EES25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1797

1. The applicant seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) dated 27 March 2025. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) (subclass 866) visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. The applicant sought to impugn the Tribunal's reasons and findings on the grounds set out at [28] of this judgment. For the reasons at [35] to [38] of this judgment, I find the applicant has not demonstrated jurisdictional error on those grounds.
3. This matter also raises the issue of whether there is jurisdictional error given the recent decision in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 (LLR24), where it was held that the Tribunal fell into jurisdictional error in proceeding to make its decision under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) without holding a hearing and without informing the applicant that the Tribunal may determine the matter on a different dispositive issue to the delegate. The resolution of these issues depends on the proper construction of ss 55(1), 106(1) and 106(3) of the ART Act. This question is dealt with from [39] onwards in this judgment. I find no jurisdictional error is demonstrated in relation to that issue.

1. The applicant is a citizen of Malaysia, who arrived in Australia on 17 June 2016 on a tourist Electronic Travel Authority.
2. On 30 October 2019, the applicant lodged an application for a protection visa (Court Book (CB) 21 to 39). In the visa application, the applicant made the following claims as to his fear from gang-related activities in Malaysia (as per original):

The factory that I worked was state-owned factory. The factory was located near the water which led the local to suffering from cancer. There were lots of neighbours who died from it. My health condition was also getting worse from then. I have spoken with the manager about this, however it has been refused by him and threaten me not to report to higher level, otherwise, I would be in trouble. Nonetheless, I felt I should report to the government and on my way to the government, I was prevented by some gangsters and kicked by them. I was told that if I continued to report it, I would be killed by them.

The gangster also came to my home to smash the windows and scolded me. Nobody protected me and I was often threatened and kicked by the gangsters. My body was badly hurt. I felt that I need to leave Malaysia if I want to continue to live.

1. On 1 April 2020, a delegate of the Minister refused to grant the applicant a protection visa under s 65 of the Migration Act for the following reasons (CB 89):

The applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act).

1. The delegate noted the applicant's claims in the decision record, but did not state any findings it made as to the facts related to the claims (CB 92). Rather, the decision records that the delegate considered the country information and its assessment of the country information, that the Malaysian authorities could provide protection to the applicant and were willing and able to offer such protection. Further, the delegate found the applicant could access the protection, the protection was durable and consisted of an appropriate criminal law, a reasonably effective police force and impartial judicial system.

1. By letter dated 1 April 2020, the applicant was informed that he was entitled to apply to the Administrative Appeals Tribunal (AAT) for a "merits review" of the delegate's decision (CB 85 to 86). On 26 April 2020, the applicant applied to the AAT for review of the delegate's decision (CB 96 to 97).
2. I set out the procedural history of correspondence between the applicant and the Tribunal because it is relevant to the question of whether it "appears to the Tribunal that the issues for determination in the proceeding can be adequately determined" without holding a hearing pursuant to s 106(3)(c) of the ART Act.

1. On 27 April 2020, the AAT wrote to the applicant acknowledging receipt of his application and enclosed information about the review process. The letter stated that the AAT had requested the Department of Home Affairs (Department) to provide it with all the documents and files which were relevant to the application. The said letter attached the document from the AAT headed "Information for refugee review applicants", which relevantly stated (CB 113 to 115):

We are a statutory body with the power to review decisions made by the Minister, or by officers who are delegates of the Minister, of the Department of Home Affairs.

In conducting a review, we must consider the case afresh and make a decision that is correct in law. We have the power to overturn decisions and to substitute another decision, or return a case to the department for reconsideration with directions. We are required to provide a review that is accessible, fair, just, economical, informal, quick and proportionate.

...

In most cases, the primary issues considered by us is whether you meet the definition of a refugee or, alternatively, whether there is a real risk that you would suffer significant harm if removed from Australia to another country.

...

The review process varies according to the circumstances of each case. We may:

• seek further information, if it is considered necessary

• invite you to comment on any information that we consider would be (part of) the reason for not changing the decision under review

• invite you to appear to give oral evidence and present arguments at a hearing (in some cases by telephone or by videoconference) if a decision cannot be made based solely on your application and other documents submitted

• invite you to nominate other people who could give or provide evidence; and invite you to suggest other evidence or materials that we might obtain.

...

If you have not already provided a copy of the department's decision, please do so as soon as possible. If you have any material not yet provided, which you believe supports your application, including a statement setting out why you disagree with the department's decision, please send this as soon as you can. If you provide further information or evidence that was not given to the department, in certain cases we will need to consider the credibility of what you have provided and why it was not provided to the department.

(Emphasis added)

1. On 24 January 2023, the applicant sent an email to the AAT and asked for a letter which allowed him to apply for a Medicare card (CB 116). The applicant also provided updated details as to his residential address and telephone number.
2. On 25 January 2023, the AAT sent the applicant a letter as confirmation that his application for review of a migration decision to refuse a protection visa was pending (CB 119).
3. On 23 April 2024, the AAT sent an email to the applicant advising him that his file was being prepared to be given to an AAT member and asked the applicant to complete and return a pre-hearing information form within seven days of the date of the email (CB 120). The applicant did not return the said form.
4. On 23 August 2024, the AAT sent the applicant an email notifying him that he may be able to access free legal help and several legal assistance providers had been given funding to help applicants through the protection visa process, including by giving advice or information regarding the review and assisting in preparation of submissions and representation including at a hearing (CB 121). The email also set out a table of legal assistance providers.
5. On 14 October 2024, the AAT transitioned to the Administrative Review Tribunal.
6. By letter dated 10 March 2025, the Tribunal invited the applicant to attend a hearing in person at the office of the Tribunal on 10 April 2025 (CB 124 to 126) and stated:

Things to do before the hearing

Please provide all documents you intend to rely on to support your case by 3 April 2025 if you have not already done so. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.

...

What if I want the Tribunal to make a decision without holding a hearing

You can use the enclosed 'Response to hearing notice' form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.

Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.

(Emphasis added)

1. The letter dated 10 March 2025 from the Tribunal to the applicant also attached a document headed "INFORMATION ABOUT HEARINGS" (CB 128 to 132) that relevantly provided as follows:

What is a hearing?

