CFG23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1444

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. Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) ("the delegate"), to refuse to grant the applicant a Protection (Class XA) (subclass 866). visa.

1. The applicant is a citizen of Papua New Guinea. On 25 November 2015, he arrived in Australia as the holder of a Visitor (Class FA) (subclass 600) visa, which expired on 25 February 2016 (Court Book ("CB") 56, 89 and 168).
2. On 9 May 2016, the applicant applied for a Protection (Class XA) (subclass 866) visa (CB 1-37). The applicant was notified on 9 July 2016 that the application was invalid because it did not meet s 46(2A) of the Migration Act 1958 (Cth) ("the Act") (CB 38-40). On 27 February 2017, the applicant again applied for a Protection (Class XA) (subclass 866) visa (CB 41-71). The applicant was notified on 24 March 2017 that the application was invalid because it did not meet s 46(2A) of the Act (CB 72-74).
3. On 10 October 2018, the applicant made a third application for a Protection (Class XA) (subclass 866) visa ("the visa") (CB 75-124). This is the visa that is the subject of these proceedings. The applicant's claims for protection as outlined in a statement accompanying the visa application can be summarised as follows (CB 103-104):

(a) On 27 November 2014, there was a land dispute between the clans/tribes in the community of Mount Hagen in the Western Highland Province;

(b) On 17 June 2015, the applicant was caught in a fight between tribes over a land dispute, sustaining several injuries and the applicant's house was burnt down;

(c) The applicant fled into the bush and hid there for four months;

(d) On 10 October 2015, the applicant followed a bush track and walked to Mount Hagen town where he stayed for two days before travelling to Port Moresby;

(e) There, the applicant stayed with his cousin until 25 November 2015. During his stay, the applicant did not leave the house as he heard the enemy tribe had relatives in Port Moresby who were out to kill him as payback;

(f) On 1 January 2016, the applicant's father and uncle were killed in a car accident caused by the enemy tribe.

1. On 29 May 2019, the applicant was interviewed by a delegate (CB 130-131). During the interview, the applicant was shown printouts from his Facebook profile and was invited to comment (CB 132-163).
2. On 19 June 2018, the delegate refused to grant the application a protection visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that he was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act as the delegate was not satisfied that the applicant was a refugee as defined in s 5H of the Act, and was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act as it was not satisfied that as a consequence of being removed to Papua New Guinea there was a real risk the applicant would suffer significant harm as defined in s 36(2A) of the Act (CB 164-180) ("the delegate's decision").

Application for review to the Administrative Appeals Tribunal

1. On 9 July 2019, the applicant applied to the Tribunal for review of the delegate's decision. The applicant appointed a registered migration agent to act on his behalf ("the nominated representative") (CB 185-186).
2. On 7 June 2023, the Tribunal wrote to the nominated representative requesting that they complete a pre-hearing information form. The applicant's nominated representative completed the form and provided it to the Tribunal (CB 192-199).
3. On 30 June 2023, the Tribunal wrote to the nominated representative, inviting the applicant to attend a hearing on 25 July 2023 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 200-206). The hearing invitation enclosed a 'Response to hearing invitation' form for the applicant to complete and return to the Tribunal within 7 days.
4. On 6 July 2023, the Tribunal invited the applicant to provide information pursuant to s 424(2) of the Act, on or before 20 July 2023, being the full names, dates and places of birth of the applicant's biological father, mother, brother and two sisters (CB 208-211) ("6 July 2023 Request").
5. On 17 July 2023, the applicant's fiancé returned the completed 'Response to hearing invitation' form to the Tribunal (CB 217-220). The completed hearing form stated that the applicant would be attending the hearing and that his fiancé would be participating as his representative. In Part 4 of the form, the applicant requested that oral evidence be taken from his fiancé, stating that she would give evidence about their relationship, family life and future wedding plans.
6. On 17 July 2023, the Tribunal emailed the applicant advising him to complete an appointment of representative form if he wished to appoint a new representative (CB 221). On 17 July 2023, the applicant's fiancé emailed the tribunal advising that the applicant had made a mistake and wished to keep the nominated representative as his representative and that she would be a witness at the hearing.
7. On 17 July 2023, the Tribunal also wrote to the nominated representative, advising that the applicant was still required to respond to the 6 July 2023 Request and that his response was due by 20 July 2023 (CB 224).
8. On 18 July 2023, the nominated representative advised the Tribunal that they had ceased acting for the applicant and attached a 'Change of Contact Details' form, signed by the applicant (CB 225-228).
9. On 21 July 2023, the Tribunal wrote to the applicant, setting out a timeline of events and reminding the applicant of the 6 July 2023 Request to which he had not responded or sought an extension of time within which to respond (CB 229). The Tribunal went on to advise that the 6 July 2023 Request told the applicant that if the Tribunal did not receive the information by 20 July 2023, the Tribunal may exercise its discretion to make a decision without taking any further action to obtain the information and that the applicant would lose his right to appear before the Tribunal. The Tribunal requested that the applicant provide an explanation as to why the Tribunal should not exercise its discretion that the applicant lose his entitlement to appear before it (CB 229).
10. On 23 July 2023, the applicant emailed the Tribunal, stating that he wanted an extension of time to obtain supporting documentation and explained that it was taking time to get information back from Papua New Guinea. The applicant explained that since his arrival in Australia, he had entered into a relationship, had sought to apply for a partner visa, but that his fiancé had left him, and he had become stressed and depressed and needed time to think about what he would do next (CB 230).
11. On 24 July 2023, the applicant emailed the Tribunal stating that he had not received a response to his 23 July 2023 email (CB 233). The Tribunal considered the applicant's request for an extension at the hearing and refused to postpone the hearing.
12. On 25 July 2023, the applicant attended the hearing before the Tribunal on his own behalf. He was assisted by an interpreter in the Pidgin Papua New Guinea and English languages. His fiancé appeared as a witness (CB 234-237).
13. On 21 August 2023, the Tribunal affirmed the delegate's decision and gave written reasons for its decision (CB 246-269)("Decision").

