ELI20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 735

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

CRG16 v Minister for Home Affairs [2019] FCA 374

DAK16 v Minister for Immigration and Border Protection [2019] FCA 68

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".
2. The application is dismissed.
3. The applicants pay the first respondent's costs fixed in the amount of $6,800.

Note: The form of the order is subject to the entry in the Court's records.

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

1. This is an application for judicial review, made under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 1 September 2020. The Tribunal affirmed the decision of a delegate of the First Respondent refusing to grant the applicants a Protection (Class XA) visa (protection visa) under s 65 of the Act.

1. On 20 April 2015, the applicants, citizens of Nepal, first arrived in Australia on visitor visas that were in effect until 24 November 2015. The applicants departed Australia on 26 April 2015 and returned on 24 August 2015. The first applicant (Applicant) is the primary applicant. The second applicant is the Applicant's wife and applied as a dependent member of the family unit.
2. On 8 September 2015, the applicants applied for protection visas on the basis that they would be harmed by Nepalese authorities by reason of the Applicant's political opinion.
3. On 1 April 2016, a delegate of the first respondent refused to grant the applicants protection visas on the basis that the delegate was not satisfied the applicants faced a real chance of persecution in Nepal due to the Applicant's views.
4. On 20 April 2016, the applicants lodged an application to the Tribunal for review of the delegate's decision.
5. On 29 May 2019, the applicants appeared before the Tribunal to give evidence and present arguments.
6. On 1 September 2020, the Tribunal affirmed the delegate's decision not to grant the applicants protection visas.

1. The Tribunal considered the country information and documents before it, including the Applicant's written statement.
2. The Tribunal at [13] identified the issues before it the following way:

The issues in this case are the credibility of the first named applicant, whether he left Nepal for the reason he claims and whether there is a real chance that he will be subjected to serious harm or suffer significant harm in Nepal for reasons he has claimed including his political opinion and perceived wealth.

1. Firstly, the Tribunal extensively considered the evidence before it, including country information, and the applicant's written claims contained in the applicants' protection visa application and the Applicant's written statement.
2. Then, the Tribunal set outs findings and reasons. Within its consideration of its reasons the Tribunal addressed the Applicant's credibility by reference to the Applicant's written claims in the applicants' protection visa, his written statement and the oral evidence that both he and the second applicant gave during the Tribunal hearing on 29 May 2019.
3. The Tribunal found that the first applicant was not a witness of truth and lacked credibility. This finding was central to its conclusion to reject the applicant's claims. In reaching this conclusion, the Tribunal stated six reasons at [50]-[55] as to why the Applicant was not credible. These reasons are discussed in detail below under consideration of ground 2.
4. The Tribunal then considered the Applicant's past activities and past harm. The Tribunal said it was not inherently implausible that the applicant was a monarchist who supported the reinstatement of the monarchy and the Hindu state in Nepal and hence that he was not a supporter of the Maoists. However, at [59] the Tribunal found as follows:

...having found that the first named applicant was not a truthful witness and lacks credibility, and given the issues with his claims about events in the last three months he spent in Nepal I do not accept those claims. Specifically, I do not accept that the first named applicant engaged in social work, went out into to villages and communities and spoke out in support of the monarchy and against Maoists. I do not accept that the first named applicant gave a speech critical of Maoists at a school on 13 August 2015 and that two people claiming to be from the Maoist party demanded money from him and threatened to kidnap and kill him if he did to pay. I do not accept that the first named applicant was subjected to death threats in Nepal or that he left Nepal for the reasons he claimed in his protection visa application, written statement or at the hearing. I have concluded that those claims were invented to provide a basis on which he could apply for a protection visa. I thus find that the first named applicant did not come to the adverse attention of Maoists, anti-monarchists, Maoist criminals, persons claiming to be Maoists or criminals during the last three months he spent in Nepal.

1. The Tribunal next considered future conduct and risk of harm in the future. After referring in some detail to the discussion the Tribunal had with the Applicant regarding country information on the current security and political environment in Nepal, at [64] that Tribunal set out its finding on the risk of future harm to the Applicant if he were to return to Nepal. The relevant parts of [64] are as follows:

Nepal is a peaceful, stable and secure country in which a range of political opinions including those supportive of the monarchy and a Hindu state and critical of Maoists can generally be expressed without an individual facing serious harm or suffering significant harm for those opinions. I find that this is particularly the case for an individual such as the first named applicant who does not engage in public activity to express their political opinions.

...

