HXC24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 963
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
HXC24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 963
File number(s): PEG 364 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 27 May 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal was affected by apprehended bias – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take evidence into account – no jurisdictional error established – application dismissed with costs
PRACTICE AND PROCEDURE – APPLICATION FOR AN ADJOURNMENT AND REFERRAL FOR LEGAL ASSISTANCE – where the applicant took recent steps to seek legal assistance – where there is no certainty of legal representation – where a party has no right to apply for a referral for legal assistance – where the discretion to adjourn the hearing or refer the applicant for legal assistance is not enlivened
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) Division 4 of Part 7
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 r 12.01, 12.02, Schedule 2, Part 2, Division 1 Item 3
Cases cited: AJR24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1237
Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
GPG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1120
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 27 May 2025 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr Mayne Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 364 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HXC24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.The interlocutory application filed by the applicant on 2 May 2025 be dismissed.
2.The name of the first respondent be amended to read “Minister for Immigration and
3.Citizenship”.
4.The application filed by the applicant on 4 October 2024 be dismissed.
5.The applicant pay the Minister’s costs fixed in the sum of $6,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Zambia. He first arrived in Australia on 26 December 2010 on a student visa.
The delegate's decision set out a table of the applicant's migration history showing that he travelled in and out of Australia a number of times in the years that followed his arrival. That history, as set out by the delegate, also shows that the applicant was refused a temporary graduate visa on 16 June 2016, a decision which was affirmed by the Administrative Appeals Tribunal on 21 December later that same year.
The applicant applied for a protection visa on 30 January 2017. On 6 June 2023, the delegate refused to grant the applicant the protection visa. On 2 July 2023, the applicant applied to the Tribunal for a review of the delegate's decision. On 2 September 2024, the Tribunal affirmed the delegate's decision.
On 4 October 2024, the applicant applied for judicial review of the Tribunal's decision.
APPLICATION FOR AN ADJOURNMENT AND REFERRAL CERTIFICATE
By an application in a proceeding filed on 2 May 2025, the applicant seeks orders to adjourn the final hearing that is listed to take place this afternoon, 27 May 2025. The application in a proceeding also seeks orders adjourning the matter to a date fixed by the registrar for a further mention and, pursuant to Part 12 of the Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021, a referral certificate issue referring the applicant to a lawyer for legal assistance and for the registrar to attempt to arrange the provision of legal assistance to the applicant on a pro bono basis.
The applicant provided an affidavit in support of his application and, albeit not in a sworn form, made some submissions this afternoon, effectively in an update to that evidence, which I accept. He gave evidence in an affidavit sworn on 1 May, filed on 2 May, that he does not have money to pay for private legal representation. He said that Legal Aid WA cannot assist him, and that he contacted Circle Green Community Legal Centre, effectively on a referral from Legal Aid. The confirmation receipt at that CLC is a generic acknowledgement of email and says to the recipient:
If you do not receive a further email response to your request within 3-5 business days -
to call the Centre on a number.
The applicant told me that he heard from the Centre and has an appointment on 5 June to speak with them, but that was in the nature of a preliminary discussion. He told me there is nothing from the CLC that says that it will act for him in these proceedings.
In relation to the application, the Minister opposes it, for a number of broad grounds that include the length of time that the matter has been in the Court system, the evidence that the applicant's steps taken to obtain a lawyer have been quite recent and only from April 2025, that there is no guarantee that the applicant will obtain a lawyer, and that there is no entitlement to legal representation in this Court.
In relation to that question generally, in GPG18 v Minister for Immigration, Citizenship and Multicultural Affairs,[1] Judge Lucev set out the principles that apply to legal representation in migration proceedings in the context of adjournment applications as follows:
[1] [2024] FedCFamC2G 1120 at [13] – [19].
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 (“SZHTI”) at [3]-[4] per Gyles J, the Federal Court observed as follows:
3 The first paragraph of the affidavit in support of the application is:
I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.
4That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 (“SZQRU”) at [24] per Katzmann J the Federal Court observed that there is no right to legal representation and procedural fairness does not require that a person be legally represented.
