ETV24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1149

Things to do before the hearing

Please provide all documents you intend to rely on to support your case by 6 May 2024. 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. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.

1. On 6 May 2024, the Tribunal sent a text message to the applicant reminding him of the Tribunal hearing date. That message relevantly stated as follows (CB 61):

Reminder - Your AAT hearing is on 13/05/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

1. On 8 May 2024, the applicant sent a letter to the Tribunal (by email sent from the second nominated email address) in which the applicant requested that the Tribunal make a decision based on the materials before it (CB 58-60). Relevantly, the applicant's letter stated as follows (CB 59-60):

I am writing to you regarding my case with the Administrative Appeals Tribunal, referenced above, scheduled for a hearing at 9:30 AM on 13 May 2024.

Due to previously made commitments related to personal matters, I am unable to attend the hearing scheduled for the mentioned date and time. Therefore, I kindly request the Tribunal to consider making a decision based on the documents and information previously submitted in relation to my case.

I trust that the extensive documentation and correspondences submitted to date provide a comprehensive basis for the Tribunal's decision-making process in my absence. Please confirm that the Tribunal will proceed in this manner and that my non-attendance will not adversely affect the consideration of my case.

I appreciate the Tribunal's understanding and consideration of my request. Please do not hesitate to contact me directly if further information is required.

Thank you for your attention to this matter.

1. On 5 June 2024, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 64-73).
2. On 8 July 2024, the applicant applied to this Court for judicial review of the Tribunal's decision.

1. The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to detail the Tribunal's decision in some detail.
2. The Tribunal's decision is 10 pages long and spans 45 paragraphs (CB 64-73). The final three pages contain extracts of relevant legislative provisions (CB 71-73).
3. The Tribunal began by explaining that the applicant, who claimed to be a citizen of Malaysia, had applied for the visa on 24 July 2018 and was denied that visa by a delegate of the Minister on 11 September 2018. The Tribunal confirmed that the applicant had been invited to attend a hearing before it but declined the invitation and asked the Tribunal to "deal with the decision on the papers" (at [1]-[3]).
4. The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions detailed in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also explained that, in assessing the applicant's protection claims and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes (at [4]-[9]).
5. The Tribunal then summarised the information provided by the applicant to the Department (noting, in particular, that the applicant was not invited to an interview with the Department and that he had not provided any additional information to the Department - apart from the claims included in his visa application). The Tribunal summarised those claims as follows (at [10]-[11]):

He said that he left Malaysia as he owed too much money to a loan shark. He said that they have beaten him and tortured him to return the money. He said he could not afford to pay them. He said that they had also disturbed his family. He said that he had no choice but to leave Malaysia for his personal safety as well as the safety of his family. He came to Australia as he was searching for a place to get on with his life.

He said that he was threatened not to seek help as if he did the consequences would be more serious and that he was threatened not to move as the consequences would be more serious and could affect his family members as well.

1. The Tribunal confirmed that, on 10 April 2024, it had invited the applicant to appear at a hearing before it (on 13 May 2024), however, on 9 May 2024, the applicant had advised the Tribunal that he did not wish to attend that hearing and instead consented to the Tribunal deciding the matter "on the papers". Relevantly, the Tribunal reproduced part of the applicant's correspondence as follows (at [12]-[13]):

Due to previously made commitments related to personal matters, I am unable to attend the hearing scheduled for the mentioned date and time. Therefore, I kindly request the Tribunal to consider making a decision based on the documents and information previously submitted in relation to my case.

1. The Tribunal then considered the applicant's country of nationality and found that the applicant was a Malaysian citizen and confirmed it would assess the applicant's claims against Malaysia accordingly. The Tribunal also found that the applicant had no right to reside in any other country and, as such, s 36(3) of the Act did not apply. The Tribunal then outlined the applicant's (limited) evidence provided in relation to his personal background and confirmed its acceptance of that evidence (at [14]-[20] & [27]).
2. The Tribunal then considered the applicant's protection claims (as outlined in his visa application) and noted that:

(a) the applicant claimed that he left Malaysia because of threats to his life from loan sharks, however, no further information was provided to the Tribunal, including as to the severity of the claimed threats and whether they were ongoing (at [21]);

(b) the applicant claimed that the loan sharks hit and hurt him but did not specify the nature of the threats or injuries he sustained (at [22]);

(c) the applicant did not give any details regarding the actual debts (including the name of the loan sharks, the reason he borrowed money, the amount owed or the date the money was borrowed) (at [23]);

(d) there was no evidence before the Tribunal regarding whether the applicant had any loan outstanding to any loan sharks (at [24]);

(e) in response to the question of why he did not seek help from authorities, the applicant stated that the "authorities could not protect him and his family all the time for the rest of their lives" (at [25]); and

(f) the applicant claimed he could not relocate within Malaysia as he was threatened by the loan sharks about the consequences of moving (including that they could also affect his family members) (at [26]).