I therefore find on the basis of the evidence before me and the findings I have made, considered individually and cumulatively, that there is not a real chance the first named applicant will be killed, kidnapped for ransom, extorted for donations or any other purpose, threatened, or subjected to any other form of serious harm or suffer significant harm for reasons of his actual or imputed political, his ancestry, his former employment with the SPF, and/or his actual or presumed wealth by Maoists, actual or alleged members of a Maoist party, criminals, antimonarchists or anyone else if he returns to Nepal.

1. The Tribunal, having found it was not satisfied the Applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act, went on to consider and determine that it was also not satisfied the Applicant was a person to whom Australia owed complementary protection obligations under s 36(2)(aa) of the Act.
2. Finally, the Tribunal noted that the second named applicant had made no protection claims on her own account and that as a consequence of the Applicant failing to satisfy either the refugee criterion or the complementary protection criterion, it followed that the Tribunal was not satisfied the second named applicant satisfied either s 36(2)(b) or (c) of the Act.
3. The Tribunal affirmed the decision not to grant the applicants protection visas.

Judicial review application and procedural orders

1. On 6 October 2020, the applicants filed an application in this Court seeking judicial review of the Tribunal's decision dated 1 September 2020. The application contains five grounds of review. They are as follows:
   1. I am not satisfied with the Tribunal Member's decision in my matter based on the fact that the decision involved an error of law.
   2. I argue that the Tribunal Member's determination is based on illogical or irrational findings or inferences of fact towards the nature of my fear of harm on return to Nepal and it failed to address all the relevant issues I raised.
   3. I argue that the Tribunal Member did not take into account of all aspects of my claims in terms of my fear on return to Nepal and committed a jurisdictional error in that there was no evidence to support certain factual findings made by the Tribunal Member in my matter.
   4. I argue that the Tribunal Member thought, erroneously that it determined the issue solely by making a serious of findings as to specific aspects of my circumstances without a broader consideration of my position as an anti-Maoist. Thus, the Tribunal Member failed to complete its statutory task in respect of the issue of a particular social group.
   5. I argue that the Tribunal's decision was made negligently which caused me not getting natural justice or procedural fairness.
2. On 19 March 2025, a Registrar of this Court made an Order for both the applicants and first respondent to file an amended application (if applicable) in respect to the hearing, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
3. On 9 April 2025, the proceedings were docketed to me and set down for hearing before me on 12 May 2025.

1. At the hearing on 12 May 2025 before this Court, the Applicant appeared unrepresented, with the assistance of a Nepalese interpreter. Mr Julian Pinder of Mills Oakley appeared on behalf of the first respondent.
2. Prior to the hearing commencing, I ensured that the applicant was in possession of a copy of the Court Book and the first respondent's outline of submissions. I also ensured that the interpreter had interpreted the first respondent's outline of submissions for the applicant prior to the hearing commencing.
3. At the commencement of the hearing, I explained to the parties that the Court's role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed the Court Book, which contained the Tribunal's decision and other documents that were before the Tribunal, and the applicant's affidavit in support of her application to be admitted as evidence.
4. I then invited the parties to make final oral submissions. I took the Applicant to each of the 5 grounds of review in his application and asked him if he wanted to make any oral submissions about them. I also asked the Applicant to tell me what he considered was wrong with the Tribunal's decision. The Applicant made brief oral submissions on the first ground, but said he had nothing to add on grounds 2, 3, 4 or 5. After going through the grounds with the Applicant I asked him if there was anything further that he wanted to say about his application. He stated his life would be at risk if he went back to Nepal. He then told me that he had nothing further to add.
5. Mr Pinder made some short oral submissions in essence submitting he relied upon the first respondent's written submissions. After Mr Pinder made his submissions, I asked the Applicant if he wanted to say anything in reply. He re-stated that his life would be at risk in Nepal, and again said he had nothing further to add.

1. The Court can only grant relief if it is established that the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163. To constitute jurisdictional error, the error must be material, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [7].
2. In undertaking its role in judicial review applications, it is not the role of the Court to review the merits or factual findings of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.

1. Ground 1 does not plead an arguable particularised ground of jurisdictional error. It merely asserts the general claim that the Tribunal committed an error of law which cannot succeed without particulars. When I asked at the hearing what he meant by this ground the Applicant said he was not satisfied with the Tribunal decision.
2. The Applicant was unable to articulate this ground any further during the course of the hearing. Neither the ground as written or the matters raised orally by the Applicant at the hearing on this ground identify any arguable jurisdictional error committed by the Tribunal. The failure to particularise a ground of review is a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], per Gilmour J, and in this Court, AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715 at [26].
3. Ground 1 is dismissed.

