CRB20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1006

1. The applicant filed an application on 10 June 2020 for judicial review of the Tribunal Decision dated 14 May 2020 (Substantive Application).
2. The applicant was invited to a hearing in relation to the Substantive Application on 29 April 2025. The applicant did not attend the hearing.
3. The Court made orders dated 29 April 2025 dismissing the Substantive Application.
4. The applicant filed this application for reinstatement on 15 May 2025, and a supporting affidavit affirmed on 14 May 2025 (Supporting Affidavit).
5. On 19 May 2025, the Court made orders that by 29 May 2025 the applicant file affidavit evidence and a written outline of submissions.
6. No affidavit evidence or written submissions were provided by the applicant.
7. The first respondent filed submissions dated 5 June 2025.
8. The first respondent also filed two affidavits of Dorsa Salehi, the first affirmed on 24 April 2025 (Salehi's first affidavit) and the second affirmed on 5 June 2025 (Salehi's second affidavit).
9. The Supporting Affidavit of the applicant contained the following statements (reproduced without alteration):

1. I affirm I am the applicant.

2. My family was mistreated and I was hurt due to family planning.

3. The government took my land away, and my crops were damaged.

4. I was very dissatisfied with the Communist government.

5. I appealed to FCFCOA for judicial review after my protection visa application refused.

6. On 29 April 2025, I called the court as the instruction in email dated on 11 April 2025 but I could not be connected.

7. I hope the court will give me an opportunity to appear in court and continue with my application.

1. The applicant appeared at a hearing in relation to the reinstatement application on 18 June 2025 as a litigant in person. He confirmed that he had received a copy of the Court Book and Minister's written submissions (Second Tp 4.36- 39 and 5.6-14).
2. The Court accepted the statements set out in the applicant's Supporting Affidavit as submissions, and the affidavit was read at hearing. There was no objection by the first respondent (Second Tp 4.16-35).
3. The Court explained to the applicant the role of the Court in considering the reinstatement application and the relevant legal principles for reinstatement (as enunciated in FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS 18) at [50] and MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ)), mindful of the Court's role in assisting unrepresented litigants: Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]). The Court invited the applicant to address each of the principles of reinstatement referred to in FBS18 including his explanation for non-appearance at the hearing which led to the dismissal of the proceedings, any prejudice to the first respondent, and the merits of the grounds of review set out in the Substantive Application.

1. The applicant seeks reinstatement of the application for judicial review.
2. The Court has power to set aside an order made in the absence of a party pursuant to r 17.05(2)(a) of the GFL Rules. Such a power is discretionary.
3. The overriding principle in such cases is whether it is in the interests of justice to exercise this discretion: FBS18 at [50]; SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756 at [15] per Barnes FM.
4. In FBS18, the Full Court of the Federal Court cited with approval the decision in MZYEZ where at [7], Ryan J considered the factors which a court should consider:

(a) whether a reasonable excuse exists for the applicant not attending the hearing that led to the dismissal of the proceedings.

(b) the existence and nature of any prejudice which might flow to the Minister from the reinstatement, and

(c) whether the applicant has reasonable prospects of success on the substantive application.

1. In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL 15) at [4], Mortimer J noted that it is not fair to exercise the discretion favourably to an applicant where the Court is not satisfied that there is an arguable case, as it could create false hopes and an expectation not grounded in law or reality that the application would be successful.

