CIB24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2163

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. On 3 January 2024, the Administrative Appeals Tribunal ("AAT") affirmed a decision not to grant the applicant, CIB24, a protection visa. On 22 May 2024, the applicant asked this Court to review the application. As one can see from those dates, the applicant was about 105 days out of time when he asked the Court to review the decision.
2. To start with, this application today was an application for extension of time. There are three aspects that a Court looks at in deciding how it will exercise its discretion. The first question the Court asks is "what is the reason for the delay" or "what is the excuse for not putting the review application in within the 35-day time limit".
3. The second aspect is what, if any, prejudice is there to the respondent and thirdly, the question is whether there is an arguable case for the substantive relief sort. Depending on the circumstances, one of those considerations may overwhelm the other two or they may not.
4. In this case, there really is no valid excuse or valid reason why it is that the applicant did not get his application in within time.
5. The Minister has conceded that there is no prejudice to the Minister that would be of such an extent to deny the applicant the extension if it were made out by consideration of the other factors.
6. In this case, having regard to the substantive grounds for the relief sought, I am of the view that they were very much arguable grounds and therefore, having a look at the question overall, I have concluded that I ought grant the extension. The order that I will make is that the time for filing an application for review be extended to 23 May 2024.
7. The hearing proceeded on the merits as a substantive hearing. All the arguments that could be made for the applicant and all the submissions that were to be made for the respondent Minister were made.
8. The background of the matter is that the applicant is a citizen of Papua New Guinea ("PNG"). He came to Australia sometime in 2023 and in August, he applied for a protection visa. In that application, he said that if he returned to Papua New Guinea, it would harm him because he would not be able to get the sufficient funds for everyday living expenses.
9. The delegate refused the visa application because none of the reasons that the applicant gave were matters that were able to satisfy s 5J(1)(a) of the Migration Act 1958 (Cth) ("the Act"). The delegate had said that there was no real risk of any of those types of relevant significant harm for the purposes of the complementary protection.
10. The applicant applied to the AAT for a review on 23 October 2023 and on 20 November 2023, he was invited to attend a hearing before the Tribunal. That hearing was set for 20 December 2023.
11. The applicant sent back his confirmation of attendance but also said that he would have additional new claims and evidence that related to outbreaks of tribal violence in his home province of Papua New Guinea. He asked that a Pidgin PNG interpreter be provided to him for the hearing and he requested that the Tribunal take oral evidence from two persons and he gave their international telephone numbers. It was said that those witnesses would be able to corroborate the continuation of tribal fighting in Papua New Guinea.
12. The applicant attended the review hearing on 20 December 2023. He had given the Tribunal a statutory declaration signed by his brother as well as a letter that the brother had written. The claims, then, that were before the Tribunal were:
    • firstly, that the applicant says that he can work in Australia and send money back to his family in Papua New Guinea;
    • secondly, that the economic hardship he would experience in Papua New Guinea if he would return there would result in insufficient funds for his everyday living expenses; and
    • thirdly, that he cannot relocate to any other area of PNG because the situation was the same everywhere because the country was poor, and that he does not believe that the authorities in Papua New Guinea are able to help him as they do not have funds to help people.
13. His new claims were that his family, having migrated to Mount Hagen from the Enga province, were doing well until recent tribal fighting in Enga had recommenced between their tribe and their enemies who killed most of their family. As their tribe's enemies are hunting down his tribe and family, his family wants him to stay in Australia to help them financially because it is not safe for him to work in Papua New Guinea, as it is too risky. He said he had to flee Papua New Guinea due to a distressing encounter with a dangerous faction which has left him with an enduring and legitimate fear for his life.
14. The claims that were made can be described as general and vague. The letters from the applicant's brother did give some colour to the statutory declaration of the applicant's brother and his subsequent letter also gave some colour to that claim. He also produced some photographs of what he said was the fighting. The Tribunal reproduced the statutory declaration and the letter in paragraph 16 of their reasons.
15. The AAT also went through quite a deal of country information regarding where Papua New Guinea was in an economic sense and then also some country information about tribal violence in Papua New Guinea. The review hearing occurred on 20 December 2023, and the Tribunal questioned the applicant about his claims and country information was put to him as well for comment. The Tribunal summarised those aspects in their decision. The Tribunal said this at paragraph 60:

[60] The Tribunal, having had the benefit of observing the applicant as he gave his oral evidence and answered the Tribunal's questions, has formed the view that the applicant was often unable to provide sufficient details to support the factual basis of his claims. The Tribunal for the reasons outlined below also found the applicant's evidence to be vague and often inconsistent with his earlier statements, most notably his reasons for travelling to Australia.

[61] As such, the Tribunal found the applicant to be an unreliable historian as to his family's connection and/or involvement with their former home village in Ambum, and any tribal violence that had occurred, or was occurring, in that district. Equally, the Tribunal found the applicant to be an unreliable witness as to the risk of harm he claims to fear, the reasons for him having travelled to Australia in June 2023, and his claims for protection.

1. The Tribunal then looked at the aspect of economic hardship. The Tribunal said that it had regard to the evidence before it, including the applicant's oral evidence, and that his family have, for over 30 years since relocating to Mount Hagen, sustained themselves without the benefit of the applicant's Australian income.
2. The Tribunal found that the applicant's claims in relation to the profound economic hardships that he would face if he were to return to PNG do not relate to any of the reasons outlined in s 5J(1)(a) of the Act and the Tribunal then found that the applicant does not face a real chance of persecution involving serious harm if he were to return to Papua New Guinea in the reasonably foreseeable future on account of the economic conditions and his employment prospects. As a result, the Tribunal found that his fears were not well-founded.
3. The Tribunal noted that the applicant did not advance any evidence that he had been targeted by way of having employment opportunities withdrawn from him or that he would likely suffer significant harm as a result of his return to Papua New Guinea and the economic situation that he would have to face there, which is one that is faced by the population at large.
4. As to the new claims, the Tribunal looked at what was s 423A of the Act.
5. The Tribunal brought those provisions of the Act to the applicant's attention. The applicant said that he did not include these claims of tribal violence in his application for his visa at first because his agent had not asked him about the issue of tribal violence. The Tribunal noted that it was the applicant's evidence, at the hearings, that he had been familiar with his application and the claims made in it, but had not sought to amend his application by including those claims regarding tribal violence. Due to that inconsistency, as well as an inconsistency that the applicant claimed he had fled Papua New Guinea to Australia because of tribal fighting, as opposed to him coming to Australia as a visitor, the Tribunal found that the explanation was not reasonable in all the circumstances.
6. Given that s 423 of the Act provides that a decision maker is required to draw an adverse inference about new claims of evidence if certain circumstances arise, the Tribunal found that the applicant's explanation for the new claims, having not been reasonable, allowed it to draw the inference unfavourable to the credibility of those claims as to tribal violence as required by the Act.
7. The Tribunal then went on to say that notwithstanding that they did not accept the explanation for raising this new claim as being reasonable, the Tribunal still made observations as to the claims of tribal violence.
8. The Tribunal said that if it were to further consider the applicant's claims as tribal violence, they would have found that the applicant did not face a real chance of persecution arising from this tribal violence, given that his evidence in this regard has been vague and inconsistent. The fact that his family had relocated from Amburn to Mount Hagen 30 years ago, that his family had only experienced one incident of purported tribal enemies having sought him out 23 years ago, and that the applicant had not been involved directly in any tribal fighting himself, the Tribunal said it would have found that the applicant's fears of harm were not well-founded and that the applicant did not have a real chance of persecution involving serious harm if he were to return to Papua New Guinea on account of tribal violence.
9. The Tribunal found that the applicant did not fit the refugee criteria nor the complementary protection criteria. Having made those findings, the Tribunal affirmed the decision not to grant the applicant the protection visa.
10. The application before this Court proceeded upon a second amended application in which there were three grounds. I will go and deal with these grounds seriatim.

