BBR20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1638

1. By way of 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 2 March 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 6 October 2025 (Hearing).[1] The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an interpreter. At the conclusion of the Hearing, judgment was reserved.[2] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act.

1. The Applicant is a citizen of Malaysia.
2. On 15 August 2016, the Applicant arrived in Australia as the holder of an Electronic Travel Authority (Subclass 601) visa.[3]
3. On 20 October 2016, the Applicant applied for the Visa, the subject of these proceedings.[4] The Applicant claimed to fear harm as a result of his homosexuality.[5]
4. On 20 April 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).[6]
5. On 21 April 2017, the Applicant applied to the Tribunal for review (Review Application).[7]
6. On 22 April 2017, the Tribunal acknowledged receipt of the Review Application.[8]
7. On 10 February 2020, the Tribunal invited the Applicant to attend a hearing on 2 March 2020 by way of email (Invitation).[9] The Invitation stated that the Tribunal was not able to make a favourable decision based on the information before it. The Invitation also contained a fact sheet that set out the consequences of failing to attend the hearing.[10] The Applicant did not respond to the Invitation.[11]
8. On 24 and 28 February 2020, the Tribunal sent two hearing reminders to the Applicant's mobile number listed in the Review Application by way of SMS. Both attempts failed.[12]
9. On 2 March 2020, the Applicant failed to attend the scheduled hearing before the Tribunal.[13]
10. On date same, the Tribunal affirmed the Delegate's Decision and proceeded to make a decision pursuant to s 426A(1A)(a) of the Migration Act. A copy of the Tribunal's Decision was sent by way of email to the Applicant.[14]

1. The Tribunal's Decision is at 88 to 92 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. The Tribunal referred to the Invitation and noted the Applicant's failure to attend the hearing or attempt to communicate with the Tribunal. If the Applicant had attended the hearing, the Tribunal would have questioned him regarding a range of matters.[15]
4. The Tribunal noted that there were a number of 'serious concerns', specifically, the broad nature of the Applicant's claims and the lack of specificity.[16] The Tribunal rejected the Applicant's claims in their entirety and found that he did not satisfy the definition of a refugee.[17]

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 7 April 2025, Orders were made by Registrar Rohan 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". For the application to be listed for final hearing. For the First Respondent to file and serve on or before 28 April 2025: a Court Book. For the Applicant to file and serve at least 28 days before the hearing: any amended application, written submissions and any additional affidavits. For the First Respondent to file and serve at least 14 days before the hearing: written submissions and any affidavit evidence.
3. On 21 August 2025, I made Orders that the matter be relisted for final hearing on 6 October 2025 before me.
4. This matter was heard on 6 October 2025 for a Hearing before me. The Applicant relied upon the following documents:

(a) the Application filed 11 March 2020;

(b) Affidavit of the Applicant affirmed and filed 11 March 2020 (Applicant's Affidavit affirmed 11 March 2020);

(c) Affidavit of the Applicant affirmed 13 September 2025 and filed 14 August 2025 (Applicant's Affidavit filed 14 August 2025); and

(d) outline of submissions filed 14 August 2025.

(a) the response, filed 24 March 2020;

(b) outline of submissions filed 20 August 2025; and

(c) list of authorities filed 3 October 2025.

1. Both parties relied on the Court Book.
2. The Application contains the following grounds of review (Grounds of Review):
   1. THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY VISA APPLICATION BY AFFIRMING NOT TO GRANT ME A PROTECTION VISA AFTER ME NOT ATTENDING THE HEARING AND PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS DATED 02 MARCH 2020. (Ground 1).
   2. THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID. (Ground 2).
   3. ACCORDING TO MIGRATION ACT 1958 - SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGL Y WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT. (Ground 3).
   4. I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(l) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUEMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAY. (Ground 4).
   5. THE TRIBUNAL ERRER BY CONCLUDING THAT I WAS AW ARE OF THE HEARING AND DID NOT MAKE SURE THAT I WAS NOTIFIED ACCORDING TO THE STATUTARY REQUIREMENTS. (Ground 5).
   6. THEREFORE, THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID'NT GET THE RIGHTS TO PRESENT MY ARGUEMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY. (Ground 6).
   7. I SEEK THE COURT FOR JUDICAL REVIEW BEEN GIVEN AGAIN FOR MY CASE. (Ground 7).
   8. MY REQUEST TO COURT TO SET ASIDE THE DECISION DONE BY THE MEMBER PETER VLAHOS DATED ON 02 MARCH 2020. ALLOW WITH A REINSTATEMENT TO BE APPLIED ON MY MATTER SO THAT I WOULD BE ABLE TO REPRESENT MY ARGUMENTS AND PROVIDE EVIDENCES TO WITNESS MY CLAIM FOR PROTECTION ACCORDING TO THE LAW IN AUSTRALIA. (Ground 8).

