DXY25 v Minister for Immigration and Citizenship

1. The applicant is a citizen of Malaysia (Court Book (CB) 18). Information contained in the Tribunal decision indicates that she arrived in Australia on 3 December 2015 as the holder of a Visitor (Subclass 601) (Tourist stream) visa. After the expiry of this visa on 3 March 2016, the applicant remained onshore as an unlawful non-citizen for six years until she applied for protection (CB 75).
2. On 5 December 2021, the applicant applied to the Department of Home Affairs (the Department**)** for a Protection visa (CB 1-18). The application included the following details (CB 11-12):

Provide reasons why this applicant left that country or those countries:

I AM HOMOSEXUAL SUPPORTER. I ALWAYS MAKE COMMENT ON FACEBOOK AND OTHER SOCIAL MEDIA TO SUPPORT HOMOSEXUALITY LEGALIZATION IN MALAYSIA. I LOSE HOPE IN THIS COUNTRY, BECAUSE RESTRICT FREEDOM OF SPEECH.

Did this applicant experience harm in that country or those countries?

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

Give details for why this applicant did not try to move to another part of the country or those countries.

WHOLE COUNTRY WAS CONTROL BY ONE POLITIC PARTIES NAME UMNO. PEOPLE WHO HAVE EMBEZZLED TENS OF BILLIONS CAN BE ACQUITTED.

Explain what the applicant thinks will happen to them if they return to that country or those countries:

WHOLE COUNTRY WAS CONTROL BY ONE POLITIC PARTIES NAME UMNO. PEOPLE WHO HAVE EMBEZZLED TENS OF BILLIONS CAN BE ACQUITTED.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

Give details about why this applicant thinks the authorities could not, or would not, protect them.

WHOLE COUNTRY WAS CONTROL BY ONE POLITIC PARTIES NAME UMNO. PEOPLE WHO HAVE EMBEZZLED TENS OF BILLIONS CAN BE ACQUITTED.

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

Give details about why this applicant is unable to relocate.

I BELIEVE THAT AUSTRALIA IS THE FREEDOM COUNTRY AND I CAN START MY NEW LIFE AT HERE. I CANNOT CHOICE WHERE I BORN FROM, BUT I HOPE I CAN CHOICE WHERE TO LIVE. THANKS.

1. On 10 December 2021, the Department acknowledged the application for the Protection visa and invited the applicant to provide further information as outlined in an attached 'Request Checklist and Details' form (CB 19-28).
2. On 18 November 2022, the Department sent the applicant another request for further information and attached another 'Request Checklist and Details' form for the applicant to complete (CB 29-35).
3. The applicant did not provide any additional information to the Department (CB 42).
4. On 16 December 2022, the delegate refused to grant the applicant the Protection visa (CB 36-39) finding that she did not meet ss 36(2)(a) or 36(2)(aa) of the Migration Act (CB 40-43).
5. On 22 December 2022, the applicant applied to the formerly named Administrative Appeals Tribunal (AAT) for review of the delegate's decision (CB 44-51).
6. On 23 December 2022, the AAT acknowledged the application and invited the applicant to provide material and written arguments for the AAT to consider (CB 53-54).
7. On 11 March 2025, the Tribunal sent the applicant an invitation to attend a hearing. In the hearing application letter, the applicant was invited to provide any documents she intended to reply upon by 26 March 2025 and complete the attached 'Response to Hearing Notice' form within 7 days (CB 56-58).
8. On 19 March 2025, the Tribunal sent the applicant an email to confirm that no response had been received from her regarding the hearing invitation. The Tribunal requested that the applicant complete and returned the 'Response to Hearing notice' form as soon as possible (CB 64).
9. The applicant responded on the same day with an email stating the following (CB 65):

I HERE REQUEST THE ART TRIBUNAL TO MAKE A DECISION WITHOUT HEARING INTERVIEW, BUT ART TRIBUNAL PLEASE MAKE A DECISION ON PAPERS.

1. The email also attached a completed 'Response to Hearing notice' form. The applicant selected a box which said 'No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing' (CB 67).
2. No hearing was held in this matter.
3. On 21 March 2025, the Tribunal affirmed the delegate's decision not to grant the applicant a visa (CB 72-88) and notified the applicant by way of email on 24 March 2025 (CB 71).

TRIBUNAL DECISION DATED 21 MARCH 2025 [TD] [CB 72-88]

1. The Tribunal identified the visa under review and summarised the procedural history (TD [1-5]).
2. The Tribunal summarised the relevant law (TD [6-12] and [14]), including s 106 of the ART Act (TD [15]). The Tribunal noted that the applicant had not availed herself of any opportunity to provide further information, material and evidence to the Department and the Tribunal throughout the application and review processes despite receiving such requests (TD [43]). The Tribunal was satisfied having regard to the circumstances of the applicant's case and the evidence before it that the issues could be 'adequately determined' without the need for a formal hearing (TD [44]).
3. The Tribunal considered the applicant's protection claim as outlined in her application. The Tribunal identified that the applicant feared harm in Malaysia for reasons of her political opinion (TD [50]). The applicant claimed in her application that she had expressed her support for the legalisation of homosexuality in Malaysia via several online social media platforms and as a result faced a risk of harm from the political party, UMNO (TD [22]).
4. The Tribunal noted that the applicant had not provided any evidence about what she had posted online (TD [50]). The Tribunal recorded that there was no evidence before the Tribunal to suggest that the applicant had been harmed in Malaysia or that she had engaged in political activities either in Malaysia or Australia that would have attracted the adverse interest of the Malaysian government or authorities (TD [51]). Ultimately, the Tribunal found that there was insufficient evidence or information before it for the Tribunal to be satisfied of the claims made by the applicant (TD [52]). Consequently, the Tribunal found that the applicant did not satisfy the refugee criterion and that she was not owed protection pursuant to s 36(2)(a) of the Migration Act.
5. The Tribunal also found that there was no evidence before it to suggest that the applicant would be subjected to any forms of significant harm as outlined in s 36(2A) of the Migration Act and that therefore she was not owed complementary protection (TD [64]). The Tribunal considered that the applicant had departed Malaysia using her passport without attracting adverse attention from Malaysian authorities and that there was no evidence Malaysian authorities were making enquiries as to her whereabouts (TD [61]).
6. The Tribunal noted that the applicant had not provided any explanation for her delay of six years from the date of arrival in Australia to the date of lodgement of her protection visa application with the Department (TD [65]). The Tribunal found that this significant delay supported an adverse credibility finding against the applicant and suggested that she did not fear harm for her physical safety in Malaysia as she had claimed (TD [70-71]).
7. On 21 March 2022, the Tribunal affirmed the decision of the delegate not to grant the applicant the Protection visa (TD [75]).