The observations of the Federal Court in SZHTI and SZQRU that there is no right to legal representation in this Court have been regularly applied over the years in this Court (and its statutory predecessors): see, for example, ELE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1091 at [33] per Judge Ladhams; EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 638 at [31] per Judge Given; ATD16 v Minister for Immigration [2018] FCCA 139 at [31] per Judge Nicholls; WZAWB v Minister for Immigration [2016] FCCA 1345; (2016) 309 FLR 398 at [86]-[90] per Judge Lucev; SZTSY v Minister for Immigration [2015] FCCA 229 at [26] per Judge Nicholls; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. Likewise, the Federal Court has regularly applied SZHTI and SZQRU: see, for example, ELR18 v Minister for Home Affairs [2019] FCA 1583 at [34] per Snaden J; Maere v Minister for Home Affairs [2018] FCA 1694 at [8] per Bromberg J; Babar v Minister for Immigration and Border Protection [2017] FCA 655 at [52] per Siopis J.
Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to grant an indulgence (such as an adjournment), waive a requirement or extend a relevant time limitation: and particularly so when considering the weight to be accorded to any delay by an applicant: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J.
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a) of the FCFCOA Act. That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Under r 10.01(3)(r) and (s) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court can make orders or directions in relation to hearing date and any other matter considered appropriate, and therefore has power to adjourn proceedings if it sees fit to do so. Those paragraphs are civil practice and procedure provisions: FCFCOA Act, s 190(4)(a).
In considering GPG18’s request for a further adjournment of the hearing the Court has a broad discretion to grant or not grant an adjournment: Myers v Myers [1969] WAR 19 at 21 per Jackson J; FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 at [15] per Judge Given. That broad discretion is exercisable having regard to the overarching civil practice and procedure provisions under s 190 of the FCFCOA Act.
Additionally, in AJR24 v Minister for Immigration and Multicultural Affairs,[2] Judge Ladhams considered an application for an adjournment made on the day of the hearing to obtain legal advice. Her Honour acknowledged that there would be an inefficient use of court resources if the hearing did not proceed, and she further acknowledged that there would be a lost opportunity for another matter to be heard. Her Honour took into account that matter as a significant consideration, in light of the significant backload of migration cases pending before the Court and indeed, Judge Lucev made a similar observation in GPG18.
[2] [2024] FedCFamC2G 1237 at [7].
In relation to the request that the Court issue a referral certificate and the registrar attempt to arrange the provision of pro bono legal assistance for the applicant, Part 12 of the GFL Rules provides the Court with a discretion to refer a party to a lawyer for legal assistance. In doing so, the Court may take into account a number of specified matters, including the means of the party, the capacity of the party to otherwise obtain legal assistance, the nature and complexity of the proceeding, and any other matters that the Court considers appropriate.
As was pointed out to me, rule 12.02 provides that a party is not entitled to apply to the Court for a referral under rule 12.01, and, in my view, the application is in that sense incompetent. But in any event, there is nothing evident in the facts and circumstances of the applicant, as he has explained his circumstances to me, or of the proceeding more generally, which warrant a referral under the rule 12.01 in the exercise of my discretion, and I decline to do so.
I am required to balance a number of considerations, including that whilst there is no right to legal representation in migration proceedings in this Court, the fact that the applicant does not have a lawyer is a factor that might be taken into account in exercising the discretion whether to adjourn the proceeding or not. But, I also need to take into account the objects and overarching purpose of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which counsel for the Minister has pointed out, and that includes the efficient use of judicial and administrative resources available within the Court and the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The applicant has said in his affidavit, or suggested, that an adjournment will not cause a delay that will irreparably or badly affect the respondent's case. Whilst that may or may not be so, in a sense, and as I have pointed out, the overarching purpose of the civil practice and procedure provisions must be considered. The broader case management principles that I have referred to, in my view, weigh against the exercise of the discretion.
As the Minister's counsel pointed out, the matter was filed on 4 October 2024. Procedural orders were made on 20 January 2025, which the applicant has not complied with, and nor has he given any evidence in his affidavit on 1 May explaining why. He has pleaded in the application two broad grounds of review, the first being an apprehended bias and, in a sense, procedural fairness allegation, and the second being a failure to properly consider the claim and evidence.