(Words in brackets added, otherwise as written)

1. The Applicant's written submissions contained the following four matters that the parties have agreed to treat as forming part of the Grounds of Review:

Legal Errors Made By The Tribunal

1. The Tribunal failed to provide procedural fairness by making a decision in the applicant's absence without checking if he understood the process or had legal help.

2. The Tribunal wrongly dismissed his claims as lacking detail instead of considering the LGBTQ+ applicants often struggle to describe their stories due to shame and fear.

3. The Tribunal failed to assess the applicant's claims under complementary protection properly, especially the psychological harm and social stigma.

4. The Tribunal did not fairly assess the country information. The official reports do not reflect the real danger for people like the applicant in Malaysia. Through it may say that there is no issue, in reality, people who are known or suspected to be gay face discrimination, police abuse, and social persecution.

(Words as written)

1. The Applicant submits that the Tribunal's Decision is affected by significant legal errors and a denial of procedural fairness.

1. The Applicant notes that he did not attend the hearing on 2 March 2020 on the basis that he did not understand the English language and misunderstood the importance of the hearing. The Applicant notes that he had no legal assistance or anyone "to explain what to do".
2. The Applicant further notes that he was "under immense pressure" from being deceived by a person who took "several thousand dollars" to help him with his Visa. The Applicant submits that he was in a vulnerable financial and emotional state, which meant he could not properly express himself to the Tribunal. The Applicant submits that the Tribunal did not try to reschedule or further investigate why the Applicant failed to attend the hearing.

1. The Applicant submits that the Tribunal failed to afford him procedural fairness in making the decision in his absence without checking if he "understood the process". The Applicant submits that the Tribunal wrongly dismissed his claims due to a lack of detail and failed to consider that LGBTQIA+ applicants often struggle to describe their stories due to shame and fear.
2. The Applicant submits that the Tribunal failed to properly assess the Applicant's claims under complimentary protection or take into consideration the country information. The Applicant contends that the official reports do not reflect the real risk of danger for people who identify as LGBTQIA+.
3. At the Hearing before me, the Applicant indicated that he intended to rely on his written submissions.
4. The Applicant's written submissions raise four grounds in addition to the eight grounds that are set out in the Application. The parties agreed that I should consider both the Grounds of Review set out in the Application and the four grounds set out in his submissions. To some extent, the eight grounds and the four grounds overlap.

1. The Minister submits that the Tribunal's Decision is not affected by jurisdictional error and that the Application should be dismissed.
2. The Minister notes that the Application was accompanied by an affidavit[18] in which the Applicant stated that his lawyer failed to represent him "at the last minute" and failed to give him advice on the day of the hearing.
3. In a further affidavit,[19] the Applicant stated that he was unable to attend the hearing as he misunderstood the notice and did not know the matter would proceed in his absence.

Grounds 1, 4, 5 and 6 - Notification of hearing and decision to affirm the Delegate's Decision without adjourning

1. By these grounds, the Applicant claims that the Tribunal erred by proceeding to make a decision in his absence.
2. The Minister submits that the Applicant was properly invited to attend the hearing in accordance with ss 425 and 425A of the Migration Act.[20] The Invitation dated 10 February 2020 complied with the requirements of s 425A of the Migration Act, on the basis that it:

(a) gave the Applicant notice that the hearing was listed for 2 March 2020 at 8:30am and that it would be conducted in person;[21]

(b) was sent to the Applicant's nominated email address, being the last email address provided by the Applicant;[22] and

(c) satisfied the 14 day minimum notice requirement period under reg 4.35D(3) of the Migration Regulations 1994 (Cth) (Regulations) and s 425A(3) of the Migration Act as it was transmitted to the nominated email address 21 days before the hearing.