Whether a reasonable excuse exists for non-attendance at the hearing

1. The first factor the Court has considered is whether a reasonable excuse exists for non-attendance at the hearing (FBS18 citing MZYEZ at [7]). The Court has given due consideration to the fact that the applicant is a litigant in person, so may not be as well-informed as a person who has the benefit of legal assistance.
2. The applicant stated in his Supporting Affidavit that 'on 29 April 2025 I called the court as the instruction in email dated on 11 April 2025, but I could not be connected.' At the hearing the applicant was asked why he could not connect. He responded that he did not receive the email inviting him to the hearing on 29 April 2025. He suggested that something may be wrong with his mobile phone (Second Tp 5.44-6.9). He said that he did receive a telephone call asking if he had arrived, but he had an 'old man's phone. I don't know how to use it anyway' (Second Tp 7.34-36).
3. The first respondent submitted that the applicant's claim that he could not connect should not be accepted. It was submitted that the applicant acknowledged that he received relevant emails notifying him of the hearing and the link and dial-in details, and he had not provided annexures to his Supporting Affidavit attaching corroborating evidence to show attempts to connect. The first respondent submitted that it should not be accepted that he had not been notified of the hearing on 29 April 2025 given the service of documents on him and that he said in his Supporting Affidavit that he had been notified. The first respondent submitted that the applicant was on notice of the hearing and the repercussions of not attending, and it was his responsibility to attend on the date of the scheduled hearing (Second Tp 6.39-7.22).
4. The applicant did not explain at hearing why he said that he had not received an email inviting him to a hearing of the Court, when in his Supporting Affidavit to this Court he said that 'I called the court as the instruction in email dated on 11 April 2025 but I could not be connected'. The applicant's explanation for non-attendance at the hearing is not persuasive, given this contradiction which has not been explained, as well as the circumstances prior to and on the date of the hearing, 29 April 2025. These circumstances are set out below.
5. On 26 March 2025, the Court sent an email to the parties advising that the matter had been listed for final hearing on 29 April 2025.
6. On 2 April 2025, the solicitors for the first respondent emailed the applicant advising that the matter had been listed for final hearing on 29 April 2025 and seeking consent for the first respondent to appear electronically (Salehi's second affidavit).
7. On 8 April 2025, the solicitors for the first respondent emailed the Court, copying the applicant, seeking leave to appear electronically.
8. On 11 April 2025, the Court granted leave for the solicitors for the first respondent to appear at the final hearing electronically and corresponded with the applicant noting that should he wish to appear electronically he should notify the Court. Later that day he notified the Court that he wished to appear electronically.
9. On 24 April 2025, the solicitors for the first respondent emailed the applicant to remind him of the final hearing on 29 April 2025 and included the hearing link for him to appear electronically.
10. On 29 April 2025, at 10.20am the applicant had not appeared at the hearing. The Court adjourned the matter until 10.30am to allow Ms Huang, the solicitor for the first respondent, to telephone the applicant (First Tp 2.25-39).
11. At 10.32 am on 29 April 2025 the hearing resumed. Ms Huang, the solicitor for the first respondent, notified the Court that she had called the applicant during the ten-minute adjournment. She said that he appeared to be travelling and was not aware of the listing of the matter. She said that she had forwarded him the listing notice and let him know that he could appear by telephone. She said that he said he would join in a few minutes and was aware of the resumption of court at 10.30am and he might seek a short adjournment (First Tp 2.41-3.7).
12. At 10.34 am on 29 April 2025 in Court there appeared to be a connection by a caller momentarily who then disconnected. Following this the Court asked the solicitor for the first respondent to call the applicant again (First Tp 3.42-4.5).
13. The solicitor for the first respondent called the applicant again at 10.35am but the telephone call went to voicemail (First Tp 4.7).
14. As at 10.40 am on 29 April 2025 the applicant had not appeared at the hearing and the first respondent applied for the matter to be dismissed pursuant to rule 13.06 of the GFL Rules (First Tp 4.12-4.29**)**.
15. The Court dismissed the matter for non-appearance pursuant to rule 13.06 of the GFL Rules (First Tp 5.13-5.36).
16. On 29 April 2025 at 10.52am the applicant emailed the court alleging that he had called but was unable to connect.
17. On 29 April 2025, the applicant emailed Ms Huang twice, alleging that he had connection issues (Salehi's second affidavit).
18. The applicant claimed in his Supporting Affidavit that the reason for non-attendance at the hearing for reinstatement was that he called the Court as instructed in his hearing invitation on 11 April 2025 but could not be connected. The Court is not satisfied that this was the reason for non-attendance at the hearing. This is because the applicant was called by the solicitor for the first respondent at 10.32 am on 29 April 2025. Ms Huang, the solicitor for the first respondent, reported to the Court that she had spoken to the applicant and that he appeared to be travelling and was not aware of the listing of the matter. She said that she had forwarded him the listing notice and let him know that he could appear by telephone. She said that he said he would join in a few minutes (but in any event by 10.30am) and he might seek a short adjournment (First Tp 2.41-3.7). It appears therefore that the applicant was unaware of the listing of the hearing, even though notified, and did not call as per the instruction in his invitation on 11 April 2025.
19. Furthermore, the circumstances on 29 April 2025 indicate that the applicant did not make real attempts to connect or to contact the Court. He told the solicitor for the first respondent that he would call the Court on his telephone by 10.30am which he did not do. At 10.34am on 29 April 2025 in Court there appeared to be a connection by a caller momentarily who then disconnected. While it is not clear if this was the applicant, if it was, he made no further attempts to call the Court or make contact. Furthermore, he did not respond when called by the solicitor for the first respondent again at 10.35am (First Tp 4.7), which would have been expected had he been having difficulties connecting. The applicant had been provided details of the links on numerous occasions, which could have been made either by pressing a link button or dialling in.
20. At the hearing, the applicant added other reasons for his failure to attend the hearing of his Substantive Application. He said that he did not receive the email inviting him to the hearing on 29 April 2025. He also said that he received a telephone call asking him if he had arrived, but he could not make it. He said that he had nothing else to say, but he had an 'old man's phone' which he did not know how to use (Second Tp 7.34).
21. The Court does not accept that the applicant did not receive the email inviting him to the hearing on 29 April 2025. In his Supporting Affidavit he said that 'on 29 April 2025, I called the court as the instruction in email dated on 11 April 2025 but I could not be connected'. This statement implies that he did receive the email inviting him to the hearing. Furthermore, the Court sent an email to the parties on 26 March 2025 and 11 April 2025 to the email address provided by the applicant, notifying him of the hearing and on 11 April 2025 the applicant consented to the matter being heard electronically, referring to the email of the Court on 11 April 2025. It is clear therefore that he had received notification of the hearing. The solicitors for the first respondent sent the applicant details of the hearing and the link for him to appear electronically (Salehi's second affidavit).
22. In regard to his statement that he 'could not make it', no further explanation was provided to explain his non-attendance.
23. As to his submission that he had an 'old man's phone' which he could not use, the Court observes that the applicant consented to the matter being heard electronically which suggests that he was able to use his telephone, as he was also provided with an opportunity to attend Court in person.
24. Considering these circumstances and his contradictory evidence about whether or not he received the email inviting him to the hearing, the Court is not satisfied that a reasonable excuse for non-attendance has been provided.
25. This weighs against a consideration of whether it is in the interests of the administration of justice to reinstate the matter.