1. In ground 2, the Applicant alleges two complaints against the Tribunal. First, it alleges the decision "was based on illogical or irrational findings or inferences of fact towards the nature of my fear of harm on return to Nepal". Second, it alleges the Tribunal "failed to address all the relevant issues [the Applicant] raised".

1. I assume from the first complaint contained in ground 2, the Applicant is complaining about the credibility finding that was made about the Applicant by the Tribunal at [56], and the findings based on independent country information about Nepal at [64].
2. I will deal with the first complaint contained in ground 2 on this basis.
3. The principles applicable to judicial review of adverse credibility findings are well-established, and have been examined in a number of decisions of the Full Court of the Federal Court: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496, [36]-[38]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175, [30]; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83, [41]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218, [50]-[58]; ASB17 v Minister for Home Affairs [2019] FCAFC 38, [39]-[45].
4. Recently, in CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97, Needham J set out in detail the applicable legal principles to judicial review of adverse credibility findings as follows:

[32] Adverse credibility findings are amenable to judicial review where the findings can be shown to be legally unreasonable, such as by being based on illogical or irrational findings or inferences of fact (BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [50] per Yates, Wheelahan and O'Bryan JJ).

[33] In addition, credibility findings must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made (EVI19 at [36] per Stewart J, citing SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11] per Allsop CJ).

[34] The principles guiding judicial review of adverse credibility findings were outlined in BQQ15 at [51] as follows:

(a) Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae.

(b) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).

(c) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review: SZMDS at [96]. Even emphatic disagreement with the Tribunal's reasoning is not sufficient to make out illogicality: SZMDS at [124].

[35] When identifying an inconsistency to ground a finding of adverse credibility, the decision-maker is to consider matters including "the significance of the inconsistency having regard to the person's case as a whole and whether the inconsistency is on a matter which is central to the person's case or is at its periphery and involves an objectively minor matter of fact" (AVQ15 v Minister for Immigration (2018) 266 FCR 83; [2018] FCAFC 133 at [28] (Kenny, Griffiths and Mortimer JJ)).

[36] The appellant referred to SAAK v Minister for Immigration (2002) 121 FCR 185; [2002] FCA 367 at [21] (North, Goldberg and Hely JJ) where the Court observed that "... there is a need for the Tribunal to exercise care in relying on an inconsistency between the first interview and later evidence as the foundation for an adverse credit finding..." due to the lived experiences of asylum seekers who have good reason to distrust authority. The appellant also referred to W375/01A v Minister for Immigration [2002] FCA 379 where Lee, Carr and Finkelstein JJ noted at [15] the "invidious" position of asylum seekers who are required to provide multiple versions of the basis for their claim and may not speak English.

[37] A finding of "implausibility", which may also base an adverse credibility finding, was discussed in BQQ15 at [56]:

A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by "implausible".

(Emphasis in original)

1. At [50]-[55], the Tribunal set out six reasons why it found the Applicant was not a witness of truth. In summary, the Tribunal found at [50]-[55] the Applicant:

(a) gave oral evidence at the hearing which appeared to be rehearsed and conveyed the impression that this was an account he had learnt, rather than one based on personal experience [50];

(b) failed to reference the key incident of harm he experienced in Nepal in his protection visa application [51];

(c) provided information that was inconsistent with independent country information in relation to the security situation in Nepal [52];

(d) failed to provide a reasonable explanation for not previously mentioning his social work and speech before the Tribunal hearing [53];

(e) had to be reminded about key details of his written claims at the hearing, including who had threatened him and would harm him on his return to Nepal [54]; and

(f) sought to change his evidence when confronted with information which undermined his claims [55].