1. As the Invitation complied with s 441A(5) of the Migration Act, the Applicant was taken to have received it at the end of the day on the date it was transmitted.[23]
2. The Minister submits that the Applicant's claim that he was not given an opportunity to provide evidence and present his arguments is misconceived. Section 422B of the Migration Act provides that Part 7, Division 4 was an exhaustive statement of the natural justice hearing rule.
3. The Minister submits that the Invitation provided to the Applicant was not a hollow shell or an empty gesture.[24] The Invitation and accompanying fact sheet informed the Applicant that he should notify the Tribunal if he was unable to attend the hearing. The Invitation further set out the consequences of failing to attend.[25]
4. On the date of the hearing, the Tribunal attempted to contact the Applicant on the mobile number provided. However, the Applicant claims that his lawyer failed to represent him at the last minute.[26] The Minister notes that the Applicant did not make any attempts to contact and notify the Tribunal of any issues prior to the hearing; nor did he indicate that he had engaged a representative.[27]
5. The Minister submits that the evidence suggests that:

(a) the Applicant's lawyer failed to represent him at the last minute;[28]

(b) the Applicant misunderstood the importance of the hearing and had no legal assistance;[29] and

(c) the Applicant misunderstood the notice and did not know that the hearing would proceed in this absence.[30]

1. Apart from lodging the Review Application, the Applicant did not engage any further with the Tribunal. The Applicant notably did not respond to the Invitation or provide any additional information in response, despite being given the opportunity to do so.
2. The Minister submits that no error is made out by the Applicant's allegations that the Tribunal did not provide him with an opportunity to appear before it. The Minister submits that the Tribunal was entitled to rely on the deeming provisions regarding receipt of the notice and was not obliged to take further action.

Tribunal's decision to decide the review rather than dismiss for non-appearance

1. The Applicant claims that the Tribunal erred by failing to consider rescheduling the hearing.
2. The Minister notes that the Tribunal had a discretion to make a decision without taking further steps to allow the Applicant to appear.[31] The Tribunal was entitled to dismiss the Review Application[32] without adjourning the hearing.[33]
3. The Minister notes that this discretion must be exercised reasonably. For instance, it is unreasonable for the Tribunal to exercise the discretion, without providing reasons, where the Applicant has made several adjournment requests in relation to the hearing.[34] However, it has also been held that it is not unreasonable for a decision-maker to proceed under s 426A(1A)(a) in circumstances where an Applicant fails to appear at a scheduled hearing.[35] The Tribunal holds decisional freedom to consider the most available course of action on a case by case basis.[36]
4. In this case, the Tribunal did not explicitly refer to s 426A(1A)(a) of the Migration Act. The Tribunal noted that the Applicant was invited to attend the hearing on 2 March 2020 and despite receiving notice, failed to attend or provide "any communication whatsoever".[37] The Minister submits that it was reasonable for the Tribunal to infer that the Applicant had not engaged with the Tribunal.
5. In line with the decision in DDF18,[38] the Tribunal's reasons for proceeding to determine the matter should be understood against the following circumstances that:

(a) the Delegate had refused the Visa on the basis that there was limited information about the Applicant's particular circumstances and was not satisfied that the information provided established that he had a well-founded fear on account of being a homosexual male;[39]

(b) the Tribunal invited the Applicant to provide material or written arguments as soon as possible, but failed to do so;[40]

(c) the Applicant did not engage with the Tribunal at any time prior to the hearing;

(d) the Invitation notified the Applicant that a favourable decision could not be made on the information before the Tribunal;[41]

(e) the Applicant had not updated his contact details with the Tribunal; and

(f) the Applicant did not seek an adjournment of the hearing or provide reasons of any kind as to why he could not attend.

