Minister for Immigration, Citizenship and Multicultural Affairs v CFV17 [2025] FCA 613

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

EBQ17 v Minister for Immigration and Border Protection [2019] FCA 1183

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALD 224

Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

Administrative and Constitutional Law and Human Rights

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

1. The appeal be allowed.
2. The orders of the Federal Circuit and Family Court of Australia made on 14 November 2022 in proceeding MLG1089/2017 be set aside and in lieu thereof it be ordered that:

(a) The application be dismissed.

(b) The applicant pay the first respondent's costs in accordance with Item 3 of Div 1 of Part 2 of Sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (in force as at 14 November 2022).

1. Subject to order 4, there be no order as to the costs of the appeal.
2. Within 7 days of the date of these orders, the appellant may apply for a costs order different to order 3 by filing and serving a submission of no more than 3 pages (costs application).
3. If the appellant makes a costs application under order 4, the first respondent may serve a responsive submission within 14 days of the date of these orders.
4. Any costs application made under order 4 will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. This is an appeal brought by the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) from orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia (Federal Circuit Court) on 14 November 2022, quashing the decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 30 March 2017, and requiring the Tribunal to re-determine the matter in accordance with law. The Tribunal had affirmed a decision of a delegate of the Minister, made on 6 September 2016 under s 65 of the Migration Act 1958 (Cth) (Act), refusing to grant the first respondent a protection visa.
2. Pursuant to s 10 of Sch 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Administrative Review Tribunal is substituted for the Tribunal as a party to this proceeding with effect from 14 October 2024. Pursuant to s 25 of Sched 16, any orders of the Court in this appeal are taken to relate to the Administrative Review Tribunal.
3. The application for judicial review by the Federal Circuit Court was made pursuant to s 476 of the Act which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. As such, review by the Federal Circuit Court is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
4. The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, this Court must determine whether the primary judge was correct to find that the decision of the Tribunal was affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541.
5. By a notice of appeal filed on 14 December 2022 (and dated 12 December 2022), the Minister raised the following single ground of appeal:

The learned primary judge erred by finding that the Administrative Appeals Tribunal acted unreasonably or irrationally in rejecting the visa applicant's claim to fear harm upon return to Malaysia on the basis of his sexuality.

1. The delay in concluding the judicial review of the migration decision concerning the appellant is lamentable. There was substantial delay in the hearing of the application for judicial review in the Federal Circuit Court (through no fault of the primary judge who heard and delivered judgment on the application with expedition). There has been substantial delay in the hearing of the appeal in this Court, caused by a back log of migration appeals involving self-represented litigants following the COVID-19 pandemic (when in-person hearings had to be suspended for a considerable period). This appeal was allocated to my docket on 4 March 2025 and heard on 12 May 2025.

1. The first respondent is a Malaysian citizen who arrived in Australia on 18 March 2016 as the holder of an Electronic Travel Authority (Subclass 601) visa.
2. On 9 June 2016, the first respondent applied for a protection visa. His claims for protection, as stated in the application, can be summarised as follows:

(a) The Malaysian government was "seeking and chasing" him because he is a member of the "Campaign Group", which opposes the unfair electoral system in Malaysia.

(b) The "Campaign Group" was considered a national threat and the Malaysian government did not like anyone who spoke out against or opposed their ideas.

(c) If he returned to Malaysia, he would be imprisoned and/or forced to pay a very high fine.

(d) He could not relocate within Malaysia, because if he was still in Malaysia, he would have to serve a sentence.

(e) He also said that he had a "bad record" and it would be difficult to survive in his own country.

