BWS24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1722

1. The applicant is a citizen of Fiji who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision on 6 March 2024. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
2. The grounds raised by the applicant assert that the Tribunal made a jurisdictional error on the basis that the Tribunal:

(a) failed in its duty to properly inquire into the applicant's review application, in circumstances where he said he had not read his protection visa application, and therefore constructively failed to exercise jurisdiction;

(b) failed to inquire into the applicant's review application or his ability to fully comprehend the merits review, and therefore could not be satisfied that the applicant had the opportunity to meaningfully engage in the hearing; and

(c) denied the applicant procedural fairness by encouraging him to raise new claims, without explaining the unfavourable inference it would be required to draw pursuant to s 423A of the Migration Act.

1. For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.

1. On 21 May 2019 the applicant applied for a protection visa. In his protection visa application, the applicant claimed that he had been involved with an indigenous group that was fighting for their land and had been taken for an interview. He also claimed that he had been threatened by the police.
2. On 31 October 2019 a delegate of the Minister refused to grant the applicant a protection visa. The delegate made this decision without inviting the applicant to attend an interview to discuss his claims for protection.
3. On 18 November 2019 the applicant applied to the Tribunal for merits review of the delegate's decision.
4. On 8 January 2024 the applicant's newly appointed representative provided to the Tribunal a statement made by the applicant. The applicant indicated in this statement that he travelled to Australia to escape the threatening environment in Fiji, particularly from non-Fijians imposing sanctions, and claimed that the authorities may not ensure his safety, life, freedom, civil liberties or respect for women and children. He also claimed that he had faced intimidation and threats due to his involvement with a group fighting for land rights. The applicant also claimed he would be persecuted as a Wesleyan Methodist Church believer and subjected to racism as a Rotuman individual. The applicant claimed his 'association with a political party' in Fiji further complicated matters.
5. The applicant and his representative attended a hearing before the Tribunal on 10 January 2024.
6. On 6 March 2024 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. The Tribunal, based on the applicant's evidence at the hearing, accepted that the information in his protection visa application was not reflective of his circumstances, that he was not involved in land rights, was not detained by the police and does not fear the Fijian police for this reason.
2. The Tribunal considered the written submission provided on behalf of the applicant but, aside from some basic information, did not accept that the submission related to the applicant's circumstances in Fiji or was a reflection of what he experienced in Fiji or feared if he returned to Fiji.
3. The Tribunal noted that the applicant claimed to have been mistreated by his stepfather as a child and feared his stepfather. However, the Tribunal did not accept that the applicant would face harm at the hands of his stepfather now or in the reasonably foreseeable future.
4. The Tribunal concluded that the applicant did not have a subjective fear of any threat of harm or concerns for his safety if he were to return to Fiji. This finding was made taking into account the applicant's lack of engagement with the process of lodging his protection visa application and his evidence that he applied for a protection visa and sought merits review of the delegate's refusal of that application to extend his stay in Australia. The Tribunal noted that the applicant confirmed at the hearing that he had not faced any incidents of harm in Fiji and that he came to Australia for a better life for his family.
5. The Tribunal accepted that the applicant may not be able to earn as much in Fiji as he does in Australia and that he may face some challenges upon return in obtaining employment. However, the Tribunal was not satisfied that the applicant would be unable to obtain any employment if returned to Fiji. The applicant had not referred to or provided any evidence that his rights had been infringed or that any difficulty in gaining employment in Fiji was related to his ethnicity or religion. The Tribunal was not satisfied there was a real chance the applicant would be denied the capacity to earn a livelihood of any kind such that his capacity to subsist would be threatened. The Tribunal was not satisfied the applicant faced a real chance of persecution in the reasonably foreseeable future if returned to Fiji because of economic reasons.
6. The Tribunal did not accept that the applicant would face a real chance of harm because he did not vote for the former government in the past, or because of any political profile that would be of any interest or concern to the Fijian government.
7. The Tribunal did not accept that the applicant faced a real chance of harm as a result of having travelled and resided in Australia, or because he sought asylum in Australia.
8. Based on these findings of fact, the Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. The applicant's application for judicial review was filed on 8 April 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
2. The applicant filed an amended application on 26 February 2025. The grounds are set out later in this judgment. While the amended application contains four grounds, Counsel for the applicant advised at the hearing that ground 4 is abandoned. That ground is therefore not addressed further in this judgment.
3. The only evidence before the Court is the court book filed on behalf of the Minister.