1. The applicant applied to this Court for judicial review on 3 April 2025.
2. On 4 September 2025 the Minister requested that the matter be held in abeyance pending the outcome of an appeal to the Federal Court from the decision in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 (LLR24). The Minister contended that the current matter may be affected by LLR24 and noted that an appeal had been lodged by the Minister on 3 September 2025.
3. A directions hearing was held on 10 September 2025 so that the parties could be heard on the application for abeyance. The applicant appeared as a litigant in person. Mr Keevers of Counsel appeared for the Minister instructed by Mr Westenberg of Sparke Helmore Lawyers. The applicant did not oppose the request for abeyance.
4. I refused the application for abeyance for the reasons set out in DXY25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1542 No 1 (ex temp) (DXY25 No 1). In DXY25 No 1 I noted the public interest in judicial consistency and the development of precedent (at [11] - [12]). In refusing the application however, I observed that there was no information before the Court as to when the appeal would be heard. I referred to the Court's overarching purpose in facilitating matters quickly, inexpensively and efficiently, including matters where there was new legislation.
5. On 24 September 2025 the applicant appeared before this Court at the hearing as a litigant in person. Mr Keevers of Counsel appeared on behalf of Sparke Helmore Lawyers for the Minister. A Mandarin interpreter assisted the Court.
6. On 28 August 2025, my Chambers received several emails from the applicant with various attachments in support of her protection claims. The initial email also contained the following statements:

I consulted over a dozen lawyers, but they all told me to give up appealing, so I had to file a private lawsuit. I'm a lesbian, and Malaysia, a Muslim country, doesn't accept homosexuality. I've long suffered bullying and discrimination, not only verbal abuse but also beatings that left me covered in bruises. The worst incident involved being pushed down the stairs and breaking a bone. While physical injuries may heal over time, the psychological scars are deeper: fear, anxiety, and loneliness are constant companions, eroding my sense of security and confidence. This trauma has severely impacted my life and growth. Impacts and Consequences

My studies and personal life have been significantly disrupted.

I can't feel at ease in school or society, constantly worried about being bullied again.

My physical and mental health has been severely damaged. Many victims of bullying fear speaking out and being hurt again, so they choose to endure the abuse in silence. Malaysia has laws that provide for severe punishment for bullies, yet every year, people are bullied, and in more serious cases, bullying leads to death.

1. The applicant sought leave to tender the new material (the attachments to the email) at the hearing. The Minister objected to admission of the new documents as they had not been before the Tribunal (Tp 4.34-37). The applicant contended that she had provided the documents to her agent at the time, who did not provide the documents to the Tribunal (Tp 5.23-25**)**. She then clarified that she did not have an agent at the Tribunal, instead a friend of a friend assisted her (Tp 9.8-11).
2. Under s 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the Court has a duty to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Conscious of this duty, I accepted the new material provisionally at the hearing, marking it for identification, on the basis that I would reserve the question of admissibility until the disposition of the substantive matters (Tp 6.5-15).
3. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8], Nicholson J observed:

It is apparent that the real purpose of the fresh evidence sought to be tendered by the appellant before his Honour was to contradict the factual finding made by the Tribunal on the evidence of the Batticaloa business and the death of his business associate and the Tribunal's rejection of the appellant's claims in respect of those matters. It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal...

1. In SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27]), the Court stated at [27] per McKerracher J:

An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error.

1. On consideration, leave to tender the new documents is refused. The documents comprise extracts from news reports, ChatGPT searches and social media comments relating to victims of school, university and workplace bullying and violence in Malaysia as well as the impact of bullying. The material post-dates the Tribunal hearing and was not before the Tribunal. It cannot therefore bear on any relevant jurisdictional error, and it is not evidence which if accepted could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding: ss 55(1) and 56(2) of the Evidence Act 1995 (Cth).
2. The following documents were before the Court - the initiating application for judicial review, the supporting affidavit of the applicant filed on 3 April 2025, a Court Book (numbering 88 pages and marked as Exhibit 1R) filed 7 August 2025, written submissions of the Minister filed on 22 September 2025, and an affidavit of Michael Jude Westenberg affirmed on 22 September 2025. The affidavit of the applicant included a number of statements, which have been treated as submissions by this Court, with no objection from the Minister.
3. The applicant's grounds for judicial review are set out in the application filed on 3 April 2025. The applicant seeks orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.

ASSISTANCE TO THE APPLICANT AS A LITIGANT IN PERSON

1. A court has an intrinsic duty to assist unrepresented litigants: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Hamod v New South Wales [2011] NSWCA 375 (Hamod) per Beazley JA (Giles and Whealy JJA agreeing). At [309] to [316] in Hamod, Beazley JA observed that a court must preserve impartiality while appropriately assisting litigants in person. He observed that the principles are (citations omitted):
   • The duty reposes in the individual judicial officer hearing a case.
   • The touchstone is that of fairness.
   • The duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented.
   • Trial judges should ensure that litigants do not remain ignorant of fundamental procedures which if invoked may prove advantageous.
   • The court has an obligation to ensure a fair trial for all parties such that the impartial function of the judge should be preserved, and no advice should be given as to how rights should be exercised.
   • The unrepresented litigant should have sufficient information about the practices and procedure of the court so far as reasonably practicable for the purpose of ensuring a fair trial.
2. These principles apply in civil cases: Mortimer J in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) at [70] - [75]. Mortimer J referred to various authorities noting that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. She endorsed the approach of Smith J in Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, 15 September 1997) at [9] who observed that while judges should maintain neutrality, the boundaries of legitimate intervention are flexible.
3. In the case before me, I confirmed that the applicant had a copy of the Court Book and the Minister's submissions. The applicant confirmed that she understood the interpreter **(**Tp 2.32-37). At the hearing I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the applicant were to succeed in her application. I explained that jurisdictional error is a serious legal error and outlined some common categories, noting that these categories were not exhaustive. I explained that the Court cannot undertake a merits review of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang). The applicant confirmed that she understood (Tp 3.42-4.7).
4. During the hearing I took the applicant through the grounds for review advanced in the application, and provided her with an opportunity to provide further particulars of each of the grounds, and to make oral submissions (in accordance with principles in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 per Feutrill J at [22] and [25]).

CONSIDERATION - WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?

1. The function of this Court is to review the Tribunal Decision and determine whether the Tribunal has fallen into jurisdictional error.
2. Section 476 of the Migration Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
3. A privative clause as defined at s 474 of the Migration Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
4. The role of judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) per Allsop J, Besanko and O'Callaghan JJ at [17] as follows:

...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT), the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [3] (footnotes omitted):

Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. The Tribunal was required to consider whether the applicant met the legislative criteria for a Protection (Class XU) (Subclass 866) visa.
2. Section 29(1) of the Migration Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Regulations prescribe the criteria for classes of visas: s 31(1) and (3) of the Migration Act. A non-citizen must apply for a visa of a particular class: s 45 of the Migration Act.
3. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Migration Act are met. This includes criteria prescribed by the Migration Act or Regulations: s 65(1)(a)(ii) of the Migration Act. These criteria are considered by the Tribunal on review.
4. Sub-sections 36(2)(a) and 36(2)(aa) of the Migration Act provide that the criteria 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.)

1. Section 5H(1)(a) of the Migration Act provides that a person is a refugee if they are unable or unwilling to avail themselves of the protection of a country owing to a well-founded fear of persecution. Section 5J sets out what it means to have a well-founded fear of persecution.
2. The ART Act sets out the relevant procedural provisions. These provisions are extracted later in this judgment.