1. The first respondent's protection visa application was not accompanied by any supporting documents other than documents establishing his identity.
2. On 6 September 2016, a delegate of the Minister refused to grant the first respondent a protection visa. The delegate's decision was stated to be based on the lack of detail and evidence in the first respondent's claims.
3. On 14 September 2016, the first respondent applied to the Tribunal seeking a review of the delegate's decision. The application was heard by the Tribunal on 8 May 2017, during which the first respondent gave evidence. At the hearing, the first respondent made a new claim for protection. This was summarised by the Tribunal in the following terms (T [28]):

At the hearing the applicant introduced a new claim, which he stated was the main reason he could not return to Malaysia. The applicant stated that he was a homosexual and could not hide any longer. He did not want his family to know of his sexual persuasion, including his daughter.

1. On 9 May 2017, the Tribunal affirmed the delegate's decision. Relevantly, the Tribunal concluded that the first respondent was not a witness of truth with respect to his claim to be homosexual (T [34]) and found that the applicant had concocted the claim when his primary claims for protection were shown to be contradicted by country information (T [39]). The Tribunal's reasons are discussed in more detail below.
2. On 25 May 2017, the first respondent filed an application in the Federal Circuit Court seeking, under s 476 of the Act, judicial review of the Tribunal's decision. The first respondent was self-represented at that hearing. On 14 November 2022, the primary judge made orders setting aside the Tribunal's decision, finding that the Tribunal's adverse credibility findings with respect to the first respondent's claimed homosexuality were legally unreasonable and thus affected by jurisdictional error.
3. By notice of appeal filed on 14 December 2022, the Minister contends that the primary judge erred in that conclusion.

1. In its reasons, the Tribunal recorded and made findings in relation to a number of claims the first respondent made before the Tribunal in support of his application. It is apparent from the Tribunal's reasons that the first respondent raised a number of matters before the Tribunal that were not the subject of his original claims for protection. It is also apparent that many of those matters were not capable of founding a claim for protection. Despite that, the Tribunal addressed each of those matters.
2. It is contextually relevant to note that the first matter raised by the first respondent was his bankruptcy in Malaysia (T [17]). He was discharged from bankruptcy in 2009. The Tribunal recorded that:

The applicant claimed that the bankruptcy was caused by a person who assumed his identity when he lost his ID card. The Tribunal asked if the applicant had a fear of harm arising out of the circumstances of his bankruptcy. The applicant stated that it caused him stress and depression, and made his life difficult. He had a distrust of the system because of attitude of the court which held him responsible for his financial systems [sic].

1. In relation to the first respondent's original claims for protection (made in his visa application), the Tribunal noted the following matters (T [21], emphasis added):

The applicant stated he had been involved in protests in Kuala Lumpur, attending rallies complaining against the government. The applicant stated he had been involved in protests when Anwar Ibrahim was arrested. He did not like the government, and had his bad experience with the courts. He stated he could not recall when he had gone to protests, but there were incidents where the fire brigade was used to disperse the crowd. The applicant had no recall as to when he attended the protests. The applicant was very vague as to the activities involved in the protests.

1. It is tolerably clear that the first respondent's reference to having a "bad experience with the courts" is a reference to his bankruptcy, where he considered that the court had held him responsible for financial default caused by another person. It is also tolerably clear that the first respondent's statement in his visa application that he had a "bad record" is a reference to his bankruptcy.
2. With respect to the original claims made by the first respondent in his visa application, the Tribunal concluded that the relevant country information demonstrated that the first respondent would not be harmed for his involvement in protests against the Malaysian government as claimed (T [25]), and that the first respondent could return to Malaysia and continue to be involved with rallies and demonstrations, and hold an anti-government imputed political opinion, without facing a real chance of serious harm or a real risk of significant harm (T [28]). The Tribunal concluded that the applicant did not face a real chance of serious harm or a real risk of significant harm on the basis claimed (T [26]).
3. After addressing the first respondent's original claims for protection, the Tribunal addressed a new claim raised at the hearing concerning the first respondent's sexuality. The Tribunal's reasoning and findings with respect the new claim were the subject of review by the primary judge and the subject of this appeal. It is convenient to reproduce them in full:

28. At the hearing the applicant introduced a new claim, which he stated was the main reason he could not return to Malaysia. The applicant stated he was a homosexual and could not hide any longer. He did not want his family to know of his sexual persuasion, including his daughter.