The parties were notified of the hearing date on 22 April. It appears that the applicant sought legal representation at around this time. It is not clear when he contacted Legal Aid WA, in the sense that he generally says it was sometime in April. But in any event, Legal Aid put him in touch with Circle Green CLC, which he contacted on 1 May 2025. That was nearly four weeks ago, and whilst there is no additional evidence as to what has happened since then, the applicant has made some submissions to me about it, and I accept that update of the facts as generally put to me, notwithstanding that it is not evidence given on oath.
But in any event, unlike AJR24, this is not a matter where there is certainty that a lawyer will be able to advise and represent the applicant. In my assessment, there is no certainty that if I grant an adjournment today to some unknown future listing date, the applicant will be able to obtain a lawyer at all. And so, as I said, in the circumstances, in my view, it is not appropriate, in the interests of the administration of justice, to further delay the matter, and I consider that it is in the interests of justice for the adjournment application to be refused and for the hearing to proceed today.
I am mindful that the applicant has not complied with procedural orders that were made by the registrar in January. I will provide him with an opportunity to expand upon and clarify the grounds of review if he would like, consistent with authorities to that effect.
However, for these reasons, I will dismiss the applicant’s interlocutory application filed on 2 May 2025.
APPLICATION FOR REVIEW
As I have said, the applicant applied for a protection visa on 30 January 2017. In the application, the applicant said that he left Zambia because he is a member of the main opposition political party, Movement for Democratic Change. He said that he had been a member of the party since 2006 and had participated in several party activities and forums. He said that his life has always been in minor danger, however, it has become very imminent - that he has been targeted by the ruling government. He said that his family, friends, employer and party members have all told him that the government functionaries, paramilitary and security services are looking for him. He said that he understands they have visited his mother's home and have checked the house looking for him. He also said that this has happened to some of his party members, and they have not seen them since their arrest. He said that he knows that he will be arrested when he gets to Zambia.
After he applied to the Tribunal for a review of the delegate’s decision on 2 July 2023, on 8 August 2024, the Tribunal invited the applicant to attend a hearing, which was then scheduled for 28 August. The invitation specified that the Tribunal had considered the material before it but was not able to make a favourable decision on that information alone.
On 15 August 2024, the applicant submitted a Response to Hearing form. He said that he would be relying on documents, which he generally described as "other evidence", and he did not request that the Tribunal receive oral evidence from any witness. The applicant attended the hearing on 28 August 2024.
As I have also said, the Tribunal decided to affirm the delegate’s decision on 2 September 2024. In doing so, the Tribunal correctly identified and summarised the applicant's claims. It identified that the issues in the application were whether the applicant satisfies the refugee criterion for protection under section 36(2)(a) of the Migration Act 1958 (Cth), or the complementary protection criterion under section 36(2)(aa) of the Act.
The Tribunal observed that, in presenting his case, the applicant sought to focus on the risk in Zambia to people who have profiles that are adverse to the government and other political parties or are engaged in activism such as human rights or gay rights. However, the Tribunal said that it was principally concerned with determining whether the applicant personally faces a real chance of harm.
To this end, the Tribunal did not consider that the applicant's claims and evidence were credible or believable, and, taken together, the concerns about credibility and reliability led the Tribunal to reject his evidence insofar as it related to his protection claims. Under its consideration of why it thought that the applicant's evidence was vague and lacking in detail, the Tribunal said that the applicant's evidence about his political activism, gay rights activism and human rights activism was vague and also lacked real detail. With reference to discussions between the Tribunal and the applicant at the hearing, the Tribunal considered that the applicant's evidence was so vague and lacking in detail and spontaneity that it did not accord with evidence it would have expected to hear from a person with any lived experience as an activist or political participant in any way whatsoever.
The Tribunal also considered that the applicant was not able to explain in any logical way how he was able to reconcile his support for the United Party for National Development when they were themselves opposed to gay rights, finding the inconsistency between the party position on gay rights and the applicant's own, difficult to reconcile. The Tribunal expected that the applicant would be able to explain how he was able to rationalise his support for two conflicting ideological positions.