Consideration of the grounds of jurisdictional error alleged by the applicant

1. The applicant advanced three grounds of jurisdictional error in her application. I have considered the grounds as broadly as possible and been alert to error in accordance with the principles set out in MZAIB [100].
2. After considering each of the grounds, and the additional ground raised by the Minister as model litigant, I have not identified any jurisdictional error, for the reasons set out below.
3. The applicant contended in her application that the first ground of jurisdictional error was that:

1. I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm from existing government still controlled by UMNO and harm from UMNO supporters. My family and I shall face harm again from UMNO supporters if found that I return to Malaysia because I made comments on social media about to support the legalisation of homosexuality in Malaysia. if I have return to Malaysia may face harm or kill by UMNO supporters, because local authorities cannot help or protect me for 24 hours. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia. However, the case officer failed to investigate the applicant's claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.

1. The second ground advanced by the applicant was that:

2. I believe that the ART case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The ART case officer failed to consider my claim or integer of a claim and made an unreasonable decision.

1. At the hearing before me, the applicant was invited to make submissions about these grounds. She said that she wished to make submissions on 'how she was harmed' (Tp 8.1-6). She was asked on what basis she believed that the Tribunal made errors in relation to harm, or why the applicant misconstrued the legislation as claimed in her application. She said that the agent, who was her friend, did not upload evidence about the harm she suffered. She made no further submissions (Tp 9.1-30).
2. It appears from the application that the applicant is discontent with the findings of the Tribunal that she would not face serious or significant harm from the government or UMNO because she made comments on social media supporting the legalisation of homosexuality in Malaysia. While the applicant may not agree with the Tribunal Decision, this Court cannot engage in merits review: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 (NADR) per Heerey, RD Nicholson and Selway JJ at [9] Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [272] and [281]-[282].
3. In her application, the applicant has been critical of the Tribunal's findings on harm. Mere assertion of jurisdictional error as a cloak for disagreement with the Tribunal Decision cannot succeed: Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165. It is for the Tribunal to make findings of fact. In doing so, the Tribunal does not have to accept, uncritically, any and all claims made by and applicant and nor does it have to possess rebutting evidence before holding that a particular assertion is not established: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 per Perry J at [24].
4. The applicant in written particulars referenced particular provisions which she claimed were misconstrued:

'... the case officer failed to investigate the applicant's claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Migration Act and Schedule 2 to the Migration Regulations 1994'.

1. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. Also referenced was s 5H(1) of the Migration Act, which explains what it is to be a refugee and Schedule 2 of the Regulations which sets out the criteria for a protection visa
2. The applicant did not particularise the claimed misconstruction. A fair reading of the Tribunal Decision does not show any jurisdictional error in the Decision through misconstruction of these provisions. The Tribunal correctly recognised the test for the refugee criterion, being whether there is a real chance of an applicant facing serious harm, and for the complementary protection criterion, being whether there is a real risk of an applicant facing significant harm (TD [6-12], [55-59]). The Tribunal correctly cited the relevant provisions of the Migration Act and used the correct terminology throughout (see in TD [9-10], [49-50], [53], [60], [61-64], [72-73]).
3. The applicant also referred to s 36(2C) of the Migration Act which concerns exclusions from protection where an applicant has committed a crime. This provision was not applied by the Tribunal so the reference may have been a mistake or based on misunderstanding of its meaning.
4. To the extent that the applicant is claiming that the Tribunal should have made further investigations on the facts in her case, it is well-established in law that it is for the applicant to make her case for protection: s 5AAA of the Migration Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at [187]. The applicant must provide evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to 'afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence': Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [82]. In this case the applicant did not avail herself of the opportunities to provide written evidence and requested that the Tribunal make a decision without a hearing.
5. In ground two the applicant claimed that the Tribunal failed to consider her claim or integers of her claim.
6. The Tribunal is required to consider claims that are expressly articulated by an applicant or which clearly emerge on the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE); [2004] FCAFC 263 at [58]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]. In NABE at [68] the court said that a finding that an integer was not considered should not be made lightly.
7. The applicant in her visa application said that she left Malaysia because she supported the legalisation of homosexuality and there was no freedom of speech. She mentioned that the country was controlled by UMNO who had embezzled tens of billions of dollars (CB 11). The applicant was provided with various opportunities to provide further written evidence and submissions, but she did not avail herself of these opportunities. She was also invited to a hearing which she chose not to attend. In these circumstances the Tribunal made a decision based on the information before it. The Tribunal at [50] and [70] considered her claim to have a well-founded fear of returning to Malaysia because of her political opinion (posting online in support of legislation to legalise homosexuality). She had not made specific claims of harm experienced in Malaysia. The Tribunal also made findings on complementary protection [55] - [64].
8. I have been unable to identify any evidence of integers which the Tribunal did not consider.
9. The applicant also referred, in the application, to legal unreasonableness. The issue of legal unreasonableness arising from procedural fairness is dealt with later in this decision. As to whether the substantive findings were legally unreasonable, there is nothing to indicate that they were.
10. The test of unreasonableness is 'necessarily stringent': Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 per Kiefel CJ at [11].
11. In Li at [76], the High Court observed 'unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification'.
12. In Minister v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [43]-[52] the court found that a refusal by the Tribunal to adjourn a case was legally unreasonable, finding that if the court could not identify how the decision was arrived at, then the exercise of power is seen by the supervising court as 'lacking an evident and intelligible justification' (at [44]); citing Li at [76].
13. 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'. Their Honours further stated at [135] that:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

1. A decision-maker is not obliged to uncritically accept an applicant's evidence and does not require rebutting evidence before holding that a factual assertion is not made out: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 per McKerracher, Griffiths and Rangiah JJ at [65].
2. In the matter before me, the Tribunal correctly referenced the relevant law (TD [6] - [14] and considered the evidence provided by the applicant in her application (TD [45] - [71]. The Tribunal recorded that the applicant did not adduce further evidence to support or validate her claims, despite opportunities from both the Department and Tribunal to do so (TD [50]). The Tribunal noted that she made no claim that she experienced harm in Malaysia or that she had been involved in political activities in Australia. The Tribunal noted that she had not provided any evidence of a political profile (TD [51]). The Tribunal found that there was insufficient evidence to support a finding that she met the refugee criteria (TD [52]) or complementary protection criteria (TD 64]). The Tribunal also took into account the lengthy delay in applying for the visa (TD [65] - [71]).
3. It cannot be said that the decision lacked an evident and intelligible justification (Li [76]) as it is clear how the Tribunal arrived at its decision (Singh [43] - [52]). In my view, on the limited information provided by the applicant, 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 (SZMDS [135]).
4. The applicant claimed at the hearing that a friend of a friend had assisted her with her application to the Tribunal. She claimed that this friend had not provided her documents to the Tribunal.
5. Counsel for the Minister pointed to an email dated 20 March 2025 from a person with a different name to the applicant, which was also the address provided for service (CB 65, 48). Counsel noted that a third party may have assisted the applicant, who may not have provided all the applicant's documents to the Tribunal as claimed. The Minister submitted that this did not establish fraud (Tp 10.30-11.13).
6. In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 198 (SZFDE) at [53] the High Court distinguished fraud of an agent, which could result in stultifying a decision, from situations where 'a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap'. The High Court held that in these situations it 'should not be heard to complain that the detriment vitiates the decision made' (SZFDE at [53]).
7. Without evidence to demonstrate fraud, I am not satisfied that fraud is established in the matter before me.
8. If it is the case that the person assisting the applicant did not provide her documents to the Tribunal (which has not been proven), I have some sympathy for the applicant. However, I note that the applicant had multiple opportunities before the Department and Tribunal to provide documents (see for example CB 50) such that procedural fairness was afforded to her, and she could have provided information to the Tribunal herself, as discussed in the following paragraphs.
9. In summary, I conclude that there is no jurisdictional error arising from misconstruing the legislation, failure to consider integers, legal unreasonableness or fraud.

