CFD24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 432

(a) whether the Tribunal failed to undertake the requisite review task by failing to make an obvious inquiry about a critical fact the existence of which could easily have been ascertained; and

(b) whether the Tribunal acted in a legally unreasonable manner by failing to seek or obtain further information in order to assess the degree of risk faced by the applicants if they were to return to Indonesia.

1. Tribunal reviews of the inquisitorial kind, including reviews conducted under Parts 5 and 7 of the Act as it stood at the time the Tribunal made its decision in the present case, commonly involve the Tribunal requesting information and asking - and receiving answers to - often numerous questions. Depending on the issues requiring determination, the material already before it and the availability of reliable sources of further information, the Tribunal undertakes a fact‑finding process in which it determines what information it will seek or obtain, what questions it will ask, how and when those questions will be asked, and of whom. Beyond the hearing itself - the forum in which the Tribunal may elicit information directly and test credibility - the Tribunal may also request information from applicants, and invite comment on information, in writing both before and after a hearing. In most cases, a well‑structured and focused series of inquiries will produce responses that, assuming procedural fairness obligations are met, enable the Tribunal to be satisfied that it has asked enough questions and gathered sufficient information to fairly determine the review application. Put simply, there comes a point at which the Tribunal concludes that no further inquiries or information‑gathering exercises are required in order to decide the matter.
2. In this case, the applicants contend that the Tribunal had not reached that point, because it failed to make sufficient inquiries into the post‑election conditions faced by ethnic Chinese Indonesians following the election of President Prabowo in February 2024, or to undertake its own further information‑gathering in relation to that issue. In my view, the circumstances of this matter neither warranted nor required any such additional inquiry or information‑gathering concerning those post‑election conditions. My reasons for reaching that conclusion are set out below.

1. The background and procedural history to this matter was helpfully summarised in the parties' written submissions filed in the latter months of 2025.
2. The first applicant (applicant), a female national of Indonesia, arrived in Australia on 25 October 2011, as the holder of a Subclass 573 Student (Class TU) visa granted on 28 September 2011.[1] The second applicant is the applicant's daughter, born in Australia in June 2017.[2]

1. On 24 February 2018, the applicant made an application for a protection visa, in which she claimed to fear harm in Indonesia on the basis of:

(a) high levels of criminal activities and robberies, particularly in her home town;

(b) women frequently being robbed, harmed or killed by men on motorbikes with knives;

(c) having herself been the victim of a life-threatening robbery in 2013 when she was approached by unknown men on motorbikes while out shopping on her scooter in the evening, threatened with a knife to the neck and had her wallet stolen;

(d) experiencing long lasting trauma as a result of the life-threatening robbery in 2013;

(e) information she discovered in online articles that detailed many women being harmed during robberies by scratching and slicing their hips with knives if they did not hand over their wallet or money;

(f) her fear of leaving home, even to shop, if she returned;

(g) her ongoing fear of repeat incidents of harm and her inability to relocate as these criminal activities had spread to many areas; and

(h) the police offering inadequate protection.[3]

1. On 18 April 2018, the applicant requested her daughter, the second applicant, be added to her protection visa application.[4]
2. On 24 April 2018, the applicant submitted a further protection visa application on the same bases as her original application, including the second applicant as her dependent.[5]
3. On 7 May 2018, the delegate refused the application for a protection visa made by the applicants because he found they were not persons in respect of whom Australia has protection obligations.[6] The delegate found the applicants did not satisfy the refugee criterion as fearing becoming a victim of crime did not satisfy any one of the Convention grounds requiring a well-founded fear of harm for reason of religion, race, political opinion, nationality or membership of a particular social group.[7] Further, the delegate concluded there was no evidence indicating the Indonesian authorities would deny her protection.[8] The delegate also found the applicants did not satisfy the complementary protection criterion as the applicant failed to provide corroborative evidence of the 2013 robbery at knifepoint,[9] and country information indicated that:

(a) while petty crime is common, criminals are generally reluctant to use force and do not harm their victims and the applicant would not be specifically targeted as crime affects everyone, even visitors; and

(b) while public confidence in the police and judiciary is low and corruption is routine, relevant State protection is available to the applicants.[10]

1. On 3 June 2018, the applicants applied to the Tribunal for review of the delegate's decision.[11]
2. On 16 January 2024, the Tribunal invited the applicants to attend a hearing on 5 March 2024.[12] The Tribunal later agreed to reschedule the hearing to 6 March 2024.[13]
3. On 29 February 2024, the applicants' legal representative provided written submissions to the Tribunal.[14] It was submitted that the applicant feared persecution as a Chinese Christian in Indonesia, a group said to lack adequate State protection, and that her fears were heightened by racial discrimination from native Indonesians, the history of violence against Chinese communities during the 1998 riots, and the election of President Prabowo Subianto who is associated with anti‑Chinese sentiment. They noted that, because of her Chinese ethnicity, she had experienced a series of distressing incidents including a knife‑wielding home robbery in 2009, two street muggings in 2009 and 2013 (the latter involving a motorcycle riding offender who stole her bag, shouted a racial slur and left her with minor injuries), and that police were unwilling to act without a bribe. It was further submitted, relying on the 2023 Johannes Nugroho article 'The danger of anti‑Chinese sentiment in Indonesia's election campaign' (Nugroho article), that the exploitation of anti‑Chinese rhetoric in contemporary politics raised the risk of renewed marginalisation and persecution similar to that experienced during the 1998 riots.
4. On 6 March 2024, the applicant attended a Tribunal hearing, on behalf of herself and the second applicant, with her legal representative.[15] The hearing was conducted with the assistance of an interpreter who facilitated communication in the English and Indonesian languages.
5. On 26 March 2024, the Tribunal affirmed the decision under review.[16]

1. While the Tribunal found the applicant had presented a mostly credible account of her experiences in Indonesia, it found some inconsistencies between her protection visa application, written submissions and oral testimony, in relation to:

(a) the details of the 2009 targeted home robbery: Her testimony at hearing was a person came to her door under the pretence of collecting payment for a water bill, she later discovered her phone was missing and neighbours reported experiencing similar incidents. By contrast, the written submissions detailed that intruders had forcefully entered her home wielding knives. Further, the applicant claimed that the robbery was racially motivated as she lived in a Chinese neighbourhood, but the Tribunal found this to be speculative.[17]

(b) the details of a 2009 robbery/mugging incident: The claim in the written submissions was that a 2009 mugging on the street was due to her Chinese ethnicity. However, her testimony at hearing was that the assailants had not said anything about her ethnicity, just laughed at her.[18]

(c) the details of a 2013 robbery/mugging incident: The applicant gave shifting accounts of this incident across her visa application, written submissions and oral evidence. In her visa application, she said unknown men threatened her with a knife to her neck and stole her wallet in what she understood to be a crime targeting women, with no mention of ethnicity or racial hostility. In later written submissions, the incident became a racially motivated attack by a 'native Indonesian' who yelled 'Chinese die'. At the hearing, she repeated the racial element and added further detail, including that two men on a motorbike grabbed her bag and that she only saw a knife in one man's hand, contradicting the earlier claim that it was held to her neck. The Tribunal found these changes significant, noting that the original account conveyed a gendered rather than racial motive, and considered the later introduction of racial claims and altered description of the weapon concerning and indicative of shifting claims.[19]

