CNV19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1182

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This is an application made on 26 June 2019 pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 28 May 2019.
2. The applicant, a citizen of Sri Lanka, arrived in Australia in July 2014 on a business visitor (subclass FA-600) visa and on 14 October 2014, made an application for a protection (subclass 866) visa (the visa application) to the (then) Department of Immigration and Border Protection (now Department of Home Affairs) (the Department). His claim for protection was advanced partly by reference to his fear that he would be persecuted as a Tamil Muslim.
3. The visa application was refused by a delegate of the (then) Minister for Immigration and Border Protection (now Minister for Immigration and Citizenship) (the Minister) on 17 February 2016 (the primary decision), on the basis that the applicant did not meet the relevant criteria for the grant of the visa.
4. The applicant sought a review of that decision in the Tribunal (now Administrative Review Tribunal).
5. The Tribunal conducted a hearing on 6 March 2019, and on 28 May 2019 made its decision affirming the primary decision (the Tribunal's decision).
6. In April 2019, between the hearing and the Tribunal's decision, Islamic extremists in Sri Lanka carried out attacks on churches and hotels, after which there was a backlash of anti-Islamic violence. The Tribunal referred to the bombings, the subsequent anti-Islamic backlash and the government response to those events in its decision.
7. The applicant's grounds require the Court to determine whether the Tribunal erred by failing to hold a further hearing to give the applicant an opportunity to address that question.
8. The matter was heard in this Court on 2 June 2025. For reasons that follow, the Tribunal erred and the application is to be allowed.

1. At the hearing on 2 June 2025, a court book comprised of relevant documents from the Department's file concerning the visa application and from the Tribunal was received into evidence without objection.

1. The visa application fell to be determined by reference to s 36 of the Act, which provides, inter alia:

36 Protection visas - criteria provided for by this Act

(1A) An applicant for a protection visa must satisfy:

(a) both of the criteria in subsections (1B) and (1C); and

(b) at least one of the criteria in subsection (2).

(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia's security; or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

...

Protection obligations

(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

(4) However, subsection (3) does not apply in relation to a country in respect of which:

(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

(a) the country will return the non‑citizen to another country; and

(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A) Also, subsection (3) does not apply in relation to a country if:

(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.

1. The applicant alleged that the Tribunal, in carrying out its review of the primary decision had failed to comply with s 425 of the Act, and failed to accord the applicant procedural fairness.
2. The determination of those grounds required the Court to consider the following provisions of the Act which governed the conduct of the Tribunal's review:

422B Exhaustive statement of natural justice hearing rule

(1**)** This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

...

424A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

...

425 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. The applicant sought to rely on two grounds which were set out in his Proposed Amended Application filed 19 May 2025. The first respondent did not oppose the applicant being given leave to amend the application and leave was granted accordingly.
2. The applicant's grounds were as follows:

Ground 1

The tribunal filed to comply withs 425 of the Migration Act 1958

Particulars

The April 2019 bombings of churches and hotels in Sri Lanka was such a significant change in the country conditions that a new "issue in the review" had emerged so as to attract an obligation for a fresh

hearing invitation under s 425 of the Act. The grounds are addressed below, following the recitation of the background to the matter.

Proposed Ground 2

The Tribunal failed to accord the Applicant procedural fairness.

Particulars

1. The Applicant claimed from the initial claim that he faced risk as a Muslim and/or Tamil/Muslim if he was to be returned to Sri Lanka;
2. The tribunal conducted its hearing on 6 March 2019. The Applicant presented his evidence and answered questions, including as to the Tamil/Muslim claim.
3. On 28 May 2019, the tribunal rejected the Applicant's claim and published reasons;
4. Included in the tribunal's reasons was reference to April 2019 evidence relating to anti Muslim bombing of churches and hotels.
5. The tribunal used the evidence in the above paragraph as part of the reasons for the rejection of the Applicant's claim.
6. The use of the evidence of events after the hearing, without giving the Applicant an opportunity to be heard on it, resulted in a lack of procedural fairness.

1. The applicant is a Tamil speaking Muslim who was born in 1969 in Kandy District in Sri Lanka.
2. He first arrived in Australia on 18 July 2014 holding a business visitor (subclass FA-600) visa which was valid from 9 July 2014 until 18 October 2014. The applicant had applied for the visa on 30 June 2014.
3. On 14 October 2014, the applicant lodged an application seeking a protection visa (the visa application).