1. The Tribunal first summarised the criteria for a protection visa [5]-[11] and found that Papua New Guinea was the applicant's country of nationality and was the receiving country for the purposes of the refugee and complementary protection assessments [12].
2. The Tribunal stated that in accordance with Ministerial Direction No. 84, it had taken into account the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade ('DFAT'), to the extent they were relevant [14].
3. The Tribunal then summarised the applicant's claims as follows:

(a) The applicant claimed that he was from a particular village in a particular district in the Western Highlands Province of Papua New Guinea which was located north from Mount Hagen [15];

(b) He was born in Port Moresby and provided a birth certificate which his mother's and father's recorded names [15];

(c) Since January 2021, he had been employed on a full-time basis with a company based in Brisbane [17];

(d) A land dispute with other clans/tribes in his community took place on

27 November 2014. On 17 June 2015, there was a "big argument" with other tribes over a piece of land and a fight broke out. They fought each other with sticks, stones, bush knifes and axes. The applicant claimed that during the fight, he was attacked, his face was injured as was his right elbow, right knee and he lost a tooth [19];

(e) The applicant claimed that he managed to escape into the nearby bush. He said that when his enemies could not find him, they burnt down his house along with several other houses in his community and livestock was destroyed. The applicant claimed that many other people were also injured [20];

(f) The entire village was destroyed including the gardens and tuck-shops. The residents were scattered everywhere in the bush and they lived in fear of not knowing when the next attack might be [21];

(g) The applicant claimed that he hid in bush and lived there for about four months. He said that on 10 October 2015, he managed to follow a bush track and walked to Mount Hagen. He said that he had K750 cash in his pocket which he had collected earlier from his tuck-shop before it was burnt down during the tribal fight. He stayed in Mount Hagen for two days before travelling to Port Moresby, arriving on 12 October 2015 [22];

(h) In Port Moresby, the applicant said he stayed with his cousin who helped fund his tickets to Australia. The applicant claimed that he stayed for a month with his cousin in Port Moresby, and during that time he hid in his cousin's house and never came outside because he heard that the enemy tribe had relatives in Port Moresby and they wanted payback and were out to kill him [23];

(i) The applicant claimed that he travelled to Australia because he had heard that people like him could seek protection in Australia [24];

(j) The applicant said that on 1 January 2016, his father (whom he named) and his father's brother (whom he named), were both killed in a car accident. The applicant claimed that it was their first trip out of the village since the fight, and rumours got out that the two brothers were spotted driving through the nearby villages to get to town. The applicant claimed that the enemy tribesman were involved in a chase at very high speed and this caused the fatal accident [25];