1. I have considered whether the applicant was denied procedural fairness because the Tribunal decided the matter without a hearing under s 106(3) of the ART Act or because the Tribunal should have raised the issue of 'delay' as a new dispositive issue. In LLR24 Judge Johns found that the Tribunal breached its procedural fairness obligations, on the basis of the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL). The Minister commendably raised these issues pursuant to its model litigant obligations.
2. At the hearing before me, I explained the issues relating to procedural fairness to the applicant. She said that she did not wish to make any submissions (Tp 12.17-33).

Should the applicant have been put on notice of new dispositive issues not raised in the delegate's decision?

1. In LLR24 the background was as follows. The delegate in that matter found that the applicant was a Shi'a Muslim (at [12]), and that Shi'a Muslims faced difficulties in the practice of their religion which did not amount to persecution (at [13]). The tribunal in that matter did not accept that the applicant was a Shi'a Muslim (at [33]). His Honour Judge Johns found that the issue of whether the applicant was a Shi'a Muslim was a new dispositive issue not put to the applicant (at [72-74] and [76]) in accordance with the principles in SZBEL.
2. In LLR24 the court found that there was a breach of procedural fairness obligations in s 55 of the ART Act and that the Tribunal decision was legally unreasonable (notwithstanding s 106(3) of the ART Act), because the Tribunal had not put the applicant on notice of the new dispositive issue (LLR24 [72] - [76]).
3. Counsel for the Minister submitted that the case before me was distinguishable on the facts from LLR24. He submitted that, unlike LLR24, in the case before me the basis upon which both the Department and the Tribunal affirmed the decision under review was paucity of information in respect of the applicant's claims. It was submitted that while the Department reasoned that the paucity was reflective of the claims being non-genuine, the Tribunal did not make credibility findings and instead found that the protection obligations were not engaged due to the lack of information. It was argued that there was no practical injustice on the basis that the Tribunal addressed the issue of want of information but did not go as far as the delegate did in declining to make a finding that the claims were not genuine, citing HT v R (2019) 269 CLR 403 per Kiefel CJ, Bell and Keane JJ at [18].
4. I accept that the applicant was on notice from the delegate's decision that paucity of information was a dispositive issue. It was clear from the language employed that the delegate reached its decision because of absence of evidence (see for example CB 42 [5] and [7]). There was no resulting injustice to the applicant when the Tribunal made its decision, as the decision was founded on paucity of information as well.
5. The Minister acknowledged that in its reasoning the Tribunal had regard to the applicant's six-year delay in lodging her protection visa application from the date of arrival in Australia, while this was not an issue canvassed by the Department [Tp 14.18-37].
6. The Minister submitted that this did not give rise to a denial of procedural fairness for two reasons. Firstly, the findings on delay were 'illustrative not dispositive' and the Tribunal did not make conclusions based on the delay. It was argued that by stating that the delay was 'indicative', the Tribunal was suggesting that it reflected on the matter, but it did not ultimately form part of the reasons. Secondly, it was argued that the SZBEL type error, if any, was not material to the Tribunal's conclusions because the Tribunal had concluded that it was not satisfied that the applicant met the criteria in ss 36(2)(a) and (aa) of the Migration Act due to paucity of information: [31] of the Minister's Submissions.
7. The second argument is discussed later in this judgment.
8. I do not accept the first argument - that the findings in relation to delay were illustrative not dispositive. This is demonstrated by the Tribunal's finding at [69]:

When careful examination is undertaken of the applicant's claims for protection, and consideration is given to assessing the genuineness or depth of her fear of persecution should she return to Malaysia, and that is weighed against all the known facts of this matter, as well as the significant delay of six year, the Tribunal finds that the significant delay can support an adverse credibility finding as well as a finding that she does not have a well-founded fear of harm in Malaysia.

1. A plain reading of this paragraph and in particular the words 'as well as the significant delay...', when considered in light of the discussion of delay (TD [65] - [71]), is that delay from arrival in Australia until application for the visa, was a dispositive issue concerning whether the applicant met the criteria for a visa.
2. Delay was not a dispositive issue referred to in the delegate's decision.
3. In LLR24 the Court found that there was a breach of procedural fairness in proceeding to a decision without a hearing where a new dispositive issue was not put to the applicant (LLR24 [72-73] and [76]) based on the well-established principles in SZBEL. In the case before me, in written submissions, the Minister noted that LLR24 had been appealed to the Federal Court by the Minister. Counsel submitted 'to the extent that the earlier judgment in LLR24 would inform the disposition of this matter, the Minister's submission (in light of the pending appeal) is that LLR24 was wrongly decided and should not be followed'.
4. In BYI25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1671 (BYI25), I reached different conclusions to that in LLR24 (at [251]), in a matter where, like this one, there was no Tribunal hearing.
5. In the case before me, I am satisfied that the Tribunal complied with procedural fairness obligations, notwithstanding that a new dispositive issue was raised in the Tribunal Decision, for the reasons set out below, and consistent with the reasoning in BYI25. This is explained in some depth in the following paragraphs.

Did the Tribunal comply with procedural fairness obligations in the ART Act?

(1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:

(b) access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and

1. I am satisfied that the Tribunal, by inviting the applicant to a hearing and inviting written submissions and evidence, complied with s 55 of the ART Act, and that the Tribunal complied with s 106(3) of the ART Act, by making a decision without a hearing.
2. I am satisfied that the Tribunal complied with s 55(1)(a) and (c) of the ART Act, which requires that the Tribunal must ensure that each party to a proceeding is given a reasonable opportunity to present the party's case and make submissions and adduce evidence. Section 55(1)(b) of the ART Act does not apply to migration cases (by operation of s 375A(2)(b) of the Migration Act).
3. Section 55 provides that the Tribunal must ensure that each party is given a give a reasonable opportunity to present the case and make submissions and adduce evidence. This obligation included a requirement to invite the applicant to a hearing pursuant to s 55 of the ART Act: BYI25 [136]-[138].
4. The Tribunal provided the following opportunities:
   • On 23 December 2022, the Tribunal invited the applicant to provide written material and written arguments for the Tribunal to consider (CB 52-54).
   • On 11 March 2025, the applicant was invited to a hearing and asked to complete a 'Response to Hearing Invitation' form within 7 days of receipt of the letter (CB 56-58).
   • On 19 March 2025 a reminder letter was sent to the applicant about the hearing on 2 April 2025. She was asked to complete the 'Response to Hearing Invitation' form and send it to the Tribunal as soon as possible (CB 64).
5. By inviting the applicant to a hearing and providing the opportunities to provide written evidence and submissions, I am satisfied that the Tribunal complied with the obligation to present submissions and adduce evidence pursuant to s 55 of the ART Act.