Under the heading of ‘Unclear and potentially inconsistent evidence’, the Tribunal also had regard to the applicant's evidence about being a member of the UNPD since 2006. However, when he was asked about it, the applicant could not explain why he did not refer to the UNPD in his application for a visa in any express fashion. The Tribunal was not persuaded by the applicant's explanation that the Movement for Democratic Change referred to in the visa application was a descriptor of the role of the main opposition party, before the applicant then added that he did not know how that reference came about.
Having been the subject of a finding by the delegate and with reference to the ambiguity in the applicant's claims, the Tribunal noted that the applicant did not seek to address this aspect of his claims apart from when it was raised by the Tribunal with him. The Tribunal also had regard to the lack of clarity in the application about the party that he was a member of, particularly as it was central to his claims.
Under the subheading of ‘Plausibility’, the Tribunal found it difficult to reconcile the applicant's claims to fear harm from the party called Patriotic Front from his earlier written claims that were focused on the risk from government authorities, at that stage controlled by the party to which he was opposed. The Tribunal raised with the applicant its concerns that if Patriotic Front were targeting him, as he claimed they were, how he would have been able to enter and leave Zambia unhindered, the applicant then going on to claim that it was grassroots supporters who posed the biggest threats to him, not the authorities or Patriotic Front more generally.
The Tribunal was also concerned about the lack of corroborative evidence, raising with the applicant the same concerns that were found by the delegate about statements that were provided and said to be from his brother and from his friend Mr Mphanza, including that the content appeared to have been copied, pasted and also altered in a Word document that does not show the original format or source of the information.
The applicant told the Tribunal that he had taken screenshots of emails and put them together in a document. The Tribunal found that despite this, and within the context of the delegate's concerns, the applicant had not sought to have either person expand on their evidence and that he did not seek that the Tribunal take oral evidence from either of the witnesses.
The Tribunal found that it could not independently confirm the authenticity of the statements, nor could it test the evidence. In those circumstances, the Tribunal was not prepared to attach any weight to the statements but went on to add that, even if it was to attach weight to the statements, the evidence was vague and lacking in detail and was not convincing or persuasive. It would not otherwise be sufficiently corroborative to overcome the significant concerns that the Tribunal had about the applicant's evidence in the Tribunal's assessment.
The Tribunal also considered the applicant's delay in applying for protection, noting that he arrived in Australia in 2010 but did not apply for protection until 2017, including having returned to Zambia in 2013. The applicant said that he did not apply for protection after he returned from Zambia in 2013, and felt that it would not be safe to return at that time, because he had a student visa and he did not think it was necessary. He also said that he had some hope that the situation in Zambia would improve and that he would be able to return.
The Tribunal ultimately did not accept the applicant's reasons for delaying his application for a protection visa by exploring other visa options and found the delay was suggestive that he did not fear harm if he returned to Zambia, but rather wanted to stay in Australia for personal reasons. Further, the Tribunal noted that the applicant did not raise in his protection visa application having been a gay rights activist, with this aspect of his claim not being raised until 2023 in response to correspondence from the delegate. When asked about this at the hearing, the applicant did not provide any meaningful response, and the Tribunal found that the delay in raising this aspect of his claims undermined the overall credibility of the claims.
Accordingly, the Tribunal did not accept that the applicant was a member, low-key or otherwise, of the UNPD, or of any political party. It did not accept that he is, was or will be an activist for human rights, gay rights or corruption, or that he will be imputed with those profiles. The Tribunal did not accept that the applicant is a target for Patriotic Front, the government, security services or any of the authorities in Zambia. It did not accept that the applicant is or would be of adverse interest to grassroots supporters of parties that are opposed to the UNPD. The Tribunal also did not accept that the applicant would, if returned to Zambia, seek to involve himself in politics or to join the UNPD.
The Tribunal also took into account the evidence given in respect of Guntila Muleya. The applicant had provided additional evidence in a Microsoft Word document and some photographs, including screenshots of a group chat that he was part of and an extract of a news article about the abduction and murder of Mr Muleya. The Tribunal found that there is nothing in the text messages provided to support a conclusion that the applicant knew, or was associated with, Mr Muleya. Additionally, the Tribunal was not satisfied that the attack on Mr Muleya was politically motivated, pointing out that the applicant's own country information indicated that the motive was unclear, and the applicant was not able to point to any evidence to support a conclusion that it was politically motivated, other than a suspicion.