(k) The applicant went on to claim that as a result of that accident, a very big tribal fight with high powered guns took place. He said that the conflict carried on for almost a year from January 2016 to 25 November 2016, that lots of lives were lost, gardens destroyed, schools and hospital burnt down during that conflict and chaos all round [26];

(l) The applicant said that he was shocked when he heard that he had lost his father and his father's brother due to a land dispute. He said that he did not return to Papua New Guinea for his father's funeral because of the tribal fight and he knew that it was not safe for him to return as his enemies would not hesitate to kill him. He claimed that his hope of survival was to remain in Australia for the rest of his life [27];

1. The Tribunal stated that it recognised that in the past there have been reports of violent clashes between tribes over land disputes. The Tribunal said that the applicant did not provide any tangible or probative evidence such as photographs, newspaper clippings or statements to support his claims about the tribal fight which occurred on 17 June 2015, or the tribal fight which he claimed took place during much of 2016 [28].
2. The Tribunal said that notwithstanding the absence of any evidence of the tribal fights, it recognised that the applicant provided documents to support his claims in respect to the death of the persons claimed to be his father and father's brother which he said were sent to him by his cousin. The Tribunal noted that the documents were not the original documents and were copies of very poor quality [29].
3. The Tribunal noted that in a statement the applicant provided to the Department, he claimed that he hid in the bush between June 2015 and October 2015, which was a period of approximately four months. The Tribunal said that when it asked the applicant, he said that he was only in hiding for one to two months, and when he was asked about the discrepancy between his earlier statement to his evidence at the review hearing, he said that he was not sure of the time, he was estimating the time that he was hiding in the bush [32].
4. The Tribunal then raised with the applicant whether he was the owner and operator of a Facebook profile, to which the applicant conceded that he operated two profiles and identified both profile pages to the Tribunal [33]. The Tribunal said that it showed the applicant 58 photographs extracted from one of the identified Facebook profile pages. The Tribunal said that profile revealed that those photographs were all uploaded to the applicant's Facebook profile between 19 June 2015 and 1 October 2015, being during the period in which the applicant originally claimed he was hiding in the bush [34].
5. As to these photographs, the Tribunal observed that:

(a) The images uploaded to the applicant's Facebook profile show the applicant at various different locations which were obviously not bush locations such as: standing with other men who were all wearing the same football jerseys and uniforms at sporting events; show him inside buildings and, standing on residential streets beside motor vehicles [35];

(b) The applicant told the Tribunal that he owned a telephone, which he had in his possession when he lived in the highlands and when he stayed in Port Moresby. He said that he was not able to log into his Facebook account when he was hiding in the bush; the photographs were taken in villages; that for his own safety he came out at night and went to various villages; and, that the photographs were uploaded at night. The Tribunal observed that this did not explain the vast number of the photographs being taken in the day time [36].

(c) When asked about how he charged his phone over the period he supposedly hid in the bush. The applicant claimed that although the villages were not connected to the power grid, there were generators in the villages and when he came out at night, he charged his phone using those generators [37].

(d) The applicant claimed the photographs were uploaded at a much later time to his Facebook profile [38].