1. The applicant's claims for protection were set out in a written statement annexed to his visa application.
2. The applicant claimed to fear harm from different sources, but it is only the harm posed to the applicant as a Muslim that is relevant to the grounds presently before the Court. Accordingly, only the history relevant to those claims is set out in detail below.
3. The applicant claimed that, because of their Tamil language and appearance, he and his family were suspected by the Sinhalese majority in Sri Lanka, to be supporters of the Liberation Tigers of Tamil Eelam (LTTE). His father, a businessman, worked to counteract that suspicion, by cultivating good relations with Sinhalese politicians and businessmen. Those connections enabled the applicant's family to avoid harm during communal violence in which other Tamils or Tamil speaking Muslims were targeted.
4. The applicant claimed to be at risk of harm from a Sinhalese politician and friend who will be referred to herein as "A". He had provided the applicant and his family with protection from both the LTTE and Sri Lankan army. The applicant claimed that, because he felt beholden to A for that protection, he had allowed A to use a storeroom under his business to store items the applicant came to believe were drugs. The applicant claimed he was arrested and tortured by the Criminal Investigation Department in 2014, and had informed on A, which left him at risk of reprisals on his return to Sri Lanka if that became known to A.
5. The applicant also claimed he was at risk of harm from radical Buddhists due to his Muslim faith, as follows:

The Buddhist Monks who support the government and were campaigning against the Tamils' and Muslims' fundamental rights in Sri Lanka ordered the government to wipe out those who supported the minorities. They ordered the security officers to silence the journalists. The radical Sinhalese group known as Bodu Bala Sena (Buddhist Force) created the communal riots in June 2014, by attacking the Muslim populated areas and all the Muslims had to flee from home before they were killed by the Sinhalese hooligans and radicals. My brothers' family including me took refuge at our Sinhalese family homes and all my family members requested me to get assistance from [A]. The government in the mean time came to know that [A] and other provincial council members were involved in illegal transactions and had ordered the Intelligence officers to arrest those who were dealing with illegal substance. I was astonished to find Intelligence officers visiting home to arrest me. ... They took me to the TID office where I was kept incommunicado till the investigations were over. During the interrogation I was assaulted and was mostly questioned as to [A's] involvement in drug smuggling etc. Unable to stand the torture, I told the officers about [A's] men loading and unloading boxes of goods from my old business storeroom. The officers stopped attacking me after I mentioned about [A].

...

I took the opportunity to escape from Sri Lanka and especially [A] before he came to know that I told the TID officers as to his and his men hiding baggage of contraband in my business storeroom. I did not wish to get punished for the mistake [A] did. I had no one to turn to in Sri Lanka for protection as I am a Tamil speaking Muslim and a minority. I left the country permanently and determined to stay away from Sri Lanka in the future. I am lucky to get out of that country where no fundamental rights are given to minorities. We as minorities are leading our lives in the mercy of the powerful Sinhalese politicians who are racially motivated and Sinhalese fanatics. I do not want to serve prison sentence for the mistakes others did. I am an ordinary Sri Lankan citizen who is unable to even lead my life peacefully with protection from the government.

1. The statement also referred to articles reporting the rise of the radical Buddhist organisation Bodu Bala Sena (BBS), and an article suggesting that the spread of al-Qaeda into South Asia would cause increasing marginalisation of Sri Lankan Muslims, particularly by BBS. The statement also referred to reports of Buddhist mob violence in June 2014.
2. In the primary decision made on 17 February 2016, the delegate addressed the question whether the harm the applicant feared was for a Convention reason. The delegate concluded that the essential and significant reasons for the harm the applicant feared were his race and his imputed political opinion.
3. The delegate then went on to consider whether the applicant's fear for those Convention reasons was well-founded, dealing with the applicant's different claims in turn. The delegate characterised the applicant's fear of attack by the BBS as connected with his being a Tamil Muslim, and concluded, based on the country information before it, that the current government of Sri Lanka had reduced the incidents of violence by the BBS.
4. The delegate went on to conclude:

Based on the applicant's personal and family history, and the above country information, I am satisfied that the applicant would not be denied access to state protection, as a Tamil Muslim, if he required.

...

I consider that the applicant is not likely to be a person of concern to the Sri Lankan authorities, who would be at risk of difficulties and possible detention, if he were to return to Sri Lanka, given his personal and previous travel history overseas, and in the absence of any adverse profile with the Sri Lankan authorities.