1. The second factor the Court has considered is whether there is any prejudice which might flow to the first respondent from reinstatement (FBS18 citing MZYEZ at [7]).
2. The first respondent did not press any relevant prejudice in this case beyond the importance in the finality of litigation (Second Tp 8.7-14).
3. The Court finds that prejudice to the first respondent does not meaningfully weigh against reinstatement.

Reasonable prospects of success - arguable case

1. The third factor considered by this Court is whether the applicant has reasonable prospects of success in the Substantive Application (FBS18 citing MZYEZ at [7]).
2. In CAL15 at [4], Mortimer J (as Her Honour then was) explained that the applicant need only raise 'an arguable case on judicial review' and that this consideration was important because:

...if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

1. The Court has considered whether the applicant has raised an arguable case on judicial review, with reference to the grounds articulated in his Substantive Application filed on 10 June 2020. The applicant sought judicial review of the Tribunal Decision on the following five grounds (reproduced below without alteration):

1. Tribunal judged my credibility depending on irrelevant facts.

2. Tribunal did not reach conclusion regarding my credibility in terms of substantiated evidence. Some conclusion was not reasonable.

3.Tribunal did not ask me to provide evidence when doubting my credibility. If tribunal wants to find the truth, tribunal should raise this issue.

4. Tribunal misunderstood some facts. I lost my old marriage certificate, the new one was issued in 2015. Tribunal did not check my marriage certificate.

5. Tribunal did not fairly consider my case. Tribunal concerned too much on some inconsistencies. These things happened more than 20 years ago, so sometimes I didn't remember very clearly, which is understandable.

