LLR24 v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1227
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227
File number(s): MLG 4361 of 2024 Judgment of: JUDGE JOHNS Date of judgment: 6 August 2025 Catchwords: MIGRATION – application for judicial review – decision of the ART to not grant Protection (Subclass 866) Visa – whether the Applicant was denied procedural fairness – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024 – – jurisdictional error established – application granted Legislation: Administrative Review Tribunal Act 2024 (Cth) ss 9, 9(a), 55, 106, 106(3), 106(3)(b)(ii), 106(3)(c)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 of Schedule 1
Migration Act 1958 (Cth) ss 5J(1)(a), 36(2)(a), (36)(2)(aa), 336P, 424A(1), 425, 425(1), 425(2), 425(2)(b), 476, 476(2)(a)
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) rule 13.13
Cases cited: Annetts v McCann (1990) 170 CLR 596
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 590-591
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47
LLR24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 524
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Minister for Immigration and Border Protection v SZMTA
(2019) 264 CLR 421
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Stead v State Govt Insurance Commission (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of hearing: 6 June 2025 Place: Melbourne Counsel for the Applicant: Andrew White (direct access) Counsel for the First Respondent: Andrew Yuile Solicitor for the First Respondent: Sparke Helmore Second Respondent Submitting appearance, save as to costs ORDERS
MLG 4361 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LLR24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
6 AUGUST 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision of the Administrative Review Tribunal made on 16 December 2024, and
2.A writ of mandamus issue, directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter 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 JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the Administrative Review Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (as the Minister was then called) (Delegate). The Delegate had refused to grant the Applicant a Protection (subclass 866) visa (Protection Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The application was filed within the 35-day time period prescribed under the Migration Act.
This matter was heard on 6 June 2025 and proceeded in person at the Court’s Melbourne Registry.
To obtain relief from this Court, the Applicant must show that the Tribunal fell into jurisdictional error. For the reasons that follow, this Court has determined that the Tribunal’s decision is affected by jurisdictional error.
The application for judicial review is, accordingly, granted.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
The Application for a Visa
The Applicant is a Malaysian national who arrived in Australia on 23 September 2017 as the holder of an Electronic Travel Authority (subclass 601) visa.[1]
[1] Court Book (CB) 15, 68, 71.
On 22 December 2017, the Applicant lodged an application for a protection visa.[2]
[2] CB 1-28.
In her visa application the Applicant claimed she was “Shi’a Muslim”[3] and is a follower of the Shiite religion. The Applicant’s claims can be summarised as follows:
(a)She left Malaysia because Shiites are banned and that any individual who practices the Shite religion will be jailed.[4]
(b)If she returns, she will be charged under Malaysian law with potential penalties of RM 3,000 and/or 3 years in imprisonment.[5] The Applicant referenced s 5(1) of the Societies Act 1996 which declares the Shiite “organisation” as an illegal “organisation”.[6]
(c)She has been threatened and been reported by her friends for being Shiite. She claimed two of her friends have been caught and didn’t feel safe.[7]
(d)There are no laws in Malysia to protect Shiite people, and she came to Australia because she did not want her family to get in trouble, nor find out about her beliefs.[8]
[3] CB 10.
[4] CB 24 [76].
[5] CB 24 [77].
[6] CB 26 [81].
[7] CB 25 [78].
[8] CB 25 [79].
The Court as presently constituted understands that the term “Shiite Muslim” is interchangeable with the term “Shi’a Muslim”. The Applicant used both phrases in her application for a visa. The Delegate used the phrase “Shi’a”. The Tribunal used both phrases. The term "Shi’a" is a shortened version of "Shi'at Ali,". It means "followers of Ali"; Ali being the cousin and brother-in-law of the Prophet Muhammad and to whom his followers believe the leadership of the Muslim community should have passed. In this decision the Court uses the phrase “Shi’a” for consistency, noting it means “the followers of Ali”.
Decision by the delegate
On 1 May 2018, the Delegate refused to grant the Applicant the protection visa.[9] The Delegate was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Migration Act.
[9] CB 71.
The Delegate made no positive finding that the Applicant was a Shiite Muslim, however, the decision of the Delegate appears to assume that this matter was not in contest. This is the better view of the Delegate’s decision because , as a Judicial Registrar of this Court observed[10],
1. “The delegate said that they were “satisfied that the applicant fears persecution for reasons of their religion” (CB 72). The delegate did not say that they were satisfied that the applicant fears persecution for reasons of what they claim to be their religion.
2. The delegate’s decision then proceeds to a detailed examination of country information concerning the treatment of Shiite Muslims in Malaysia. There would have been no need for the Tribunal to consider that issue, or that country information, if it were not satisfied that the applicant was in fact a Shiite Muslim (CB 72-73).