Ground 1: The applicant was denied procedural fairness in the Tribunal's conduct of the hearing or that the Tribunal failed to properly conduct the mandatory review process contemplated by section 425 of the Migration Act 1958 (Cth).

(a) The Tribunal in its questioning of the applicant, at various times throughout the hearing:

(i) put propositions and assertions to the applicant in place of questions;

(ii) expressed a tone of disbelief and occasionally sarcasm at the applicant's evidence;

(iii) did not give the applicant a fair opportunity to respond to the questions that were asked including by interrupting the applicant; and

(iv) reached conclusions that were not based on the answers actually given by the applicant.

(b) the interpreter available to the applicant did not speak the same local dialect as the applicant, which impaired his ability to fully participate in the hearing and respond to the Tribunal's questions.

(c) In its totality, the review application was conducted in such a way as to have denied the applicant a fair opportunity to give evidence and advance his case.

1. I have had the opportunity to listen to the audio recording of the hearing and have been assisted by a transcript which has been compiled by the legal representatives of the applicant and is contained in an affidavit of Therese Henderson, lodged on 25 November 2025. In that transcript, there are a number of passages that have been brought to the Court's attention where it is claimed that they display the flaws that were particularised in ground 1 of the application.
2. Whilst it is that the transcript is a fairly accurate compilation of what was said, there are many places where there is quite a significant pause and that is not reflected in the transcript. There are times where the member, but mostly the applicant, begin a sentence and then simply do not finish that sentence. When that happens there is a pause and then there is someone else talking. If one looks at the transcript as it is written, it may straight away give the impression that there has been an interruption, which is simply not the case.
3. The other thing about the transcript is that if it is that there are sometimes questions asked, especially by the member, and there is a pause and there is no response, the member will ask the question again and if there is no response, will either clarify the question or talk about something else. The way in which the transcript is written makes out as though there is a block of questioning by the member in which questions are asked multiple times.
4. If one did not listen to the audio and simply relied upon the transcript, it can give an impression that there is a form of badgering, which is actually not the case. It is in listening to the hearing, as a whole, that a person, in the position that I am in, gets a feeling of what it is that has happened.
5. The transcript starts off with the Tribunal member asking questions as to whether the application was a document that the applicant filled in, whether what was put in there was true, and then what it is that the hearing conducted by the AAT is all about. The applicant did have an interpreter in a Pidgin language that was there. The applicant told the Tribunal, at T12, that he needed the interpreter to clarify an aspect of the explanation that the member was giving.
6. At the end of that translation, the member asked:

1. And the applicant said "yes".
2. At the end of those introductory remarks, the member said this at T14:

Now, throughout this hearing, I'll be taking notes on this computer. So, there may be times when I ask you to repeat what you have said or clarify something. That is just so I have an accurate record. It does not mean I am not believing you so do not worry about that if I ask you to repeat things; do you understand that? At the end of the hearing, I will provide you with an opportunity to consider the matter and allow you to raise any final issues or clarify any matters you think need further explanation. Do you understand that?

Now, in relation to a decision in your case, the Tribunal will have regard to all the evidence provided up until the time it makes its decision. I'll not be making a determination today as I wish to carefully consider all aspects of your application and the evidence I hear today. However, I'm mindful of the serious nature of this matter and the significance of it to you and I'll endeavour to make a timely decision. I would think in early January you'll get a decision, ok?

Now, as you're aware, the Tribunal has the services of an interpreter today, to assist you and the Tribunal in hearing your case. It's important in this regard for you to inform the Tribunal if you experience any difficulties with the interpreter during the hearing, ok?

1. The applicant said, "Yes, yes". The member said:

Now, you've had a chance to talk with the interpreter? And you accept or you believe you have an understanding with the interpreter?

I think the interpreter is from, Vanuatu. It's not from PNG.