(d) the details of her approaches to the police: The applicant gave inconsistent accounts about her dealings with police after the 2013 robbery, particularly regarding whether police made any reference to her Chinese ethnicity or requested a bribe. It was claimed in the written submissions that the police asked about her ethnicity, demanded payment before taking a report and were unwilling to help because she was not indigenous, while both the visa application and her oral evidence stated only that police 'could not do anything', with no mention of ethnicity or bribery. When confronted with this discrepancy, the applicant asserted the version in the written submissions was true and that such conduct was common, but the Tribunal rejected her explanation, finding it implausible that she would omit such significant details in her earlier evidence if they had in fact occurred, even taking into account general country information about corruption.[20]

1. While the Tribunal accepted the applicant had experienced discrimination, verbal abuse and poor treatment by native born Indonesians and this had caused her some distress, it was not satisfied that the resulting psychological impact gave rise to the applicant suffering from any sort of mental health condition.[21]
2. The Tribunal found the applicant's difficulty in obtaining an Indonesian ID card was the result of normal bureaucratic processes rather than because she was being discriminated against. It further found that her failure to obtain the ID card did not amount to any harm.[22]
3. The Tribunal was not satisfied that difficulties the applicant's husband, also a Chinese Indonesian, faced in extending his passport and driver's licence were the result of racial discrimination.[23]
4. The Tribunal found there were incidents raised in the written submission that did not obviously relate to the applicant and the applicant's representative acknowledged there were errors.[24] The applicant gave the following clarifications at hearing:

(a) a school bullying incident resulting in broken shoulder bones, specified in the written submission, did not occur.

(b) she remembered the May 1998 riots when she was around five years old; there were actions outside, her grandmother would turn off the lights and tell them to be quiet and she watched the Jakarta riots on television. She clarified the written submission was correct that she continues to be traumatised, witnessed brutal violence and had to hide at home to avoid being attacked by native Muslim Indonesians on a rampage in Jakarta.

(c) the claim that her home was robbed during the 1998 riots during which time there was a threat to end her and her mother's life was incorrect. While she did see the unrest happening in front of the house, it did not enter the house.

(d) in relation to the submission she had considered seeking refuge in neighbouring countries Malaysia and Singapore, she clarified that she had only sought protection in Australia but when she was young her mother had taken her to Malaysia to see how things were and she knew Singapore does not assist refugees.

1. Despite the applicant's claim not to have heard of protection visas until 2018, the Tribunal found it difficult to accept the applicant did not apply for protection until then, as she had been in Australia since 2011. The delay in making inquiries, combined with visits to Indonesia during this period to visit her grandmother, made the Tribunal question whether the applicant really feared harm if she returned to Indonesia.[25]

1. In relation to past events, the Tribunal accepted the applicant had some recollection of staying in her home during the 1998 riots and had experienced verbal assaults and harassment. It further accepted the applicant experienced the theft of money and her phone from her home in 2009 and was mugged in 2009 and 2013, though the Tribunal found these were random, opportunistic criminal incidents.[26] However, on account of inconsistences and omissions in her claims, the Tribunal did not accept:

(a) she had witnessed the violence and was robbed during the 1998 riots;

(b) any of the claimed incidents of harm involved any sort of violent attack, including claims that she suffered broken bones from a bullying incident or that an assailant shouted a racial slur or held a knife in the 2013 mugging;

(c) any of the claimed incidents of harm were motivated by race or gender;

(d) any bribes requested by the police were on account of her ethnicity or gender;

(e) her or her husband's experience of obtaining documents or being asked to pay bribes was on account of their ethnicity.[27]

The Tribunal's forward-looking assessment of harm

1. In relation to whether the applicants faced a real chance of serious harm or real risk of significant harm, the Tribunal found:

(a) neither the applicant nor her representative raised any fears or incidents relating to harm on the basis of Christianity;[28]

(b) the assertions of harm were not supported by citations or further evidence;[29]

(c) any discrimination, occasional incidents of theft, harassment, insults, psychological harm, requests for bribes, administrative hurdles or any other harm would not reach the threshold of serious harm, even taken cumulatively;[30] and

(d) any pain, suffering, humiliation, degrading treatment or punishment would not meet the definition of significant harm, even taken cumulatively.[31]

1. In making those findings, the Tribunal relied on country information which suggested:

(a) Chinese Indonesians face societal but not official discrimination and only a low risk of societal violence;

(b) there is not a real risk of violent crime, though opportunistic muggings or robbery may be experienced;

(c) police and officials may request bribes and documents may be difficult to obtain;[32]

(d) since 1998, successive governments have removed official policy discriminating against Chinese Indonesians;

(e) since 2008, legislation prohibiting racial discrimination and vilification has been in force;

(f) in 2016, protests in Jakarta against the Chinese Indonesian governor for allegedly insulting Islam involved violence between police and protestors, but not between police and ordinary citizens; and

(g) the government promotes racial tolerance.[33]

1. The Tribunal considered the potential impact of President Prabowo Subianto's election on the treatment of Chinese Indonesians and found the most recent DFAT Country Information Report on Indonesia issued 24 July 2023 (DFAT Report) predated Prabowo's election and that despite Prabowo's reputation, he at one point had criticised the outgoing President Widodo for an anti-Chinese narrative and recently had indicated respect for China in terms of foreign relations. On that basis, the Tribunal was not satisfied on the evidence that Prabowo's election would lead to a substantive deterioration of the situation of Chinese Indonesians in the reasonably foreseeable future.[34] Given that this aspect of the Tribunal's reasoning has been impugned by the applicants, it is set below in its entirety along with the relevant footnotes beneath:

42. I note information that Indonesian presidential elections held in February 2024 were won by Prabowo Subianto, a former military general who has been accused of past human rights breaches. He succeeds and was endorsed by outgoing President Joko "Jokowi" Widodo, whose son was Prabowo's running mate.(8) The submissions argues that Prabowo allegedly had a role in inciting the 1998 riots in order to shift public dissent away from Soharto, and states that with his controversial human rights record and ascent to a prominent leadership role, Chinese Indonesians fear future persecution. The submission cites an article written in May 2023 arguing that the country's political elite are not above exploiting prejudice against the Chinese minority to score political points and predicting that such sentiment may be used in upcoming election campaigns, and referencing backlash in 2017 against a rising Indonesian Chinese politician who was charged with blasphemy.(9) The submission makes arguments that the applicant's fears are enhanced by the outcome of the elections in Indonesia, arguing that an anti-Chinese president or political forces might resort to discriminatory measures leading to marginalisation and persecution of the Chinese community. The applicant asserted at the hearing that her human rights will be further threatened with Prabowo becoming president.

43. DFAT's assessment about the treatment of Indonesians of Chinese ethnicity was made prior to these recent elections. I take into account information that during a 2019 election campaign, Prabowo had at one point criticised Jokowi on an anti-Chinese narrative but note that, as discussed at the hearing, that same article refers to more recent indications of Prabowo indicating respect for China, at least in terms of foreign relations.(10) As I raised with the representative at the hearing, there are no citations to support many of the assertions in the submissions. Beyond an article speculating about possible use of anti-Chinese sentiment during an election campaign, the submission does not refer to any recent or specific information about the use of anti-Chinese rhetoric or policies during the election campaign or afterwards, and nor has the applicant provided any other information to support her assertion that Probowo would encourage or implement discrimination or harm against ethnic Chinese Indonesians. I am not satisfied on the evidence that the election of Probowo will lead to any substantive deterioration of the situation for Chinese Indonesians in the reasonably foreseeable future.