3. The delegate then goes on to express their conclusion on the refugee criterion for the visa, which was that the delegate was “not satisfied there is a real chance the applicant will face serious harm in Malaysia for reasons of their religion” (CB 73), with that conclusion informed by findings drawn from the aforementioned country information about how Shiite Muslims are treated in Malaysia rather than any finding to the effect that the applicant is not a Shiite Muslim.
4. The delegate’s analysis of whether the applicant met the complementary protection criterion for the visa was brief and largely adopted the delegate’s anterior conclusions in respect of the refugee criterion (CB 74). Importantly, it was the “country information discussed above [in the refugee criterion assessment]” that led the delegate to find that there was no real risk of the applicant facing significant harm on account of her religion (CB 74), rather than any finding to the effect that the applicant is not a Shiite Muslim.”
[10] LLR24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 524, [24].
The Delegate reviewed the country information and found that even though Muslims are required to follow Sunni doctrine and that all other Muslim doctrine is prohibited, Shiite Muslims live free from discrimination or violence on a day-to-day basis. The Delegate noted that some Shiites may face difficulties in practicing their religion, but nothing before the Delegate suggested it would amount to persecution.[11] Accordingly, the Delegate was not satisfied there was a real chance of the Applicant facing serious harm in Malaysia for reasons of her religion. The Delegate consequently concluded that the Applicant did not meet the refugee criterion provided for in s 36(2)(a) of the Migration Act.
[11] CB 72-73.
The Delegate was also not satisfied, based on the same country information that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there was a real risk the Applicant would suffer significant harm as outlined in s 36(2)(aa) of the Migration Act.[12]
[12] CB 74.
By operation of s 476(2)(a) of the Migration Act, this Court has no power to review the decision of the Delegate.
Application to the Tribunal
On 8 January 2021 the Applicant applied to the Administrative Appeals Tribunal (AAT) (as the Tribunal was then called) for review of the Delegate’s decision.[13] The AAT concluded that that application was not made outside the 28-day application period because the Applicant had not been properly notified of the Delegate’s decision.[14]
The time in which the application must be made is not clearly 'stated', as per DFQ17 and BMY18. As the notification is invalid, the prescribed period for seeking review has not commenced and the review application is not out of time.
[13] CB 82-88.
[14] CB 122.
On 11 January 2021 the AAT acknowledged receipt of the application.[15]
[15] CB 90-94.
On 11 February 2021 the Applicant enquired with the AAT about her application and whether it was still being considered by the AAT.[16] On 15 February 2021 the AAT responded and informed the Applicant that the validity of the application was being assessed.[17]
[16] CB 95.
[17] CB 96.
On 19 April 2021 the Applicant sought another update on her application.[18] The AAT responded on 26 April 2021 that due to a large number of applications it may take time (up to 3 years) for the AAT to assess her application.[19]
[18] CB 97.
[19] CB 98.
On 3 June 2021 the Applicant sought an update for the third time with the AAT.[20] On 4 June 2021 the AAT responded that the application was active and progressing in the queue.[21]
[20] CB 100.
[21] CB 101.
On 13 July 2021 the Applicant sought a fourth update, and explained she needed a job to support her livelihood and wanted to know if the application was still with the AAT.[22] The AAT replied on the same day with information on how long review processes may take and provided reasons for the longer time frames.[23]
[22] CB 103.
[23] CB 104.
On 4 January 2023 the Applicant sought a fifth update.[24] On 6 January 2023 the AAT responded that the application was active and progressing in the queue.[25]
[24] CB 105.
[25] CB 106.
On 5 August 2024 the AAT wrote to the Applicant that the application was being prepared to be given to an AAT Member. The AAT sought that the Applicant complete a pre-hearing information form via a link provided within 7 days.[26] The Applicant did not provide a response.
[26] CB 107.
On 14 October 2024 the AAT ceased to operate and its functions were taken over by the Tribunal. This is because, under the relevant legislated transitional provisions, matters not finalised by the AAT by that date were taken to be applications to the Tribunal.[27]
[27] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 of Schedule 1.
On 7 November 2024 the Tribunal sent the Applicant a “Notice of Hearing” (to be held on 29 November 2024 in person). Relevantly, the Tribunal wrote,[28]
“Please read and complete the enclosed “Response to hearing notice” form and return it to the ART….”
“Please use the “Response to hearing notice” form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider.” …
“Please provide all documents you intend to rely on to support your case by 22 November 2024 if you have not already done so. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.” … (emphasis added)
“What will happen if you don’t appear
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”
“What if I want the Tribunal to make a decision without holding a hearing
You can use the enclosed “Response to hearing notice” form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.
Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.”
[28] CB 109-111
The Applicant completed the “Response to hearing notice” form. [29] She returned it to the Tribunal on 15 November 2024. The Applicant marked the box next to the statement,
“No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing.”
[29] CB 117-120.