1. The Minister notes that identifying legal unreasonableness is "invariably fact dependent" and turns on the particular facts of each case.[42] As such, there is a limit on the utility of comparing the circumstances and outcomes of one case with another.[43]
2. The Applicant was notified of the hearing, informed of the consequences of failing to attend, and ultimately did not attend or seek an adjournment. The Minister submits that it was reasonable for the Tribunal to proceed to make a decision without taking further action to allow the Applicant to appear before it. The Minister submits that the Tribunal was entitled to consider the Applicant's minimal level of engagement on review.[44] In the circumstances, it was open for the Tribunal to infer that the Applicant would not likely seek to engage with the review process.

1. By these grounds, the Applicant claims that the Tribunal "did not investigate" his matter or his reasons for failing to attend the hearing. The Applicant claims that the Tribunal acted unfairly in this regard.
2. The Minister submits that the onus is on the Applicant to advance arguments or evidence in support of his application. Section 5AAA of the Migration Act notes it is the Applicant's responsibility to specify all particulars of a claim. On this basis, the Tribunal must then decide whether a claim is made out.[45]
3. The duty imposed on the Tribunal is a duty to review, not a duty to inquire.[46] The Tribunal had no obligation to conduct an inquiry to discover whether the Applicant's case might be "better put".[47] There is also no obligation on the Tribunal to make further inquiries or obtain information beyond that which is provided by the Applicant.[48]
4. The Minister submits that the Tribunal appropriately dealt with the information and evidence made available to it in reaching the decision and that the Applicant's claims cannot be made out.

1. The Minister submits that these grounds do not articulate or establish any error on the part of the Tribunal.

1. The Minister submits that the Applicant's ground in regard to a failure to consider claims cannot be made out and notes that the onus is on him to outline all particulars and provide sufficient evidence.[49] The Tribunal found that the generality of the Applicant's claims gave rise to serious concern[50] and on this basis, was not satisfied that the events as claimed by the Applicant had occurred.[51]
2. The Delegate similarly found that there was limited information regarding the Applicant's circumstances as claimed. Despite being on notice that the lack of detail in his claims was a reason for the Visa being refused; the Applicant failed to provide further details to the Tribunal to substantiate his claims as a member of the LGBTQIA+ community.
3. The claim that the Tribunal did not assess the Applicant's claims against the complementary protection criteria cannot be made out. The Tribunal found that there were no grounds for believing that, as a necessary and foreseeable consequence of removal, the Applicant would suffer significant harm.[52]

1. The Applicant claims that the Tribunal failed to fairly assess country information. The Applicant alleges that official reports do not reflect the real danger for "people like the applicant" in Malaysia.[53]
2. The Minister notes that country information is a mandatory consideration for the Tribunal in the conduct of review, where relevant.[54] Given that the Applicant's claims were rejected due to their lack of specificity, the Tribunal correctly found that the country information was not relevant on review.[55]
3. The Minister's solicitor made oral submissions supplementing the Minister's written submissions. The Minister did not object to me considering the four grounds that are set out in the Applicant's written submissions. These four grounds are addressed in the Minister's written submissions.

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.[56]
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.[57] 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.[58]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[59] 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".[60] Different kinds of error may overlap.[61] The categories are not closed.[62]
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.[63] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[64] It has been described as an "undemanding" standard.[65]

1. The Protection (Subclass 866) Visa 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 Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
3. 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"[66] as defined by s 5J.
4. 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.
5. Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
6. The criteria that the Applicant was required to satisfy for the grant of a Protection (Subclass 866) Visa are set out in Part 866 to Schedule 2 of the Regulations.

THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY VISA APPLICATION BY AFFIRMING NOT TO GRANT ME A PROTECTION VISA AFTER ME NOT ATTENDING THE HEARING AND PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS DATED 02 MARCH 2020.

I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(l) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUEMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAY.

THE TRIBUNAL ERRER BY CONCLUDING THAT I WAS AWARE OF THE HEARING AND DID NOT MAKE SURE THAT I WAS NOTIFIED ACCORDING TO THE STATUTARY REQUIREMENTS.

THEREFORE, THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID'NT GET THE RIGHTS TO PRESENT MY ARGUEMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.

1. Paragraph 4(a) of the Applicant's written submissions identified the following "legal error":

The Tribunal failed to provide procedural fairness by making a decision in the applicant's absence without checking if he understood the process or had legal help.