The hearing is an opportunity for you to give evidence and present arguments to us relating to the issues arising in your case. We may also take evidence from other persons.

Hearings are conducted by a Member allocated to your case. Our procedures are relatively informal, and the Department of Home Affairs (the department) is usually not represented. 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 hearing may be conducted in person, by video conference or by telephone. Hearings in person may be conducted at an Administrative Review Tribunal (ART) office or in another suitable location. Hearings by video will usually be conducted by Microsoft Teams and hearings by telephone will usually be conducted by standard telephone conferencing facilities (e.g. your own home telephone or mobile telephone device).

Your hearing will be conducted in the way considered suitable by the Presiding Member. Your hearing notice states the way the hearing will be conducted. You can respond or make any comment about the way your hearing will be conducted in the 'Response to hearing notice' form.

1. The enclosed "INFORMATION ABOUT HEARINGS" document also stated that:

In most cases, the Member will want to talk to you about your case and take evidence from you directly...

You should use the "Response to hearing notice" form to nominate persons you want us to take oral evidence from...You will need to arrange for any persons you nominate, who are not in immigration or criminal detention, to be available to give evidence.

...

If you require an interpreter ...please notify the ART immediately so arrangements can be made.

...

If you are not able to attend the scheduled hearing, or you would prefer that the hearing take place in a different way (e.g at the ART office, instead of by video or telephone), you must advise us as soon as possible.

1. On 13 March 2025, the applicant emailed the Tribunal and stated that he was aware he had a hearing date on 10 April 2025, and requested a copy of the hearing notification so he could respond (CB 139). The applicant also provided a change of contact details form (CB 142 to 143).
2. On 14 March 2025, the Tribunal re-sent the applicant a copy of the hearing invitation (CB 144). On the same day, the applicant sent to the Tribunal a completed "Response to the hearing notice" (Response), which provided that the applicant had read the contents of the document headed "INFORMATION ABOUT HEARINGS" before completing the Response (CB 145 to 147). The applicant marked with a "x" in the box stating that he would "not participate in the hearing and requested the Tribunal to make a decision on the papers without holding a hearing". The applicant's signature appeared on the Response.
3. The applicant did not provide any further documents that he wished to rely on in his Response. The only documents before the Tribunal were the documents which had been before the delegate, being the protection visa application with no other statements or documents provided.

1. The Tribunal noted the applicant's claims for a protection visa at [17] and [18] of its reasons, which mirrored the claims in the protection visa application as set out at [5] of this judgment.
2. At [20] of its reasons, the Tribunal set out that the delegate had determined that the authorities in Malaysia would provide protection to the applicant such that the applicant's fear of persecution was not well-founded and there would not be a real chance he would face serious harm or a real risk he would suffer significant harm.

1. The Tribunal at [24] of its reasons noted that it invited the applicant to attend a hearing to give evidence and present arguments. However, the applicant returned the hearing invitation form and indicated that he would not participate in the hearing, and requested the Tribunal to make its decision on the documents before it. At [25] of its reasons, the Tribunal referred to s 106 of the ART Act and noted relevantly, the section provided that the Tribunal may make its decision without holding a hearing if the applicant requested the Tribunal to do so, and the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding.

1. At [37] of its reasons, the Tribunal noted that the "issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Migration Act". Subsections 36(2)(a) and (aa) are in the following terms:

36 Protection visas - criteria provided for by this Act

...

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

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

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

Tribunal did not accept events claimed occurred

1. The Tribunal found the applicant's claims lacked any substantiating details or corroborating evidence and therefore did not accept the events claimed by the applicant occurred, or that the applicant suffered the harm claimed ([40] and [48] of its reasons). On that basis, the Tribunal was not satisfied the applicant would be of adverse interest to anyone upon return to Malaysia.

1. The Tribunal also set out at [29] to [36] of its decision the reasons it appeared to the Tribunal as to why the issues for determination in the proceeding could be adequately determined without holding a hearing. I deal with those reasons at [89] to [100] of this judgment, as the reasons are relevant to the potential LLR24 jurisdictional error.

1. On 17 April 2025, the applicant's application for judicial review of the Tribunal's decision was accepted for filing by this Court. The application contained the following grounds (as per original):
   1. In Malaysia, I had been working at a government owned factory, where there was processing and it was close to the water that was used in the everyday lives of the people. The processing caused harm because there was run off that went into the water that caused cancer, and even some people dying from it. I had been also had my health being suffered and deteriorating.
   2. I brought this to the attention to the floor manager, so that we could try and fix it. But the manager just denied it, and told me not to report this issue to the higher levels. I am sure that he was already aware of it, but did not want to change anything. If he did, then he would not be able to meet the demands from the state of the operations of the factory. I ignored my manager, and told him that I would be reporting this, since it was causing deaths and cancer within our people.
   3. When I was on the way to the higher levels of government, I was stopped by gangsters who threatened me and kicked me. They warned me that if I continued this report, then I would be killed by them. The manager of the factory must have hired them to prevent me from bringing this to the attention of the higher levels of government. The reason for this must have been since he would be getting more money to keep this under wraps, or so that the factory will continue to produce and he will be able to receive money for the output.
   4. After that, more gangsters came to my home and then smashed the windows and continued to threatened me. This happened many times, and I was continued to be injured by these gangsters. They had injured me very badly.
   5. When I was in Malaysia, I tried to move around so that I would be safe from this harm. But I was watched by these gangsters and continued to be harmed by them. The police were of no help as well when I tried to get some help from them. The police cannot help me since the head of local government is really powerful, and they would be in touch with the police to ensure that I would continue to be found, I would not be safe if I continued to live in Malaysia.
   6. If I return to Malaysia, then I will be found, kicked, threatened, tortured and even killed by these gangsters, to make sure that I stay quiet and do not cause trouble for the manager of the factory, and the government head.
   7. It was not possible to take evidence before I was forced to leave. There was no papers or anything that I could give so that I can show this.
   8. The Minister for Immigration and Multicultural Affairs has made a jurisdictional error when they refused the application for a visa. There is a need to protect me, s36(2)(aa) of the Migration Act requires anyone that would be under real risk of harm, to be protected in Australia. I fit in this criteria because of the continuing harm, torture or even death that I would face if I was in Malaysia again.
   9. The Administrative Review Tribunal also made a jurisdictional error when they did not accept any of the statement that I have given, when I need the protection since I would be facing harm if I were in Malaysia again.