On 19 November 2024, the Tribunal wrote to the Applicant confirming that she was still requesting a decision on the papers.[30] The Applicant did not respond. The Tribunal also called the Applicant on the same day with no response.[31]
[30] CB 121.
[31] CB 122.
On 22 and 28 November 2024 the Tribunal sent SMS reminders about the hearing which was to take place on 29 November 2024.[32]
[32] CB 122-123.
On 29 November 2024 the Applicant did not attend the hearing.[33]
[33] CB 124.
On 16 December 2024 the Tribunal affirmed the Delegate’s decision not to grant the Applicant the protection visa.[34] The Applicant was notified the day after on the 17 December 2024.[35]
[34] CB 129.
[35] CB 128.
TRIBUNAL’S DECISION
The Tribunal’s decision is 11 pages long and spans 55 paragraphs.
The Tribunal:
(a)set out the chronology of events leading up to it making a decision.[36] It then stated,
10. For the reasons set out below, pursuant to ss 106(1) and 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), and after considering all the documents and things given to the Tribunal, the Tribunal has decided to make a decision in relation to the application for review without holding a hearing.
(b)set out the evidence before the Department, the claims for protection and the Delegate’s reasons for decision (noting that the Delegate made their decision based on the country information).[37]
(c)noted that the Applicant had not provided any evidence in support of her claims.[38]
(d)explained the powers relating making a decision in the proceeding without holding a hearing and its satisfaction about the elements of s.106 of the Act.[39] The Court returns to the Tribunal’s assessment of its satisfaction below.
(e)set out the criteria for a protection visa, including mandatory considerations.[40]
[36] CB 130 – 131.
[37] CB 131 – 132.
[38] CB 132 [23].
[39] CB 132 – 134, [24]-[32].
[40] CB 134 – 135.
At paragraph 39 of the Tribunal’s Decision, it commences with its reasons and findings. The Tribunal stated,
42. The applicant is a 31-year-old Malaysian woman who claims that she is a Shiite Muslim. She claims that friends of her have threatened her and tried to make reports when they found out that she is a Shiite, and that two of her friends have been caught. She claims that she has not told her family about her faith because of their religious beliefs. The applicant has not claimed any past harm in Malaysia on the basis of her religion but claims that if she returns to Malaysia her religious freedom will be restricted, and she will face being imprisoned or fined because of her religion.
43. The Tribunal finds that the applicant's written claims lack detail, and she has provided no supporting evidence of these claims. The applicant has provided no evidence in support other claim that she practised Shia Islam in Malaysia, nor any evidence that in the approximately seven years since arriving in Australia, she has continued to observe and practise the Shia Islam faith. The applicant's claims regarding the threats she received from friends who found out that she is a Shiite Muslim are also of a general and vague nature. She claims that 'they tried to make a report' but does not specify when this happened or to whom such a report was made, nor whether any action followed from such a report. The applicant also claims that two of her friends were 'caught' but does not specify when this happened or what actions or penalties they faced. The applicant has also not provided any details as to how she practises her Shiite Muslim faith, nor specified any activities which would bring her to the attention of the authorities or non-state actors.
….
46. For these reasons, in particular the limited and general evidence before the Tribunal, the Tribunal does not accept that the applicant is a Shiite Muslim in Malaysia as claimed, nor that she was threatened by anyone because she is a Shiite Muslim or perceived to be a Shiite Muslim. The Tribunal also finds that there is no evidence that the applicant has practised the Shiite Muslim faith in Australia or would seek to practise this faith on return to Malaysia. (emphasis added)
Based on the finding that the Applicant was not Shi’a Muslim, the Tribunal was not satisfied that the Applicant faced a real chance of harm because of her religion or any other reason in s 5J(1)(a) of the Migration Act, nor was the Tribunal satisfied that there was a real risk of significant harm. Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the protection visa.
The Court observes, and it is common ground between the parties, that the Tribunal decided the matter on a different basis to the Delegate. That is:
(a)the Tribunal was not satisfied the Applicant was a Shi’a Muslim (with the consequence that she was not at risk of significant harm).
(b)the Delegate (while making no positive finding that the Applicant was Shi’a Muslim) was not satisfied there was a risk of significant harm to Shi’a Muslims because of the country information.
PROCEEDINGS IN THIS COURT
The Applicant filed an application for judicial review on 20 December 2024. The application was brought pursuant to s 476 of the Migration Act.
On 13 January 2025 the First Respondent (Minister) filed a response seeking that the application be dismissed pursuant to r.13.13 (no prospects of success).[41] The Minister’s application was supported by submissions filed on 21 March 2025. Also on 21 March 2025, the Minister filed a Court Book (CB).
[41] Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth).