1. When addressing the complementary protection criteria in s 36(2)(aa) of the Act, the delegate relied on the same DFAT country information concerning the sociopolitical landscape in Sri Lanka. That part of the primary decision included the following findings:

As outlined in Part B of this record, I have assessed the applicant' s claims and found that there is not a real chance that he will be persecuted for a Refugees Convention reason in Sri Lanka. I have relied on the same information listed in Part B of this decision record and I find that the applicant does not have a profile that would lead to him having a real chance of being targeted by the Sri Lankan government authorities or by the men who work for [A] upon return to Sri Lanka. Therefore, in the present case, I am not satisfied the applicant has a real chance of being subject to significant harm should he be returned to Sri Lanka.

1. The applicant lodged his application for review on 11 March 2016.
2. The application was initially scheduled for a hearing on 4 December 2018, but the applicant was ill, and the hearing was adjourned. The hearing resumed on 6 March 2019.
3. The Tribunal made its decision on 28 May 2019. The Tribunal concluded that the decision under review (that is, the primary decision) should be affirmed.
4. In the Tribunal decision, the Tribunal recited the history of the matter, setting out the applicant's claims and the evidence that he gave at the hearing before setting out the criteria for a protection visa contained in s 36 of the Act and sch 2 of the Migration Regulations 1994 (Cth) (the Regulations), such statutory framework set out in a document titled 'Attachment A: Relevant Law' (Attachment A) which was annexed to the Tribunal's decision.
5. The Tribunal accepted (at [59]) that the applicant was a national of Sri Lanka and that Sri Lanka was the 'receiving country' for the purposes of the Act.
6. The Tribunal recounted the oral evidence of the applicant given at the Tribunal hearing and made findings in respect of the claims arising from the applicant's association with the politician A.
7. The Tribunal (at [72]) was not satisfied that the applicant was arrested in June 2014, interrogated, beaten, and tortured by authorities, and subsequently informed on A.
8. The Tribunal proceeded (at [79] and following) to consider whether the applicant had a well-founded fear of persecution for reasons of his imputed political opinion in favour of the LTTE, his Tamil ethnicity or his religion. It dealt with the applicant's suspected support for the LTTE at [80], and his Tamil ethnicity at [81] to [85], ultimately concluding that it was not satisfied that there is a real chance that the applicant would suffer serious harm from the authorities for reasons of being a Tamil.
9. The Tribunal then went on (at [86] and following) to address the question whether the applicant was at harm from the authorities by reason of being a Muslim, citing (at [87]) government efforts at the national level to overcome hatred towards Muslims.
10. The Tribunal then proceeded:
    1. Since the attacks by Islamic extremists on hotels and churches across Sri Lanka in 2019, the government has reacted promptly to anti-Muslim reactions. One article states that UN Advisors acknowledged and welcomed the swift response of the Government, including by deploying the security forces to protect affected communities and addressing the spread of false information and incitement to violence.
    2. The Tribunal is satisfied based on these sources that there may be some isolated incidents of discrimination by local government authorities on the basis of religion. However the Tribunal is not satisfied that such discrimination would amount to serious harm as it is intended by the legislators. The sources do not indicate that there is systematic and discriminatory conduct amounting to persecution for reasons of religion. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reason of his religion, because of actions from the authorities, if he were to return to Sri Lanka in the reasonably foreseeable future.
11. The Tribunal then went on to address a further question under the heading: "Does the applicant have a well-founded fear of persecution from extremist groups for reasons of religion?".
12. The Tribunal (at [90]) was satisfied that the applicant's family had escaped injury "many times" during extremist riots because the applicant's father had contacts with Sinhalese businessmen and politicians. The Tribunal referred to such riots which had occurred in April 2014, and communal riots in 2017.
13. However, the Tribunal noted (at [91]) the applicant's ability in those circumstances to worship without difficulty, study and run a successful business. The Tribunal noted the absence of evidence that any family members had been harmed, and the evidence that the applicant's brothers ran businesses.
14. At [92] to [96], the Tribunal set out information from a May 2018 report by the Department of Foreign Affairs and Trade (DFAT) concerning the position of Muslims in Sri Lanka, noting the evidence of increasing ethnic tensions and hate speech, attempts to desecrate or destroy Muslim buildings in 2016, and incidents of violence against Muslims and Muslim businesses in 2017.
15. The Tribunal noted (at [93]) that the government declared a nation-wide State of Emergency for 12 days on 6 March 2018 in response to sectarian violence in Kandy, and that the violence had continued despite high numbers of military and police.
16. The Tribunal noted (at [94]) that in its May 2018 report that DFAT had assessed that, overall, Sri Lankan Muslims faced a low risk of official and societal discrimination and a low risk of violence.
17. The Tribunal went on to say:
    1. Google searches did not indicate that there had been further attacks since the attacks of March 2018 until the reactions to the April 2019 bombings of the churches and hotels.
18. The Tribunal then went on to consider the backlash against the Muslim community following those bombings as follows (footnotes excluded):
    1. The Tribunal notes that concern has been expressed for backlashes on the Muslim community following the attacks by Islamic extremists on churches and hotels in April 2019. Recent articles have discussed how the Muslim community has expressed solidarity with the Christian community and raised money for donations. Articles state that the community has returned to worship but have had to have tight security at mosques due to fear of retaliation. One imam said that things had returned to normal, but both Muslims and non-Muslims were still scared.
    2. In May 2019 a number of revenge attacks took part in the north western parts of the country. The government declared a national curfew after a sword wielding mob killed a man. There were reports of anti-Muslim riots in the north-west including burning of the Quran, petrol bombing shops and attacking mosques. Authorities have arrested dozens of hardline Buddhist extremists, including some who had been involved in the March 2018 attacks in Kandy. Many reports referred to government statements that they had arrested more than 70 people and that they would react with maximum force to anti-Muslim conduct.
    3. The Tribunal accepts on the basis of these sources that although there has been general peaceful coexistence in Sri Lanka, there have been serious incidents of violence from Buddhist extremists towards Muslims in Kandy and other areas including the March 2018 riots in Kandy, the applicant's home town. The Tribunal also accepts that there has been anti-Islam backlash following the attacks on churches and hotels in April 2019 by Islamic extremists. This has included serious rioting in the north-west. The Tribunal must find that there is real chance of serious harm in the reasonably foreseeable future. Prior to the April 2019 bombings, DFAT has assessed the violence as sporadic, and concludes that there is a low risk of violence and discrimination. There have not been other instances of serious attacks since March 2018 excluding the recent reaction to the bombings on the churches and hotels. It is evident from statements of the Sri Lankan authorities, media reports, and the comments by the UN advisers that the government is responding rapidly to instances of anti- Muslim activity. Considering this, and the fact that the applicant's family have not suffered serious harm, and the level of harm generally, the Tribunal is not satisfied that there is a real chance of serious harm from anti-Muslim extremists were the applicant to return to Sri Lanka in the reasonably foreseeable future.
19. The Tribunal went on to determine the application for review adversely to the applicant.