1. This matter was docketed to me and listed for a directions hearing on 18 August 2025. The applicant appeared at the directions hearing in-person assisted by an interpreter in the English and Mandarin languages. On that day orders were made to progress the matter to a hearing, which was listed to take place on 17 September 2025.
2. On the day of the hearing, on 17 September 2025, there was no appearance by the applicant. When contacted by my Associate with the assistance of the interpreter, the applicant said he needed to see his migration agent.
3. Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I raised for the Minister's consideration whether there was a potential jurisdictional error given the recent decision of LLR24. I made orders for the Minister to provide further submissions on that issue and listed the matter for a hearing on 24 September 2025.
4. On 24 September 2025, the day of the resumed hearing, Mr Julian Pinder (Mr Pinder), solicitor from Mills Oakley, appeared for the Minister. The interpreter was also in attendance. The matter was called three times outside the Courtroom and there was no appearance by the applicant. I was satisfied the applicant was or should have been aware of the time, date and place of the hearing. The applicant was notified of those matters in an email sent on 23 September 2025, to the email address appearing on his application for judicial review.
5. The Minister submitted that the application be dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules). Pursuant to r 22.04(1)(a)(iv) of the GFL Rules, I decided to proceed with the hearing generally in the applicant's absence from the hearing. My reasons for proceeding with the hearing are because the applicant was served with the submissions of the Minister, including on the potential grounds that arise from LLR24, and the applicant had provided no additional submissions and was unlikely to have been able to add anything to the potential ground arising from LLR24. Given the Court had identified a potential error, it is important that question be considered.
6. The evidence before the Court comprised of the Court Book tendered by the Minister, which was marked "Exhibit R1". The Minister relied on his written submissions filed on 5 September 2025, supplementary submissions filed on 23 September 2025 and further submissions provided after the hearing dated 14 October 2025. The applicant did not file any written submissions.

1. Grounds 1 to 6 repeat the factual claims made by the applicant for a protection visa. No jurisdictional error is disclosed by grounds 1 to 6.

1. By ground 7, the applicant stated that "[i]t was not possible to take evidence before I was forced to leave. There was no papers or anything that I could give so that I can show this". This ground appears to be a complaint as to the Tribunal's assessment that the applicant's claims were unsupported. It is noted that it was a matter for the applicant to advance the case he wished to make before the Tribunal, and it was then a matter for the Tribunal to determine whether the case was made out: Abebe v Commonwealth (1999) 197 CLR 510 (Abebe) at [187] and [197] per Gummow and Hayne JJ and [295] per Callinan J. I find it was reasonable and open to the Tribunal to reject the applicant's claims on the basis that the Tribunal found the claims were not corroborated. The applicant's claims, set out at [5] of this judgment, were such that there may have been material that could have corroborated his claims. Accordingly, no jurisdictional error is disclosed by ground 7.

1. By ground 8, the applicant contended jurisdictional error on the part of the delegate. This Court does not have jurisdiction to review the delegate's decision as it is a primary decision: ss 476(2)(a) and 476(4)(a) of the Migration Act. Accordingly, no jurisdictional error is disclosed by ground 8.

1. By ground 9, the applicant argued that the Tribunal also made a jurisdictional error when it did not accept any of his statements that he needed protection. I accept the Minister's submissions that mere disagreement with the Tribunal's findings does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J; Vo v Minister for Home Affairs [2019] FCAFC 108 per Derrington, Banks-Smith and Colvin JJ. Therefore, no jurisdictional error is disclosed by ground 9.

1. The facts in this case are similar to the facts in LLR24, which led Johns J to find jurisdictional error. It is for that reason I set out the facts of LLR24 and his Honour's reasons for finding jurisdictional error.
2. The relevant facts in LLR24 were as follows:

(a) The delegate accepted the claims made by the applicant, but found from the country information that the applicant did not have a well-founded fear (at [12] and [13] of LLR24).

(b) The applicant requested the Tribunal proceed to make its decision on the documents given to the Tribunal (at [26] of LLR24).

(c) The Tribunal in the purported exercise of power under s 106(1) of the ART Act proceeded to make its decision without holding a hearing.

(d) The Tribunal made its decision on the basis that it did not accept the applicant's claims as they were lacking in detail and uncorroborated, being a dispositive issue different to that considered by the delegate (at [33] of LLR24).

1. In LLR24, Johns J found the Tribunal fell into jurisdictional error in determining to make its decision pursuant to the power in s 106(1) of the ART Act without holding a hearing and without informing the applicant that the Tribunal may decide the matter on a different dispositive issue to the delegate for the following reasons:

(a) First, his Honour found there was nothing in the enactment of the ART Act to suggest that procedural fairness principles, such as those identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) do not apply (at [69] of LLR24). Further, his Honour found that procedural fairness principles do apply because:

(i) "reasonable opportunity" to "present the party's case" and "make submissions", stipulated in s 55(1) of the ART Act, required that a party must know the case against them (at [70] of its LLR24); and

(ii) to give meaning to the opportunity to reasonably present their case as required by s 55(1), an applicant is entitled to know with a "degree of particularity" "what is in play", and if the Tribunal takes no steps to identify some issue other than those that the delegate considered dispositive, then the applicant is entitled to assume that the issues the delegate considered dispositive are the issues (at [71] and [76] of LLR24).

(b) Second, the applicant's request that the Tribunal make its decision without holding a hearing was not an effective and valid request because:

(i) the request was not an "informed" request and was made without the applicant's knowledge that the Tribunal may consider a dispositive issue different to that considered by the delegate (at [74] of LLR24); and

(ii) the applicant's request can only be properly understood in the context of what was explained to her in the invitation to attend a hearing, which included a statement that the applicant should have regard to the delegate's decision which set out the reasons for its decision. The applicant was not put on notice that other reasons might be the subject of the Tribunal's consideration and therefore the applicant was "in the dark" when she requested that the Tribunal decide the matter without a hearing (at [82] to [83] of LLR24).