GROUND 1: DID THE TRIBUNAL FAIL TO INQUIRE IN RELATION TO THE PREPARATION OF THE APPLICANT'S VISA APPLICATION?

The Second Respondent, failed in its duty to properly inquire into the Applicant's review application, after his admission he never read his protection visa application; giving rise to jurisdictional error by constructive failure to exercise jurisdiction.

(a) In para 29 of the Decision Record, it records as follows:

"The applicant was asked about whether he received any assistance in lodging his protection visa application. He said that a Fijian lady, who he paid AUD$600 lodged his application. When asked if he read what was in his protection visa application, the applicant said that he did not as the lady lodged it from her house. When asked if he read the decision to refuse his protection visa, the applicant said that he went to a family member, who lodged his review application, to extend his stay in Australia. When asked for clarification that he did not read his protection visa application nor the delegate's decision, the applicant confirmed that to be the case and that he had no idea what was in his protection visa application. He stated that he told the lady he wanted to stay in Australia, she lodged the application for him and that she did not explain to him what was in the application."

(b) The Second Respondent omits and fails to acknowledge the enormity of the applicant's admission, that he never read his protection visa application, which purportedly had his name and signature and the subject of the merits review before the Tribunal. The applicant claims it's not his signature and was never asked this question by the Second Respondent.

(c) The applicant admits, he sought the assistance of a Fijian lady, who for a fee agreed to assist him with his protection visa application. The applicant provided the Fijian lady with his passport, as requested and that was the extent of their dealings, when he received notification of the refusal of his protection visa application.

(d) The Second Respondent failed to inquire about his protection visa applications, especially around the issue of whether he actually signed his protection visa application, which he claims he didn't and was never asked, what was agreed between them, did he provide any grounds or did the Fijian lady make up these grounds, was he expecting to review his application before it was lodged and did he expect to sign off on his application, etc.

(e) These inquiries are obvious and vital to the Second Respondent, to properly ascertain how the protection visa application was prepared, what did they agree upon, was the applicant expecting to review his application before it was lodged and was, he expecting to sign the same, etc.

(f) The Second Respondent failed in its duty to inquire from the applicant, nor did it address this vital issue in its Decision Record, implying the Second Respondent unequivocally accepted his admission without question; therefore, the protection visa application for review before the Tribunal (Case No: 1932697) which has his name, contains his forged signature, which he didn't consent to or authorise and rightfully doesn't belong to him.

(g) Wilcox J in Prasad explained this duty to inquire as follows:

"Where it is obvious that materially is readily available which is centrally relevant to the decision to be made ... to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

(h) In SZIAI, the majority held, with regards to jurisdictional error:

"Although decision in the Federal Court concerned with a failure to make obvious inquires led to references to a 'duty to inquire', that term is appt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error .... It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction."

(i) I respectfully submit, the Second Respondent, clearly failed to make an obvious inquiry, regarding the applicant's admission, that he "never read nor signed the application" and it was an failure "to an obvious inquiry about a critical fact, the existence of which is easily ascertained ... such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction", which it did in this case.

(j) I respectfully submit, the failure by the Second Respondent to make this obvious inquiry, gives rise to jurisdictional error by constructive failure to exercise jurisdiction, as stated in SZIAI above.

1. There is no dispute between the parties that the Tribunal may make a jurisdictional error if it fails to make an obvious inquiry about the existence of a critical fact the existence of which is readily ascertained.
2. The main cases referred to by the parties are Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 (SZIAI) and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Prasad).
3. In Prasad, Wilcox J said at 169-170:

The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

1. In SZIAI, the High Court said at [25] (emphasis added, footnote omitted):

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.

The Tribunal did not make any jurisdictional error in the present case by failing to inquire about the preparation of the applicant's protection visa application

1. I do not accept that there was an obvious inquiry about a critical fact relevant to the Tribunal's task that the Tribunal was required to make in the present case. There are two key reasons for this. First, the Tribunal gave the applicant an opportunity to make submissions about the preparation of his protection visa application. Second, the type of further information in relation to which the applicant says the Tribunal should have inquired was not centrally relevant to the Tribunal's decision.