Were the requirements in ss 106(1) and (3) of the ART Act met?

1. Section 106(1) and (3) of the ART Act read together, provide that the Tribunal may make its decision in a proceeding after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if:

(a) the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

The Tribunal may make its decision in the proceeding...after considering the documents and things given to the Tribunal and without holding the hearing...' (s 106(1) of the ART Act) (underlining added)

1. The words in the chapeau in s 106(1) of the ART Act are clear on the face and provide context to the application of sub-ss 106(2)-(5).
2. The Tribunal considered the documents and things given to it (see TD [16-31]) in compliance with s 106(1) of the ART Act.

The only parties to the proceeding were the applicant and a non-participating party (s 106(3)(a) of the ART Act)

1. 'Non-participating party' is defined in s 348A(1) of the amended Migration Act. The Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision. In this case, the Minister for Immigration and Multicultural Affairs was a non-participating party to the proceeding.
2. The only parties to the proceeding were the applicant and a non-participating party, and accordingly s 106(3)(a) of the ART Act was met.

The decision is wholly in favour of the applicant, or the applicant requested the Tribunal to make its decision without holding the hearing of the proceeding (s 106 (3)(b)(i) and (ii) of the ART Act)

1. In this case, the decision was not wholly in favour of the applicant. Section 106(3)(b)(i) of the ART Act does not apply and therefore it was necessary for the alternative subclause, s 106(3)(b)(ii) to apply - that the applicant requested the Tribunal to make its decision without holding a hearing of the proceeding.
2. I am satisfied that the applicant requested the Tribunal make its decision without holding the hearing of the proceeding. The circumstances of the request were as follows.
3. On 11 March 2025, and in a reminder on 19 March 2025, the Tribunal invited the applicant to a hearing on 2 April 2025. As referred to earlier in this judgment, on both occasions she was provided with a 'Response to Hearing Invitation' form.
4. As noted in the Tribunal Decision the applicant had not engaged with the Tribunal since lodging her review application and she had not returned her 'Response to Hearing Invitation' form ([TD 28]). The Tribunal recorded that for this reason, on 19 March 2025 the Tribunal sent the applicant a reminder about the hearing and again asked her to complete the 'Response to Hearing Invitation' form.
5. On 20 March 2025, the applicant emailed the Tribunal, enclosing a completed but unsigned 'Response to Hearing Invitation' form (CB 65). In the email the applicant said:

I here request the ART Tribunal to make a decision without hearing interview, but ART Tribunal please make a decision on papers.

1. The applicant checked the box in the 'Response to Hearing Invitation' form requesting that a decision be made without a hearing. She indicated in the form that she did not intend to rely on any documents, written witness statements, country information or other evidence (TD [31]).
2. This is, in my view, a clear request for the Tribunal to make a decision on the papers. For thoroughness, I have considered whether there was any ambiguity or lack of consent in the request.
3. In LLR24, the court found that when the applicant was invited to the hearing, she was entitled to assume that she was being invited to present her case about the matters determined by the delegate unless otherwise put on notice (LLR24 at [73]). This finding was based on the reasoning in SZBEL. In _LLR_24, the applicant contended that the nature of her response to an invitation to attend a hearing (requesting for the Tribunal to decide the matter without holding a hearing) was defined by the notice of hearing (LLR24 at [80]). The Minister in that case argued that it was open to the applicant through a request pursuant to s 106(3)(b)(ii) of the ART Act to waive this procedural fairness right and the applicant's choice was voluntary (LLR24 at [81]). The court found that an applicant needs to be properly informed before it can be said they are making a voluntary choice to waive procedural fairness rights (LLR24 at [82]).
4. His Honour found that the applicant was not put on notice by the Tribunal of other reasons, beside those in the delegate's decision, which might be the subject of the Tribunal's consideration. He said that the applicant was 'in the dark' when she requested that the Tribunal decide the matter without a hearing (LLR24 at [82]).
5. I take a different view as to what is required for compliance with the requirement that there be a 'request' to make a decision without a hearing: s 106(3) of the ART Act. My reasoning is set out in BYI25 at **[**160] and is based on construing the ordinary words of the statute, in the context of the objectives of the ART Act. The words of the statute are 'the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding' (emphasis added): s 106(3)(b)(ii) of the ART Act. The statute does not require that information be provided to the applicant prior to the applicant making the request. In my view such an obligation should not be read into the provision unless there is some other indication in the legislation that this was what was intended. I do not accept the arguments in LLR24 at [82] that a request is involuntary where new dispositive issues are raised by the Tribunal, as this is reading too much into the provision. Section 106(3) is found in the part of the ART Act which relates to making decisions without hearings, rather than the earlier part of the ART Act which relates to conduct. The placement of the provision infers that the intention of the legislature was that there are circumstances where it is appropriate to make decisions without hearings, where requirements which are set out in the provisions are met, including where a request is made.
6. In any event, in the case before me, I am satisfied that the applicant was provided with information explaining that the Tribunal would undertake de novo review rather than considering only the dispositive issues referred to in the delegate's decision. I am not satisfied that the applicant, when invited to the hearing, was 'entitled to assume' (as claimed in circumstances which had some similarity to the case before me, in LLR24), that she was being invited to present her case about the matters determined by the delegate only. In my view, the applicant would have been aware that she was being invited to a merits review of the delegate's decision involving disposition of all issues relevant to whether she met the criteria for the visa.
7. The following features of this case support this view:
   • When applying for the visa, the applicant filled in a detailed visa application form provided by the Department of Home Affairs, answering numerous questions (CB 1-16) including about her claims. The application form included a paragraph as follows (CB 10-11):

Applicants must provide all the details about why they are seeking protection, and, wherever possible, must provide documentation to support protection claims. A decision may be made on the information provided in this application and applicants may not be given another opportunity to present these claims. Therefore, it is important that applicants include all details relevant to their case and attach any supporting documentation to this application before it is submitted.