1. The Tribunal said that it did not accept this as each photograph uploaded to the profile had a specific date of when it was uploaded. The Tribunal said the applicant claimed that he fled into the bush on 15 June 2015, and it noted that two days later on 17 June 2015, the very first of the photographs were uploaded to his Facebook profile. That particular photograph shows the applicant standing on a cement pathway underneath a covered walkway surrounded by gardens and buildings. Tagged in that photograph with him were two other individuals [38].
2. The Tribunal said that another photograph uploaded during the period the applicant claimed that he was hiding in the bush was uploaded on 6 August 2015 and was an image of the applicant standing on a paved area outside some large glass windows of a building wearing what appears to be clean white shoes and the comment inserted with the photograph was "Hedin 2word pom ... I miss rainny lae forever good byeeeee", suggesting that he was in Lae on that occasion. Again, tagged with him in that photograph was the individual that was identified in the other photograph, and it was indicated that two other people were with them [39].
3. The Tribunal said it accepted that there was anecdotal evidence of various disputes occurring across Papua New Guinea over portions of land, and that those disputes did occasionally lead to physical conflicts but there was no probative or tangible evidence to support the applicant's claims that the dispute and the tribal fight he alleges did occur [40].
4. The Tribunal said that when balancing that finding against the findings arrived at in respect to the photographs the applicant uploaded onto his Facebook profile during the four month period he claimed he lived in the bush, the Tribunal did not accept the applicant's claim that he fled into the bush and hid for four months [41].
5. The Tribunal then considered the applicant's claim that after living in the bush for four months, he walked to Mount Hagen where he stayed for two days before travelling to Port Moresby where he lived with his cousin until he secured a visa and travelled to Australia [42].
6. The Tribunal noted that the applicant said that he hid inside his cousin's house all day and all night and claimed that relatives of his enemies were in Port Moresby and his cousin told him to stay in the house. The Tribunal said that the applicant said that he did leave the house to go to the shops with his cousin but claimed that he hid in the back seat of his cousin's vehicle and that when they got to the shops, he remained in the car and did not get out of the car [43].
7. The Tribunal referred to the applicant being shown photographs that he had uploaded to his Facebook profile on 9 November 2015 which showed him and others enjoying themselves at a creek or some type of water course or swimming hole, of which images were uploaded two weeks before he travelled to Australia and during the period that he claimed he was hiding inside his cousin's house from his enemies. The Tribunal observed that the applicant could not explain this [44].
8. The Tribunal noted the discrepancies in the applicant's evidence about his stay in Port Moresby as outlined in the applicant's earlier statements that he did not leave his cousin's house, and his testimony at the review hearing that he did leave the house, but in doing so he hid in a motor vehicle. The Tribunal said it noted that the images uploaded to his Facebook page suggested that he did leave the house and rebut his evidence that he hid in the vehicle and did not get out of the car [45].
9. The Tribunal said that when assessing the available evidence in respect to the applicant's claims as to the circumstances surrounding his stay in Port Moresby, it noted that although he nominated who his cousin was, there was no statement or statutory declaration provided by his cousin, and nor was his cousin called to give evidence at the review hearing [46].
10. The Tribunal said it accepted that the applicant did stay with his cousin, but did not accept that he was in hiding when he stayed with his cousin in Port Moresby, nor did it accept that the evidence supported the applicant's claims that relatives of his enemies knew he was in Port Moresby and that they "were after" him as he claimed [47].
11. The Tribunal then set out the applicant's statement that his father and uncle (each of whom the applicant identified by name) were killed in a traffic accident on 1 January 2016 in an area about 50 kilometres north of Mt Hagen when being chased by enemy tribesmen and the tribal fight from January 2016 to 25 November 2016.
12. The Tribunal referred to documents the applicant had provided to the Department regarding the deaths which the Tribunal said it carefully assessed against the available evidence and made a number of observations about discrepancies in the documents [50]-[51], [53], [55].
13. The Tribunal also noted that the applicant in his statement claimed his father to be a person with a name that differed from the person named on the applicant's birth certificate as his father. The applicant then claimed that the man in the traffic accident was not his biological father, but rather someone who raised him and whom he considered to be his father [52].
14. The Tribunal concluded that in regard to the documents, it accepted that the other named individual was a person killed in a traffic accident on 1 January 2016 but found significant doubt surrounding the timing in respect to the death of the applicant's "father" as the medical certificate of death reported that his body was found on 31 January 2016, which was 30 days after the uncle and the location where his body was found was reported to be near Kundiawa which is situated approximately 100 kilometres east of Mount Hagen, whereas the "uncle" was claimed to have been killed in a traffic accident which occurred in an area, which is approximately 40 kilometres north of Mount Hagen [58].
15. The Tribunal said that therefore, not only was the body of the "father" found 30 days after the traffic accident that killed the "uncle", but was found at an entirely different location approximately 140 kilometres away from where the traffic accident was alleged to have happened [59].
16. The Tribunal said that any logical and rational assessment of the evidence presented about the death of the applicant's "father" should be accompanied by a significant degree of scepticism and said that it did not accept the applicant's claim in respect to what he says were the circumstances surrounding the death of both his "father" and "uncle" [60].
17. The Tribunal then considered the evidence of the applicant's fiancé at the review hearing [61]. It noted that she said it was her understanding that the applicant's protection visa had expired and he had been refused a visa to stay in Australia and that he had never explained to her why he needed to stay in Australia for protection. The Tribunal said it was clear that despite their relationship, she had no knowledge about the applicant's claims for protection [62].
18. The Tribunal then considered the applicant's delay in lodging the visa application and summarised the applicant's visa history [64]-[69].
19. The Tribunal identified that initially there had been a significant delay of approximately six months between the applicant's arrival in Australia to when he lodged his first application. The Tribunal said that the applicant suggested that originally his reasons for travelling to Australia was for protection, but rather than immediately making an application for protection, he waited until six months had passed before lodging the application. The Tribunal said that even when that first application, and his subsequent second application were deemed invalid, he still did not display any urgency in making his third application [70].
20. The Tribunal referred to the applicant's explanation for the delay in making his applications, which was that he was unsure about how to make an application and that was why there was a delay. The Tribunal said given that the applicant was involved in the process of applying for a visitor visa just prior to his departure from Papua New Guinea, it did not accept the applicant's explanation that he was unsure about how to apply for a protection visa [71].
21. The Tribunal also noted that notwithstanding that the applicant claimed he required protection from payback in Papua New Guinea, when his first application was declared invalid he waited a considerable number of months before lodging his second application, and that even when that second application was also declared invalid, he again waited a further considerable number of months until he lodged his third application. By this time, the applicant had been in Australia almost three years [72].
22. The Tribunal said it considered the delays significant which was not behaviour indicative of someone who fears for their physical safety [74].
23. The Tribunal found that the delay cast significant doubt on the genuineness of the applicant's claims that he had a well-founded fear of persecution were he to return to Papua New Guinea and said that the delay in lodging his protection visa application added weight to the finding that his claims did not appear to reflect the reality of his circumstances [75].
24. The Tribunal then considered the country information and set out the DFAT Country Information Report for Papua New Guinea with respect to tribesman seeking retribution through the payback system [92].
25. The Tribunal said that when careful assessment was given to the country information, it accepted that payback did occur in respect to disputes over land related issues. However, when that country information was assessed against the information provided by the applicant, the Tribunal did not accept that there was a sound basis for the applicant to be fearful of payback in Papua New Guinea for the reasons he claimed [93].
26. The Tribunal said that the number of photographic images uploaded to the applicant's own Facebook profile, in particular the vast number of images uploaded during the period when he claimed he was hiding in the bush, that showed him wearing different clothes, being at sporting events, as well as various localities which were clearly residential areas, and the cleanliness and tidiness of his attire in those images, did not support his claims of living in the bush for a long period of time [94].
27. The Tribunal concluded that the applicant's claims were unconvincing when taking into account:

(a) The large number of images he uploaded to his Facebook profile showing him at different locations which clearly were not bush settings [95];

(b) The applicant's claim that he walked out of the bush to Mount Hagen and then went down to Port Moresby where he stayed with his cousin until he travelled to Australia. Although he initially claimed that during his stay in Port Moresby he did not leave his cousin's house, he later varied his evidence to suggest that he did leave the house in a vehicle, but remained hidden inside the vehicle [96];

(c) The applicant said that in January 2016, his father and his father's brother were involved in a car chase with enemy tribesmen, their vehicle crashed and they were both killed in the accident. The applicant produced a number of documents, which he had obtained from his cousin, but did not know where they originated from. The Tribunal said it was troubled as to the authenticity of the documents and the information contained therein [97].

1. Based on the applicant's testimony at the review hearing, along with all the material he provided to support his case, the Tribunal found that his tribe may have been involved in a land dispute in 2014 and a tribal fight in 2015 but that there was no probative or tangible evidence to show that the applicant was involved [101].The Tribunal said it accepted that the two men, who the applicant claimed to be his father and uncle, were killed in early 2016 in traffic accidents, however, said that the applicant's own documents rebut his claim that they were killed in the same traffic accident [102]. The Tribunal said it did not accept that the applicant was personally involved in the land dispute or any fight that may have arisen from that dispute, and that his own social media posts showed that he could not have been hiding in the bush as he claimed, and that it did not accept he was hiding inside his cousin's house in Port Moresby as claimed [103].
2. In respect to his father being killed in the circumstances as described, the Tribunal did not accept that the claimed father was the applicant's father and rejected the claim that he considered the claimed father to be his father. The Tribunal concluded that there was not a scintilla of evidence that validates the claim that the people identified as either his claimed father or uncle were in any way related or connected to the applicant, and the Tribunal said it rejected that claim [104].
3. The Tribunal concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Papua New Guinea, a real risk existed that he would suffer significant harm or that there was a real chance he would suffer serious harm and found that the applicant was not a person in respect to whom Australia had protection obligations as defined in the Act [105]-[106].
4. The Tribunal concluded that the applicant was not a refugee as defined in section 5H of the Act, and nor had the applicant satisfied the criterion provided in s 36(2)(a) of the Act [107].
5. The Tribunal then considered the applicant's claims under the complementary protection criterion and whether there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Papua New Guinea, there was a real risk that he would suffer significant harm [108].
6. The Tribunal said that because of the findings already outlined, it was not satisfied that in the reasonably foreseeable future there was a real risk that the applicant would suffer significant harm for any of the reasons he claimed if he returned to Papua New Guinea.
7. The Tribunal concluded that having considered all the applicant's claims, individually and cumulatively and the evidence, it did not accept that if he returned to Papua New Guinea now or in the reasonably foreseeable future he would be arbitrarily deprived of life; the death penalty would be carried out on him; he would be subjected to torture or to cruel or inhuman treatment or punishment; and nor would he be subjected to degrading treatment or punishment [111].
8. The Tribunal concluded it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act or was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act [114].
9. The Tribunal affirmed the delegate's decision.