1. The Tribunal noted that the applicant had not filed any documentary evidence with the Department or Tribunal in support of his protection claims and that he had declined to attend the Tribunal hearing. The Tribunal found that the applicant's claims were "made in the most general terms", that it was not satisfied as to the factual matters underpinning the claims and that, on the limited evidence before it, the applicant would not face any harm for reasons of not meeting debts owed to money lenders if returned to Malaysia. The Tribunal also did not accept that the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion as required by s 5J(1)(a) of the Act. For those reasons, the Tribunal found that the applicant did not satisfy s 36(2)(a) of the Act (at [28]-[34] & [41]-[42]).
2. Having concluded that the applicant did not meet the refugee criterion set out in s 36(2)(a) of the Act, the Tribunal then considered the complementary protection criterion set out in s 36(2)(aa) of the Act and explained that the threshold for the real risk element in s 36(2)(aa) of the Act was the same as that for the real chance test in s 36(2)(a) of the Act. The Tribunal had regard to the exhaustive definition of significant harm (as set out in s 36(2A) of the Act) (at [35]-[38]) and noted that the applicant had not provided information in relation to:

(a) the nature of the threats that he had received before leaving Malaysia;

(b) the reasons he thought his life would be in danger if he returned to Malaysia;

(c) the threats by the loan shark and the severity of the alleged assault;

(d) why he still maintained that he feared the loan sharks as the allegations made by the applicant related to events prior to 2018 (and the applicant had, at that point, lived in Australia for six years); or

(e) his claim that the authorities could not help him or the need for them to do so for the remainder of his life (at [39]).

1. On the limited evidence before it, the Tribunal was not satisfied that the applicant feared harm from the loan sharks and the Tribunal did not accept any of his claims that flowed from that proposition. The Tribunal ultimately found that there was also no real risk of significant harm to the applicant and, as such, the applicant did not meet s 36(2)(aa) of the Act (at [40]-[41] & [43]).
2. The Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (at [45]).

1. The application for judicial review (filed by the applicant on 8 July 2024) contained six "grounds of review" as follows (without alteration):
   1. The second respondent erred in its interpretation of the statutory requirement under s.36(2)(a) of the Migration Act 1958 (Cth) by failing to adequately consider the applicant's fear of persecution in the context of race, religion, nationality, membership of a particular social group, or political opinion.
   2. The second respondent incorrectly applied the legal test for "well-founded fear of persecution" by not giving proper weight to the applicant's subjective fear and failing to consider the cumulative impact of all claims presented by the applicant.
   3. The second respondent failed to apply the correct standard of proof by not sufficiently considering whether there is a "real chance" of persecution upon the applicant's return to Malaysia.
   4. The second respondent breached procedural fairness by not providing the applicant an adequate opportunity to address concerns regarding the credibility and sufficiency of the evidence presented. Failed to consider the applicant's request for a decision based on the papers adequately, as the applicant did not have legal representation or the opportunity to understand the implications fully. The second respondent failed to assess by not considering all relevant evidence provided by the applicant, specifically, the socio-political context in Malaysia regarding the applicant's fear of harm. Evidence supporting the applicant's claims of inability to receive protection from Malaysian authorities.
   5. The second respondent failed to seek further information or clarification on critical aspects of the applicant's claims, leading to a decision based on an incomplete understanding of the facts.
   6. The second respondent misapplied the complementary protection criteria under s.36(2)(aa) by failing to properly assess whether the applicant would face "significant harm" as defined in s.36(2A) upon return to Malaysia.
2. The applicant also filed an affidavit in support of that judicial review application (sworn by him on 5 July 2024 and filed on 8 July 2024). That affidavit annexed a copy of the Tribunal's decision and associated notification letter.
3. On 30 August 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, written submissions and any additional evidence. Unfortunately, no additional materials were filed by or on behalf of the applicant.
4. The applicant appeared before this Court (in person) on 15 May 2025. He did so without legal representation. He was assisted at that hearing by an interpreter in the Mandarin language. The Court confirmed with the applicant that he had received copies of the CB and the Minister's written submissions. Ms Bernadette Rayment from Sparke Helmore appeared at the hearing (by video link) on behalf of the Minister.
5. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 8 July 2024 (the affidavit being taken as read and in evidence at the hearing of this matter), a CB numbering 73 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 2 May 2025.
6. Noting that the applicant was not represented (and noting the remarks of the Federal Court of Australia in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline (orally) what he thought the Tribunal "did wrong" in relation to his matter.
7. The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal's decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]- [208];

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];

(f) where the decision-maker shows actual or apprehended bias_: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship_ [2013] FCAFC 80 at [2]; and

(g) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].