Well, it doesn't matter where's from, but can you understand her?

Well, you don't understand her or you do understand?

All right, well, the interpreter's told you where she's from, - she hasn't said, has she? Madam Interpreter, where are you from? He wants to know.

Right, so just do you understand, there's a slightly different -

Right, but you can still understand each other?

this was a safe place and that the applicant should feel safe to tell me all about his case.

1. To which the applicant replied "yes". The member then brought the applicant's attention to s 423A. The member asked:

So, what's the reason you didn't include the tribal violence claims in your application?

1. The applicant said, "Can I speak?" The member said:

1. And the applicant gave his explanation. This is the first aspect that is now impugned by the applicant. The applicant said:

Member, the visa agent didn't ask me for this. So, I did not. I just sent all my claims to him because of he asked me to do -

Well, he asked you what your claims were and you said it was about employment. Why didn't you tell him you were scared of tribal violence?

Well, I find that difficult to accept. Why did you come to Australia?

1. The applicant answered, "Sorry?" and the member asked again:

1. The applicant points to the Tribunal telling the applicant point blank that he found his reason difficult to accept.
2. The applicant was asked why he came to Australia and he said that he came on a tourist visa and that he came to visit the places. The member said:

So you didn't come to Australia to escape any violence?

You didn't come to Australia to escape violence?

Just listen very carefully, you said you came to Australia -

1. Then he had the interpreter interpret and asked the interpreter to interpret the question.
2. At the top of page T17 the member asked the applicant where he lived before he came to Australia and there was quite a deal of talking about that. The applicant said that he has been living in Mount Hagen. The member at the bottom of T17 said:

No, don't look at documents. Don't you remember where you came from?

1. The applicant now points at that admonition (about looking at documents) which, when one listens to it, seemed to be that the applicant was looking at documents to answer the question as to where he had been living. The applicant then spoke about living in Mount Hagen since he was a small boy. The Tribunal then got the interpreter to ask the question to explain the contradiction between saying that he had lived at Mount Hagen for seven years and then saying that he had lived in Mount Hagen since he was a little boy. The applicant was then asked:

You're 36 now; so you've been living in Mount Hagen for 30-odd years, is that right?

1. And the applicant said "yeah". The applicant explained that he had come from the Kompiam district in Enga and that he left about 30 years ago. The member asked:

1. The applicant said "between tribes". The member asked which tribes were fighting. The applicant said:

1. There was a bit of back and forward and the member asked:

Do you want to explain the tribe to the interpreter?

1. He did so and the interpreter gave a spelling for the member. The member asked them:

Fighting between other tribes, with other tribes. Tribesmen.

1. The member asked "which tribes?" Again, there was a pause, there was no answer and the member then said, "You don't know?" And the applicant said, "Yeah". The member repeated, "You don't know?" The applicant said, "Sorry?" The member said:

1. He paused and then he said, "yeah". The member then said:

You don't know because this was told to you by your parents?

1. The applicant said, "yeah." The applicant then spoke about his father being killed in the year 2000, that he was travelling on a bus and that he was killed on the road and that he was travelling back to his place in Kompiam. The applicant then was asked, T22:

Now, while you were living in Mount Hagen for the past 30 years, there has been incidents of tribal fighting in your village. Is that right?

1. The applicant said "yes". The member said, "many times?" The applicant said:

Yeah, many times. And we sometimes don't scare them.

1. The member said, "Sorry?" There was a pause and then the member said:

No, but in your tribal village, there has been fighting, hasn't there?

1. The applicant said, "Yes, yes". The member said:

And during that 30 years, in Mount Hagen, you have not been attacked or threatened by tribal enemies?

Well, you haven't said any of that in this - in the material. Is that something new you've just made up?

1. The applicant points to this aspect as well.
2. The applicant said to that query:

Well, why would you not tell me about - why would you not tell me about in your letter?

So, what incidents have occurred to you in the last 30 years in Mount Hagen?