1. These proceedings were commenced pursuant to s 476(1) of the Act by an application filed on 11 September 2023. The applicant also filed an affidavit on 11 September 2023 in support of his application for judicial review. The affidavit annexes a copy of the Tribunal's decision.
2. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. The material before the Court was the application, the applicant's affidavit, the first respondent's response, the first respondent's written submissions and the Court Book. Before the hearing commenced, the Court ensured the applicant had copies of these documents in Court with him. The Court Book was made an exhibit in the proceedings.
4. The applicant appeared in person on his own behalf. The applicant had the assistance of an interpreter in the Pidgin Papua New Guinea and English languages.

1. For the applicant to be successful the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
3. Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
   1. I wanted to clarify on some aspects of my case to the AAT member, but I do not believe that these were communicated clearly to the AAT member by the AAT provided interpreter due to connectivity issues. During my hearing, I was provided an interpreter in Pidgin Papua New Guinea language. The interpreter was in Papua New Guinea and that AAT called the interpreter over the phone I believe. The connection to the interpreter was quite bad and frequently kept cutting off and stalling. This caused both myself and the AAT member to have to repeat several times our statements to the interpreter. I got confused and lost my train of thought and at the time forgot to state what I wanted to state. I believe also that the interpreter had trouble hearing my statements completely and at times I believed interpreted incorrect information to the AAT member. I believe this impacted on my ability to clarify on certain aspects of my claim to the AAT.
   2. Secondly, my cousin was not called to give evidence, which I had provided his contact details to the AAT beforehand. My cousin who is mentioned in my Protection visa application, is the son of my uncle [name reacted] and he would have provided clarification on my relationship to [name redacted] and [name redacted], who are the two men who were killed in the car accident.
4. Despite the procedural order requiring him to do so, the applicant did not file any written submissions. The applicant was given the opportunity to make oral submissions in support of his grounds for judicial review and in reply to the first respondent's submissions.

Ground One: Procedural fairness - poor connectivity at the hearing with the interpreter

1. The applicant makes two contentions in respect of ground one regarding the interpreter at the hearing. The hearing record of the Tribunal states that the hearing was listed as an in-person hearing. The applicant and his fiancé appeared in person. It is not in dispute that the interpreter appeared by telephone.
2. The applicant first contends that the telephone connection with the interpreter at the hearing was poor such that it frequently kept cutting off and stalling. He says this caused himself and the Tribunal member to have to repeat their statements which led to him being confused, losing his train of thought and forgetting what he wanted to say.
3. The applicant's second contention is that the interpretation was inadequate and that at times the interpreter interpreted incorrect information. The court understands that in relation to the second contention, the applicant's complaint is not as to the interpreter's ability to translate between Pidgin Papua New Guinea and English but that because of the poor telephone connectivity, the applicant was unable to communicate efficiently and effectively to the interpreter.
4. In the applicant's oral submissions, he states that the communication with the interpreter "was not good", being that he could not hear the interpreter and the interpreter could not hear him; and that the poor connectivity to the interpreter consequently prolonged the length of the hearing. The applicant stated that the Tribunal member became frustrated and that the lengthy hearing - the hearing went from 10.38 am to 4.48 pm - contributed to the applicant then forgetting some of the points he had wanted to make.
5. The first respondent correctly accepts that if the remote connection in a Tribunal hearing is interrupted or downgraded such that the parties are unable to have a coherent exchange, the Tribunal may fail to discharge its statutory function of conducting a review (first respondent's submissions ("FRS") [25] citing Enkhbat v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 308 at [29]; DPL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 232 at [27]).
6. The relevant evidence before the Court was:

(a) The Tribunal's hearing record (CB 234-237);

(b) The Tribunal's reasons for decision (CB 246-269); and

(c) Email correspondence from the applicant to the Tribunal after the hearing (CB 238-240).