1. The parties were agreed that the essential question raised by the amended application was whether the attacks by Islamic extremists on churches and hotels in April 2019, and the anti-Islamic backlash in their aftermath (the backlash question), was an "issue arising in relation to the decision under review" in the sense that term is used in s 425 of the Act.
2. If the post bombings backlash question was such an issue, the applicant contended, the opportunity to give evidence and address the Tribunal that had been extended to the applicant at the hearing on 6 March 2019 did not satisfy the requirements of s 425, as the hearing had not been one that extended to all of the issues arising in relation to the decision under review.
3. Before considering whether there was such an issue in the present case, it is necessary to refer to the authorities that have considered the question to discern whether they establish principles that guide that process.

Approach to the application of s 425 of the Act

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

1. Although s 425(2) and (3) concern circumstances where an applicant is not entitled to appear before the Tribunal, none are presently relevant.
2. Section 425 confers on review applicants a significant right. It contains the expression of the will of the Parliament as to the requirements of procedural fairness for a person refused a protection visa: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 (SZHKA) at [5], per Gray J (with whom Gyles J generally agreed: [26]). In SZHKA, Gray J went on to say (at [6]):

...the obvious intent of s 425(1) is that the applicant should have an opportunity to provide information particularly within his or her personal knowledge to the person who will make the decision. This is an important right. No less important is the opportunity to present arguments. It is this opportunity that gives an applicant the chance to persuade the decision-maker to accept the accuracy of the information provided by the applicant, to reach the conclusion that that information should be regarded as more reliable, or as having more weight, than conflicting information that the Tribunal may have, or that apparent conflict between information supplied by the applicant and that gathered by the Tribunal is not real or substantial. It is clear from the express inclusion of the right to present arguments that Parliament regarded the right to attend a hearing for this purpose, as well as for the purpose of providing information, as of great importance to an applicant.

