ATF19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 140

1. Mr ATF19, the applicant in these proceedings, has approached the Court seeking review of a decision made by the Administrative Appeals Tribunal. The Tribunal decided to affirm an earlier decision made by a delegate of the minister (the first respondent) to refuse Mr ATF19's application for a protection visa.
2. In his application for review, Mr ATF19 sets out three grounds of review in which he contends the Tribunal's decision is affected by material jurisdictional error. While the decision features some quirks that I will address below, I am not satisfied the grounds of review have been made out. I am not satisfied there is any other material jurisdictional error apparent in the Tribunal's reasons. That means the application for judicial review must be dismissed. I explain my reasons for that conclusion below.

1. The applicant is a citizen of Jordan. He arrived in this country in 2013 on a visitors' visa. He subsequently applied for a student visa but was unsuccessful. He then applied for a Protection (Class XA) (Subclass 866) visa on 28 May 2015. The application form relating to that visa is reproduced in exhibit one (the court book) at pp 1ff.
2. The application form records information provided by the applicant including details about other countries which had previously denied him a visitors' visa before coming to Australia. (This became an issue in the Tribunal because the applicant had not disclosed this information as he was required to do when he applied for the visitors' visa which enabled him to enter Australia in 2013.) The form also mentions the applicant's history of travelling to other countries including Cyprus, Thailand and Turkey while he was still living in Jordan. The claims which formed the basis of the application for protection were outlined in a statement attached to the application documents: see p 36 of the court book. Mr ATF19 explained he feared persecution because members of his family were involved with the security services and other government operations. He said:

In Jordan, anyone working with the intelligence department are despised as spies, distrusted and treated like enemy. They are constantly targeted for the work they do. As a result, me and my family have also come under threat and we fear for our safety and life.

1. In the same statement, the applicant went on to say:

Despite not being involved with the intelligence personally, people in Jordan hold the same hatred towards me as they do for actual officials. Any link to the military/intelligence is a motivation for them to kill and for me, I was not even sure if I would live another day. I have been trying to escape Jordan since 2007. Prior to Australia I had unsuccessfully applied for visitor visas to Ireland, Canada and USA. However, with the increasing threats and the deteriorating situation in Jordan and neighbouring Syria, the threat to my life became severe. When I was granted a visa to Australia, I escaped as soon as I could - within the space of only 4-5 days - because I could no longer afford to stay and risk my wellbeing.

I face persecution in my country due to the nature of the work that my family members undertake. Whilst they risk their lives in the public interest, the same is not reciprocated towards them by the people who see us as enemies and traitors. It has reached the stage where it is no longer safe for me to return. I am unjustly targeted for a reason that I have no control over. I fear for my safety and humbly request that the department consider my situation with empathy and grant me a protection visa.

1. Mr ATF19 attended an interview with the delegate on 18 February 2016. On 23 February 2016, the applicant was notified the visa had been refused. The notification and statement of reasons are reproduced in the court book at pp 78ff.

1. Mr ATF19 lodged an application for review in the Administrative Appeals Tribunal on 22 March 2016. The Tribunal's hearing was conducted on 16 January 2019. The applicant attended and gave evidence with the assistance of an interpreter. The Tribunal gave the applicant an opportunity to provide some additional information after the hearing but he did not provide the information requested. The Tribunal's decision affirming the decision of the delegate is dated 30 January 2019. The decision and statement of reasons are reproduced in the court book at pp 118ff.
2. The Tribunal's statement of reasons commenced with a conventional exposition of the criteria governing applications for a protection visa set out in s 36 of the Migration Act 1958 (Cth) and sch 2 to the Migration Regulations 1994 (Cth). The Tribunal then recounted the evidence before it and the evidence that was given at the hearing before making its findings and considering the claims with reference to the criteria. The Tribunal's findings were summarised at [30] of the statement of reasons. The Tribunal doubted the veracity of the applicant's claims in light of his:
   • willingness to provide false information in the application for a visitors' visa. The Tribunal did not accept the applicant's claim that the information had been provided by a travel agent without the applicant's knowledge;
   • inability to provide evidence to support his claims that (a) his brother or other relatives were involved in the security services; (b) the family of officers of the security service were in danger; and (c) the applicant had been present at a terrorist incident in 2005; and
   • unwillingness to seek protection in other countries he had visited when it was open to him to do so.
3. The Tribunal said it considered all the applicant's claims singularly and cumulatively and concluded the applicant did not have a well-founded fear of persecution for any "Convention reason": at [40]. The Tribunal also found there were no substantial grounds for believing there was a real risk the applicant would suffer significant harm: at [42].