• The application form included questions for the applicant to complete about why she left the country, dates of departure, the harm experienced, who was responsible for the harm, whether she sought help, whether she tried to relocate and what she believed would happen to her on return (CB 8-12).
• The applicant was asked to sign the form after reading a detailed declaration about reading and understanding the information, agreeing that she provided complete and correct information and with knowledge that giving false or misleading information is a serious offence (CB 14-15).
• On 18 November 2022, the applicant was invited by the Department to provide further information in relation to her claims (CB 29-35).
• It is reasonable to assume as the applicant had elected to apply for a protection visa and after filling in the application form which included questions relating to dates of departure and the criteria, and receiving a letter from the Department, that the applicant would have a general understanding of the visa criteria, as well as the importance of telling the truth (credibility).
• In the covering letter sent to the applicant with the delegate's decision on 16 December 2022, the applicant was advised by the delegate that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa as set out in Australian migration law. She was notified that her application was refused because she did not satisfy sub-s 36(2) of the Migration Act, which required her to be a non-citizen in Australia in respect of whom Australia has protection obligations. It was also explained to her that she could apply for merits review, and a link was provided to the Tribunal website as to the merits review process. The telephone number for information about the merits review process was provided. Reference was made to the possibility of the Tribunal finding that she was a person to whom Australia owes protection obligations (CB 36-39).
• The delegate was not satisfied that the claims of the applicant were credible, due to the paucity of information provided, and therefore found that the applicant did not meet the refugee or complementary protection criteria (CB 42-43).
• It can reasonably be assumed that, from the delegate's decision and letter notifying the applicant of the decision, the applicant was on notice of the criteria for the visa, and the fact that the Tribunal conducts merits review, rather than a review on certain issues only.
• The applicant then applied for merits review at the Tribunal on 22 December 2022 (CB 44-51). The Tribunal acknowledged the application on 23 December 2022 and invited the applicant to provide material or written arguments (CB 53). The applicant was invited to direct any queries to the Tribunal. The letter attached a document called 'Information for review applicants' (CB 54). While a copy has not been provided in the Court Book, this is a generic document used by the Tribunal which notifies the applicant that the Tribunal considers the matter afresh and makes a decision correct in law (see BYI 25 at [169]).
• On 11 March 2025, the applicant was invited to a hearing of the Tribunal (CB 56). The applicant was invited to provide documents and notified of the repercussions of non-appearance (CB 57).
• With the invitation to the hearing the applicant was provided with a Factsheet, called 'Information About Hearings' (CB 59-63). The fact sheet included the following information:

The hearing is an opportunity for you to give evidence and present arguments to us relating to the issues arising in your case.

The Member will guide the proceedings to suit the circumstances of the case, will ask questions and will provide you with an opportunity to make a statement or present arguments.

• The applicant was also referred to the website of the ART in the Factsheet (CB 63).
• The information provided in the invitation and hearings fact sheet did not suggest that the hearing would only concern the dispositive issues discussed in the delegate's decision.

1. In short, when the applicant made the request that the Tribunal decide the matter without a hearing, I am satisfied that she made the request equipped with information about the process of de novo merits review and the criteria for the visa. There was no evidence before the Tribunal to suggest that the applicant raised an issue or indicated that she had further material evidence that required a hearing after they requested that the Tribunal proceed to a hearing without a review. I am therefore not satisfied that the applicant would have been entitled to assume that the only issues to be canvassed at a hearing were those in the delegate's decision.
2. In conclusion I am of the view that the applicant made an informed request. In SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 (SZGWN) at [43] the court found that consent for the purposes of s 425(2)(b) of the Migration Act was required in unambiguous terms and it would be an unusual case for such consent to be implied. In the case before me there was unambiguous consent (see also Khadgi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 991 where Derrington J AM at [18] found that the trial judge could not be criticised for finding that there was no ambiguity in a response to a question with similar wording). The applicant confirmed at the hearing before me that she had no concerns about the process (Tp 12.24-33).
3. In these circumstances, I am satisfied that the applicant requested the Tribunal make its decision without holding the hearing in accordance with s 106(3(b)(ii) of the ART Act.

It appeared to the Tribunal that the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding (s 106(3)(c) of the ART Act)

1. I am satisfied that it appeared to the Tribunal that the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding, in compliance with s 106(3)(c) of the ART Act. I adopt the reasoning in BYI25 at [178] - [181] as to the construction of the phrase 'appears to the Tribunal' in s 106(3)(c) of the ART Act:

Section 106(3)(c) of the ART Act requires that it must appear to the Tribunal that the issues for determination could be adequately determined in the absence of the parties to the proceedings (emphasis added).

The Cambridge Dictionary definition of 'appears' includes a number of choices. The relevant ones are 'start to be seen or present', or 'seem'.[1] These definitions suggest that where after an applicant has asked not to attend a hearing, and after considering the documents and things before the Tribunal it 'becomes apparent' to the Tribunal or the Tribunal 'sees' that the issues for determination can be adequately determined in the absence of the parties, then it may exercise its discretion to decide the matter without a hearing.

The use of the words 'appears to' indicates a more impressionistic than certain conclusion. It can be assumed that legislators would have used words such as 'the Tribunal must be satisfied that' (used in other provisions such as s 97(b) of the ART Act), had they wanted the Tribunal to be certain.

This construction of the provision is taken in a recent ART decision of Justice Kyrou, President, Deputy President Burford and Deputy President Dordevic: 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) (2010120 (Refugee)) at [40]. The ART found that the ART Act:

...contemplates that the Tribunal's view regarding determination of the issues in the proceedings without a hearing may fall short of a definitive conclusion. Such an interpretation would be consistent with the fact that the view is to be formed prior to the conduct of the substantive review (with or without a hearing).

1. At [32] - [44] of the Tribunal Decision, the Tribunal provided detailed reasoning as to why it appeared to it that the issues the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding.

1. I am satisfied that the requirements of s 106(3) were met and no jurisdictional error arises out a failure to afford procedural fairness.

Was the exercise by the Tribunal of the discretion to make a decision without a hearing legally unreasonable?