The summary dismissal hearing before a Judicial Registrar of this Court occurred on 10 April 2025. Prior to the hearing the Judicial Registrar invited the parties to address the following issues:
(a)“Was it procedurally unfair (in the manner considered in such cases as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[42] (SZBEL)) or legally unreasonable (in the manner considered in cases such as Minister for Immigration and Border Protection v CRY16[43] (CRY16)) for the Tribunal not to explicitly ask the Applicant to address it on the issue of whether she genuinely was a Shiite Muslim?
(b)Was it legally reasonable for the Tribunal to proceed to make a decision on the review without conducting a hearing, noting that its reasons for proceeding in that manner were informed by its conclusion that issues for determination in the proceeding could be adequately determined in the absence of a hearing.”
[42] [2006] HCA 63; (2006) 228 CLR 152.
[43] [2017] FCAFC 210; (2017) 253 FCR 475.
For the reasons set out in their decision dated 14 April 2025 the Judicial Registrar dismissed the Minister’s application for summary dismissal. The Judicial Registrar was not satisfied “that the applicant does not have reasonable prospects of successfully prosecuting her application for judicial review.” The matter was then programmed for substantive hearing.
On 5 May 2025, the Applicant filed an amended application (Amended Application) and an Outline of Submissions.
The Applicant seeks orders that the decision of the Tribunal be quashed and that it be remitted to be determined according to law.
The Amended Application lists two grounds of alleged error. The Applicant’s grounds of review, are as follows (without alteration):
1.The Tribunal denied the Applicant procedural fairness by failing to ensure that the Applicant was aware of and in a position to make submissions and adduce evidence in relation to a critical issue in the proceeding, namely whether the Applicant was Shi’a Muslim as claimed.
2.Further or alternatively, the Tribunal’s exercise of power under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) miscarried because:
a.The Applicant’s request for a decision on the papers was ineffective for the purposes of s 106(3)(b)(ii) insofar as the Tribunal made its decision on an issue not previously notified to the Applicant.
b.Further or alternatively, the Tribunal misconstrued and/or misapplied the phrase “the issues for determination in the proceeding” in s 106(3)(c) in a way that affected the exercise of power.
c.Further or alternatively, the Tribunal’s exercise of power under s 106(1) was legally unreasonable in that no decision maker acting reasonably could have reached the same decision.
On 20 May 2025 the Minister filed written submissions.
On 26 May 2025, the hearing was transferred to the docked of the Court as presently constituted and listed for final hearing on 6 June 2025.
Therefore, the materials before the Court are as follows:
(1)the originating application for judicial review filed 20 December 2024,
(2)a Court Book numbering 140 pages filed 21 March 2025 (marked as Exhibit R1),
(3)the amended application for judicial review filed 5 May 2025,
(4)an outline of submissions filed by the Applicant filed 5 May 2025, and
(5)an outline of written submissions filed by the Minister on 20 May 2025.
The judicial review hearing
At the hearing, the Applicant appeared before the Court represented by Andrew White of counsel (direct access). The Minister was represented by Andrew Yuile of counsel and instructed by Sparke Helmore.
The hearing commenced with confirmation with the parties that all the required documents were before the Court.
The Applicant proceeded to make submissions in support of the grounds set out in their amended application and outline of written submissions filed 5 May 2025. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 20 May 2025.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[44] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48.Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49.Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[45]
50.“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[46]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[47] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[48] Different kinds of error may overlap.[49] The categories are not closed.[50] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[51]
52.In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[52] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[53] It has been described as an “undemanding” standard.[54]
[44] [2025] FedCFamC2G 620
[45] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[46] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[47] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[48] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[49] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[50] LPDT at [3].
[51] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[52] LPDT at [7].
[53] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[54] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[55]
CONSIDERATION
[55] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40]
The SZBEL principles
Both parties addressed the Court on the principles arising out of SZBEL.
In SZBEL the Applicant sought a protection visa. It was denied by both the Delegate and the Tribunal. However, the Tribunal's reasons were different to those of the Delegate. A question arose whether the Applicant had been denied procedural fairness. The High Court held that (without citations),
29 No submission was made on behalf of either the appellant or the Minister
that the existence or content of the obligation to accord procedural fairness was
directly affected by any provision of the Act. Rather, the argument proceeded,
for the most part, by reference to what had been said by the Full Court of the
Federal Court in Alphaone. The Full Court (Northrop, Miles and French JJ)
said,"Where the exercise of a statutory power attracts the requirement
for procedural fairness, a person likely to be affected by the decision is
entitled to put information and submissions to the decision-maker in
support of an outcome that supports his or her interests. That entitlement
extends to the right to rebut or qualify by further information, and
comment by way of submission, upon adverse material from other sources
which is put before the decision-maker. It also extends to require the
decision-maker to identify to the person affected any issue critical to the
decision which is not apparent from its nature or the terms of the statute
under which it is made. The decision-maker is required to advise of any
adverse conclusion which has been arrived at which would not obviously
be open on the known material. Subject to these qualifications however, a
decision-maker is not obliged to expose his or her mental processes or
provisional views to comment before making the decision in question."
