BBN20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1762

1. By Application filed on 11 March 2020, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 19 February 2020 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) (Application).
2. By the Tribunal's Decision, the Tribunal affirmed the decision of a delegate (Delegate) of the first respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Migration Act.
3. The hearing of the Application took place at the Melbourne Registry of the Court on 21 October 2025 (Hearing). Both the Minister and the Applicant was represented by Counsel. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The Applicant is a citizen of Malaysia.
2. On 20 September 2016, the Applicant applied for the Visa,[2] the subject of these proceedings, on the basis that:[3]

(a) he had been involved in illegal motorcycle racing in Malaysia;

(b) he lost a bet to a group of people and owed them money;

(c) as he was unemployed, he did not have the money to repay the debt; and

(d) the people he owed money to beat him and threatened to sodomise him.

1. On 10 March 2017, a Delegate of the Minister refused to grant the application for the Visa on the basis that they were not satisfied that the Applicant met s 36(2)(a) or s 36(2)(aa) of the Migration Act (Delegate's Decision).[4]
2. On 29 March 2017, the Applicant applied to the Tribunal for review (Review Application).[5]
3. On 31 March 2017, the Tribunal confirmed receipt of the Review Application.[6]
4. On 28 January 2020, the Tribunal invited the Applicant to attend a hearing on 19 February 2020.[7]
5. On 19 February 2020, the Applicant attended the hearing on his own behalf.[8] At the hearing, the Applicant repeated his written protection Visa claims.[9] In addition, the Applicant claimed that the reason he believed people threatened to sodomise him was because they "knew he was gay".[10]
6. On date same, the Tribunal affirmed the Delegate's Decision.[11]
7. On 25 February 2020, the Tribunal provided written reasons to the Applicant.[12]

1. The Tribunal's Decision is at pages 90 to 96 of the Court Book.
2. The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [3] to [8].
3. At the hearing, the Applicant claimed protection on the basis of identifying as a homosexual person. The Tribunal put to the Applicant that his written Visa application made no mention of this claim.[13] The Applicant explained that he did not raise this claim earlier as he felt "ashamed".[14] The Tribunal found that the Applicant's claim in relation to his sexual orientation was a "new claim" for which there was no "reasonable explanation".[15] The Tribunal drew an unfavourable credibility inference in respect of this claim.[16]
4. The Tribunal found the Applicant's claim of fearing harm upon return to be lacking in detail and credibility.[17] When asked to explain who had threatened him, the Tribunal found the Applicant's responses to be "evasive and vague".[18] The Tribunal found that the Applicant's claims were "far-fetched and fanciful" and a "total embellishment".[19] The Tribunal concluded that the Applicant was not a "refugee"[20] and was not satisfied that the Applicant was a person to whom Australia owed protection obligations.

1. On 11 March 2020, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 13 October 2021, Orders were made by Registrar Carney of this Court for the application be listed for final hearing on a date to be advised pursuant to r 10.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 GFL Rules). For the First Respondent to file and serve by 8 December 2021: the Court Book. For the Applicant to file and serve at least 28 days before the hearing: any amended application, any supplementary court book and written submissions. For the First Respondent to file and serve 14 days before the hearing: written submissions.
3. On 14 April 2025, Orders were made by Registrar Cummings of this Court for the First Respondent's name be amended to "Minister for Immigration and Multicultural Affairs". For the Second Respondent's name be amended to "Administrative Review Tribunal". That all extant programming orders be vacated. That the matter be listed for final hearing on a date to be advised. That the Applicant file and serve at least 28 days before the hearing: written submissions, any amended application and any additional evidence. That the First Respondent file and serve at least 14 days before the hearing: written submissions and any additional evidence. The Court noted that the First Respondent would send the Applicant a further copy of the Court Book.
4. On 14 July 2025, an amended application was filed with this Court (Amended Application).
5. This matter was heard on 21 October 2025 for a Hearing before me.
6. The Applicant relied upon the following documents:

(a) the Application filed 11 March 2020;

(b) the affidavit of the Applicant affirmed and filed 11 March 2020;

(c) the Amended Application filed 14 July 2025;

(d) the affidavit of the Applicant affirmed 11 July 2025 (Applicant's Affidavit affirmed 11 July 2025);

(e) outline of submissions filed 23 September 2025; and

(f) list of authorities filed 23 September 2025.

(a) the response, filed 9 April 2020;

(b) the affidavit of Trent Berenger Jones affirmed 7 October 2025 (Affidavit of Trent Berenger Jones affirmed 7 October 2025);

(c) outline of submissions filed 7 October 2025; and

(d) list of authorities filed 7 October 2025.

1. Both parties relied on the Court Book.
2. The Amended Application contains the following grounds of review (Grounds of Review):
   1. The Tribunal fell into jurisdictional error by misconstruing and/or taking an inflexible and/or overly narrow approach in regards to s 423A of the Migration Act 1958. This resulted in the Tribunal misapplying s 423A. Alternatively, the Tribunal dealt with the Applicant's claim that he was gay in a way that was legally unreasonable. (Ground 1).

Particulars

• 1.1. The Applicant made the following claims in his written protection application (form 866) as follows:
  1. "Q89: Why did you leave that country(s)? [Malaysia]

I was involved in illegal motorcycle racing gambling. I lose in gambling and cannot pay the money to the group of people. I owed them RM5,000. Everyday they came and asked for money. I'm unemployed and don't have money to pay. They started threatened me but I really cant pay them. Finally they beat me. I was injured but after recover, they still looking for me. Then, they threatened to sodomizing me. I am really afraid. My family asked me to hide."

1. "Q94: Do you think you will be harmed or mistreated if you return to that country(s)?

Yes. They threatened to sodomized me."

1. "Q95: Do you think the authorities of that country(s) can and will protect you if you go back?

Yes. The police department will protect me but after I've been sodomized by them." (CB, p. 36-38, see also the summary at para [10] of the AAT's decision record, CB, p. 92).

• 1.2. The Protection Visa Decision record acknowledged the Applicant's claim as follows:

"The applicant claims that he was involved in illegal motorcycle racing gambling. The applicant claims that he lost 5,000 Ringgit gambling, that he is unemployed and unable to repay his debts. The applicant claims he has been beaten by the people he owes money to and that they have threaten to sodomise him." (CB, p. 52).

• 1.3. The Applicant made similar claims at the Tribunal, which the Tribunal summarised as follows in paragraph [13] of the decision record:

"... He said he lost the race and owed the people 5000 ringgit... He said that one day these people beat him up ... He indicated that after he recovered, the people would keep blackmailing him, and they told him that if he did not pay they would sodomise him." (CB, p. 116).

• 1.4. When the Tribunal asked the Applicant what made him think that these people would sodomise him, he explained that he was gay (see ART decision record "ART", para [15], CB, p. 93).

• 1.5. The Tribunal asked the applicant why he did not make mention that he is gay in his written protection application (form 866), and he indicated that he felt ashamed and that he was scared (ART, [15], CB, p. 93)

• 1.6. The Tribunal spoke to the Applicant and put to him that his claim of being gay was a new claim (ART, [15], CB, p. 93).

• 1.7. The Tribunal referred to s 423A of the Migration Act 1958 (ART, [16], CB, p. 93).

• 1.8. Section 423A applies if either an applicant either (a) raises a claim that was not raised in the application before the primary decision was made; or (b) presents evidence that was not presented in the application before the primary decision was made.

• 1.9. Section 423A requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

• 1.10. The Tribunal noted as follows: "the applicant said he feels ashamed that he is gay and that was why he did not say so." (ART, [19], CB, p. 94).

• 1.11. In regards to the application of s 423A, the Tribunal concluded as follows:

"In accordance with s423A of the Act, the Tribunal finds that the Tribunal is not satisfied that the applicant has a reasonable explanation why the claim (that he is gay) was not raised before the primary decision was made, and the Tribunal has drawn an inference unfavourable to the credibility of the claim that the applicant is gay." (ART, [29], CB. p. 95).

• 1.12. The Tribunal misapplied s 423A as the Applicant's claim he was gay was not a new claim. Rather, it was a central part of his earlier claim that he feared harm because he feared that criminals would sodomise him.