1. Notwithstanding my findings that the Tribunal complied with the requirements set out in ss 55 and 106(3) of the ART Act, I have considered whether the exercise by the Tribunal of the discretion to decide the matter without a hearing pursuant to s 106(3) was irrational, illogical or otherwise unreasonable.
2. In SZFVW, the High Court confirmed that no matter how evaluative a decision might have been, the requirement of reasonableness is implied (per Gageler J at [53]). Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred: Li per French CJ at [23] and cases cited.
3. The authorities have provided various descriptions of how unreasonableness can arise. It has been held that unreasonableness can arise where a decision appears to be arbitrary, capricious, without common sense or plainly unjust: Li at [28] and [11]; Singh at [44], or where there is no intelligible justification for the decision: Li at [76]; Singh at [44]-[45]. A court must evaluate whether the decision falls within the range of possible acceptable outcomes defensible in respect of fact and law: Gageler J citing Dunsmuir v New Brunswick [2008] 1 SCR 190 at [220-221] and [47]; Singh at [44] - [45].
4. I have considered the reasoning of the Tribunal in the matter before me to ascertain whether the decision was arbitrary, capricious or unjust or had no intelligible justification. At [32 - 44] of the Tribunal Decision the Tribunal considered s 106(3) of the ART Act, noting as follows:
   • that it had provided the applicant with a reasonable opportunity to present her case and make submissions and adduce evidence in compliance with s 55 of the ART Act;
   • that it had invited the applicant to a hearing and notified her of the time, date and place in compliance with s 379A(5) of the ART Act;
   • that the applicant was notified in accordance with s 72 of the ART Act;
   • that the only parties were the applicant and a non-participating party in accordance with s 106(3) of the ART Act;
   • that the Tribunal could not exercise powers under s 106(3) if it considered there were issues that could not be resolved without seeking further evidence or submissions;
   • that the term 'adequately determined' in s 106(3) was not defined, so the Tribunal relied on the ordinary meaning of the words;
   • that the words 'adequately determined' should be considered in the context of the objectives of the ART Act to provide an independent mechanism of review that is fair and just and ensures that applications to the Tribunal are resolved as quickly and with as little formality and expense as a proper consideration permits;
   • that guidance on interpretation of 'adequately determined' could be taken from the reasoning in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 (SZNVW) at [49] that the Tribunal was not obliged to conduct an inquiry to discover whether a visa applicant might have been able to put their case better or support it with other evidence;
   • that it was for the Tribunal to decide whether an application can be 'adequately determined' without holding a hearing, and notwithstanding that it is empowered to obtain information from parties, it is not necessarily obliged to seek comments or information from parties when it turns its mind to decide a matter adversely to a party;
   • that a tribunal can request further information from parties where deemed necessary, but this is in the discretion of the Tribunal (EIZ20 [60]);
   • that there was no obligation on the Tribunal to seek further evidence or help the applicant establish her claims: s 5AAA of the Migration Act; ABT16 v Minister for Home Affairs [2019] FCA 836 at [28] (ABT16);
   • that the Tribunal is not required to accept uncritically claims made by an applicant, citing Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596 and Re Bineshi Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 156, 169-170;
   • that the applicant had been given multiple opportunities to provide further information, material and evidence, and had failed to engage with the Department or Tribunal; and
   • that pursuant to s 106(3) of the ART Act it appeared to the Tribunal that the issues for determination could be 'adequately determined in the absence of the parties'.
5. The reasoning in [15] - [44] of the Tribunal Decision summarised above, as to the exercise of the discretion to make a decision without a hearing could not be said to be arbitrary, capricious or unjust or lacking in intelligible justification. The Tribunal explained its reasoning for the construction of the legislation and its applicability to the applicant's circumstances. I have examined this in more detail in the following paragraphs.
6. From a fair reading of the Tribunal Decision, it appears that the Tribunal found that the issues for determination were the criteria for the protection visa (TD [6] - [12]). 'Issues for determination' is a term understood at law to mean questions or topics where findings or conclusions are needed. As I said in BYI25 at [183] in the context of the provision, there is some ambiguity as to the scope or range of potential issues requiring adequate determination without a hearing. These could involve a broad spectrum of issues such as an applicant's identity, nationality, visa status, immigration history, place of residence, travel history, findings of fact on claims and so on.
7. In my view, the approach taken by the Tribunal in this matter was correct. 'Issues for determination' when used in the context of the provision simply correlates at law with the legislative requirements, in this case, the criteria for the visa set out in the legislation (BYI25 at [188] for the reasons set out in [184] - [192]). The words in the previous legislation (s 425 of the Migration Act) 'issues arising in relation to the decision under review' appeared in a different context (the hearing invitation), whereas s 106(3) is a permissive provision to empower the Tribunal to decide a matter without a hearing.
8. The approach taken by the Tribunal to the phrase 'adequately determine the issues for determination in the absence of the parties' was reasonable, when considering principles of statutory construction. The Tribunal relied on the ordinary words of the statute as well as objectives and context and referred to authorities which pertain to analogous provisions. The Tribunal also noted that it would not be able to adequately determine the issues, if it considered there were issues that could not be resolved without seeking further evidence or submissions ([32] - [44] TD).
9. In BYI25 at [193] - [195] I referred to the dictionary meanings of 'adequately'[2] as:

In a way that is satisfactory or enough for a particular purpose.

discover the facts or truth about something, decide what will happen.[3]

1. I noted (BYI25 at [194]) that the word 'adequately' does not carry with it an absolute state of satisfaction, or impart an element of perfection or superiority, given that its meaning is more akin to satisfactory or enough. I found that it is not required that it must appear to a decision-maker that the issues can be irrefutably or unquestionably determined. I found that it was not required from the words 'adequately determined' that there must be offerings of further procedural fairness opportunities if absolute satisfaction was not attained.
2. I also considered the context of the provisions (BYI25 at [196]-[220]):

When considered against the purpose and context of the Act, the following principles arise in relation to the words, 'it appeared to the Tribunal that the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding.'

Firstly, it is clear that 'adequately determined' does not mean determined in the favour of the applicant. If this was what the drafters intended, they would have said so. There is a separate clause which deals with decisions favourable to the applicant (s 106(3)(b)(i) of the ART Act) such that it would be superfluous to have another provision with the same meaning.

Secondly, as addressed earlier in these reasons, it must appear to the Tribunal that the issues for determination can be adequately determined (emphasis added), which suggests that the Tribunal must have the impression from the documents and things before it that the issues can be adequately determined on the papers, rather than having to be absolutely certain. Realistically, it may transpire that when writing the decision, the Tribunal may need to write to the applicant to ascertain a fact, such as the nationality of an applicant if in doubt, or to clarify a family relationship for the purposes of membership of a family unit. If those kinds of matters arose, they would need to be resolved prior to finalising the decision.

Thirdly, reflecting on the dictionary definitions, the use of the word 'adequately' suggests that the legislators intended that in order for a decision to be made without a hearing, it must appear to the Tribunal that the issues could be 'satisfactorily' determined or be determined 'enough for a particular purpose' rather than being determined to a level of perfection. The relevant 'particular purpose' in the context of a protection visa, is being able to reach the state of satisfaction that the applicant meets or does not meet the legislative criteria for the visa based on proper material and lawful grounds: Djokovic at [21].

1. In EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (EIZ20) Judge CE Kirton KC considered s 34 J of the AAT Act, which applied to divisions of the AAT other than applications for review under Part 5 or Part 7 of the Migration Act (migration and protection cases) and which was an equivalent provision. Judge Kirton found that where the parties do nothing to dissuade a tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation to seek further information or hold a hearing (at [59]). Her Honour noted that the Tribunal had considered all the evidence before it and had given the parties an opportunity to submit material. Further the AAT had the power to obtain information from parties but found that the AAT was not necessarily obliged to seek comments or information from them when it was minded to decide a matter adversely to a party. Her Honour said that the AAT's obligation to have enough information before it to adequately review a decision does not require it to inquire as to whether a party may be able to support their case with other evidence or inquire on the 'mere possibility that either party might have something further to say' (EIZ20 at [66]).
2. In EIZ20 Her Honour took the view (at [59]) that it was open and reasonable for the AAT to conclude that the parties had provided all the information they considered important and relevant and that the AAT could properly review the decision with the information before it. Her Honour found at [60] that:

Further, in properly carrying out its duties, the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation seek further information or hold a hearing.