(8) Han Yong Hong, 'What Prabowo's victory could mean for Indonesia-China relations', Think China, 16 Feb 2024, https://www.thinkchina.sg/what-prabowos-victory-could-mean-indonesia-chinarelations.

(9) Johannes Nugroho, 'The danger of anti-Chinese sentiment in Indonesia's election campaign', The Interpreter, Lowy Institute, 22 May 2023, https://www.lowyinstitute.org/the-interpreter/danger-antichinese-sentiment-indonesia-s-election-campaign.

(10) Han Yong Hong, 'What Prabowo's victory could mean for Indonesia-China relations', Think China, 16 Feb 2024, https://www.thinkchina.sg/what-prabowos-victory-could-mean-indonesia-chinarelations.

1. The Tribunal accepted DFAT's assessment that Indonesia is generally safe and that, although Chinese Indonesians may face societal discrimination, the risk of societal violence is low and there is no official discrimination. Against that background, and considering the applicant's past experiences, the Tribunal found that the applicants may in future encounter low‑level discrimination, verbal harassment or opportunistic crime, but not at a level amounting to serious harm. The Tribunal also accepted that police or officials may at times request bribes or impose administrative hurdles, but was not satisfied that officials would refuse assistance or act adversely towards the applicants because of their ethnicity. The Tribunal concluded that any such difficulties would not reach the threshold of serious harm, even when considered cumulatively.[35]
2. The Tribunal was similarly not satisfied that there was a real risk of any future treatment of the applicants amounting to torture, cruel or inhuman treatment, degrading treatment, or any other form of significant harm under s 36(2A) of the Act. It further found there was no real chance of the applicants facing persecution for a Convention reason and therefore no well‑founded fear of persecution within the meaning of s 5J of the Act.[36]
3. Consequently, the Tribunal was not satisfied that Australia owed either applicant protection obligations under s 36(2)(a) or (aa). As either applicant did not meet either of those criteria, they also could not satisfy the derivative grounds in s 36(2)(b) or (c). On that basis, the Tribunal affirmed the delegate's decision.[37]

1. By way of further amended application filed on 2 July 2025, the applicants advanced a sole ground of review (reproduced below without alteration):

The Administrative Appeals Tribunal (the tribunal) constructively failed to exercise its jurisdiction by failing to review.

Particulars

(i) The tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained and sufficiently linked to the outcome.

(ii) The critical fact was whether or not, following the election of President Probowo in February 2024, there was a real chance or risk that ethnic Chinese Indonesians would suffer discrimination or serious or significant harm in Indonesia in the reasonably foreseeable future.

(iii) Alternatively, the tribunal's failure to inquire rendered its decision legally unreasonable.

1. At hearing before me, it became evident the Court would be assisted by the provision of the Tribunal hearing transcript and the DFAT Report, as well as supplementary written submissions from both parties. I am grateful for the subsequent preparation and filing of that material. Therefore, the material before the Court includes:

(a) the further amended application for judicial review filed on 2 July 2025;

(b) the affidavit of the applicant affirmed on 22 April 2024 annexed to which is a copy of the Tribunal's notification letter and decision;

(c) a Court Book numbering 156 pages (tendered into evidence at hearing on 19 September 2025 by the first respondent and marked as Exhibit 1R);

(d) written submissions filed on behalf of the applicants on 2 July 2025 (AS);

(e) written submissions filed on behalf of the first respondent on 8 August 2025 (MS);

(f) a list of authorities filed on behalf of the first respondent on 17 September 2025;

(g) a copy of the 16 February 2024 online article by Han Yong Hong titled 'What Prabowo's victory could mean for Indonesia-China relations' (Hong article) (handed up and tendered into evidence at hearing on 19 September 2025 by the first respondent and marked as Exhibit 2R);

(h) the affidavit of Alim Lim affirmed on 22 September 2025 annexing the DFAT Report;

(i) the affidavit of Mengqi Ren affirmed on 3 October 2025 annexing the transcript of the Tribunal hearing conducted on 6 March 2024 (Tribunal hearing transcript);

(j) supplementary written submissions filed on behalf of the applicants on 7 November 2025 (ASS); and

(k) supplementary written submissions filed on behalf of the first respondent on 5 December 2025 (MSS).

1. By their sole ground of review, the applicants contend:

(a) the Tribunal constructively failed to exercise its jurisdiction by failing to make an obvious inquiry about a critical fact, the existence of which was easily ascertained and sufficiently linked to the outcome. The critical fact was whether or not there was a real chance or risk that ethnic Chinese Indonesians would suffer discrimination or serious or significant harm in Indonesia in the reasonably foreseeable future, due to the recent election of President Prabowo. I will call this 'the failure to review contention'.

(b) in the alternative, the Tribunal's failure to inquire rendered its decision legally unreasonable. I will call this 'the legal unreasonableness contention'.

1. I now turn to examine each of these contentions.

1. The applicants submits that exceptional circumstances existed in this case obliging the Tribunal to conduct inquiries in order to discharge their duty of review.
2. By AS [14]-[22], the applicants' Counsel, Ms Tully, argued that jurisdictional error is established for the following seven reasons:

(a) First, the inquiry was 'obvious' in the sense that it was plainly required because the country information was centrally relevant to the applicants' claims. The Tribunal itself recognised the DFAT Report was outdated, considered the Nugroho article, and independently sourced the Hong article, acknowledging that country information about the treatment of ethnic Chinese Indonesians following President Prabowo's February 2024 election was relevant to assessing the risk of future persecution.

(b) Second, the relevant country information was easily ascertainable. The Tribunal's retrieval of the Hong article demonstrated that information addressing the effect of Prabowo's election and the position of Chinese Indonesians was readily available. Given the applicants' ethnicity and nationality, a simple online search was neither onerous nor complex, and a reasonable inquiry did not require exhaustive research.

(c) Third, undertaking the inquiry would not have impeded any statutory objectives of fairness, efficiency or expedition. The Tribunal had ample time between the February 2024 election, the 6 March 2024 hearing, and its 26 March 2024 decision to complete its research and, if necessary, clarify that no further relevant information existed.

(d) Fourth, the applicants had vital interests at stake, namely their eligibility for protection visas. Although they did not explicitly request further inquiries, this was immaterial: the Tribunal had already elected to make inquiries of its own motion but did so only incompletely.

(e) Fifth, this was one of the rare cases where a reasonable decision-maker would have made further inquiry. The Tribunal's research was defective because it relied on information that was only peripherally relevant, temporally misaligned, and did not address the domestic treatment of ethnic Chinese Indonesians. The evidence before it was inadequate, and the Hong article itself contained equivocal material indicating both anti-Chinese sentiment and pro-China foreign policy. Furthermore, the circumstances in this case were sufficiently 'rare' and 'exceptional' because President Prabowo's well‑documented and serious human rights abuses against ethnic Chinese Indonesians gave real weight to the applicants' concern that such harm might recur, making it essential for the Tribunal to obtain contemporary country information addressing that risk. The Tribunal itself acknowledged that the DFAT material it was required to consider did not deal with this critical post‑election issue. Compounding this, the hearing proceeded on the basis of outdated DFAT information alone, and it is unclear whether the Hong article - one of the few pieces of information the Tribunal sourced - was ever put to the applicants, leaving the process incomplete and the inquiry inadequate.