When they fighting in our village, we always take precautions because they always come and check us. We did not live in our house all the time.

Right. And would stay at a different house. Is that right?

1. The applicant said, "Yes, but we" - the member said:

Listen to my question very carefully. You said, when there is fighting in our village, we would take precautions. What are the precautions?

1. The applicant said, "Yeah, they usually". The member said:

Where did you see them from? If you went away, how could you see them coming to your house? You just think they came to your house?

1. The applicant said, "No, they come." The member said:

Well, then they'd attack you. Why did they not attack you?

Ah, we have neighbours or we just took off from our house. We - - -

Okay, well, you tell me about this because you've never mentioned that in any material.

1. The applicant points to that exchange as showing either a badgering or an impermissible cross‑examination in which the tone of the voice of the member is either exasperated or incredulous.
2. The member said:

So tell me the first time that happened that you remember.

Okay, when your father got killed, what happened?

1. And the applicant then spoke about the people checking the house and that he ran away. The member said:

Well, there was no violence there that happened. Okay.

1. The applicant points to that statement as being unfair and showing an attitude of incredulity. The member asked who these people were. The applicant said that they were the enemies. The member again asked:

I've got newspaper articles talking about the tribes that were fighting. You don't even know who they are. You don't know who they are? So, some people came to the front door, did they? How did it happen?

They come in a, with a car, check our house. So, we just run away from them.

Did they sit in the car? Did they get out and knock on the door? Did they smash the door in? Were they carrying guns?

Tell me. You didn't say that before. You seem to be making this up, I'm sorry.

1. The applicant points to that exchange where the member said:

You tell me now, what happened. Okay. So, it's in 2000, what time of the year?

1. And the applicant has said that it happened in 2000. The member said at the bottom of T25:

When in 2000? This is such a significant matter, you must really remember it. It must have been very scary. So, tell me everything, what day of the week, what month, what day, what time. So, let's start from the beginning. In - it was 2000, what can you tell me?

1. The applicant points to this exchange and submits that the member was being sarcastic about the applicant must really remember it and it must have been very scary.
2. The applicant then gave details, saying that it was the day that his father had died, the member then asked how many people came:

Well, how do you know they were coming for you?... what happened then...and for how long?

1. The applicant kept giving more details.
2. The applicant points to this having been done in an aggressive manner, notwithstanding that these were open questions and that they were such that they would give an applicant a feeling that they were under the pump and under pressure.
3. At T29, the member asked:

I feel that my life was threatened. That's why my brother told me not to come back because they say the fight is getting really worse than before.

But your mother and brothers are still safe in Mount Hagen.

They are scared that all of our - and they are not at home.

1. The member said - referring to the brother's statutory declaration and letter, the member said:

But you could go and hide with them. Couldn't you? They've been able to avoid trouble for 23 years.

But, Member, to live on this earth, we will not live in fear all the time. Hiding.

No, they are hiding, hiding, they are not living at the house right now. They are hiding.

1. The applicant said "hiding with friends." The member said:

Where's that evidence? Your brother doesn't say anything about that...Your brother doesn't say that he's hiding.

No, I mean, they are living with their friends but they will not accommodate them like that all the time, because -

1. Then there is a large pause.
2. The applicant points to that exchange as a mix of sarcasm and incredulity.
3. The Tribunal then looked at the country information and read it to the applicant and then said at T31:

Well, it seems to be under control. It also seems that your family have been safe in Mount Hagen for over 30 years, as were you. But if you're worried about being in Mount Hagen - - -

Well, why can't you go to Port Moresby or somewhere else?

Because our enemies are still all over the country, taking revenges like this.

So show me incidences of that. Often people say it's revenge, but people die in Port Moresby and people assume it's revenge, don't they? Given you have not been back to your village -

1. Then there was again another pause. Then the member said:

Given you've not been back to your village, and we're not involved in any of the tribal fighting that your family's tribe was involved in, how would your tribal enemies know who you are?

