunal was required to act in a way that was fair and just: s 422B(3). The following paragraphs concern those parts of Div 4 of Pt 7 which are relevant to this application.
The Tribunal was required, subject to exceptions not presently relevant, to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). The Tribunal had the power to take evidence on oath or affirmation: s 427(1)(a). It also had the power to get any information that it considered relevant. If such information was obtained, it was required to have regard to that information in making the decision on the review. It was also empowered to invite a person to give information either orally or in writing: ss 424 (1) and (2). These provision gave the Tribunal wide discretionary powers to investigate an applicant’s claims but did not impose a general duty to make such inquiries: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [1], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Minister for Immigration and Citizenship v SZGUR(2011) 241 CLR 594; [2011] HCA 1 at [19], per French CJ and Kiefel J (Heydon and Crennan JJ agreeing).
Pursuant to s 424AA of the Act, where an applicant was invited to appear before the Tribunal, the Tribunal had the power to orally give the applicant clear particulars of any information it considered would be the reason, or a part of the reason, for affirming the decision that is under review. Where the Tribunal took that course, it was to ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review. Further, it was required to orally invite the applicant to comment on or respond to the information and advise the applicant that he may seek additional time to do so. If further time was sought, the Tribunal was required to adjourn the review if it considered the applicant reasonably needed additional time to comment on or respond to the information: s 424AA(1).
As explained by the plurality of the High Court in NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at 6:
As might be expected in view of the importance of the proceedings, particularly for persons in the position of the appellant, the legislation [governing the Tribunal’s review of the decision] was detailed, and it provided for procedures of some solemnity.
The review process set out in Pt 7 involved a determination on the merits of whether or not the applicant satisfied the criteria for a protection visa: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [48], per Black CJ, French and Selway JJ. As the Full Court explained, “the conduct of a review is a necessary condition of the exercise of the Tribunal’s powers in making a final decision of the kind set out in s 415(2). A failure to undertake a review would vitiate any purported decision made pursuant to s 415”. Such a review requires consideration of the application which is the subject of the review in light of information, evidence and arguments relevant to the application and provided to the Tribunal or obtained by the Tribunal for itself: NABE at [49] citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [44].
Applying the concepts of what is fair and just in the context of the duty of the Tribunal to invite an applicant to a review to appear and its centrality to the conduct of a review “requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”: Li at [58]-[61], per Hayne, Kiefel and Bell JJ. Section 422B(1) of the Act does not exclude the implication that the Tribunal “is to act reasonably as a condition of the performance of its overriding duty to review a decision” or “as a condition of the performance of its procedural duties and the exercise of its procedural powers”: Li at [94], per Gageler J (as his Honour then was). That said, the Tribunal is not obliged “to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence”: Li at [82] per Hayne, Kiefel and Bell JJ. As explained by Gageler J (as his Honour then was) in Li at [98]:
The [Tribunal] does not fail to perform its statutory duty to review a decision merely because the manner of its performance of a procedural duty or its exercise or non-exercise of a procedural power might be assessed in the result not to measure up to one or more of the requisite statutory exhortations or aspirations. The [Tribunal] does fail to perform its statutory duty to review a decision where: (i) the manner of its performance of a procedural duty, or of its exercise or non-exercise of a procedural power, is so unreasonable that no reasonable tribunal heeding those exhortations or adhering to those aspirations could have done what the [Tribunal] in fact did; and (ii) that unreasonableness, or neglect, on the part of the [Tribunal] is shown to be material to the outcome of the review that the [Tribunal] has undertaken in fact.
Section 5AAA of the Act was relevant to the review. The provision applies to a non-citizen who claims to be a person in respect of whom Australia has protection obligations. It provides that for the purposes of the 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: s 5AAA(2). Section 5AAA(4) provides that the Minister does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the non-citizen’s claim, or establish, or assist in establishing, the claim. In EYG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1309, Kenny J noted at [65] in the context of s 5AAA that “the statute necessarily affects the boundaries of legal reasonableness”.
The Tribunal’s hearings
As noted above, the transcripts of the proceedings before the Tribunal are before the Court. The Court has also had the opportunity to listen to audio recordings of the proceedings. The Court records its gratitude to the Minister for making the transcripts and the audio recordings available. That evidence has proved crucial in the determination of the application. The transcripts are not set out in full in the body of this decision. I have referred to salient parts to illustrate how the Tribunal Member conducted the review. I have, however, annexed the transcripts to the end of the decision. They have been redacted to protect the applicant’s identity as is required pursuant to s 91X of the Act.
The two review hearings were conducted by the same Member. What occurred during the first hearing on 30 August 2018 was, in my view, concerning. It will be recalled the applicant was appearing unrepresented by video conference and with the assistance of an interpreter. There is no suggestion he was proficient in the English language. Following some introductory matters, the Member commenced by asking the applicant the following:
First of all, in your own words, in just one sentence, can you tell me why it is that you think you’re here today?
When the interpreter had finished interpreting the request, the member clarified with the interpreter “One sentence, did you say one sentence?”. The applicant asked through the interpreter “Just one sentence?” The member responded “Well, make it two, we’ll go overboard and we’ll make it two sentences. (indistinct) why you’re here today”. The applicant responded. The interpreter commenced interpreting the response, only getting as far as saying “Well, running away..” when she was interrupted by the Member stating “Okay, so I think you don’t understand what I’m saying”. This was not by way of an acknowledgment by the Member of the less than satisfactory way in which she was seeking to elicit evidence or submissions from the applicant.
The Member then proceeded to ask confusing, oblique questions, which the applicant appeared to have difficulty comprehending or did not answer in a way that satisfied her. The Member then terminated the hearing stating that the applicant “shouldn’t be here. If you don’t know why you’re here, you shouldn’t be here…. I’m adjourning this matter…. I don’t think, at this point in time, I can continue with this hearing. You obviously don’t know where you’re at or why you’re doing what you’re doing or what you have to say today.”
It is not, however, evident that anything which occurred during that hearing was relied upon by the Member during the hearing on 9 October 2018, nor was it expressly referred to in either of the oral or written statements made following the making of the oral decision.
The second hearing was longer but the transcript of its substance only runs to two and a half pages. The Member commenced by asking what she described as “a few non-controversial questions” regarding the applicant’s citizenship, the fact he applied for a protection visa and confirming he sought a review of the delegate’s decision. From there, the hearing proceeded as follows:
MEMBER: Now, Mr [Applicant], would you like to tell me what your claims are?
INTERPRETER: You mean for my protection visa for myself?
MEMBER: Could you tell me what else it would be for?
INTERPRETER: Okay, to protect myself from something that I don't want or something bad happening to me.
MEMBER: And what would that be?
INTERPRETER: If I go back to Malaysia, I will be killed.
MEMBER: Why?
INTERPRETER: I borrowed money from a illegal money lender.
MEMBER: Yes?
APPLICANT: Yes, Member.
MEMBER: And? And, Mr [Applicant], I'm listening for the details.
INTERPRETER: Right, thank you. So I borrowed money from an illegal money lender and they threatened to kill me if I was to go back to Malaysia. And they've also threatened harm on my wife and my children, thank you.