29. The Tribunal noted that there was no indication of this claim in his written application. The Tribunal asked the applicant about the preparation of the application. The applicant confirmed at the commencement of the hearing that the information contained in the application was true and correct. He stated that there was a little extra detail he wanted to add, but did not do so because he was in a hurry to lodge the application. The Tribunal noted that the applicant was not in a hurry to lodge the application, he arrived in March and applied for protection. The applicant stated that a person on a farm where he was working assisted him in drafting the application. The Tribunal noted that the applicant had identified on the application that he spoke, read and wrote English. He had advised the Tribunal in his application that he did not need an interpreter, though an interpreter was made available at the hearing by the Tribunal and was occasionally used by the applicant. The Tribunal also noted that the applicant held a senior role in a travel agency in Malaysia prior to coming to Australia, so was experienced and used to dealing with detailed information.

30. The Tribunal noted that the claims regarding his sexual identity went far further than a little extra detail, as the applicant had stated at the outset of the hearing. The Tribunal questioned why nothing was mentioned in the written materials. The applicant stated he was shy and did not want to disclose this information to the person who assisted him in drafting his application. The Tribunal noted that the applicant had lodged the claim himself, and that he was capable of including information of this nature himself in his application, that he spoke, read and wrote English, that he was used to completing forms and dealing with detailed information in his role as a senior executive in a travel agency. The Tribunal expressed its significant concern that the applicant would not raise this claim at the first opportunity, which the applicant now stated was the main reason for him not wanting to return to Malaysia.

31. The applicant in fact confirmed that he had been married in Malaysia, and had a child who was now 13 years old living with his brother. His wife, a Pakistani citizen, had returned to Pakistan and had filed for divorce in 2009. The Tribunal noted that this was not information that demonstrated he was gay. The applicant claimed that the marriage was arranged to cover the fact he was gay. He stated that a nephew of his had asked him questions about this recently, that he had found compromising pictures of the applicant. He was concerned his nephew would really embarrass him. He did not want his daughter to know about his sexual identity.

32. The Tribunal asked the applicant whether he had male partners in Malaysia, The applicant stated he had a partner in 2004, who left him after he went bankrupt. The Tribunal asked if he had ever been in trouble with the authorities because of his sexuality. He stated that in 2007 he had been at a disco which had been raided, he had been held with others overnight by the police, but released the next day without charge. He stated that on other occasions he had fled the nightclub after tipoffs that it would be raided.

33. The applicant stated he had been depressed in Malaysia hiding his identity. He had been on medication, though noted that this was also because of his debt issues. He had met a person in Australia, but it was a platonic friendship, they were not lovers.

34. The Tribunal has considered the applicant's evidence regarding his sexual identity. The Tribunal notes the guidance of the courts with respect to assessing the credibility of an applicant, as detailed above. The Tribunal has significant concerns regarding the evidence of the applicant, such that the Tribunal does not consider him to be a witness of truth in this aspect of his claims.

35. The Tribunal does not accept that the applicant would not raise this claim at the first instance. While he may have been reluctant to raise this with the person he had assisting him drafting the application, the applicant was competent and capable of including this information himself without the assistance of anyone else, so that the disclosure would be limited. The applicant at the outset of the hearing confirmed that the application was true and correct, with some minor details to be added. This is not a minor detail, this was the reason that the applicant stated was the main reason he did not want to return to Malaysia.

36. The applicant's actual evidence regarding his sexual identity in Malaysia was vague and limited. His evidence around his relationship in Malaysia was very limited, as was his disclosure about his experience as a gay man in Kuala Lumpur. The applicant stated that there were some gay men who were overt in their identity, he was not, but it also appears from his evidence that he was a married man who was looking after his child. While he states his wife went back to Malaysia and ultimately divorced him, his relationship as disclosed was as a heterosexual man, and not a homosexual hiding his identity.