• 1.13. While the Applicant did not explicitly state in his initial application that he would be sodomised because he was gay, this elaboration logically flowed out of his claim that he fears that he would be harmed by being sodomised. As such, it is not a new claim.

• 1.14. The Applicant's explanation that he was gay was a direct response to a question from the Tribunal as follows:

"AAT: No, No. What makes you think he would carry out the threat to sodomise you.

Applicant: Oh, because actually, I'm really ashamed to tell you but in my country they know, like, that I'm a homosexual. That's why they know I'm into men.

AAT: You're gay?

Applicant: Yeah, gay. In my country, I'm ashamed to admit it..."

[Member] No. No. What makes you think he would carry out the threat to sodomise you?

[The Applicant] Oh, because, actually, really ashamed to tell you, but in my country like they know that actually I'm a homosexual. That's why. They know that I'm into men, so they're like...

[Member] You're gay.

[The Applicant] Yeah. Yeah. Something [unclear]. In my country I live shame to admit that, that kind of -you know, right?" (Transcript, p. 12-13).

• 1.15. There were cultural reasons why the Applicant articulated his claim in the way that he did, and his claims should be viewed in the context of the Applicant's culture.

• 1.16. A "new claim" under s 423A refers to a narrative of alleged facts relied upon in support of a protection criteria. This is distinct from a mere elaboration or restatement of previously raised claims.

• 1.17. In this instance, the Applicant had not presented any narratives that differed substantially from their original claims or were based on different factual bases.

1. The Tribunal committed a jurisdictional error as the Applicant did not have a sufficient grasp of the English language to present evidence before the Tribunal. As such, the applicants did not receive a fair hearing, and the decision was not a bona fide attempt to exercise the Tribunal's power. (Ground 2).

Particulars

• 2.1. English is not the first applicant's first language.
• 2.2. While the Applicant's English language speaking ability is reasonable, it is not good.
• 2.3. While the Applicant can speak limited English in everyday interactions, the Tribunal proceedings required more complex English than what the Applicant was used to.
• 2.4. The Applicant had trouble understanding the Tribunal member at the hearing.
• 2.5. The Applicant found the Tribunal proceedings difficult to understand and had trouble following what was being discussed and explained and in expressing himself.
• 2.6. On the 866C form, the Applicant responded to the question "If you are called for an interview, will you need an interpreter?" by ticking the box "Yes" and indicating that he would need a Malay interpreter (CB, p. 20).
• 2.7. On the "eR1" "Administrative Appeals Tribunal Application for review to the Migration and Refugee Division" form (CB, p. 62), the Applicant responded to the field "Need an interpreter" by responding "Yes".
• 2.8. On the "Information about hearings - MR Division", which was provided to the Applicant, the form stated as follows:

"Will an interpreter be provided at the hearing?

If requested, we will arrange for an interpreter to be at the hearing. The interpreter will be a qualified interpreter from an interpreter service -it is our policy not to use family members, friends or representatives as an interpreter..." (CB, p. 79).

• 2.9. On the "Response to hearing invitation - MR Division" form, in response to question under "Part 2 - Interpreter and other issues at the hearing" to the question "Do you or any other person attending the hearing need an interpreter?" neither the "No" nor the "Yes" box was ticked (CB, p. 79, 82).

• 2.10. The Tribunal indicated that "[t]he applicant was not represented and he did not require the assistance of an interpreter."

• 2.11. In circumstances where the Applicant specifically requested an interpreter in his AAT application, and the Applicant did not indicate that he did not need an interpreter in his hearing invitation, the Applicant's previous request for an interpreter still stood.

• 2.12. The Applicant's request for an interpreter was not honoured.

• 2.13. As the Tribunal failed to provide the Applicant with an interpreter, the Tribunal failed to provide a fair hearing and the Tribunal's decision was not a bona fide attempt to exercise the Tribunal's power.

1. The Tribunal failed to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the relevant evidence. Alternatively, the Tribunal failed to take into account relevant considerations. (Ground 3).

Particulars

• 3.1. At the hearing, the Applicant provided additional context to his claim that gang members had threatened to harm him by sodomising him.

• 3.2. The Tribunal did not consider the Applicant's claim that he needed protection because he was gay and owed a debt.

• 3.3. The Tribunal had access to relevant country information to assist it in making a proper evaluation of these claims.

• 3.4. Country information shows that Islam holds a significant place and role in Malaysian society and excerpts significant influence.

• 3.5. Sharia law allows imprisonment and other punishments of those who engage in same­sex relationships.

• 3.6. While the Tribunal referred to DFAT reports relating to the Malaysian Police (CB. P. 84), the Tribunal made no reference to any country information relating to the treatment of homosexuals in Malaysia.

• 3.7. No country information has been included in the Court Book. As a result, this Honourable Court can infer that the Tribunal did not consider any country information relating to the treatment of gay people in Malaysia.

• 3.8. As a result, the Tribunal failed to give proper, genuine and/or realistic consideration to matters before it and failed to take into account relevant considerations.

(Words omitted) (Words in bold added, otherwise as written)

Misapplication of s 423A of the Migration Act

1. Section 423A[21] concerned the treatment of new claims by the Tribunal on review. The Applicant submits that the Tribunal misconstrued or took an inflexible and overly narrow approach to s 423A of the Migration Act. The Applicant contends that the section did not prevent the Tribunal from considering additional details that "logically flow" from an initial claim. The Tribunal was required to properly consider whether an applicant's explanation for the delay in raising the claim or evidence was reasonable.[22] The Tribunal was also entitled to make findings of fact.[23]
2. The Applicant made "repeated" written claims that he feared harm from gang members who would "sodomise" him.[24] The Delegate acknowledged this claim.[25] At the hearing, the Applicant made similar claims before the Tribunal.[26] When asked why the Applicant believed that gang members would sodomise him, the Applicant explained that he was gay.[27] In response to why he had not mentioned this aspect of his claim earlier, the Applicant indicated that he felt ashamed and that he was scared.[28] The Tribunal proceeded to apply s 423A to draw "an inference unfavourable to the credibility of the claim that the applicant is gay".[29]
3. The Applicant submits that the Tribunal misapplied s 423A as the claim that he was gay was not a new claim. Rather, it was a "central" part of his initial claim. The Applicant submits that the elaboration that he would be sodomised because he was gay "logically flowed" from the initial claim.
4. A "new claim" under s 423A is distinct from a "mere elaboration or restatement" of previously raised claims. The Applicant submits that he did not present any facts that substantially differed from his original claims. The Applicant notes that the explanation that he was gay was as a direct result of the Tribunal's questioning.[30]

1. Alternatively, the Applicant submits that the Tribunal made a finding that was legally unreasonable. The Applicant submits that his claim should be viewed in the context of his culture. The Court has held that adverse credibility findings must be rationally made and based on facts with logical and probative weight.[31]
2. The test for legal unreasonableness is whether:

(a) the decision maker's state of satisfaction is one "which no rational or logical decision maker could arrive on the same evidence";[32] or

(b) the decision was "arbitrary, capricious or clearly unjust" and lacking an "evident and intelligible justification".[33]

1. The Applicant contends that the Court should be "slow, although not unwilling, to interfere in an appropriate case".[34]

1. The Applicant notes that on the Visa form, the Applicant responded to the question "if you are called for an interview, will you need an interpreter?" by ticking the box "yes". The Applicant indicated that he would need a Malay interpreter.[35]
2. The Applicant provided a similar response on the Review Application form submitted to the Tribunal.[36] On the "Response to hearing invitation - MR Division" form, to the question "do you or any other person attending the hearing need an interpreter?" neither the "no" nor the "yes" box was ticked.[37]
3. The Tribunal's Decision noted that "[t]he applicant was not represented, and he did not require the assistance of an interpreter."[38] The Applicant submits that this statement is not correct. The Applicant submits that in the circumstances, his previous request for an interpreter still stood and that the request was not honoured.[39]
4. The Applicant submits that the absence of an interpreter resulted in a denial of procedural fairness and a failure to meaningfully present his case. Section 425(1) of the Migration Act[40] required the Tribunal to provide an applicant with an opportunity to appear before it to give evidence and present arguments. Where an applicant is not proficient in the English language, the Tribunal was obliged to ensure that communication proceeded through an interpreter.[41]
5. In BZAID v Minister for Immigration and Border Protection,[42] (BZAID) the combined presence of interpreter errors, omissions and mistranslations were deemed sufficient to vitiate the Tribunal's decision on procedural fairness grounds.
6. The Applicant states that he found it "very difficult" to understand the Member[43] and that he had trouble responding due to his "clumsy" grasp of the English language.
7. The Applicant contends that the Transcript of the hearing demonstrates several misunderstandings which impeded his ability to give evidence, namely:[44]