(emphasis added)….
32 In Alphaone the Full Court rightly said:
"It is a fundamental principle that where the rules of procedural
fairness apply to a decision-making process, the party liable to be directly
affected by the decision is to be given the opportunity of being heard.
That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the
nature and content of adverse material." (emphasis added)33 The Act defines the nature of the opportunity to be heard that is to be
given to an applicant for review by the Tribunal. The applicant is to be invited
"to give evidence and present arguments relating to the issues arising in relation
to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.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 exercise21 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.….
43 The delegate had not based his decision on either of these aspects of the
matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.44 The Tribunal did not accord the appellant procedural fairness. The
Tribunal did not give the appellant a sufficient opportunity to give evidence, or
make submissions, about what turned out to be two of the three determinative
issues arising in relation to the decision under review.The procedural fairness requirements arising out of SZBEL include that,
(a)An applicant is entitled to put information:
(i)in support of their interests, and
(ii)to rebut adverse material.
(b)The “issues arising in relation to the decision under review” have central importance.
(c)It is not enough to identify the issues broadly as (for example) an “entitlement to a protection visa”. Issues are to be articulated with some particularity.
(d)A Tribunal must advise of any potential adverse conclusions.
(e)Although the Tribunal is not confined to the issues before the Delegate, the issues in the Delegate’s decision are the starting point for understanding the issues to be determined. This is so because the legislation tasks the Tribunal with a “review” function.
(f)If the Tribunal has not identified new issues, the applicant is entitled to assume the issues that were before the Delegate are the relevant issues to be determined.
Absent the above an applicant will have been denied the opportunity to be heard.
Why SZBEL has an immediate apparent relevance in the present matter is clear. In that matter the Tribunal did not give SZBEL sufficient opportunity to give evidence or make submissions about what turned out to be the decisive issues for the Tribunal. That is what said against the Tribunal in the present matter, i.e. the Tribunal did not provide LLR24 with an opportunity to give evidence or make submissions about her Shi’a Muslim faith.
The “simple example”, used by the High Court further demonstrates why SZBEL is seemingly applicable,
Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.[56]
[56] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 152, para 37.
In the present matter (the better view is that) the Delegate found that the Applicant was Shi’a Muslim. The Tribunal provided no warning to the Applicant to the contrary. The Tribunal then went on to find that it did “not accept that the Applicant is a [Shi’a] Muslim in Malaysia as claimed…”[57]
[57] CB 136.
However, SZBEL was decided when s 425(1) the Migration Act obliged the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". By the time the present matter was decided by the Tribunal s 425 had been repealed. At the time SZBEL was decided s 424A(1) of the Migration Act required the Tribunal to give an applicant particulars of information that might lead the Tribunal to affirm the decision of the Delegate. If, and if so, how SZBEL operates post the October 2024 legislative changes is central to the present matter.
Relevant legislation
Section 336P of the Migration Act provides that (subject to some exceptions) the Administrative Review Tribunal Act 2024 (Cth) (ART Act) applies in relation to a review by the ART of reviewable migration decisions and reviewable protection decisions.
Section 9 of the ART Act provides that,
Objective
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; ….
Section 55 of the ART Act provides that,
Right to present case
General rule
(1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:
(a) present the party's case; and
….
(c) make submissions and adduce evidence.
Relevantly, s 106 of the ART Act provides for circumstances in which the Tribunal may reach a decision without hearing,
Tribunal may make decision without hearing in certain circumstances
(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.
….
(3) This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and
(b) either:
….
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The submissions of the Minister helpfully identified points of distinction between the Migration Act and the ART Act as follows,
10.1First, s 55 of the ART Act does not impose on the Tribunal a requirement to afford a hearing to an applicant. Instead, s 55 requires that the Tribunal give the applicant a reasonable opportunity to present their case, make submissions and present evidence. Practically, however, the “general position” is that a hearing is afforded: Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47, [63] (speaking about ss 34J and 39 of the AAT Act).
10.2 In contrast, s 425(1) of the Migration Act expressly stated that the Tribunal had to invite the applicant to a hearing. Section 425(2) provided express occasions where the Tribunal was relieved from that obligation. Where any relief events from s 425(2) were satisfied, “the entitlement to appear before the Tribunal established under s 425(1) either does not come into existence or ceases to exist and the Tribunal’s duty to invite the applicant to appear before it is discharged”: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572, [58].
10.3 Secondly, s 55 of the ART Act does not make any reference to “the issues in the case”, as s 425(1) did previously. This is relevant in part because of the importance the High Court placed on that wording in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [33]-[34]. Under s 55, there is no like express obligation to allow an applicant to appear to present arguments and evidence about the “issues arising in relation to the decision under review”. Rather, the obligation is to allow the applicant to “present their case”.