1. Grounds 1, 4, 5 and 6 and paragraph 4(a) of the Applicant's written submissions challenge the Tribunal's Decision to proceed with the hearing in his absence. That challenge is formulated in various ways. As summarised by the Minister, they are:
   • The Tribunal did not provide the applicant with an opportunity to appear before it and provide the required evidence: grounds 1, 4 and 6;
   • The Tribunal erred in concluding the applicant was aware of the hearing and making a decision without checking that he understood the process or had legal help: ground 5 and paragraph 4(a) of the applicant's submissions; and
   • The Tribunal should have considered rescheduling the hearing or investigating the reasons for the applicant's absence: Affidavit of the applicant at [10].
2. The requirements of natural justice in relation to the Applicants' hearing before the Tribunal were codified by Div 4 of Part 7 of the Migration Act in relation to the matters dealt with in that Division.
3. Section 422B of the Migration Act provided (at the date of the Tribunal's Decision):
   1. This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
   2. Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
   3. In apply this Division, the Tribunal must act in a way that is fair and just.
4. The Applicant was invited to attend the hearing to give evidence and make submissions, in accordance with ss 425 and 425A of the Migration Act. The Applicant has not identified any shortcoming in the Tribunal's Invitation dated 10 February 2020.[67]

Whether decision to proceed with hearing unreasonable

1. Section 426A of the Migration Act applies where an applicant is invited under s 425 to appear before the Tribunal and does not appear. Pursuant to s 426A(1A)(a) of the Migration Act, the Tribunal may by written statement, "make a decision on the review without taking any further action to allow or enable the applicant to appear before it". Pursuant to s 426A(1A)(b), the Tribunal may "by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal."
2. Where the discretion to dismiss the application for non-appearance is enlivened, a Tribunal would ordinarily be acting reasonably by proceeding to make a decision without attempting to make further contact with the applicant.[68]
3. In DNK17 v Minister for Immigration, Citizenship, Migrant Servies and Multicultural Affairs,[69] (DDK17) Horan J held that it was legally unreasonable for the Tribunal to have made a decision on review under s 426A(1A)(a) of the Migration Act, rather than dismissing the application under s 426(1A)(b) of the Act, which would have preserved the applicant's right of reinstatement. The applicant had made three requests for an adjournment of the hearing and indicated a desire to be heard by the Tribunal.
4. In finding that "either or both the decision to decide the review under s 426A(1A)(a) and the decision not to dismiss the application under s 426A(1A)(b) were legally unreasonable", his Honour stated:[70]

In the particular circumstances of this case, it can be inferred that the Tribunal decided not to exercise the dismissal power under s 426A(1A)(b) for reasons that were similar to, if not the same as, the reasons given for refusing the adjournment request and making a decision on the review under s 426A(1A)(a). The difficulty, however, is that those reasons do not provide any intelligible justification for deciding not to dismiss the application pursuant to s 426A(1A)(b), rather than making a decision on the review.

This was accentuated by the basis on which the Tribunal proceeded to reject the appellant's claims on credibility grounds, namely, based on the insufficiency and lack of detail in the information before the Tribunal and the "limited and contradictory available material". In this regard, the Tribunal emphasised that the appellant's appearance at a hearing "would have been an opportunity to address the various gaps and contradictions, and to provide further information and details": Tribunal's reasons at [30].

To the extent that the Tribunal considered the exercise of the dismissal power under s 426A(1A)(b), it was unreasonable not to have addressed and weighed up the consequences of adopting that option instead of determining the merits of the review application based on the insufficiency of the available information...

1. In Singh v Minister for Immigration and Multicultural Affairs,[71] (Singh) Judge Symons held that the choice between making a decision on review under s 426A(1A)(a) of the Migration Act and dismissing the application under s 426(1A)(b) of the Act, remains in the domain of the Tribunal's decision making freedom. Her Honour stated:

The narrative that underscored the Tribunal's approach was that the applicant having notice of the hearing, having been advised of the consequences of a failure to appear, and having failed to appear or respond to the hearing invitation, was unlikely to take up any further opportunity to engage with the Tribunal or the review process. This narrative provided a rational justification for the decision of the Tribunal.