MEMBER: You can appreciate, Mr [Applicant], that people make statements all the time and part of my job is to look to the genuineness of your answers. At the moment, they're just unfounded assertions. I really do need some details otherwise I would be looking at this as being a very difficult case for you to make out on just what you're telling me so far.
INTERPRETER: (Indistinct) collecting documentation to - to show that I have borrowed some money from an illegal money lender in Malaysia, thank you.
MEMBER: I'm sorry, I didn't hear the first sentence you said, Madam Interpreter. Could you repeat (indistinct) - - -
INTERPRETER: I beg your pardon, Member. Yes, thank you. I'm in the midst of collecting information or gathering information regarding the – the fact that I have loaned money from an illegal money lender in Malaysia, thank you.
MEMBER: Well, unfortunately, if you are in the midst the tribunal has no documents in relation to your alleged claim which is a big worry for me. [break for interpreter] I’ll tell you why I'm having a great deal of difficulty accepting what you're telling me today, Mr [Applicant]. Essentially, what you're saying is that - you're saying you have documents. The decision itself where the delegate of the decision was having a similar sort of difficulty with your claim, that decision (indistinct words) - - -
INTERPRETER: (Indistinct words), Member - - -
MEMBER: - - - hang on. That decision was dated 21 March 2017, a year and a half ago.
INTERPRETER: I'm having a great deal of difficulty getting the materials together because if they were to see me or come across me, they have threatened to do something to me, to hurt me or to hurt my wife and children. So I have to run away, thank you.
MEMBER: Well, I’ll take that as your answer. But it hasn't alleviated my concern. Particularly given the fact that your hearing invitation made it abundantly clear that you were to bring, today, or at least seven days beforehand, all the information and submissions and documents that you wish to rely on - seven days before the hearing. And indeed, I’ll just quote that, but if you wouldn't mind, Madam Interpreter, to interpret so far. Sorry, I haven't finished the question. That was dated - the hearing invitation was dated 10 July 2018. When you put those two documents together, that is, the decision, 21 March 2017 and the hearing invitation, 10 July 2018, you've had almost going on for two years, more than enough time to gather the information and documents that you needed, together.
INTERPRETER: I know that it's a very difficult situation for me. If I were to go back my family and my relatives will be harmed and they will destroy my family. So it's better for me to just stay in Australia, thank you.
MEMBER: Mr [Applicant], it's very important that I believe what you're saying. At the moment what you're telling me is just simply not credible. It sounds like a version of events that has been just created for the nature of the visa that you have applied for. And it's fundamentally lacking in any details and supporting information, any corroborative information. And so far, I must say, I'm having a great deal of difficulty accepting anything that you are telling me, given the vagueness and lack of details that you're presenting today.
INTERPRETER: (Indistinct words) the lack of evidence at this point, but it's very difficult for me to get it - to get them - get it - get the evidence, thank you.
MEMBER: Is there anything else? I'm going to be finishing with this hearing now. Is there anything else you'd like to say in support of your protection visa application?
INTERPRETER: (Indistinct), I have a baby now. I feel safe here with my wife. I do not want to return to Malaysia if permitted. I would want to stay here and start a new life, thank you.
MEMBER: Okay, now as I indicated to you a little earlier, the hearing invitation dated 10 July 2018 has the following: It says, 'After the hearing the Member may hand down an oral decision' and that's what I intend to do now. And so I'll just ask you again, is there anything further that you'd like to say to support your protection visa application?
INTERPRETER: I ask the Australian Government to please allow me, my wife and my child to start a new life here, thank you.

It is relevant to summarise at this point the Tribunal’s reasons for affirming the delegate’s decision as disclosed in both the transcript of the oral statement given on 9 October 2018 and in its written statement dated 27 November 2018. Both statements referenced the member was concerned about the genuineness of the application given its lack of detail, vagueness and the applicant’s failure to substantiate what he said in relation to it. The absence of supporting corroborative information was a key consideration leading the Tribunal to conclude the applicant’s claim for protection was not genuine: see Hubball affidavit, Annexure “ELH-3” at p. 2 line 30 to p. 3 line 39; Tribunal’s Statement of Reasons and Decision at [21].
Minister’s submissions
The Minister addressed a number of issues relating to the Tribunal’s approach to the hearing in written submissions. Counsel for the Minister also responded to matters raised by the Court during the hearings conducted in relation to the application.
The Minister submits the Tribunal complied with the requirement to invite the applicant to a hearing pursuant to s 425 of the Act, noting that s 422B provides Div 4 of Pt 7 is an exhaustive statement of the natural justice hearing rule. The Minister also relied on s 5AAA of the Act. The Minister submits the combined effect of these provisions is that when it comes to the hearing before the Tribunal, procedural fairness does not require the Tribunal to ask specific questions to try and work out what the applicant’s claim is. It also does not require the Tribunal to give examples of the details that are missing. Where the issue is the complete absence of any information or material given by the applicant, there is no error by the Tribunal simply pointing that out and giving the applicant an opportunity to comment.
The Minister also submitted the codified natural justice hearing rule is not restricted to what occurs at the actual hearing but relates to the whole of the conduct of the review which commenced when the applicant made his application to the Tribunal. The Minister accepted this would, therefore, include the first hearing where the Member seemed to require the applicant to describe his claim in one or two sentences, but submitted this could not be taken as extending to a restriction on the applicant’s ability to articulate his claim at any stage in the review.
I asked counsel for the Minister to address whether there were any procedural fairness issues arising from not putting the applicant on notice that the review might be decided on different grounds to that of the delegate, namely on credibility grounds. The Minister submitted the conduct of the review in this case was compliant with the analysis of the obligation to raise with the applicant the issues relating to a review as explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. In essence, the Minister submits the delegate “noted” the lack of any supporting evidence for the applicant’s claims, but found that “without further context” (i.e, without determining the correctness of the claims), the applicant would receive “effective protection” in Malaysia such that his claims – if they were correct – did not give rise to Australia’s complementary protection obligations. The Minister argues that nothing in the delegate’s analysis suggested that there was no “issue” as to the credibility of the applicant’s claims, or that absent the delegate’s “effective protection” finding, the applicant had made out a complementary protection claim. To the contrary, the delegate described the applicant’s claims as having “minimal detail”, “with no supporting evidence”, and as “includ[ing] inconsistencies”. In those circumstances, the delegate’s decision put the applicant on notice there was a lack of material. The Minister argues it is implausible that the applicant, having read the delegate’s decision, would believe that he was not required to provide any documents or evidence of any kind in order to make out a complementary protection claim before the Tribunal. The Minister also argues that the questioning during the hearing was sufficient to put the applicant on notice of the dispositive issue that concerned the credibility of his claims.
I also asked counsel for the Minister to address whether the Tribunal had questioned the applicant about the detail of his claim in the context of having stated that she needed some details. The Minister concedes the Tribunal did not ask the applicant for the detail the Member needed nor did the Member describe the detail she needed. The Minister submits, however, that it is not an error for the Tribunal Member not to have asked that type of question. This is because the applicant was on notice from 10 July 2018 that the Tribunal was unable to make a favourable decision on the information it had before it alone. He was, therefore, on notice that something more was required to satisfy the Tribunal he met the criteria for the visa. The Minister also relies on the letters sent to the applicant asking that any information or submissions be submitted seven days before the hearing.