10.4 Thirdly, s 425(2)(b) of the Migration Act operated differently to ss 106(1) and (3) of the ART Act. As above, s 425(2) of the Migration Act operated, where it was met, to disapply s 425(1). Section 106(3) does not operate in the same way. Rather, where the prerequisites for s 106(3) are met, s 106(1) confers on the Tribunal a discretion to proceed to make a decision without holding a hearing.
10.5 Fourthly, although s 425(2)(b) of the Migration Act and ss 106(1) and (3) of the ART Act operate differently, it remains the case that, where an applicant consents to forgo a hearing, they agree voluntarily to give up, or to waive, this procedural fairness step.
The Grounds
Ground 1
1. The Tribunal denied the Applicant procedural fairness by failing to ensure that the Applicant was aware of and in a position to make submissions and adduce evidence in relation to a critical issue in the proceeding, namely whether the Applicant was Shi’a Muslim as claimed.
The Applicant contended that the SZBEL principles continue to apply post legislative change,
19. In the absence of any provision expressly limiting them,[58] common law procedural fairness principles regulate the exercise of any statutory power conferred on a public official to destroy, defeat or prejudice a person's rights.[59] It should follow that common law procedural fairness principles now apply to the procedures of the Tribunal concerning the notification and hearing of migration reviews. The ART Act itself provides that the Tribunal must pursue the objective of providing an independent mechanism of review that is “fair and just”.[60] It also expressly preserves the fundamental core of common law procedural fairness.
[59] Annetts at 598; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) at [11].
[60] ART Act, s 9(a).
The Minister contended that “the Court should not consider the cases decided prior to the introduction of the ART Act without an eye to the provisions that were relevant in those cases, and the differences with the current scheme. The current statutory text is different. There must be a principled basis to carry forward the historical holdings.” Further, that while “section 55 should be understood as a statutory embodiment of certain procedural fairness obligations, including those explained Alphaone … and affirmed in SZBEL,” the obligation arising from section 55 “is done, at least in the first instance, by an invitation itself.” The Minister contended that the “Tribunal can meet procedural fairness obligations – including SZBEL type obligations – at a hearing. It is not required to do it in advance.” That is why, the Minister contended, the Applicant’s request for the Tribunal to determine the matter without a hearing is important.
The Court as presently constituted sees nothing in the enactment of the ART Act that would suggest that procedural fairness principles like those in SZBEL do not apply to the Tribunal. It matters not that section 55 of the ART Act does not refer to “issues”. The reference in the statute to “the party’s case” is sufficient to call up the procedural fairness obligation.
Further, a Tribunal that has the objective of being “fair and just” must be one that also applies the “fundamental principle” articulated in Alphaone. The “reasonable opportunity” to “present the party’s case” and “make submissions” in section 55 of the ART Act means that a party must know the case against them. An applicant is entitled to know and be afforded an opportunity to respond to the issues that will be considered by the Tribunal, especially those that are adverse to their interests. There is, in the Court’s view, a continuing obligation, post the legislative changes, to ensure an applicant is aware of and in a position to respond to issues arising in relation their “case”.
Further still, it is not sufficient that their “case” be considered at the general or high level of an entitlement to a protection visa. A degree of particularity is required. It must be specific enough to give meaning to the opportunity to reasonably present their case. In the words of Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA[61],
“An applicant is entitled to know what is in play. Otherwise, it is difficult to see how a Tribunal could be said to be pursuing an objective of providing a mechanism of review that is just and fair.”
[61] (2019) 264 CLR 421.
The Court as presently constituted rejects the Minister’s submission that “the Applicant’s religion was not a new dispositive issue.” For the reasons set out above, the better reading of the Delegate’s decision is that it was accepted by the Delegate that the Applicant was Shi’a Muslim. That made any question about the Applicant’s faith a new issue before the Tribunal.
In the present matter the Tribunal invited the Applicant to a hearing. In doing so it advised her that, the “decision made by the Department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances…”. By this invitation the Applicant was entitled to assume that she was being invited to “present [her] case” (s.55(1)(a) of the ART Act) about the matters determined by the Department/Delegate, unless otherwise put on notice about other matters.
To the extent that the Minister contends that the Applicant validly requested that the Tribunal proceed without a hearing and thereby waived her right to procedural fairness, any such request or election on behalf of the Applicant was made not with the knowledge that the Tribunal had a new dispositive issue to consider. In that respect the Applicant’s request was vitiated by a lack of knowledge. It was not informed consent on her behalf. Her lack of knowledge was caused by the Tribunal. It invited her to consider only “the matters determined by the Department.”
The issue of whether the Applicant was Shi’a Muslim was a significant matter for the Tribunal. It was central to the Tribunal’s decision that led it to affirm the decision of the Delegate (albeit on a different basis). LLR24 was never put on notice that the fact of her faith was in issue.