(c) Third, the Tribunal referred to the issues for determination at the level of whether the applicant had a "well-founded fear of persecution for one or more of the five reasons set out in s 5J(1)(a) of the [Migration] Act" and whether "there is a real risk that [they] will suffer harm". Johns J said this identification of the issues for determination "offends against the principles in SZBEL" and that "the issues for determination in [the case] were narrower". His Honour considered an issue for determination also included that the Tribunal may not accept the applicant's claims, even though the delegate accepted the claims. This was said to be particularly so when the applicant had not been put on notice that her faith was a point of contention, and in that respect the Tribunal misapplied s 106(3)(c) of the ART Act (at [87] of LLR24).

1. In the present matter, the Minister argued that LLR24 was wrongly decided and is currently the subject of appeal to the Federal Court, but at this time has not been allocated a hearing date. The principles of comity make it clear that a judge should usually follow a decision of another judge of the same Court, unless based on the same or substantially the same facts and legislation a view is formed that the decision is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] to [76] and BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 97; [2020] FCAFC 222 at [62] to [63].
2. This Court (as currently constituted) respectfully is of the view that the decision in LLR24 is "plainly wrong" for the following reasons:

(a) First, for the reasons set out at [51] to [60] of this judgment, s 55(1) of the ART Act ceases to have any operation once s 106(1) is engaged, on the basis that any of ss 106(2) to (5) applies to empower the Tribunal to make its decision without holding a hearing. Therefore, contrary to what was found in LLR24, the content of the obligation to accord procedural fairness found was directly affected by s 106(1). Further, for that reason SZBEL has no relevant application as the construction of s 425 of the Migration Act (as then in force) was premised on the basis that there was no suggestion that the content of the obligation to accord procedural fairness was directly affected by any statutory provision (at [29] of SZBEL).

(b) Second, for the reasons set out at [64] to [71] of this judgment, an applicant's request does not have to be an "informed" request to satisfy the precondition in s 106(3)(b)(ii) of the ART Act, contrary to what was found in LLR24.

(c) Third, for the reasons set out at [72] to [100] of this judgment, the issues for determination in LLR24, which are similar to the facts in this case, can be adequately determined without holding a hearing even where the Tribunal was considering determining the matter on a different dispositive basis to that of the delegate. Further, the Tribunal's identification of the issues in that case, which is similar to the identification of the issues in this case, did not fail to identify the issues required for the purposes of s 106(3)(c) of the ART Act.

1. To explain my conclusions set out in the preceding paragraph, I start with considering the statutory scheme of the ART Act and the proper construction of ss 55(1) and 106 within that statutory scheme. I then turn to consider the well-established principles surrounding consent from an applicant that the Tribunal proceed to determine the matter without a hearing and what is required of a request for the purposes of s 106(3)(b)(ii). Consideration is then given to the proper construction of s 106(3)(c). Finally, I consider the decision made by the Tribunal in this case to proceed to make its decision without holding a hearing and on what jurisdictional error grounds, if any, that decision is open to challenge.

1. Section 336P of the Migration Act, subject to exceptions, provides that the ART Act applies in relation to a review of reviewable migration decisions and reviewable protection decisions.

1. In performing its overarching duty to review, the Tribunal pursues the statutory objectives of being fair and just and ensuring that applications to the Tribunal are resolved as quickly, and with as little formality and expense as a proper consideration of the matters before the Tribunal permits, as well as promoting public trust and confidence in the Tribunal (s 9 of the ART Act).

1. The procedural obligations of the Tribunal are contained in Division 5 of Part 4 of the ART Act. Section 54 of the ART Act provides that for the purposes of review, the Tribunal may exercise all the powers and discretions that are conferred on the original decision‑maker.
2. Section 55 of the ART Act imposes an obligation on the Tribunal to ensure that each party to the proceeding is given a reasonable opportunity to present their case and make submissions and adduce evidence.
3. When s 55(1) of the ART Act commenced operation, ss 425 and 360 of the Migration Act, which required the AAT to invite an applicant to appear before it - to give evidence and present arguments on the issues arising in relation to the decision under review - were repealed from the Migration Act by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).

1. Subdivision C of Division 8 of the ART Act deals with situations where decisions on review may be decided without holding a hearing, and it is within that subdivision that s 106 sits. Section 106 relevantly provides:
   1. Circumstances in which Tribunal may reach decision without hearing - review of decisions only

Tribunal may make decision without hearing in certain circumstances

(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.

Where only parties are applicant and non‑participating party to the proceeding or hearing

(3) This subsection applies 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.

Proper construction of ss 55(1) and 106 of the ART Act

1. The question that arises in this case is whether the relevant provisions of the ART Act, properly construed, confer power on the Tribunal to make its decision on the documents before it (and without holding a hearing) when it determines to decide the matter on a different dispositive issue to that of the delegate, or whether as LLR24 found s 55(1) continues to impose such an obligation. To answer that question, it is well-established that the text, context, subject matter and purpose of the legislation are to be considered: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 381 to 382 at [69] to [71] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [46] to [47].
2. Section 55(1) of the ART Act imposes an obligation on the Tribunal to ensure that each party to a proceeding is given a "reasonable opportunity to present the party's case" and to "make submissions and adduce evidence" before the Tribunal can lawfully make its decision and finally dispose of the review. This opportunity is afforded to a party by the Tribunal at various stages in the proceeding, including many prior to the Tribunal sending an invitation to the applicant to attend a hearing.
3. On the other hand, s 106(1) of the ART Act sets out circumstances in which the Tribunal may proceed to make its decision without holding a hearing, if any of the preconditions set out in ss 106(2) to (5) are met, thereby ending any further opportunity for the applicant to present their case or make submissions or adduce further evidence under s 55(1).
4. Given that s 106(1) of the ART Act explicitly gives the Tribunal power to proceed to take the relevant action, that is to make its decision without holding a hearing if certain preconditions are met, then I find on a proper construction of ss 106(1) and 55(1), there is a legislative intention to exclude the operation of s 55(1), such that s 55(1) no longer imposes procedural fairness obligations on the Tribunal in a hearing context. This construction is supported by the principle of statutory construction known as expressum facit cessare tacitum, meaning "what is expressed makes what is implied silent". D C Pearce, Statutory Interpretation in Australia (LexisNexis, 10th edition, 2024) at [4.67] referred to the following High Court decisions to explain this principle of statutory construction:

Where a particular procedure is designated to achieve something, other procedures are thereby excluded. In Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7, Gavan, Duffy CJ and Dixon J said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

Mason J stated the principle in similar terms in Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 at 678; 24 ALR 513 at 518:

It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.