1. The "issues" in a matter such as the present, for the purposes of s 425 of the Act, may not be defined as broadly as simply "whether the applicant was entitled to the protection visa for which he applied". Rather the language "arising in relation to the decision under review" in s 425 imports something more particular: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [34].
2. The identification of the issues arising on a review commences with the decision of the delegate. Unless the Tribunal identifies other additional issues, the issues arising on the review will be those the delegate identified as determinative against the applicant: SZBEL at [35]. In SZBEL, which concerned an apostate Muslim Iranian seaman who jumped ship in Australia, the delegate had accepted the applicant's account of how his ship's captain had come to know of his interest in Christianity, and reacted to that knowledge. However, the Tribunal had rejected those accounts without raising those issues with the applicant, with the result that the applicant had not been afforded an opportunity to address the issues arising on the review. As a consequence, the Tribunal had not accorded the applicant procedural fairness. The "issue(s) arising" in that matter were factual allegations made by the applicant the rejection of which was central to the Tribunal's decision.
3. Gray J went on to say (in SZHKA), concerning the discussion in SZBEL about the identification of the issues that arise on the review:

First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal's conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal's specific reservations about the applicant's case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person's thought processes.

1. The matters with which the Court was dealing in in SZHKA had been remitted to the Tribunal by the (then) Federal Magistrates Court following successful applications for judicial review. The Court was required to consider whether in such instances s 425 compelled the Tribunal to issue further invitations under s 425 and consequently, hold hearings. Gray J's observation at [18] is apposite:

The Tribunal must determine a review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time. For all sorts of reasons, the facts as they appear to the Tribunal member making the second decision may differ significantly from the facts as they appeared to the Tribunal member who made the earlier decision. Without conducting a further hearing, at which the applicant has the right to give evidence, the Tribunal cannot be confident in making findings of fact on which to base a decision on a review.

1. Gray and Gyles JJ were agreed that the remittal of a matter meant that the Tribunal was obliged to issue a further invitation pursuant to s 425.
2. Besanko J agreed with Gray and Gyles JJ as to the disposition of the appeals, but differed with Gray and Gyles JJ on the question about the content of the obligation in the event of remittal. His Honour's reasons for concluding that further invitations pursuant to s 425 were required in each matter arose from the circumstances of the particular cases. His Honour said (at [95]):

the invitation referred to in s 425(1) is one to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review and it is, no doubt, true that the issues may have changed between the first invitation to appear and the decision on the remitter because the facts have changed, making the right to give evidence important, or because the issues may have been recast or reformulated as a result of the successful application for judicial review, making the right to present arguments important.

1. Besanko J envisaged that the issues in respect of which the obligation in s 425 arises may be issues of fact. At [103], he said:

An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal and if an issue in relation to the decision under review emerges after the hearing conducted by the Tribunal then, in my opinion, a second invitation to appear must be given.

In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was, or may be, an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue.

1. At [108] Besanko J considered the question whether SZGOD (one of the appellants in the matter) was involved in the transport industry, upon which his claims of political and trade union activity in India were based, and whether that question was one in respect of which the appellant had not been given an opportunity to give evidence and address the Tribunal. That question had been determined adversely to the applicant on the remitter without it featuring in the first Tribunal hearing. Besanko J expressed the view that it was appropriate the Minister had conceded that there had been a failure to comply with s 425(1) in respect of that issue.
2. At [109], Besanko J discusses a number of other matters, in respect of which he concluded that there was no failure to comply with s 425. Those matters were identified at [64], namely:
   1. Whether the appellant was in fact involved in political or trade union activities in India;
   2. Whether any differences between the appellant's written claims and his oral evidence might lead to the rejection of his oral evidence or claims;
   3. Because Mr Rajendran was a communist he would not want to kill the appellant;
   4. The appellant's claims about his activities in June and July 2004 were false in light of the information contained in his application for a visa to enter and remain in Australia, made in India;
   5. The information in that application (made in India) was more persuasive than the claims made in his protection visa application; and
   6. The appellant was not attacked on religious grounds in December 2003 because the claim was raised late.
3. Significantly, at [109], where Besanko J considered whether there was any failure to comply with s 425(1), he did not quarrel with the characterisation of those matters as "issues" in the s 425 sense.
4. In his later discussion in respect of the appellant SZHKA, a question arose as to whether the second Tribunal member's reference to the appellant describing himself as a Falun Gong "member", rather than as a Falun Gong "practitioner" constituted an issue arising in relation to the decision under review within the meaning of s 425 of the Act.
5. Besanko opined that whether a matter constitutes an "issue arising in relation to the decision under review" for s 425 purposes depends upon two requirements:
   1. The first is that the matter play a part in the Tribunal member's decision on the application for review. Matters not playing any part cannot, in my view, be said to arise in relation to the decision.
   2. The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant's claim. I do not think that such a narrow interpretation would be correct. In SZBEL 228 CLR 152, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate's decision by virtue of the delegate's reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate's reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.