The Minister identified the applicant might argue he requested an adjournment of the hearing on 9 October 2018, and the Tribunal unreasonably refused to grant the adjournment. The Minister acknowledges that a jurisdictional error may arise where the Tribunal exercises such a discretion in a legally unreasonable way: Li at [26] and [29], per French CJ, at [63], per Hayne, Kiefel and Bell JJ and at [88], per Gageler J (as his Honour then was). The Minister, however, argues the Tribunal did not act unreasonably. The applicant said during the 9 October 2018 hearing that he was “in the midst of collecting information or gathering information”. The Tribunal nonetheless proceeded with the review. The Minister submits the Tribunal’s reasons reveal an intelligible justification for doing so. The Tribunal noted that the applicant had since 21 March 2017 to produce documents, and he was unable to produce any. The Tribunal also noted that the applicant had been told in correspondence to provide documents at least seven days before the hearing. Further, the Minister argues the issue arose in a context where the hearing had already been adjourned once when it became apparent that the applicant did not understand the nature of the hearing.
The Minister submits the transcript does not reveal any breach of the Tribunal’s procedural fairness obligations. To the contrary, the Minister argues that when it became apparent at the first hearing that the applicant did not understand the nature of the hearing, the Tribunal adjourned the hearing. At the adjourned hearing, the Tribunal Member repeatedly put to the applicant her concerns with the credibility of his claims and gave him an opportunity to respond.
Applicant’s submissions
The applicant’s submissions did not directly address these issues. The applicant did say he was not given an opportunity to explain the basis for his protection visa at the time. He then explained the difficulties he had obtaining information given that had had run away from Malaysia and did not have anything with him. He explained he had difficulties understanding the proceedings. I understood him to be saying the interpreter was interpreting in Bahasa Indonesian, not Bahasa Malaysian. It was difficult to ascertain which proceedings he was referring to as he referred to the interpreter as “he”. The hearing record on both occasions identifies a female interpreter was utilised to interpret the proceedings.
The review was not conducted in accordance with the Act
As already noted, the conduct of the proceedings by the Tribunal left a lot to be desired. The problematic features of the hearing were, in my view, as follows.
The applicant was not given adequate notice of the issues on the review
An invitation to appear before the Tribunal given pursuant to s 425(1) of the Act is to give evidence and present arguments relating to the issues arising in relation to the decision under review. In SZBEL, the High Court held the following in relation to s 425(1) with particular focus on the importance of the phrase “the issues arising in relation to the decision under review”:
[34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[36] It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
….
[39] If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?”, rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision. But if the issues are to be identified more particularly, other questions arise.
[40] More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made... [T]hat does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant’s claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant’s claim, it would not be apt for the Act to describe the Tribunal’s task as conducting a “review”, and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.
At [47], the High Court further noted:
there may well be many cases where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
In this case, the delegate found the applicant did not meet the refugee criterion because they were not satisfied the basis of the applicant’s claim to fear harm in Malaysia was for one or more of the reasons mentioned in s 5J(1)(a) of the Act. No part of that finding relied on the credibility of the applicant’s claims to fear harm because of an unpaid debt. It was based on the absence of nexus between the applicant’s claimed fear and his race, religion, nationality, political opinion or membership of a particular social group.
The delegate then found the applicant did not meet the complementary protection criterion. In reaching this conclusion, they considered the relevant country information which indicated the Malaysian authorities were reasonably effective in combating illegal money lending. They found the applicant would receive effective protection from the Royal Malaysian Police and judiciary against any threats he may face from groups, gangs or anyone else in Malaysia, even accepting that he may not have absolute protection.
The delegate’s conclusion there was no real risk of the applicant facing significant harm as defined in s 36(2A) of the Act was based on these reasons. The delegate did, however, observe the applicant’s situation had been outlined in minimal detail and with no supporting evidence and included inconsistencies. These observations, however, did not flow to a conclusion that the applicant’s claims of fear of harm were not true. What the delegate appeared to be explaining was that the applicant’s claims did not displace the conclusions that otherwise flowed from their analysis of the relevant country information. On that basis, the dispositive issue for the delegate on the complementary protection criterion was whether the applicant would receive effective or adequate protection from the relevant authorities.
By contrast, the dispositive issue for the Tribunal was the genuineness or credibility of the applicant’s claim to have a well-founded fear of persecution or to be at risk of suffering significant harm. In my view, although the delegate’s decision noted deficiencies in the applicant’s description of his situation and his claims, it did not do so in terms which put the applicant on notice that the credibility of the factual basis of his claims was “an issue arising in relation to the decision under review”, let alone a dispositive issue.
The Tribunal’s letters to the applicant as reproduced in the Court Book did not, in my view, identify this additional issue. Its invitation letters notified the Tribunal was unable to make a favourable decision on the material before it alone and otherwise invited the applicant to give evidence and present arguments relating to the issues arising in his case. Those issues were not otherwise identified. Accordingly, the applicant was, therefore, entitled to assume that the issues the delegate considered dispositive were “the issues arising in relation to the decision under review”: SZBEL at [36].
The Tribunal did not identify any issues arising in relation to the decision under review during the first hearing held on 30 August 2018. The Member asked the applicant to describe in one or two sentences why he thought he was “here today” and “where he was at” and little more before taking issue with his inability to satisfactorily answer her own unsatisfactory questions and terminating the hearing.
At the second hearing held on 9 October 2018, the Member identified the delegate did not believe the applicant satisfied the criteria for the protection visa then asked “would you like to tell me what your claims are?”. The Member asked two clarifying questions after the applicant stated he wanted to protect himself from something bad happening to him, first to identify what that would be and, secondly to identify why the applicant will be killed if he returned to Malaysia. The applicant explained he had borrowed money from an illegal money lender. The Member then simply advised she was listening for details.
The Member then advised that “part of [her] job is to look at the genuineness of [his] answers” and referred to them as “unfounded assertions”. She then stated she needed details. After being told the applicant was in the midst of collecting information regarding his claims, the Member commenced a series of statements critical of the applicant failing to do so prior to the hearing and which, for the first time, disclosed her difficulty accepting what he was telling her.
In my view, however, those statements did not identify in a satisfactory manner the issues arising from the decision under review to the extent they concerned whether the applicant’s claim to fear harm were to be believed. First, the Tribunal Member’s criticisms of the applicant’s claims were expressed in such general terms: “part of my job is to look at the genuineness of your answers”, “they’re just unfounded assertions”, “I really do need some more details”, “I’m having a great deal of difficulty accepting what you’re telling me today”, “it’s very important I believe what you’re saying”. Towards the end of the hearing the Tribunal Member stated:
At the moment what you’re telling me is just simply not credible. It sounds like a version of events that has been just created for the nature of the visa that you have applied for. And it’s fundamentally lacking in any details and supporting information, any corroborative information. And so far, I must say, I’m having a great deal of difficulty accepting anything that you are telling me, given the vagueness and lack of details that you’re presenting today.