1. Mr ATF19 identified three grounds in his application for judicial review. He said the grounds had been prepared for him by his former migration agent. The grounds do not directly allege the Tribunal's decision was affected by a jurisdictional error. (The application does not ask for an order of mandamus either, but that gap was addressed at the outset of the hearing when I granted leave to amend the application for review.)
2. I explained the concept of jurisdictional error at the outset of the hearing before we discussed the grounds of review. I also gave the applicant an opportunity to articulate, in his own words, any other criticisms he wished to make of the Tribunal's decision or decision-making process. I will deal with each of the grounds and the criticisms below. I will also deal with an issue that I identified in the course of the discussion with Mr Edagbami, the minister's representative, concerning the Tribunal's repeated reference to its specialist knowledge.

1. The first ground contends the Tribunal failed to take into account the applicant's evidence related to matters that occurred a long time before the hearing and that the quality of the applicant's recollection might have been affected. This ground appears to relate to the Tribunal's observations about the quality of the applicant's recollection of various details (e.g., the fact the applicant could not remember the name of his travel agent in Amman and was unable to provide details of terrorist incidents in 2016). Substantial gaps in the applicant's evidence, such as his failure to provide corroborating evidence to establish the family members of security officials were routinely in danger, also provided a basis for the Tribunal's adverse credibility findings.
2. The applicant confirmed to me he was not suggesting his memory was currently impacted by a medical condition or some other circumstance that might need to be taken into account when I evaluated his submissions. He also acknowledged he had no recollection of telling the Tribunal there was a particular problem with his memory that would have put the Tribunal on notice.
3. I note the Tribunal was explicitly conscious of the need to avoid holding an applicant's account to an inappropriately high standard. The Tribunal observed at [29]:

In considering an applicant's account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.

1. I am satisfied the Tribunal's adverse credibility finding was open to it to the extent it relied on articulated concerns over the quality of the applicant's recollection and the finding that the applicant's behaviour was not consistent with what one would expect of a refugee who lived in fear of persecution or harm. The Tribunal provided a sufficient explanation of the basis for the findings it made. There is no reason to suppose it held the applicant to an unduly high standard when assessing the quality of his evidence. Whether or not a different decision-maker might have taken a different view of parts of the applicant's evidence, I accept the Tribunal was not acting unreasonably in making its findings.

1. The second ground contends the Tribunal did not consider - indeed, "completely disregarded" - Mr ATF19's statement explaining why he had applied for a student visa before seeking a protection visa. The applicant did not identify the statement in question: I initially assumed he referred to a written statement that the Tribunal had somehow failed to reference in its statement of reasons. Mr Edagbami assumed the applicant was referring to his statement which accompanied the application for a protection visa. Mr ATF19 confirmed in oral submissions that he was not suggesting the Tribunal had missed a particular written statement. He was referring instead to what he took to be the Tribunal's failure to have regard to his verbal explanation for why he had applied for a student visa.
2. The applicant's submission fails at a factual level. In the statement of reasons at [25] (but see also [23]-[27] and [33]), the Tribunal does discuss the applicant's explanation for applying for a student visa before seeking protection. I am not satisfied the Tribunal missed or otherwise failed to engage with this evidence.

1. The third ground of review focuses on the Tribunal's findings about misinformation supplied in the visitors' visa application. The applicant insisted (at the Tribunal's hearing, and before me) that his travel agent had filled out that visa application. The applicant said he had no knowledge of the failure to mention he had been refused visas to enter several other countries. The Tribunal's discussion of the applicant's evidence on this issue is found at [13]-[14] and [31]-[33] of its reasons. The Tribunal gives cogent reasons for disbelieving the applicant's account. At [32], the Tribunal observed:

I do not accept that this part was filled out by a travel agent without his knowledge. The form has an area in which it asks whether the form was done with assistance from an agent or agency, and there is a space for them to fill in their details. The person filling out the form indicated that they had no help and the applicant has signed it in the same pen that the rest of the form has been filled out.

1. There is nothing illogical or unreasonable about this finding. It was plainly open on the evidence. I accept the applicant disagrees with the finding and regards it as offensive, but it is not unreasonable in the legal sense.

The Tribunal's invocation of specialist knowledge

1. There was one other matter which occurred to me in the course of exchanges with Mr Edagbami. It concerns the Tribunal's reference to specialist knowledge.
2. The member who constituted the Tribunal apparently had some specialist knowledge about the situation in Jordan. I understand that knowledge was derived from his work experience and from scholarship he undertook in the past. That knowledge surfaced during the hearing: for example, the Tribunal asked the applicant about the details of the travel agent whom the applicant said had completed the application for a visitors' visa. At [14], the Tribunal recorded:

Asked what the name of the agent was, he claimed it was a travel agent that was next to the embassy. Asked if they put their name on the application so the embassy could contact them if they had any questions, he said that they hadn't. It was put to him that the member had been to the Australian embassy in Amman several times and there was no travel agent next to it - he was asked to describe where the travel agent was in relation to the entrance of the embassy and he then claimed that the agency was in the neighbourhood of the embassy, not next to it. He was reminded of the need to be accurate as it may call into question his credibility if he changed his evidence when confronted with different information from the Tribunal.

