CBQ18 v Minister for Immigration and Citizenship [2026] FedCFamC2G 365

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Section 423A of the Migration Act 1958 (Cth) (Act) as in force at the relevant time, provided that where an applicant raised a claim not raised before the primary decision was made, or presented evidence in an application not presented before the primary decision was made, directed the tribunal as follows:

"(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. The applicant here claimed that the Tribunal misconstrued section 423A and thereby failed to give him a proper, genuine and realistic opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. For the reasons which follow, I do not find any jurisdictional errors were made by the Tribunal and the application must be dismissed with costs.

1. The applicant is an Indian citizen who arrived in Australia in 2006 on a student visa which expired in 2009, and in 2015 he applied for a protection visa (in making the claim he was assisted by a firm of solicitors). In his original protection visa application in 2015, the applicant's claim was one of harm on the basis of financial destitution and inability to subsist should he be returned to India. The visa application referred to an attachment, but there was none.
2. When the Minister's delegate refused the grant of the protection visa, the applicant sought review in the Administrative Review Tribunal (Tribunal). The application was then dismissed; however, this was set aside by a judge of this Court who remitted the matter to a differently constituted Tribunal for reconsideration according to law.
3. That application eventually came on for hearing before the Tribunal in 2023, and in the Tribunal new claims said to justify grant of a protection visa were made, in essence, based on his political activities as a Sikh and his religious duty to fight injustice, the claim was made that he would be arrested, 'disappeared' and unofficially killed by Indian authorities and/or police should he return to India.
4. Because this claim had not been made before the delegate in 2015, the Tribunal raised with the applicant his adherence to the Sikh faith. There were 3 hearings before the Tribunal. First, he said at a hearing in the Tribunal that he had raised the issue of adherence to the Sikh faith with his then solicitors in 2015 but decided not to pursue the matter, but later he said he could not recall raising the matter and was unsure if he had done so (see Tribunal reasons (TR) [34]). The Tribunal therefore came to the view that the applicant was raising a new protection claim that engaged the operation of section 423A of the Act.
5. Immediately prior to the second hearing before the Tribunal, the applicant contacted his previous solicitors, spoke to the receptionist and asked for a copy of the 'five-page statement' which was said to have contained the additional claims. The firm advised him it could not locate the statement, and it later wrote confirming this. A further written submission was filed by the applicant referring to section 423A and stating that in fact the claims had been made earlier in the five-page statement provided by him to his then solicitors. He alleged that the firm had failed to attach the five-page statement. He did not have a copy of it.
6. The Tribunal put the applicant on notice that it was concerned as to the veracity of his evidence in relation to the alleged five-page handwritten statement. It provided a copy of the Ethics Guidelines published by the Law Institute of Victoria (applying to the law firm which was operating in Melbourne), noting the general obligation of a law firm to retain documents for seven years subject to contrary client instructions or legal obligations. The Tribunal then wrote to the applicant indicating its concern that the principal claims as to the applicant's Sikh faith and political activism were not substantiated by evidence such as was said to have been provided in the five-page handwritten statement.
7. The applicant provided further information, including a letter from the law firm noting that neither of the files it had relating to the applicant contained a five-page handwritten statement by the applicant.
8. The Tribunal considered the question of the five-page statement in paragraphs [67] to [83] in the context of the application of 423A, that is, whether there was a claim not raised before the primary decision was made as follows:

"[68] The operations of this section were discussed in the recent case of EQU19 v MICMSMA [2022] FedCFamC2G 609 which dealt with new evidence provided by an applicant during a hearing and the Tribunal's consideration of that new evidence without reference to s 423A of the Act. This decision illustrates a circumstance in which a failure to expressly address s 423A(2) did not amount to jurisdictional error. It is the first judicial authority stating that there is no formal method or process for obtaining an explanation for a claim that falls under s 423A.

[69] As outlined above it appeared the applicant has made new claims with respect to his religion and political opinion as a Sikh that were not before the delegate. After inquiry the crucial piece of evidence underpinning the applicant inquiry as to why these claims were not raised before the delegate is unavailable.