1. As said, s 106(1) of the ART Act prescribes the mode in which the Tribunal has power to make its decision on the documents without holding a hearing, and sets out the conditions and restrictions in ss 106(2) to (5) which must be observed. Thereby, it excludes the operation of s 55(1).
2. Each of the statutory provisions in ss 106(2) to (5) contemplates situations where the legislature had seen it appropriate that certain situations arise when the matter has reached the stage of when the decision can be made without holding a hearing as opposed to how the decision is to be made. The legislative intention is that such a point is reached when either:

(a) both parties consent; or

(b) a decision is to be made in the applicant's favour; or

(c) where there is a non-participating party and one party makes a request that a decision be made without holding a hearing; or

(d) a party fails to comply with the ART Act or orders of the Tribunal; or

(e) a party fails to appear before the Tribunal.

1. Each of the statutory provisions in ss 106(2) to (5) also requires the Tribunal, acting within the bounds of reasonableness and on a correct understanding of the law, to find that the issues for determination can be "adequately determined in the absence of the parties". This is dealt with later in this judgment at [78] to [100].
2. The consequences of empowering the Tribunal to take the final step of making its decision is that any common law obligation to accord procedural fairness implied are excluded. This is so because s 106(1) expressly states that, once the preconditions are met, the Tribunal need do no more and may take the final step and make its decision. Accordingly, procedural fairness does not then demand that the applicant be told that the Tribunal intends to determine the matter on a different dispositive issue to the delegate. I also find that the preconditions in s 106(3) do not impose procedural fairness obligations to draw to the applicant's attention that the Tribunal intended to determine the matter on a different dispositive issue, for the reasons set out from [61] of this judgment.
3. Thus, the content of the rules of procedural fairness is directly affected by s 106(1) of the ART Act (once any of subsections 106(2) to (5) apply) and the Tribunal is then legislatively permitted to proceed to make its decision on the documents, with no limitation on the Tribunal to decide. As said by Hayne J in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [168] (Aala), "the ultimate question being whether the obligation [to accord procedural fairness] asserted is compatible with the term of the relevant legislation...the obligation to accord procedural fairness is an obligation affecting how the decision-maker is to go about the task of decision-making. It is a limitation to the power to decide" (emphasis added). Gaudron and Gummow JJ in Aala at [60] said "it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case".
4. It is because of this very point that SZBEL is not applicable in answering the question under consideration, because as the High Court in SZBEL noted at [29], in that case, no submission was made that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Migration Act. Rather, the High Court was considering what a fair procedure would be in circumstances where there was an express legislative provision (s 425(1) of the Migration Act (as then in force)) which required the applicant to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" and where the opportunity to attend a hearing was accepted by the applicant.

1. The question then arises, what is the proper construction of s 106(3) of the ART Act and do the conditions contained within that subsection impose a requirement that the applicant be informed of a different dispositive issue. Section 106(3) provides that three requirements must be met before it applies, being:

(a) First, that the only parties to the proceeding are the applicant and a non-participating party.

(b) Second, either the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding a hearing.

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

1. In migration matters, the first precondition is nearly always satisfied. With the second requirement, if the decision is wholly in favour of the applicant, then issues of informing the applicant about a dispositive issue on which they may be unsuccessful do not obviously arise.
2. The real question that arises is how to interpret the phrases "the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding" and "it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties". I turn to consider those two questions.

Section 106(3)(b)(ii) of the ART Act - applicant requests

1. The Tribunal may decide a case without a hearing if the applicant requests. The text of s 106(3)(b)(ii) of the ART Act makes it clear that the subsection requires a request by the applicant. The Macquarie Dictionary (9th ed, 2023) (Macquarie Dictionary) defines "request" as relevantly the act of asking for something to be given or done. Therefore, the ordinary meaning of "request" is looked at from the perspective of the act of the applicant asking that the Tribunal make a decision without holding a hearing. There is no other legislative requirement that specifies the applicant must do anything other than to signify a request or that there is a legislative intention that the request be an "informed" request. An applicant may have a myriad of reasons for not wishing to attend a hearing before the Tribunal, but the statutory provisions do not require the Tribunal to enquire as to those reasons. All that the condition stipulated in s 106(3)(b)(ii) prescribes is that the applicant has made such a request. This construction of the former s 106(3)(b)(ii) is consistent, despite the word "request" being used instead of "consent", with the construction of s 425(2)(b) of the Migration Act (now repealed), which provided that the applicant could consent to the AAT deciding the review without the applicant appearing before it.
2. In SZHLI v Minister for Immigration and Citizenship (2007) 162 FCR 562; [2007] FCA 1412 (SZHLI), Siopis J, in considering whether the applicant in that case (for the purposes of the former s 425(2)(b) of the Migration Act) consented to the Tribunal deciding the review without the applicant appearing before it, said at [21]:

Further, the Act does not prescribe nor qualify the means by which an applicant may consent to the Tribunal deciding the review in the absence of a hearing within the meaning of s 425(2)(b) of the Act. In particular, the Act does not prescribe a procedure by which the Tribunal is to inform an applicant of his or her rights in relation to a hearing, as a precondition to the applicant giving a "valid" consent within the meaning of s 425(2)(b).