I do not consider these sorts of statements adequately put the applicant on notice that it was the credibility of his claims to have been threatened because of unpaid debts that was an issue arising in relation to the review. I appreciate the Member’s statements were made in response to the answers given by the applicant to the Member’s minimal questioning of him about his claim. The Member did not clearly express it was the genuineness of the fundamental factual basis of his claims for protection as opposed to particular aspects of it that were the issue. The applicant was not in a position to appreciate whether it was his claim to have borrowed money that was doubted, or whether it was doubted that he borrowed money from illegal money lenders, or whether it was doubted he had ever been threatened. The absence of any clear notice is particularly acute in circumstances where the Member’s questioning of the applicant also gave little indication of the particular issues she had with his account.
The opportunity given to the applicant to provide evidence and make submissions was not meaningful

I have already noted the limited nature of the questions asked by the Member. The applicant answered those questions. Having explained he borrowed money from an illegal money lender, the Member’s questioning of the applicant ceased to be direct. The Member appeared to expect an unrepresented, likely unsophisticated applicant, whose opportunity to present his evidence and submissions relied on assistance from an interpreter, to proceed to expand on his claims without further direct prompting or guidance from her. The hearing then consisted of the Member making statements critical of the applicant’s evidence and waiting for the applicant to respond. There were no follow-up questions as such. Just prior to advising the applicant she would be finishing the hearing she asked “[i]s there anything else?” A similarly general question was asked after the Member advised she intended to hand down an oral decision “now”.
While review proceedings before the Tribunal are inquisitorial, as the High Court in Abebe v The Commonwealth (1999) 197 CLR 510 at 576, per Gummow and Hayne JJ and SZBEL at [40] together with s 5AAA of the Act makes clear, it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his claim. Those and like cases together with s 5AAA do not, however, stand for the proposition that a Tribunal conducting a review discharges its obligations by doing little more than giving an applicant the floor to present on the merits of their claim with little by way of direction, questioning or guidance, let alone identification of the relevant issues. For example, in SZBEL at [47], the High Court stated that
where…. there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
The Tribunal’s approach went nowhere near fulfilling that minimum requirement, particularly in circumstances where the applicant is not proficient in English and reliant on an interpreter. General questioning of the type engaged in by the Member was not sufficient, either for the purpose of identifying the issues or for the purpose of affording the applicant an opportunity in substance to give evidence and present his arguments.
This matter is distinguishable from cases such as SZIAI and SZGUR where the High Court held there was no duty imposed on the Tribunal to inquire (albeit there is power to do so), but a duty to review. That proposition may be accepted. The High Court, however, noted the Tribunal may fail to discharge its duty in failing to make an obvious inquiry about a critical fact, the existence of which is easily ascertained. Such a failure was described as one that could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
SZIAI concerned whether the Tribunal in the circumstances of that case was obliged to utilise its powers to make inquiry of the authors of certain certificates relied upon by the applicant when the authenticity of those certificates had been impugned. The plurality held at [2] no such obligation arose because the inquiry would not have yielded a useful result and the applicant’s solicitors had already provided a fulsome response to a s 425A invitation which in itself revealed the futility of the proposed inquiry: [25]-[26].
SZGUR concerned an allegation that the Tribunal in that case fell into jurisdictional error by failing to exercise its powers pursuant to ss 427(1) or 424(1) to require an independent medical examination be arranged to assess the applicant’s mental health where such an examination had been requested by their legal representative “if required”. Ultimately, that decision turned on whether the Tribunal had considered the request, that being the basis upon which the Federal Court had concluded the Tribunal fell into jurisdictional error by constructively failing to exercise jurisdiction or having regard to a relevant consideration. French CJ and Kiefel J concluded at [31]-[35] the premise underlying the findings of jurisdictional error was not established: see also Gummow J at [73], Heydon J at [91] and Crennan J at [92] agreeing with French CJ, Kiefel and Gummow JJ.
In my view, the abject failure of the Tribunal to ask the most basic of questions regarding the details of the applicant’s claims, particularly in circumstances where the credibility of those claims was the key reason for affirming the decision but had not been properly notified as an issue “arising in relation to the decision under review”, constitutes a constructive failure to exercise jurisdiction. I cannot accept the Tribunal’s conduct of the hearing could be properly considered to be legally reasonable. In my view, it was so unreasonable that no reasonable Tribunal heeding the exhortation to be fair and just or adhering to those aspirations could have done what the Tribunal in this case in fact did: see Li at [98] per Gageler J. The Tribunal may well have recognised its failure in that respect when it came to producing a written statement of reasons for decision. Those reasons reference clarifying questions purported to be asked during the review hearing that were simply not asked. That issue is discussed below in the context of the Tribunal’s compliance with s 430D of the Act and is not relevant to the determination of this question, but nevertheless serves to highlight the unsatisfactory nature of the hearing.
I have not found it necessary to consider whether the Tribunal ought to have adjourned the matter in light of the applicant’s indication he was in the “midst of gathering information” given my other findings regarding the conduct of the hearing.
In my view, the conduct of the hearing was legally unreasonable for the reasons set out above. The conduct of the hearing did not comply with the requirements of the Act insofar as they are conditioned by the requirement to be just and fair as specified in s 422B(3) of the Act.
ORAL DECISIONS AND ORAL AND WRITTEN STATEMENTS - SECTION 430D OF THE ACT
The statutory scheme – oral decisions
Section 430D of the Act provided for the delivery of Tribunal decisions orally. When a decision on a review was given orally, it was taken to have been made, and notified to the applicant, on the day and at the time it is given orally: s 430D(1). Where it made an oral decision, the Tribunal was required to either make an oral statement or make a written statement: s 430D(2). Where it made an oral statement, that statement was required to describe the Tribunal’s decision, describe the reasons for the decision, describe the findings on any material questions of fact, refer to the evidence or any other material on which the findings of fact were based and identify the day and time the decision was given orally: s 430D(2)(a). Where the Tribunal made a written statement, that statement was required to set out the decision of the Tribunal, set out the reasons for the decision, set out the findings on any material questions of fact, refer to the evidence or any other material on which the findings of fact were based and record the day and time the decision was given orally: s 430D(2)(b). The Tribunal had no power to vary or revoke the decision after the day and time the decision was given orally: s 430D(3).
If an oral statement was given pursuant to s 430D(2)(a) of the Act, an applicant was able to make a written request for the oral statement to be provided in writing within 14 days after the Tribunal made the oral statement: s 430D(3) and reg 4.35F of the Migration Regulations 1994 (Cth). If such a request was made, the Tribunal was required to reduce the oral statement to writing and give a copy of the written statement to the applicant within 14 days after the receipt of the request: s 430D(4). The validity of a decision on a review, and the operation of s 430D(3) of the Act were not affected by a failure to identify or record the day and time when the decision was given orally as required by s 430D(2) or a failure to comply with s 430D(4).
There is an evident distinction in these provisions between a decision and a statement. It was open to the Tribunal to make its decision pursuant to s 415(2) of the Act orally, providing an oral statement at the same time or a written statement, potentially at a later date. There was no express provision dealing with the notification of a written statement made following the delivery of an oral decision. Section 430A of the Act did not appear to apply as it dealt with notification of decisions on a review other than an oral decision. The purpose of the amendments to the Act which introduced s 430D and its analogue s 386D were to provide a power to the Tribunal to enable it to provide an oral statement of reasons where there is an oral decision.