The principle is that “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” they need to address when presenting their case.
The failure by the Tribunal to alert LLR24 that it was considering whether she was even in fact a Shi’a Muslim, meant that she was not in a position to respond to that issue. She was denied a reasonable opportunity to present her case. In this regard the Tribunal denied the Applicant procedural fairness. Ground one is made out.
Ground 2
2. Further or alternatively, the Tribunal’s exercise of power under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) miscarried because:
a. The Applicant’s request for a decision on the papers was ineffective for the purposes of s 106(3)(b)(ii) insofar as the Tribunal made its decision on an issue not previously notified to the Applicant.
b. Further or alternatively, the Tribunal misconstrued and/or misapplied the phrase “the issues for determination in the proceeding” in s 106(3)(c) in a way that affected the exercise of power.
c. Further or alternatively, the Tribunal’s exercise of power under s 106(1) was legally unreasonable in that no decision maker acting reasonably could have reached the same decision.
The Tribunal may make a decision to proceed without a hearing in particular circumstances. However, it is a matter of discretion, and the exercise of that power must be done reasonably. Only s106(3) is relevant. There can be no complaint about s 106(3)(a) applying. s106(3)(b)(i) is not relevant because the decision being made by the Tribunal was not “wholly in favour of the applicant.” ss 106(3)(b)(ii) and 106(3)(c) demand closer consideration.
In the present matter the Tribunal satisfied itself that it was entitled to proceed without a hearing because of an application of s106.
10. For the reasons set out below, pursuant to ss 106(1) and 106(3) of the Administrative Review Tribunal Act 2024 (CAN (ART Act), and after considering all the documents and things given to the Tribunal, the Tribunal has decided to make a decision in relation to the application for review without holding a hearing.
….
24. Under s 106(3) of the ART Act the Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.
25. Under s 106(3) of the ART Act where the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding, the Tribunal may make its decision in the proceeding without holding a hearing where:
a. Either:
i. The decision is wholly in favour of the applicant; or
ii. The applicant requests the Tribunal to make its decision without holding the hearing of the proceedings; and
b. It appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
26. In this case, the Minister for Home Affairs is a non-participating party to the proceeding (s 348A of the Act). The Tribunal is satisfied that the only parties to the proceeding are the applicant and a non-participating party, and accordingly s 106(3) is met.
27. The Tribunal is also satisfied that the applicant has requested that the Tribunal make its decision without holding the hearing of the proceeding. The Tribunal notes that the hearing invitation which was sent to the applicant on 7 November 2024 explained [certain matters].
28. On 15 November 2024, the applicant provided a completed Response to hearing invitation form in which she indicated that she would not be participating in the hearing, and she requested that the Tribunal make a decision on the papers without holding a hearing. The Tribunal sent an email on 19 November 2024 which acknowledged the applicant's request that the Tribunal make a decision on the papers without holding a hearing, and as noted above, the applicant did not attend the scheduled hearing.
29. The circumstances in which the Tribunal may make a decision without a hearing are set out in section 106 of the ART Act. They include where an applicant requests the Tribunal to make a decision without holding a hearing of the proceedings: s 106(3) ART Act. The Tribunal is satisfied in the current case, based on the applicant's response to the hearing invitation, that she requested the Tribunal make its decision without holding a hearing. While the applicant used a forward slash / symbol to mark the box which indicates that she did not intend to attend the hearing, rather than a tick or a cross, the Tribunal notes that she used the same symbol to mark all of the other boxes of information that she selected on the form. I find that there is no ambiguity in her response and also find that the applicant did not respond to the Tribunal's email of 19 November 2024 which acknowledged her request that the Tribunal make a decision without holding a hearing. The Tribunal is satisfied the applicant's written response to the hearing invitation form can be properly construed as a request to make a decision without holding a hearing of a proceeding as per s 106(3)(b)(ii) of the ART Act.
30. The Tribunal has also considered whether it appears that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, as required by s 106(3)(c) of the ART Act.
Ground 2 (a)
The Applicant did “not dispute that the mark in the box was sufficient to convey a request from the Applicant [for the Tribunal to make a decision without holding a hearing]. However, [the Applicant contended] the nature of the request was defined by the Notice of Hearing to which it was responsive.”
The Minister said that “while the Tribunal did have to afford procedural fairness, it could utilise a hearing for that purpose. But it was also open to the Applicant, through a request pursuant to s106(3)(b)(ii) to waive this procedural fairness rights arising at a hearing. The Applicant’s choice in this was voluntary.”