1. As the applicant was a litigant in person, the Court provided him with an opportunity to make submissions both generally and in respect of each of these grounds (Second Tp 8.27-8.30).
2. It was also explained to the applicant that the Court cannot review the merits of the Tribunal's decision or grant the applicant the visa that he seeks. It was explained that the role of the Court is restricted to determining whether there is an arguable case that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272.

1. In Ground 1 as specified in his Substantive Application, the applicant contended that the Tribunal made findings on his credibility based on irrelevant facts. In Ground 2, the applicant contended that the Tribunal did not base credibility findings on substantiated evidence, and some conclusions were not reasonable.
2. These grounds were unparticularised. At the hearing, the Court asked the applicant for particulars of the grounds, or if he wished to make submissions on the grounds. In respect of Ground 1, he was asked to specify what irrelevant facts were relied upon. He said that he had been applying for a protection visa, and the Tribunal should have asked him for evidence, but it did not. He did not specify what evidence the Tribunal should have requested. The issue of enquiries is discussed in relation to Ground 3 later in this judgment. The applicant did not explain what irrelevant evidence he claimed the Tribunal took into consideration (Second Tp 8.31-8.47).
3. The first respondent submitted that there was nothing in the Tribunal Decision to indicate that the Tribunal had regard to facts or evidence that it was bound to ignore, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [39]-[40] (Peko-Wallsend). It was submitted that there was no error in the Tribunal's assessment of the applicant's credit within the principles in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (CQG15).
4. The Court has considered the material in the Court Book and the Tribunal Decision but has been unable to identify irrelevant facts which were taken into consideration by the Tribunal in reaching its findings regarding the credibility of the applicant, which the applicant was bound to ignore: Peko-Wallsend at [39] - [40].
5. The applicant has also claimed that the Tribunal based its decision on 'unsubstantiated evidence', which the Court reads as evidence which is not cogent or where there is no corroboration. The Tribunal set out the evidence upon which it relied ([15-36] of the Tribunal Decision). The Tribunal recorded various concerns about the applicant's credibility, based on this evidence. The Tribunal recorded concerns about evidence of assistance with his forms ([22-23] of the Tribunal Decision), concerns about evidence of marriage ([24-26] of the Tribunal Decision), concerns about evidence of his children ([27-29] of the Tribunal Decision), concerns regarding evidence of the house demolition ([30-32] of the Tribunal Decision) and concerns about evidence of arrest and physical harm ([34-36] of the Tribunal Decision). The Tribunal found that the applicant was not a witness of truth based on these concerns considered in totality ([37] of the Tribunal Decision). In reaching a decision on credibility, it was open to the Tribunal to consider the evidence of assistance with his forms, evidence about his marriage and children, evidence of the house demolition, arrest and physical harm. The evidence was relevant and cogent.
6. To the extent that the applicant claims that the Tribunal made findings based on uncorroborated evidence, there was no need for the Tribunal to obtain corroborative evidence for its findings. The Tribunal relied on the evidence before it, and it was for the applicant to make out his case: VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 per Crennan J at [27]. The Tribunal's power to get information that it considers relevant is permissive and not mandatory. In FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71 per Murphy, Charlesworth, Snaden JJ at [5], the Court observed that:

the Tribunal is not bound by the rules of evidence but can inform itself on any matter as it thinks is appropriate: AAT Act, s 33(1)(c). As such, the Tribunal had "considerable latitude" over the procedures it adopted: Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114, Katzmann, Snaden and Raper JJ (at [36]).

