BVZ20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 574

1. The applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the former Administrative Appeals Tribunal (Tribunal) made on 7 April 2020. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made 24 March 2017 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
2. Reference in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit 'R1'.

1. The applicant is a citizen of Malaysia (CB 14, 38).
2. On 25 August 2016, the applicant arrived in Australia on an Electronic Travel Authority (Subclass 601) visa (CB 23, 42).
3. On 11 October 2016, the applicant applied for the visa (CB 1-39, 86 [10]). The applicant claimed that she feared persecution and the risk of harm on the basis that she would be forced to convert to the Muslim religion (Islam) and become the third wife of a violent older man. This was because her parents had gambling debts to that man (CB 32, 43). The application for the visa was written for the applicant by an unidentified friend (CB 88 [16], 100 [42]).
4. On 24 March 2017, the delegate refused to grant the visa (CB 42-56). The delegate noted that the applicant 'provided limited information and her claims are vague and lacking in detail' (CB 43). The delegate found that the applicant was not a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 42).
5. On 4 April 2017, the applicant applied to the Tribunal to review the delegate's decision (CB 57-8).
6. On 16 March 2020, the Tribunal invited the applicant to attend a hearing in Melbourne to be held on 1 April 2020 at 9:30am (CB 62-8).
7. On 24 March 2020, the Tribunal rescheduled the hearing to a telephone hearing due to COVID-19 restrictions (CB 69-73). On the same date, the applicant responded via email, agreeing to a telephone hearing (CB 74).
8. On 1 April 2020, the applicant attended the Tribunal hearing by telephone with the assistance of an interpreter of the English and Malay languages (CB 79-81). At the hearing, the applicant raised a new claim for protection based on her sexual identity as a lesbian (CB 88 [18]).

1. On 7 April 2020, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa (CB 84-105) (Decision).
2. In the Decision, the Tribunal set out the statutory criteria required to be met to qualify for the visa under s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 85 [3]-[7]). The Tribunal also referred to the guidelines for decision makers in Ministerial Direction No. 84, made under s 499 of the Act (CB 85 [8]). The Tribunal then set out the applicant's migration history, claims for protection and the procedural background to the application for review (CB 86-7 [10]-[11]). The Tribunal then recorded the applicant's evidence from the application for the visa and the applicant's oral evidence to the Tribunal (CB 87 [12]-[29]), including the applicant's new claim (CB 88 [18], [26]). The Tribunal then put country information prepared by DFAT to the applicant regarding arranged marriage and sexual orientation in Malaysia for her comment (CB 89 [27]).
3. The Tribunal considered s 432A of the Act in relation to the applicant's new claim (CB 99-101 [36]-[42]). The Tribunal was not satisfied that the applicant provided a reasonable explanation for the failure to include a significant ground for her claim for protection in the application and concluded that the Tribunal was entitled to draw an adverse inference regarding the credibility of her claim (CB 101 [42]).
4. In CB 101 [43] of the Decision, the Tribunal made the following factual findings:

[43] In so far as the forced marriage was concerned, the applicant identified the person that she was required to marry and his age, but provided little other detail . No witnesses or documents were produced to support this assertion. Further, no details for these assertions are to be found in the application for the protection visa. Insofar as the claim of being forced to convert to Islam was concerned, she gave no evidence of this matter at the hearing. The Tribunal is not satisfied that the applicant was to be forced to marry a person she did not want to marry. The Tribunal is not satisfied that the applicant was threatened with being forced to convert to a religion which she did not want.

1. The Tribunal then proceeded to assess the applicant's claims against the statutory criteria (CB 101 [44]-[45]) but found that the applicant was not a refugee within the meaning of s 5H and 5J(1) of the Act and was not satisfied that the applicant is a person in respect of whom Australia has complementary protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 101-2 [45]-[50]).

1. On 1 May 2020, the applicant applied for judicial review of the Decision. The application for judicial review was supported by an affidavit filed on the same date. The affidavit simply annexed a copy of the Decision.
2. On 19 August 2024, a registrar of this Court ordered that the applicant file and serve any amended application with proper particulars, written submissions and any additional evidence on which the applicant seeks to rely at least 28 days before the date fixed for hearing.
3. The Minister prepared a Court Book filed 2 September 2024, an outline of written submissions filed 16 February 2026 and a list of authorities filed 24 February 2026.
4. On 7 November 2025, the applicant obtained legal representation.
5. On 3 February 2026, the applicant filed an amended application for judicial review with one ground of review:

1. The Tribunal failed to comply with s 425(1) of the Migration Act 1958 (Cth), in failing to notify the applicant of an issue arising in relation to the review, being the need for corroboration of her claim to being at risk from a possible forced marriage.