The Tribunal considered the applicant's claims individually and cumulatively and was not satisfied that he faces a real chance of harm for any reason now or in the reasonably foreseeable future if he were to return to Zambia. The Tribunal found that the applicant does not satisfy section 36(2)(a) of the Act.
The Tribunal went to consider the complementary protection criteria. It adopted the reasoning and rationale in the refugee assessment and, on the same basis, went on to find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Zambia, there is a real risk that the applicant will suffer significant harm. The Tribunal went on to find that the applicant is not a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
I have referred to the application for judicial review of the Tribunal's decision filed on 4 October 2024. There are two grounds of review pleaded - or effectively three, the third being a pleading in materiality - but, as I assess it, two grounds in substance. As I have touched on, the applicant was not represented, and I am mindful of the observations of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that the consequences of failing to particularise a ground will depend on the circumstances and it will rarely be appropriate to dismiss an appeal or review ground in a migration case for lack of particularisation where the applicant applies for relief arising out of an application for a protection visa and they are self-represented.
Ordinarily, it is appropriate for the person to be given an opportunity to explain orally the matters that they say go to the grounds of review. With these authorities in mind, I asked the applicant to expand on his grounds of review, including to add any additional ground, give any additional particulars or set out anything more that went to the errors that he was asking me to consider.
I also explained to the applicant the limitation on the Court's jurisdiction, that it is not permitted to conduct a merits review of the Tribunal's decision and that it does not have the power to grant the applicant a visa. I set out for the applicant some of the more commonly recognised and pleaded categories of jurisdictional error in this jurisdiction.
Notwithstanding ground 3 as it goes to materiality, I also explained to the applicant that, in order to be entitled to the relief that he is seeking, he must establish that the Tribunal's decision is affected by jurisdictional error, in that the Tribunal exceeded the limits of the decision-making authority that is conferred upon it by the statute when it made the decision, and that the error is material, in the sense that it could realistically have deprived him of a successful outcome.
The applicant had very little to add to what he set out in the application as originally filed and very little else to add by way of additional submissions. In the circumstances, I considered it would be beneficial for the Minister's lawyer to set out orally the Minister's submissions and to then invite the applicant to make any response. There was again very little that the applicant had to add to the position as set out in the application.
Notwithstanding that the applicant, in general terms, has the onus of establishing jurisdictional error, I have assessed the recognised categories of jurisdictional error that are apparent in the application, and in the Tribunal's decision more generally, and taken those into account in the context of the remarks that the applicant was able to make to me in a limited, oral sense, but also as they appear in the application.
I assess the grounds as follows.
Ground 1
Ground 1 goes to an apprehension of bias. Whilst bias is a recognised category of jurisdictional error, as the Minister has submitted, an allegation of bias must be distinctly made and clearly proved.
In Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs,[3] Judge Kendall said that in order to make out bias, an applicant must establish that:
(a) The Tribunal, in the case of actual bias was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented; or
(b) The Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case.
[3] [2024] FedCFamC2G 60 at [61] (citations omitted).
In alleging bias in this case, the applicant has particularised the Tribunal's findings at paragraph 36 of the decision record, and a portion of a sentence that states:
I would have expected to hear from a person with any lived experience as an activist or political participant in any way whatsoever.
In my opinion, that sentence needs to be contextualised, especially amidst an allegation of apprehended bias, including that it commences with a finding that:
The applicant's evidence about his political involvement, including his gay rights activism and human rights activism, was vague and lacking in detail and spontaneity.
That in itself is important context in which the Tribunal's remark extracted by the applicant was made. But further, that finding in itself followed a detailed analysis of why the Tribunal considered the applicant's evidence about those matters, and his activism generally, was vague and lacking in detail. The Tribunal provided examples of evidence given by the applicant, including in questions and discussions with the Tribunal as to why it made its findings that it did. The Tribunal's analysis went on from that point to continue that:
The applicant was unable to explain in any coherent way how he was able to reconcile his support for the UNPD when they were opposed to gay rights themselves -
as I have referred to.