1. Significantly, the Court did not have before it a copy of the transcript of the Tribunal hearing in which any connectivity issues would likely be evident.
2. The hearing record reflects that the hearing commenced at 10:38am and concluded at 4:48pm and that there were audio checks conducted at the commencement of the hearing and on each occasion that the hearing resumed after an adjournment. The hearing record further reflects that the Tribunal adjourned for a lunch break from 1:14pm to 1:55pm and that there was a further adjournment from 2:50pm to 3:00pm to allow the applicant to read a document. As the first respondent submits (FRS [25]), there is no reference in the hearing record to any issue with the telephone connection. It seems implausible that in such a lengthy hearing, the hearing record would not reflect connectivity issues were there any.
3. The Tribunal's reasons for decision are some 117 paragraphs in length. There is nothing in the reasons which addresses any connectivity issues.
4. Shortly after the hearing, on 2 August 2023, the applicant emailed the Tribunal (CB 238). He informed the Tribunal that he and his partner had decided not to go ahead with a partner visa. He asked the Tribunal what his options were. The applicant did not raise any issue with the connectivity with the interpreter at the hearing. The applicant emailed the Tribunal again on

14 August 2023 referring to a telephone call he had had with the Tribunal in which it had been confirmed that the Tribunal's decision was still to be sent to him (CB 240). Similarly, the applicant did not raise any connectivity issues with the interpreter. 5. To the extent that the applicant complains about the adequacy of the interpretation at the hearing, as noted earlier, the Court does not understand the applicant to be contending that the interpretation was inadequate in that the interpreter was insufficiently qualified or capable of faithfully interpreting in the Pidgin Papua New Guinea and English languages. Rather, as set out above, the applicant's complaint concerns the interpreter's ability to interpret due to the connectivity issues which he states led to the process being slow, the hearing becoming lengthy, the Tribunal becoming frustrated, the applicant forgetting some of the points he had wanted to make and that the interpreter may have, as a consequence, interpreted incorrect information. 6. The first respondent submitted that whether there an "inadequate interpretation" of the sort that results in an unfair hearing depends on the particular circumstances of the case (FRS [27], citing SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142 at [5]). The first respondent submitted that importantly where interpretation services are relied on, those services must be adequate to "convey the substance of what is said" to an applicant so that he or she can "communicate the substance of his or her case and to respond to issues raised" (FRS [26] citing Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376 at [28]) and that it is crucial that the essential elements conveyed by an applicant are ultimately received by the Tribunal (FRS [26], citing SZRMQ at [90]) (FRS [26]). The Court agrees with those propositions. 7. The first respondent further submitted that to establish this ground, the applicant must show that (FRS [27]):

(a) The standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence to the Tribunal, or that

(b) Errors made in the interpretation at the Tribunal hearing were so material to a conclusion of the Tribunal and adverse to the applicant that the decision-making process miscarried (citing WALN v Minister for Immigration and Multicultural and Indigenous Affairs FCAFC 131 at [29]).

1. The Court agrees with the first respondent's submission that in the absence of any evidence filed by the applicant, such as a transcript of the hearing prepared by an accredited interpreter; or any indication on the face of the Tribunal's reasons for decision or hearing record to suggest that the applicant had any difficulty understanding the Tribunal's questions or providing answers, the Court is "entitled to accept the [Tribunal's] decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary" (FRS [28] citing SZVUP v Minister for Immigration & Border Protection [2015] FCCA 1287 at [13]- [14]).
2. On the evidence before the Court, the Court concludes that no jurisdictional error is established on ground one.

Ground Two: Procedural fairness - failure to call the applicant's cousin to give evidence

1. In ground two, the applicant contends that the Tribunal erred in failing to call his cousin to give evidence at the hearing. It is not in dispute that the Tribunal did not call the applicant's cousin to give evidence
2. Section 426 of the Act relevantly provided:

426 Applicant may request Tribunal to call witness

(1) In the notice under section 425A, the Tribunal must notify the applicant:

(a) that he or she is invited to appear before the tribunal to give evidence; and;

(b) of the effect of subsection (2) of this section.