(a) he told the Tribunal that he had lost a race and that gang members were asking him for money. However, the Member misunderstood him and seems to have understood that the Applicant was asking them for money;[45]

(b) when the Member asked, "you knew them enough to ask them for money, and they knew you enough to give you money, is that right?", he was confused and incorrectly responded in agreement;[46]

(c) he had trouble understanding the Member's questions concerning his diploma and his parents;[47]

(d) he repeatedly referred to gang members as "blackmailing" him. However, "blackmail" was the wrong word. The Applicant has provided affidavit evidence that the only reason he used the word "blackmail" was because he did not know the right word in the English language;[48]

(e) he had trouble explaining what treatment he had received at the hospital;[49] and

(f) during questioning, he was confused as to whether the Tribunal was referring to his parents or to a friend.[50]

1. The Applicant contends that the Tribunal erred in not providing him with an interpreter. The Applicant submits that the Tribunal failed to provide a fair hearing and that the decision was not a bona fide attempt to exercise power.

Failure to genuinely engage with the evidence

1. At the hearing, the Applicant "elaborated" on his claim that gang members had threatened to sodomise him. The Applicant submits that the Tribunal erred by failing to consider that he needed protection because he was gay and owed a debt.
2. The Applicant contends that the Tribunal had access to Department of Foreign Affairs and Trade (DFAT) country information indicating that Islam holds significant influence in Malaysian society. The country information further demonstrated that Sharia law permits imprisonment for those who engage in same-sex relationships.
3. The Tribunal merely referred to DFAT reports relating to the conduct of Malaysian Police.[51] The Applicant submits that the Tribunal erred by making no reference to country information relating to the treatment of homosexuals in Malaysia. Had this country information been considered, it is possible that the Tribunal's conclusions could have been different.

Failure to take into account relevant considerations

1. The Tribunal is not required to uncritically accept claims made by an applicant,[52] nor does it have to rebut evidence before making a particular finding.[53] However, the Tribunal is required to consider and engage with an applicant's submissions and evidence. An administrative tribunal exceeds its powers and commits jurisdictional error if it ignores relevant material.[54]
2. In Plaintiff M1/2021 v Minister for Home Affairs,[55] the High Court set out relevant elements of the requirement to engage with representations made by parties.[56]
3. In Carrascalao v Minister for Immigration and Border Protection,[57] the Full Court of the Federal Court held that decision makers are required to give "proper, genuine and realistic consideration" in an "active intellectual process".[58]
4. Failure to consider a clearly articulated claim, or cogent supportive evidence, will constitute jurisdictional error.[59] A failure by the Tribunal to refer to a relevant matter may give rise to an inference that the matter has been overlooked. The Applicant contends that it would be expected that the country information which the Tribunal had regard to would be in the Court Book. However, no such country information has been included. As a result, the Applicant submits that it can be inferred that the Tribunal did not consider any country information relating to the treatment of homosexual people in Malaysia.

1. The Minister submits that the Tribunal's Decision is not affected by jurisdictional error and that the Application should be dismissed.

1. The Minister submits that the Tribunal correctly found that the Applicant's claim that he was gay was a "new claim". The Minister submits that the claim was raised for the first time at the hearing, and not in the application before the primary decision maker."[60] The provision is "directed at encouraging asylum seekers to provide all claims and supporting evidence as soon as possible."[61] The rationale for this approach is that there is generally no reason as to why an applicant's account should vary over time.[62]
2. The Minister accepts that this claim was made in response to a question put to the Applicant concerning why he believed he was threatened to be sodomised. The Minister submits that this does not mean that the claim had ever previously been raised, for the following reasons:

(a) there is no direct correlation between a claim that a person has been threatened with sodomy, and a claim that a person is gay. The Minister notes that an "obvious alternative explanation" was that the Applicant owed a debt to the people who had threatened him;

(b) the Applicant's original claim that he feared being sodomised because he owed a debt had a different factual basis to his subsequent claim that he feared being sodomised because he was gay; and

(c) this factual difference is of legal significance. For a person to be owed protection as a "refugee",[63] they must fear harm "for reasons of race, religion, nationality, membership of a particular social group or political opinion".[64] The claim to fear harm due to a gambling debt did not satisfy any of those categories.[65]

1. The Applicant's claim that he was gay cannot be characterised as a "mere elaboration or restatement of previously raised claims." As such, the Tribunal was correct to find that the claim triggered the operation of s 423A of the Migration Act.

1. The Minister contends that the Tribunal was correct to find that no reasonable explanation was provided as to why the new claim had not been raised earlier.[66] The Tribunal considered the Applicant's explanation of feeling shame[67] and found that the explanation was not "reasonable" in circumstances where:[68]

(a) the claim was raised for the first time at the hearing;

(b) the claim was raised after the Applicant stated that he had made "all of his claims" and that there were no further claims; and

(c) the Applicant did not provide any "further detailed information" in respect of the claim.

1. The question before this Court is whether the Tribunal reached a legally unreasonable decision based on the material that was "before the Tribunal".[69] The Minister contends that the Applicant cannot supplement the material in order to demonstrate error. The Minister contends that paragraphs [2] to [5] and [18] of the Applicant's affidavit[70] are irrelevant and inadmissible.
2. The Minister submits that an error will only be material if the decision that was made could realistically have been different had there been no error.[71] The Minister contends that the Tribunal had a "dim view" of the Applicant's credibility on the basis that his claims lacked detail.[72] If s 423A had not applied, the possibility of any different outcome would remain "fanciful or improbable".[73]

1. An applicant who is invited to a hearing[74] must be given the opportunity to effectively convey the substance or essential elements of their claims.[75] The Tribunal has discretion to communicate through an interpreter.[76] Failure to exercise the discretion will not constitute an error unless the applicant is deprived of the opportunity to effectively convey the "substance or essential elements" of their claims.

1. The Minister notes that the Applicant did not request an interpreter at the hearing. The Applicant's position in relation to whether he required an interpreter changed over time.[77] At the hearing, the Member advised that it was "very important" that the Applicant indicate when he did not know the answer to a question. The Applicant responded "okay" to this statement.[78]
2. In the circumstances, the Minister contends that the Applicant's request for an interpreter in 2016 and 2017 did not "stand" or need to have been "honoured". Rather, it was reasonable for the Tribunal to infer that the Applicant no longer considered that an interpreter was necessary given the years he had spent living in the Australian community. The Minister contends that the Transcript of the hearing indicates that the Applicant had a functional proficiency of the English language at the time of the hearing.
3. The alleged "misunderstandings" are either mischaracterisations of the Transcript or overstated,[79] for the following reasons:

(a) the Member was appropriately interrogating the Applicant on how well he knew the people he had gambled with in order to confirm whether they might pay him money;[80]

(b) the Applicant agreed with the Member's suggestion that he knew the people well enough to gamble with them;[81]

(c) the Applicant clearly conveyed that he completed a Diploma of Automotive at Bahan in 2009;[82] and that upon graduating he worked as a rubber tapper to assist his parents on a plantation owned by a friend;[83]

(d) the Applicant's use of the word "blackmail" did not cause any confusion or affect the Member's consideration of the claims.[84] The Member understood that his claim was that he owed a gambling debt that he could not repay, and that he had been threatened;[85]

(e) the Applicant's difficulty in describing his medical treatments flowed from his limited understanding of medical concepts, and not from a lack of proficiency in the English language.[86] The Minister notes that the Applicant's affidavit fails to contain any further detail as to medical treatment he has received;[87] and

(f) there were no misunderstandings as to whether the rubber plantation was owned by the Applicant's parents or a friend.[88]

1. The Minister contends that the Member and the Applicant had an "effective dialogue" at the hearing and that the Tribunal did not err by not providing an interpreter.

1. The Minister notes that the Applicant has failed to identify country information that the Tribunal did not consider. The Applicant simply asserts that "relevant" country information reports show that:

(a) Islam holds a significant place and role in Malaysian society; and

(b) Sharia law allows imprisonment and other punishments of those who engage in same-sex relationships.[89]

1. The Minister submits that it is not possible to determine whether the country information report was put before the Tribunal. The Minister submits that the Tribunal had regard to relevant country information before the Delegate, as follows:

(a) under s 418(3) of the Migration Act,[90] the Secretary was required to provide the Tribunal with all documents in the Secretary's possession or control relevant to the review of the Delegate's Decision. It can be inferred that those documents would have included country information;[91] and

(b) the Tribunal expressly stated that it had regard to "country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they [were] relevant to the decision under consideration."[92]

1. The proper inference to draw is that all relevant country information before the Delegate was considered by the Tribunal.[93] The contention that the Tribunal failed to consider "any country information that was not included in the Court Book"[94] is misconceived. The Minister submits that the contents of the Court Book do not have any bearing on the Tribunal's "fact-finding" exercise.[95]
2. The Minister accepts that the Migration Proceedings: Central Practice Direction[96] requires Court Books to include any country information relied on by a decision maker as particularised in a ground of review. However, the Minister contends that this requirement exists for the administrative convenience of the Court. It should not permit factual inferences to be drawn as to what information a decision maker had regard to in making its decision. In any event, the Court Book in the present case was filed prior to this requirement being introduced.[97]

1. The Minister submits that even if the Tribunal failed to have regard to country information concerning the treatment of gay people in Malaysia, such error would not be material.[98] The Tribunal did not accept the Applicant's claim that he was gay as being credible.[99] As such, country information regarding the treatment of gay people could not have been relevant to the Tribunal's consideration of the Applicant's claims.
2. The Minister notes that the country information relied upon by the Applicant concerns the treatment of people who engage in same-sex relationships by Malaysian authorities. The Applicant has never claimed to fear harm from engaging in a same-sex relationship or from Malaysian authorities. The Applicant's claim has merely been that he fears harm from a group of people to whom he owes a gambling debt.

1. 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.
2. 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.[100]
3. "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.[101] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[102]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[103] 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".[104] Different kinds of error may overlap.[105] The categories are not closed.[106]
5. 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.[107] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[108] It has been described as an "undemanding" standard.[109]

1. The Protection Visa (Subclass 866) allows a person who is at real risk of significant harm or persecution in their home country to live in Australia permanently.
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Migration Regulations 1994 (Cth) (Regulations)) have been satisfied, and to refuse to grant the visa, if not so satisfied.
3. The criteria that the Applicant was required to satisfy for the grant of a Protection Visa (Subclass 866) are set out in Part 866 to Schedule 2 of the Regulations.

The Tribunal fell into jurisdictional error by misconstruing and/or taking an inflexible and/or overly narrow approach in regards to s 423A of the Migration Act 1958. This resulted in the Tribunal misapplying s 423A. Alternatively, the Tribunal dealt with the Applicant's claim that he was gay in a way that was legally unreasonable.

1. Section 423A of the Migration Act provides:

1. This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant:

1. raises a claim that was not raised in the application before the primary decision was made; or

2. presents evidence in the application that was not presented in the application before the primary decision was made.

3. In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

1. The Explanatory Memorandum of the Migration Amendment (Protection and Other Measures) Bill 2014 (Cth) (Explanatory Memorandum), described the purpose of s 423A of the Migration Act as follows:

While the new section 5AAA places the responsibility to provide and substantiate claims on an asylum seeker, new section 423A is directed at encouraging asylum seekers to provide all claims and supporting evidence as soon as possible. The new section 423A requires the RRT to draw an inference unfavourable to the credibility of new claims or evidence provided to the RRT, where the applicant does not have a reasonable explanation to justify why the claims were not raised or the evidence was not presented before the primary decision was made on their protection visa application.

1. The Explanatory Memorandum provides:[110]

The effect of this amendment is that the RRT is to draw an unfavourable inference in respect of the credibility of an applicant's claims or evidence, if the claims or evidence were not raised in the application before the primary decision was made and the applicant does not have a reasonable explanation for the delay. It is required that all relevant information is provided by the applicant to the Minister in their application, including any additional information that may be submitted to the Minister, prior to the primary decision being made. A claim may be raised, or evidence may be presented in the application by way of, but not limited to, details in the application form, at an interview, in a response to a request, or information volunteered by the applicant at any stage prior to the primary decision.

This amendment supports new section 5AAA (Non-citizen's responsibility in relation to protection claims) inserted by item 1 of Schedule 1 to the Bill. The purpose is to ensure that protection visa applicants are forthcoming with all of their claims and evidence as soon as possible.

1. In EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs,[111] after finding that in the circumstances of the case, he was not required to determine whether s 423A constitutes a complete code, Raper J stated:[112]

In any event, I do not accept the appellant's description of the operation and bounds of s 423A. Section 423A cannot be read as codifying the circumstances in which the Tribunal may draw an unfavourable inference. Rather, as the Minister contended s 423A makes it mandatory where there is the late assertion of a claim or the provision of evidence for the Tribunal to draw an unfavourable inference regarding the applicant's credibility in the absence of a reasonable explanation. This does not entail the obverse, namely that where there is a satisfactory explanation no credibility finding can be made in respect of the claims: see, eg, SZUHJ v Minister for Immigration & Border Protection [2018] FCA 331 at [20]. There is no requirement in s 423A as to the process for drawing a negative inference to be conducted in a particular manner. The provision simply permits, and requires, the drawing of the inference upon a state of satisfaction. The section has a limited compass: The drawing of an inference in the context of the late assertion of a claim or the provision of new evidence. It does not limit or circumscribe credibility findings which may be made more generally about a visa applicant's claim. Rather it deals with a temporal phenomenon - the late provision of a claim or new evidence which risks unreliability and invention or manufacture to support a claim. As referred to above, the section was inserted into the Act, together with s 5AAA, to provide an incentive for visa applicants to put before the Department and/or the Minister all of his or her claims at the earliest opportunity.

For the following reasons, it is my view that, as the primary judge found, despite the Tribunal making no express reference to the provision, it is clear from the manner in which the Tribunal conducted the hearing (its questioning of the appellant and allowing him to put on more evidence after the hearing regarding this new claim) and from its reasons, that the Tribunal did understand what was required under the section: It is mandatory for the Tribunal to draw an unfavourable inference regarding the applicant's credibility in the absence of a reasonable explanation.

1. Section 423A(2) of the Migration Act, directs attention to the question of whether an applicant's explanation for the delay in raising claims or evidence is a reasonable one.[113]

1. The Tribunal's Decision provided:[114]

The Tribunal put to the applicant that he had made no mention of his claim that he is gay in his written protection application (form 866), and he had made no mention of the claim that he is gay since he submitted the written protection application (form 866) to the Department in 2016, and he had told the Tribunal during the hearing that he confirmed that he had made all of his claims (as reflected in his 2016 written protection application) and there were no further claims, right before he then claimed he is gay.

The Tribunal put to the applicant that the Tribunal may, subject to his response, find that his explanation for raising a claim that was not raised in the application before the primary decision was made was because he felt ashamed, that they were insulting him every day and he was scared, was not a reasonable explanation.

In response, the applicant said he feels ashamed that he is gay and that was why he did not say so.

1. The Applicant contends that the Tribunal "misconstrued and/or took an inflexible and/or overly narrow approach" to s 423A of the Migration Act.[115] He contends that "section 423A does not prevent the Tribunal from considering elaborations or additional details that logically flow from an initial claim, provided they do not constitute entirely new claims or evidence." He contends that the Tribunal misapplied s 423A, because the Applicant's claim to being gay did not meet the threshold of being "new claims or evidence".
2. Ground 1 raises the question of what is a "claim" or "evidence" for the purposes of s 423A(1)(a) and (b) of the Migration Act. In particular, what is "a claim that was not raised" or "evidence that was not presented" before the primary decision maker's decision was made. While there may be overlap between what constitutes a "claim" and what constitutes "evidence", Ground 1 proceeded on the premise that the issue concerned whether a "claim" had been made. A critical question is how: (a) matter(s) (here, the Applicant's claim that he is gay) said to constitute a "claim" are to be characterised for the purpose of s 423A(1)(a) of the Migration Act; in particular, whether the matter(s) form part of an existing "claim" (such as by way of "elaboration" or "detail") or is or are themselves separate and new "claims". To answer this question, it is necessary to begin with the statutory scheme and context.
3. Section 45 of the Migration Act provides that a non-citizen who wants a visa must apply for a visa of a particular class. Approved forms are prescribed by the Regulations.[116] A visa applicant is required to complete an approved form in accordance with any directions on it.[117] The approved form in respect of protection visas includes a series of questions under the heading "Your reasons for claiming protection".
4. Section 47(1) of the Migration Act provides that the Minister is to consider a valid application for a visa. In deciding whether to grant or refuse to grant a visa, the Minister must have regard to all of the information in the application.[118] The information in the application comprises[119] information set out in the application, information in a document attached to the application when it is made, or information given to the Minister under s 55.[120] Section 55 of the Migration Act provides that until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
5. Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term "refugee" is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a "well-founded fear of persecution"[121] as defined by s 5J.
6. Section 5J of the Migration Act provides that a person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the prescribed reasons; and (c) the real chance of persecution relates to all areas of a receiving country.
7. Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
8. Section 423A of the Migration Act would appear to reflect the courts' scepticism of witness accounts where their claim was not made at a sufficiently earlier point in time. This is reflected in the rule that permits prior consistent statements to be tendered following a clear imputation of recent invention.
9. For example, in Nominal Defendant v Clements,[122] Dixon CJ stated:

If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or a reconstruction.

1. The term "claim" can have various meanings in the context of the Migration Act. It can be used in both a specific and a general sense. In a general sense, the word "claim" might be used to describe the overall basis upon which an applicant claims protection.[123] In a specific sense, the word "claim" might refer to any fact or circumstance that an applicant contends exists and which contributes to, or is an integer of, their claimed fear of persecution. Having regard to the text, context and purpose of s 423A of the Migration Act, I accept the Minister's submission, that the word is intended to be used in its specific sense. If a broad definition of "claim" were intended, it would leave little, if any, work for s 423A to do, because using a broad definition, every new matter is likely to be comprehended within the initial "claim" made by an applicant.
2. I turn then to the question of whether the Applicant's claim that he was "gay" was a new "claim" for the purpose of s 423A of the Migration Act.
3. Questions 88 to 96 of the Visa application form sets out various questions under the heading "Your reasons for claiming protection". The section commences:[124]

This section (Questions 89 to 96) must be completed for applicants making their own claims for protection.

You must answer all the following questions in your own words.

You must provide all the details about why you are seeking protection and, wherever possible, you must provide documentation to support your claims.

A decision may be made on the information provided in your written application and you may not be given another opportunity to present these claims. Therefore, it is important that you include all details relevant to your case and provide any supporting documentation at the time you lodge your protection application.

Your claims for protection will be assessed against relevant Australian law. For further information on Australia's protection obligations under Australian law, including the definition of refugee you should refer to the guidance material available on the website www.border.gov.au/paig

Please be aware that not everybody is entitled to Australia's protection. You may not engage Australia's protection obligations even if you have faced harm in the past or you come from a country where there is violence or a lack of security.

1. The Applicant provided the following in response to the question: "Why did you leave that country(s)? Provide specific details":[125]

I was involved in illegal motorcycle racing gambling. I lose in in gambling and cannot pay the money to the group of people. I owed them RM 5,000 everyday they came and asked for money. I'm unemployed and don't have money to pay. They started threatened me but I really cant pay them. Finally they beat me. I was injured but after recover. They still looking for me. Then, they threatened to sodomising me. I am really afraid. My family asked me to hide.

(Words as written)

1. The Applicant provided the following in response to the question: "What do you think will happen to you if you return to that country(s)?": "They will hurt me again and again. I don't want to be sodomized by them".[126]
2. It is common ground that there was no reference in the Applicant's Visa application or other material put before the Delegate that either the Applicant was homosexual or that the Applicant specifically feared persecution, or sought protection, on the ground that he was homosexual.
3. Applying the specific definition of "claim", I consider that the Applicant's claim that he was homosexual or feared persecution on the ground that he was homosexual was not a "claim" or evidence that was raised in the application before the Delegate. I do not agree that the Applicant's contentions concerning homosexuality formed part of the existing claim the subject of his Visa application. I agree with the Minister's contention that no part of the claim that the Applicant articulated in his Visa application depended on his sexual orientation, a matter that would have been integral to a claimed fear of persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion", or a claimed fear of "significant harm" because of his sexuality. I do not accept that homosexuality was a necessary or implicit aspect of the threat that the Applicant claimed to have been made because it was intended to humiliate the Applicant or to be disrespectful of him. It is not apparent that the threat as originally described related to his sexuality.
4. In summary, the Applicant's claim to being gay was more than mere "elaboration" or "detail" of an existing claim. It was a new and distinct "claim" (and/or evidence).

Whether no "reasonable explanation" conclusion was legally unreasonable

1. Having concluded that the Applicant's claim to being gay or fearing persecution on the ground of homosexuality was a "claim" (and/or evidence) that was not raised before the Delegate (as primary decision maker), the next question is whether the Tribunal erred in determining that it was satisfied that the Applicant did not have a reasonable explanation as to why the claim was not raised earlier.
2. The issue before me is whether the Tribunal's determination that the Applicant did not have a reasonable explanation was legally unreasonable.
3. At the hearing before the Tribunal, the following exchange took place:[127]

Member: No. No. What makes you think he would carry out the threat to sodomise you?

Applicant: Oh, because, actually, I really ashamed to tell you, but in my country like they know that actually I'm a homosexual. That's why. They know that I'm into men, so they're like ..

Member: You're gay.

Applicant: Yeah. Yeah. Something [unclear]. In my country I live shame to admit that, that kind of - you know, right?

Member: Why did you not say that in your written application?

Applicant: That's why, I was feel like shame, so in my country, not like here. If you are gay, they will insult you. They will angry at you. So [unclear 18:01] they know that I'm gay; let me... they want to sodomise me and maybe take..

Member: I asked you a moment ago were there any further claims and you said there were no further claims.

Applicant: I don't understand [unclear].

Member: I asked you just a short time ago whether those were all of your claims and I asked you are there any further claims; you said there were no further claims, and then now you've made further claims.

Applicant: Yeah, because when you asking about sodomising, so that's why I tell you, because I feel like shame to tell people that I'm gay, actually, like in my country [unclear]. They know that I'm gay, so every day they're insulting me, then they, like that actually they want to sodomising me, that why I'm really scared.

1. The Tribunal's Decision recorded that it put to the Applicant that it may determine that his explanation for not raising a claim that he was gay, because he felt ashamed and scared was not a reasonable one.[128]
2. The Tribunal's Decision also provided:[129]

Further compounding the Tribunal's concerns about the applicant's credibility was his claim that he is gay - a claim that was made for the first time ever in the hearing, and then only after the applicant confirmed to the Tribunal that he had made all of his claims (as reflected in his 2016 written protection application) and there were no further claims, a claim that was never made in his 2016 written protection application, and a claim that was never made at all despite the many years the applicant has had to make such a claim prior to the hearing. In any event, the applicant did not provide any further detailed information in respect to his claim to be gay. In accordance with s423A of the Act, the Tribunal finds that the Tribunal is not satisfied that the applicant has a reasonable explanation why the claim (that he is gay) was not raised before the primary decision was made, and the Tribunal has drawn an inference unfavourable to the credibility of the claim that the applicant is gay.

1. In Minister for Immigration and Citizenship v Li,[130] French CJ stated:[131]

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(Emphasis added) (Footnotes omitted)

1. Legal unreasonableness is a "demanding standard" and a court is not entitled to interfere simply because the court disagrees with the decision under review.[132]
2. The test for legal unreasonableness is assessed at the time of the decision and on the basis of circumstances known to the decision maker.[133]
3. An assessment of legal unreasonableness is "invariably fact dependent" and turns on the particular factual circumstances in each case rather than an analysis of factual similarities and differences between individual cases.[134]
4. The Applicant referred to various parts of the country information concerning Malaysia in the "Malaysia Report", to support his contention concerning the question of whether he had a reasonable explanation as to why the claim was not raised earlier. The report included reference to "an increased trend towards online monitoring and harassment of members of the LGBTI community",[135] and criminalisation of certain same sex acts.[136]
5. I consider that the Tribunal's determination that it was satisfied that the Applicant did not have a reasonable explanation as to why the claim was not raised earlier, was not legally unreasonable. That decision was one which had an evident and intelligible justification, namely, that the claim "was made for the first time ever in the hearing, and then only after the applicant confirmed to the Tribunal that he had made all of his claims (as reflected in his 2016 written protection application) and there were no further claims, a claim that was never made in his 2016 written protection application, and a claim that was never made at all despite the many years the applicant has had to make such a claim prior to the hearing".[137] In reaching its conclusion, it cannot be assumed that the Tribunal did not take into account cultural aspects of the Applicant's explanation, or relevant parts of the Malaysia Report.[138]
6. I am not satisfied that the Tribunal's state of satisfaction (for the purposes of s 423A(2) of the Migration Act) was one "which no rational or logical decision maker could arrive on the same evidence"[139] or one which was "arbitrary, capricious or unjust"[140] or one lacking in "evident and intelligible justification".[141]
7. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

The Tribunal committed a jurisdictional error as the Applicant did not have a sufficient grasp of the English language to present evidence before the Tribunal. As such, the applicants did not receive a fair hearing, and the decision was not a bona fide attempt to exercise the Tribunal's power.

1. Section 425 of the Migration Act provided, amongst other things, that the Tribunal must 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".
2. Section 427(7) of the Migration Act provides that if a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
3. In Minister for Immigration & Multicultural and Indigenous Affairs v SCAR,[142] the Full Court held[143] that provision s 425 of the Migration Act requires that applicants be provided with a "real and meaningful opportunity" to make arguments and present evidence before the Tribunal":

.. it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

1. In the context of cases concerning allegations of misinterpretation, the question is whether the errors in interpretation are such as to render the trial one that is procedurally unfair. This includes a requirement that the applicant have an adequate opportunity to convey "the substance of what is said" or "the essential elements that were being conveyed by the appellant".
2. In BZAID,[144] Edelman J stated:

The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, "Working with Interpreters: Judicial Perspectives" (2015) 24 JJA 207. The relevant principles are summarised below:

1. interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a "perfect" interpretation;

2. whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

3. in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

4. where interpretation is necessary, it must be adequate to convey "the substance of what is said" or "the essential elements that were being conveyed by the appellant" in order to communicate the substance of the appellant's case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

5. where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

6. where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

7. if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

8. however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

(Emphasis added)

1. In SZRMQ v Minister for Immigration and Border Protection,[145] Allsop CJ stated:[146]

It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

1. These principles which concern misinterpretation, also have application in a context where an applicant's own difficulties in communicating with the Tribunal are such as to render the hearing one that is not procedurally fair. The critical question is whether the Applicant was given an "adequate [opportunity] to convey 'the substance of what is said' or 'the essential elements that were being conveyed by the appellant' in order to communicate the substance of the appellant's case and his or her response to the issues raised to a sufficient degree".[147] An aspect of this is the Applicant's comprehension of questions being asked of him.
2. I turn then to the question of whether the Tribunal acted unreasonably in not providing the Applicant with an interpreter.
3. While the Applicant indicated in his application for a protection Visa and his Review Application that he needed an interpreter,[148] he did not tick "yes" or "no" to the question of whether he needed an interpreter in his invitation to attend the Tribunal hearing.[149] Further, he did not request an interpreter when at the hearing - which was conducted in English.
4. The Applicant's contention on this matter is:[150]

In circumstances where the Applicant specifically requested an interpreter in his AAT application, and the Applicant did not indicate that he did not need an interpreter in his hearing invitation, the Applicant's previous request for an interpreter still stood.

The Applicant's request for an interpreter was not honoured.

As the Tribunal failed to provide the Applicant with an interpreter, the Tribunal failed to provide a fair hearing and the Tribunal's decision was not a bona fide attempt to exercise the Tribunal's power.

1. Section 427(7) of the Migration Act confers a discretion on the Tribunal to direct communication through an interpreter. I reject the Applicant's contention that the Applicant had a right to an interpreter because he had asked for one at two points in time. The question is whether the Tribunal's decision not to provide an interpreter, either at the commencement of the hearing because of his earlier request for one, or later during the hearing, because his difficulty with English became apparent, was legally unreasonable.
2. I begin with the question as it pertains to the commencement of the hearing. While the Applicant had indicated that he needed an interpreter in his application for a protection Visa and in his Review Application,[151] he did not in response to the invitation to attend the Tribunal hearing.[152] The Visa application and Review Application were made in 2016 and 2017, respectively, whereas the Applicant's response to the Tribunal's invitation to attend the hearing was made years later in early 2020. In these circumstances, and in the absence of an oral request for an interpreter, I consider that the Tribunal's decision to proceed without an interpreter was not one lacking an "evident and intelligible justification".[153]
3. Also bearing upon the reasonableness of the Tribunal's decision made at the commencement of the hearing, is the observation that it remained open to the Tribunal to direct communication through an interpreter at any point during the hearing if a difficulty with English became apparent. For reasons that are set out below, I do not consider that the Applicant's claimed difficulty with English became apparent to the Tribunal, such as to necessitate the Tribunal exercising its discretion to direct communication through an interpreter.
4. I turn then to the question of whether the Applicant's so called "misunderstandings" prevented him from communicating the substance of his case or prevented him from effectively responding to issues.
5. I address the specific instances raised in the Applicant's submission below.

a. The Applicant told the Tribunal that he had lost a race and that the gang members were asking him for money. However, the member misunderstood the Applicant and seems to have understood that the Applicant was asking them for money.

1. The Tribunal's Decision provides:[154]

He then got involved in motor cycle racing and gambling. He indicated that he made a bet with some people, but he does not know their names. He indicated that these people made a bet with him that if he won a motorcycle race, he would win 5000 ringgit, but if he lost he would owe them 5000 ringgit. He said he lost the race and owed the people 5000 ringgit. He said he told these people that he cannot pay the money because he did not work. He said that one day these people beat him up but he did not go to the police. He said that he got medical treatment, and that treatment consisted of him being given Panadol and an injection, but he does not what kind of injection he received. He indicated that after he recovered, the people would keep blackmailing him, and they told him that if he did not pay they would sodomise him. He said his friends told him to hide and so he came to Australia.

Member: So, hang on, you said a bunch of people you hang out with who you don't know too much. Is that right?

Applicant: Yeah. It's like a friend of friend, something.

Member: You knew them enough to ask them for money, and they knew you enough to give you money, is that right?

Applicant: Yeah.

1. The Applicant seizes on the apparent contradiction between his claim that he owed money on account of gambling, and the question concerning asking the people for money. Even if the Tribunal had the parties to the gambling transaction the wrong way around, I am not satisfied that any confusion prevented the Applicant from conveying the essential elements of his claims. He had previously made a clear statement that the people had asked him for the money and he had told them "I cannot pay you guys". It may well be that there were transactions flowing in both directions. In any event, the Tribunal's Decision makes clear that it understood the essential aspects of the case that the Applicant was seeking to convey.[156]

b. When the Member asked the Applicant "You knew them enough to ask them for money, and they knew you enough to give you money, is that right?", the Applicant was confused and responded in agreement, even though he hadn't asked them for money and they hadn't given the Applicant money.

1. I have addressed this matter in relation to (a), above.

c. The Applicant had trouble understanding the Member when he asked the Applicant about completing his diploma and asked about his parents.

1. The Applicant deposed to having "trouble understanding the Member on other occasions, including when he asked me about completing my diploma and asked about my parents."[157]
2. Consideration of the Transcript does not reveal any misunderstanding by the Tribunal of the Applicant's evidence concerning his completion in 2009 of a three year automotive diploma or helping his parents by working as a rubber tapper on a plantation owned by another person. Those exchanges demonstrate that the Applicant's command of the English language was sufficient for him to understand what was being asked and to convey the substance of what he was seeking to convey. In this sense, it was "adequate", even if not perfect or ideal.

d. The Applicant kept on referring to the gang members as "blackmailing" him, when "blackmail" was the wrong word. The Applicant has given affidavit evidence that the only reason that he used the word "blackmail" is because he didn't know the right word in English.

1. An example to the use by the Applicant of the word "blackmail" is in the following extract from the Transcript:[158]

Applicant: Yeah, and I lost the money, so those guy asking me the money, so when you going to pay the 5,000 ringgit. So I tell them I cannot pay you guys right now, because I not working, I don't have money to pay you, and then one day those guys beat me up. I was Injured, after two, three days and when I recover, they keep blackmailing me, say, when you going to pay and if you're not. ..

1. In the Applicant's Affidavit,[159] he deposed that:[160]

Another example of how I was disadvantaged at the hearing because of my language ability was when I kept referring to the gang members as "blackmailing" me. This seemed to confuse the Member; however, I realise now that "blackmail" was the wrong word, and rather my claim was that they were threatening me and trying to force me to pay the money that I owed as a result of losing the race. The only reason that I used the word "blackmail" is because I didn't know the right word in English.

1. Despite the use of the word "blackmail" by the Applicant, it is clear from the whole of the Transcript that the Applicant's intended meaning was "demand and threaten".
2. The Tribunal did not refer to "blackmail", and treated the Applicant's evidence as evidence of threats or demands. The Tribunal's Decision records:[161]

However, when giving evidence about exactly who had threatened him, the Tribunal finds that the applicant was evasive and vague in his responses. That the applicant said he did not know even the name(s) of the person or persons that he claimed he lost a bet to, owed money to, was threatened by, attacked by, and then even further threatened, causes the Tribunal to have significant concerns about the credibility of the applicant's claims in this respect. The Tribunal would also have reasonably expected that if the applicant had actually lived such experiences as he claimed, he would have been able to provide specific dates

1. I am not satisfied that the Applicant's erroneous reference to "blackmail" prevented him from conveying the substance of his case to the Tribunal.

e. The Applicant had trouble explaining in English what treatment he received at the hospital.

1. The Tribunal's Decision provided:[162]

When he gave evidence about the medical treatment he claimed to have received, the Tribunal finds that the applicant was evasive and vague in his responses. The Tribunal would also have reasonably expected that if the applicant had actually received medical treatment due to the assault, he would have been able to provide more detailed information about his treatment. The Tribunal finds that the applicant's evidence that he was given Panadol and that he was given an injection but he did not know what kind of injection he had - to be a thoroughly unconvincing.

1. The Transcript records the following exchange after the Applicant gave evidence concerning being beaten up over the gambling debt:

Member: Did you go to the hospital or get medical attention?

Applicant: Yeah. Get medical attention. Yeah. Gave me some medicine.

Member: What medicine?

Applicant: It's like some bruise or something - not broken, just bruised, my body, they beat me up.

Member: So what medicine do you take for a bruise?

Applicant: It's like a Panadol, something.

Member: So they gave you Panadol?

Applicant: Yeah. Just some Injection, that's it, because ...

Member: Injection of what?

Applicant: I don't know what kind of injection. In my country, like if we do get hurt or something, they will inject you. Yeah...

1. In the Applicant's Affidavit affirmed 11 July 2025, he deposed that:[163]

Another thing that I had a lot of trouble explaining because of my English language ability is the concept of what treatment I received at the hospital after being assaulted. It was extremely challenging to explain this in a way that made sense as it was difficult to find the right English words to describe a medical procedure. Medical procedures are complex and hard to explain even in my own language, but it was so much harder to try and explain this in English.

1. The difficulty with the Applicant's account, is that while he deposed to additional difficulty in explaining medical procedures in English, he does not set out the evidence that he says he would have given had he not encountered the additional difficulty. Nor does he say that he misunderstood questions that were being asked of him. It is important also to note the Applicant's concession that "medical procedures are complex and hard to explain even in my own language"[164] which suggests that a substantial cause of the difficulty that he claimed to experience was in describing concepts that he was not familiar with.
2. I am not satisfied on the basis of the evidence before me that the Applicant's claimed difficulty with English was such that he was not able to convey the substance and essential elements of what he wanted to say concerning medical treatment. The Applicant has not demonstrated that the core elements of that evidence, namely the provision of "Panadol" or like medication, and "some injection", were stated in error by him, as a result of his difficulties with English, or misunderstanding of questions asked.

f. The Applicant was confused whether the Tribunal was referring to his parents or a friend.

1. I have addressed this matter in relation to (c), above.
2. For the reasons set out above, I do not consider that the Applicant's claimed "misunderstanding" was such as to render the hearing procedurally unfair.
3. For completeness, I note that it is conceivable that a person's difficulty with English may not be apparent during the course of the Tribunal's hearing. However, this is not such a case. The Applicant's Affidavit affirmed 11 July 2025, has little probative evidence concerning his subjective difficulty in understanding or communicating in English.[165] The evidence given by the Applicant in these matters is largely expressed in conclusionary terms.
4. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

The Tribunal failed to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the relevant evidence. Alternatively, the Tribunal failed to take into account relevant considerations.

At the hearing, the Applicant provided additional context to his claim that gang members had threatened to harm him by sodomising him.

The Tribunal did not consider the Applicant's claim that he needed protection because he was gay and owed a debt.

The Tribunal had access to relevant country information to assist it in making a proper evaluation of these claims.

Country information shows that Islam holds a significant place and role in Malaysian society and excerpts significant influence.

Sharia law allows imprisonment and other punishments of those who engage in same­sex relationships.

While the Tribunal referred to DFAT reports relating to the Malaysian Police (CB. P. 84), the Tribunal made no reference to any country information relating to the treatment of homosexuals in Malaysia.

No country information has been included in the Court Book. As a result, this Honourable Court can infer that the Tribunal did not consider any country information relating to the treatment of gay people in Malaysia.

As a result, the Tribunal failed to give proper, genuine and/or realistic consideration to matters before it and failed to take into account relevant considerations.

1. The main complaint that the Applicant makes by reference to Ground 3 appears to be directed to its consideration (or lack of consideration) of country information so far as it concerned the treatment of homosexual people in Malaysia.
2. The Tribunal's Decision provided:[166]

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

1. The Minister relies on an affidavit annexing the country information referenced by the Tribunal, namely the DFAT Country Information Report on Malaysia dated 13 December 2019 (Malaysia Report).[167]
2. Direction 84 is a direction given by the Minister under s 499(1) of the Migration Act concerning decision makers performing functions or exercising powers under ss 65, 414 or 415 of the Migration Act when considering an application for the grant of a Protection visa when reviewing a decision to grant a Protection visa.
3. Direction 84 provides that in the exercise of powers under ss 65, 414 or 415 of the Migration Act, the decision maker is to take into account the following guidelines prepared by the Department to the extent that they are relevant to the decision under consideration:
   • 'Refugee Law Guidelines'; and
   • 'Complementary Protection Guidelines'.
4. Direction 84 also provides:

Where the [Department] has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

1. In Plaintiff S183/2021 v Minister for Home Affairs,[168] the applicant contended that there was jurisdictional error because the decision maker failed to consider country information prepared by DFAT that fell within Direction 84. Gordon J identified two questions; first, whether the country information was relevant, and second, whether the delegate took it into account. Her Honour found that the delegate had fallen into error by not considering the country information, but did not need to resolve the question of whether the information was material having earlier found jurisdictional error:

But there is no country information footnoted in the decision record. That does not necessarily mean that it was not considered, as required by s 499(2A) and Direction 84 , but it may be inferred that it was not considered in circumstances where, first, the delegate specifically referred to country information "as footnoted throughout the decision record", but none is footnoted, and second, the country information was broadly consistent with the plaintiff's claims, but the claims were rejected on the basis that they were not credible without referring to it.

(Emphasis added)

1. In the present case, the two questions identified by Gordon J are not discrete questions. The Tribunal's determination that the Applicant did not have a "reasonable explanation" as to why the claim that he was homosexual was not raised before the Delegate's Decision was made, is a question that might receive limited support from the Malaysia Report which included reference to "an increased trend towards online monitoring and harassment of members of the LGBTI community",[169] and criminalisation of certain same sex acts.[170]
2. In Minister for Immigration and Multicultural Affairs v Yusuf,[171] McHugh, Gummow and Hayne JJ[172] held[173] that s 430 of the Migration Act obliged the Tribunal to set out findings on material questions of fact to the conclusion it reached. It does not require the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make.
3. In ETA067 v The Republic of Nauru,[174] Bell, Keane and Gordon JJ stated that:[175]

The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any "material questions of fact" and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.

(Footnotes omitted)

1. I do not infer that the limited reference to the Malaysia Report in the Tribunal's Decision means that it did not have regard to that report. The limited reference in the present case is explained by noting that the report only had limited relevance to the "reasonable explanation" question posed by s 424A of the Migration Act, and, in circumstances where the Tribunal concluded that the Applicant was not in fact gay, had little, if any, relevance to the other aspects of the Tribunal's Decision.
2. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $7,975 being less than the scale amount.[176] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[177] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the Court file.

I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 21 October 2025, Order 1.

[15] See s 423A of the Migration Act 1958 (Cth) (Migration Act).

[21] In force at the time of the Tribunal's Decision.

[22] FYB24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1159; ARH24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 222.

[23] SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331; EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182.

[24] CB 36-38, see "Q89", "Q94" and "Q95" of the Applicant's written protection visa application; CB 92 [10].

[28] CB 93 [15]; also referred to in the Applicant's Affidavit affirmed 11 July 2025.

[30] Applicant's Affidavit affirmed 11 July 2025, Annexure A, Transcript, p 12-13.

[31] CQO23 v Minister for Immigration [2025] FCA 97, esp. [81].

[32] Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) per Crennan and Bell JJ at [124] and [130]; SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 at [10], [59].

[33] Minister of Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 (Li) per Hayne, Kiefel and Bell JJ at [76].

[39] Applicant's Affidavit affirmed 11 July 2025.

[40] In force at the time of the Tribunal's Decision; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.

[41] ss 425(1) and 427(7) of the Migration Act.

[42] [2016] FCA 508; (2016) 242 FCR 310.

[43] Applicant's Affidavit affirmed 11 July 2025.

[44] Applicant's Affidavit affirmed 11 July 2025.

[45] Applicant's Affidavit affirmed 11 July 2025.

[46] Applicant's Affidavit affirmed 11 July 2025.

[47] Applicant's Affidavit affirmed 11 July 2025.

[48] Applicant's Affidavit affirmed 11 July 2025.

[49] Applicant's Affidavit affirmed 11 July 2025.

[50] Applicant's Affidavit affirmed 11 July 2025, Annexure A, Transcript p. 7.

[52] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at [451].

[53] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at [348].

[54] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ at [3]; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 per Kiefel CJ, Keane, Gordon and Steward JJ at [27].

[55] [2022] HCA 27; (2022) 275 CLR 582.

[56] At [24]-[25] (Kiefel CJ, Keane, Gordon and Steward JJ).

[57] [2017] FCAFC 107; (2017) 252 FCR 352.

[59] SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 at [75]- [81]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13].

[60] Within the meaning of s 423A(1)(a) of the Migration Act.

[61] Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014 (Cth) at 2.

See also EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182 at

[62] See Case Number 2319509 [2024] AATA 2718 at [22] (Connolly SM).

[63] Section 36(2)(a) of the Migration Act.

[64] Section 5J(1)(a) of the Migration Act.

[65] Section 36(2)(a) of the Migration Act; BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 at [3] (Murphy and O'Bryan JJ); VWEF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 798 at [2] (Ryan J).

[66] Li at [68], [76] (Hayne, Kiefel and Bell JJ).

[69] CMO17 v Minister for Immigration and Border Protection [2018] FCCA 1888 at [44]- [49] (Jarrett J); See also Cuvegen v Secretary to the Department of Education and Training [2021] VSC 524 at [47]- [53] (McDonald J).

[70] Applicant's Affidavit affirmed 11 July 2025.

[71] LPDT at [7], [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

[73] LPDT at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

[74] Ss s 425(1) of the Migration Act.

[75] BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 (BZAID) at [52(4)] (Edelman J); SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 at [9] (Allsop CJ).

[76] See s 427(7) of the Migration Act.

[78] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 3.

[79] Applicant's Outline of Submissions filed 23 September 2025 at ([12(a)-(f)]).

[80] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 10.

[81] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 10.

[82] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 5-6.

[83] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 6-7.

[84] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 10, 11, 12.

[86] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 11-12.

[87] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 5-6 [17]; compare Annexure A at 11-12.

[88] Applicant's Affidavit affirmed 11 July 2025, Annexure A at 6-7.

[89] Applicant's Outline of Submissions filed 23 September 2025 at [25].

[90] In force at the time of the Tribunal's Decision.

[93] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [72] (Robertson J). See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [67]-[69] (McHugh, Gummow and Hayne JJ).

[94] Applicant's Outline of Submissions filed 23 September 2025 at [30].

[96] Federal Circuit and Family Court of Australia (Division 2), Migration Proceedings: Central Practice Direction (MIG-CPD) (published 1 September 2025) at [8.2(e)] (Central Practice Direction).

[97] Affidavit of Trent Berenger Jones affirmed 7 October 2025, Annexure TBJ-1, outlines country information that would have been included in the Court Book if [8.2(e)] of the Central Practice Direction had been applicable when it was filed.

[98] LPDT at [7], [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

[100] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[101] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O'Callaghan JJ).

[103] Plaintiff S157/2002.

[108] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[109] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[111] [2023] FCA 1182 (Raper J).

[113] FYB24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1159; ARH24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 222.

[115] Applicant's Outline of Submissions filed 23 September 2025 at [5].

[116] See regulation 2.07 and Schedule 1 of the Migration Regulations 1994 (Cth) (Regulations).

[118] Section 54(1) of the Migration Act.

[119] Section 54(2) of the Migration Act.

[120] Section 55 of the Migration Act.

[121] See s 5H(1)(a) of the Migration Act.

[122] [1960] HCA 39; (1960) 104 CLR 476.

[123] Compare CVK16 v Minister for Border Protection (2017) 318 FLR 34 at [45].

[127] Affidavit of Applicant affirmed on 11 July 2025, Annexure A, Transcript p 12-17.

[130] [2013] HCA 18; (2013) 297 ALR 225.

[132] Li per French CJ at [24] and [30] and Kayne, Keifel and Bell JJ at [63] and [66]; Virk v Minister for Immigration and Citizenship [2025] FCA 630 per Hill J held at [31].

[133] Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 per Kiefel CJ, Gageler, Gordon and Steward JJ at [21].

[134] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [84] (Nettle and Gordon JJ).

[135] Affidavit of Trent Berenger Jones affirmed on 7 October 2024, p 38 [3.106].

[136] Affidavit of Trent Berenger Jones affirmed on 7 October 2024, p 44 [3.130].

[139] SZMDS at [124] and [130] (Crennan and Bell JJ).

[140] Li at [76] (Hayne, Kiefel and Bell JJ).

[141] Li at [78] (Hayne, Kiefel and Bell JJ).

[144] [2016] FCA 508; (2016) 242 FCR 310 at [52].

[145] [2013] FCAFC 142; (2013) 219 FCR 212.

[147] BZAID at [52(4)] (Edelman J).

[150] Particulars to Ground 2, Applicant's Grounds of Review.

[153] Li at [78] (Hayne, Kiefel and Bell JJ).

[155] Applicant's Affidavit affirmed 11 July 2025, Annexure A, Transcript, p 10.

[157] Applicant's Affidavit affirmed 11 July 2025 at [15].

[158] Applicant's Affidavit affirmed 11 July 2025, Annexure A, Transcript, p 11.

[159] Applicant's Affidavit affirmed 11 July 2025.

[160] Applicant's Affidavit affirmed 11 July 2025 at [16].

[163] Applicant's Affidavit affirmed 11 July 2025 at [17].

[164] Applicant's Affidavit affirmed 11 July 2025 at [17].

[167] See Affidavit of Trent Berenger Jones affirmed 7 October 2025.

[168] [2022] HCA 15; (2022) 178 ALD 289.

[169] Affidavit of Trent Berenger Jones affirmed on 7 October 2024, p 38 [3.106].

[170] Affidavit of Trent Berenger Jones affirmed on 7 October 2024, p 44 [3.130].

[174] [2018] HCA 46; (2018) 360 ALR 228.

[176] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[177] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.