The applicant's opportunity to discuss the preparation of his protection visa application

1. While there is no transcript of the Tribunal hearing in evidence before the Court, it is apparent from the Tribunal's reasons at [29]-[32] that it did ask the applicant some questions about the making of his protection visa application. The Tribunal said at [29]-[32]:
   1. The applicant was asked about whether he received any assistance in lodging his protection visa application. He said that a Fijian lady, who he paid AUD600, lodged his application. When asked if he read what was in his protection visa application, the applicant said that he did not as the lady lodged it from her house. When asked if he read the decision to refuse his protection visa, the applicant said that he went to a family member, who lodged his review application, to extend his stay in Australia. When asked for clarification that he did not read his protection visa application nor the delegate's decision, the applicant confirmed that to be the case and that he had no idea what was in his protection visa application. He stated that he told the lady that he wanted to stay in Australia, she lodged the application for him, and that she did not explain to him what was in the application.
   2. When referred to the information in his protection visa application which claims that he was involved with a group of indigenous Fijians who fought for their land, that he was detained by the police, and that a second interview was scheduled by the police, the applicant stated that the information was incorrect and that he did not fear the Fijian police.
   3. As the submission to the Tribunal also refers to the applicant having faced intimidation and threats due to his involvement with a group fighting for land rights, the applicant was asked if the information in the submission was also incorrect. He said that it was incorrect and that the was not involved with any such group.
   4. On the applicant's evidence at the hearing, I accept that the information in his protection visa application is not reflective of the applicant's circumstances, in that he was not involved in any land rights groups, was not detained by the police, and does not fear the Fijian police for this reason.
2. Based on these passages, I accept the Minister's submission that the applicant gave evidence to the Tribunal about how his visa application was prepared. This included evidence that the applicant paid a Fijian lady $600 to prepare his application, did not read it prior to it being lodged and did not, prior to the Tribunal hearing, know the content of it.

There was no obvious inquiry to make about a fact critical to the Tribunal's task

1. The duty of the Tribunal was to conduct a review of the delegate's decision not to grant the applicant a protection visa. In conducting the review, the Tribunal was required to form its own view as to whether the applicant met the requirements for the grant of a protection visa. This in turn required the Tribunal to understand and consider the claims for protection advanced by the applicant.
2. It is evident from the Tribunal's reasons that the Tribunal asked questions of the applicant to assist it to understand his claims for protection. In addressing these questions, the applicant claimed that the information in his protection visa application was not true and that he did not fear the police in Fiji for the reasons claimed in the written application. The Tribunal took this into account in assessing the applicant's claims for protection.
3. More detailed information about what was agreed between the applicant and the Fijian lady who helped prepare his application, whether the applicant told her any grounds, whether he expected to review his application before it was lodged, and whether he expected to sign the application are not matters that were critical to the Tribunal decision in this matter. Rather, the critical matters to the Tribunal's decision were the applicant's claims for protection, which it clarified at the Tribunal hearing. The Tribunal's failure to make more specific inquiries about the matters referred to by the applicant in this ground does not give rise to jurisdictional error.
4. I invited Counsel for the applicant at the hearing to identify why the issues about which he asserted the Tribunal should have inquired relate to critical facts. Counsel's answer was rather lengthy but essentially amounted to an assertion that when people seek assistance to stay in Australia, often a protection visa application is made on their behalf when that is not the best type of visa for them. Counsel for the applicant appeared to suggest that the critical fact relates to the type of visa the applicant should have applied for. I then invited Counsel for the applicant to explain how that affected the Tribunal's functions, noting that the Tribunal can only review the application before it and does not have the option of treating the visa application as relating to a different type of visa. Counsel for the applicant submitted in response that when the applicant said he did not know what was in his application, the Tribunal should rightfully have ceased the review then and found he did not qualify for the visa.
5. The oral submissions given by Counsel for the applicant at the hearing do not demonstrate that there was a critical fact about which the Tribunal had to inquire. The Tribunal was required to review the Part 7-reviewable decision: s 414(1) of the Migration Act. In conducting the review, it was not required to consider whether it would have been more prudent for the applicant to apply for a different type of visa and it had no power to grant the applicant any other type of visa. It was appropriate for the Tribunal to explore the applicant's claims for protection, as it did.