(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

1. Pursuant to s 426, the Tribunal has an obligation to consider inviting a person as a witness whom the applicant has notified the Tribunal in the notice that he or she wishes the Tribunal to call to give evidence.
2. In oral submissions, the applicant told the Court that he had provided his cousin's name and telephone contact details to the Department in his visa application. The Court accepts that he did so (CB 103-104).
3. As set out earlier in these reasons:

(a) On 30 June 2023, the Tribunal invited the applicant to attend a hearing on 25 July 2023 stating that it was unable to make a favourable decision based on the information before it alone (CB 200-206). The hearing invitation enclosed a 'Response to hearing invitation' form for the applicant to return to the Tribunal within 7 days. The invitation further stated that if the applicant proposes that a witness give evidence at the hearing, a witness statement setting out the witness's evidence should be provided to the Tribunal by 18 July 2023;

(b) On 17 July 2023, the applicant's fiancé emailed the Tribunal the completed form (CB 219-220). 'Part 4' of the form provides that an applicant may request that the Tribunal take oral evidence from a person or persons. In the submitted form, the applicant requested his fiancé be called to give evidence as a witness. There were no other named witnesses which the applicant requested the Tribunal to take evidence from at the hearing;

(c) Again on 17 July 2023, the applicant's fiancé emailed the Tribunal confirming that the applicant wanted the Tribunal to call her as a witness at the hearing (CB 222). There was no request that the applicant's cousin be called to give evidence.

1. As the first respondent correctly submits, the applicant did not give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from his cousin, thereby attracting the obligation imposed by s 426 of the Act (FRS [30]). Further, nothing in the Tribunal's reasons for decision, indicates that at the hearing the applicant requested the Tribunal to call his cousin as a witness. The Tribunal noted that the applicant's cousin was not called to give evidence at the hearing and that the applicant did not provide any statement or statutory declaration by his cousin [46].
2. In circumstances where the applicant did not request the Tribunal to call his cousin to give evidence, the Tribunal had no obligation to call the cousin.
3. The Court concludes that no jurisdictional error is established on ground two.

Another Matter - the Tribunals refusal to postpone the hearing

1. The applicant did not raise in his application or at the hearing before the Court, whether the Tribunal may have acted in a way which was procedurally unfair or otherwise unreasonable in refusing to grant him an extension of time to provide supporting documents, which request, if granted, would have necessitated a postponement of the hearing. It was also not raised by the first respondent. The Court has nevertheless considered this potential ground.
2. Section 427(1)(b) of the Act relevantly provided that:

427(1)(b) Powers of the Tribunal etc.

(1) For the purpose of the review decision, the Tribunal may:

(b) adjourn the review from time to time; or ...

1. As earlier noted, on 23 July 2023 (being two days before the hearing), the applicant emailed the Tribunal stating that he wanted an extension of time to obtain supporting documents explaining that it was taking time to obtain information from Papua New Guinea (CB 230). This was in response to the Tribunal's correspondence to the applicant regarding his failure to provide information requested in the 6 July 2023 Request or to request an extension of time within which to do so (CB 229). The applicant never provided the requested information.
2. The Tribunal dealt with the applicant's request for an extension of time at the hearing, and in doing so noted the following:

(a) The applicant had provided no communication or other evidence to show that he had communicated with any other person or entity in Papua New Guinea for the purpose o obtaining that information nor identify what information he was seeking [83];

(b) It was approximately four years since his visa application was refused by the delegate, and he had applied to the Tribunal for review [84];

(c) Save for a period of two weeks prior to the hearing the applicant was represented by a migration agent who during that time did not indicate that the applicant was relying on documentary evidence from Papua New Guinea [85];

(d) The hearing invitation included a request that the applicant indicate whether he relied upon any documents at the hearing to which he had replied 'no'[86].

1. The Tribunal concluded that considering those matters it refused the applicant's late request for a postponement of the hearing [89].
2. The Court is satisfied that in the circumstances identified by the Tribunal, the Tribunal's decision not to postpone the hearing was neither procedurally unfair nor unreasonable.
3. As a consequence, the Court does not find any jurisdictional error in respect of the Tribunal's decision not to postpone the hearing.

1. For the reasons given above, no jurisdictional error is established. Accordingly, the application is dismissed.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.