(f) Sixth, the Tribunal either knew, or ought to have been aware, that further centrally relevant information existed. The evidence relied on by the Tribunal at [43] of its decision obviously lacked probative value on the critical fact to be determined.

(g) Seventh, the inquiry was closely linked to the outcome. The applicants' most significant claim concerned the Indonesian authorities' failure to provide adequate protection to individuals of Chinese descent. The critical inquiry concerned whether or not, following the election of President Prabowo in February 2024, there was a real chance or risk that ethnic Chinese Indonesians would suffer discrimination or harm in Indonesia in the reasonably foreseeable future. Having failed to make that inquiry, the Tribunal was not satisfied of a risk of such harm on the deficient evidence before it. Because the Tribunal failed to make that inquiry, it was not properly equipped to determine whether such a risk existed.

1. When pressed at hearing to clarify what exactly was the critical fact that could be so readily ascertained, Ms Tully struggled to identify that matter with any real precision apart from stating that 'the critical fact was whether or not, following the election, there's a real chance or risk that ethnic Chinese Indonesians would suffer discrimination or serious or significant harm in Indonesia in the reasonably foreseeable future'.[38] Ms Tully conceded that this might better be characterised as a question rather than a fact.
2. By the ASS, the applicants' solicitor Mr Lim sought to supplement the AS by identifying various sections of the Tribunal hearing transcript to demonstrate how the Tribunal erred in failing to make an obvious inquiry about a critical fact, the existence of which was said to be easily ascertained and supplied a sufficient link to the outcome. In relation to the Tribunal hearing transcript, Mr Lim identified the following features of the oral evidence and the Member's assessment:

(a) The Member expressly acknowledged having country information about post-election conditions and specifically mentioned President Prabowo's statements about continuing diplomatic relations with China;[39]

(b) The Member directly addressed the applicants' concerns about 'Prabowo becoming president' and acknowledged the applicant's fear that 'human rights will be further threatened' given Prabowo's role 'behind the unrest of 1998';[40]

(c) The Member explicitly stated there was 'a lot of argument in there about the situation in Indonesia but there's no country information as such cited' in the applicants' submissions;[41]

(d) The Member declared 'I am limited, though, to only being able to assess the criteria for this visa',[42] suggesting a misconception of the Tribunal's inquisitorial powers;

(e) The Member specifically inquired about 'whether there's a real chance or a real risk of you or your child experiencing harm' and 'the type of harm that's required to satisfy the criteria for the visa'.[43]

1. In relation to whether the inquiry was 'obvious', Mr Lim argued it was because the Member recognised the centrality of the inquiry to its assessment of the applicants facing a real chance of serious harm or real risk of significant harm on account of Prabowo becoming President of Indonesia.
2. In relation to whether the critical fact might be 'easily ascertained', Mr Lim argued that relevant post‑election country information was readily accessible to the Tribunal. In support of that argument, it was contended that the Member's own actions confirm this: they located and relied on the Hong article published two days after the election, demonstrating their ability to conduct timely, internet‑based research on election-related developments. It was further contended that the Member's acknowledgment of missing country information citations in the submissions amounted to an 'implicit' acceptance that such material exists and could be obtained. Further, it was argued that the Member's demonstrated research capability indicated that it would have been straightforward for the Tribunal to locate domestic, post‑election information concerning ethnic Chinese Indonesians and that it would have been straightforward for an expert Tribunal to have obtained such material through basic online inquiry or by requesting updated country information from DFAT about conditions following the election.
3. In relation to whether the failure to inquire supplied a 'sufficient link to the outcome' to constitute a failure to review, Mr Lim essentially argued that the absence of inquiry led to the Tribunal not properly focussing its attention on evidence relating to current post-election conditions and inappropriately relying on foreign relations information that was peripherally relevant to domestic treatment of ethnic Chinese Indonesians, thereby resulting in a finding about the degree of risk of harm faced by the applicants that was without sound evidentiary foundation.

1. By MS [18(a)], the Minister acknowledged the applicants' argument that the Tribunal had acted on the basis that a duty to inquire had been enlivened by sourcing the Hong article, recognising that the DFAT Report it was required to consider was out of date. The Minister raised three distinct submissions refuting that argument:

(a) First, the Tribunal does not have a general duty to make its own inquiries in order to make an applicant's case or investigate an applicant's claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; HCA 32 at [43].

(b) Second, in order for me to be satisfied that the Tribunal failed to inquire, the Tribunal must be found to have not made an obvious inquiry about a critical fact, the existence of which is easily ascertainable and that had sufficient link to the outcome as to constitute a failure to review: SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403; (2009) 112 ALD 475; FCA 1403 at [21]. It was submitted that I should not be satisfied the Tribunal erred in this regard for the following reasons:

(a) There was no obvious line of inquiry that the Tribunal could have undertaken to get independent evidence on the critical fact. An inquiry will not be obvious simply because it would have been a sound or reasonable course for the Tribunal to take: Prasad v Minister for Immigration and Ethnic Affairs [1998] FCA 47; 6 FCR 155, 169-70; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30]. In this matter, there was no self-evident omission, flaw, or obscurity that needed to be resolved before a decision could be made: Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at [74]. Furthermore, unlike in some cases, the applicant did not make any request that the Tribunal conduct further inquiries nor make any suggestion as to what those inquiries could have been: cf Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 91 (Wilcox J). The inquiry alleged by the applicant was not obvious.

(b) The applicant has not identified any information that would have been easily ascertainable. Nor has the applicant indicated what independent evidence is available that would corroborate the applicant's assertions in the submissions, nor the steps that the Tribunal ought to have taken in making the alleged inquiries. The applicant argues that a duty to enquire exists in part because Country information on whether or not ethnic Chinese Indonesians would suffer discrimination or harm in Indonesia appears to be easily ascertained or readily available: AS[16]. The inquiries outlined by the applicant would have been potentially onerous and there is no indication that any useful result would ensue. The sources of information that one could potentially research is diverse and relates to the evaluative assessment of the risk of future harm. This is not a case, for instance, where a particular inquiry made to obtain information from a readily identified source would have been determinative of the critical fact. The applicant has not identified any analogous caselaw in which a duty to inquire has been found in respect to open-source country information.

(c) Although the applicant implies that the making of an inquiry by the Tribunal would have assisted in the determination of the critical fact, the applicant in fact has given no indication as to what useful result might have flowed from the Tribunal making further inquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [26]. For instance, it is far from clear that there is any particular source of information that could have definitively resolved that question. Given these circumstances, any failure to inquire does not have sufficient link to the outcome of the Tribunal's conclusion such that it would constitute a failure to carry out a review: SZIAI at [25].