Section 430D(2) requires the Tribunal to describe or set out in its oral or written statement its “findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision” : Minister for Immigration v Yusuf(2001) 206 CLR 323; [2001] HCA 30 at [68] per McHugh, Gummow and Hayne JJ (emphasis in original). Accordingly, this ensures “a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion”: Yusuf at [68]-[69], per McHugh, Gummow and Hayne JJ.
In SZGUR, French CJ and Kiefel held at [32] in respect of the analogous s 430(1) of the Act that it:
presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:
1. Identification of the relevant evidence or material upon which findings of fact can be based.
2. Making findings of fact based on the relevant evidence or material.
3. Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.
In Liang, the High Court held that reasons are meant to inform and are not to be scrutinised in an over-zealous fashion. A “mere failure to comply” with the statutory requirements does not constitute jurisdictional error: Minister for Immigration v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [54], per Kenny J.
The meaning of the phrase “reduce the oral statement to writing” in s 430D(4) of the Act has not been the subject of judicial consideration. The Minister referred the Court to the decision in R v Walker (1993) 61 SASR 260 where the meaning of the phrase "reduced into writing” was discussed by the Full Court in the context of s 29 of the Evidence Act 1929 (SA) which dealt with cross-examination of person as to a previous statement made by the witness in writing, or reduced into writing. It is not directed at the meaning of the phrase in the context of oral reasons for decision and the Minister does not suggest it is relevant for the purposes of this case. The Minister described the dictionary definition as unhelpful too, with the Oxford English Dictionary defining the phrase as “to put into or commit to writing”.
In the judicial context, the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6 at [30] approved what Gleeson CJ writing extra-curially has observed:
There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.
In AAM17, the High Court also held at [32] that
where written reasons of a court are published following the giving of ex tempore reasons, those written reasons must be taken to be the authentic expression of the judgment of the court unless it is otherwise shown that those reasons had materially deviated from what had been announced in court. Such deviations might be demonstrated by calling for the transcript (or other recording) of the ex tempore judgment; by the production of notes taken by counsel or by an instructing solicitor of what was said; or even by evidence given by counsel or an instructing solicitor in lieu of such notes.
What constitutes a revision of substance and the consequences of such a revision was the subject of consideration and a review of authorities in the New South Wales Court of Criminal Appeal in R v Lazarus (2017) 270 A Crim R 378; [2017] NSWCCA 279 where Bellew J held (citations omitted):
[122] Whilst a judge has the power to revise his or her reasons for judgment there are necessarily restrictions in his or her doing so. In Lam v Beesley … Owen J (at 93-94) reviewed the authorities before concluding (at 95) that if changes to a judgment were such that they could lead to an appearance of altered substance (as opposed to the alteration of matters of form) in a criminal trial, that would be sufficient to render a conviction unsafe and unsatisfactory. In Bar-Mordecai v Rotman … the Court of Appeal (Sheller, Stein and Giles JJA) confirmed (at [193]) the propriety of the process of revision of ex-tempore reasons, but emphasised that altering the substance of the reasons, or the orders that they sustain, in the course of such revision is not permissible. Both of these decisions were referred to by Beazley JA (as her Honour then was) in Todorovic v Moussa … where her Honour concluded (at [46]) that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact.
[123] In Spencer v Bamber …Campbell JA (with whom Basten and Macfarlan JJA agreed) emphasised (at [141]) the need for written reasons to be, in substance, those that the judge had given at the time of making orders. His Honour went on to say (at [142]):
The qualification I have just referred to is that in deciding what is an "impermissible alteration", one must not only consider whether an alteration is one of substance, but also Gleeson CJ's recognition that alteration is permissible "where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say". The circumstances in which a mistake or slip could justify corrections in draft reasons were elaborated on in Bell v Veigel at [220], where Mason P said:
"It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge's own motion, in a proper case."
[124] Basten JA agreed with Campbell JA and was not prepared to infer that particular propositions were in the mind of a primary judge at the time of delivering oral reasons if statements encompassing those propositions were not made. His Honour went on to explain (at [8]) that the test of whether a revision is permissible is an objective one and that a relevant consideration is the degree of conformity between the revision and the argument presented in court.
[125] In the event that a revision extends beyond the scope of what is permissible, the course commonly taken is for an appellate Court to disregard the additional reasons: Spencer at [13] per Basten JA; Talbot-Price v Jacobs at [12] per Ipp JA (with whom McColl and Basten JJA agreed); Palmer v Clarke at 165 per Kirby P (Samuels and Priestly JJA agreeing) citing Melville v Phillips (1899) 9 QLJ 114 and R v Casey; ex parte Lodge.
In that case, the inclusion of the word “not” in the written version of the decision had the effect of correcting what would otherwise be an incorrect oral statement of critical principle. Bellew J held, however, that the correction was permitted in circumstances where it conformed wholly with what had been put to the judge in argument and with the several correct statements of the law made both before and after the impugned passage by the primary judge.
The Tribunal’s oral statement of reasons
During the hearing the Tribunal member announced she was intending to hand down an oral decision and proceeded to do so immediately. She commenced by telling the interpreter “this is in English because it’s too specialised and difficult to have it interpreted in full”. It is clear from the audio recording of those proceedings that no part of the eleven-minute oral statement was interpreted for the applicant’s benefit. After delivering the oral statement, the Member stated:
MEMBER: That is the end of the decision and the end of the hearing. Thank you, Mr [Applicant], for your attention today - Madam Interpreter. If you wish to know what an affirmed decision is and what an oral decision is, handed down straight after the hearing, you will need to contact the tribunal in your state or territory by phone to find out what it means. But essentially, the outcome of the hearing, the decision today, is an affirmed decision. That is, the decision of the delegate has been affirmed and it is - - -
INTERPRETER: (Indistinct) pardon, Member.
MEMBER: Thank you. Thank you, Mr [Applicant], you may now go. Thank you
It appears the above passage was interpreted for the applicant.
The substance of the oral statement commences with the Member referring to the decision as a “template decision”, and a “template decision on or after 16 December 2014”. The Member then refers to adopting various headings, presumably from the template. The Member also stated that she “adopts the variables in relation to the applicant, which he has confirmed today, that he is a citizen of Malaysia and he applied for the Protection visa application on 18 October 2016 and also that the delegate refused to grant a visa on the basis that the applicant did not satisfy the criteria for a Protection visa application”.
The balance of the oral statement then proceeded as follows:
The next sub-heading is: 'Criteria for protection'. The tribunal adopts all the paragraphs in relation to what follows from that particular title: 'Criteria for a Protection visa'. The tribunal also puts in another sub-paragraph: 'Mandatory Considerations' and also says in relation to this that these aspects of the application have not been raised and therefore, apart from saying that the tribunal has taken these considerations into account globally, they do not have specific relevance to this particular case today.
The next heading is: 'Consideration of claims and evidence'. The tribunal asked the applicant what was that he had to say about his claim and he stated that he cannot return to Malaysia and that he will be killed. He continued, 'I have borrowed money from an illegal money lender and I am unable to repay the money.' He also provided a version of events which says that he has been threatened and so has his family and wife.