1. As to whether the Tribunal's conclusions were unreasonable, the Court accepts that while credibility findings are a matter for the Tribunal, challenges to credibility findings for jurisdictional error are open: CQG15 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. There may for example be no logical or probative basis for findings, or they may be illogical or irrational: CQG15 at [38].
2. The test of unreasonableness must be 'necessarily stringent': Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] per Kiefel CJ. Considerable caution should be applied in acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at [14] - [15]. This is because assertions of illogicality and irrationality can readily be used to conceal what in truth is simply an attack on the merits of the Tribunal findings: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (SZUXN) per Wigney J_._
3. Although no detailed reasons need to be given as to why a witness is not believed (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J at [67]), detailed reasons were provided by the Tribunal. The findings of the Tribunal had a logical and probative basis, based on evidence set out in [22-36] of the Tribunal Decision.
4. The Court has considered whether there is an arguable ground that the findings were illogical or irrational: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [38]. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) per Crennan and Bell JJ at [133] it was stated that 'the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it'.
5. The Tribunal set out the evidence upon which it reached its findings that the applicant was not a witness of truth. In [15- 19] of the Tribunal Decision, the Tribunal set out the evidence in the applicant's application to the Department and an accompanying written statement. Evidence at the Tribunal Hearing was referred to in [21-36] of the Tribunal Decision. In [21-37] of the Tribunal Decision, the Tribunal provided detailed reasoning for finding that the applicant was not a witness of truth. The Tribunal discussed the concerns it had in separate paragraphs, headed 'concerns about the preparation of the protection visa application', 'concerns about the applicant's evidence regarding his marriage', 'concerns about the applicant's evidence regarding his children', 'concerns about the applicant's evidence regarding his house demolition' and 'concerns about the applicant's evidence about his arrest in China and incidents of past physical harm'. The Tribunal listed the concerns, the applicant's response to his concerns and then made findings that when assessing all the concerns, it concluded that the applicant fabricated his marriage, the existence of his children, the house demolition, his arrest and beating, the destruction of crops, assault by gang members and his reason for leaving China.
6. It cannot be said that it was not open to the Tribunal to engage in the process of reasoning which it did on the evidence before it. As reasonable minds could differ as to the conclusions to be drawn, illogicality or irrationality or unreasonableness cannot arise, simply because one conclusion has been preferred over another: see SZMDS per Crennan and Bell JJ at [131]; SZUXN per Wigney J.
7. In Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [76], the High Court observed 'unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification'. In this case it was open to the Tribunal to engage in the process of reasoning which it engaged in, given the detailed consideration of the evidence.
8. Grounds 1 and 2 do not establish an arguable case of jurisdictional error.
9. To the extent that these grounds invite the Court to disagree with the Tribunal's decision such conduct would amount to impermissible merits review. As explained during the hearing, this Court has no power to conduct such a review: see Wu Shan Liang.