Particulars

a. The applicant claimed to be at risk of harm if returned to Malaysia because she might be forced to marry someone not of her own choosing and that she would be forced to change her religion.

b. The applicant attended a hearing before the Tribunal and answered all questions asked of her about the forced marriage claim. At the hearing, the Tribunal did not put the applicant on notice that her evidence might not be sufficient to satisfy the Tribunal of the truth of her claims unless she presented 'witnesses or documents' to corroborate her evidence (see transcript annexed to affidavit of Catherine Jane Farrell at CJF-4).

c. Despite not having notified the applicant of the need for corroboration of her claim to being at risk from a possible forced marriage, the Tribunal affirmed the decision under review partly on the basis that it did not accept the applicant's forced marriage claim as 'No witnesses or documents were produced to support this assertion' (Reasons [43]).

d. Had the Tribunal not erred, there is a realistic possibility that the outcome of the review may have been affected.

1. On 3 February 2026, the applicant also filed an outline of written submissions and an affidavit of Ms Catherine Jane Farrell affirmed 3 February 2026 that annexed a Freedom of Information request and a transcript of the Tribunal hearing.
2. The application for review was listed for final hearing before this Court in person at Melbourne on 3 March 2026. At the hearing, Mr Aleksov of counsel appeared for the applicant. Ms Mills of counsel appeared for the Minister.

1. Mr Aleksov relied on the applicant's outline of written submissions filed 3 February 2026.
2. Mr Aleksov submitted that the Tribunal failed to afford the applicant a fair hearing as required by s 425(1) of the Act (Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485 at [24]- [29], [53] and [73] per Button J (Nguyen)), as the applicant was not put on notice that her evidence might not be sufficient to satisfy the Tribunal of her claims unless she presented 'witnesses or documents' to corroborate her evidence. It was submitted the need for corroboration was not obvious from known material, and the need for corroboration was an 'issue' in the review. That issue was not obvious from the delegate's decision, which was a decision made on the papers without interviewing the applicant. Further, the delegate proceeded to decide the applicant's claims on the basis of the adequacy of state protection (CB 50) and did not openly criticise the adequacy of the proof of the applicant's claims for protection. The delegate described the applicant's evidence as 'vague' and 'lacking in detail' (CB 43 and 49) but that did not put her on clear notice that her claims must be corroborated on a review before the Tribunal.
3. Mr Aleksov also submitted that the hearing invitation letter from the Tribunal does not mention the need to provide corroborative material (CB 62-8).
4. The applicant was self-represented at the Tribunal hearing and spontaneously answered all the questions asked of her about her claims. The applicant was not put on notice that she was required to address the veracity of her claims. In fairness, the presiding member should have asked the applicant if she had any corroborating material or evidence to support her claim before making a finding that no witnesses or documents were produced to support her assertions. She simply did not know and was not put on notice that this was a necessary requirement of the Tribunal.
5. Mr Aleksov referred to s 5AAA(2) of the Act, which states:

(2) For the purposes of this Act, it is the responsibility of the non - citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

1. However, here there was no hearing before the delegate and at no stage was the applicant informed that her evidence was insufficient or would be rejected because of the lack of corroboration.
2. Mr Aleksov tendered the affidavit of Ms Catherine J Farrell filed 3 February 2026, which annexed a transcript of the Tribunal hearing (exhibit 'A1'). Various passages in the transcript were identified to demonstrate that the applicant was not put on notice that her evidence required corroboration. It was submitted that at no point did the Tribunal ask the applicant if she had any witnesses or documentation to corroborate her claims.

1. Ms Mills relied on the Minister's outline of written submissions filed 16 February 2026.
2. It was submitted that it was not in dispute that the Tribunal must identify to the applicant any issue critical to the decision which is not apparent from its nature, the terms of the statute, or which is not obviously open on the known material (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29] (SZBEL)).
3. It was clear from the known material and the delegate's decision at CB 43 and 49 that the credibility of the applicant's claims was in issue, and it was not necessary for the Tribunal to identify this issue again for the applicant to be provided with a fair hearing.
4. The Tribunal hearing invitation and information sheet refers to the hearing as 'an opportunity to give evidence' and 'the hearing attendant will check with you...whether you have any documents which you wish to give to us' (CB 64-6). On page 24, 26 and 38 of the transcript of the hearing, the presiding member squarely said to the applicant that this was her opportunity to prove her claim.
5. Procedural fairness does not require (and it would be inappropriate) for the Tribunal to give a 'running commentary' during or after the hearing as to whether the applicant had given sufficient evidence to satisfy the Tribunal of her claims (SZBEL [48]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57 at [31] per Gleeson CJ and Hayne J).
6. There was no failure by the Tribunal to provide procedural fairness or a failure to disclose the issues on the review. In the absence of the Tribunal identifying new issues, the applicant should have known that the issues that the delegate considered dispositive were the same issues on the review. Those issues included the adequacy of the proof of the applicant's claims (SZBEL at [35]-[36]). It was submitted that the application should be dismissed with costs.