37. His claimed experience as a gay man included a claim of being arrested, held overnight but released without charge. He said he would be arrested again, though no such arrest occurred in the next 9 years he lived in Malaysia. The Tribunal notes that the applicant made no mention of this in his application, he in fact mentions that he fears that he will be imprisoned and fined because of his involvement with the anti-government 'campaign group' but no reference to any real detention by the authorities. The absence of this information is relevant as it is some of the detail that the applicant said wanted to provide more details about, but he has not made any mention of it. His reluctance to disclose the information to the person assisting him in drafting the application does not explain the absence of this arrest as part of his application, which he could have added without the detail as to why he had been detained. The applicant does say he had a bad record, but the evidence he provided around this at the hearing referred to his bankruptcy order.

38. The Tribunal has carefully considered this claim. The applicant is a 48 year old man who has good English skills and relevant employment experience in completing detailed information. The Tribunal accepts that the applicant may not have wanted to have a person helping him know all his information, but this does not explain why the applicant would not draft his own information into the application for what he now says is the main reason he cannot return to Malaysia. The Tribunal does not accept that the applicant would not include such a claim if it was true, given the opportunity to do so.

39. The Tribunal finds that the applicant has concocted the claim that he is a homosexual in Malaysia. The Tribunal considers that the applicant concocted this claim when his primary claims as presented were shown to have contrary country information. The Tribunal finds that the applicant is not homosexual. The Tribunal finds that the applicant will not be embarrassed by his nephew, or has any concern regarding his sexual identity being disclosed to his daughter. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm arising from his sexual identity.

1. The contention of jurisdictional error before the primary judge related solely to the Tribunal's reasons with respect to the first respondent's claim to fear harm on account of being homosexual (PJ [6]).
2. Respectfully, the reasons of the primary judge adopt an unorthodox approach to the receipt of further evidence on an application for judicial review. Where, as in this case, the ground of review is that the decision-maker's reasons were legally unreasonable or illogical, there will rarely (if ever) be a basis for receiving further evidence. At the hearing, the first respondent sought to rely on further evidence to corroborate his claim to be homosexual (PJ [16]). The primary judge ultimately concluded that it was unnecessary to determine whether the further evidence was admissible (PJ [41], [70]). However, the primary judge records submissions made by the first respondent at the hearing seeking to corroborate his claim to be homosexual (at PJ [18]-[22]. The submissions were irrelevant. It was unnecessary for them to be recorded but, if they were recorded, the primary judge ought to have found that they were irrelevant. The primary judge's later reasoning suggests that her Honour took some account of those matters, which is impermissible.
3. The primary judge concluded that the Tribunal's adverse credit findings and reasoning disclosed "potential" jurisdictional error on the basis of illogicality or unreasonableness (PJ [56]). The primary judge's reasons for reaching that conclusion were expressed as follows:

58. The reasoning is based on an inference that the Visa application did not allude to the claim at all, therefore the claim was concocted when the primary claims as presented were shown to have contrary country information.

59. However, the Applicant had stated he wanted to provide more information before the member discussed what were characterised as the primary claims of bankruptcy and fear of persecution or significant harm based on involvement in political campaigns.

60. Further, the Applicant did not ever rely on the bankruptcy to found a claim for protection.

61. The member has concluded that the Visa application did not mention the claim of homosexuality in any way and rejected the Applicant's evidence given during the hearing as to why it was not explicitly mentioned.

62. However, the Applicant stated at the commencement of the hearing that he wanted to provide some additional detail and it is plausible that he was referring to a claim of homosexuality in the Visa application which had not been "spelt out" or explicitly stated. In arriving at this view, I am conscious of the difficulties and differences in manner of expression and demeanour of self-represented persons for whom English is not their first language and who are involved in unfamiliar legal processes. Similar difficulties and differences have been subject to judicial and other comment on many occasions. The judicial comment about difficulties and differences that self-represented persons experience with legal process were observed in the context of Tribunal or court process. However, I consider they are equally applicable where an applicant to a Visa Application completes it without legal advice, as in this case.

63. Further, the member concluded that the claim of homosexuality was false because the Applicant could have included information about his arrest without disclosing his homosexuality to the person who assisted him, 23 or alternatively he had good English skills and relevant employment in completing detailed information so could have included it himself.

64. The Applicant may well have been referring to his detention overnight and fears of harm should he return to Malaysia based on his homosexuality given what is written in answer to question 94 and 96 of the Visa application. The member acknowledged the reference to "bad record"; they attribute that statement to evidence about the bankruptcy, but this seems illogical given the fact the Applicant did not claim protection on any basis connected to his past bankruptcy.

65. Further, the Tribunal reasoned that the Applicant was "experienced and used to dealing with detailed information" and relied on this to treat the absence of specific mention of the claim of homosexuality until the hearing as indicative that the claim was fabricated. However, in my view this too unreasonably ignores the judicial commentary and the recognised difficulty that applicants in seeking protection face.25 Further, it factually implies that the member did not give the Applicant the benefit of the doubt and treat his evidence liberally when there was no evidence before the Tribunal contradicting the Applicant's evidence that he was homosexual.26

66. The Tribunal's described the Applicant's evidence at the hearing as "vague and limited", but this seems unreasonable and unfair given the extent of the evidence discussed at [47] of these reasons, especially because there was no evidence contradicting the Applicant's evidence.

67. Finally, the Tribunal relied on a finding that the Applicant disclosed his relationships in Malaysia to be heterosexual based on evidence of marriage to women and having a child, rather than as a homosexual hiding his identity. However, having been married and having had a child is not inconsistent with the Applicant's evidence of the marriage being arranged and that he had been hiding his homosexuality. In short, there may be various ways in which a person publicly portrays themselves for the purpose of hiding homosexuality. I consider the Tribunal finding and reasoning to be unreasonable and illogical.

68. The basis upon which the Tribunal concluded that the claim of homosexuality was untrue and fabricated demonstrates jurisdictional error on the basis of illogicality and unreasonableness.

1. The Minister filed written submissions prior to the hearing and addressed the Court at the hearing. The submissions have been taken into account in the consideration of the appeal and it is unnecessary to reproduce them.
2. The first respondent is self-represented and did not file written submissions prior to the hearing. The first respondent advanced oral submissions at the hearing. The submissions were largely to the effect that his claim was truthful and should have been believed by the Tribunal. As such, they were directed to the merits of his claim, rather than whether the Tribunal's reasons were affected by jurisdictional error. The first respondent also handed up a document in support of his claims (in the form of an unsigned statutory declaration). I marked the document for identification but I am unable take it into consideration on the present review. It is not relevant to the issue for determination.

1. In the absence of substantive submissions from the first respondent that were properly directed to the issues arising on this appeal, I have carefully reviewed the decision of the Tribunal, the documentary record on which the Tribunal's decision was based, and the reasons of the primary judge. I respectfully disagree with the primary judge's conclusion. The decision of the Tribunal does not display legal unreasonableness or other jurisdictional error and the primary judge was in error to find that it does.
2. The relevant finding of the Tribunal concerned the credibility of the first respondent's claim to be homosexual. Findings as to credibility are not immune from judicial review. However, to establish jurisdictional error, it is usually necessary to show that the findings were legally unreasonable, for example by being based on illogical or irrational findings or inferences of fact: Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [145], [147] (Gummow J); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALD 224 at [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). The principles which guide judicial review of findings concerning credibility have been discussed by the Full Federal Court in a number of decisions, including CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (CQG15) at [36]-[38]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]; and AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [41]. The principles include the following:

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

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

(c) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.

1. Although the Tribunal's reasons on the question of credibility are somewhat lengthy and repetitive, it can be seen that the Tribunal disbelieved the first respondent for four principal reasons.
2. First, the first respondent did not raise the homosexuality claim when he made his protection visa application (T [29], [35]).
3. Second, and relatedly, the first respondent had the capacity to raise the homosexuality claim when he made his visa application. In that regard, the first respondent spoke, read and wrote English and had worked in a travel agency in Malaysia before coming to Australia and so was used to dealing with detailed information (T [29], [30], [35]).
4. Third, the first respondent did not raise, or allude to, the claim at the commencement of the hearing before the Tribunal. The first respondent had confirmed at the commencement of the hearing that the information in his visa application was true and correct, but that "there was a little extra detail he wanted to add" (T [29], [35]). The Tribunal concluded that this was not a reference to the homosexuality claim because the claims regarding his sexual identity went further than a "little extra detail" (T [30], [35]).
5. Fourth, the evidence given by the first respondent with respect to his sexual orientation was vague and limited (T [36]). The evidence given by the first respondent was that: he had a male partner in Malaysia in 2004, but the partner had left him when he became bankrupt (T [32]); in 2007 he had been at a disco which had been raided by the police and he had been held overnight but released the next day without charge (T [32]); and he was not in an intimate relationship in Australia (T [33]). The Tribunal noted that the first respondent had made no reference to his arrest, or any aspect of his sexual orientation, in his visa application (T [37]).
6. The weight to be attributed to evidence is a matter for the Tribunal. On judicial review, the Court's role is confined to a review of the legality of the decision. In the present matter, the relevant question is whether there was a rational basis for the Tribunal's adverse credibility finding. Considered in totality, the matters relied upon by the Tribunal did provide a rational basis for the Tribunal's finding.
7. Respectfully, the primary judge's reasons do not demonstrate that the Tribunal's finding was illogical or legally unreasonable. The primary judge's reasons involved the following steps.
8. First, the primary judge correctly observed that the Tribunal's analysis commenced with the fact that the first respondent had not included the claim to fear harm on account of being homosexual in his original visa application (PJ [58]). The primary judge then observed that the first respondent had told the Tribunal at the commencement of the hearing that he wanted to provide more information (PJ [59]), and reasoned that it is plausible that he was referring to the claim that he is homosexual (PJ [62]).
9. Respectfully, the primary judge's suggestion that it was "plausible" that the first respondent was referring to his claim to be homosexual when he said at the commencement of the hearing that he wanted to provide more information is not supported by the Tribunal's reasons. The Tribunal explained that the first respondent had said that his application was correct, but that "there was a little extra detail he wanted to add". The Tribunal was justified in finding that the homosexuality claim was not a "little extra detail". More significantly, however, even if the first respondent was alluding to his claim to be homosexual, that does not undermine the starting point of the Tribunal's analysis. The fact that the first respondent had not included the claim to fear harm on account of being homosexual in his original visa application, and raised the claim for the first time in the Tribunal hearing, is relevant to an assessment of the credibility of the claim. Indeed, at the time of the Tribunal hearing, s 423A of the Act required the Tribunal to draw an adverse inference on the credibility of a new claim if it was not put forward before the primary decision-maker and the Tribunal was satisfied there was no reasonable explanation why.
10. Second, the primary judge correctly observed that the Tribunal's reasoning also involved a finding that the first respondent could have included in his visa application information about his claimed arrest without disclosing his homosexuality to the person who assisted him, or could have completed his visa application himself (PJ [63]). The primary judge then reasoned that the first respondent's visa application may have been referring to these matters in the answers to questions 94 and 96 of the visa application (PJ [64]).