1. In Ground 3 the applicant contended that he was not afforded procedural fairness, in that issues about his credibility were not raised with him.
2. At the hearing, the Court asked the applicant if he wished to make submissions on this ground, but he said that he did not wish to do so (Second Tp 9.14-33). Earlier however, he had mentioned, when asked about Ground 1, that the Tribunal should have asked him for evidence, although he did not specify what this evidence was. Notwithstanding that particulars of this ground have not been provided the Court has considered whether the Tribunal complied with procedural fairness in relation to the credibility issues.
3. The first respondent contended that the Tribunal put the applicant on notice of the credibility issues ([21], [25], [28], [30], [32], [35] and [36] of the Tribunal Decision).
4. The Tribunal's procedural fairness obligations were found in Division 4 of Part 7 of the Act: s 422B(1) of the Act. There was an obligation to invite the applicant to a hearing: s 425 of the Act.
5. The Court notes that on 25 November 2016, the Tribunal acknowledged the application for the protection visa and invited the applicant to provide material and written arguments for the Tribunal to consider (CB 80). On 4 March 2020, the applicant was invited to a hearing of the Tribunal on 2 April 2020 (CB 91). The Tribunal therefore complied with its obligation to invite the applicant to a hearing as required by s 425 of the Act, as well as providing natural justice by giving him an opportunity to provide written material and arguments.
6. At the hearing, the Tribunal had concerns about the applicant's credibility relating to evidence about the preparation of the protection visa application and written statement ([21-23] of the Tribunal Decision), evidence about the marriage ([24-26] of the Tribunal Decision), evidence about his children ([27-29] of the Tribunal Decision), evidence of the house demolition ([30- 32] of the Tribunal Decision) and evidence about his arrest and incidents of past harm ([33-36] of the Tribunal Decision).
7. It is clear from the Tribunal Decision that the Tribunal raised all these credibility issues with the applicant as follows:
   • At [21] of the Tribunal Decision the Tribunal recorded that the applicant was asked why there was no declaration in his application form that the applicant received assistance completing the form;
   • At [25] of the Tribunal Decision the Tribunal recorded that it put to the applicant concerns about his inconsistent evidence in relation to his marriage and children, and the Tribunal recorded his response;
   • At [28] of the Tribunal Decision the Tribunal noted that it had put to the applicant inconsistent evidence in relation to the birth of his son and recorded his response;
   • At [30] of the Tribunal Decision the Tribunal recorded that the Tribunal put to the applicant concerns it had about the inconsistent evidence regarding when his son was born;
   • At [32] of the Tribunal Decision the Tribunal referred to the applicant's response to observations made by the Tribunal that the applicant's evidence about where he had lived had changed;
   • At [33] of the Tribunal Decision the Tribunal recorded that at the hearing the applicant was informed that the Tribunal needed more detail about the arrest;
   • At [36] of the Tribunal Decision the Tribunal recorded that the applicant had been asked why he had omitted to mention in his oral evidence standing in front of the bulldozer, which was a key incident, and his response was recorded.
8. The Court is satisfied that the Tribunal gave the applicant a real and meaningful opportunity to provide evidence and present arguments relating to the issues arising in relation to the decision under review, in compliance with s 425 of the Act and ensured that he had an opportunity to respond to credibility issues identified by the Tribunal.
9. To the extent that the applicant is claiming that information should have been put to him pursuant to s 424A or s 424AA of the Act, on the evidence, it is not evident to this Court that there was material capable of enlivening these sections. The Tribunal relied upon information provided by the applicant himself. There is nothing in the Court Book or Tribunal Decision which demonstrates that there was material of this nature, or that the applicant was denied procedural fairness.
10. To the extent that the applicant is claiming that the Tribunal should have made further enquiries of him, it is not the Tribunal's responsibility to inquire or obtain evidence: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (SGLB) per Gummow and Hayne JJ at [43]. That is a responsibility of the applicant.
11. Ground 3 does not identify any reasonably arguable basis for finding jurisdictional error in the Tribunal's decision.

1. In Ground 4 the applicant contended that the Tribunal did not check his new marriage certificate which was issued in 2015 and that this amounted to jurisdictional error. When the applicant was asked at the hearing of this Court to provide particulars, he said that he 'just wanted justice' (Second Tp 9.35-44).
2. It was submitted by the first respondent that there was no evidence to suggest that the applicant provided the Tribunal with a marriage certificate issued in 2015 (Second Tp 12.16-23).
3. Ground 4 does not establish jurisdictional error as the Tribunal could not consider a document that was not before it.
4. Furthermore, there is no general obligation upon the Tribunal to inquire: SGLB at [43]. This was not one of the rare cases where the Tribunal may have been under an obligation to make an obvious inquiry about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429 per French,CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Provision of the marriage certificate was a matter for the applicant and was not the subject of an obvious inquiry. It is well established that it is for the applicant to satisfy the Tribunal that the applicant meets the criteria for being a refugee: Section 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]. The Tribunal was not under any obligation to make the applicant's case for him: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170.
5. No arguable case of jurisdictional error arises from Ground 4.

1. In Ground 5 the applicant contended that the Tribunal focused too much on inconsistences when events happened 20 years ago. At the hearing he said that in regard to his son, it was almost 30 years ago, and he was 'confused already' (Second Tp 9.4-10). He said that he was beaten when he had his son and sustained injuries to his lower back and legs (Second Tp 10.17- 18).
2. The first respondent contended that weight to be given to the evidence was a matter for the Tribunal. Further, the first respondent argued that the Tribunal had accepted that events took place a long time ago but had difficulty accepting the inconsistencies in relation to important life events (Second Tp 12.33-41).
3. The Court has interpreted the applicant's ground as a contention that the Tribunal made a decision that was illogical or irrational as it based credibility findings on inconsistencies about events which took place over 20 years prior.
4. In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (AVQ15) at [28] per Kenny, Griffiths and Mortimer JJ, the Full Court observed that it is well-established that assessment of credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. At [27]-[28], their Honours noted that inconsistencies should be used with caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. They observed:

.. even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person's case as a whole and whether the inconsistency is on a matter which is central to the person's case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

1. The Court is satisfied that in making its credibility findings, the Tribunal was careful and thoughtful, assessed the significance of the inconsistencies, and conducted processes fairly. The Tribunal acknowledged that the applicant's evidence may be impacted by passing of time ([36] of the Tribunal Decision), and therefore it is inferred that the Tribunal considered the passage of time when evaluating the evidence. The Tribunal noted at [36], that even taking the passage of time into account, it was not adequately explained why he would not remember key incidents such as standing in front of a bulldozer or being beaten by gangs. The Tribunal was persuaded that the applicant was not a witness of truth because there were inconsistencies about key events in his life ([37] of the Tribunal Decision). The Tribunal summarised several examples of inconsistent evidence relating to the applicant's claims and also recorded the applicant's responses to these inconsistences when these were raised at the Tribunal hearing ([20-36] of the Tribunal Decision). This included concerns about the preparation of the protection visa application form, concerns about the applicant's evidence regarding his marriage, concerns about evidence in relation to his children, concerns about evidence of the house demolition and concerns about evidence of the arrest and physical harm ([37] of the Tribunal Decision).
2. Based on the evidence before it, it was open to the Tribunal to make adverse credibility findings based on inconsistencies, even if some of the events happened over 20 years ago. Fact-finding is a matter for the Tribunal, including assessment of inconsistencies. The Tribunal's decision is not one that no logical or rational decision-maker could have reached on the evidence before it: SZMDS at [131] and [135].
3. To the extent that the applicant's ground expresses disagreement with the Tribunal decision, this is not, of itself, sufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Eshetu) at [40].
4. Ground 5 does not establish an arguable case of jurisdictional error.

1. The applicant made three statements in his Supporting Affidavit. These were:

1. My family was mistreated and I was hurt due to family planning.

2. The government took my land away and my crops were damaged.

3. I was very dissatisfied with the Communist government.

1. The first respondent submitted that these statements invited the Court to engage in impermissible merits review. The Court notes that these statements generally align with claims made in the application to the Department for this visa. To the extent that the applicant contends that the Tribunal should have made a different decision, based on these statements, the Court notes that any disagreement that the Court may have with the Tribunal Decision is not sufficient to establish jurisdictional error: Eshetu at [40]. The Tribunal considered these claims and made findings that the applicant did not meet the refugee or complementary protection criteria. The Court cannot engage in merits review.
2. The statements in the Supporting Affidavit do not disclose an arguable case of jurisdictional error.

1. The lack of prejudice weighs in favour of granting the reinstatement.
2. However, the Court is not persuaded that there was a reasonable excuse for non-attendance at the hearing for reasons set out earlier. Furthermore, and importantly, the Substantive Application is lacking in merit as there is no arguable case of jurisdictional error on the part of the Tribunal. As was stated in CAL15 at [4], 'it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.'
3. The Court is not satisfied that it is in the interests of justice for the application for judicial review to be reinstated, particularly as the substantive application has no reasonable prospects of success.

1. The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Consequential Act).
2. This judgment relates to a decision of the Tribunal which predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal's decision (or as at the date of any relevant matter referenced in this judgment).
3. The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party in pending proceedings. Item 25 of the Consequential Act relates to any proceeding in a court that is not finalised before the transition time and provides that proceedings continue in accordance with the new law.
4. In the circumstances, this Court will make an order substituting the ART as the Second Respondent in this proceeding.
5. On 13 May 2025 by Administrative Arrangements Order signed by the Governor-General of the Commonwealth of Australia, the Act is to be administered by the Department of Home Affairs. The newly named portfolio of Department of Immigration and Citizenship forms part of the Department of Home Affairs.
6. In these circumstances the Court will make an order substituting the Minister of Immigration and Citizenship as the first respondent in these proceedings.

1. For the reasons given above the application for reinstatement is dismissed.
2. The Court will hear the parties on costs.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.