1. Mr Aleksov did not seek to make any further submissions in reply.

1. Section 425(1) of the Act at the time of the Decision stated:

(1) 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.

1. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-1 (Alphaone), the Full Court of the Federal Court said (per Northrop, Miles and French JJ):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material...

1. This was cited with approval by the High Court in SZBEL at [32]. The question to be answered in this application is whether the applicant had the opportunity of ascertaining the relevant issues to be determined by the Tribunal and was informed of the evidence that the Tribunal was required to considered relevant.
2. Another passage from Alphaone cited with approval by the High Court in SZBEL at [29] is as follows:

[29] Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question (emphasis added).

1. In Nguyen at [27], her Honour Justice Button adopted with approval the following statement of principle from SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 at [7] per Gray J:

[7] ...First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the tribunal's conduct of the review of that decision. Third, because the tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the tribunal might not be persuaded by that material; the tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the tribunal's specific reservations about the applicant's case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the tribunal, and will therefore be shaped by that person's thought processes. This is not to say that the tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL [v Minister for Immigration and Multicultural and Indigenous Affairs (2006)] 228 CLR 152 at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.

1. Also relevant from the decision in SZBEL are the passages at paragraphs [47]-[49] where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ identify three further general points relevant to the assessment of identifying the issues on the review:

[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

[48] Secondly, as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry[1]:

"...the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

[49] Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.

1. In this case, the delegate's decision made plain that the applicant's evidence in support of her claims in the application for the visa were vague and lacking in detail (CB 43 and 49). At CB 49, the delegate went further to say 'no information is before me to suggest the applicant, would be forced to marry without her consent'. The delegate also expressed views regarding the country information regarding the adequacy of state protection, which were open for the applicant to contradict or negate with evidence at the hearing before the Tribunal, but did not. The fundamental issues on the review did not change after the delegate's decision and the adequacy of the applicant's evidence was a matter that required the applicant to do something more than simply rely on the application for the visa.
2. There was no refusal to provide the applicant with a reasonable opportunity to be heard on her claims and to present evidence, including her new claim.
3. The transcript of the hearing shows that the presiding member explained that the hearing was the applicant's opportunity to tell the Tribunal 'anything you think is relevant to your case' (transcript page 24, line 12). The presiding member also explained the importance of telling the truth and the consequences of not telling the truth (transcript page 26, line 4). Some of the hearing was focused on the applicant's new claim, but the transcript reveals that the applicant was not reluctant to express herself or to articulate her claims, or the reasons behind them. However, as was the case with the applicant's application for the visa and the delegate's decision, the applicant had no evidence, other than her own statements, to confirm her claims. That was always an issue on the review and consistent with the requirement to provide sufficient evidence to establish a claim under s 5AAA of the Act.
4. The invitation letter from the Tribunal dated 16 March 2020 also contained an information sheet that explained that the applicant could take oral or written evidence from other persons, and could provide information or documents to the Tribunal that the applicant may wish the Tribunal to consider (CB 62-8). This also put the applicant on notice of the need to address the criteria required to obtain a protection visa, and the need to establish that the applicant was either a refugee or entitled to complimentary protection in circumstances where her previous evidence was described as vague and lacking in detail.
5. The applicant was provided with a reasonable opportunity to be heard and to present her claims for protection. The presiding member was not required to explain to the applicant his level of satisfaction with the quality of adequacy of her evidence. There was no failure to inform the applicant that her evidence and the corroboration of it was an issue in the review. There was no material jurisdictional error by the Tribunal in the making of the Decision.

1. The amended application for judicial review filed 3 February 2026 is dismissed.

1. Costs should follow the event.
2. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $9,097.93, which is the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
3. The sum claimed is fair and reasonable in the circumstances of this case and will be ordered to be paid by the applicant.

I certify that the preceding fifty-two (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

[1] [1975] AC 295 at 369.