Other matters referred to in the parties' submissions on this ground

1. There are two further matters raised in the parties' submissions in relation to this ground that ought to be addressed.
2. I accept the Minister's submission that the applicant's contention his signature was forged on the visa application form is not established on the evidence before the Court. The protection visa application form that was submitted to the Department on the applicant's behalf was an online visa application form that did not require a physical signature. Counsel for the applicant acknowledged at the hearing that the protection visa application form did not contain a physical signature.
3. Finally, I accept the Minister's submission that, pursuant to s 98 of the Migration Act, even if the applicant did not fill in the protection visa application form himself, he was taken to have done so if he caused it to be filled in or if it was otherwise filled in on his behalf. Section 98 of the Migration Act provides that a non-citizen who does not complete his or her own application form is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. Thus, in the present case, the applicant is taken to have completed his protection visa application form even if the Fijian lady who assisted him provided incorrect information and even if the applicant was not aware of the content of the protection visa application: see NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 (NAWZ) at [16]; SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 (SZGJO) at [16].
4. While this may not directly address the ground raised by the applicant, it further explains why the matters raised by the applicant were not critical issues to the Tribunal decision.
5. In his oral submissions, Counsel for the applicant sought to distinguish NAWZ on its facts, submitting that, in that case the applicant had made an earlier protection visa application under a false name and had attempted to deny that an application had been made under a false name until his new protection visa application was before the Court. I do not consider that the present case can be meaningfully distinguished from NAWZ or SZGJO in relation to the effect of s 98 of the Migration Act. Section 98 applies in the present case to mean that the applicant is taken to have completed his protection visa application.
6. Ground 1 is not established.

GROUND 2: DID THE TRIBUNAL FAIL TO INQUIRE IN RELATION TO THE APPLICANT'S ABILITY TO FULLY COMPREHEND THE MERITS REVIEW PROCESS?

The Second Respondent, failed in its duty to properly inquire into the Applicant's review application and/or his ability to fully comprehend the merits review in progress; wherefore, it couldn't properly satisfy itself, the Applicant had the opportunity to meaningfully engage at his hearing.

(k) In para 43 of the Decision Record, the Second Respondent states "during the discussions around the submission to the Tribunal, it became abundantly clear that the applicant was not fully engaged in what was in the submission and could not elaborate on the issues raised in the very confusing and poorly drafted submission submitted to the Tribunal. The applicant's representative was asked about whether the applicant understood what was in the submission, The applicant's representative appeared to suggest that the applicant was not articulate and due to lack of education he may not be able to express himself."

(l) In the same paragraph, the Second Respondent goes on to detail its further discussion with the applicant's representative, who raised other issues, claiming the applicant conveyed to him, which weren't raised in the submission, then concedes to the Second Respondent, he too "was not sure of the applicant's situation."

(m) In para 46, the Second Respondent concludes with "given my concerns about the applicant's lack of understanding and the poor quality of representation, the applicant was granted a further seven days to provide to the Tribunal any further information that he or his representative considered relevant and of assistance in determination of the review" and no further information was provided by the applicant.

(n) The above para (c) seems to contradict the Second Respondent's summary in para 16 of the Decision Record where she states "the hearing was held in person at the Tribunal's Perth Registry. The applicant's representative was in attendance and the applicant gave evidence in English. The applicant was proficient in English and confirmed that he was giving evidence without the assistance of an interpreter. The applicant was provided with a lengthy break to seek advice from his representative about his claims and to provide any further information that he wished to be considered in assessing his application for review. The applicant's representative was also given several opportunities to provide submissions, clarify issues, and address the Tribunal's concerns. I am satisfied that the applicant has had a meaningful opportunity to engage with the hearing and to present claims and evidence in support of his review application."

(o) Wilcox J in Prasad explained this duty to inquire as follows:

"Where it is obvious that materially is readily available which is centrally relevant to the decision to be made...to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

(p) Whilst this situation can be distinguished in that "no materials were readily available which is centrally relevant to the decision to be made" the Second Respondent had an interpreter readily available over the phone, if she wanted to, to address her concerns about the applicant's fully engaging with her and having a meaningful opportunity to engage with her at his hearing.

(q) For instance, in para 20 of the Decision Record, the Second Respondent erroneously records the applicant as "an indigenous Fijian" which he's clearly not. The applicant is a Rotuman and identifies as Rotuman and not indigenous Fijian.

(r) If the applicant did in fact answer he was an indigenous Fijian, it could possibly mean he didn't understand the question or lied about his nationality, which is difficult to believe, as these 2 races are both proud of their different culture and traditions.

(s) This fact would have been readily apparent, had an indigenous Fijian interpreter been requested by the Second Respondent simply based on the applicant's name, which the indigenous Fijian interpreter, would have brought to the Second Respondent's attention.

(t) Rotuma although a part of Fiji, have their own Rotuman Council, which is different to the Fijian Great Council of Chiefs, and they have their own distinct culture and traditions.

(u) The applicant did have a representative with him at his hearing, which is his legal right; however, it doesn't automatically prevent the Second Respondent from taking a proactive role, which it would do had the applicant been unrepresented.

(v) The Second Respondent clearly had concerns about the representative's capability in properly representing the applicant, and its respectfully submitted, her concerns at the time, should have awoken her duty to inquire and seek the assistance of a telephone interpreter; which was readily available to her, had she chosen, to provide the applicant with an opportunity to meaningfully engage with her at his hearing.

(w) It should also have been very obvious to the Second Respondent during the hearing, the applicant wasn't "proficient in English" as she earlier believed, which should have raised her duty to inquire then, to provide the applicant with an opportunity to meaningfully engage with her at this hearing, which she unfortunately failed to do.

(x) This instance, is easily distinguishable from Re Golem where Bowman J held "the closer one gets to something resembling an adversarial contest with experienced counsel representing the parties, the closer one get to the system applied in the courts and the greater the reluctance on the part of the Tribunal to interfere and impose its own inquisitorial directions.."

(y) This wasn't an adversarial contest between 2 experienced counsels, rather it was very apparent to the Second Respondent, the applicant's representative wasn't very helpful to his cause and if anything, was more of a hindrance and liability, which should have raised in her mind, her duty to inquire, including but not limited to in obtaining an indigenous Fijian interpreter on the line to provide the applicant with an opportunity to meaningfully engage with the Second Respondent at this hearing.

There is no contradiction in the paragraphs of the Tribunal's reasons relied on by the applicant

1. This ground appears to be premised on an alleged inconsistency in different paragraphs of the Tribunal's reasons about the applicant's ability to understand.
2. The Tribunal addressed the applicant's ability to participate in the hearing at [16] of its reasons, where it said:

The hearing was held in person at the Tribunal's Perth Registry. The applicant's representative was in attendance and the applicant gave evidence in English. The applicant was proficient in English and confirmed that he was giving evidence without the assistance of an interpreter. The applicant was provided with a lengthy break to seek advice from his representative about his claims and to provide any further information that he wished to be considered in assessing his application for review. The applicant's representative was also given several opportunities to provide submissions, clarify issues, and address the Tribunal's concerns. I am satisfied that the applicant has had a meaningful opportunity to engage with the hearing and to present claims and evidence in support of his review application.

1. The Tribunal used headings throughout its reasons. One heading it used was 'Applicant's submission to the Tribunal on 8 January 2024'. Under this heading, there are 11 paragraphs ([36]-[46]). The Tribunal referred to a submission that had been provided on behalf of the applicant and his wife (who made a separate protection visa application and who has a separate application for judicial review before this Court) and discussed concerns it had about who had prepared the submission and whether it related to the applicant's circumstances. The Tribunal said, relevantly, at [42],[2] [43] and [46] of its reasons:
   1. During the discussions around the submission to the Tribunal, it became abundantly clear that the applicant was not fully engaged in what was in the submission and could not elaborate on the issues raised in the very confusing and poorly drafted submission submitted to the Tribunal. The applicant's representative was asked about whether the applicant understood what was in the submission. The applicant's representative appeared to suggest that the applicant was not articulate and due to a lack of education he may not be able to express himself. I observed that the applicant completed high school and that he was merely being asked to explain what had happened to him in Fiji and why he could not return. The applicant's representative then said that the applicant had indicated to him that a lot of people were dying by suicide, made references to native rights and the political party, and that the representative was not sure of the applicant's situation. The applicant's representative, on several occasions, stated that the applicant and his wife drafted the submission, and that he had advised the applicant that the information in his protection visa application and the submission to the Tribunal was based on poor grounds and that he had no prospect of success. The applicant's representative also agreed that a significant part of the submission did not relate to the applicant and asked the applicant if he wished to say anything to the Tribunal. The applicant stated that he had nothing further to say.
   2. I have grave concerns about the quality of representation that the applicant has received from his representative before the Tribunal and have doubts about whether the applicant and his wife in fact drafted the submission that was forwarded to the Tribunal by his representative. I do not accept the applicant's representative's suggestion that the applicant's lack of education or inability to articulate his claims were the reasons for the manner he was presenting before the Tribunal.

...

1. Given my concerns about the applicant's lack of understanding and the poor quality of representation, the applicant was granted a further seven days to provide the Tribunal with any further information that he or his representative considered relevant and of assistance in determination of this review. This is despite my views that the applicant has had ample opportunity to present his case to the Tribunal. The applicant's representative was advised that if there were any further or additional claims not discussed at the hearing, he is to provide the Tribunal with an explanation as to why they were not raised at the hearing. To date no further information has been received.

1. It is apparent from the structure and context of the Tribunal's reasons that the Tribunal in these paragraphs was addressing the submission that the applicant provided to the Tribunal via his representative. I accept the Minister's submission that there is no inconsistency between these paragraphs and the Tribunal's finding at [16] about the applicant's ability to engage in the hearing.

There is no evidence before the Court to show that the applicant was unable to understand the review process or that he lacked sufficient English language skills to participate in the hearing

1. The applicant's ground as pleaded asserts that the applicant was not able to understand the review process. However, the particulars to the ground are more focused on whether the applicant had sufficient English skills to meaningfully participate in the Tribunal hearing.
2. It is worth noting that the applicant indicated in his application to the Tribunal that he did not require an interpreter. The notice of the invitation to attend a hearing, which the Tribunal sent to the applicant, invited the applicant to advise the Tribunal at least seven days before the hearing if he required an interpreter. The applicant did not at any stage request an interpreter.
3. One of the fundamental difficulties with the applicant's ground is that he has not provided evidence to support the ground. While the applicant submitted that it should have been obvious to the Tribunal member that the applicant was not proficient in English, there is no evidence before the Court that would explain why it ought to have been obvious. For example, there is no transcript of the Tribunal hearing. The Court is therefore unable to see if there is a pattern of nonsensical answers that do not respond to questions asked or general incoherence that might support the assertion that it should have been obvious that the applicant was not proficient in English to the point where an interpreter was required.
4. In circumstances where I cannot be satisfied on the evidence before me that the applicant was unable to meaningfully participate in the hearing in English, there is no basis for me to find that the Tribunal needed to make any inquiry about the availability of an interpreter.
5. The applicant identifies one factual matter in the Tribunal's reasons that the applicant asserts is wrong and appears to rely on this to show that the applicant did not understand the question asked of him. The issue relates to the applicant's ethnicity, with the Tribunal recording at [20] that the applicant was an indigenous Fijian. The applicant claimed in his ground to be Rotuman. The applicant submitted that if the applicant had said that he was an indigenous Fijian, it could possibly mean that he did not understand the question. In the absence of any evidence as to what answer the applicant in fact gave at the Tribunal hearing, I am unable to draw any inference about whether or not the applicant understood the question.
6. Even if the applicant did answer one question incorrectly, this would not, of itself, establish that the Tribunal made a jurisdictional error by not making any inquiries about the availability of an interpreter or taking further steps to ensure the applicant understood.
7. I accept the Minister's submission that the Tribunal afforded the applicant a fair opportunity to be heard. It gave him an opportunity to present evidence and submissions prior to the hearing, at the hearing and following the hearing. I accept the Minister's submission that there is nothing before the Court to indicate that the applicant was denied a real and meaningful opportunity to present his case and attend a hearing before the Tribunal.
8. Ground 2 is not established.

GROUND 3: DID THE TRIBUNAL DENY THE APPLICANT PROCEDURAL FAIRNESS BY FAILING TO ADVISE HIM OF THE EFFECT OF S 423A OF THE MIGRATION ACT?

The Second Respondent denied the Applicant procedural fairness, by encouraging them, to raise new claims, which weren't raised with the First Respondent's delegate, without explaining the unfavourable inference she has to draw, pursuant to section 367A of the Migration Act 1958.

(a) The Second Respondent in para 39 (lines 18-21) of the Decision Record, offers the applicant and his representative to take a break and encourages them, after this break to "put forward any further claims or information that he wished to be considered in the determination of his review application."

(b) The Second Respondent's failure to explain the restrictions contained in section 367A, to the applicant and his representative, creates a false sense of legitimate expectation by denying him procedural fairness because it prohibits the Second Respondent from accepting any further claims from the applicant as she's required "to draw an inference unfavourable to the credibility of the claim or evidence if the AAT is satisfied that the applicant does not have an explanation why the claim was not raised or the evidence was not presented, before the primary decision was made."

(c) The applicant was led to believe, through the Second Respondent's encouragement, any new grounds he puts forward, will be seriously considered by her, without any scrutiny or restrictions, mandated by section 367A.

(d) The applicant and his representative took a break of approximately 45 minutes, as noted in para 40 of the Decision Record and tells the applicant there were a number of issues she needs to discuss with him but allows him first to provide her with any further information he wishes to be considered.

(e) The applicant proceeds to provide the Second Respondent with further information, but in the end, at para 42, the Second Respondent concludes "it became abundantly clear that the applicant was not fully engaged in what was in the submission and could not elaborate on the issues raised in the very confusing and poorly drafted submission submitted to the Tribunal."

(f) This is the same submission, the representative first claimed was drafted by the applicant and his wife and when confronted by the Second Respondent in para 38 of the Decision Record, admitted to drafting sections 5-7 of the submissions.

(g) It can be inferred from the Decision Record; the Second Respondent believed the submission was drafted by the representative and not the applicant and his wife, as he claimed.

(h) The Second Respondent denies the applicant procedural fairness, by failing to bring up the caveat in section 367A, even after the applicant introduces new information and never does throughout the whole hearing.

(i) The Second Respondent seems to refer to the caveat in section 367A in para 46 of the Decision Record but stops short of explaining she has to draw an inference unfavourable to the credibility of the applicant's claim, giving the applicant a false impression of the law and his obligations.

Section 423A of the Migration Act

1. Although the applicant in this case has referred to s 367A of the Migration Act, the relevant provision that applied at the time of the Tribunal decision was s 423A. That section provided:

(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:

(a) raises a claim that was not raised before the primary decision was made; or

(b) presents evidence in the application that was not presented before the primary decision was made.

(2) 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. In considering this section, the Federal Court (Raper J) said in EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182 at [51]:

... 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.

The Tribunal did not deny the applicant procedural fairness in the present case

1. I do not accept, in the circumstances of the present case, that the Tribunal denied the applicant procedural fairness by inviting him to present further claims and provide further evidence without explaining the effect of s 423A of the Migration Act.
2. As a preliminary matter, I accept the Minister's submission that it appears the Tribunal gave the applicant an opportunity to provide further evidence and submissions, rather than encouragement to do so, as submitted by the applicant. However, little turns on this.
3. As a further preliminary point, I observe that a large part of the applicant's focus on this ground relates to the Tribunal not advising the applicant about the operation of s 423A of the Migration Act. Without a transcript or other evidence of what was said at the Tribunal hearing, I am in no position to find that the Tribunal did not advise the applicant of the operation of s 423A of the Migration Act. The Tribunal's reasons for decision are not, and do not purport to be, a full recitation of every matter that was addressed at the Tribunal hearing.
4. In any event, I accept the Minister's submission that there was nothing in Division 4 of Part 7 that required the Tribunal to notify the applicant of the operation or effect of s 423A of the Migration Act.
5. The Tribunal had regard to the claims that the applicant pressed and considered each of them. The Tribunal did not expressly refer to s 423A in its reasons or expressly rely on that provision in assessing the applicant's claims and evidence, although the Tribunal did take into account the applicant's lack of engagement in the protection visa application process. Rather, the Tribunal found that the claims the applicant relied on were not established on his own evidence or supported by country information.
6. There are also references throughout the Tribunal's reasons to matters that it put to the applicant, or discussed with the applicant at the hearing. While I cannot know exactly what the Tribunal put to the applicant without a transcript, there is nothing before the Court to suggest that the applicant was led to believe that any new claims he raised or new evidence he provided would be uncritically accepted.
7. Ground 3 is not established.

1. Given my findings that the applicant has not established that the Tribunal made a jurisdictional error, it follows that the application for judicial review must be dismissed.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.

[2] The applicant in his ground refers to [43] and [46]. I have extracted [42] as well for better context.