1. The Court also explained that it cannot undertake a merits review of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he seeks, even if the Court disagrees with the Tribunal's ultimate findings. Instead, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
2. Against this background, the applicant told the Court that he was "not sure what mistake" the Tribunal had made and that, when he had applied for the visa, he was not really sure of the procedure or what was required. The applicant also said that "a friend" who asked him to work for him told him he would help him with his visa application. The applicant also seemed to suggest that he was unsure of what was included in his visa application.
3. The applicant's oral submissions, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.

1. As outlined above, grounds one, two, three and six relevantly provided as follows:
   1. The second respondent erred in its interpretation of the statutory requirement under s.36(2)(a) of the Migration Act 1958 (Cth) by failing to adequately consider the applicant's fear of persecution in the context of race, religion, nationality, membership of a particular social group, or political opinion.
   2. The second respondent incorrectly applied the legal test for "well-founded fear of persecution" by not giving proper weight to the applicant's subjective fear and failing to consider the cumulative impact of all claims presented by the applicant.
   3. The second respondent failed to apply the correct standard of proof by not sufficiently considering whether there is a "real chance" of persecution upon the applicant's return to Malaysia.

...

1. The second respondent misapplied the complementary protection criteria under s.36(2)(aa) by failing to properly assess whether the applicant would face "significant harm" as defined in s.36(2A) upon return to Malaysia.

1. Grounds one, two, three and six essentially suggest that the Tribunal misapplied the relevant legal tests set out in s 5J and s 36 of the Act.
2. Before addressing the applicant's claims in that regard, it is first useful to set out those relevant legislative provisions (as were in force at the time of the Tribunal's decision on 5 June 2024).
3. Section 5J of the Act relevantly provided as follows:

5J Meaning of well‑founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

1. Section 36 of the Act relevantly provided as follows:

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; or

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

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

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

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

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

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

1. To the extent that the applicant suggested that the Tribunal misapplied the relevant legal tests, the Court disagrees.
2. As correctly submitted by the Minister (at [17] in written submissions filed in this Court on 2 May 2025), the Tribunal correctly summarised the criteria that the applicant was required to meet in order to be granted the visa (including the refugee criterion set out in s 36(2)(a) of the Act, the relevant definitional provisions detailed in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act) (at [4]-[8]). The Tribunal also reproduced extracts of those relevant legislative provisions in annexures included at the end of its decision (CB 71-73).
3. The Tribunal explained (in its written reasons) that the applicant had not claimed to fear harm in Malaysia because of his race, religion, nationality or membership of a particular group or political opinion as required by s 5J(1)(a) of the Act and the Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he returned to Malaysia. In fact, the Tribunal noted that the protection claims raised by the applicant (being that he feared harm from loan sharks) did not appear to be for the "essential and significant reason" of any of the factors outlined above (as required by s 5J(1)(a) of the Act (at [28] & [32]-[33]).
4. The Tribunal was also not satisfied that there was a real chance of serious harm or a real risk of significant harm to the applicant for any of the reasons claimed (at [41]).
5. To the extent that the applicant raised concerns that the Tribunal had either misapplied the complementary protection criterion or failed to provide proper reasons for its complementary protection findings, the Court again disagrees.
6. As explained by Judge Driver (as His Honour then was) in SZTFZ v Minister for Immigration [2014] FCCA 1861:

1. As Robertson J held in SZSGA v Minister for Immigration each case must depend on its own facts and, in particular, the reasons of the tribunal in each case. Further, SZSFK does not stand for the proposition that findings of fact made in the course of considering refugee claims cannot be relied upon for the purpose of assessing complementary protection claims. 2. Consistently with the principles set out in the previous paragraph it is not always necessary for the tribunal to give extensive reasons for the rejection of complementary protection claims. This is especially so where the facts giving rise to the complementary protection claims are the same as those upon which refugee claims are based. In particular:

(a) It is sufficient for the tribunal to refer to its previous findings where the effect of those previous findings was that the tribunal did not accept that the events which were said to give rise to the risk of harm actually occurred. This is consistent with the principle that the tribunal has no obligation to give consideration to a claim where the factual premise upon which the claim depends has been rejected, and; > > (b) Where the tribunal, in the course of considering an applicant's refugee claims makes a finding that there is not a real chance of the applicant suffering any harm by reason of a particular matter, it is open for the tribunal to rely on this finding when rejecting a complementary protection claim arising from the same facts. That is, a finding that there is not a real risk of any harm is sufficient to dispose of claims to fear both serious harm under s.36(2)(a) and significant harm under s.36(2)(aa).