1. The applicant points to this question as being cross-examination and being incredulous. The applicant answered:

That is my point. They have never met you. He was killed with other people on a bus driving to the village. He was killed with others.

He was not specifically targeted. The whole bus was targeted.

No. They know that. There is camera on the bus with -

Maybe somebody tell him or tell them. I do not know.

Okay. So, you cannot relocate because they are everywhere.

But you do not know. You do not even know what tribe they are.

What is the tribe that are your enemies? Who are they?

1. The applicant said, "Tribe for the" - and then said, "My tribe?" The member said:

1. The applicant said, "Ah". The member said, "Sorry?" The applicant said, "For the" - and then there is a pause. The member said:

then got the interpreter to interpret the question about who the enemy tribes were.

1. Again, the applicant points to this interaction.
2. At T38, which was more or less the end of the proceeding, the member asked:

Okay. Is there any other information you want to tell me?

Yes, member. God created us to live freely on this earth, not to live on fear - with fear, all the time in our lives. To live in Australia, for the short period of time, I feel I'm okay, I feel I am secured and that is all.

Okay. Now I have got the - as I said, I have got two documents from your brother. One a statutory declaration, the other a letter. That is the information from your brother. Okay. Well, there is no other witnesses today, you're the only witness?

And I have got the letter you provided. And that is where you say it is dangerous for you to go, you had to flee. Okay. Alright. But the original reason you came to Australia was to be a tourist and to look around. It was only after you came here that you realised it was unsafe. is that right?

1. The applicant said something, but I could not make it out on my listening, and neither could the person who did the transcript. The applicant then said:

When I came out fighting is an ongoing thing in our province.

Well, just listen to my question. You told me earlier, on the original reason you came to Australia was to visit places, but while you were in Australia, the tribal violence in your home district became worse, and then you feared returning. Is that right?

Okay. I understand, thank you. Okay. Alright. Well, I'll have a think about these things. So, there is nothing else you would like to tell me?

1. The applicant says, "Yes," and the hearing then closed.
2. I have gone through that fairly thoroughly because it really needed to be looked at as a whole rather than simply taking bits and pieces out of context. The applicant submits that it is not just one thing. It is not simply the fact that there was an interpreter that the applicant was not comfortable with. It is not simply that there were interruptions. It is not simply the sort of sarcasm or interruptions or cross-examination. It is all of those matters as a whole, and it must be looked at holistically.
3. The applicant submits that when looked at holistically, the hearing was unfair. The applicant has referred me to two authorities. The first being SZEOQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1171 which at paragraph 24 the Court said:

Proceedings before an inquisitorial Tribunal are necessarily of a different nature to proceedings before a court. The Tribunal member in the present case was entitled to, and indeed obliged to, put adverse information to an application for a protection visa. As noted by the Federal Magistrate:

it is quite understandable that some apparent rejection of a claim (particularly - and even as it may derive from a considered and reasoned, but nonetheless adverse view of the applicant's credibility) can be seen as an indicator of bias or bad faith of the hearing...However, in many ways, a Tribunal member who puts such adverse views to an applicant at a hearing fulfils that worthwhile objection of putting the applicant on notice of potentially adverse findings and thereby giving the applicant the opportunity to comment.

However, in my opinion, the conduct of the Tribunal member went well beyond simply putting adverse views to the appellant. From the very beginning of the hearing, the Tribunal member expressed profound disbelief in the appellant's claims. She expressed her opinion about the merits of the appellant's claims vehemently. She asked questions of the appellant in an aggressive manner. Her responses to his answers were frequently dismissive and almost suggest contempt for the applicant's claim. As noted above, at one point she expressed a view that he was a typical example of a Lithuanian who had left Lithuania for work purposes.