1. All six reasons for the credibility finding concerned significant aspects of the evidence given by the Applicant in support of his claim. They were rationally made and based upon facts having logical and probative weight. For example, in relation to the second reason, at [51], the Tribunal referred to the Applicant having forgotten to include a significant incident of harm in his protection visa application. The incident occurred in Nepal, and was the catalyst for him leaving Nepal to come to Australia, according to the Applicant. In that incident, which he gave oral evidence about to the Tribunal, the Applicant alleged Maoists threatened him with death by "wielding a knife and a gun". When asked about why he had not mention this in his protection visa application, the Applicant first said he may have forgotten and have made a mistake, and then later said he did not need to write about the incident in detail and if required could provide it verbally.
2. The Tribunal also referred to another instance, the sixth reason, where the Applicant changed his evidence [55]. Initially he said to the Tribunal, Nepal lacked peace and security in 2015 generally, caused by the Maoists. He later recharacterised his evidence when confronted by country information which showed a significant improvement in Nepal's security since the civil war, stating the local villages were unsafe for people like the applicant who had spent years abroad and were presumed to have a large amount of assets.
3. I consider that it was open to the Tribunal on facts such as this to make the credibility finding which it ultimately made at [56]. A review of paragraphs [50]-[55] reveal that none of the facts outlined as supporting the adverse credibility finding rested on false premises, or were based on objectively minor matters of fact. Nor did they otherwise lack an intelligible justification. Further, there is no basis for concluding that the Tribunal's adverse credibility finding was legally unreasonable because it was based on illogical or irrational findings or inferences of fact. As seen above, the adverse credibility finding at [56] was rationally made, based upon six reasons which each had a logical and rational evidentiary basis: cf. CQO23.
4. To the extent that ground 2 is a challenge to the Tribunal's adverse credibility finding, I am satisfied no jurisdictional error has been established.
5. As to the complaint about the findings relating to the independent country information, at [60]-[63] the Tribunal details its analysis and discussion at the hearing which the Tribunal had with the Applicant about the independent country information on Nepal. This included information regarding: (i) the current security and political environment in Nepal, (ii) extortion of businesses that occur in Nepal, and (iii) the significant number of Nepalis who worked abroad and send remittances back home.
6. After considering this evidence, the Tribunal made findings at [64] including that:

(a) based on of the country information Nepal was a peaceful, stable and secure country in which a range of political opinions including those supportive of the monarchy and a Hindu state and critical of Maoists can generally be expressed without an individual facing serious harm or suffering significant harm for those opinions;

(b) the country information did not indicate that there is a real chance that the first named applicant will be caught up in a bomb blast or other untargeted form of serious harm or significant harm as an ordinary civilian member of the population;

(c) there is no credible independent evidence that being a descendent of the monarchy gives rise to a real chance of serious harm or significant harm; and

(d) the independent country information indicated that businesspeople are at risk of extortion generally, but did not indicate that there was a real chance that the applicant would be extorted or be the victim of any crime, serious harm or significant harm because he was a retired SPF officer or his presumed wealth as a retired SPF officer.

1. Based on these findings the Tribunal concluded in [64] that there was not a real chance the Applicant would be killed, kidnapped for ransom, extorted for donations or any other purpose, threatened, or subjected to any other form of serious harm or suffer significant harm for reasons of his actual or imputed political, his ancestry, his former employment with the SPF, and/or his actual or presumed wealth by Maoists, actual or alleged members of a Maoist party, criminals, antimonarchists or anyone else if he returned to Nepal.
2. The findings in [64], based on the country information in [60]-[63] were open to the Tribunal. The Applicant has not articulated how the findings in [64] were irrational or illogical. I consider that there was nothing irrational or illogical or legally unreasonable about the findings of fact made in [64] based on the country information, which was before the Tribunal in this matter, as detailed in [60]-[63].
3. For completeness, it is well established that the choice of country information, the weight afforded to country information and any consideration regarding the accuracy of country information is a matter for the decision-maker: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]- [13]; DAK16 v Minister for Immigration and Border Protection [2019] FCA 68 at [27] and CRG16 v Minister for Home Affairs [2019] FCA 374 at [56]. The choice and interpretation of country information is also a factual matter for the Tribunal: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.

1. As to the second complaint in ground 2, the Applicant does not identify in his application what relevant issues the Tribunal allegedly failed to consider. He was also not able to articulate what those issues were at the hearing before me on 12 May 2025. As the Applicant is not able to particularise this complaint, for the same reasons outlined in my decision on ground 1 above, the second complaint in ground 2 is rejected.
2. Ground 2 does not establish any material jurisdictional error.

1. In this ground the Applicant alleges the Tribunal "did not take into account of all aspects of my claims in terms of my fear on return to Nepal" and also alleges that "there was no evidence to support certain factual findings made by the Tribunal Member".
2. The Applicant does not particularise what aspects of his claims in terms of his fear of return to Nepal which the Tribunal failed to consider. The Applicant was also unable to articulate at the hearing in this Court on 12 May 2025 what they were. Likewise, the Applicant has not particularised his "no evidence" claim either in his application filed in this Court, or during the hearing in this Court.
3. As detailed above in my consideration of ground 2, in summary the Tribunal made its decision based on the credibility finding it made against the Applicant, and on conclusions reached on country information regarding the situation in Nepal. Those findings were made after extensive and comprehensive consideration of the Applicant's evidence (in the case of the credibility finding) and country information. As I found above, in rejecting the Applicant's claims, the Tribunal provided detailed reasons, which were logical and rational.
4. Ground 3 does not establish the Tribunal committed jurisdictional error.