1. In ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (ABV16), Bromberg J considered a claim for protection made on behalf of a so-called "black child", that is, a child of unmarried parents who were Chinese nationals. The appellant had alleged that, as such, he would be denied the household registration upon which access to social services such as education and health care was conditioned. The Tribunal published a decision in which it referred to media sources published subsequent to its hearing which indicated that Chinese government policy in that regard had been relaxed. The Tribunal relied on that information in answer to the appellant's claims concerning his "black child" status.
2. At [31], his Honour said:

Having conducted a hearing on the basis that the Chinese government had a policy by which there were barriers to the registration of 'black children', and having on that basis (and fairly at the time of the hearing) invited no evidence or submissions on the status of that policy or its application to the appellant, the Tribunal came into knowledge that the policy was no longer in force. It was on that basis that the Tribunal found against the appellant. In the absence of countervailing circumstances, the Tribunal was obliged by s 425(1) to give notice to the appellant that the status of the policy was now in issue, and to invite the appellant to present evidence and make submissions at a hearing. Having not done so rendered hollow, and not meaningful, whatever opportunity to respond that had been provided by the Tribunal through the holding of the first hearing. The denial resulted in a practical injustice to the appellant.

1. The appeal to the Federal Court (from the then Federal Circuit Court of Australia) was allowed, and the decision of the Tribunal quashed.
2. In Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1547 (Le), Anderson J considered an appeal from a decision of this Court which concerned a Tribunal decision about whether there were "compelling reasons" to waive a requirement that the appellant make her application for a visa within 28 days of last holding a substantive visa. The appellant's claim to have compelling reasons was advanced by reference to her close connection with her husband, and her need for support from him related to her polio related injury and surgery.
3. Following a Tribunal hearing, the Tribunal member obtained the husband's international movement records. The Tribunal referred to those records in concluding that the parties had not provided sufficient reliable evidence that they were in a long-standing relationship. The Tribunal also gave less weight to the appellant's claims that she was reliant upon her husband for emotional support on the basis that it was satisfied that the appellant's husband was not with the appellant in Australia at the time of her surgery.
4. Anderson J concluded (at [45]) that:

It is evident from the Tribunal's Reasons that the Tribunal used the international movement records to reach specific conclusions about the length of her relationship with her husband and the emotional support provided to her by her husband.

It is evident from the above, that the appellant's husband's travel records were critical to the Tribunal's ultimate decision. It is also evident that the Tribunal took a forensic approach to analysing those international movement records, by pinpointing the appellant's husband's individual arrival and departure dates and, on this basis, concluding that he was not present in Australia at the time of the appellant' surgery. This was not a matter which the appellant was on notice of, notwithstanding that she was on notice that there was an issue relating to the total amount of time she had spent with her husband.