The applicant was put on notice that the tribunal was having a great deal of concern about the genuineness of his application, given its lack of detail, its vagueness and the fact that he could not substantiate anything that he said in relation to it. Nevertheless, he repeated, essentially, what he said earlier; that he was being threatened if he goes back. He will be chased and he will be killed.
The tribunal again raised squarely with the applicant its concern about the genuineness of his application. Again, the fact that there is a total lack of detail and it is somewhat illogical given the fact that he seems to be just repeating the same assertions without any corroborative evidence and makes this concern of mine even more profound.
The applicant, at one stage, indicated that he was in the midst - his turn of phrase - 'in the midst' of gathering information to support his claim. In reply, the tribunal stated it was concerned that he was still in the midst of gathering information given that he had had access, particularly to the decision since 21 March 2017, and which, of course, he had attached to his review application and it clearly indicated similar sort of concerns of the delegate as now faced by the tribunal. And the tribunal concluded that it would appear that he has had approximately a year and a half to make his preparations and that it was a quantum faith belief that he would expect any entity or any person representing the tribunal to believe his version of events, that he could not produce anything.
The tribunal referred to his turn of phrase 'in the midst of gathering documentation' and asked for him to produce any information that he has got so far. Unfortunately he could not produce anything and the tribunal finds that this version of events lacks any credibility and is not believed by the tribunal.
The tribunal then referred to, not only the decision, but also the hearing invitation on 10 July 2018, where in the hearing invitation and its attached documentation he was asked to provide all the documentation and information, submissions and so forth that he wished to rely on as the Member may hand down an oral decision at the end of the hearing. And that was over two months ago. And that, together with the decision belies of the fact that what he is saying is superficial, not logical and certainly not credible given its lack of details and lack of independent supporting information.
The applicant, nevertheless, in answer to a further query by the tribunal that it was intending to finish the hearing and did he wish to say anything further in support of his protection visa application, he repeated his similar version of events and added that 'I now have a baby and a wife in Australia', and it would be better for him to stay here and he and his family would be safe.
The tribunal specifically quoted, for his attention, the paragraph and hearing invitation which is in italics and in bold print:
After the hearing the Member may hand down an oral decision. Consequently it is important that all information and submissions are submitted a full seven days before the hearing date.
Given that that was soon to follow, the tribunal asked the applicant again if he had anything further to add. All he repeated was the same statement that he had made previously and added that he wished the Australian Government would allow him and his wife and baby to stay in Australia.
The next paragraph is an optional paragraph which refers to the mere fact that a person claims (indistinct) protection and ends with the citation Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 70. And also the following paragraph from that which is another paragraph which is (indistinct) and I will read this out:
The tribunal is not satisfied on the evidence before it that the applicant has well-founded fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion. Nor is the tribunal satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant will suffer significant harm.
This of course then makes this decision an affirmed decision.
The next heading is: 'Concluding paragraph'. And the template paragraph (indistinct) for this is the following: For the above reasons given, the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
And then of course, the next paragraph, which is also an affirmed decision: And is not satisfied according to section 36(2)(aa), that is, the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
The next and final paragraph before the last heading is: There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2).
The next major heading is: 'Decision', again in Bold print. The tribunal affirms the decision not to grant the applicant a Protection visa.
The Tribunal’s written statement

Barely any of the written statement reflects what was conveyed during the oral statement. The changes effected go beyond improving the manner of expression. The substance is significantly altered. This is most stark where the Tribunal sets out the evidence that was purportedly before it. At [10]-[16] of the written statement, the Tribunal outlines questions it asked and answers given which it then relied on to support its finding that the applicant’s account was not credible. To the extent they record that specific questions were asked and the responses given, they are wholly inconsistent with what actually happened during the hearing. It is difficult to comprehend how the Tribunal was able to make such mistakes in the recording of what transpired during the hearing. If the written statement of reasons constituted the authentic expression of the Tribunal’s decision, it would compel a finding that the decision was irrational, illogical or unreasonable as no reasonable Tribunal could reasonably conclude for the reasons expressed that the applicant’s account was not credible.
Given my conclusion that the oral statement technically conformed with the requirements of s 430D(4), it is to be regarded as the authentic expression of the Tribunal’s decision. Although I have observed the reason expressed for rejecting the applicant’s account that he was in the midst of gathering information was erroneous, it was not the only basis for the Tribunal concluding the applicant’s claims were not credible. As noted by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130], not every lapse of logic will give rise to jurisdictional error. While the Tribunal’s reasons for that discrete conclusion is not supported by what transpired during the hearing, those otherwise given for the rejection of the applicant’s claim were open and not legally unreasonable.
MATERIALITY
In LPDT, the High Court held at [9] that “[w]here it is alleged…that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material”. I have already found the Tribunal’s decision was affected by error.
In my view, the errors identified were also material in the sense explained by the High Court in LPDT at [14]. I have noted the failure of the Tribunal to constructively exercise jurisdiction. In my view, if the Tribunal had afforded the applicant a meaningful hearing, the decision that was in fact made could have been different. This should not be interpreted as an expression by me of any view as to the merits of the applicant’s claims. In essence, those merits were not properly considered because of the poor way in which the review hearing was conducted.
CONCLUSION
The Tribunal’s decision was affected by jurisdictional error. I make the following orders:
1. A writ of certiorari issue directed to the second respondent quashing the decision dated 9 October 2018 (Tribunal Case No. 1705541).
2. A writ of mandamus issue, directed to the Administrative Review Tribunal, requiring it to determine the application made to the Administrative Appeals Tribunal for review of the decision of the delegate of the first respondent dated 21 March 2017 according to law.
I will hear the parties as to costs.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson.
Associate:
Dated:       23 January 2025

ANNEXURE A – TRANSCRIPT OF TRIBUNAL PROCEEDINGS AT 1.30PM ON THURSDAY 30 AUGUST 2018
INTERPRETER, affirmed:
<[APPLICANT], sworn:
<EXAMINATION BY MEMBER
MEMBER: Thank you, Mr [Applicant], please sit down. Mr [Applicant], just to let you know that the interpreter has asked that because of a leg problem she will need to get up from time to time and walk around. So don't be distressed that that represents anything. It just simply means she needs to exercise a dodgy leg.
INTERPRETER: Thank you.
MEMBER: Right, Mr [Applicant], let's have a look here. Some questions I'm going to be asking you. First of all, in your own words, in just one sentence, can you tell me why it is that you think you're here today? One second, did you say in one sentence?
INTERPRETER: Yes. Just one sentence?
MEMBER: Well, make it two, we'll go overboard and we'll make it two sentences. (Indistinct) why you're here today.
INTERPRETER: Well, running away- - -
MEMBER: Okay, so I think you don't understand what I'm saying. Do you recall that you've had a decision refused by the Department of Education? I want to know; do you know where you' re at today?
INTERPRETER: Yes, I do. I know, for protection.
MEMBER: Yes, but do you know the physical place where you 're at?
INTERPRETER: TAFE college.
MEMBER: Actually, you are at TAFE college, because that's where the hearing is. That's the location of the hearing, you 're quite right, Mr [Applicant], and thank you. But I'm actually talking about us, in the presence of why it is you 're here today, to have this hearing. If you put the TAFE college at a physical place to run by, where you're actually being videoed, could you tell me, do you know where you 're at and why you 're here today, in two sentences.