1. As the Minister correctly pointed out, earlier attempts to import broader concepts of "informed" consent, for example that the relevant invitation be expressed in a language understandable by the applicant, were rejected: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12]; see also SZHLI at [20] to [24] which rejected the proposition that an appellant had not given "valid" consent for the matter to be determined without a hearing without a further explanation of her rights.
2. In LLR24, Johns J construed s 106(3)(b)(ii) of the ART Act as requiring a properly "informed" request by the applicant. His Honour found that because the applicant in that case had not been told that there was a new dispositive issue different to that decided by the delegate, therefore the applicant's request was not an "informed" request for the purposes of s 106(3)(b)(ii) (at [74] and [82] of LLR24). The requirement in LLR24 for an "informed" request introduces a significant requirement into s 106(3)(b)(ii), without a clear textual basis for requiring such detailed factual enquiries to be made by the Tribunal.
3. There is nothing in the text, context or purpose of the ART Act to require that the Tribunal must inform the applicant of a potential different dispositive issue before the request in s 106(3)(b)(ii) is valid. If there was such a requirement to enquire as to the basis of the request, one can see that undue burden would be cast on the Tribunal to make factual enquiries of the applicant as to the basis on which the request is being made. There is no support in the objectives articulated in s 9 of the ART Act to introduce such notions, which also require the Tribunal to resolve matters quickly and with as little formality and expense as a proper consideration of the matter permits. Further, except for the requirement in s 106(3)(c) being satisfied, as noted in the Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024 (Cth) at [708], if a matter could not proceed without a hearing when the applicant has requested, it would be a perverse outcome.
4. For completeness, I do not consider that the Tribunal's reference in its letter dated 10 March 2025, referred to in [16] of this judgment, that the applicant "should have regard" to the delegate's decision that set out the reasons for the decision, conveys that the Tribunal would only reconsider the delegate's decision and reasons to the extent that the applicant had been unsuccessful. This is an overreading of the content of the Tribunal's letter and the letter does not purport to limit the issues before the Tribunal.
5. I also note that in situations where a party has made a request, but it has been made through fraud or abuse of authority, that jurisdictional error may be found to vitiate the request on the basis that the request was provided through fraud: Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; (2016) 248 FCR 398 at [17]; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 at [44]. This is not the case here. Nevertheless, vitiation by fraud in this statutory context was properly recognised in 2010120 (Refugee) (Applicant BXFHJ) [2025] ARTA 550 at [34].
6. In conclusion, I find that there is nothing in the text, context or purpose of the ART Act, or for that matter in the Migration Act, which requires the applicant's request to the Tribunal to make its decision without holding a hearing to be an "informed" request. The applicant was warned in the notice of hearing invitation dated 10 March 2025 from the Tribunal that if he requested the Tribunal to make a decision without a hearing, and the Tribunal proceeded to make a decision because it considered the issues could be determined in the applicant's absence, this did not guarantee the applicant would receive a favourable decision (CB 126). Thus, in making the request the applicant accepted the possibility of the delegate's decision being affirmed.

Section 106(3)(c) of the ART Act - issues for determination in the proceeding can be adequately determined

1. I now turn to the proper construction of s 106(3)(c) of the ART Act, and the phrase "it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties".
2. Section 4 of the ART Act contains the definition of "proceeding", being relevantly in this case "an application for review of a reviewable decision". There is no definition of "issues" in the ART Act. The Macquarie Dictionary defines "issues" relevantly as "a point in question or dispute, as between contending parties in an action at law". The Oxford English Dictionary (2025) (Oxford Dictionary) defines "issues" relevantly as "a point of contention or significance". Further, the Macquarie Dictionary defines "determination" as relevantly "the act of coming to a decision", and the Oxford Dictionary defines "determination" as "a bringing to an end, a coming to an end; ending; termination".
3. However broadly "issues" be defined, its statutory meaning in this context is related to circumstances in which the Tribunal may reach its decision without a hearing. It is for that purpose that Parliament has inserted a requirement in s 106(3)(c) that it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined without holding a hearing. Therefore, the reference to "issues" in s 106(3)(c) is not concerned with issues to be put to an applicant in a procedural fairness sense. Further, s 106(3)(c) is not concerned with the Tribunal's evaluation process in identifying such issues as lack of detail or specificity in evidence. Rather, s 106(3)(c) is concerned with the Tribunal identifying the issues it has to address to decide the case and bring it to an end, in discharging its duty to reach the correct and preferable decision. In this case, the issues for determination were correctly decided at the level of whether the applicant met the refugee criterion or the complementary criterion. There may be incidents where a Tribunal insists an applicant attend a hearing because issues for determination cannot be adequately determined, however that is not the subject of this decision.
4. Contrary to what his Honour found in LLR24 at [87], I find that SZBEL is not relevant to the question as to what the proper construction of "issues for determination" means in the s 106(3)(c) context. In SZBEL at [34], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said:

Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the minister's delegate), but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons.

1. It can readily be seen that in SZBEL, the High Court was considering what issues meant in the phrase "issues arising in relation to the decision under review" in s 425(1) of the Migration Act (as then in force), which required the Tribunal to invite the applicant to a hearing to give evidence and present arguments. Thus, in the context of the former s 425(1), the issues needed to be identified for the applicant, and the applicant procedurally needed to be told what the issues were at the more particular level and if the Tribunal determined to consider a different dispositive issue to the delegate.
2. The words in s 106(3)(c) of the ART Act are different and speak of "it appears to the Tribunal that the issues for determination in the proceeding", which contemplate identifying the issues that the Tribunal needs to consider in the proceeding to lawfully conduct its review to reach the correct and preferable decision. Further, the context of the two provisions are quite different, with the former s 425(1) of the Migration Act sitting in the statutory scheme at the procedural level of inviting the applicant to a hearing to give and present evidence and submissions and how decisions are to be made, whilst s 106(3)(c) of the ART Act sits in the context of the provisions that deal with when the Tribunal can decide.