1. His Honour found that the Tribunal had failed to meet its obligation under s 360 of the Act (the analogue of s 425) and erred in doing so.
2. Counsel for the Minister referred to the decision in ANH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 10 (ANH), where the Tribunal relied upon a 2016 report from the Department of Foreign Affairs and Trade, the release of which post-dated its hearing. Farrel J (at [61]) concluded that the report did not raise a new "issue" for the purposes of the Tribunal's obligations in s 425. The "issue" before the Tribunal was the risk of sectarian or generalised violence, and the report was properly to be described as going to a factual matter underlying an "issue", as it confirmed a trend that had been perceived by the Tribunal.
3. Counsel for the Minister also referred to the decision in SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 (SZJUB), which involved a Chinese applicant for a protection visa who claimed she had been involved in Bible smuggling. The appellant in that matter claimed that the Tribunal had breached s 425 by failing to identify issues arising on the review, namely, the fact that she had a business and a dependent child were matters that made it unlikely that she would take the risks involved in Bible smuggling.
4. Bennett J found that those matters were not issues in themselves, but factual matters that related to the issue of risk. The Tribunal had made clear in its review that it had difficulties accepting the appellant's account that she would engage in behaviour that would expose her to such risk.
5. Counsel for the Minister submitted that the obligation in s 425 should be construed having regard to the extent and limits of the obligation in s 424A. The additional evidence the Tribunal came to consider concerning the April 2019 bombings and their aftermath was "country information" (that is, information described in s 424A(3)(a), being information that is not specifically about the applicant as is just about a class of persons), and therefore the Tribunal was not obliged, by s 424A of the Act, to give the applicant particulars of that information. Counsel reasoned that if the Tribunal was not bound by s 424A to take steps in respect of the material, it should not be bound to extend an invitation to a hearing pursuant to s 425 in respect of that material.
6. Whilst the provisions of the legislation should be read harmoniously, it is not clear why the provisions should operate as the Minister contended. Nor, perhaps more importantly, is it clear how such an approach might operate in practice.
7. As to the former question, whilst it may be accepted that s 424A did not impose upon the Tribunal an obligation to disclose the country information (or particulars of it) concerning the April 2019 bombings and their aftermath to the applicant, it is not clear why the applicant's opportunity afforded by s 425 to submit evidence and make arguments to the Tribunal should be limited by that fact. There is nothing in the language of s 425 that suggests that the "issues" comprehended by that section are limited, other than by the scope of the claims, evidence and arguments in a particular matter. The issues capable of arising (that is crystallising for consideration) in the course of the Tribunal's conduct of a review will be as diverse as the interpretation of the Convention, the applicant's claims, the applicant's credibility and the circumstances in the applicant's country of nationality or a part of that country. Further, sections 424A and 425 operate in different ways; the former operates to oblige the Tribunal to disclose certain matters that appear adverse to an applicant, whereas the latter is directed to affording an applicant an opportunity to attend a hearing to provide both evidence and argument in support of their application. The latter enables an applicant to advance evidence and material favourable to their application, as well as address any matter that might be considered adverse to their application.
8. The Minister's own submissions ran counter to his argument about the operation of s 425 and s 424A as the Minister contended that the "issue", for s 425 purposes, was whether the applicant had a well-founded fear of persecution from extremist groups for reasons of religion. That was an issue which the Tribunal addressed substantially by reference to "country information", in respect of which s 424A had not imposed any obligation on the Tribunal. To address that issue a different way, had the bombings and the anti-Islamic violence that followed them occurred prior to the Tribunal hearing in March 2019, it could not seriously have been suggested that at the time of the hearing they had not arisen in the review, such that the applicant was not entitled to address the Tribunal about them at the hearing, because their consideration involved having reference to "country information".
9. As to how such a limitation on s 425 might operate, sections 424A and 425 operate by reference to different categories: particular "information" in the former instance and "issues arising" in the latter. The former section has a much narrower scope. If the scope of the "issues" to which the obligation in s 425(1) applied is to be limited by reference to certain types of information in s 424A, it is not clear that there could be any sensible basis for identifying which "issues" (for s 425 purposes) correlate with which "information". If an issue is amenable to resolution to any extent by reference to country information, would that "issue", on the Minister's argument, thereby fall outside the scope of the operation of s 425. Such a reading would significantly limit the rights of an applicant, not by application of the plain language of s 425, but by the operation of an implication. The submission is rejected.
10. Counsel for the Minister also relied upon the decision of this Court in CLF19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1303 (CLF19). There, the applicant claimed that the Tribunal had not raised with him specifically the inconsistencies in his account upon which the Tribunal relied in finding against him. Judge Given there (at [39] - [42]) noted the distinction made in SZJUB between the issues and each of the factual matters that are relevant to the issue. Her Honour concluded that the applicant had been afforded an opportunity to address the Tribunal on the issues arising on the review. The Tribunal had advised the applicant it had concerns about his credibility and asked him questions about his employment history, incidents which were relevant to his claim and an additional claim the applicant made at the hearing.
11. The facts of CLF19 are not on all fours with the present matter, in which the matters that are the subject of the applicant's grounds are significant matters that post-dated the Tribunal's hearing.
12. In any event, the reasoning of Besanko J in SZHKA offers the clearest guidance in identifying whether the backlash question was one in respect of which the Tribunal was obliged to extend the applicant the opportunity for which s 425 provides, namely whether that question:

(1) Played a part in the Tribunal's decision; and

(2) Was a matter of a not insubstantial nature which the Tribunal considered to be in question.