(c) Third, while there is no legal onus of proof for the applicants before the Tribunal, it was for the applicants to provide evidence and information in support of their protection claims and the Tribunal's task is to then decide whether it is satisfied that claim is made out in order to reach the correct and preferable decision: Abebe v Commonwealth of Australia (1999) 197 CLR 510; HCA 14 (Abebe) at [187]. At [43] of its decision, the Tribunal recorded that it had raised with the applicant at hearing that there were no citations to support many of the assertions in the submissions, nor had the applicants presented any specific information about the use of anti-Chinese rhetoric or policies during the election campaign or afterwards. Further, the Tribunal decision was made more than two weeks after the hearing and therefore the applicants could have provided further country information regarding the critical fact, but she did not do so, nor offer to do so. The applicants did not provide any further evidence after the hearing, despite being on notice of the deficiency of her evidence. In those circumstances, the Minister argues that the Tribunal did not fail to make an obvious inquiry of a critical fact.

1. By MSS [5]-[6], the Minister maintained that there was no obvious inquiry of a critical fact for the Tribunal to undertake in the circumstances of this case. The following arguments were raised:

(a) There was no evidence of any serious prospect that Indonesia's policies towards people of Chinese ethnicity would change following the election of President Prabowo. Therefore, the line of inquiry alleged by the applicants cannot be said to be 'critical' to the determination of the matter.

(b) Nor was the information 'easily ascertainable'. The inquiry would have required the Tribunal to research open-source country information, with the prospect that such inquiries would be unlikely to yield a definitive answer as to the new President's policies following the election. Indeed, at the time that the inquiry might have been made, and based on information already before the Tribunal, the prospect that Prabowo would change official policies towards people of Chinese ethnicity could not have involved anything more than speculation. That is in clear contrast to the information of a more certain nature that could be gleaned by the making of an inquiry which a Minister was found to have wrongly failed to make in Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409. In that case, Black CJ held that the Federal Minister for Aboriginal and Torres Strait Islander Affairs had failed to make an inquiry of the Western Australian Minister for Heritage about the progress of the procedures under the Aboriginal Heritage Act (at [54]) that could have been readily obtained by the Federal Minister or officers of his Department, at any time after the Western Australian Minister made her decision (at [56]).

1. Further, by MSS [3], [4], [7]-[12], the Minister argued there was no failure to review in the present case given the Tribunal's through consideration and treatment of the available country information, the discharge of its procedural fairness obligations owed to the applicants in relation to that information and the response (or lack thereof) to the Tribunal's engagement with that information by the applicants and their representative. To that end, the Minister submitted:

(a) the information the Tribunal did refer to suggested against a change in official policy. In particular, the Hong article contains the following information:

'During the 2019 electoral race, Prabowo at one point attacked Jokowi on an anti-Chinese narrative, criticising Chinese workers for stealing jobs from Indonesians. He sang a different tune this year, claiming that he will continue on the diplomatic path set by Jokowi and stressing that he respects China and also likes the US': see affidavit of Mengqi Ren affirmed 18 September 2025 page 11.

(b) the Tribunal Member specifically had put information in the Hong article to the applicant for comment at the hearing. The exchange at hearing recorded at page 26 of the Tribunal hearing transcript reveals the Tribunal Member put to the applicant and her representative that 'from what I've read, at least officially, Prabowo has said that he'll continue on the diplomatic path set by...Jokowi, the former president'. The Member further explained that this information was relevant because:

it's included positive approach to China, a number of visits to China, securing Chinese trade and investment. So my understanding of the implications of that are that he intends not to damage relations with China, which discriminating against Chinese people of Chinese ethnicity within Indonesia potentially could do. And the information I read also said that Jokowi has had a role in the ballot election and would most likely continue to be influential, which would include establishing good relations with Chinese people. So that's just what some of the information I have read said. Is there anything you'd like to say in response to that?

(c) the inference that the Tribunal drew from the Hong article, as put to the applicant at the hearing, was rational and logical. It was logical for the Tribunal to rely on Prabowo's positive diplomatic path with China as indicating that he would not intend to damage relations with China by implementing policies that would discriminate against people of Chinese ethnicity in Indonesia.

(d) when the Tribunal put this information to the applicant for comment, as recorded at page 26 of the Tribunal hearing transcript, the applicant responded by reiterating that the occurrences of 1998 were very traumatic for her, but did not provide any further information or evidence. Despite being on notice of the Tribunal's preliminary views that Prabowo would likely establish good relations with Chinese people, neither the applicants nor their representative provided any post-hearing submissions.

(e) the Tribunal further put to the applicant and her representative at the hearing, the lack of country information in support of the applicant's assertion that Prabowo would implement discriminatory policies towards Chinese Indonesians. The Tribunal Member stated: 'there's a lot of, I guess, argument in there about the situation in Indonesia but there's no country information as such cited'.[44] Despite being on notice of this, neither the applicants nor their representative made any request that the Tribunal conduct further enquiries on this question, nor did they provide any evidence after the hearing to substantiate these assertions. This was not a case where there was a specific request raised by the applicant for particular inquiries to be made: c.f. Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 91 (Wilcox J).

1. The Minister concluded that it was the doubt raised by the Hong article as to whether the applicant's assertions were accurate, together with the lack of any information provided by the applicant in support of those assertions, which led the Tribunal to conclude that it was not satisfied on the evidence that the election of Prabowo will lead to any substantive deterioration of the situation for Chinese Indonesians in the reasonably foreseeable future. In particular, the Tribunal found at [43] of its decision that 'beyond an article speculating about the possible use of anti-Chinese sentiment during an election campaign, the submissions [of the applicant] does not refer to any recent or specific information about the use of anti-Chinese rhetoric or policies during the election campaign or afterwards, nor has the applicant provided any other information to support her assertion that Prabowo would encourage or implement discrimination or harm against ethnic Chinese Indonesians'. On that basis, the Tribunal was entitled to rely on the DFAT Report and the absence of evidence to the contrary to find that there was insufficient evidence that the applicants would be at risk of serious or significant harm on account of their ethnicity.

1. Judicial discussion of a failure to inquire in the migration context ordinarily commences with Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Prasad). In Prasad, Wilcox J expressed an albeit tentative view, in obiter dictum, that it was unreasonable for a decision-maker not to have sought explanations for certain inconsistencies in the material provided in support of a spouse visa application. The question before the Court was framed in terms of whether it would be improper for a decision-maker to proceed to a decision without making further inquiries. His Honour considered that question in terms of whether, in the making of the decision, there had been an improper exercise of the power conferred by the enactment: see s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). It was understood that an improper exercise of power included an exercise of power that is so unreasonable that no reasonable person could have exercised the power: see s 5(2)(g) of the ADJR Act. Wilcox J made the following salient remarks about the circumstances which may give rise to a failure to inquire on the part of decision-maker (emphasis added):

Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. 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. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

1. It is well-established that a decision-maker has no duty to make his or her own enquiries in order to make out an applicant's case: see STKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 251 at [25]. In Abebe at [187], Gummow and Hayne JJ reconciled this well-established principle with the inquisitorial nature of Tribunal proceedings in the following terms:

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. Their Honours rejected a submission that the Tribunal should have made further inquiries about the possibility that the applicant had been raped in detention. They did so on the basis that '[n]o plausible or possible line of inquiry was suggested, whether in this Court or in the course of the Tribunal's inquiries, that the Tribunal might have undertaken and that might have shed any light on the issue': Abebe at [194].
2. It must also be borne in mind that when undertaking reviews in accordance with the requirements specified within Part 7 of the Act, as in the present case, a Tribunal must have regard to s 5AAA of the Act which provides that, for the purposes of the Act, it is the non-citizen's responsibility to specify all particulars of his or her protection claims and to establish the claim. Section 5AAA further provides that a decision-maker does not have any responsibility or obligation to supply, or assist in specifying, any particulars of the non-citizen's claim or establish, or assist in establishing the claim. This statutory provision serves to reinforce the general principle that it is for the applicant to make out their case and that the Tribunal is not obliged to supply, or assist with the specification of, the particulars of a claim or to establish, or assist in establishing, a claim.
3. Nevertheless, there remains some strictly limited sets of circumstances in which a decision-maker's failure to inquire may give rise to jurisdictional error. This duality was keenly observed by Kenny J in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; FCA 1318 at [60] (citations omitted):

On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal.... On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

1. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; HCA 39 (SZIAI), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ characterised a failure to make an obvious inquiry as falling within a broader duty to review. The scope of jurisdictional error of this kind was described by the majority of the Court in somewhat indefinite terms at [25]-[26]:

25 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. There are two reasons for that.

26 The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.

1. In a separate judgment in SZIAI, Heydon J considered whether there had been a failure to inquire after closely examining the circumstances of the case including the nature of the claims and evidence before the Tribunal, the degree to which the Tribunal had afforded the applicant an opportunity to address its concerns about that material, whether the applicant's representatives had drawn the Tribunal's attention to the making of the inquiry and whether the making of the inquiry would have been likely to receive illuminating answers. In finding that no such failure to inquire had arisen, his Honour's analysis at [52] offers insight into the approach to be taken when assessing whether jurisdictional of this type can be made out:

The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve. The respondent had procured the certificates in the first place. Those certificates purported to be from gentlemen who knew the respondent. The respondent, it could be assumed, would know whether Mr Nuruzzaman or Mr Hossain could provide any useful information in relation to the letter of 8 January 2008. The respondent was in at least as good a position as the Tribunal to contact those gentlemen. He was represented by solicitors. Despite the letter of 8 January 2008, the respondent did not ask the Tribunal to contact either gentleman. It was not unreasonable for the Tribunal to proceed on the basis that if any further evidence was to be provided in support of the certificates, it would come from the respondent.

1. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265; HCA 2 at [25], per Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ, the High Court explained the 'usually high threshold' to be met for this type of jurisdictional error at [25] (footnotes omitted):

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

1. It is clear from these authorities that the circumstances in which a Tribunal decision will be set aside on the basis of a failure to inquire are confined. 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. Questions may arise in any given case as to whether the inquiry was 'obvious' and whether the 'critical fact' (if one might be readily identified) could be 'easily ascertained' by making that inquiry. In answering these questions, it can be discerned from the authorities that any assessment of a failure to inquire on the part of the Tribunal must be made with an appreciation of the broader context of the circumstances of an applicant's case, including:

(a) the factual matrix propounded by an applicant and the degree to which the Tribunal has adhered to procedural fairness requirements in dealing with matters the subject of which the applicant contends should have given rise to further inquiry;

(b) whether the applicant has had sufficient opportunity to draw to the Tribunal's attention the information that would otherwise have been made available to it had the inquiry been made;

(c) where the applicant was represented, any reason proffered for the representative having not drawn to the Tribunal's attention the need to make the inquiry; and

(d) whether the making of the inquiry, if necessary, would have been likely to receive 'illuminating answers' that would have assisted the Tribunal to ascertain a critical fact as part of its fact-finding endeavour or assessment of the applicant's case.

1. Having carefully considered the parties' submissions, I find the Minister's submissions have greater force and there are no rare and exceptional circumstances in the present case which cause the Tribunal's failure to make inquiries in the form and manner contended by the applicants to give rise to jurisdictional error.
2. The applicants had ample opportunity to provide evidentiary material, including country information, in relation to the degree of risk of harm they faced should they return to Indonesia given the election of President Prabowo. That opportunity could have been realised before the hearing, and in the weeks following the hearing and before the Tribunal made its decision. Further, in circumstances where the election was proximate to the hearing, the applicants either directly or through their representative could have requested the Tribunal allow them an opportunity to file further evidentiary material in relation this issue at some point in time after the hearing. No such request was made.
3. Further, the Tribunal was transparent in relation to its selection and treatment of the available country information by allowing the applicants a procedural fairness opportunity at hearing to comment upon a preliminary view it had reached in relation to its assessment of that information. In accessing that opportunity to comment, the applicant neither challenged the Tribunal's selection of country information nor refuted its characterisation of that information in terms of how it bore upon the questions of whether the applicants faced harm on account of their ethnicity should they return to Indonesia under President Prabowo. Furthermore, the applicants' solicitor, who was present at the Tribunal hearing, made no oral submissions of that nature nor sought an opportunity to do by way of post-hearing submissions.
4. If the further inquiries said to be required about the risk to ethnic Chinese Indonesians following President Prabowo's election in February 2024 were as obvious and readily ascertainable as the applicants contend, they could have made those inquiries and obtained that information themselves. They did not do so, and no submissions to this Court explain why they did not, could not, or had otherwise not sought to persuade the Tribunal to undertake them on their behalf. It was for the applicants to put their case to the Tribunal; it was not for the Tribunal to do so for them: see s 5AAA of the Act; SZIAI at [52].
5. It is irrelevant that the Tribunal's process is inquisitorial or that it possesses powers of inquiry. Nor does it matter that the proposed inquiry might be simple or inexpensive, as the applicants have submitted, because it ostensibly involves an open-source internet search or request from DFAT or other trusted authority to glean further information about the plight of ethnic Chinese-Indonesians in Indonesia following the election of President Prabowo in February 2024. The Tribunal is not required to pursue every speculative theory an applicant advances, nor to remedy gaps in an applicant's evidence by undertaking investigations the applicant has not sought.
6. Finally, it is salient to observe the applicants' complaint arises in circumstances where their representatives before this Court have sought to impugn the Tribunal's reasons on the basis that conclusions were reached on the basis of deficient country information. That criticism is easy to raise years after the making of the Tribunal decision, but difficult to sustain in circumstances when the applicant and her representative neither took issue with the Tribunal's selection and characterisation of the available country information nor sought to supplement that information before the Tribunal made its decision. That said, I am persuaded by the Minister's argument summarised at [43]-[44] above that the doubt raised by the Hong article as to whether the applicant's assertions were accurate, together with the lack of any information provided in support of those assertions, led the Tribunal to conclude that it was not satisfied on the evidence that the election of Prabowo will lead to any substantive deterioration of the situation for Chinese Indonesians in the reasonably foreseeable future. In my view, the soundness of that reasoning rendered the making of any further inquiry otiose.

1. By AS [23], Ms Tully argued the Tribunal's failure to inquire rendered its decision legally unreasonable. That argument was advanced as follows:

(a) The manner in which the Tribunal reached its decision was flawed because it failed to reasonably exercise its power to obtain further relevant information to the extent required, particularly because the Hong article did not answer the Tribunal's own identified line of inquiry.

(b) The decision lacked an intelligible justification because the Tribunal rejected the applicants' claims about Indonesian country conditions in the reasonably foreseeable future without properly investigating that issue.

(c) An intelligible decision‑making process did not occur because the Tribunal relied on information that was both outdated (addressing the 2019 election campaign) and irrelevant (pertaining to Indonesia's external relations with China).

(d) The Tribunal treated the Hong article as part of its reasoning without first exercising its power to obtain and consider further, more pertinent information - namely, country information concerning the foreseeable circumstances for ethnic Chinese Indonesians following the election of President Prabowo. The Tribunal could have obtained such information either through its own inquiries or by requesting assistance from the applicants. It did neither. Instead, at the hearing, the Tribunal merely observed that many assertions in the written submissions lacked citations.[45]

(a) the Tribunal's decision-making process was 'flawed' because the Tribunal:

(i) improperly focused on Indonesia's diplomatic relations and trade with China, which provided little guidance on the domestic treatment of ethnic Chinese Indonesian nationals;

(ii) misconceived its inquisitorial powers under s 424, as evinced by its statement at hearing: 'I am limited, though, to only being able to assess the criteria for this visa';[46]

(iii) reached its decision in circumstances where it lacked sufficient country information, a matter it acknowledged at hearing;[47] and

(b) the Tribunal's decision lacked an 'intelligible decision-making process', as required by the High Court's decision in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; HCA 34 (ABT17), because the Tribunal Member:

(i) acknowledged the centrality of post-election conditions to the applicant's claims;

(ii) recognised the inadequacy of available evidence;

(iii) successfully located some election-related material through independent research;

(iv) yet failed to pursue the obvious and necessary inquiry into domestic conditions for ethnic Chinese Indonesians in Indonesia following the election of President Prabowo in February 2024.

1. By MS [18(b)], the Minister acknowledged the applicants' argument that the Tribunal's failure to inquire rendered its decision legally unreasonable such that the Tribunal failed to reasonably exercise its power to obtain further relevant information to the required extent 'because the Hong article was no answer to its own inquiry'. At MS [22] and [25], it was submitted that:

(a) the Tribunal recognised that the DFAT Report was out of date and thereby obtained its own country information;

(b) the Tribunal process is largely inquisitorial and pursuant to s 424(1) of the Act, in conducting the review, the Tribunal may get any information that it considers relevant;

(c) it was open for the Tribunal to source the Hong article in conducting the review considering the DFAT Report was out of date;

(d) there is nothing in the circumstances of the present case to suggest that the Tribunal acted unreasonably in exercising its power under s 424(1) to obtain the Hong article, or in not obtaining any further country information.

1. The matter of legal unreasonableness was neither addressed further in oral submissions made at hearing on behalf of the Minister or in the MSS.

1. Parliament is taken to intend that a statutory power will be exercised reasonably by the decision‑maker. The standard of legal reasonableness directs attention to whether, in relation to the particular decision under review, the statutory power - properly construed - has been abused or, put another way, whether the decision is beyond power. That inquiry defines the task for a court on judicial review.
2. The ways in which an abuse of statutory power may arise are not closed. They are not confined to recognisable categories of legal error, such as taking into account an irrelevant consideration, failing to take into account a relevant consideration, acting in bad faith, pursuing an unauthorised purpose, or exercising the power in a manner that renders the outcome uncertain. Nor is the concept of abuse of statutory power limited to decisions that might be described as 'manifestly unreasonable' or to those that are irrational, even bizarre, in the sense that no reasonable decision‑maker could have reached them: Minister for Aboriginal Affairs v Peko‐Wallsend Ltd (1986) 162 CLR 24; HCA 40 at 41; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18 (Li) at 364 [68], 375 [105]. Legal unreasonableness may be established by reference to the outcome itself - for example, where there is no 'evident and intelligible justification' for the decision: Li at 367 [76], see also at 373 [98], 375 [105]. As Gageler J explained in Li, the review of reasonableness is concerned 'mostly with the existence of justification, transparency and intelligibility within the decision‑making process', but also with whether the decision 'falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law': Li at 375 [105] quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].
3. Legal unreasonableness is, at its core, a failure of justification. Reasons are the vehicle of justification; when reasons are absent, opaque, or insufficient to justify the exercise of statutory power, the law calls the decision unreasonable, illogical, or irrational. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; HCA 30, the High Court made two things plain: first, that a court should not interfere with an administrator's exercise of a discretion just because the court would have exercised the discretion in a different way; second, the court's task is to ask whether the decision‑maker acted beyond power, which requires assessing the decision in context by having regard to the statutory source and scope of the power, the subject‑matter of the review, the course the review took, the Tribunal's approach throughout the review, the situation and conduct of the parties, and the surrounding circumstances.
4. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; FCAFC 11, Allsop CJ (with whom Wigney J agreed) emphasised at [9] the need to have regard to the terms, scope and purpose of a statutory power, along with the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - so as to form a conclusion, necessarily to a degree evaluative, as to whether a decision bespeaks an exercise of power beyond its source. At [10]-[13], Allsop CJ acknowledged the somewhat amorphous nature of the concept of legal unreasonableness and articulated the nature of the evaluative task in determining whether legal unreasonableness may be found in the following terms (emphasis added):

[10] This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) "tests": (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality's discussion of unreasonableness at [63]-[76] in Li should be read as a whole - as a discussion of the sources and lineage of the concept: [64]-[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]-[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34 ; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].

[11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

[13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

1. It follows that the task of assessing legal unreasonableness requires an evaluative judgment about the quality of the decision by reference to the statute conferring the power. A decision will be legally unreasonable if, having regard to the scope, purpose and objects of that power, it falls outside the range of lawful outcomes - whether because it lacks a rational or intelligible foundation, is arbitrary or plainly unjust, or otherwise reflects a reasoning process or outcome that takes it beyond the limits of the power.
2. In Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; HCA 46, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ stated (at [26], footnotes omitted, emphasis added):

A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".

1. The applicants' contention requires consideration of whether the Tribunal acted in a legally unreasonable manner in deciding not to obtain further information about the nature and degree of risk of harm faced by ethnic Chinese Indonesians following the election of President Prabowo in February 2024. In a practical sense, when advancing such a contention, an applicant will need to be able to point to steps that a reasonable decision-maker in the position of the Tribunal could or would have taken if it had acted reasonably: Pillay v Minister for Immigration and Citizenship [2026] FCAFC 24 at [68]. Taking the applicant's submissions at their highest, it is necessary to assess whether legal unreasonableness arose from the Tribunal's decision not to:

(a) seek additional information from the applicants in that regard under its s 424 power;

(b) invite the applicants to a further hearing to provide additional oral evidence in that regard pursuant to s 425;

(c) undertake further internet-based research of the kind it performed when locating the Hong article; or

(d) request additional information on the topic from DFAT or another source, whether by sending a written request to DFAT or another source under its s 424 power or by invoking a more formal information-gathering power such as s 427(3);

before determining the degree of risk of harm the applicants faced following the election of President Prabowo in February 2024.