Adequately determined in the absence of the parties

1. Although the phrase "adequately determined in the absence of the parties" appears in numerous Acts, including s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (which provision was repealed on the enactment of the ART Act), s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 47 of the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas), the phrase has not been the subject of analysis of the proper construction of "adequately determined". In EIZ20 v Child Support Registrar [2023] FedCFamC2G 637, in considering s 34J of the AAT Act, Kirkton J at [59] found no legal error in the Tribunal deciding it could adequately determine the issues. However, his Honour did not descend into an analysis of the construction of the phrase.
2. The ordinary English dictionary meaning of "adequately" means "in a manner which is satisfactory or acceptable; to a sufficient or suitable extent" (Oxford Dictionary) and "equal to the requirement or occasion; fully sufficient, suitable, or fit" (Macquarie Dictionary). The ordinary English dictionary meaning of "determined" means "decided, settled, fixed; decided or resolved upon" (Oxford Dictionary).
3. In construing what "adequately determined in the absence of the parties" means in the ART Act, adequacy is a concept which takes meaning from its context. As said, the context of s 106(3)(c) is that it sits in that part of the ART Act under Division 8 that deals with deciding, that is the point in time at which the Tribunal is to make its decision in that review. Thus, the enquiry by the Tribunal as to the adequacy to determine the issues is made in the context of the Tribunal's exercise of power under s 106(1) to finally determine the legal rights of an individual at the Tribunal review stage.
4. Given this, it can readily be seen that the legislative intention is that the Tribunal assesses whether issues can be "adequately determined" based on the specific facts and circumstances of each case. Therefore, adequacy will depend on all the relevant circumstances of the application to review, which include: the Tribunal identifying what the issues are; the Tribunal identifying what material it has before it and whether the Tribunal has given the applicant sufficient opportunity to submit any further information. Those matters then need to be weighed up against the overarching duty of the Tribunal to review the administrative decision under review and pursue the statutory objective of being fair and just and ensuring that applications to the Tribunal are resolved with as little formality and expense as a proper consideration of the matter permits. The Tribunal must consider whether the issues can be resolved on the documents before it, so to conclude the review process and determine an individual's legal rights.
5. In the migration context, the structure of the provisions for the granting of visas involves either the satisfaction or non-satisfaction of the Tribunal that the applicant meets the visa criteria. Further, in the review process it is for the applicant in migration matters "to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of the relevant statutory requirements": DCR19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2021) 289 FCR 346; [2021] FCAFC 229 at [80] (per Bromwich, Anastassiou and Anderson JJ) citing Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (per Davies, Derrington and Colvin JJ). In relation to protection claims, s 5AAA of the Migration Act makes clear that it is the responsibility of the applicant to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim. The question of whether the Tribunal can adequately determine the issues is to be looked at through the lens that it is for the applicant to provide sufficient evidence to persuade the Tribunal to reach the requisite state of satisfaction. Given those matters, the Tribunal may well conclude reasonably that where the applicant has been given numerous opportunities to provide further evidence and has chosen not to, it can adequately determine the proceeding without holding a hearing.

Whether the Tribunal in this case lawfully exercised the power in s 106(1) of the ART Act

1. Before considering whether the Tribunal lawfully exercised the power in s 106(1) of the ART Act, it is of assistance to first set out the relevant legal principles which govern this Court's role in reviewing the Tribunal's finding that, for the purposes of s 106(3)(c) of the ART Act, it appears to the Tribunal the issues for determination can be adequately determined in the absence of the applicant.
2. In Plaintiff M70/2011 v Minister of Immigration & Citizenship [2011] HCA 32; (2011) 244 CLR 144, French CJ at [57] explained the scope of the term "jurisdictional fact" as follows:

The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be "a complex of elements". When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. ...

1. Further, as the Full Federal Court said more recently in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [21]:

The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131] and the cases cited at footnote 109.

1. Whether or not the preconditions specified in s 106(3) are met is a question of jurisdictional fact. As said in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 per Bell, Gageler and Keane JJ at [18], "the Tribunal must each in practice form a view in order to attempt to comply with the section but which [view] can be authoritatively determined only by a court (subject to appeal), including by the Federal Circuit Court on judicial review of a decision of the Tribunal".
2. In relation to the condition specified in s 106(3)(b)(ii), I find the applicant in this case by marking a "x" in the box stating that he requested the Tribunal to make a decision on the papers without holding a hearing, and signing the document, made a valid request for the purposes of s 106(3)(b)(ii).
3. I now consider whether the Tribunal in this case lawfully considered the precondition in s 106(3)(c) of the ART Act.
4. In this case, the Tribunal gave the following reasons when considering whether it could adequately determine the issues:

29. Section 106(3)(c) of the ART Act does not define 'adequately determined'.

1. It is for the Tribunal to decide if the issues in an application can be adequately determined. The Federal Circuit and Family Court has stated in an analogous situation that 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 to seek further information or hold a hearing.'
2. The Tribunal has also considered that s 5AAA of the Act states that it is the responsibility of an applicant to specify all particulars of their claims and to provide sufficient evidence to establish their claims. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims or to establish, or assist the applicant in establishing, their claims.
3. The Macquarie Dictionary gives the meaning of 'adequate' as 'equal to the requirement or occasion; fully sufficient, suitable or fit' and in a legal context as 'reasonably sufficient for starting legal action' in the sense of 'adequate grounds'.
4. The Tribunal does not consider that 'adequately determined' means a decision favourable to the applicant, because if it did, the provisions in s 106(3)(b)(i), which contemplate a decision being made wholly in favour of the applicant, would be superfluous. Thus, as described in the notice of hearing letter sent to the applicant, the Tribunal may find that there is sufficient information before it in order to adequately determine the issues in the application, yet still determine that there is insufficient evidence in order to substantiate the applicant's protection claims.
5. The Tribunal has before it and has taken into consideration the claims lodged in the applicant's original application and response to the Department's s 56 letter, as well as his application for review and response to the hearing notice. The claims presented are straightforward and raise no novel or complex questions of fact or law. Thus, the Tribunal is satisfied that the applicant's claims and the issues to be resolved can be adequately determined in the absence of the parties to the proceeding on the basis of the information before the Tribunal and that further information from the applicant is not required in order to make definitive findings based on this information.
6. The Tribunal is therefore satisfied that the requirements of s 106(3)(c) of the ART Act have been satisfied.
7. For the above reasons, it is open and reasonable for the Tribunal to make a decision on the papers pursuant to s 106(3) of the ART Act.