INTERPRETER: This is so that I could have a decision whether I'm allowed to live in Australia or not.
MEMBER: Okay, do you recall the (indistinct) decision that went against you, handed down by the Department of Immigration? Yes or no is the answer.
INTERPRETER: No.
MEMBER: So you don't know why you're here today?
INTERPRETER: As far as I know, I received an email for this hearing.
MEMBER: Yes. But the Department of Immigration did not grant your protection visa. Do you recall that?
INTERPRETER: No, I can't.
MEMBER: Well then, you shouldn't be here. If you don't know why you're here, you shouldn't be here. (Indistinct words) hearing if you don't know why you 're here. Because you don't even know where you 're at. Have you heard of the Administrative Appeals Tribunal? Have you heard of it?
INTERPRETER: I've never heard of it.
MEMBER: Okay, I'm adjourning this matter. You’ll get another email, Mr [Applicant]. I don't think, at this point in time, I can continue with this hearing. You obviously don 't know where you 're at or why you're doing what you're doing or what you have to say today . I can't help you. The tribunal will be in contact with you to let you know about another hearing and hopefully by then you'll know why it is you're here. The hearing is adjourned until that time. Thank you very much.
<WITNESS WITHDREW
MATTER ADJOURNED
UNTIL A DATE TO BE FIXED

ANNEXURE B – TRANSCRIPT OF TRIBUNAL PROCEEDINGS ON TUESDAY 9 OCTOBER 2018
INTERPRETER, affirmed:   [1.01 PM]
<[APPLICANT], affirmed:   [1.01 PM]
<EXAMINATION BY MEMBER   [1.01 PM]
MEMBER: Madam Interpreter, would you say hello to Mr [Applicant] for me, thank you.
INTERPRETER: Good afternoon.
MEMBER: Thank you. For the record and for the tape, I am speaking with the interpreter who is not present in the hearing room but is present by phone, thus the third person from time to time today. Now, there are just a few non-controversial questions I'll ask you, Mr [Applicant]. Now, you're a citizen of Malaysia?---Yes, Malaysia.
That's right. And you applied for this protection visa on 18 October 2016?---Yes, Member.
And you 've now asked review of the delegate's decision on the basis that the delegate did not believe that you satisfied the criteria for a protection visa? You have to answer 'yes' or 'no'?---Yes, Member.
Okay, thank you. Now, Mr [Applicant], would you like to tell me what your claims are?
INTERPRETER: You mean for my protection visa for myself?
MEMBER: Could you tell me what else it would be for?
INTERPRETER: Okay, to protect myself from something that I don't want or something bad happening to me.
MEMBER: And what would that be?
INTERPRETER: If I go back to Malaysia, I will be killed.
MEMBER: Why?
INTERPRETER: I borrowed money from a illegal money lender.
MEMBER: Yes?---Yes, Member.
And? And, Mr [Applicant], I'm listening for the details.
INTERPRETER: Right, thank you. So I borrowed money from an illegal money lender and they threatened to kill me if I was to go back to Malaysia. And they 've also threatened harm on my wife and my children, thank you.
MEMBER: You can appreciate, Mr [Applicant], that people make statements all the time and part of my job is to look to the genuineness of your answers. At the moment, they're just unfounded assertions. I really do need some details otherwise I would be looking at this as being a very difficult case for you to make out on just what you're telling me so far.
INTERPRETER: (Indistinct) collecting documentation to - to show that I have borrowed some money from an illegal money lender in Malaysia, thank you.
MEMBER: I'm sorry, I didn't hear the first sentence you said, Madam Interpreter. Could you repeat (indistinct) - - -
INTERPRETER: I beg your pardon, Member. Yes, thank you. I'm in the midst of collecting information or gathering information regarding the – the fact that I have loaned money from an illegal money lender in Malaysia, thank you.
MEMBER: Well, unfortunately, if you are (indistinct) the tribunal has no documents in relation to your alleged claim which is a big worry for me. I'll tell you why I'm having a great deal of difficulty accepting what you 're telling me today, Mr [Applicant]. Essentially, what you 're saying is that - you're saying you have documents. The decision itself where the delegate of the decision was having a similar sort of difficulty with your claim, that (indistinct words) - - -
INTERPRETER: (Indistinct words), Member - - -
MEMBER: - - - (indistinct words), that decision was dated 21 March 2017, a year and a half ago.
INTERPRETER: I'm having a great deal of difficulty getting the materials together because if they were to see me or come across me, they have threatened to do something to me, to hurt me or to hurt my wife and children. So I have to run away, thank you.
MEMBER: Well, I'll take that as your answer. But it hasn't alleviated my concern. Particularly given the fact that your hearing invitation made it abundantly clear that you were to bring, today, or at least seven days beforehand, all the information and submissions and documents that you wish to rely on - seven days before the hearing. And indeed, I'll just quote that, but if you wouldn't mind, Madam Interpreter, to interpret so far. Sorry, I haven 't finished the question. That was dated - the hearing invitation was dated 10 July 2018. When you put those two documents together, that is, the decision, 21 March 2017 and the hearing invitation, 10 July 2018, you've had almost going on for two years, more than enough time to gather the information and documents that you needed, together.
INTERPRETER: I know that it's a very difficult situation for me. If I were to go back my family and my relatives will be harmed and they will destroy my family. So it's better for me to just stay in Australia, thank you.
MEMBER: Mr [Applicant], it's very important that I believe what you're saying. At the moment what you're telling me is just simply not credible. It sounds like a version of events that has been just created for the nature of the visa that you have applied for. And it's fundamentally lacking in any details and supporting information, any corroborative information. And so far, I must say, I'm having a great deal of difficulty accepting anything that you are telling me, given the vagueness and lack of details that you're presenting today.
INTERPRETER: (Indistinct words) the lack of evidence at this point, but it's very difficult for me to get it - to get them - get it - get the evidence, thank you.
MEMBER: Is there anything else? I'm going to be finishing with this hearing now. Is there anything else you 'd like to say in support of your protection visa application?
INTERPRETER: (Indistinct), I have a baby now. I feel safe here with my wife. I do not want to return to Malaysia if permitted. I would want to stay here and start a new life, thank you.
MEMBER: Okay, now as I indicated to you a little earlier, the hearing invitation dated 10 July 2018 has the following: It says, 'After the hearing the Member may hand down an oral decision' and that's what I intend to do now. And so I'll just ask you again, is there anything further that you'd like to say to support your protection visa application?
INTERPRETER: I ask the Australian Government to please allow me, my wife and my child to start a new life here, thank you.
MEMBER: Thank you, Mr [Applicant]. Mr [Applicant], I'm now handing down the decision. Madam Interpreter, this is in English because it's too specialised and difficult to have it interpreted in full.