1. The approach of Bromberg J in ABV 16, and Anderson J in Le was consistent with Besanko J's approach in SZHKA.

1. From the manner in which the Tribunal describes both the bombings and the events that followed, it is apparent that the April 2019 bombings were a significant event in Sri Lanka's recent history, and significant in the consideration of the applicant's application for the protection visa.
2. The Tribunal had noted (in [90]) that the applicant's family had escaped injury previously during communal riots in 2014 and 2017. The Tribunal also recorded (in [92]) incidents of mob violence by Buddhist groups in 2017, and the declaration in March 2018 of a state of emergency in response to communal unrest, and the continuation of violence in several towns around Kandy despite the deployment of military and police. The Tribunal then approached the question whether he had a well-founded fear of persecution from extremist groups for reasons of his religion by considering whether there was any evidence of violence subsequent to the March 2018 state of emergency, referring to a DFAT report published in May 2018, which expressed the view that Muslims were at a low risk of violence.
3. The Tribunal referred, at [98] and following, to events subsequent to the April 2019 bombings, including (at [99]) to revenge attacks in the north-western part of the country, including the declaration of a national curfew after a sword wielding mob killed a man, reports of anti-Muslim riots and the bombing of shops and attacks on mosques.
4. At [100], the Tribunal described the situation as follows:

...The Tribunal also accepts that there has been anti-Islam backlash following the attacks on churches and hotels in April 2019 by Islamic extremists. This has included serious rioting in the north-west. The Tribunal must find that there is real chance of serious harm in the reasonably foreseeable future. Prior to the April 2019 bombings, DFAT has assessed the violence as sporadic, and concludes that there is a low risk of violence and discrimination.

1. The Tribunal ultimately resolved the question whether there was a real chance of serious harm from anti-Muslim extremists at [100], concluding:

It is evident from statements of the Sri Lankan authorities, media reports, and the comments by the UN advisers that the government is responding rapidly to instances of anti-Muslim activity. Considering this, and the fact that the applicant's family have not suffered serious harm, and the level of harm generally, the Tribunal is not satisfied that there is a real chance of serious harm from anti-Muslim extremists were the applicant to return to Sri Lanka in the reasonably foreseeable future.

1. The Tribunal was required to engage in some careful analysis of the evidence in order to reach the conclusion that it did, and to assuage the concerns that arose from the reports about anti-Islamic activities. The Tribunal's determination of the question was not a cursory one. In ultimately reaching a conclusion adverse to the applicant, the Tribunal considered and evaluated both the evidence of the anti-Islamic violence that had occurred subsequent to the bombings, and the Sri Lankan government's response to that violence. To use the language of Besanko J, that was a matter of a not insubstantial nature that the Tribunal was required to evaluate in order to reach its conclusion that there was not a real chance of the applicant suffering serious harm in the reasonably foreseeable future.
2. Earlier in its reasons the Tribunal had noted evidence that some local police and officials tacitly supported Buddhist nationalist groups (at [92]), that violence had continued in 2018 despite the deployment of military and police (at [93]), and that there had been the declaration of a state of emergency (that is, the need to resort to extraordinary powers) in the recent past. A view contrary to the Tribunal's confidence about the Sri Lankan government's actions was at least arguable. The applicant may well have wished to avail himself of the opportunity to give evidence based on his own reports about events in Sri Lanka, to make submissions about the reliance to be placed on the assessments that pre-dated the bombings, or to relate the evidence to his own particular circumstances.
3. The question whether a matter is one in respect of which s 425 requires the Tribunal to afford an applicant an opportunity to be heard is a matter of degree. In the present matter, the events the Tribunal came to consider and their sequelae were of such import the Tribunal should have extended the applicant an opportunity to be heard. The Tribunal erred in not doing so.
4. I cannot be satisfied that the applicant's loss of an opportunity to address the Tribunal about the events following the bombings did not deprive him of the possibility of a successful outcome. Accordingly, I am satisfied that the Tribunal's error was jurisdictional: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [15], and the relief sought by the applicant should be granted. I will so order. I will also order that the first respondent pay the applicant's costs, and hear the applicant as to whether it seeks an order for those costs in a fixed amount.
5. As I am satisfied that Ground 1 of the Amended Application identifies jurisdictional error and that it is appropriate to grant the relief sought, it is not necessary to address Ground 2 of the application.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.