1. In DDF18 v Minister for Immigration and Multicultural Affairs,[72] (DDF18) Judge Gostencnik stated:

As earlier noted, at [14] of the Decision the Tribunal set out its reasons for proceeding to determine the review application in the applicant's absence. In substance, the Tribunal reasoned that the applicant had not engaged with the Tribunal's process. He was told the information before the Tribunal was insufficient, he was asked to provide further information, but he did not. He was invited to attend the hearing and reminded of the hearing on two subsequent occasions but failed to attend. He did not contact the Tribunal to explain his non-attendance and he was told that if he did not attend, the review application may be determined based on the material before the Tribunal. While there is no express reasons for choosing to exercise s 426A(1A)(a) power rather than (b) of the Act, it may reasonably be inferred that the Tribunal considered the applicant has not, and was not, going to engage with the process. This against the backdrop of also knowing he did not engage with the delegate. I therefore consider that the reasons given for exercising the power also provide sufficient reasons for electing to exercise that power rather than dismissal under s 426A(1A)(b). These reasons have an evident and intelligible basis for exercising the power under s 426A(1A)(a) rather than (b). Therefore, I do not consider a contention that jurisdictional error by reason of the unreasonable exercise of s 426A(1A)(a) power has any sufficient prospects of success.

1. In EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs,[73] (EDY18) Judge Corbett distinguished DDK17 in the context of an application to extend time pursuant to s 477(2) of the Migration Act. His Honour stated:

In DNK17, the applicant did not appear at the scheduled hearing before the Tribunal, however before the hearing, the applicant made two requests for an adjournment, both of which had been granted and a third request that was denied and notified on the morning of the hearing. There was a clear attempt by the applicant to engage with the Tribunal and a clearly expressed desire to be heard. In this proceeding, the applicant did not engage with the Tribunal at all and did not respond to the invitation to attend or complete the 'Response to hearing invitation' form. There was no attempt to supplement the evidence upon which the delegate made the decision to refuse the visa and no new argument or submission made to explain the claims for protection.

DNK17 does not stand for the general proposition that it will always be unreasonable for the Tribunal to elect to make a decision on the review pursuant to s 426A(1A)(a) when an applicant fails to appear at a hearing. There would be no statutory purpose for that section of the Act if, in all circumstances, it was unreasonable for the Tribunal to exercise the power conferred. There is nothing in the reasoning in DNK17 to suggest that the power to decide rather than dismiss should not be exercised in appropriate cases.

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.[74]
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.[75]
3. In the present case, the Tribunal's Decision to proceed on the available evidence was made in the following context:

(a) on 18 October 2017, the Applicant lodged an application for a protection visa. The Applicant's application contained limited information concerning his fear of harm if he were to return to Malaysia;[76]

(b) the Delegate's Decision provided, amongst other things:[77]

There is limited information before me about the applicant's particular circumstances. I consider it reasonable to expect a person who genuinely fears harm in their country of nationality to present their case in sufficient detail for the decision maker to be satisfied of the genuineness of the fear.

(c) on 22 April 2017, the Tribunal sent an email to the Applicant which provided, amongst other things:[78]

If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

(d) on 10 February 2020, the Applicant was invited to attend the Tribunal to give evidence and present arguments. The Invitation provided, amongst other things:

We have considered the material before us but we are unable to make a favourable decision on this information alone.

(e) the hearing Invitation and accompanying fact sheet informed the Applicant that he should notify the Tribunal if he was unable to attend the hearing, and set out the consequences of failing to attend;[79]

(f) the Applicant did not complete the Response to Hearing Invitation Form;[80] and

(g) there is no evidence of any contact between the Applicant and the Tribunal prior to the hearing, for example requests for adjournment or provision of information.

1. While the Tribunal Decision does not specifically refer to the discretion to dismiss, it does set out why "the Tribunal has decided to make a decision on the available evidence".
2. The Tribunal's Decision provides:[81]

The applicant was invited to attend the Tribunal on 2 March 2020 at 8.30am but he failed to attend the hearing or provide any communication to the Tribunal whatsoever.