1. The situation that occurred in this case is quite different. The manner in which the Tribunal member dealt with the applicant was consistent. The Tribunal member explained what was going to happen, explained that they would be asking questions, explained the interpreter, and made sure that the applicant understood the interpreter and gave the applicant any opportunity to make any statement or ask anything that he wished to ask, or to say anything that he wished to say.
2. Whilst it may be that the Tribunal expressed some incredulity as to some of the answers, that was not unfair because what it did was explain to the applicant that those answers were simply not going to be acceptable and that he needed to do something more to satisfy the Tribunal to the standard that he needed to do so.
3. Whilst some people may say that this was indelicately phrased, the purpose alerted the applicant who, it must be borne in mind, bore the onus of persuading the Tribunal that he was failing to do so on those answers. The applicant was, it would seem to me from listening to the matter, no shrinking violet. He did, on a number of occasions, then rise to the occasion and give more details. This is especially so in that exchange where he was able to talk about an incident that happened in the year 2000. If it were not for the questions of the Tribunal, all that would have come through was that there was an incident where men came to the village in 2000 and that would be it.
4. Because of the Tribunal's questioning, it turns out that this occurred on the day of the death of the father, that people who were armed and in a vehicle smashed through the gates, that they came out looking for the applicant and his family, that, because of the death of the father, the applicant was able to put two and two together and realise that these were people who meant harm and that he and his family were able to escape the clutches of these persons. That puts a lot more detail and gives a version that is far more able to be believed than the very vague and unparticularised version that the applicant first gave.
5. The times where the applicant claims that the Tribunal was being sarcastic, in my view, do not add up to a level of sarcasm that would get to a point where a person would feel as though there was no use continuing further because the member was now simply making fun of them.
6. The member was, even if there was any sarcasm, doing what he could to explain to the applicant that his claim simply did not have any, to use the vernacular, meat on the bones and that the member expected there to be some meat on the bones. In the main, the applicant seemed to understand this and then attempted to put the meat on the bones.
7. The final exchange is also very instructive because, if it were that the applicant (or any other person) felt as though there was no hope that this was all unfair and it was all fait accompli, why would the applicant feel that he had the ability to talk about the fact that "God put us on this earth to be free and not to live in fear, and that that was what he wanted, and that that was what Australia gave him"? It is difficult in those situations to say that the applicant was denied a fair opportunity to give evidence and to advance his case
8. When one looks at all of the criticisms as a whole, they do not add up to showing that this was an unfair proceeding. In my view, ground 1 does not expose any jurisdictional error, and it therefore fails.

Ground 2: the Tribunal's decision was affected by a reasonable apprehension of bias.

1. The particulars in ground 1 are repeated.
2. The Tribunal's questioning of the applicant went beyond robust questioning, acceptable in the context of its inquisitorial jurisdiction and veered into unfair cross-examination.
3. by reason of the hearing and questioning of the applicant, the reasonable lay observer would perceive that the Tribunal may have had a fixed or unalterable view of the applicant's case

1. As I said to the applicant during the course of the argument, one has to be very careful as to how it is that one looks at the reasonable, fair-minded viewer. In Helow v Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416 it was said:

The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. Her approach must not be confused with that of the person who has brought the complaint. The assumptions that the complainant makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that the judge must be and must be seen to be unbiased. She knows that judges, like everybody else, have their weaknesses.

Then there is the attribute that the observer is "informed." It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

1. In this case, it seems to me then that the fair-minded lay observer would straightaway understand that this was not an unfair hearing. The lay observer would see that this was robust questioning in the course of the inquisitorial jurisdiction of the Tribunal. The lay observer would appreciate that it was incumbent upon the Tribunal to understand and to show to the applicant where they were failing and give the opportunity to rectify their faults.
2. As was said before, the (what was said to be) unfair cross-examination ended up being something that elicited a far better example than the way it would have been left if the questioning had not occurred.
3. The Tribunal, in its reasons, ended up saying that there was one incident in 30 years of living at Mount Hagen. If it had not been for that sort of conduct by the Tribunal, it would have been left, quite frankly, to conclude that there was no evidence of any incidents occurring in the 30 years that the applicant had lived in Mount Hagen. That seems very clear from listening to the whole of the hearing. For the Tribunal to say something of that nature shows that they did listen and did come to a conclusion that was more favourable to the applicant than it would have been if they had not conducted the hearing that way.
4. The applicant also referred me to the Jatin v Minister for Immigration and Border Protection [2019] FCA 150. Her Honour Mortimer J, as she then was, said at paragraph 14:

In oral submissions, counsel to the appellant correctly emphasised that a review hearing is an applicant's opportunity to put forward material and evidence, not simply the Tribunal's opportunity to inquire. Counsel emphasised that the recognition of the Tribunal's role as inquisitorial does not give it licence to trespass on accepted principles of apprehended bias. I accept those submissions, but I consider they are addressed in what I have said out above. The question is always what the court determines the evidence establishes about the approach taken by the decision-maker in light of the applicable principles.

1. Using the double might test (being the test that the fair minded lay observer might apprehend that the decision-maker might not be able to give an impartial decision), in this case, the result would be that the impartial observer would have seen that the purpose of the conduct of the Tribunal hearing was to get as much evidence as it could and give the applicant an opportunity to explain, pursuant to s 423 of the Act, what reason there was for the new claims that were being made and to allow the applicant to put whatever else the applicant wished to put before the Tribunal, which the Tribunal gave that opportunity to the applicant.
2. In my view, the ground of apprehended bias is not made out, and therefore there is no jurisdictional error.
3. As to the final ground, which is drafted this way:

The Tribunal erred in failing to correctly apply or construe s 426 of the Act by failing to give genuine consideration to the applicant's request to call his brother as a witness to give oral evidence at the hearing, or by otherwise unreasonably failing to take corroborative evidence sought to be led by the applicant.

1. Section 426(3) of the Act, as it then was, read as follows:

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

1. In this case, the applicant said that he wanted to call evidence from his brother, and he gave a telephone number. He had also given to the Tribunal a statutory declaration from the brother and a letter from the brother. This evidence was said to corroborate the applicant's claim that there is still tribal fighting going on in his home area.
2. Section 426 simply says that the Tribunal must have regard to the applicant's wishes. It is obvious that the Tribunal had regard to those wishes because it obtained that evidence from the brother in the form of a statutory declaration and letter. This is all the section requires; that the Tribunal must have regard to the wishes, but is not required to fulfil those wishes and obtain evidence.
3. In this case, it is obvious that the Tribunal did have regard to the wishes and did obtain the evidence from the person named in the applicant's notice. The fact that evidence can be oral or otherwise in s 426 demonstrates that the Tribunal has not misconstrued s 426 but has actually construed it to the benefit of the applicant, so that part of the ground obviously fails. There has been no misconstruction at all by the Tribunal.
4. The second part that it was unreasonable of the Tribunal not to call the brother of the applicant is not a matter that can be sustained. For it to be unreasonable, it must be that there was simply no other option by the Tribunal but to call the brother of the applicant to give oral evidence, and in failing to do so would make that action unreasonable.
5. In this case, it is very difficult, if not impossible, to show that the course of action taken by the Tribunal was unreasonable. This is because the Tribunal obtained the statutory declaration and the letter and took those into account. There was discussion at the hearing about those items. There is no evidence that what the brother has said, was going to get better by the calling of oral evidence. There is nothing that has been shown to me that there was anything that the brother was going to say that was going to be better than what he had written on these two occasions.
6. But to, as it were, put the proverbial cherry on the top, one goes to the words of the applicant himself when asked by the Tribunal, "Well, there's no other witnesses today. You're the only witness," the applicant says, "Yeah".
7. On that evidence, it is not possible to say that it was unreasonable of the Tribunal not to call the brother to give oral evidence. Ground 3 displays no jurisdictional error.
8. Therefore, there has been no jurisdictional error shown in any of the three grounds. I dismiss the application, with costs fixed in the scale amount of $9097.93.

I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta.