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[2026] HCA 32
respondent. The application for an extension of time was refused, the application for a constitutional or other writ was dismissed, and the plaintiff was ordered to pay the defendant's costs.
The High Court considered whether the visa delegate had to give GXT25 another opportunity to explain why he raised his sexual-orientation claim late, whether the delegate had to disclose general country information about fraudulent documents in Kenya, and whether the delegate's credibility reasoning was irrational. The Court rejected all three grounds. It considered the timing of the claim and the truth of the supporting documents obvious issues on the material already before the delegate. It held that general country information did not become information specifically about GXT25 merely because the delegate used it when assessing his documents. It also held that the delegate's combined credibility reasoning was open on the evidence. As the grounds lacked merit, the Court refused more time to bring the application, dismissed it and ordered GXT25 to pay the Minister's costs.
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2,496 words · generated 03/10/2026
2 cited instruments linked from this judgment.
GXT25 was a Kenyan citizen who arrived in Australia on 11 February 2022 holding a Student (Subclass 573) visa. He applied for a Protection (Subclass 866) visa on 16 October 2024. His initial protection claim was that he feared harm in Kenya because of his Christianity. The application form asked whether he had experienced harm in Kenya, and he answered “No” ([9]-[14]).
The Department sought further information under s 56 of the Migration Act 1958 (Cth). Its request focused on his Christianity and asked why he had waited more than two years after arriving in Australia before applying for protection ([15]-[16]). GXT25 supplied further information about his Christianity on 15 November 2024. On 21 November, in a second response, he raised a new basis: that he was gay, had been assaulted and harassed in Kenya because of his sexual orientation, and feared harm if returned. He provided documents including a medical report, a letter from his mother, a hospital letter and a published submission about unlawful killings of LGBTIQ+ people in Kenya ([17]-[19]).
The delegate rejected the sexual-orientation claim. The reasons included its late introduction, the lack of a detailed account of the alleged assault, perceived inconsistency with the initial religious-persecution account, and country information about document fraud and corruption in Kenya. The delegate placed greater weight on the conclusion that the claim was fabricated than on the supporting documents ([20]-[25]).
After the Tribunal review application was made outside the applicable seven-working-day period, it was required to be dismissed. The Federal Circuit and Family Court of Australia (Division 2) dismissed the later judicial review application on 16 April 2026. GXT25 then applied to the High Court, seeking an extension of time, constitutional writs and other relief. The High Court decided the matter on written submissions without listing it for hearing ([1]-[8]).
The Court refused the extension and dismissed the writ application. It also ordered GXT25 to pay the Minister's costs ([51]). The decision addresses three judicial review grounds: procedural fairness, s 57 disclosure obligations, and legal unreasonableness or illogicality.
The first ground concerned two alleged procedural-fairness failures. GXT25 said he was not told that the delegate might treat his delayed disclosure as evidence of fabrication. He also argued that the delegate used country information about document fraud to undermine the authenticity of his documents without giving him an opportunity to address that use ([26]-[28]).
The Court applied the procedural-fairness principle expressed in Alphaone and approved in SZBEL. In relevant circumstances, an applicant must be able to address adverse material from other sources and must be told about a critical issue that is not apparent from the nature of the decision or its governing statute. But a decision-maker is not generally required to expose mental processes or provisional views ([30]). The question was whether the adverse issue or inference was already apparent on the known material, assessed in the context of the whole exchange with the Department ([31]).
The Court treated the timing of GXT25's claim as an obvious issue. He had first provided information about Christianity, then raised homosexuality in a later response. His explanation, under a heading about delay in lodging his protection application, said fear of being targeted for his sexual orientation made him hesitant to disclose his identity. The Court considered that this did not explain why he omitted the claim from his original application and first response, or why he became willing to disclose it on 21 November ([32]-[34]). The delegate's inference about credibility came from the sequence and content of GXT25's own material. On this record, the Court held, the delegate did not have to invite a further response to a credibility inference that was “obviously open on the known material” ([33]). Requiring such an invitation would have required the delegate to expose mental processes about information GXT25 himself had supplied, which the law did not require ([35]).
The Court also rejected the complaint about the country information. The protection application form warned about false or misleading information and required a declaration that the information and attachments were complete and correct. The Department's request also warned against fraudulent documents and false claims ([12]-[15], [37]). The veracity of the claims and documents was therefore an obvious issue. The country information did not raise a new, hidden issue requiring a separate opportunity to comment ([36]-[38]).
On s 57, the Court concentrated on the statutory definition. Section 57(1)(b) limits relevant information to information specifically about the applicant or another person, rather than information only about a class of people. The country information concerned the prevalence of document fraud and bribery in Kenya generally. The fact that the delegate used it to assess GXT25's documents did not change its character. The Court put the point directly: “Section 57(2) is concerned with the nature of the information and not the use to which it is put by a decision-maker” ([39]-[42]). The information therefore did not come within the relevant-information definition on these facts.
For the third ground, the Court considered the credibility reasoning as a whole. It described unreasonableness as a conclusion that may be applied to a decision lacking “an evident and intelligible justification” ([44]). It rejected the proposed general proposition that acknowledging disclosure difficulties for LGBTIQ+ claimants necessarily makes it irrational to treat delayed disclosure as relevant to credibility. The significance of delay depended on the particular circumstances and reasoning ([45]).
Those circumstances included more than timing. The delegate considered the explanation for delay, the way the claim was presented, the absence of information about how GXT25 came to terms with his sexual orientation or managed his relationship with his mother, the lack of detail about the alleged assault, and inconsistency with his original religious-persecution claim ([46]-[47]). The Court considered it open to the delegate to infer that the claimed homosexuality was false on the combined material. It also clarified that the delegate had not treated the country information as proof that the documents were false; it assisted the delegate in weighing the documents against the broader credibility assessment ([48]-[49]).
The judgment presents itself as an application of existing principles, not as a new general rule. For procedural fairness, it relies on the Alphaone principle, approved in SZBEL: an applicant may need notice of a critical issue that is not apparent, and an opportunity to respond to adverse material, but ordinarily need not be told every provisional view or inference the decision-maker is considering ([30]). The judgment applies that distinction to the sequence of GXT25's own disclosures and the warnings given during the application process ([31]-[38]).
The decision's contribution is its fact-specific application. It treats the timing of the claim and the veracity of documents as apparent issues in this application, given the form's warnings, the declaration and the Department's s 56 request. It does not establish that delayed disclosure is always an obvious credibility issue, or that notice can never be required where a decision-maker draws an inference from delay. The Court expressly stresses that the assessment depends on the particular facts ([34], [45]).
For s 57, the judgment applies the statutory distinction between information specifically about an applicant and general information about a class. Its stated rule is that decision-maker use does not alter the nature of information ([39]-[42]). The reasons do not suggest that country information can never be relevant to a decision. Rather, the point is that the particular general information about document fraud in Kenya did not become information specifically about GXT25 merely because it affected the weight given to his documents.
For legal unreasonableness and illogicality, the Court uses the formulations associated with SZMDS and Li: a decision may be unreasonable if it lacks an evident and intelligible justification, and a conclusion that different minds could reach differently is not thereby illogical or unreasonable ([44]). The judgment does not announce that credibility findings based on late disclosure are insulated from review. It examines the strands of reasoning and finds them sufficient, together, to make the inference open on this record ([47]-[49]).
The decision thus leaves the cited framework in place while applying it to a particular migration decision. It should not be read as a merits determination about whether GXT25's claim was true. The High Court was deciding whether the pleaded review grounds established legal error, not reassessing the protection claim itself.
At [30], the Court sets out the procedural-fairness principle: a person may have a right to respond to adverse material and to a critical issue that is not apparent, but the decision-maker need not expose “mental processes or provisional views”. In plain English, fairness can require notice of an unexpected issue, but it does not necessarily require advance disclosure of every tentative conclusion.
At [33], the Court says the inference of belated fabrication was “obviously open on the known material”. In context, this means the Court considered the sequence of disclosures and the explanation already supplied sufficiently visible to GXT25 that the delegate did not have to announce the possible inference and invite another response.
At [37], the Court says the truthfulness of the claims and documents was an “obvious and known” issue, referring to the warnings and declaration in the application materials. This does not mean that every document in every visa application is automatically suspect. It explains why this particular applicant was not entitled to a further invitation to comment on the general question of document authenticity.
At [41], the Court states that s 57 concerns the nature of the information, not its use. In plain English, a decision-maker cannot turn general country information into information specifically about an applicant simply by relying on it when assessing that person's evidence.
At [44], the Court describes unreasonableness as potentially applying to a decision without an “evident and intelligible justification”. The question was not whether the High Court would itself make the same credibility finding, but whether the delegate's reasoning was legally open and intelligible.
At [45], the Court says that recognising disclosure difficulties for LGBTIQ+ claimants is not logically incompatible in every case with treating delayed disclosure as relevant to credibility. The significance of delay turns on the individual circumstances and reasoning. The judgment does not endorse an automatic inference of fabrication from late disclosure.
The procedural-fairness reasoning is most relevant where an applicant's own application materials or communications make the disputed issue apparent. Here, the applicant's form contained warnings about false information and a declaration of accuracy, while the later s 56 request warned against fraudulent documents and false claims ([12]-[15], [37]). A different record, such as a decision based on an undisclosed, applicant-specific adverse fact, may raise a different fairness question; the judgment does not decide that hypothetical.
The timing analysis is relevant where a decision-maker evaluates successive accounts, and the applicant has had an opportunity to explain a delay but gives an explanation that does not address the precise gap in the account. GXT25's explanation referred to general hesitancy but, in the Court's view, did not directly explain the omission from his initial application and first response or the timing of the later disclosure ([32]-[34], [46]). The reasons caution against turning that application into a universal rule: they say the issue depends on the case's circumstances ([34], [45]).
The s 57 analysis is relevant where the material relied on is general country information rather than information specifically about the applicant or another identified person. In this case it concerned document fraud in Kenya generally. The delegate's use of that information in weighing particular documents did not alter its statutory character ([40]-[42]).
The unreasonableness analysis is relevant where a credibility finding is challenged as illogical because one strand of reasoning is said to be inconsistent with another. The Court assessed the delegate's reasoning cumulatively, rather than treating delayed disclosure as the only basis for the conclusion ([47]-[49]). The judgment also concerned a High Court application after the ordinary review route had been missed and involved an extension request under s 486A. Its extension ruling followed from the Court's conclusion that the review grounds lacked merit ([6]-[8], [51]).
The supplied judgment does not contain any later judicial treatment of GXT25 v Minister for Immigration and Citizenship. It is dated 9 September 2026, and the text provides no subsequent cases applying, distinguishing, approving or criticising it. No claim about later treatment can therefore be made on the supplied material.
The judgment itself relies on earlier authorities. It describes the procedural-fairness principle as expressed in Alphaone and approved in SZBEL ([30]). It refers to SZBYR in support of the construction of s 57 ([41]). It explains the unreasonableness approach by reference to SZMDS and Li ([44]). These are the authorities this Court used; they are not later treatment of GXT25.
For research purposes, the judgment's own account of its scope matters. It rejects a proposed general rule about delayed disclosure and instead emphasises assessment in the circumstances of the particular case ([34], [45]). Any later court's treatment would need to be checked against the later judgment itself. That information is not included in the source provided here.
The judgment does not specify exactly what additional explanation, if any, would have made the delay issue non-obvious or required a further invitation to comment. It explains what GXT25 said and why the Court considered it insufficient in these circumstances ([32]-[35], [46]). The boundary between an inference that is obvious on an applicant's own material and one that is a critical, undisclosed issue remains fact-dependent under the approach stated at [30]-[31].
The reasons do not decide how s 57 applies to country information that contains information specifically about an identified individual, or to mixed material combining general conditions with particularised information. The Court dealt with general information about the prevalence of fraudulent documents in Kenya and held that its use did not change its character ([40]-[42]).
Nor does the judgment decide the merits of GXT25's protection claim or make a general finding about the reliability of Kenyan documents. It reviews whether the delegate's reasoning involved legal error. The distinction is important: the Court held that the inference was open on the material, not that it independently established the historical truth or falsity of the claimed assault ([47]-[49]).
Finally, the reasons do not supply a general formula for when an extension under s 486A(2) is necessary in the interests of the administration of justice. The Court had an explanation for delay before it, but refused the extension because the grounds were without merit and granting more time would be futile ([7]-[8], [51]). The judgment therefore leaves the application of the statutory test in other circumstances to be assessed on their own facts.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
STEWARD AND JAGOT JJ
GXT25 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT
GXT25 v Minister for Immigration and Citizenship
[2026] HCA 32
Date of Judgment: 9 September 2026
M48/2026
ORDER
1. The application for an extension of time to file the application for a constitutional or other writ is refused.
2. The application for a constitutional or other writ is dismissed.
3. The plaintiff pay the defendant's costs.
Representation
The plaintiff is represented by Asylum Seeker Resource Centre
The defendant is represented by Australian Government Solicitor
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
GXT25 v Minister for Immigration and Citizenship
Administrative law – Judicial review – Where delegate refused application for Protection (Subclass 866) visa – Where plaintiff claimed protection on basis of fear of harm by reason of religion –Where plaintiff subsequently raised fear of harm by reason of sexual orientation – Where delegate found sexual orientation claim fabricated – Whether denial of procedural fairness – Whether delegate required to notify plaintiff of adverse inference arising from delay – Whether delegate failed to comply with s 57 of Migration Act 1958 (Cth) by failing to provide particulars of country information and invite comment – Whether delegate's decision illogical, irrational or unreasonable – Whether extension of time should be granted.
Words and phrases – "adverse inference", "constitutional writ", "country information", "extension of time", "fabricated claim", "illogicality", "irrationally", "judicial review", "jurisdictional error", "merits review", "opportunity to comment", "procedural fairness", "protection visa", "request for further information", "sexual orientation", "significant harm", "unreasonableness".
Migration Act 1958 (Cth), ss 57, 486A.
GAGELER CJ, STEWARD AND JAGOT JJ.
"Ground 1: The Delegate denied the Plaintiff procedural fairness by failing to give the Plaintiff notice of, and an opportunity to respond to, critical adverse issues and inferences upon which the Decision [relating to the protection visa] turned, including findings of fabrication and the rejection of the Plaintiff's documentary evidence.
Ground 2: The Delegate failed to comply with s 57 of the [Migration Act] in that the Delegate relied upon relevant information, being country information concerning document fraud, without giving the Plaintiff particulars of that information, informing the Plaintiff of its relevance, or inviting the Plaintiff to comment upon it prior to making the Decision.
Ground 3: The Delegate's finding that the Plaintiff's claim was fabricated was illogical, irrational or unreasonable, in that it lacked an evident and intelligible justification."
It is common ground between the plaintiff and the Minister that the Federal Circuit and Family Court of Australia (Division 2) does not have jurisdiction to hear an application for judicial review of the decision because the decision was capable of being reviewed by the Administrative Review Tribunal ("the Tribunal") under Pt 5 of the Migration Act but the plaintiff did not seek such review within the time prescribed by that Act.1 The Federal Court of Australia also lacks jurisdiction.2 Accordingly, the matter cannot be remitted to either Court.3
Pursuant to r 25.09.1 of the High Court Rules, the Court or a Justice may make an order determining an application for a constitutional or other writ without listing it for hearing. That is the course we now take. The Court has received extensive written submissions from the parties. The Minister consents to the determination of the matter without it being listed for hearing. The plaintiff does not consent but has advanced no reason why the interests of justice in its determination would be advanced by listing it for hearing.
For the following reasons, the application for an extension of time is to be refused and the application for a constitutional or other writ is to be dismissed.
The plaintiff is a citizen of Kenya. He arrived in Australia on 11 February 2022 as the holder of a Student (Subclass 573) visa. On 16 October 2024, he applied for the protection visa. The Minister's delegate refused that application on 12 December 2024. The plaintiff sought review of the delegate's decision in the Tribunal, but that application was made outside the time prescribed by the Migration Act as then in force (seven working days4) and was therefore required to be dismissed. He applied for judicial review of the Tribunal's decision, but the Federal Circuit and Family Court of Australia (Division 2) dismissed that application on 16 April 2026.5 It follows that the plaintiff is presently an unlawful non-citizen and is liable to removal from Australia.
The jurisdiction invoked by the plaintiff in filing the application for a constitutional or other writ is regulated by s 486A of the Migration Act.6 By s 486A(1) of the Act, the application was required to be filed within a period of 35 days from the date of the delegate's decision. By s 486A(2), the Court is empowered to make an order extending that 35-day period as it considers appropriate if an application for such an order is made in writing to it "specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order" and it "is satisfied that it is necessary in the interests of the administration of justice to make the order".
In an affidavit supporting the application for an extension of time, the plaintiff explained that: (i) he paid approximately $5,000 for assistance with his protection visa application but, after lodgment, received no further assistance; (ii) he was detained at Yongah Hill Immigration Detention Centre when his protection visa application was refused but did not understand the legal importance of the refusal or the extremely short deadline for review; (iii) his mental health had deteriorated significantly while in detention and, as his phone had been disconnected, he could not access his documents, including the full set of documents he had lodged in support of his protection visa application, to enable him to apply for review to the Tribunal; and (iv) he was placed in High Care Accommodation following a dispute where he believed his phone had been stolen and requested help from the welfare team at the detention centre but did not receive any assistance. He first obtained pro bono assistance from the Asylum Seeker Resource Centre ("the ASRC") in September 2025. After his application to the Federal Circuit and Family Court of Australia (Division 2) was dismissed the ASRC provided him with support. The time between the dismissal of his application to the Federal Circuit and Family Court of Australia (Division 2) on 16 April 2026 and the filing of the application in this Court on 15 May 2026 has been "due to the time required to consult with [his] pro bono supporters and prepare the complex documentation required for" this Court.
Having arrived in Australia on 11 February 2022, the plaintiff made a protection visa application on 16 October 2024 after expiry of his student visa and being taken into immigration detention.
When making his application for a protection visa, the plaintiff did not make a claim for protection based on his sexual orientation. Rather, his claim was that he feared harm in Kenya by reason of his Christianity. The form required to be completed for the protection visa application included information as follows:
"It is up to you to provide the details of your claim for protection and supporting evidence before the Department of Home Affairs makes a decision.
You must clearly explain why you need protection in Australia and provide the Department with complete and accurate information as soon as possible."
"A decision may be made on the information provided in this application and applicants may not be given another opportunity to present these claims. Therefore, it is important that applicants include all details relevant to their case and attach any supporting documentation to this application before it is submitted."
"Giving false or misleading information is a serious offence in Australia and you can face criminal penalties.
A person who provides false or misleading information in a visa application can face large fines, 10 years in jail, or both."
"The applicants declare that they:
...
• Have provided complete and correct information in every detail on this form, and on any attachments to it."
A question on the form asked, "Did this applicant experience harm in that country or those countries?" (in the plaintiff's case, meaning Kenya). The plaintiff responded "No" to that question.
Under s 56 of the Migration Act, the Minister's Department informed the plaintiff that it needed further information to assess the application. The request for further information included the following:
"Do not provide fraudulent information
Do not provide fraudulent documents or make false claims. If you do:
● we may refuse your application
● it might affect any applications you make in the future."
"Your application for a valid Protection visa was made on 16/10/2024. In your Protection visa application form you stated that you most recently arrived in Australia on 11/02/2022. Therefore, it took you approximately more than two years to apply for a protection visa. Given you claim to fear returning to your home country, I am inviting you to explain why you did not apply for a protection visa soon after you realised that you were unable to return to your home country because you feared you would experience harm if you did so."
The plaintiff first responded to the request on 15 November 2024 (AEDT) and provided further information about his Christianity.
The plaintiff responded again on 21 November 2024, which was when he first made the claim concerning his sexual orientation. Under the heading "Threats and Harms Experienced", the plaintiff said that he "was assaulted [on 14 July 2021] by unknown individuals who targeted [him] because of [his] sexual orientation as a gay man". He said that he sustained a tear on his lower lip, injuries to his hands and chest pains. His mother took him to hospital where he received medical care and was bedridden for a week due to the severity of his injuries. His mother filed a complaint with the police. The plaintiff also said that he had been subjected to years of harassment and discrimination in Kenya due to his sexual orientation. The accompanying documents the plaintiff lodged included a Medical Examination Report dated 14 July 2021, a letter from the plaintiff's mother, a letter from the hospital, and a "Submission Before the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on Unlawful Killing Of LGBTIQ+ Persons in Kenya" published by the "National Gay and Lesbian Human Rights Commission".
In providing this information the plaintiff included the following statements:
"Delay in Lodging the Protection Visa Application
I arrived in Australia on 11th February 2022 on a student visa and applied for a Protection Visa on 16th October 2024. The delay in lodging my application was due to the following:
"In his initial application for protection, the [plaintiff] did not raise any protection claims other than fear of persecution due to his religious affiliation, being a Catholic man from Kenya. Neither did he raise any other claim other than religious claims in his first response dated 15 November 2024.
In his second submission dated 21 November 2024, the [plaintiff] introduced new claims about being a homosexual man. He indicated that he had been subjected to years of verbal harassment and discrimination in Kenya because he was a homosexual man."
"of note that the [plaintiff] did not advance his new claims at an earlier occasion during the opportunities he had to advance his protection claims; as such his newly introduced testimony appears formulaic and opportunistic. It is the omission of the claim until the last opportunity to comment about his protection claims rather than an inability to say much about it which leads me to question the veracity of his claims about his alleged sexual orientation."
The delegate also recorded that the plaintiff had "not provided a detailed account of what happened" on 14 July 2021, which "casts further doubts that the situation is not as claimed". As to the plaintiff's contention that "stigma and discrimination against LGBTQ+ individuals are pervasive throughout the country, including urban centres", the delegate said this was "not supported by country information which shows that although homophobic attitudes are prevalent throughout Kenya, larger cities such as Nairobi may be more tolerant of LGBTI persons, with the presence of civil society organisations including LGBTI NGOs and churches, and an active LGBTI community".
In respect of the documents the plaintiff had lodged, the delegate said that the delegate had:
"taken into consideration country information, which indicates that the use of fraudulent documents is reported to be common in Kenya, and pervasive corruption is a serious problem, with police and authorities issuing identification documents being cited the most for taking bribes[]. I give weight to the country information in light of the [plaintiff's] evolving testimony about his alleged sexual orientation as well as his alleged assault. ... I put greater weight in the view formed that the [plaintiff] has fabricated a claim[] regarding his sexual orientation and an alleged attack to enhance his protection claims."
"the [plaintiff] indicated that his delayed protection visa application was because he had hoped to remain in Australia through a student visa pathway and he did not initially seek legal advice about a protection visa. In addition, the [plaintiff] feared being targeted for his sexual orientation in Australia, therefore he felt hesitant to disclose his identity, even in a legal setting. I note that the [plaintiff's] response contradicts earlier written assertions that he left Kenya fearing persecution as a member of a religious minority. I consider that had he believed that he had genuine claims to Australia's protection obligations under the Convention he would have applied much sooner. ... The delay in lodging his Protection visa application adds weight to the finding that the [plaintiff's] claims appear not to reflect the reality of his circumstances."
The plaintiff's case in respect of ground one is that the request for further information under s 56 of the Migration Act is irrelevant as it was made before the plaintiff had disclosed his sexual orientation (and, indeed, that disclosure was made as part of the plaintiff responding to the invitation to provide further information in support of the application for a protection visa). The plaintiff contends that it is obvious that the plaintiff's delay in making that disclosure was a critical issue underlying the delegate's conclusion that the plaintiff had fabricated this claim, but the delegate did not give the plaintiff any notice that "the delay in disclosure would be treated as evidence he had fabricated his new claim" with the consequence that the plaintiff "was not given an opportunity to address a key basis on which his claim was rejected". According to the plaintiff, because "the timing of the claim was susceptible to multiple explanations, the Delegate could not treat the delay as evidence of 'fabrication', a finding critical to the ultimate conclusion, without first inviting the Plaintiff to address the adverse inference".
The plaintiff also contends that a further denial of procedural fairness arose from the treatment of the plaintiff's documentary evidence. In sum, "[g]eneral material (the country information) was effectively converted into a determinative finding about the authenticity of particular evidence" (the plaintiff's documents relating to the assault) in circumstances where no notice of any such inference was given to the plaintiff, so that he was not given any opportunity to address that inference (of fabrication).
The plaintiff accepted that procedural fairness does not require a decision-maker to expose their mental processes or provisional conclusions but submitted that where a decision is likely to turn upon an adverse inference that is not apparent from the material, the decision-maker is required to bring that matter to the attention of the applicant.8 The errors, submitted the plaintiff, are material in that there is a realistic possibility that, had that opportunity been afforded, the outcome could have been different.9
Neither party submitted that the terms of s 51A(1), read with s 57(1) of the Migration Act, were relevant. The matter is to be decided on that basis.10
The relevant principle as expressed in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd11 and approved in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs12 is that:
"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."
The first requirement of procedural fairness relevant to this case is that which required the delegate to identify to the plaintiff any issue critical to the decision which was not apparent from its nature or the terms of the statute under which it was made. Whether an adverse finding was obviously open or apparent on the known material is a question which is to be decided on all relevant materials, which, in this case, includes all the documents summarised above. The plaintiff's submission that all events before 21 November 2024 are irrelevant is incorrect.
The plaintiff addressed the delay in the making of his application for a protection visa in the information provided on 21 November 2024 and, in so doing, said that the "fear of being targeted for [his] sexual orientation made [him] hesitant to disclose [his] identity, even in a legal setting". This statement did not explain why the plaintiff had not included his claimed homosexuality in his protection visa application or the further information provided on 15 November 2024 other than, perhaps, indirectly in the form of a general fear about disclosing his sexual identity.
As the Minister submitted, that the plaintiff chose to include this information under the heading "Delay in Lodging the Protection Visa Application" demonstrates that the plaintiff was aware of the potential relevance of delay in making his claims. The plaintiff must have known that he first claimed to fear harm in respect of his sexual orientation in Kenya on his third provision of information to the Department (being his second response to the request for further information) yet left his explanation for doing so, such as it was, vague and general. It cannot be said in these circumstances that the delegate's adverse conclusion, that the plaintiff had belatedly fabricated his claimed homosexuality and that this explained why the claim had not been made when he made the protection visa application or when he first responded to the request for further information, was other than obviously open on the known material. In the Minister's words:
"The delegate's assessment of what significance to attach to the sequence and timing of the Plaintiff's new basis for claiming protection was not some extraneous matter of which the Plaintiff had no notice, it was an assessment of the internal consistency of the Plaintiff's own account."
The plaintiff's contention, that his "explanation for his delay does not show he was on notice of the specific, dispositive inference ultimately drawn against him, namely that concealment [of his sexual orientation] was treated as fabrication" and that "authorities on provisional reasoning do not permit a dispositive fabrication finding to be made without affording a person in [his] position ... procedural fairness by giving him notice of the proposed finding and an opportunity to respond" goes too far. Each case will depend on its facts. The material available to the delegate that LGBTIQ+ persons in Kenya, including refugees, are "often compelled to hide their sexual orientation or gender identity to protect themselves" did not and could not explain why the plaintiff did not refer to his sexual orientation until his third occasion of giving information to the Department without any clear explanation of why he had not done so in his initial protection visa application (which he made while in Australia) or why he was willing to do so on 21 November 2024. That is, the delegate did no more than draw inferences as to the credibility of the plaintiff's claims from the very material the plaintiff himself submitted about a topic of obvious relevance, being the delayed claim for protection together with the even more delayed claim to fear harm by reason of being homosexual.
It follows that to conclude that the delegate was subject to a duty to give the plaintiff an opportunity to comment on the delay in the disclosure of his claimed sexual orientation would involve a duty on the delegate to "expose his or her mental processes"13 about the information as and when submitted by the plaintiff. There is no such duty known to law.
The second requirement of procedural fairness relevant to this case is that which required the delegate to enable the plaintiff to comment on adverse material from other sources which was put before the decision-maker. This duty does not arise if inferences supported by that information, while from a source other than the person whose interests stand to be affected by the decision, would obviously be open on the known material. The other source of information in this case was the country information. The issue that information disclosed was the commonness of fraudulent documents being created by authorities in Kenya in return for a bribe. The adverse conclusion the delegate drew from this information was that greater weight should be given to the delegate's view from the delayed protection visa application and delayed claims of fear of harm based on homosexuality than to the documents which referred to the assault being caused by the plaintiff's sexual orientation.
It could not be said, however, that the veracity of the documents the plaintiff had provided in support of his protection visa application was other than an obvious and known issue for consideration by the delegate. As noted, the protection visa application form contained several references to the need for the information and documents provided to be complete, accurate and not false or misleading. The form required an applicant to declare that the information and documents provided were complete and correct. The request the Minister gave for further information under s 56 said "Do not provide fraudulent documents or make false claims" and that, if an applicant did, the application may be refused. In these circumstances, the veracity of the information and documents provided in support of any application, in common with the veracity of the plaintiff's claims, constituted obvious and known issues on the available material. It therefore cannot be said that the plaintiff was denied an opportunity to "rebut or qualify by further information, and comment by way of submission" the country information on which the delegate relied as part of the decision-making process. That information did not raise any issue not apparent from the nature of the decision or the terms of the statute under which it was made. The veracity of the plaintiff's claims and supporting documents was obviously open to question on the known material.
"(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it."
The plaintiff's submissions in support of ground two do not meaningfully confront the limitation imposed by s 57(1)(b) confining "relevant information" required to be provided to an applicant to information that "is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member". The plaintiff submitted that in this case the delegate did not use the country information "merely as general background" but, rather, used that information "in an adverse and evaluative way as part of the basis for rejecting specific documents provided by the Plaintiff in support of his claim".
This submission is unpersuasive. Section 57(2) is concerned with the nature of the information and not the use to which it is put by a decision-maker.15 To be relevant information, the information must be "specifically about the applicant or another person and ... not just about a class of persons of which the applicant or other person is a member". Country information, almost by definition, is not information specifically about an applicant or another person. In the present case, the country information concerned the prevalence of fraudulent documents in Kenya obtained because of the bribery of officials. That the use the delegate made of the country information led to the delegate giving greater weight to the views the delegate had formed about the plaintiff's lack of veracity than to the information in the supporting documents the plaintiff lodged does not transform the nature of the country information into information specifically about the plaintiff or any other person.
Ground two, accordingly, must be rejected.
The plaintiff particularised the alleged legal unreasonableness and illogicality of the delegate's decision in three ways: (i) relying on the plaintiff's delay in raising his sexual orientation claim as a reason for concluding it was fabricated; (ii) using country information to assign limited weight to the documentary material supplied in support of the sexual orientation claim; and (iii) using country information about the greater tolerance of LGBTIQ+ persons in Nairobi to reject the plaintiff's account of the alleged assault and his claim that relocation within Kenya was not viable. The plaintiff relied on Minister for Immigration and Citizenship v SZMDS16 to support the contention that the delegate's reasoning from the plaintiff's delay in disclosing his claim based on sexual orientation was the result of the delegate's "own (untested) assumptions about human behaviour" rather than a rational inference from the evidence, a flaw that also infected the balance of the delegate's relevant reasoning. The plaintiff also referred to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs17 to support the proposition that in protection claims based on sexual identity, concealment may be consistent with a well-founded fear of persecution, such that delayed disclosure does not inherently undermine credibility and that, as the plaintiff put it, "conduct explicable by the very fear said to be in issue cannot rationally be treated as proof that the fear was invented, unless the decision-maker engages with that explanation".
As explained otherwise in Minister for Immigration and Citizenship v SZMDS, the question of legal unreasonableness and illogicality ultimately involves deciding if, on the material, the conclusion reached was open or not. If the conclusion is one in respect of which, on the available material, "different minds might reach different conclusions", it cannot be said that the conclusion is legally unreasonable or illogical.18 That is, "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification".19
The plaintiff's contention that the delegate "accepted that LGBTIQ+ claimants often face difficulty in disclosure, then treated the same delay as proof of fabrication. A decision-maker cannot rationally do both" must be rejected. For one thing, that is not what the delegate did. The delegate simply evaluated the credibility of the plaintiff's claimed homosexuality in all the circumstances in which it was made, including the delay. For another, that was precisely what the delegate was required to do – evaluate the plaintiff's claim in all the circumstances, including the delay in the making of that claim. Finally, acceptance that LGBTIQ+ claimants often face difficulty in disclosure is not inherently logically inconsistent with a conclusion that a delay in disclosure is proof of fabrication of a claim – it all depends on the particular circumstances of the case and the reasoning to the conclusion of the particular decision-maker. The plaintiff's submissions wrongly seek to elevate a question which can be answered only in a specific case to a general proposition or principle.
(1) The application for an extension of time to file the application for a constitutional or other writ is refused.
(2) The application for a constitutional or other writ is dismissed.
(3) The plaintiff pay the defendant's costs.
Migration Act 1958 (Cth), ss 476(2), 500(1)(c). ↩
Migration Act, s 476A. ↩
Judiciary Act, s 44. ↩
Migration Act, s 347(3)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), s 13. ↩
GXT25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 367. ↩
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 37 [42]. ↩
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at 588-589 [11]-[12]. ↩
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 161-163 [29]-[32]. ↩
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134-135 [30]-[31]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at 327 [7]. ↩
See, eg, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 267 [42]; (2019) 264 CLR 421 at 442 [35].
GXT25
Minister for Immigration and Citizenship
(2015) 257 CLR 22
(2022) 276 CLR 579
(1994) 49 FCR 576
(2006) 228 CLR 152
(2018) 264 CLR 123
(2019) 264 CLR 421
(2024) 280 CLR 321
(2010) 241 CLR 252
(2007) 81 ALJR 1190
(2010) 240 CLR 611
(2003) 216 CLR 473
(2013) 249 CLR 332
The application for an extension of time was refused, the application for a constitutional or other writ was dismissed, and the plaintiff was ordered to pay the defendant's costs.
The Minister submitted that the Minister "does not rely on prejudice as a basis to resist the extension of time. The primary reason why an extension of time should be refused is the absence of merit in each of the Plaintiff's three grounds". In circumstances where an explanation for the substantial delay has been provided, the Minister's position is appropriate, noting that the terms of s 486A(2) enable this Court to extend time only if both conditions are satisfied, which include that the extension is necessary in the interests of the administration of justice.7
Ground one, accordingly, must be rejected.
It also cannot be said that the delegate failed to engage with the plaintiff's explanation for the delay in disclosing his claimed homosexuality. This was not a case in which the plaintiff claimed that he had concealed his sexual orientation in Kenya and had continued to do so in Australia, including by not disclosing his homosexuality in his application for a protection visa. Rather, on the third occasion on which the plaintiff provided information to the Department, the plaintiff disclosed his homosexuality, said he had been assaulted and repeatedly verbally abused in Kenya because of his homosexuality, and had delayed in lodging his application for a protection visa as "[t]he fear of being targeted for [his] sexual orientation made [him] hesitant to disclose [his] identity, even in a legal setting". That explanation did not directly deal with the delay in disclosing the plaintiff's sexual orientation until the third occasion on which the plaintiff provided information to the Department or why the plaintiff became willing to disclose the information on that occasion.
The delegate's reasoning process towards rejecting the plaintiff's claimed homosexuality involved multiple strands. The delegate took into account: (i) the delayed disclosure and the explanation for it (such as it was); (ii) the "formulaic and opportunistic" appearance of the claim in the circumstances in which it was made; (iii) the lack of any information as to how the plaintiff "came to terms with his sexual orientation despite claiming that he had faced years of harassment and discrimination in Kenya" or managed to support his mother in Kenya; (iv) the lack of "a detailed account of what happened" in respect of the claimed assault; and (v) the inconsistency of the new claim with the original claim that he left Kenya fearing persecution as a member of a religious minority. There was nothing illogical or irrational in the delegate inferring that the plaintiff's claimed homosexuality was false given this reasoning.
Contrary to the plaintiff's submissions, the delegate did not reason that the plaintiff's claimed homosexuality was false because the country information led to the inference that the supporting documents were false. Rather, the delegate reasoned that in all of the circumstances the plaintiff's claimed homosexuality was false, and the country information assisted the delegate to give greater weight to this view than to the information in the documents which apparently supported the plaintiff's claimed homosexuality and his being assaulted in Kenya on that basis. No similar error exists in respect of the documents themselves or in respect of the plaintiff's claim that he could not safely relocate within Kenya (a claim which necessarily failed given the delegate's rejection of the plaintiff's claimed status as a homosexual).
Nor can it be said that the delegate's "reliance on the UKHO [United Kingdom Home Office] report[20 was selective and contradictory". The delegate referred to that report in support of the proposition that "although homophobic attitudes are prevalent throughout Kenya, larger cities such as Nairobi may be more tolerant of LGBTI persons" when considering the plaintiff's claim that he could not relocate within Kenya. The delegate, however, had already concluded that the plaintiff's claimed homosexuality could not be accepted given the multiple other considerations which informed the delegate's decision (as set out above).
Ground three, therefore, must be rejected.
(1994) 49 FCR 576 at 591-592. ↩
(2006) 228 CLR 152 at 161-163 [29]-[32]. ↩
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 [29]. ↩
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 [29]. ↩
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 [18]; 235 ALR 609 at 616. ↩
(2010) 240 CLR 611 at 627-628 [51]-[53] (in dissent in the result). ↩
(2003) 216 CLR 473 at 489-491 [40]-[43]. ↩
(2010) 240 CLR 611 at 648 [131]. ↩
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76]. ↩
United Kingdom Home Office, Country Policy and Information Note – Kenya: Sexual Orientation and Gender Identity and Expression (2020) at 12. ↩