[70] Accordingly it is open for the Tribunal to consider the explanation for why the claims were not raised earlier and then either choose to accept the explanation (and perhaps just accept that the 5 page handwritten document went missing), or alternatively, rely on the outcome of the inquiry to his past solicitors confirming that no document was on file, to support a finding that the explanation is not reasonable. This will ultimately affect whether an adverse inference with respect to the credibility of the new claims has any affect. That is, if the Tribunal is satisfied that the explanation is reasonable, an unfavourable inference would not be drawn, but if the Tribunal is not satisfied it is reasonable, an unfavourable inference must be drawn.

[71] Ordinarily s 423A provides that where a new claim is raised that was not originally raised before the delegate, the Tribunal is to draw an adverse inference with respect to the credibility of the claim if the Tribunal is not satisfied that there is no reasonable explanation for why the claim was made late: s 423A(2).

[72] Here, it appears the applicant has raised new claims within the present review, that is that he will be persecuted on grounds of his religion as a Sikh and for his associated antigovernment political opinion. The applicant only appeared to raise these claims before the most recent Tribunal at the hearings and through his representative's written submissions. Given they would be considered late claims (not made before the delegate), if the Tribunal finds that the explanation for why they were not provided to the delegate is not reasonable, it would be open for it to draw an unfavourable inference with respect to the credibility of the claims.

[73] The applicant's explanation for why the claims were made late, was that he had originally intended to make these claims in his visa application before the delegate and that his solicitors, after interviewing him about them, had summarised these in a written 5-page document, however they were never made as this document was not submitted. The present Tribunal has since sought to obtain a copy of this 5-page document to verify the credibility of this explanation, however, the document has not been forthcoming, with the solicitors who acted for the applicant at the time of the visa application, recently confirming that they do not have a copy of it on their records.

[74] Hence the question here for the Tribunal to consider, that is, given the document isn't able to be obtained, does it mean the applicant's explanation is not credible (that perhaps because the document cannot be obtained, it means it never existed?).

• If the Tribunal considered that was the case, accordingly the Tribunal could find the explanation not reasonable, and would need to draw an adverse inference with respect to credibility of the new claims in accordance with s 423A(1).
• In the alternative, it is open to the Tribunal to consider that perhaps the applicant is telling the truth with respect to his reason (and perhaps the solicitors lost the document), and if finding that to be the case, it would be then open to the Tribunal to consider whether the explanation proffered for why the claims were made late is reasonable (that is by inference, they were negligently not put forward by his representation at the time). This would avoid any adverse inference of credibility being made against the late claims.
• Ultimately this is a question for the Tribunal to consider and make findings on.

[75] With respect to the applicant's claim of fear harm as a refugee on the basis of his religion as the applicant identifies as a Sikh the Tribunal accepts the applicant is an observant Sikh. Hence this claim ordinarily arises on the facts. As such, any application of s 423A to draw an adverse inference as to credibility would have little relevance. This is because even if the Tribunal were to draw an adverse inference to the credibility of the claim, it does not change the fact that the applicant is still a Sikh and therefore may still be subject to persecution for his religion, if that is indeed what the country information suggests. Accordingly, the Tribunal concludes that the claim arose before the delegate.

[76] The applicant's other claim is that he holds an anti-government opinion, which again is tied into his identity as a Sikh. This claim does not automatically arise on the facts, given it is not clear that all Sikhs would hold the same political opinion and or/fear persecution for that reason.

[77] The applicant's evidence to the Tribunal was that Sikhs hold varying political opinions. These political opinions extend to matters of consequence including the secession of a state or states from India. These political opinions are on occasion accompanied by violence to such an extent that the police are called.

[78] The applicant has raised a claim that was not raised before the primary decision was made. In response to a question from the Tribunal as to why this claim had not been raised prior to the delegate making the primary decision the applicant stated he had advised his then solicitors, they had said it was not worthwhile to pursue this claim and accordingly he had instructed his then solicitors not to pursue this claim. The Tribunal pointed out to the applicant the fact his then legal representatives had provided lengthy and detailed submissions to the Department pursuant to his instructions. The applicant advised the Tribunal he could no longer recall and was unsure. He also advised the Tribunal he did not recall and was not sure his then solicitors had provided him with copies of their correspondence on his behalf to the Department.

[79] In later evidence the applicant made specific claims he had provided a detailed 5 page written statement to his then solicitors. This statement, in part addressed his political claims. Written submissions to the Tribunal confirm the 5 page statement is not available on the relevant files and that Clothier Anderson [the solicitors] advised "...neither file contains a 5 page handwritten statement by you."

[80] In addition the Tribunal notes that in lodging his Application for a Protection Visa in 2015 Clothier Anderson stated on behalf of the applicant "...It is acknowledged that my client does not have the strongest claims to meet the relevant criteria for a Protection (subclass 866]." The applicant's MA provided written submissions on this point.

[81] It is of course possible the applicant provided a 5 page written statement to his then solicitors that addressed his fears of persecution for reason of religion and political opinion. It is of course possible that his then solicitors failed to attach this crucial document to the relevant file. It is of course possible his then solicitors ignored this letter or failed to comprehend its significance and hence volunteered the statement "...my client does not have the strongest claims to meet the relevant criteria for a Protection (subclass 866]."

[82] This 5 page written statement can only be described as a most crucial document. It provides a basis for a claim for protection as it squarely addressed s 5J(1)(a) reasons for persecution. Considering the totality of the evidence on this point inclusive of the relevant written submissions the Tribunal is not persuaded the applicant ever provided the 5 page handwritten statement to his then solicitors. The Tribunal is of the view the applicant has manufactured this reason well after the event.

[83] In the language of s 423A(1)a) the Tribunal is of the view this claim "raises a claim that was not raised before the primary decision was made." Accordingly the Tribunal draws an inference unfavourable to the credibility of the claim as the Tribunal "...is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.""

1. The Tribunal then proceeded to set out its conclusions on the claims for refugee and complementary protection at paragraphs 84 to 103. As can be seen from paragraph 75, the Tribunal was prepared to accept that a religious claim did arise before the delegate, but did not accept such a claim as having been raised explicitly or implicitly in relation to the political opinion claim.
2. As noted, the Tribunal had concluded that the five-page statement was a "most crucial document", it was not persuaded the applicant ever provided such a statement, and indeed, that it was a manufactured reason "well after the event". Obviously, these were serious findings, but they were well open to the Tribunal.
3. The Tribunal then proceeded to weigh up the applicant's evidence and the country information, and as the Minister submitted, the Tribunal made the following key findings:

(a) "There was no evidence that the practice of the applicant's religious faith had attracted the attention of the Indian government, and the applicant's political activities "to the extent they reflect on the dictates of his conscience as informed by his religious faith" had been minimal": reasons at [95].

(b) "The applicant was not arrested or detained at the rally he attended in January 2023 and there was little evidence to suggest that this type of limited activity might draw the attention of the Indian government authorities": reasons at [96].

(c) "The applicant was not a religious activist, a political activist, a political dissident or a religious dissident, and his evidence as to what he had posted on social media was general and lacked specifics and detail": reasons at [97].

(d) "Without being able to examine the now-deleted social media posts, the Tribunal was not able to conclude that their content was so extreme or offensive that it would draw the ire of the Indian government or their agencies": reasons at [98].

(e) "The Tribunal was unable to conclude that the religious or political activities undertaken by the applicant during his life in India and Australia were anything other than those of an educated, informed, hardworking and law-abiding person who had eschewed any involvement in significant anti-government activities of any kind": reasons at [99].

(f) "There was little information before the Tribunal to indicate the applicant's fear of harm was for reasons of his race, nationality, political opinion, religion or membership of a particular social group": reasons at [100].

1. Essentially, for these reasons the Tribunal found that the applicant did not have the required, well-founded fear of persecution, nor did his claims have a credible basis, and thus his protection visa claims failed: see [102] - [103].

1. The sole ground of review (omitting particulars) in the amended application is as follows:

"3. The Tribunal found that it "was satisfied that the applicant (did) not have a reasonable explanation why the claim (in regard to his political opinion) was not raised, or the evidence was not presented, before the primary decision was made". The Tribunal misconstrued s.423A of the Migration Act 1958. The Tribunal took into account an irrelevant consideration and failed to take into account relevant considerations. Having invited the applicant to a hearing under s.425 of the Migration Act, the Tribunal failed to give the applicant a "proper, genuine and realistic" opportunity "to give evidence and present arguments relating to the issues arising in relation to the decision under review"."

1. Section 423A was considered, for example, by Raper J in EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182, as follows:

"[51] In any event, I do not accept the appellant's description of the operation and bounds of s 423A. Section 423A cannot be read as codifying the circumstances in which the Tribunal may draw an unfavourable inference. Rather, as the Minister contended s 423A makes it mandatory where there is the late assertion of a claim or the provision of evidence for the Tribunal to draw an unfavourable inference regarding the applicant's credibility in the absence of a reasonable explanation. This does not entail the obverse, namely that where there is a satisfactory explanation no credibility finding can be made in respect of the claims: see, e.g., SZUHJ v Minister for Immigration and 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.

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

1. The applicant's lawyer seeks to draw a somewhat elusive distinction between the requirements of 423A itself, namely whether the applicant has a reasonable explanation, compared to whether the applicant has offered a reasonable explanation. He says:

The answer is to be determined objectively taking into account all the relevant circumstances ... The Tribunal asked itself whether the applicant had offered a reasonable explanation and not whether the applicant had a reasonable explanation, and constructively failed to exercise its jurisdiction.

1. I do not accept that submission. That is not what the Tribunal did. Rather, it applied s 423A carefully and correctly. The applicant, of course, was required to make his case before the Tribunal. That follows from section 5AAA of the Act which provides:

(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

(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.

...

(4) To remove doubt, the Minister does not have any responsibility or obligation to:

(a) specify, or assist in specifying, any particulars of the non‑citizen's claim; or

(b) establish, or assist in establishing, the claim.

1. It also follows from what was said by Gummow and Hayne JJ in Abebe v The Commonwealth [1999] HCA 14 at [187]:

"The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well‑founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out."

1. As a matter of procedural fairness, the Tribunal acted impeccably. There were three hearings. The Tribunal clearly put the applicant on notice and in writing, as well as at the hearing, of the potential applicability of section 423A of the Act. There was sufficient opportunity for the applicant to respond, and the particular concerns of the Tribunal were clearly raised. See also TR [34], [58] - [60].
2. In relation to the five-page statement, the applicant was raising the existence of such a document. He was unable to produce the document, and having inquired of his former lawyers, no such document was produced, and it was certainly open to the Tribunal to come to the conclusion it did, as set out above.
3. It is said that the Ethics Guidelines setting out the seven-year prima facie requirement for retention of documents was an irrelevant consideration (i.e., which it was prohibited from taking into account), but that is not so. All the Tribunal was doing was making a finding of fact in relation to its satisfaction or lack of satisfaction as required by 423A(2) of the Act as it then stood. It was pointing out, understandably, that there was the seven-year retention requirement, but that the firm had retained its files and the five-page alleged statement did still not appear on those files.
4. As to the suggestion that there was no proper, genuine or realistic opportunity to give evidence or present arguments, that also must fail. The history of the matter set out above demonstrates the contrary.
5. It was open to the Tribunal to consider the five-page handwritten statement as "a most crucial point" and then to conclude, as it did, that the document did not exist and that the claim had been subsequently manufactured.
6. In contrast to the decision of Judge Kendall in ASJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 476, relied upon by the applicant, this is not a case where the Tribunal did not actively engage with the applicant's evidence in relation to 423A, or more generally. Rather, the Tribunal had carefully considered the evidence, had made the adverse credibility finding under 423A which was well open to it, but had at least as importantly relied upon the evidence the applicant did give and the country information. It found not only that the claims lacked a credible basis, but also that the applicant did not have a well-founded fear of persecution.
7. The mere disagreement with the Tribunal's course of action and reasoning, no matter how emphatic, is of no relevance to an application under s 476 of the Act, which needs to show, but does not here show, jurisdictional error. The application fails.
8. It follows that the application must be dismissed with costs.
9. The Minister seeks costs (below the scale amount) of $5,900. In view of the nature of the matter, the documents involved and the arguments involved, I am satisfied that they were costs properly incurred.

1. The orders of the Court are as follows:
   1. The application be dismissed.
   2. The applicant is to pay the first respondent's costs fixed in the sum of $5,900.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.