Konrakun v Minister for Immigration and Citizenship

1. Before this Court is an application filed on 16 July 2022 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 27 June 2022. The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (delegate), dated 5 October 2021, to refuse to grant the applicants Student (Temporary) (Class TU) (Subclass 500) visas (student visas).
2. I must determine whether there was jurisdictional error as a result of a failure by the Tribunal to afford the applicants procedural fairness. The applicants have claimed that at the Tribunal hearing there were issues with the audio which impacted on the ability of the interpreter to interpret. They have also claimed that the Tribunal Member was biased and that the Tribunal failed to give proper, genuine and realistic consideration to the evidence.
3. The application is dismissed for the reasons that follow.

1. The applicants are citizens of Thailand (Court Book (CB) 31). The first applicant arrived in Australia on 2 June 2012 (CB 112). The second applicant is her husband (CB 30), listed as an accompanying member of the family unit (CB 4-5). The second applicant arrived in 2009 on a student visa (CB 219).
2. The first applicant was granted her first student visa in March 2013. Since that time, she has been granted a further three student visas. The fourth student visa ceased in May 2021 (CB 114).
3. On 11 February 2021, the applicants applied to the Department of Home Affairs (Department) for the student visas (CB 1-28). The application was accompanied by a statement from the first applicant dated 11 February 2021 (CB 48-50) and various financial documents (CB 32-34 and 53-54).
4. The first applicant proposed to study four courses at the Crown Institute of Business & Technology including (CB 48):
   • Certificate IV in Marketing & Communication from 05/04/2021 - 13/03/2022
   • Diploma of Marketing & Communication from 04/04/2022 - 03/09/2023
   • Advanced Diploma of Marketing & Communication from 25/09/2023 - 16/03/2025
   • Graduate Diploma of Management (Learning) from 07/04/2025 - 22/03/2026
5. On 11 February 2021, the Department acknowledged the application for the student visa by way of email to the applicant's education agent (CB 56-57).
6. On 5 October 2021, the Department, refused to grant the applicants the student visas (CB 59-63) finding that the first applicant did not meet the genuine temporary requirements under cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 65).
7. On 22 October 2021, the applicants applied to the Tribunal for review of the Department's decision (CB 70-78). The applicants nominated a migration agent as the authorised recipient to receive correspondence from the Tribunal (CB 75).
8. On 25 October 2021, the Tribunal acknowledged the application and invited the applicants to provide material and written arguments for the Tribunal to consider (CB 80-82).
9. On 15 February 2022, the Tribunal invited the applicants to provide information about the first applicant's enrolment and the requirement that she was a genuine applicant for entry and stay as a student. The Tribunal sent the invitation by way of email to the nominated migration agent. The invitation letter provided that any response by the applicants should be received by 1 March 2022 (CB 88-95).
10. The applicants provided various documents to the Tribunal including a 'Letter of Offer' from Step One College (CB 96-97), a completed 'Request for Student Visa Information' form (CB 110-125), an undated statement from the first applicant with various attachments relating to her course enrolments (CB 183-186) and seven Confirmation of Enrolment's (CoEs). The CoEs identified the following enrolments for the first applicant:
    • 'Intensive English (Beginner to Advanced)' at Castle College Pty Ltd from 01/04/2013 to 07/06/2013 (CB 98)
    • 'English Language Programs (Beginner to Advanced)' at LETS Australia Pty Ltd from 29/07/2013 to 16/08/2013 (CB 99)
    • 'Advanced Diploma of Tourism' at Australian College of Vocational Studies Pty Ltd from 30/09/2013 to 20/09/2015 (CB 100)
    • 'English Language (Programs) (Elementary to Advanced)' at Macquarie Education Group Australia Pty Ltd from 11/05/2015 to 22/05/2015 (CB 101-102)
    • 'Certificate IV in Frontline Management' at Crown Institute of Business and Technology Pty Ltd from 06/07/2015 to 10/06/2016 (CB 103-104)
    • 'Diploma of Management' at Crown Institute of Business and Technology Pty Ltd from 04/07/2016 to 09/06/2017 (CB 105-106)
    • 'Advanced Diploma of Management' at Crown Institute of Business and Technology Pty Ltd from 03/07/2017 to 08/06/2018 (CB 107-108)
    • 'Diploma of Accounting' at Crown Institute of Business and Technology Pty Ltd from 02/07/2018 to 08/09/2019 (CB 109)
11. On 18 March 2022, the Tribunal invited the applicants to attend a hearing on 5 April 2022 by way of telephone (CB 188-192).
12. The applicants' migration agent responded on 4 April 2022 confirming the first applicant's attendance at the upcoming hearing (CB 198-202).
13. A Tribunal hearing was held on 5 April 2022. The first applicant attended the hearing to give evidence and present arguments assisted by a migration agent and an interpreter in the Thai language. The second applicant was not in attendance at the hearing (CB 203-205).
14. On 27 June 2022, the Tribunal affirmed the delegate's decision not to grant the applicants the visas (CB 209) and notified them by way of their migration agent the following day (CB 207).