1. The difficulty with the applicants' case is the absence of submissions and persuasive argument made by Ms Tully and Mr Lim addressing the evaluative task before the Court that this contention presents. For example, when pressed at hearing to clarify the contention, Ms Tully struggled to clearly identify how legal unreasonableness was manifest in this case in terms of the Tribunal having elected not to further invoke information-gathering powers but instead turned towards a new argument seeking to impugn the process of fact-finding on the basis that the Tribunal was illogical in relying upon country information that did not answer the question as to whether the applicants face a risk in returning to Indonesia following the recent election.[48] While I appreciate the concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary, it is the expectation of this Court that when this ground is advanced by an applicant there be a consistent and clear approach towards identifying and arguing the nature of legal unreasonableness that has manifested in the case before the Court. It is not for the Court to make out the applicant's case and nor is it fair to the Minister to be expected to answer a case that has not been properly articulated.
2. A further illustration of the inadequate presentation of the applicants' case on this ground appears in the ASS prepared by Mr Lim. Those brief submissions contain unsubstantiated assertions and unfounded criticisms of the Tribunal's decision‑making process, none of which meaningfully advance the legal unreasonableness contention. For example, I reject the assertion that the Tribunal Member's remark near the conclusion of the hearing - that they were 'limited, though, to only being able to assess the criteria for this particular visa' - can properly be read as indicating either ignorance of the power under s 424 of the Act to seek information, or an unwillingness to invoke that power following the hearing. Context is important. It is therefore helpful to set out the relevant exchange that occurred at the hearing leading up to the Member's statement:[49]

MEMBER: We might just take another short break now and when we come back I'm going to ask your representative if you'd like to make any submissions. You might just want to have a talk and then come back if there's anything else you'd like to tell me. We'll take 10 minutes and come back at 11.53. Thank you. The parties have left the room and I've paused the recording.

SHORT ADJOURNMENT [11.43 AM]

RESUMED [11.54 AM]

MEMBER: The time is 11.54 am and I'll now recall the parties. Thank you. The tribunal is resuming at 11.54 am. I just want to ask you one more question, please. In your protection visa application you said that during the mugging in 2013 a knife was held to your neck. Today you said that you saw a knife in the man's hand. Which one is correct?

INTERPRETER: I just saw the knife in his hand. He didn't put it at my neck.

MEMBER: Thank you. Is there anything else that you'd like to say?

INTERPRETER: Before you do make a decision, with respect, I would ask that you carefully consider my case and give protection which I need in Australia. Thank you for making the time today.

MEMBER: I will carefully think about everything that you've said to me today?---Thank you.

I am limited, though, to only being able to assess the criteria for this particular visa.

INTERPRETER: I understand.

MEMBER: Mr Lim, would you like to add anything now in terms of oral submissions.

MR LIM: Yes. I'd just be relying on the written submissions, Member, but I just wanted to point out that what Member has already detected regarding the bullying and the (indistinct). That was a mistake, Member. And also, the incident where the grandmother had to turn off the lights and they had to hide in the house, that was in Medan not in (indistinct).

MEMBER: That's okay.

MR LIM: That's all from me, Member.

MEMBER: Is there anything else that you think I should ask the applicant that I haven't asked?

1. Taking that context into account, I do not read the statement in the manner contended by Mr Lim. The exchange shows that the remark was made at the conclusion of the hearing after the applicant urged the Tribunal to carefully consider her case, at a time when the Tribunal was making considerable efforts to focus the applicant's and Mr Lim's attention on their final opportunity to give evidence and present submissions on the issues arising in the review. In that setting, the statement forms part of a broader acknowledgement by the Tribunal Member that the applicant's evidence would be considered, subject to the proviso that such consideration must be directed to whether the criteria in s 36 of the Act were met. Viewed in that light, the Tribunal Member's statement cannot sensibly be understood as indicating ignorance of the power in s 424 of the Act to seek further information, let alone as signalling a decision not to exercise that power at that time or in the future.
2. It is also unclear why the applicants, in the ASS authored by Mr Lim, relied on ABT17 in the manner contended. The power under consideration in ABT17 involved the Immigration Assessment Authority's somewhat curtailed power under Pt 7AA of the Act to obtain and consider new information for the purpose of addressing an informational gap, including by inviting a referred applicant to an interview so that it could assess the applicant's demeanour for itself. That power is materially different from the Tribunal's powers under Pt 7 of the Act, which include the power in s 424 to seek information from an applicant and the powers in s 427(3) and (4) to summon a person in Australia to appear to give evidence or produce a document or thing. Nevertheless, in order to give context to the applicants' argument, the High Court's reasoning in ABT17 at [19]-[25] follows (footnotes omitted):

[19] The answer is to be found in recognising that "[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made" such that "[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course".

[20] Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification" but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.

[21] Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.

[22] The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.

[23] To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.

[24] The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.

[25] However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

1. While that reasoning is entirely sound, it does not reveal anything of consequence in terms of advancing the applicants' argument as its relates to the legal unreasonableness contention in this case. More importantly, the circumstances in ABT17 are not analogous to those presently under consideration. Recognising that limitation, I turn to argument raised in the ASS that the Tribunal hearing transcript demonstrates that the Tribunal's decision‑making process was unreasonable and unintelligible.
2. It was plainly open to the Tribunal to reject the submissions advanced by the representative, including the reliance on the Nugroho article, and the applicant's assertions at hearing concerning the alleged threat to her human rights should Prabowo become President. It is important to recall that the Tribunal discussed with the applicant the nature and reliability of the country information before it, including the Hong article it had selected, and expressly invited her to comment and, more generally, to provide any further evidence or argument in support of her claims. The Tribunal's selection of country information, making of logical inferences drawn from that material, and invitation extended to the applicant to respond to that information all reflect an approach that was procedurally fair, orthodox and transparent. The Tribunal hearing transcript also makes clear that the Tribunal engaged extensively with Mr Lim, permitting him to make oral submissions on behalf of the applicant and to identify any further questions the Tribunal should put to the applicant to assist in advancing the applicants' case and supplementing the evidentiary record. Against that background, I reject the contention that the Tribunal acted in a legally unreasonable manner by not invoking its statutory powers to seek further information from the applicants or to obtain or request additional country information from another source.
3. Although another Tribunal Member may have taken a different approach as to whether further country or other information was required, I am not persuaded that this Tribunal Member acted unreasonably in electing not to seek or obtain additional material. The applicants were given numerous opportunities to provide country information, as well as an opportunity at hearing to comment on the information selected by the Tribunal and the inferences the Tribunal proposed to draw from it. My conclusion is reinforced by the fact that the inference the Tribunal drew from the material was open on the evidence and was not illogical for the reasons it gave. I accept the Minister's submission in that regard. It therefore cannot be said that the Tribunal's decision lacks a rational or intelligible foundation, is arbitrary or plainly unjust, or otherwise reflects a reasoning process or outcome that takes it beyond the limits of its statutory power.

1. For the above reasons, the application before this Court is dismissed.
2. I will hear the parties as to costs.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[38] Court hearing transcript, p 14, lines 27-29.

[39] Tribunal hearing transcript, p 26.

[40] Tribunal hearing transcript, p 26.

[41] Tribunal hearing transcript, pp 27-28.

[42] Tribunal hearing transcript, p 28.

[43] Tribunal hearing transcript, p 26.

[44] Tribunal hearing transcript, pp 31-32.

[46] Tribunal hearing transcript, p 28.

[47] Tribunal hearing transcript, pp 31-32.

[48] Court hearing transcript, p38, lines 4-25.

[49] Tribunal hearing transcript, p28, line 9 - p29, line 4-25.