7. Here, the Tribunal was "not satisfied [that] the factual matters underpinning the [applicant's] claims" gave rise to his fear of harm (at [28]). Specifically, the Tribunal found that, on the limited evidence before it, "the applicant would not face any harm for reasons of not meeting debts owed to money lenders" if he were to return to Malaysia (at [31]). Further, the Tribunal found that, even if it had been satisfied as to the factual matters underpinning the applicant's protection claim, it did not appear that the reason for any harm feared by the applicant was because of his race, religion, nationality, membership of a particular social group or political opinion (at [33]).
8. The Tribunal then considered the applicant's claims against the complementary protection criterion and found as follows:
   1. On the limited evidence before it, the Tribunal is not satisfied that the applicant fears harm from loan sharks. It follows that the Tribunal does not accept any of his claims that flow from that proposition. The Tribunal is not satisfied that he left Malaysia for the reasons claimed or that he fears returning to Malaysia for the reasons claimed.
   2. On the evidence before it the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for any of the reasons claimed, if he returns to Malaysia now or in the reasonably foreseeable future.
9. In this regard, when the Tribunal's decision is read "as a whole", it is clear that the Tribunal's findings of fact at [28] of its reasons were relied upon in the Tribunal's findings at [41] with respect to complementary protection.
10. In light of the findings made by the Tribunal in relation to its assessment of the applicant's claims against s 36(2)(a) of the Act, there was simply no extant claims upon which complementary protection findings could (or should) be made.
11. In this matter, the applicant only raised one protection claim (being the claim to fear harm from loan sharks). As such, there was, in effect, nothing else that the Tribunal could assess in relation to s 36(2)(aa) of the Act.
12. No jurisdictional error arises in this regard.

1. Ground four relevantly stated:
   1. The second respondent breached procedural fairness by not providing the applicant an adequate opportunity to address concerns regarding the credibility and sufficiency of the evidence presented. Failed to consider the applicant's request for a decision based on the papers adequately, as the applicant did not have legal representation or the opportunity to understand the implications fully. The second respondent failed to assess by not considering all relevant evidence provided by the applicant, specifically, the socio-political context in Malaysia regarding the applicant's fear of harm. Evidence supporting the applicant's claims of inability to receive protection from Malaysian authorities.
2. By ground four, the applicant claimed that the Tribunal failed to afford the applicant procedural fairness or failed to give the applicant an opportunity to properly present his case.
3. The Court disagrees for the reasons that follow.
4. At the time of the Tribunal's decisions, Division 4 of Part 7 of the Act was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
5. In relation to this matter, the Court notes that:

(a) the Tribunal properly invited the applicant to attend a hearing before it as was required by s 425 of the Act and s 425A of the Act (CB 54-57);

(b) the Tribunal's hearing invitation put the applicant on notice that the Tribunal had "considered the material before [it] and [was] unable to make a favourable decision on [that] information alone" and invited the applicant to provide "all documents [he intended] to rely on to support [his] case by 6 May 2024" (CB 55); and

(c) the applicant responded to that hearing invitation by letter (sent to the Tribunal by email on 8 May 2024) that he would not attend the scheduled hearing and requested that the Tribunal "consider making a decision based on the documents and information previously submitted in relation to [his] case" (CB 58-60).

1. In these circumstances, the Court is satisfied that the applicant waived his right to appear before the Tribunal and the Tribunal was thus empowered to proceed to make a decision based on the materials before it.
2. For the reasons set out above, the Court is satisfied that the Tribunal complied with the requirements of Division 4 of Part 7 of the Act and that the applicant was afforded procedural fairness.
3. No jurisdictional error arises in relation to ground four.

1. Ground five relevantly provided as follows:
   1. The second respondent failed to seek further information or clarification on critical aspects of the applicant's claims, leading to a decision based on an incomplete understanding of the facts.
2. By ground five, the applicant claimed that the Tribunal erred by failing to seek further information or clarification in relation to critical aspects of the applicant's protection claims.
3. To the extent that the applicant is suggesting that the Tribunal should have undertaken further "investigation" of the applicant's protection claims (regardless of how those claims were presented by the applicant), the Court disagrees for the reasons that follow.
4. Section 5AAA of the Act provided as follows:

5AAA Non‑citizen's responsibility in relation to protection claims

(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

(3) The purposes of this Act include:

(a) the purposes of a regulation or other instrument under this Act; and

(b) the purposes of any administrative process that occurs in relation to:

(i) this Act; or

(ii) a regulation or instrument under this Act.

(4) To remove doubt, the Minister does not have any responsibility or obligation to:

(a) specify, or assist in specifying, any particulars of the non‑citizen's claim; or

(b) establish, or assist in establishing, the claim.

1. As explained by this Court in BBG23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 281 (and other similar matters), it is the applicant's responsibility to "specify all particulars of his or her [protection] claim" and "to provide sufficient evidence to establish the claim": s 5AAA(2) of the Act. Further, the Minister (or, in this case, the Tribunal) did not have any responsibly or obligation to "assist in specifying any particulars of the [applicant's] claim" or to "establish, or assist in establishing the claim": s 5AAA(4) of the Act.
2. The duty imposed on the Tribunal was to conduct a review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. While the Tribunal had some powers (for example, pursuant to ss 424 and 427 of the Act) to obtain information, it did not have a general duty to make its own enquiries in order to make an applicant's case or investigate an applicant's claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ("SGLB") at [43].
3. It is also well established that the Tribunal was under no obligation to investigate or conduct an inquiry to determine whether an applicant's case might be "better put" or supported by additional evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; SGLB at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
4. Further, in order for an error to arise of the sort the applicant alleges, three conditions must be established. There must be a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable and it must supply a sufficient link to the outcome as to constitute a failure to review: SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 at [21] (cited in MZABA v Minister for Immigration and Border Protection [2015] FCA 711 at [61]).
5. That was not the case here.
6. In this matter, the applicant was put on notice (by way of the Tribunal's hearing invitation letter) that the Tribunal had reviewed the materials that it had before it at that time and was of the view that it could not make a favourable decision based on that material alone (CB 55). Despite being advised of that fact by the Tribunal, the applicant chose not to provide further evidence or material to the Tribunal and declined to attend the Tribunal hearing (instead consenting to the Tribunal making its decision on the papers, as outlined above) (CB 58-60).
7. As explained by this Court above, in circumstances where the applicant essentially waived his right to attend a Tribunal hearing, the Tribunal proceeded to make its decision based on the materials before it (as consented to by the applicant).
8. No jurisdictional error arises in relation to ground five.

1. As outlined above, the applicant appeared to suggest that a friend had assisted him with the completion of his visa application and that he was "unsure of what was included" in his application. He also suggested both that the applicant had paid for assistance with his application and that the person who assisted him with his visa application offered him work.
2. To the extent that the applicant is claiming that he paid for or was otherwise assisted in completing the visa application, the Court notes that there is no evidence before the Court in that regard. Instead, the applicant answered "no" when asked in his visa application whether he had received assistance in completing the form (CB 18).
3. Further, there is no evidence before the Court to suggest that the applicant had any migration agent or representative assisting him with the Tribunal review. Instead, the applicant requested that all correspondence be sent to him directly in his review application (CB 47) and all correspondence in the matter was sent by the applicant to the Tribunal directly (see, for example, the email request from the applicant to the Tribunal on 6 February 2022 regarding the Medicare letter (CB 51)).
4. As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (and other similar matters), when assessing an agent's conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a "fraud" on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
5. In effect, in order to constitute a "fraud on the Tribunal", it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with its obligations under the Act. That is, the fraud must have directly impacted the Tribunal's decision-making process. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
6. In circumstances where the applicant did not appoint any representative to assist him with the Tribunal review, it cannot be said that the representative's conduct amounted to a "fraud" on the Tribunal.
7. To the extent that the applicant has concerns about the assistance given in relation to the preparation of paperwork relating to his visa application, the Court is unable to assist. Further, the Court considers that the concerns raised by the applicant in that regard would, at their highest, amount to negligence, incompetence or bad advice (though the Court makes no findings about the applicant's purported representative (if any indeed existed) in that regard).
8. The applicant may wish to consider raising his concerns with the appropriate regulatory authority (being the Office of the Migration Agents Registration Authority).
9. No jurisdictional error arises in this regard.

1. The application for judicial review (filed by the applicant on 8 July 2024) and the applicant's oral submissions before this Court have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
2. The application is, accordingly, dismissed.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.