1. Under ground 4, the Applicant alleges the Tribunal committed jurisdictional error by considering specific aspects of the Applicant's claims, but failing to consider the Applicant's "broad position as an anti-Maoist".
2. The first respondent submits that, contrary to the Applicant's assertion, the Tribunal considered the Applicant's 'broader position' as an anti-Maoist (for instance, see: [58], [61], [64]). I accept this submission. For example, at [64], set out above, the Tribunal found based on country information, that, a range of political opinions including those supportive of the monarchy and a Hindu state and critical of Maoists can generally be expressed without an individual facing serious harm or suffering significant harm for those opinions. The Tribunal has plainly considered the applicant's claim as an "anti-Maoist".
3. I also accept the first respondent's alternative submission, namely, that the Tribunal was not required to consider whether the Applicant was a member of an activist "anti-Maoist" group or "social work" group. This is because the Tribunal rejected the factual premise behind the Applicant's claimed anti-Maoist activism. At [60] the Tribunal did not accept that the Applicant actually participated in social work speaking about his political views, and found that he would not engage in these activities if he returned to Nepal.
4. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 (WAEE), the Full Court set out the caution that must be observed before drawing an inference that a Tribunal has failed to address a particular issue or matter at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive, and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. I accept the first respondent's submission, based on WAEE, that as the Tribunal made broad findings rejecting the factual premise behind the Applicant's claimed anti-Maoist activism (at [60]), those broad findings subsumed the need for findings of greater specificity in relation to the Applicant's membership in particular anti-Maoist social groups.
2. Ground 4 does not establish the Tribunal committed material jurisdictional error.

1. In ground 5 the Applicant makes an unparticularised assertion of jurisdictional error based on a denial of natural justice or procedural fairness. When I asked at the hearing what he meant by this ground the Applicant said he had nothing to add to what was in the application.
2. The Applicant appeared before the Tribunal and gave evidence. His wife, the second named applicant also appeared and gave evidence for the Applicant at the Tribunal hearing. The Applicant was unable to articulate this ground any further during the course of the hearing. For the same reasons given in respect of ground 1 above (and the based on the authorities cited therein) the failure to particularise this ground of review is a sufficient basis to dismiss it.
3. Ground 5 is dismissed.

1. As a model litigant, the first respondent has quite properly drawn to my attention the existence of non-disclosure certificate in the Department file relating to the Applicant's protection visa application, relating to a number of documents that were before the Tribunal, that were not disclosed to the Applicant.
2. The first respondent noted the Tribunal found (at [11]) the non-disclosure certificate was not valid, but also found that the documents that were covered by the certificate were not relevant to the review. The first respondent accepts that the Tribunal did not disclose the existence of the non-disclosure certificate to the Applicant, and concedes that procedural fairness required the Tribunal to disclose the existence of the non-disclosure certificate to the Applicant, even in circumstances where it was invalid: MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081; Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [27] per Bell, Gageler and Keane JJ
3. At the hearing before me on 12 May 2025, the Applicant choose not to make any submissions about the non-disclosure certificate when I asked if he wanted to make oral submissions in reply on the issue.
4. The first respondent submitted that the breach of procedural fairness would only be a material jurisdictional error if the breach gave rise to 'practical injustice'; that is, it resulted in a denial of an opportunity to make submissions where that denial was 'material' to the Tribunal's decision: SZMTA at [38] per Bell, Gageler and Keane JJ.
5. The first respondent submitted based on an examination of each individual document covered by the non-disclosure certificate (contained in a supplementary Court Book admitted in evidence as exhibit R2) the Tribunal was correct to find that none the documents the subject of the certificate were relevant to its review. I have reviewed each of the documents in exhibit R2. I agree with the first respondent's submission, none of the documents in exhibit R2 were relevant to the Tribunal's review.
6. It follows from that conclusion that the Tribunal's breach of procedural fairness could not realistically have had any possible effect on the outcome of the review: SZMTA at [49]. I therefore agree with the first respondent's submission that in those circumstances the Tribunal did not commit jurisdictional error in relation to the non-disclosure certificate.
7. For the reasons outlined above, the applicant has not established that the Tribunal's decision is vitiated by jurisdictional error. Nor have I discerned any jurisdictional error from its own review of the decision.
8. The amended application is dismissed.

1. The first respondent has sought an order that the applicant pay the first respondent's costs in the amount of $6,800. The amount sought is fair and reasonable given the nature of these types of matters. I will make an order for the first respondent's costs in this amount.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.