1. I endorsed a similar approach in BYI25 [211] and referenced other authorities and the objectives of the Act (BYI25 [209] - [212]). I observed (at [213]) that the approach in EIZ20 is consistent with s 5AAA of the Migration Act, and establishes that in protection cases it is the applicant's case to make and the ART is not under a general duty to undertake enquiries of their own volition (BYI25 at [213] - [214]). I referred to extrinsic materials which assist in divulging the purpose of s 106(3) of the ART Act, in particular, efficiency (BYI25[215] - 219]). I summarised the findings as follows (BYI25 [220]), which apply equally to the case before me:

In summary, 'adequately determined' based on the ordinary meaning, objects of the provisions, relevant authorities and context of the words in s 106(3) of the ART Act can be construed as meaning 'satisfactorily' determined in the context of a request for a decision without a hearing. The Tribunal may proceed to a hearing in the absence of the parties where:

• the Tribunal has complied with s 55 of the ART Act;
• a request has been made by an applicant for a decision without a hearing;
• the applicant does nothing to dissuade the Tribunal that the decision cannot be adequately determined in the absence of the parties; and
• it is apparent to the Tribunal that the issues for determination can be adequately determined by the Tribunal on the documents and things before it. This means that the Tribunal could satisfactorily reach a level of satisfaction as to whether the applicant meets the legislative criteria for the visa and can thus make the correct or preferable decision.

1. The approach taken by the Tribunal in the matter before me to the construction of the provision was reasonable. I accept from the information in the Court Book that there was no evidence before the Tribunal to suggest that the parties raised an issue or indicated that they had further material evidence that required a hearing after they requested that the Tribunal proceed to a hearing without a review: EIZ20 at [59].
2. I accept that there was no obligation on the Tribunal to inquire further as to whether the applicant might be able to support her case with other evidence or inquire on the 'mere possibility' that the applicant had 'something further to say': Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]; EIZ20 at [66].
3. In the case before me, as in EIZ20, the Tribunal considered the lack of engagement with the Department and Tribunal. The Tribunal noted that other than lodging the review application, the only engagement the applicant had with the Tribunal was when she requested the Tribunal to make a decision without a hearing (CB [65]). This was despite communications from the Tribunal inviting her to provide material. In deciding that it appeared that it could adequately determine the issues, the Tribunal considered this lack of engagement, the objectives of the ART Act and the requirement for the Tribunal to satisfactorily or adequately determine the issues.
4. I am satisfied that there was an evident and intelligible justification for the exercise of the discretion to make a decision without a hearing and that the Tribunal afforded procedural fairness. The Tribunal exercised the discretion to make a decision without a hearing on the basis of the information before it (the history of engagement, the request by the applicant and the documents and things before it) and considered the interpretation of the statute and the objectives of the legislation.
5. I am satisfied that there was no irrationality, illogicality or legal unreasonableness in the exercise of the discretion to make a decision without a hearing. No jurisdictional error arises from a failure to afford procedural fairness.

Should the applicant have been put on notice of new dispositive issues not raised in the delegate's decision?

1. In LLR24 at [90] the court was not satisfied that a Tribunal acting reasonably would have determined the application on the papers as there was a matter that had not been put to the applicant (or that she was not given notice of). His Honour found that there was a lack of evident and intelligible justification for what the Tribunal did, and that no Tribunal acting reasonably would have considered it fair to do so (LLR24 at [90]).
2. In accordance with model litigant responsibilities, Counsel for the Minister raised possible applicability of the findings in LLR24 that the tribunal in that case breached procedural fairness obligations by not putting the applicant on notice, prior to or when invited to hearing, that there were other dispositive issues besides those in the delegate's decision (Tp 13.7-14.28) - here the issue of delay.
3. In BYI25 at [252-256], I found that this aspect of the reasoning in LLR24, which was based on the decision in SZBEL, was plainly wrong for the following reasons:

Firstly, SZBEL was founded on different legislation. I have construed the new legislative provisions in the ART Act on the terms and considering object and purpose. I am satisfied that the Tribunal complied with procedural fairness obligations under s 55 of the ART Act, which uses new language.

Secondly, in SZBEL a final hearing was held so the circumstances were markedly different. In both LLR24 and the case before me, there was no hearing held, in accordance with provisions in the legislation which permit decisions to be made without hearings in certain circumstances. The hearing was an opportunity for dispositive issues to be canvassed and addressed. The applicant requested that the matter be finalised without a hearing, a wish which should be respected. Given that procedural fairness had been afforded, this resulted in a waiver of further procedural fairness. As addressed earlier in these reasons, I am not persuaded that the applicant would have been entitled to assume that when he was invited to a hearing it was only the issues from the delegate's decision which were dispositive. I have set out earlier the information provided or accessible to the applicant relating to the visa criteria and the process of merits review.

Thirdly I am endorsing a construction of ss 55 and 106(3) based on plain language and context, and which accords with the objectives of the ART Act. Sections 55 and 106(3) of the ART Act, when read together and in context, reveal a legislative intention that the Tribunal must offer the applicant opportunities to present their case, make submissions and adduce evidence. However, if an applicant refrains from taking up those opportunities, then a decision can be made without a hearing where the issues for determination can be adequately determined.

Fourthly, the practical approach I have suggested is consistent with settled law that it is for the applicant in a protection visa matter to make their own case.

1. I adopt the reasoning in BYI25 [241] - [295] when considering whether in this case, the Tribunal was obliged, pursuant to principles in SZBEL, to put to the applicant the issue of delay, prior to making a decision without a hearing (as this was not an issue raised in the delegate's decision).
2. Consistently with the reasoning in BYI25, I am satisfied that in the matter before me the Tribunal was not required to put new dispositive issues to the applicant once the applicant had elected that the Tribunal decide the matter without a hearing. I am satisfied that the applicant effectively waived the opportunity to have further issues put to her, by rejecting the invitation to a hearing. I am also satisfied that the Tribunal by inviting the applicant to a hearing and inviting written submissions and evidence, complied with s 55 of the ART Act. As found earlier in this judgment, I am satisfied that the Tribunal notified the applicant that the process was one of merits review, and she would not have been entitled to assume that the only issues for evaluation by the Tribunal were those highlighted by the delegate.

1. Counsel for the Minister submitted that the SZBEL type error, if any, was not material to the Tribunal's conclusions, because the Tribunal had concluded that it was not satisfied that the applicant met the criteria in ss 36(2)(a) and (aa) of the Migration Act due to paucity of information. It was argued that the applicant was on notice of this issue (paucity) but chose not to address the issue before the Tribunal, the consequence of which must have been affirmation of the decision under review.
2. The High Court in LPDT at [14], articulated the test for materiality as follows (citations omitted):

The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

1. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [35] and [42] the High Court found that there would be no material error where the tribunal breached a condition, but it could have made no difference the decision.
2. In the matter before me, I am not satisfied that jurisdictional error has been established such that it is not necessary to consider the materiality of error. However, if there had been error, I am satisfied that the decision could not have been realistically different if there had been no error, given the Tribunal was not satisfied that the applicant met the criterion for the visa due to paucity of information, which was a separate finding.

1. For all the reasons set out above, I am not satisfied that the Tribunal Decision was affected by jurisdictional error.
2. The application is dismissed.
3. I will hear the parties as to costs.

I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.

[1] Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/appear?q=appears.

[2] Cambridge Dictionary https://dictionary.cambridge.org/dictionary/english/adequately

[3] Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/determine