Part of the problem with the Minister’s submission is that in order for a choice to be voluntary it needs to be properly informed. That is not what occurred in this matter. The Tribunal directed the Applicant’s attention only to the “decision made by the Department [that] set out the reasons for the decision,” and informed the Applicant that they “should have regard to these” reasons. At no time was the Applicant put on notice that other reasons might be the subject of the Tribunal’s consideration. It would be a simple step to take. It would be the perfect answer to a complaint about procedural fairness. That is not what the Tribunal did. Consequently, the Applicant was “in the dark” when she requested that the Tribunal decide the matter without a hearing.
For the reasons set out above in relation to ground one, the Court agrees with the submissions of the Applicant. Her election to request that the Tribunal decide the matter without conducting a hearing can only properly be understood in the context of what was explained to her in the invitation. It is not sufficient for the Minister to seek to explain away the procedural fairness point by claiming that “the letter was a standard letter.” That was the only correspondence the Applicant received. She was entitled to rely upon it. If the “standard letter” does not afford procedural fairness, the Tribunal should change the “standard letter”. It would not be difficult to do so.
Ground 2(b)
The Applicant contended that “the Tribunal’s identification of the relevant issues was impermissibly narrow and inconsistent with the meaning to be ascribed to the phrase ’issues for determination’ in s 106(3)(c).”
The Minister advanced a submission that “there is a significant difference between the ’issues arising in relation to the decision under review’ (s 425) and the ’issues for determination in the proceedings’ (s106(3)(c)).” It was contended that “the wording in s 425 more naturally directs attention to the decision of the Delegate (the decision under review) and issues arising from it. … some greater specificity would be required to identify those issues for the purposes of the review.”
The Court, as presently constituted, is not satisfied that the legislative change had the intended effect of relieving the Tribunal of the obligation to not narrowly identify the matters to be determined. The Minister has not pointed to a source for an express intention to do so.
Consequently, the Court does not consider that the Tribunal identified the issues for determination with sufficient particularity. Referring as it did to high level notions of “a well-founded fear of persecution for one or more of the five reasons set out in s 5J(1)(a) of the Act” and “there is a real risk that [they] will suffer harm” offends against the principles in SZBEL. The issues for determination in the present matter were narrower. The Tribunal focussed on whether the Applicant was Shi’a Muslim. That was not a matter the Delegate questioned. In those circumstances that was not a matter that the Tribunal could “adequately [determine] in the absence of the” Applicant. This is particular so when the Applicant had not been put on notice that her faith was a point of contention. In this regard the Tribunal misapplied the criterion in s106(3)(c).
Ground 2 (c)
It is beyond question that the Tribunal’s exercise of its powers under s106(1) is subject to the implied requirement that it be exercised reasonably in the Li[62] sense. The principles that flow from Li are well known. They include that there is a high bar for unreasonableness.
[62] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
The Applicant contended that the Tribunal’s decision to determine LLR24’s matter without a hearing was legally unreasonable in the Li sense. The Minister rejected that contention.
The Court, as presently constituted, is not satisfied that a Tribunal acting reasonably would have decided to determine LLR24’s protection visa application against her based on a matter that was not put to her (or that she was not given notice of). There was a lack of evident and intelligible justification for what the Tribunal did in the present matter and how it decided to proceed. Having regard to the objects of the ART Act, no Tribunal acting reasonably would have considered it fair to do so.
For these reasons ground two is made out.
MATERIALITY
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[63] it was held that,
What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision.[64] Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind.[65] In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome.[66] Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker:[67] the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
[63] [2024] HCA 12, para 15.
[64] See, eg, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136.
[65] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342-343 [58]-[60]; Nathanson (2022) 276 CLR 80 at 103 [33], 110-111 [55]-[56], 113 [63], 116-117 [76].
[66] Stead v State Govt Insurance Commission (1986) 161 CLR 141 at 145-146. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122 [104]; WZARH (2015) 256 CLR 326 at 343 [60].
[67] SZMTA (2019) 264 CLR 421 at 460 [95]; MZAPC (2021) 273 CLR 506 at 528 [51].
This case too affords an example. In this matter the Court readily infers that, if fairly put on notice about the issue of her faith, the Applicant might have addressed it by way of further evidence about being Shi’a Muslim, and that the Tribunal would have approached the Applicant's further evidence with an open mind. The loss of that opportunity in the present matter deprived the LLR24 of the possibility of a successful outcome. It was material.
DISPOSITION
The Court as presently constituted has found that both of the Applicant’s grounds establish error in the Tribunal’s decision.
The Court will allow the application for judicial review, and will issue writs of:
(a)certiorari to quash the Tribunal’s decision of 16 December 2024, and
(b)mandamus to require the Tribunal to reconsider the application for review of the Delegate’s decision.
The Court will hear the parties as to costs if required.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 6 August 2025
[58] Common law procedural fairness principles may only be excluded by ‘plain words of necessary intendment’: Annetts v McCann (1990) 170 CLR 596 (Mason CJ, Deane and McHugh JJ) at 598.
5
27
4