(Emphasis added)

1. The Tribunal's Decision provides:[82]

If the applicant had attended the Tribunal, the Tribunal would have had an opportunity to seek further information about his claimed experiences in Malaysia but despite receiving email notification of the hearing from the Tribunal, he failed to attend the hearing or provide any communication to the Tribunal whatsoever. In his written application, the applicant raised serious claims. If he had attended the hearing the Tribunal would have asked the applicant about the incident where he claimed to have been threatened in public and at his workplace because others around him had come to know he was a homosexual.

1. Paragraphs [14] to [17] of the Tribunal's Decision makes similar comments.
2. The Tribunal's Decision provides:[83]

Accordingly, the Tribunal has decided to make a decision on the available evidence.

1. Having regard to the Tribunal's Decision at paragraphs [11] to [18], considered against the context that I have set out above, the evident and intelligible justification for the Tribunal's Decision to determine the matter on the basis of the information before it was that the Applicant did not seek to participate further in the Review Application. It is not legally unreasonable for the Tribunal to conclude that the Applicant did not wish to participate more than he already had. Noting that the question is fact dependent, as was the case in Singh, DDF18 and EDY18, it was within the Tribunal's decisional freedom to approach the matter on this basis. Unlike DDK17, this was not a case where the Applicant had made clear by his engagement with the Tribunal that he intended to appear. Both the decision to determine the matter rather than dismiss without determination, have an evident and intelligible justification.
2. The Applicant's explanation for his non-attendance, which includes the failure by his lawyer to represent him at the last minute, and misunderstandings as to the hearing and Invitation, are not matters that were, on the material before me, known to the Tribunal.[84]
3. I am not satisfied that jurisdictional error is made out by reference to Grounds 1, 4, 5 and 6 or paragraph 4(a) of the Applicant's written submissions.

THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID.

ACCORDING TO MIGRATION ACT 1958 - SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGL Y WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.

1. Grounds 2 and 3 allege that the Tribunal erred by failing to investigate.
2. Section 424 of the Migration Act provided (at the time of the Tribunal hearing), amongst other things, that in conducting the review the Tribunal "may get any information that it considers relevant".
3. "The duty imposed upon the Tribunal by the Migration Act is a duty to review."[85] The Tribunal is not in the position of a contradictor.[86] It is for the applicant to make out their case before the Tribunal by presenting evidence and making arguments.[87] In the ordinary case, the Tribunal does not have a duty to make further inquiries or obtain information beyond that provided by the applicant,[88] and "what an applicant is entitled to by way of a hearing is a consideration of the written information provided in the application".[89]
4. In Ismail v Minister for Immigration,[90] Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ stated:[91]

Making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.

1. The Applicant does not identify what matters the Tribunal failed to investigate. As indicated above, in the usual case, it is for the Applicant to provide information to the Tribunal. It is not apparent that the Tribunal failed to investigate a "potential fact [that] was readily ascertainable and... central to the decision".
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 2 and 3.

I SEEK THE COURT FOR JUDICAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.

MY REQUEST TO COURT TO SET ASIDE THE DECISION DONE BY THE MEMBER PETER VLAHOS DATED ON 02 MARCH 2020. ALLOW WITH A REINSTATEMENT TO BE APPLIED ON MY MATTER SO THAT I WOULD BE ABLE TO REPRESENT MY ARGUMENTS AND PROVIDE EVIDENCES TO WITNESS MY CLAIM FOR PROTECTION ACCORDING TO THE LAW IN AUSTRALIA.

1. Ground 7 and 8 do not raise any jurisdictional error or arguable jurisdictional error.
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 7 and 8.

1. Paragraph 4(b) of the Applicant's written submissions identified the following "legal error":

The Tribunal wrongly dismissed his claims as lacking detail instead of considering that LGBTQ+ applicants often struggle to describe their stories due to shame and fear.

1. Paragraph 4(b) asserts that the Tribunal should have considered whether lack of detail arises because LGBTQIA+ applicants might struggle to articulate claims due to their nature.
2. This is not a matter that was put to the Tribunal, at the hearing (noting that the Applicant did not appear) or otherwise, for example in the Response to Hearing Invitation Form. It was not the subject of a "substantial and clearly articulated argument".[92]
3. I am not satisfied that the Tribunal erred as alleged in paragraph 4(b).
4. Paragraph 4(c) of the Applicant's written submissions identified the following "legal error":

The Tribunal failed to assess the applicant's claims under complementary protection properly, especially the psychological harm and social stigma.

1. The Tribunal clearly considered the complementary protection criteria in its decision at paragraphs [26]-[28] of the Tribunal's Decision.[93] The Tribunal rejected those claims for the same reason that it found that the Applicant did not meet the refugee criterion.[94]
2. I am not satisfied that the Tribunal erred as alleged in paragraph 4(c).
3. Paragraph 4(d) of the Applicant's written submissions identified the following "legal error":

The Tribunal did not fairly assess the country information. The official reports do not reflect the real danger for people like the applicant in Malaysia. Though it may say that there is no issue, in reality, people who are known or suspected to be gay face discrimination, police abuse and social persecution.

1. The Delegate's Decision referred to country information at [21].[95]
2. The Tribunal Decision provides:[96]

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 Tribunal's Decision does not otherwise refer to country information.
2. After referring to the events referred to by the Applicant in his application, the Tribunal concluded that it was not "satisfied that any of these events occurred as claimed".[97] The Tribunal concluded that it was not satisfied that the Applicant "has actually experienced the experiences he has claimed to have experienced".[98] In these circumstances, the country information did not have relevance, and was not material to the decision made.
3. I am not satisfied that the Tribunal erred as alleged in paragraph 4(d).

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[99] 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 $5,600 being less than the scale amount.[100] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[101] 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 twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

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

[2] Orders made by Judge Fary on 6 October 2025, Order 1.

[18] Applicant's Affidavit affirmed 11 March 2020, pg 1.

[19] Applicant's Affidavit filed 14 August 2025, pg 2.

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

[22] ss 441A(5) and 425A(2)(a) of the Migration Act 1958 (Cth) (Migration Act).

[23] s 441C(5) of the Migration Act.

[24] Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188.

[26] Applicant's Affidavit affirmed 11 March 2020, p 1.

[28] Applicant's Affidavit affirmed 11 March 2020 at [3].

[29] Applicant's Outline of Submissions filed 14 August 2025.

[30] Applicant's Affidavit filed 14 August 2025.

[31] s 426A(1A)(a) of the Migration Act.

[32] s 426A(1A)(b) of the Migration Act.

[33] s 427 of the Migration Act.

[34] DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17) per Justice Horan.

[35] Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 (Singh).

[36] Singh per Judge Symons at [51].

[38] [2025] FedCFamC2G per Judge Gostencnik at [48].

[42] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 54 (SZVFW) per Nettle and Gordon JJ at [84].

[45] Abebe v The Commonwealth [1999] 197 CLR 510 (Abebe) at [187].

[46] Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429 (SZIAI) at [25].

[47] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (SGLB) at [43].

[49] s 5AAA of the Migration Act.

[53] Applicant's Outline of Submissions at ([4[(d)]).

[54] s 499(2A) of the Migration Act; Ministerial Direction No. 84.

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

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

[58] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[59] Plaintiff S157/2002.

[61] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

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

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

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

[67] CB 76. See ss 425A, 441A(5) and 441C(5) of the Migration Act and reg 4.35D(3) of the Migration Regulations 1994 (Cth).

[68] SZVFW per Gageler J at [69]-[70]. Compare Nettle and Gordon JJ at [97].

[69] [2024] FCA 975.

[71] [2024] FedCFamC2G 1091.

[72] [2025] FedCFamC2G 38.

[73] [2025] FedCFamC2G 402.

[74] Virk v Minister for Immigration and Citizenship [2025] FCA 630 per Hill J held at [31].

[75] 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].

[84] Applicant's Affidavit filed 11 March 2020 at [3], Applicant's Affidavit filed 14 August 2025, pg 2 and Applicant's submissions dated 14 August 2025.

[86] Abebe at [187]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 (VCAK) per Crennan J at [27].

[88] SZIAI at [25]; SGLB at [43].

[89] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (Gleeson CJ and Hayne J).

[90] [2024] HCA 2; (2024) 417 ALR 36.

[91] At [25]. See also SZIAI at [25].

[92] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 at [22]- [27].

[99] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[100] 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).

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