11. Respectfully, the primary judge's suggestion that the first respondent's visa application may have been referring to these claims in the answers to question 94 and 96 is untenable. First, the suggestion ignores the answers to questions 89 (why did you leave that country), 90 (what do you think will happen to you if you return to that country), and 93 (give reasons for why you did not try to move to another part of the country), which are the precursor to questions 94 (do you think you will be harmed or mistreated if you return to that country) and 94 (give details about why you are unable to relocate). The claim to fear harm on account of being homosexual is not referred to in the answers to the preceding questions, which are solely directed to the first respondent's claimed political activities. Second, the suggestion is based solely on the statements that the first respondent fears that the government will imprison or fine him and that he has a "bad record". Throughout the answers, the fear of imprisonment or a fine is related to the first respondent's involvement with the "Campaign Group". While the statement that the first respondent has a "bad record" is not otherwise explained in the visa application, it is explained in the course of the Tribunal hearing. As stated earlier, the first respondent stated at the hearing that he had a "bad experience with the courts" (T [21]) which is a reference to his bankruptcy, and that evidence also explains the statement in his visa application. It is implausible that the reference to having a "bad record" is a reference to his arrest while at a disco in 2007, as he gave evidence that he was released without charge.
12. Third, the primary judge criticised the Tribunal's reasoning that the first respondent was experienced and used to dealing with detailed information and therefore had the capacity to include the homosexuality claim in his visa application (PJ [65]). The primary judge considered that the Tribunal unreasonably ignored judicial commentary and the recognised difficulty that applicants in seeking protection face, and did not give the applicant the benefit of the doubt (PJ [65]).
13. The primary judge's criticisms are not justified and unsound as a matter of principle. The Tribunal was entitled to take into account the time at which and circumstance in which the claim was raised, and whether there was an adequate explanation for the delay in making the claim. Further, the Tribunal did not act unreasonably by failing to give the first respondent the benefit of the doubt. The Tribunal is not obliged to accept uncritically claims made by an applicant, and is not obliged to accept claims in the absence of direct evidence contradicting the claims: CQG15 at [65]. The benefit of the doubt is given when the decision-maker is satisfied as to the visa applicant's general credibility (which this Tribunal was not): SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 at [19]- [21]; EBQ17 v Minister for Immigration and Border Protection [2019] FCA 1183 at [43]- [44].
14. Fourth, the primary judge criticised the Tribunal's description of the first respondent's evidence as "vague and limited", stating that the description "seems unreasonable and unfair" as there was no evidence contradicting the first respondent's evidence (PJ [66]).
15. Respectfully, the Tribunal's finding in that regard concerned the weight that the Tribunal attributed to the evidence. The primary judge's criticism involves merits review of the Tribunal's assessment, which is not permissible.
16. Finally, the primary judge considered that the Tribunal erred in relying on the fact that the first respondent had been married to a woman and had a child in Malaysia (PJ [67]).
17. It can be accepted, as observed by the primary judge, that the fact that a person is in a heterosexual marriage does not prove that the person is not homosexual. However, the Tribunal did not rely on the first respondent's heterosexual marriage in that way. Rather, the fact that the first respondent had been married to a woman and had a child in Malaysia was an additional fact that the Tribunal took into account in the Tribunal's overall assessment of the credibility of the first respondent's claim to be homosexual. It was not illogical or unreasonable for the Tribunal to take the fact into account.
18. Having regard to the above matters, the primary judge erred in reaching the conclusion that the Tribunal's adverse credibility finding was legally unreasonable or illogical.

1. It follows that the appeal should be allowed. The primary judge's orders, including the order as to costs, must be set aside and replaced with orders dismissing the judicial review application and awarding costs (of the judicial review application) in favour of the Minister. In accordance with r 29.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), costs will be awarded in accordance with Item 3 of Div 1 of Part 2 of Sch 2 of those Rules as in force as at the date of the primary judge's orders (14 November 2022).
2. With respect to costs of the appeal, the first respondent was unrepresented. He was not in a position to form a view as to whether the primary judge's decision was right or wrong and, as an unrepresented litigant, acted reasonably in proceeding on the basis that the primary judge's decision was correct. In the circumstances, a question arises whether it is just to make an order for costs in favour of the Minister, notwithstanding that the Minister was successful on the appeal. If the Minister wishes to pursue an application for costs of the appeal, the Minister may do so by filing, within 7 days of these orders, a short submission drawing the Court's attention to any considerations that weigh for or against an order for costs in the Minister's favour. If made, that application will be determined on the papers.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.