<WITNESS WITHDREW   [1.17 PM]
ORAL DECISION OF MEMBER HOEBEN   [1.17 PM]
END OF ORAL DECISION   [1.28 PM]
MEMBER: That is the end of the decision and the end of the hearing. Thank you, Mr [Applicant], for your attention today - Madam Interpreter. If you wish to know what an affirmed decision is and what an oral decision is, handed down straight after the hearing, you will need to contact the tribunal in your state or territory by phone to find out what it means. But essentially, the outcome of the hearing, the decision today, is an affirmed decision. That is, the decision of the delegate has been affirmed and it is - - -
INTERPRETER: (Indistinct) pardon, Member.
MEMBER: Thank you. Thank you, Mr [Applicant], you may now go. Thank you for your time.
INTERPRETER: Thank you, Member.
MR [APPLICANT]: Thank you, Member.
MEMBER: You can go now, thank you, Mr [Applicant].
MATTER ADJOURNED   [1.29 PM]
ANNEXURE C – ORAL DECISION OF MEMBER MADE ON 9 OCTOBER 2018
ORAL DECISION OF MEMBER HOEBEN   [1.17 PM]
MEMBER: Mr [Applicant], this is a (indistinct) decision that I am handing down today for Protection visa applicant. It is a (indistinct) on or after 16 December 2014. The tribunal adopts the main heading, 'Statement of decisions and reasons' and also 'Application for review'. The tribunal adopts the variables in relation to the applicant, which he has confirmed today, that he is a citizen of Malaysia and he applied for the Protection visa application on 18 October 2016 and also that the delegate refused to grant a visa on the basis that the applicant did not satisfy the criteria for a Protection visa application.
The next sub-heading is: 'Criteria for protection'. The tribunal adopts all the paragraphs in relation to what follows from that particular title: 'Criteria for a Protection visa'. The tribunal also puts in another sub-paragraph: 'Mandatory Considerations' and also says in relation to this that these aspects of the application have not been raised and therefore, apart from saying that the tribunal has taken these considerations into account globally, they do not have specific relevance to this particular case today.
The next heading is: ' Consideration of claims and evidence'. The tribunal asked the applicant what was that he had to say about his claim and he stated that he cannot return to Malaysia and that he will be killed.
He continued, 'I have borrowed money from an illegal money lender and I am unable to repay the money.' He also provided a version of events which says that he has been threatened and so has his family and wife.
The applicant was put on notice that the tribunal was having a great deal of concern about the genuineness of his application, given its lack of detail, its vagueness and the fact that he could not substantiate anything that he said in relation to it. Nevertheless, he repeated, essentially, what he said earlier; that he was being threatened if he goes back. He will be chased and he will be killed.
The tribunal again raised squarely with the applicant its concern about the genuineness of his application. Again, the fact that there is a total lack of detail and it is somewhat illogical given the fact that he seems to be just repeating the same assertions without any corroborative evidence and makes this concern of mine even more profound.
The applicant, at one stage, indicated that he was in the midst - his tum of phrase - ' in the midst' of gathering information to support his claim. In reply, the tribunal stated it was concerned that he was still in the midst of gathering information given that he had had access, particularly to the decision since 21 March 2017, and which, of course, he had attached to his review application and it clearly indicated similar sort of concerns of the delegate as now faced by the tribunal. And the tribunal concluded that it would appear that he has had approximately a year and a half to make his preparations and that it was a quantum faith belief that he would expect any entity or any person representing the tribunal to believe his version of events, that he could not produce anything.
The tribunal referred to his turn of phrase 'in the midst of gathering documentation' and asked for him to produce any info1mation that he has got so far. Unfortunately he could not produce anything and the tribunal finds that this version of events lacks any credibility and is not believed by the tribunal.
The tribunal then referred to, not only the decision, but also the hearing invitation on 10 July 2018, where in the hearing invitation and its attached documentation he was asked to provide all the documentation and information, submissions and so forth that he wished to rely on as the Member may hand down an oral decision at the end of the hearing. And that was over two months ago. And that, together with the decision belies of the fact that what he is saying is superficial, not logical and certainly not credible given its lack of details and lack of independent supporting information.
The applicant, nevertheless, in answer to a further query by the tribunal that it was intending to finish the hearing and did he wish to say anything further in support of his protection visa application, he repeated his similar version of events and added that 'l now have a baby and a wife in Australia', and it would be better for him to stay here and he and his family would be safe.
The tribunal specifically quoted, for his attention, the paragraph and hearing invitation which is in italics and in bold print:
After the hearing the Member may hand down an oral decision. Consequently it is important that all information and submissions are submitted a full seven days before the hearing date.

Given that that was soon to follow, the tribunal asked the applicant again if he had anything further to add. All he repeated was the same statement that he had made previously and added that he wished the Australian Government would allow him and his wife and baby to stay in Australia.
The next paragraph is an optional paragraph which refers to the mere fact that a person claims (indistinct) protection and ends with the citation Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 70. And also the following paragraph from that which is another paragraph which is (indistinct) and I will read this out:
The tribunal is not satisfied on the evidence before it that the applicant has well-founded fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion. Nor is the tribunal satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant will suffer significant harm.

This of course then makes this decision an affirmed decision.
The next heading is: 'Concluding paragraph'. And the template paragraph (indistinct) for this is the following: For the above reasons given, the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).

And then of course, the next paragraph, which is also an affirmed decision: And is not satisfied according to section 36(2)(aa), that is, the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
The next and final paragraph before the last heading is: There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2).
The next major heading is: 'Decision', again in Bold print. The tribunal affirms the decision not to grant the applicant a Protection visa.
END OF ORAL DECISION [1.28 PM]

File number(s):	MLG 3292 of 2018
Judgment of:	JUDGE CUTHBERTSON
Date of judgment:	23 January 2025
Catchwords:	MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal to not grant the Applicant a Protection (Subclass 866) visa – protection claims relating to loan sharks – Tribunal found the applicant had not provided any supporting evidence – adverse credibility findings – whether the Tribunal provided a meaningful hearing – what constitutes an oral statement pursuant to s 430D(2)(a) of the Migration Act 1958 (Cth) – where the oral statement departs from the written statement – whether the Tribunal’s decision was illogical, irrational or unreasonable – whether the applicant was put on notice of issues arising in relation to decision under review – Tribunal’s decision affected by jurisdictional error – application granted – writs issued
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 2A Migration Act 1958 (Cth) ss 5AAA, 5H, 5J, 36, 65, 91X, 411, 414, 415, 420, 422B, 424, 424AA, 425, 424, 427, 430A, 476 Migration Amendment (Protection and Other Measures) Act 2015 (Cth) Migration Regulations 1994 (Cth) reg 4.35F
Cases cited:	Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 EYG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1309 Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 Kaur v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 117 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6 MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 R v Lazarus (2017) 270 A Crim R 378; [2017] NSWCCA 279 R v Walker (1993) 61 SASR 260 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630236 FCR 593; [2003] FCAFC 184
Division:	Division 2 General Federal Law
Number of paragraphs:	114
Date of last submission/s:	3 December 2024
Dates of hearing:	11 September 2024, 10 October 2024
Place:	Melbourne
Applicant:	In person
Counsel for the First Respondent:	Mr C. Hibbard
Solicitor for the First Respondent:	Mills Oakley
Second Respondent:	Submitting appearance, save as to costs

MLG 3292 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FTA18 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE CUTHBERTSON
DATE OF ORDER:	23 JANUARY 2025