GJA25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 50

1. The applicant is a citizen of Indonesia (Court Book (CB) 70). He first arrived in Australia on 27 August 2017 on a (Class US) (Subclass 462) Work and Holiday visa (CB 150). He travelled back to Indonesia on a number of occasions (CB 149 -150). He last arrived in Australia on 17 June 2019 on a (Class US) (Subclass 462) Work and Holiday visa (CB 149).
2. On 4 September 2019, the applicant applied to the Department of Home Affairs (the Department) for the Protection visa (CB 22-49). In his application, the applicant claimed that he left Indonesia to avoid the risk of arrest because he attended a demonstration in July 2018 against the unfair election system. He said that riot police arrested him, and he was detained for four days. He claimed that on a later trip to Indonesia two police went to his house and asked him to go to the police station.
3. On 11 September 2019, the Department acknowledged the application for the Protection visa (CB 56-61). The Department also requested that the applicant complete a 'REQUEST CHECKLIST and DETAILS' form.
4. On 22 July 2020, the Department invited the applicant to provide within 28 days additional information about his claims and to provide clarification to the following points (CB 96-99):
   • Do you have any evidence of your arrest and detention in 2018?
   • Why did the authorities target you?
   • Were you charged? If you were, what were you charged with?
   • Please provide more detail of the protest you were involved in (date, time, your role, location, objectives, number of protestors etc).
   • Please provide more detail about the police request for you to attend the station for questioning.
   • Was there any specific incident that led you to you fleeing Indonesia?
   • How did you leave Indonesia if the authorities intended to arrest you?
   • Why do you believe you will be arrested if you return to Indonesia?
5. On 19 August 2020, the applicant responded to the Department as follows (CB 100):

I left indonesia in order to avoid a risk of being arrested by indonesia government because I attended a demonstration against unfair election system in indonesia. I protested in Denpasar, Bali against unfair election system in indonesia, Bali in late July 2018. The protest started in the morning. I was arrested about 3 hours into protest. Police took me and other protestors into police station. I was detained for 4 days. On 1 june 2019 I come back to indonesia to visit my parents. On 12 June 2019 two policemen came to my home and asked me to go to police station. I was very scared and i came to Australian on 17 June 2019.

...

(reproduced without alteration).

1. On 29 September 2020, the delegate refused to grant the applicant the protection visa (CB 103-111), finding that he did not meet sub-ss 36(2)(a), (aa), (b) or (c) of the Migration Act (CB 107). The delegate noted that the Department had provided the applicant with a number of opportunities to provide evidence (CB 108). The delegate noted that the claims of attending protests, arrests and detention lacked substance and detail, were repetitive, and the applicant did not adduce corroborating evidence (CB 108-109). The delegate rejected the claims in their entirety, although accepting that the applicant may have attended a protest (CB 109).
2. On 22 October 2020, the applicant applied to the Tribunal for review of the delegate's decision (CB 112-113).
3. On 26 October 2020, the Tribunal acknowledged the application and invited the applicant to provide material and written arguments for the Tribunal to consider (CB 119-121).
4. On 4 June 2024, the Tribunal requested that the applicant complete a pre-hearing information form to be returned within 7 days (CB 127). The applicant returned this form by way of email on 7 June 2024 (CB 128-132).
5. One of the questions in the Tribunal's pre-hearing form was:

...in your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country? (CB 131)

1. On 3 April 2025, the Tribunal invited the applicant to a hearing on 7 May 2025. In the hearing application letter, the Tribunal requested that the applicant complete a 'Response to Hearing Notice' form and return it to the Tribunal within seven days. He was invited to use the form to attach additional information and to provide all documents he intended to rely upon by 30 April 2025 (CB 134-136). The letter also included the following paragraph:

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.

1. The Tribunal provided the applicant with a Factsheet headed 'Information about hearings' (CB 137 -141). This Factsheet stated, inter alia, that:

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

1. The Factsheet stated that the Member would ask questions at the hearing and that the applicant would be provided with an opportunity to make a statement or present arguments (CB 137).
2. On 10 April 2025, the applicant returned his 'Response to Hearing Notice' form (CB 145-148). In response to the question 'will you take part in the hearing scheduled for 7 May 2025?', the applicant ticked the box, 'no, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing' (CB 146).
3. No hearing was held.
4. On 12 May 2025, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa (CB 153) and notified the applicant on the same day (CB 152).

1. The Tribunal identified the visa under review and summarised the procedural history of the matter (TD [1-3]).
2. The Tribunal considered the applicant's request that the matter be determined without a hearing (TD [4-14]), noting the requirements of s 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) (TD [7] and [9]).
3. The Tribunal was satisfied that the applicant had requested that the Tribunal make a decision without a hearing (TD [8]). The Tribunal was also satisfied that it appeared that it could adequately determine the applicant's identity and receiving country and could form conclusions about whether he met the criteria for a protection visa in the absence of a hearing (TD [11-12]). The Tribunal noted that the application had been on foot for over five years and in that time, the applicant had not provided any further meaningful particulars or evidence to support his claims (TD [14]).
4. The Tribunal summarised the applicant's claims as outlined in his protection visa application (TD [17-18]).
5. The Tribunal summarised the evidence before the Department and Tribunal which included the applicant's protection visa application and his completed 'Pre-hearing information form' (TD [15-20] and [22-23]).
6. The Tribunal summarised the relevant law (TD [24-29]). The Tribunal was satisfied based on the evidence before it that the applicant was a citizen of Indonesia (TD [31]).
7. The Tribunal noted that the applicant had failed to provide the Department with any meaningful response to the questions they had about his claims for protection during its assessment process. The Tribunal found that there was also no documentary evidence supporting or corroborating his claims for protection (TD [34]). The Tribunal did not accept any of the applicant's claims for protection including that he had engaged in political protests in Indonesia or that he had been arrested and detained in Indonesia and was of interest to police.
8. Accordingly, the Tribunal was not satisfied that there was a real chance of serious harm from the police, authorities or anyone else in Indonesia due to the applicant's involvement in any political protest or demonstration. As a result, the Tribunal found that the applicant did not satisfy the refugee criterion under s 36(2)(a) of the Migration Act (TD [38] and [40]).
9. For the same reasons, the Tribunal was not satisfied there were substantial grounds for believing that there was a real risk the applicant would face significant harm in Indonesia. Accordingly, the Tribunal found that the applicant was not owed complementary protection pursuant to s 36(2)(aa) of the Migration Act (TD [46] and [48]).
10. On 12 May 2025, the Tribunal affirmed the decision of the delegate not to grant the applicant the protection visa (TD [50]).

1. The applicant applied to this Court for judicial review in an application filed on 4 June 2025. There were five grounds of review set out in the application. The applicant seeks orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
2. By orders of the Court on 18 August 2025, the applicant was ordered to file and serve an amended application, any affidavit evidence and submissions by 4pm on 1 September 2025.
3. On 2 October 2025, the applicant appeared before this Court as a litigant in person. Mr Swan of Counsel appeared for the Minister instructed by MinterEllison. An interpreter assisted the Court.
4. On 3 September 2025, the applicant emailed three documents to the Court.
5. The first document was a document titled 'Grounds for Review', in which the applicant referred to five 'grounds'. These grounds broadly corresponded with the grounds set out in the application, with the addition of two new grounds, being legal unreasonableness and error of fact. On 2 October 2025, I ordered that leave be granted pursuant to r 13.26 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (GFL Rules) for the application dated 4 June 2025 to be amended to include the grounds for review identified in the document sent to the court on 3 September 2025 headed 'Grounds for Review' (Tp 5.3-7), with no objection from the Minister.
6. The applicant also sent an unsigned affidavit to the Court, containing a number of statements. These statements were treated as submissions, with no objections from the Minister (Tp 5.9- 15).
7. The unsigned affidavit purported to attach documents upon which the applicant sought to rely. These documents were news articles from August and September 2025. Counsel for the Minister objected to admission of these documents as they were not before the Tribunal and were only relevant to a merits review of the Tribunal Decision.
8. I refused leave for the new documents to be admitted into evidence as they post-dated the Tribunal Decision and did not bear on jurisdictional error, on the basis of the following principles:
   • Fresh evidence is not admissible unless it bears on some jurisdictional error: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27];
   • An application for judicial review is ordinarily confined to the same material that was put before the Tribunal: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1377 per Judge C E Kirton QC at [48]; and
   • In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J observed at [8]:

It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.

1. The following documents were before the Court: the initiating application for judicial review as amended in court on 2 October 2025, the supporting affidavit of the applicant filed on 4 June 2025, submissions in the form of an unsigned affidavit of the applicant, a Court Book (numbering 167 pages and marked as Exhibit 1R) filed 15 August 2025, and written submissions of Minister filed on 26 September 2025.

1. A court has an intrinsic duty to assist unrepresented litigants: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Hamod v New South Wales [2011] NSWCA 375 per Beazley JA (Giles and Whealy JJA agreeing). At [309] to [316] in Hamod, Beazley JA outlined the following relevant principles in ensuring that there is the right balance between impartiality and assisting litigants in person (citations omitted):
   • the duty reposes in the individual judicial officer hearing a case;
   • the touchstone is that of fairness;
   • the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented;
   • trial judges should ensure that litigants do not remain ignorant of fundamental procedures which if invoked may prove advantageous;
   • the court has an obligation to ensure a fair trial for all parties such that the impartial function of the judge should be preserved, and no advice should be given as to how rights should be exercised; and
   • the unrepresented litigant should have sufficient information about the practices and procedures of the court so far as reasonably practicable for the purpose of ensuring a fair trial.
2. These principles apply in civil cases: in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) per Mortimer J at [70] - [75]. Mortimer J referred to various authorities noting that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. She endorsed the approach of Smith J in Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, 15 September 1997) at [9] who observed that while judges should maintain neutrality, the boundaries of legitimate intervention are flexible.
3. In the case before me, I confirmed that the applicant had a copy of the Court Book and the Minister's submissions (Tp 6.11- 14) and that he understood the interpreter (Tp 3.1-5). At the hearing, I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the applicant were to succeed in his application. I explained that jurisdictional error is a kind of serious legal error and outlined some common categories, noting that these categories were not exhaustive. I explained that the Court cannot undertake a merits review of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 (Tp 3.44-4.5). The applicant confirmed that he understood.
4. During the hearing, I took the applicant through the grounds for review advanced in the application, and provided the applicant with an opportunity to provide further particulars of each of the grounds, and to make oral submissions (in accordance with principles in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 per Feutrill J at [22] and [25]) (Tp 7.14-20).

CONSIDERATION - WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?

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

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

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

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

1. The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about the decision: Djokovic at [17]. However, as the applicant is unrepresented, I have considered the applicant's complaints as well as being astute and alert to legal error: MZAIB per Mortimer J at [100].

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

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

Consideration of the grounds of jurisdictional error alleged by the applicant

1. The applicant has advanced five 'grounds' of jurisdictional error in his application.
2. After considering each of the grounds, the Court has not identified any jurisdictional error.

1. In his application to this Court, the applicant stated that the first ground of jurisdictional error was that:

My name is (name of applicant), from Indonesia. In Australia, I now hold bridging visa A, and I have applied for a protection visa to Australia. The Immigration and the Tribunal refused my visa application. The Tribunal confirmed the refusal by Immigration on 12 May 2025.

(reproduced without alteration).

1. As discussed with the applicant at hearing, this is an introductory paragraph explaining the applicant's background and does not advance a ground of review (Tp 7.22-24).
2. There is no jurisdictional error demonstrated in the applicant's Ground 1.

1. The applicant contended that the second ground of jurisdictional error was:

I am not happy with the way the Immigration and Tribunal refused my visa application. I believe they have not looked at all the documents and evidence that I have submitted to both of them.

1. In the 'Grounds for Review' document, the applicant said that the ground for review was:

the Tribunal failed to consider critical evidence, including current news articles, official travel warnings and the Applicant's affidavit. This evidence demonstrated the unsafe situation in Indonesia, particularly Bali'.

1. At the hearing before me on 2 October 2025, the applicant was asked to particularise which news articles and official travel warnings the Tribunal did not consider. He said that the Tribunal did not consider the evidence correctly including the 'Amnesty Report from DFAT' and a report from 'USAid' in 2018 (Tp 7.44-46). He said that these reports related to how the police reacted to demonstrations (Tp 7.46-47).
2. The Minister submitted that no supporting documents or evidence were submitted by the applicant for consideration by the Tribunal ([13] of the Minister's Written Submissions).
3. The Federal Court has recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant's case: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]- [112].
4. I have considered whether the Tribunal considered the evidence adduced by the applicant. At [15] - [20] of the Tribunal's decision, the Tribunal referred to the evidence before the Department, including the evidence set out in the application and a response dated 18 August 2020 to a request for information. I am satisfied that the Tribunal considered the applicant's evidence.
5. The applicant did not provide additional evidence to the Tribunal (TD [22]). There is nothing in the Court Book or Tribunal Decision suggesting that the applicant provided news articles, official travel warnings or an affidavit to the Tribunal.
6. To the extent that the applicant is claiming that the Tribunal should have sought out further news articles and other information, the authorities are clear that it is for an applicant to present claims and evidence, and make out his case: VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 (VCAK of 2002) per Crennan J. An applicant must satisfy the Tribunal that he or she meets the criteria for being a refugee: s 5AAA of the Migration Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at [187] and an applicant must provide evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction in their decision: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76].
7. Indeed, the Tribunal's power to gather information that it considers relevant is permissive and not mandatory: VCAK of 2002 (at [27]). While it is open to the Tribunal to make further enquiries, there is no general duty on the Tribunal to enquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43].
8. The applicant in Ground 2 has expressed unhappiness at the outcome of the Tribunal review. While it is understandable that an applicant may disagree with a decision, disagreement does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124].
9. To the extent that, in this ground, the applicant is disputing the findings of the Tribunal, it is settled law that the Court cannot review the merits of the Tribunal decision. In Wu Shan Liang the High Court found at 272:

.. any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

1. Ground 2 does not establish jurisdictional error.

1. The applicant contended that the third ground of jurisdictional error was as follows:

I believe they just refused me unfairly and without proper process. Some of the decision statement also is not correct, that has resulted in the Tribunal again refused my visa application.

1. In the 'Grounds for Review' document which has been treated as an amended application, the applicant stated that:

The Tribunal denied the applicant a fair process by not adequately or responding to the evidence and submissions provided. The reasoning did not engage with central issues raised by the applicant'.

... The Tribunal made findings that were plainly inconsistent with the available evidence including the conclusion that Indonesia was safe for return, contrary to documented unrest, casualties and international warnings.

1. It appears that, in these grounds, the applicant claims that the Tribunal did not consider cogent evidence, and that the Tribunal did not intellectually engage with the evidence, and that there was not a fair process.
2. At the hearing before me, the applicant submitted that the Amnesty International reports in 2017/2018, DFAT Reports and Human Rights Watch Report which related to freedom of expression and abuses by security forces, were not considered by the Tribunal (Tp 8.21-24, 8.24-28 and 8.26-29). The issue of consideration of evidence has been considered in the discussion relating to Ground 2 in preceding paragraphs of this judgment. I have noted above that the Court Book and Tribunal Decision does not record that the applicant provided country information reports to the Tribunal, and the Tribunal was not under a general duty to inquire further.
3. It is pertinent that the Tribunal rejected the entirety of the applicant's claims for protection. The Tribunal was not satisfied that if the applicant returned to Indonesia he would be arrested and targeted by the police and authorities due to his involvement and participation in a protest or demonstration against unfair election practices in Denpasar in June 2019: TD [37] and [38]. The Tribunal found at [38] that:

'the Tribunal is not satisfied that if the applicant returns to Indonesia now or in the reasonably foreseeable future that he faces a real chance of serious harm from the police or authorities or anyone else due to his involvement in any demonstrations or protests against unfair election practices in Indonesia'

1. As the Tribunal rejected the applicant's claim that he would be targeted on his return to Indonesia because of his prior participation in protests, it was not incumbent on the Tribunal to then source and assess country information about the situation in Indonesia.
2. In any event, it is well established that the choice of country information, and the weight to be afforded to it, is exclusively a matter for the Tribunal: see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ at [11] to [13].
3. Interpreted broadly, the applicant could also be contending in this ground that the Tribunal Decision was unreasonable in that the Tribunal did not intellectually engage with the applicant's evidence and submissions. In point 4 of the 'Grounds for Review' document which has been treated as an amended application, the applicant stated that:

The Tribunal's decision was legally unreasonable in light of the significant risks to the applicant's safety and the failure to rationally weigh relevant material.

1. The Tribunal is required to engage in an active intellectual process: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 (Lafu) per Lindgren, Rares and Foster JJ at [49]-[50]. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ at [47] observed that in determining whether a decision-maker has engaged in an active intellectual process, the Court must:

...conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.

1. In Carrascalao at [32] and [48], their Honours observed that a finding by the Court that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence so that the Court does not slide into impermissible merits review.
2. In the matter before me, the Tribunal summarised the applicant's claims and evidence (TD [15- 23]) and the relevant law (TD [24-29]). The Tribunal found that there was no documentary evidence supporting or corroborating his 'bare claims' for protection (TD [34]). The Tribunal did not accept any of the applicant's claims for protection including that he had engaged in political protests in Indonesia or that he had been arrested and detained in Indonesia and was of interest to police. Accordingly, the Tribunal was not satisfied that the applicant faced a real chance of suffering serious harm from the police, authorities or anyone else in Indonesia due to his involvement in any political protest or demonstration. As a result, the Tribunal found that the applicant did not satisfy the refugee criterion under s 36(2)(a) of the Act (TD [38-41]).
3. A fair reading of the Tribunal Decision demonstrates that the Tribunal referred to the evidence before it and then evaluated the evidence in the sense described in Carrascalao at [47] (TD [36] - [44]). As referred to earlier, the country sources referred to by the applicant were not before the Tribunal. In any event, on the scant information provided, the Tribunal was not satisfied that the events described by the applicant took place. It followed that the Tribunal was not satisfied that the refugee or complementary protection criteria were met. I am satisfied that the Tribunal actively intellectually engaged with the applicant: Lafu [49]-[50].
4. To the extent that the applicant has claimed that he was not given a 'proper process', procedural fairness is considered later in this judgment.
5. No jurisdictional error arises in Ground 3.

1. The applicant contended that the fourth ground of jurisdictional error was that:

I request the Court to ask the Tribunal to re-process and re-consider my application again with a new Tribunal officer or Member with a new hearing that is more fair to me and can hear and consider all evidence that I have.

(reproduced without alteration).

1. This statement is a request for the Court to quash the decision of the Tribunal and does not advance a ground. To the extent that the applicant suggests the process was not fair because of bias of the Member, this is discussed with reference to Ground 5.
2. There is no jurisdictional error articulated in Ground 4.

1. The applicant contended that the fifth ground of jurisdictional error was that (reproduced below without alteration):

I believe the processes, Immigration, and Tribunal are bias in my case.

1. In the 'Grounds for Review' document which has been treated as an amended application, the applicant stated that:

The Tribunal's approach gives rise to a reasonable apprehension of bias, as it dismissed the Applicant's claims without meaningful engagement or fair assessment.

1. As the applicant was a litigant in person, I provided him with an overview of the commonly used tests of bias and the evidence required by them (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) and SZRUI v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI)).
2. I asked the applicant if he could point to examples of bias in the evidence. The applicant noted that the Tribunal found that it was safe to return to Indonesia. He contended that evidence showed otherwise, in particular in the time period 2018 to 2025 (Tp 9.42-43). He said that demonstrators were treated unfairly by the police force and this made him fearful to return (Tp 9.44-45). The applicant's response to my question relates to the issue of failure to consider evidence, or failure to intellectually engage with the evidence. I have considered these potential grounds of jurisdictional error earlier in this judgment.
3. There can be a finding of actual bias where the Tribunal was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng at [71]-[72]. A Court must assess the state of mind of the decision-maker: Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 to 438.
4. There can be a finding of apprehended bias where the Tribunal conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant's case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
5. The applicant has not pinpointed examples of bias demonstrated by the Tribunal. I am not satisfied that allegations of bias have been distinctly made and proved: Jia Legeng at [127]. As submitted by the Minister, the fact that the Tribunal made findings against the applicant does not establish that it was biased: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; Hutchinson v Comcare (No 2) [2021] FCA 284 at [58].
6. I am not satisfied that actual or apprehended bias has been proven. No jurisdictional error arises as advanced in Ground 5.

1. The Minister, a model litigant, raised for consideration the findings in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 (LLR24). The Minister stated in written submissions ([17] of the Minister's Written Submissions):

There, as in this case, the applicant indicated that she did not wish to attend a hearing before the Tribunal. Judge Johns held that the Tribunal had fallen into jurisdictional error after the review applicant sought for the application to be decided without a hearing, and the Tribunal proceeded to determine the matter on a different dispositive issue to the delegate.

1. At the hearing before me, I summarised the judgment in LLR24 for the benefit of the applicant and explained its relevance to his matter (Tp 10.25-40). He was invited to address the Court on issues arising from LLR24.
2. The applicant said that he selected not to attend the Tribunal hearing because he was 'scared' and had a lot of things 'going on in [his] mind' (Tp 11.6). He said that it was the Tribunal's responsibility to 'assess everything' (Tp 11.9- 10).
3. Although questioned by me about this at the hearing, the applicant did not raise any concerns about the Tribunal exercising its discretion to make a decision without a hearing. He also confirmed that there were no issues raised in the Tribunal Decision which he did not know about because they were not raised in the delegate's decision (Tp 11.13-19).
4. Although the applicant said that he did not have specific concerns in relation to the absence of a hearing or new dispositive issues, I have considered the relevance of the findings in LLR24 as the applicant is a litigant in person and may be unfamiliar with the nuances of that decision.

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

1. In LLR24, the background was as follows. The delegate of the Department found that the applicant was a Shi'a Muslim (LLR24 at [12]). The delegate found that Shi'a Muslims faced difficulties in the practice of their religion, but these difficulties did not rise to the level of persecution (LLR24 at [13]). The Tribunal in LLLR 24, by comparison, did not accept that the applicant was a Shi'a Muslim (LLR24 at [33]). His Honour Judge Johns found that the issue of whether the applicant was a Shi'a Muslim was a new dispositive issue not put to the applicant (LLR24 at [72-74] and [76]) in accordance with the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
2. In LLR24, the Court found that there was a breach of procedural fairness obligations in s 55 of the ART Act and that the Tribunal decision was legally unreasonable (notwithstanding s 106(3) of the ART Act), because the Tribunal had not put the applicant on notice of a new dispositive issue (LLR24 at [72] - [76]).
3. In the matter before me, Counsel for the Minister in written submissions, submitted that the case before me was distinguishable from the decision in LLR24 for the following reasons:
   1. The delegate squarely, and repeatedly, observed that the Applicant's claims

lacked detail, substance, and supporting evidence. That led to the delegate

expressly stating that he had concerns regarding the credibility of the

Applicant's claims. It was the complete lack of detail and supporting

evidence which led the delegate not accepting the Applicant's claims (CB

116. ([19 a] of the Minister's Submissions).

b. Likewise, the Tribunal repeatedly referred to the limited information

provided by the Applicant, and that there was "no documentary evidence in

support of or to corroborate the bare claims for protection" (CB 162). As

with the delegate, it was that complete lack of evidence and detail which led

the Tribunal to reject the Applicant's claims ([19 b] of the Minister's Submissions).

c. Both the delegate and the Tribunal rejected the critical aspects of the

Applicant's claim - namely, his claim that he had been arrested by the

police, detained for multiple days, and that he remain of adverse interest to

the police and Indonesian authorities ([19 c] of the Minister's Submissions).

1. The Minister submitted that there was no change in the critical issue between the delegate's decision and the Tribunal Decision. The Minister argued that the applicant was on notice from the delegate's decision that the failure to detail information and substantiate his claims was a critical issue (Tp 14.31-38).
2. The Minister acceded that the delegate did accept that the applicant 'may' have attended a protest, while the Tribunal did not accept that he attended a protest (Tp 13.22-35). Mr Swan, Counsel for the Minister, contended that there was no positive finding about whether he attended a protest, as the delegate found only that he 'may' have attended a protest (Tp 13.22-35). It was submitted that the applicant would have been aware that the issue of whether or not he attended protests was a live issue, upon which he needed to satisfy the decision-maker, but the applicant made no further attempt to adduce any further evidence (Tp 14.31-38).
3. I am satisfied that a fair reading of the delegate's decision and Tribunal Decision indicates that there was no new dispositive issue raised by the Tribunal for which the applicant had no prior notice, in contrast to the circumstances in LLR24.
4. In the matter before me, the Tribunal was not satisfied that the applicant attended protests or demonstrations in Indonesia (TD [37]), or that policemen came to his house or questioned him or arrested him (TD [37]), due to the 'limited information' and 'details' (TD [34] and [37]), absence of documentary evidence and lack of corroboration (TD [34]). The delegate found that 'the claims lack substance and detail', and 'did not include details' and 'he did not offer responses to questions asked of him' (CB 109). The delegate found that: 'due to the lack of substantiating detail or evidence, [he had] concerns regarding the credibility of the applicant's claims' (CB 109). The delegate was not satisfied that his claims regarding arrest, detention or summons to the police station were credible but found he may have attended a protest (CB 109). The delegate then considered country information about people being targeted for attending protests (CB 109-110).
5. In my view the applicant would have been aware that whether or not he attended protests was a dispositive issue given the emphasis on the paucity of information in both decisions.
6. I am satisfied that the issue of lack of procedural fairness due to the raising of a new dispositive issue at the Tribunal, does not arise in this case.
7. In any event, in BYI25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1671 (BYI25) I found that the decision in LLR24 was plainly wrong (BYI25 [251]). As I found in BYI25, in the matter before me the Tribunal was not required to put new dispositive issues to the applicant once the applicant had elected that the Tribunal make a decision without a hearing. I am satisfied that in the matter before me, the applicant effectively waived that right by rejecting the invitation to a hearing and requesting that the decision be made without a hearing (BYI25 [295]).

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

1. I am satisfied that the Tribunal, by inviting the applicant to a hearing and inviting written submissions and evidence, complied with s 55 of the ART Act, and that the Tribunal complied with s 106(3) of the ART Act, by making a decision without a hearing. Reasons for this are set out in more detail below.
2. Section 55 of the ART Act provides:

Right to present case

General rule

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

(a) present the party's case; and

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

(c) make submissions and adduce evidence.

1. The Tribunal was required to invite the applicant to a hearing pursuant to s 55 of the ART Act: (BYI25 [124- 135]) and to provide a reasonable opportunity to present the party's case and make submissions and adduce evidence: sub-ss 55(1)(a) and (c). Section 55(1)(b) of the ART Act does not apply to migration cases (by operation of s 375A(2B) of the Migration Act).
2. The Tribunal provided the following opportunities to present the case, make submissions and adduce evidence in compliance with s 55 of the ART Act:
   • On 26 October 2020, the Tribunal acknowledged the application and invited the applicant to provide material and written arguments for the Tribunal to consider (CB 119-121);
   • On 4 June 2024, the Tribunal requested that the applicant complete a pre-hearing information form to be returned within 7 days (CB 127). The applicant returned this form by way of email on 7 June 2024 (CB 128-132);
   • One of the questions in the Tribunal's pre-hearing form was 'in your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?' (CB 131);
   • On 3 April 2025, the Tribunal invited the applicant to a hearing scheduled on 7 May 2025 (CB 134 - 136); and
   • With the invitation to the hearing sent on 3 April 2025, to the applicant's email address as nominated in his application for review, the Tribunal requested that the applicant complete a 'Response to Hearing Notice' form and return it to the Tribunal within seven days. He was invited to use the form to attach additional information if he had new information or requests for the Tribunal to consider. The applicant was also invited to provide all documents he intended to rely upon by 30 April 2025 (CB 134-136).
3. The applicant provided a response to the request on the pre-hearing form (CB 131).
4. By inviting the applicant to a hearing and providing the opportunities to provide written evidence, in my view, the Tribunal complied with the obligation to present submissions and adduce evidence pursuant to s 55 of the ART Act.
5. Subsections 106(1) and (3) of the ART Act read together, provide that the Tribunal may make its decision in a proceeding after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if:

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

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

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

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

1. I am satisfied that the Tribunal complied with sub-ss106(1) and 106(3) of the ART Act in exercising its discretion to make a decision without a hearing, for the reasons set out below.

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

1. The words in the chapeau in s 106(1) of the ART Act are clear on the face and provide context to the application of ss 106(2)-(5).
2. The Tribunal recorded that it considered the documents and things given to it (TD [14]).
3. In the Tribunal Decision at [11], the Tribunal refers (in the findings about whether the issues could be adequately determined), to the copy of passport and application which contained the applicant's biographical details and claims for protection, his response to a request for information and the delegate's decision. The Tribunal noted that it also had before it the completed 'pre-hearing information' form. Reference is made in other parts of the Tribunal decision to the application to the Department and the delegate's decision record (TD [14-15, 17 and 21]).
4. It is clear from these references that the Tribunal considered the documents and things before making a decision without a hearing.

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

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

The decision is wholly in favour of the applicant, or the applicant requested the Tribunal to make its decision without holding the hearing of the proceeding (s 106(3)(b)(i) and s106(3)(b (ii) of the ART Act)

1. In this case, the decision was not wholly in favour of the applicant. Section 106(3)(b)(i) of the ART Act did not apply and therefore it was necessary for the alternative subclause, s 106(3)(b)(ii) to apply - that the applicant requested the Tribunal to make its decision without holding a hearing of the proceeding.
2. The applicant requested the Tribunal make its decision without holding the hearing of the proceeding as follows.
3. On 3 April 2025, the Tribunal invited the applicant to a hearing scheduled on 7 May 2025 (CB 134 - 136).
4. On 10 April 2025, the applicant emailed the Tribunal, enclosing a completed and signed 'Response to Hearing Invitation' form (CB 145-148). The applicant checked the box in the 'Response to Hearing Invitation' form requesting that a decision be made without a hearing. He indicated in the form that he did not intend to rely on any documents, written witness statements, country information or other evidence (CB 146 -147).
5. On 5 May 2025, the Tribunal responded to the applicant confirming receipt of the completed form which stated that he would not participate in the hearing and that he consented to a decision on the papers. In the correspondence, the Tribunal confirmed that the hearing had been cancelled and that the Tribunal would proceed to make a decision (TD [6]).
6. The Tribunal considered the relevant law (TD [7] and [9] - [10]) and recorded that it was satisfied that the applicant had requested a decision on the papers which could be construed as a request to make a decision in compliance with s 106(3)(b)(ii) of the ART Act (TD [8]).
7. In SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 at [43], the Court found that consent for the purposes of s 425(2)(b) of the Migration Act was required in unambiguous terms and it would be an unusual case for such consent to be implied. In the case before me there was unambiguous consent (see also Khadgi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 991 where Derrington J AM at [18] found that the trial judge could not be criticised for finding that there was no ambiguity in a response to a question with similar wording).
8. The applicant confirmed at the hearing before me that he had no concerns about the Tribunal making a decision without a hearing (Tp 3.24-4.46).
9. It is clear from the applicant's views and the sequence of events that the applicant unambiguously requested that the Tribunal make a decision without a hearing (s 106(3)(b)(ii) of the ART Act).

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

1. My reasoning in BYI25 at [179] - [181] as to the construction of the phrase 'appeared to the Tribunal' was as follows, and I adopt that reasoning:

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

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

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

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

1. I am satisfied that it 'appeared' to the Tribunal (in the sense of it 'seemed' or the Tribunal had the impression that) that the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding, in compliance with s 106(3) (c) of the ART Act (see reasoning and findings in [9] - [14] of the Tribunal Decision).

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

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

1. In Minister for Immigration and Border Protection v SZFVW [2018] HCA 30; (2018) 264 CLR 541, the High Court found that no matter how evaluative a decision might have been, the requirement of reasonableness is implied (per Gageler J at [53]). Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred: Li per French CJ at [23] and cases cited.
2. Unreasonableness can arise where a decision appears to be arbitrary, capricious, without common sense or plainly unjust: Li at [11] and [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [44].
3. For a decision to be legally reasonable, there must be an intelligible justification for the decision: Li at [105]; Singh at [44]-[45]. A court must evaluate whether the decision falls within the range of possible acceptable outcomes defensible in respect of fact and law: Li per Gageler J at [105] citing Dunsmuire v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44] - [45].
4. In LLR24 at [90] the Court was not satisfied that a Tribunal acting reasonably would have determined LLR24's protection visa application against her, based on 'a matter that was not put to her' (or that she was not given notice of). His Honour found (LLR24 at [90]) that there was a lack of evident and intelligible justification for what the Tribunal did, and that no Tribunal acting reasonably would have considered it fair to do so. In the matter before me, I am not satisfied that there was a new dispositive issue raised by the Tribunal, for reasons set out earlier in this judgment.
5. I note that in the matter before me, at [4-14] of the Tribunal Decision the Tribunal considered s 106(3) of the ART Act, finding that:
   • The Tribunal had invited the applicant to a hearing (TD [4]);
   • The Tribunal had informed the applicant that if he requested that the Tribunal make a decision without a hearing and the Tribunal proceeded to make a decision, this did not guarantee a favourable decision (TD [4]);
   • On 10 April 2025, the applicant returned a completed and signed response to hearing form and that in response to the question, 'Will you take part in the hearing scheduled for 7 May 2025', the applicant ticked the box that states: 'No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing'(TD [5]);
   • On 5 May 2025, the Tribunal had responded to the applicant confirming receipt of the completed response to hearing form and confirming that the hearing had been cancelled and that the Tribunal would proceed to make a decision on the papers (TD [6]);
   • The issues which the Tribunal was required to determine were firstly whether the applicant faced a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act if returned to Indonesia. The second issue was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to Indonesia, there was a real risk that he would suffer significant harm for the purpose of s36(2)(aa) of the Act (TD [10]);
   • Considered that it could adequately determine the matter on the material before it (TD [11]); and
   • Noted that the applicant had multiple opportunities to provide evidence (TD [11]).
6. The Tribunal noted that it could make a decision without seeking further evidence or submissions (TD [12]) and identified that it had before it:

a copy of the Department and Tribunal files which contain a copy of the applicant's passport, his protection visa application form with includes his biographical information and claims for protection, his response to the Department's request for further information, and the delegate's decision record. The Tribunal has also reviewed the completed "Pre-hearing information form" where the applicant reiterated his claims for protection. (TD [11]).

1. I have considered whether the Tribunal construed the provisions correctly and whether the findings were logical and rational.
2. 'Issues for determination', as found in s 106(3)(c) is a term understood at law to mean questions or topics where findings or conclusions are needed. As I found in BYI25 at [183], in the context of the provision, there is some ambiguity as to the scope or range of potential issues requiring adequate determination without a hearing. These could involve a broad spectrum of issues such as an applicant's identity, nationality, visa status, immigration history, place of residence, travel history, findings of fact on claims and so on.
3. In my view 'issues for determination' when used in the context of the provision simply correlates at law with the legislative requirements, in this case, the criteria for the visa set out in the legislation (BYI25 at [188] for the reasons set out in [184] - [192]). The words in the previous legislation (s 425 of the Migration Act) 'issues arising in relation to the decision under review' appeared in a different context (the hearing invitation), whereas s 106(3) is a permissive provision to empower the Tribunal to decide a matter without a hearing.
4. Section 36 of the Migration Act sets out the criteria for a protection visa. An applicant must meet one of the alternative criteria set out in sub-ss 36(2)(a), (aa), (b) or (c) of the Migration Act. The applicant must be a person in respect of whom Australia has protection obligations under the 'refugee' criterion or on complementary protection grounds or be a member of the same family unit as such a person. In my view, these are the relevant issues for determination, as recognised by the Tribunal in the matter before me. The Tribunal found that the issues for determination were the visa criteria as reference was made to the criteria for the protection visa (TD [6] - [12]). After considering the request for a decision on the papers and finding that the Tribunal could adequately determine the issues for determination in the absence of the parties, the Tribunal went on to make findings on the refugee and complementary protection criteria (TD [45] - [64]).
5. I have considered the interpretation of 'adequately determined', as found in s 106(3)(c) of the ART Act, in BYI25 at [193] - [195]. I referred to the dictionary meanings of 'adequately'[2] as

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

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

1. I noted in BYI25 that the word 'adequately' does not carry with it an absolute state of satisfaction, or impart an element of perfection or superiority, given that its meaning is more akin to satisfactory or enough (BYI25 at [194]). I found that it is not required therefore that it must appear to a decision-maker that the issues can be irrefutably or unquestionably determined. I found that it was not required from the words 'adequately determined' that there must be offerings of further procedural fairness opportunities if absolute satisfaction was not attained.
2. I also considered the context of the provisions (BYI25 at [199]- [220]):

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

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

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

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

1. In EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (EIZ20) Judge CE Kirton KC considered s 34 J of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which applied to divisions of the Administrative Appeals Tribunal (AAT) other than applications for review under Part 5 or Part 7 of the Migration Act (migration and protection cases) and which was an equivalent provision to s 106(3) of the ART Act. Judge Kirton found that where the parties do nothing to dissuade a tribunal, a decision can be 'adequately determined in the absence of the parties', there being no obligation to seek further information or hold a hearing (at [59]). Her Honour noted that the Tribunal had considered all the evidence before it and had given the parties an opportunity to submit material. Further, the AAT had the power to obtain information from parties but found that the AAT was not necessarily obliged to seek comments or information from them when it was minded to decide a matter adversely to a party. Her Honour said that the AAT's obligation to have enough information before it to adequately review a decision does not require it to inquire as to whether a party may be able to support their case with other evidence or inquire on the 'mere possibility that either party might have something further to say' (EIZ20 at [66]).
2. In EIZ20, her Honour took the view (EIZ20 at [59]) that it was open and reasonable for the AAT to conclude that the parties had provided all the information they considered important and relevant and that the AAT could properly review the decision with the information before it. Her Honour found at [60] that:

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

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

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

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

1. In the matter before me, I am satisfied that the Tribunal's findings, that the Tribunal could adequately determine the issues for determination in the absence of the parties, had an evident and intelligible justification. The Tribunal took into consideration the fact that the application for review had been on foot for over five years and the applicant had not sought to provide any further meaningful particulars or evidence in support of his application for review or in response to the delegate's decision (TD [13-14]). The Tribunal noted that as the applicant had lodged his application over five years ago, the applicant had had multiple opportunities to provide all the information and evidence relevant to his case (TD [11]).
2. The Tribunal referred to the claims made by the applicant and the issues it needed to determine. The Tribunal stated that it appeared to it that it could adequately determine those issues in the absence of the parties. This exercise of discretion related to a permissive provision to make a decision without a hearing where certain requirements were met, and the Tribunal found that those requirements were met.
3. I accept from the information in the Court Book that there was no evidence before the Tribunal to suggest that the parties raised an issue or indicated that they had further material evidence that required a hearing after they requested that the Tribunal proceed to a hearing without a review: EIZ20 at [59]. I accept that there was no obligation on the Tribunal to inquire further as to whether the applicant might be able to support his case with other evidence or inquire on the 'mere possibility' that the applicant had 'something further to say': Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]; EIZ20 at [66]. The applicant's lack of engagement meant that there was no further material which the applicant had indicated he would put before the Tribunal.
4. In these circumstances, the exercise of the discretion to make a decision without a hearing had an intelligible justification, was not arbitrary or capricious: Li at [11] and [28]; Singh at [44], and fell within the range of possible acceptable outcomes defensible in respect of fact and law: Li [105] per Gageler J,
5. I am satisfied that no jurisdictional error arose from a failure to afford procedural fairness in the exercise of the discretion to make a decision without a hearing.

1. For the reasons set out above, I am not satisfied that the Tribunal's reasons were affected by jurisdictional error.
2. Accordingly, the application for judicial review is dismissed.
3. The Court will hear the parties on costs.

I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.

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

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

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