1. The Tribunal returned to the discussion of the agent when it made its findings on this issue. At [33], the Tribunal explained:

The applicant could not remember the name of the travel agent and initially claimed that it was next to the Australian embassy. When the member (who is familiar with the embassy in Amman) pointed out there was no agency next to the embassy, the applicant then claimed it was in the same neighbourhood. I do not accept that some agency would falsify a family without first asking the applicant his personal details. Regardless, I am satisfied that, given his previous visa refusals the applicant has chosen not to reveal them in his application and to create a family to improve his chances of a visa application to Australia being approved.

1. The Tribunal also reported asking the applicant about examples of family members of officials being targeted by terrorists. When the applicant made what the Tribunal took to be a sweeping claim about the risk, the Tribunal recorded at [17] of its reasons: "He was told that the member was well versed in terrorist ideology...".
2. While the (unrepresented) applicant did not make an issue before me of the Tribunal's invocation of its own knowledge and experience, it is incumbent on the Court to consider whether the Tribunal's conduct suggests there was a material jurisdictional error.
3. Tribunal members are expected to approach cases with an open mind, not an empty one. They bring experience and expertise to their work. In some cases, they are selected for appointment precisely because of their specialist knowledge or experience. The membership of the former Administrative Appeals Tribunal included medical practitioners, accountants, veterinarians, and military veterans (amongst others). That expertise was regarded as an important asset to the Tribunal which enhanced its capacity, particularly when the Tribunal was constituted by a panel comprised of a legal member and a specialist member.[1] The experience of specialist members equipped them to play a useful role when evaluating expert evidence which even the best lawyer might have difficulty understanding. Those specialist members might have a better sense of which questions to ask of witnesses appearing before the Tribunal. They might also have insights or spot details in records or accounts that would not be apparent to a lay person. But the specialist member walked a fine line. There was always a danger they would end up substituting their own (sometimes idiosyncratic) experience for the evidence provided by the parties. At a minimum, the specialist member was expected to disclose their opinion or experience - the frame of reference the member used to evaluate the parties' evidence - so the parties could comment.
4. This commitment to transparency might also reveal whether the member's objectivity was compromised. The ability to act objectively lies at the heart of the Tribunal's role. The Tribunal is an avatar of the parliament that sits within the executive. The Tribunal's job is to make executive decisions (and model decision-making behaviour) judicially - which is to say fairly and with an open mind. It does so in a way that gives faithful effect to the legislation and lawful policy, free of the bureaucratic and other pressures alluded to by Sir Anthony Mason in a famous reflection on the Tribunal that was published in 1989.[2] While special rules apply in some caseloads, a Tribunal member will not ordinarily be regarded as doing their job correctly if they make decisions on the basis of material which is not shared with the parties.
5. The question, then, is whether the Tribunal in this case was merely sharing its own knowledge or insights in a transparent way - or was it behaving as if it was privy to knowledge or insights that predisposed it to a particular outcome such that it would not consider the applicant's evidence with an open mind?
6. I am satisfied the Tribunal's reasons do not suggest it was acting inappropriately in the sense I have described when it pressed the applicant about his evidence regarding the address of the travel agent. The Tribunal sought clarification of the applicant's evidence with reference to what the Tribunal recalled were the facts on the ground. If the applicant disagreed with the Tribunal's recollections of the area around the embassy, he had an appropriate opportunity to express that view.
7. The other reference I have quoted above - the Tribunal's allusion to its familiarity with terrorist ideology - is, at first glance, perplexing. Read in context, the reference suggests the Tribunal delivered what amounted to a 'shot across the bows' of the witness, as if to warn him the Tribunal had the expertise to detect if the witness was taking any licence in his evidence. While that observation is gratuitous, it does not rise to the level of a jurisdictional error. The observation does not indicate the Tribunal was approaching the evidence with a closed mind.

1. The application for judicial review is dismissed. I will hear from the parties as to costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

[1] FG Brennan, 'The Future of Public Law - the Australian Administrative Appeals Tribunal' [1979] OtaLawRw 2; (1979) 4 Otago Law Review 286, 289.

[2] A Mason, 'Administrative Review: The Experience of the First Twelve Years' [1989] FedLawRw 3; (1989) 18(3) Federal Law Review 122: His Honour, speaking extra-judicially, observed (at p 130) that Tribunal decision-making was potentially superior to decision-making within the bureaucracy because:

First, [the primary decision-making process in the agency] lacks the independence of the judicial process. The administrative decision-maker is, and is thought to be, more susceptible to political, ministerial and bureaucratic influence than is a judge. Secondly, some administrative decisions are made out in the open; most are not. Thirdly, apart from statute, the administrator does not have to give reasons for his decision. Fourthly, the administrator does not always observe the standards of natural justice or procedural fairness. That is not surprising; he is not trained to do so. Finally, he is inclined to subordinate the claims of justice of the individual to the more general demands of public policy and sometimes to adventitious political and bureaucratic pressures.