1. The Tribunal made the decision that it could adequately determine the issues in the proceeding, having identified the issues for determination as set out at [25] of this judgment as being whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Migration Act.

Did the Tribunal lawfully consider the precondition in s 106(3)(c) of the ART Act in the circumstances of this case

1. In the present case, on 27 April 2020, upon receiving the applicant's application for review of the delegate's decision to refuse the protection visa, as set out at [10] of this judgment, the Tribunal wrote to the applicant acknowledging the application and that the Tribunal had requested the Department to provide the Tribunal all the documents and files which were relevant. The Tribunal also expressly told the applicant the following:

(a) the Tribunal in conducting the review "must consider the case afresh and make a decision that is correct in law", and that the Tribunal had the power to overturn the decision of the delegate and to substitute another decision;

(b) the issues considered by the Tribunal was whether the applicant met the definition of a refugee or alternatively there was a real risk that he would suffer significant harm if removed from Australia;

(c) that the Tribunal may invite the applicant to appear to give oral evidence and present arguments, if "a decision cannot be made based solely on...the application and other documents submitted."; and

(d) to provide any other material that the applicant believed would support his application.

1. The applicant provided no further material. On 23 August 2024, the Tribunal notified the applicant that he may be able to access free legal help and provided details of the possible providers. On 10 March 2025, pursuant to the procedure set out in s 55(1) to invite the applicant to appear before it to make submissions and adduce evidence, the Tribunal invited the applicant to appear at a hearing and provided the document as set out at [17] of this judgment, which identified for the applicant the purpose of the hearing and what was to happen at a hearing. The letter also invited the applicant again to provide any documents he intended to rely on in support of his case to the Tribunal by 3 April 2025.
2. From the communication identified at [10] to [21] of this judgment, I find it was reasonable for the Tribunal to proceed on the basis that the applicant was on notice that the Tribunal would be deciding the issues afresh and that the Tribunal would be considering whether the applicant met the definition of a refugee or alternatively there was a real risk that he would suffer significant harm if removed from Australia. It was against that background that the applicant requested the Tribunal to proceed to make its decision without holding a hearing.
3. I find the Tribunal's reasons for finding under s 106(3)(c), that it appeared to it that the issues for determination in the proceeding could be adequately determined in the absence of the parties, were reached reasonably and on the material before the Tribunal for the following reasons:

(a) First, the Tribunal correctly identified the issues for determination, being whether the applicant satisfied the criteria for a protection visa in s 36(2)(a), (aa), (b) or (c) of the Migration Act.

(b) Second, the Tribunal considered that in protection claim matters, s 5AAA of the Migration Act states that it is the responsibility of the applicant to specify all particulars of their claims and to provide sufficient evidence to establish their claims.

(c) Third, the Tribunal could identify the protection claims made from the applicant's original application, and the applicant had been given opportunities to provide documents and submissions in support of its claims.

(d) Fourth, the Tribunal asked itself the correct question as to whether it could determine the issues adequately, in the sense that it was "equal to the requirement or occasion".

(e) Finally, the Tribunal decided the issues could be adequately determined on the information before it and the Tribunal could make findings.

1. I find on a fair reading of the Tribunal's reasons from [40] to [48] that after evaluating and weighing up the evidence, the Tribunal found that the applicant's claims lacked substantiating details or corroborating evidence, and therefore was not satisfied the applicant was a person in respect of whom Australia has protection obligations under either ss 36(2)(a) or (aa) of the Migration Act.
2. To the extent that the Minister said that the Tribunal, by stating that "it does not accept that the events claimed by the applicant occurred", had made credibility findings, I find it was equally reasonable for the Tribunal to have decided it could adequately determine such credibility concerns in the absence of the applicant. In support of this conclusion I note that the applicant was required, and the Tribunal had no obligation to assist the applicant to persuade the Tribunal to the requisite satisfaction that the claims had in fact occurred.
3. In a review of whether the applicant meets the criteria for a protection visa, the fact that the Tribunal may make credibility findings does not of itself mean that the issue cannot be adequately determined in the absence of the parties. I accept the Minister's submission that in relation to the Immigration Assessment Authority (IAA), courts have repeatedly emphasised the need for close regard to the circumstances of an individual case in determining whether the IAA could reasonably decline to seek new information from an applicant before making adverse findings as to their credibility: DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 at [37], [41] to [42] and [46] to [47] (Griffiths and Steward JJ) and ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [22] to [25] (Kiefel CJ, Bell, Gageler and Keane JJ). In doing so, the High Court has affirmed that "the [IAA] is not required to interview a referred applicant merely because credibility is in issue or merely because the [IAA] comes to a different view as to credibility than did the delegate". Those principles arise in a different statutory context, but it remains for present purposes that there is no general presumption or principle that credibility findings can only be made after a hearing or after seeking information from an applicant in respect of those foreshadowed findings.
4. Also, at [187] of Abebe, Gummow and Hayne JJ stated:

The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out.

1. Further, the fact that the Tribunal decided to determine the matter on a different dispositive issue to the delegate did not preclude it from proceeding in the manner it did pursuant to s 106(3)(c). This is because the Tribunal was legislatively obliged to consider the matter afresh, although I note s 53 of the ART Act gives the Tribunal power to limit the issues it considers. However, the Tribunal in this case did not utilise that power to control the scope of review. The Tribunal also had told the applicant in the letter dated 27 April 2020 referred to at [10] of this judgment that it had to consider the case afresh.
2. In light of the above, I find that the Tribunal, in considering the preconditions set out in s 106(3), had asked itself the correct question and acted reasonably in the sense of legally reasonably, and therefore has acted as authorised by s 106(1) to proceed to make its decision without holding a hearing.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

1. The Minister sought that the applicant pay the first respondent's costs fixed in the amount of $7,200. I find the costs in the sum of $7,200 to be fair and reasonable given the preparation by the Minister of the Court Book, attendances at the direction hearing and the substantive hearing and the preparation of the written submissions.

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