The applicant's case is put in terms of an allegation of apprehended bias, but, in my view, there is nothing evident in the decision record that demonstrates that the Tribunal conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant's case.
I do not consider that the remark extracted by the applicant demonstrates that the Tribunal came to the hearing with an expectation of what the applicant might say, but was rather a remark as part of an overall assessment of the lack of details provided by the applicant, and where details were provided, an analysis of the vagueness of the evidence in a more general sense.
The ground also raises within it a denial of procedural fairness allegation on the basis that the Tribunal did not inform the applicant of this expectation, the expectation itself that is extracted in that sentence. In that sense, the Tribunal is not under any obligation to put its findings to an applicant in advance. Procedural fairness does not require the Tribunal to give an applicant a running commentary about its thought processes or its analysis of the evidence as it has been given and indeed, it has been held that doing so would in itself potentially run the risk of conveying an impression of some level of prejudgment.[4]
[4] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48].
It is also well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant, nor possess rebutting evidence before holding that a particular assertion is not made out. It is, as the Minister has submitted, a matter for the applicant to satisfy the Tribunal that they meet the criteria for a protection visa.
In my view, the Tribunal otherwise complied with its procedural fairness obligations that are set out in Division 4 of Part 7 of the Act.
I am not satisfied in the circumstances that the ground of apprehended bias is made out, nor a denial of procedural fairness, and I dismiss ground 1.
Ground 2
Ground 2 makes an allegation that the Tribunal failed to take into account and give weight to, as was required, statements of the applicant's brother and Mr Mphanza that I have already set out and referred to the Tribunal's analysis of.
The degree of weight to be given to evidence is a factual question for the decision maker to make alone.[5] In this instance and in relation to this evidence, the Tribunal's concerns were the same as had been raised by the delegate. In my view, the Tribunal's reasons disclose a rational basis upon which it took the view it did about these two statements.
[5] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
Being on notice of the delegate's concerns, the applicant did not take any steps to address those before the Tribunal. He did not seek to obtain additional statements from the witnesses or call them to give oral evidence at the hearing when he completed his response to the hearing invitation in the Tribunal.
The Tribunal was not under an obligation to inquire, and as I have said, it was the applicant's responsibility to satisfy the Tribunal of the matters that were required to meet the criteria for the grant of a visa.
In any event, and pausing on that for a moment, notwithstanding the concerns that it had, the Tribunal went on to conclude that even if it was to attach weight to the witness statements, it found them so vague and lacking in detail that it considered that the evidence would not be given any more than the slightest bit of weight, and it would not be sufficiently corroborative to overcome the significant issues that the Tribunal had already found about the applicant's own evidence.
In my view, in the circumstances, there is not any error made out in ground 2, and I dismiss this ground.
Ground 3
Ground 3, as I have said in my assessment, is not a separate and discrete ground, but rather, is an allegation of materiality in respect of grounds 1 and 2. As I have dismissed those grounds, the issue of materiality does not arise. And in my assessment, ground 3 does not otherwise assert any other independent basis upon which jurisdictional error is alleged.
In the circumstances, I will make orders dismissing the application that was filed on 4 October 2024.
COSTS
The Minister has made an application that the applicant pay the Minister's costs fix in the sum of $6,500 as the application has been dismissed.
The applicant has submitted that the quantum is too high for him to pay at the moment. I have explained to the applicant that issues of enforcement are different to the question of whether a cost order should be made at all and that impecuniosity is in itself not a barrier to a costs order being made.
I am satisfied that as the application has been dismissed, it is appropriate it for an order for costs to be made that the applicant pay the Minister's costs. I am also satisfied that the fixed sum sought of $6,500 is fair and reasonable, having regard to factors including the obvious amount of work that I have seen in preparing for and attending the hearing, and also that the amount sought is lower than the amount that is fixed in Sch 2, Pt 2, Div 1 of the GFL Rules, which provide that an amount of costs for proceedings concluded at a final hearing in this jurisdiction can be fixed in the amount of up to $8,371.30.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 19 June 2025
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