TRIBUNAL DECISION DATED 27 JUNE 2022 [TD] (CB 209-221)

1. The Tribunal identified the visa under review and summarised the procedural history of the matter (TD [1-6]).
2. The Tribunal referred to the relevant law, set out the relevant legal and policy framework (TD [9]-[12]) and summarised the evidence (TD [13-26] and [38-44]).
3. The Tribunal made the following findings and comments (TD [21-53]):

(a) circumstances in the applicant's home country: The Tribunal recorded that there was no evidence before it that the first applicant held concerns about returning to Thailand for reasons of military service commitments or political and civil unrest and that this did not present as a significant incentive for her not to return home (TD [44]). The Tribunal found that she was in a good position relative to others in Thailand due to her education and level of family support (TD [45]). The Tribunal considered the first applicant's family ties in Thailand in light of her circumstances in Australia and found that her ties in Thailand did not provide a significant incentive for her to return home (TD [47]).

(b) potential circumstances in Australia: The Tribunal noted that the first applicant had lived in Australia for the last 10 years and had a substantial degree of knowledge about living in Australia (TD [37]). The Tribunal accepted that the first applicant lived in Australia with the second applicant and they were not in a relationship of concern (TD [46]). The Tribunal found that the first applicant had substantial ties to Australia. The Tribunal considered that the applicants were both in long term employment earning high levels of income. The Tribunal found that the first applicant's circumstances considered in light of other evidence, provided a strong incentive for her to remain in Australia rather than return to Thailand (TD [48]). The Tribunal noted that the grant of a further student visa would provide the first applicant an opportunity to make an application for her son to come to Australia as a dependant (TD [47]). The Tribunal found that the first applicant was undertaking further study for the purpose of maintaining residency in Australia (TD [27-28] and [34]).

(c) value of the course to the applicant's future: the Tribunal recorded that the first applicant was enrolled in three courses in Australia (TD [21]). It noted that upon completion of those courses she would have been studying in Australia for 13 years and 9 months which was not consistent with the stay being temporary (TD [22]). The Tribunal considered the number of qualifications that the first applicant had obtained both in Australia and Thailand and she already had ample opportunity to complete the courses in marketing and communication (TD [27-28]). The Tribunal also considered that the first applicant's proposed courses would only marginally improve her employment prospects and remuneration back in Thailand (TD [29]). The Tribunal considered that there were similar courses available in Thailand (TD [30]). The Tribunal found that the courses the first applicant had studied were not connected to each other, that they were not complementary and that they did not lead to a position in employment (TD [31]). The Tribunal found that the evidence did not demonstrate that the first applicant would be able to earn the amount she had claimed in Thailand if she obtained the proposed qualifications (TD [32]). The Tribunal noted that the roles the first applicant was seeking did not necessarily require the proposed qualifications and that the proposed qualifications would only provide marginal development regarding her knowledge (TD [33]). The Tribunal found that the proposed courses did not reveal career and study progression and ultimately that they were inconsistent with her level of education and previous studies (TD [34-35]).

(d) First applicant's immigration history: The Tribunal recorded that there was nothing before it to indicate that the first applicant had experienced any other visa refusal or cancellation (TD [49]).

1. The Tribunal noted that there were various inconsistencies in the first applicant's evidence in relation to the date of birth of her son and the date of her marriage (TD [50-51]). The Tribunal found that these inconsistencies called into question her credibility (TD [52]).
2. The Tribunal found that the applicants had been staying in Australia for the purpose of earning a high level of income which they had been remitting back to Thailand to support their family (TD [53]).
3. The Tribunal considered that the primary objective of the student visa application was to maintain an ongoing residency in Australia (TD [54]). The Tribunal was therefore not satisfied that the first applicant genuinely intended to stay in Australia temporarily and therefore found that she did not meet cl 500.212(a) of Schedule 2 of the Regulations (TD [55]).
4. The Tribunal found that the first applicant did not meet the requirements for the grant of a student visa according to the Regulations and affirmed the decision not to grant the student visas (TD [59]).

1. The applicants applied to this Court for judicial review in an application filed on 16 July 2022.
2. The applicants also filed an affidavit deposed on 14 July 2022 attaching a copy of the Tribunal Decision and containing a number of statements.
3. The matter was docketed to me on 6 November 2025. By orders of the Court on 10 November 2025, the applicants were ordered to file and serve an amended application, any affidavit evidence and submissions by 26 November 2025. No further documents were filed.
4. The grounds for judicial review are set out in the application filed on 16 July 2022. The applicants seek orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
5. On 12 December 2025, the first applicant appeared before this Court as a litigant in person. The second applicant was not in attendance. Mr Pattinson of Mills Oakley appeared for the first respondent. An interpreter in the Thai language assisted the court. The first applicant confirmed that she could understand the interpreter.
6. The following documents were before the Court - the initiating application for judicial review, the supporting affidavit of the first applicant filed on 16 July 2022, a Court Book (numbering 230 pages and marked as Exhibit 1R) filed 21 October 2022, and written submissions of the Minister filed 10 December 2025. The first applicant's affidavit included statements, which have been treated as submissions by this Court, with no objection from the Minister.

1. At [309] to [316] in Hamod v New South Wales [2011] NSWCA 375 Beazley JA (with Giles and Whealy JJA agreeing) outlined the relevant principles in ensuring 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.
   • The unrepresented litigant should have sufficient information about the practices and procedure of the court so far as reasonably practicable for the purpose of ensuring a fair trial.
2. These principles apply in civil cases: Mortimer J (as her Honour then was) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) 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 first applicant had a copy of the Court Book and the Minister's submissions. These submissions were interpreted for the first applicant. At the hearing I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the first applicant were to succeed in her 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 at 272. The first applicant confirmed that she understood.
4. During the hearing I took the first applicant through the grounds for review advanced in the application, and provided the first 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]).

1. The applicants have claimed that the Tribunal Decision fell into jurisdictional error. The function of this Court is to review the Tribunal Decision and determine whether the Tribunal has fallen into error.
2. Section 476 of the Migration Act 1958 (Cth) (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 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 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, 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 [2-3] (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 Tribunal was required to consider whether the applicants met the legislative criteria for a Student (Temporary) (Class TU) (Subclass 500) visa.
2. Section 29(1) of the 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: s 31(1) and s 31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
3. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act.
4. The criteria for the visa applied for by the applicants are set out in cl 500.2 of the Schedule to the Regulations. Relevantly to this matter, cl 500.212 requires that the first applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter...

CONSIDERATION OF THE GROUNDS OF JURISDICTIONAL ERROR ALLEGED BY THE APPLICANTS

1. The applicants have advanced three grounds of jurisdictional error. As the applicants were litigants in person, I have interpreted their grounds as broadly as possible and been alert to error in accordance with the principles in MZAIB at [100].

1. The first ground of jurisdictional error was that:

The Tribunal erred in law by failing to give "proper, genuine and realistic consideration" to the evidence adduced by the applicant. This resulted in miscarriage of justice.

1. The applicants provided particulars of this ground as follows:

There were oral and several documentary evidence adduced which are on record in relation the review of the sub class 500 student visa application lodged by the applicant. It is submitted that the Tribunal failed to appreciate all the evidence provided by the applicant in an intelligible manner, resulting in miscarriage of justice.

1. The applicants did not state what evidence was not considered properly or in an intelligible manner. The first applicant was asked about this at the hearing before me, and invited to make submissions. She said that she did not wish to do so (Tp 6.15-22).
2. It appears from the particulars that the claim is that the Tribunal did not properly consider all the evidence before it.
3. The Minister submitted that the Tribunal comprehensively addressed the relevant criteria and referenced the applicants' evidence. I accept this submission.
4. The criteria for the visa were set out by the Tribunal at [9] and [10] of the decision. Under the heading 'Does the applicant intend genuinely to stay in Australia temporarily?', the Tribunal referred to Direction No 69 and the applicant's evidence as well as its consideration of that evidence (TD [11] - [58]). The supporting documentation was set out at TD [16]. Large extracts of the first applicant's statements were set out in the decision: TD [18] and [24].
5. The Tribunal then considered the applicants' evidence in some detail, considering circumstances in the applicants' home country (TD [17], [43-45], [47]), circumstances in Australia (TD [38-39], [42-41], [47-48]), value of the course to the applicants' future (TD [23-26] and [30]) and the applicants' immigration history (TD [41], [49]).
6. A finding that a decision-maker has not engaged in an active intellectual process will not be lightly made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [48].
7. In Carrascalao at [47], 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. The claim that the Tribunal did not properly consider the evidence is not supported by clear evidence. A fair reading indicates that the applicant conducted a detailed evaluation of the evidence (see [21] - [59] of the Tribunal Decision).
2. I am satisfied that the Tribunal gave proper, genuine and realistic consideration to the applicants' evidence. No jurisdictional error is established as claimed in Ground 1.

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

The Tribunal erred in law by failing to adjourn the hearing when there were several flaws in the audio visual communication system resulting in a flawed process of conducting the hearing.

1. They provided particulars of this ground as follows:

The hearing was conducted by an audio visual link which at times was not very clear or audible. Further the quality of interpretation service provided was deficient, resulting in the questions by the member to be repeated and rephrased by the interpreter and also the answers by the applicant was also repeated. The lack of proper interpretation services and improper audio visual link vitiated the" procedural fairness" of the hearing conducted by the Tribunal.

1. The applicants advanced as Ground 3 in their application:

The Tribunal erred in law by making unwarranted, sarcastic remarks at the time of hearing which vitiated the procedural fairness of such hearing leading to a jurisdictional error in the nature of "apprehended bias"

1. They provided particulars of this ground as follows:

During the process of the applicant deposing before the Tribunal on oath, the member made comments and remarks which had the impact that the issue has already been prejudged, including a comment to the effect that the applicant could have got a "Doctorate " when considering the period of time spent as a student in Australia ignoring the fact that the applicant comes from a non English speaking country with a different (lower) educational standards as compared to Australia . This principle of apprehended bias is enunciated in MZYYF v MIAC [2014] FCCA 75.

1. At the hearing before me, the first applicant was invited to make submissions on these grounds. The first applicant said that her Tribunal hearing was a telephone hearing and she was on the telephone in a room with her agent. She said that the audio of the interpreter was 'on and off' but she could hear the Tribunal Member clearly (Tp 7.01-04).
2. In relation to bias, she said that at the hearing before the Tribunal, the Tribunal Member said, 'if you have had completed your studies like this you must have a doctorate already' (Tp 8.35-37).
3. I explained to the first applicant that there was no transcript of the Tribunal hearing in evidence, so I was unable to evaluate if there were difficulties with the audio or whether there was bias by the Tribunal Member. I said that I could consider the evidence as found in the Court Book and Tribunal Decision if she wished to point to evidence of interpreter issues or bias (Tp 8.39-9.03). I also explained to the first applicant that she could seek leave to adjourn the matter to order a transcript of the Tribunal hearing if she believed a transcript of the Tribunal hearing would support the claims she was making. I explained that I would need to seek the Minister's views and the Minister may seek costs of the adjournment.
4. I also outlined for the benefit of the first applicant the principles of both actual bias and apprehended bias (as articulated in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 (Jia) and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI)). I explained that bias must be 'distinctly made and clearly proved': Jia at [69] (Tp 9.13-29).
5. The first applicant said that she did not wish to seek an adjournment in order to obtain a transcript of the Tribunal hearing, due to the costs involved (Tp 9.35-45).
6. I am sympathetic to the position of applicants who cannot afford to source the evidence they believe that they may need. Having said that, a fair reading of the Tribunal Decision does not indicate that such evidence would have necessarily supported the grounds advanced. The Tribunal Decision does not indicate that there were any audio problems for the interpreter during the hearing. For example, the Tribunal made reference to the interpreter at [5] of the Tribunal Decision. It would be expected that there was some reference to technological problems if they were interfering with the interpretation.
7. A fair reading of the Tribunal Decision does not reveal that the Tribunal Member was biased in any way. Although not everything is recorded in a Tribunal decision and there may have been comments made which were not recorded, there does not appear on the face of it to be sarcasm or rudeness.
8. I note further that the applicants were represented at the Tribunal hearing such that their representative could have raised these issues at the time.
9. Furthermore, the applicants have not particularised the claims of bias beyond reference to one comment, which they suggested revealed sarcasm. It is unlikely that if this comment was made (and I do not have evidence that it was), that it would amount to actual or apprehended bias.
10. A display of impatience or irritation if not sustained, does not ordinarily establish bias: SZRUI at [91]. The court at [31] referred to the following:

...in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, 131 FCR 102 at 126-127 made the following observations as to what would not constitute a reasonable apprehension of bias:

[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:

While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283

1. In MZYYF v Minister for Immigration and Citizenship [2014] FCCA 75 at [24] per Riethmuller J, the court held (at [24]), that 'in determining whether or not there would be reasonable apprehension of bias it appears clear that an applicant must show more than would indicate that a reasonable bystander has a vague sense of unease or disquiet'.
2. It is well established that sarcastic or even rude behaviour on part of the Tribunal is not equivalent to bias, nor does mere insensitivity or a failure to act in conformity with proper standards: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872 at 126-127 per Kenny J. This decision was upheld in Leo'o Olo v Minister for Immigration and Multicultural Affairs [2026] FCA 10 at [73].
3. I am not satisfied that actual bias is demonstrated. I am not satisfied that the evidence establishes that 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 at [71]-[72].
4. I am also not satisfied that apprehended bias is demonstrated. I am not satisfied that 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 applicants' case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32] (referring to the High Court authority in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]).
5. I have also considered whether the applicants were afforded procedural fairness in that they were provided with a real and meaningful opportunity to present evidence at the telephone hearing. I am satisfied that procedural fairness was afforded. Section 366 of the Act empowered the Tribunal to hold hearings by telephone. In Akkala v Minister for Immigration and Citizenship [2025] FedCFamC2G 1822 at [67] - [69] I considered the principles in relation to the fairness of telephone hearings. I adopt the reasoning in that decision:

In SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 (SZJTK), the appellant claimed that the failure to afford him an in-person hearing meant that he had been denied a real and meaningful opportunity to appear before the Tribunal pursuant to s 425(1) of the Act (the equivalent provision for protection visa cases). The Federal Court found that s 425(1) did not require that the opportunity to appear before the Tribunal required an in-person hearing. The court observed at [23] that:

In this day and age, it is quite common for courts and tribunals to have people appearing before them using modern technology such as video conference facilities. Most of the concerns of decades past about the use of such technology have disappeared: see McDonald v Commissioner of Taxation (2000) ATC 4271 at [21]-[22] per Finn J.

While SZJTK was a case about a video hearing, the same principles apply in respect of telephone hearings (see for example Njoroge v Minister for Immigration and Citizenship [2025] FCA 930 (Njoroge) per Jackson J; Dileep v Minister for Immigration and Citizenship [2025] FedCFamC2G 1829 per Judge Johns).

1. In the matter before me I cannot speculate as to whether the hearing conducted was better or worse than if it had been conducted 'in person': MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87; (2017) 72 AAR 257 per North, White and O'Callaghan JJ at [29]. There is no transcript before me to demonstrate any unfairness in the hearing. There is no evidence before this Court that there were technical difficulties or that the first applicant at any time complained about the hearing mode or requested a hearing in person. Similarly, in Njoroge v Minister for Immigration and Citizenship [2025] FCA 930 at [41] there was no request for a different forum of hearing. In that case His Honour observed that:

there is little to say other than to express agreement with the reasons of the primary judge. As before his Honour, so on appeal, there was no evidence that Mr Njoroge suffered any difficulties in taking part in the hearing or that he raised any such difficulties with the Tribunal. At the hearing of the appeal Mr Njoroge simply made assertions from the bar table about phone connection difficulties he had when taking part in the hearing, but those difficulties were not established by any evidence, and nor was it apparent from anything before the Court that the alleged problems detracted in any significant way from the fairness of the Tribunal hearing.

1. I am satisfied that the applicants were afforded procedural fairness. There is no jurisdictional error revealed in the Tribunal process or decision.

1. For the reasons set out above, I am not satisfied that the Tribunal's reasons were attended 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 seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.