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[2025] HCA 40
appellant. Time to make the application was extended to and including 3 April 2025; certiorari issued quashing the delegate’s refusal; mandamus issued requiring the Minister to determine the protection visa...
The delegate could give untranslated material little weight, but could not exclude it altogether from the assessment. Because the excluded material might have affected the visa decision, the failure to consider it was a jurisdictional error. Although the plaintiff filed late and the Court criticised part of the delay, it extended time and ordered the Minister to reconsider the application according to law.
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2,207 words · generated 03/10/2026
Plaintiff M27/2025 applied for a protection subclass 866 visa on 10 November 2019. He said that returning to China could expose him to arrest, torture, abuse, unfair trial and imprisonment. His stated grounds included making online programs criticising the Chinese Communist Party, supporting an alleged opponent of the Party, and producing programs about Hong Kong protesters [9].
4 cited instruments linked from this judgment.
The evidence included a five-page PDF described as “YouTube channel evidence”. It showed Google and YouTube search results and video thumbnails with Mandarin titles, with English descriptions added by the plaintiff. For example, he said searching his program name would produce results and described the programs broadly as related to opposition to the CCP [10].
In a letter dated 27 November 2023, an officer requested further information under section 56 of the Migration Act 1958 (Cth). The letter said documents in a language other than English had to be translated and that both the translation and original document should be provided. It also requested specific information about the plaintiff's claims, including his YouTube channel and his connection with the alleged opponent [11]-[12].
The plaintiff responded on 23 December 2023. His response described his support for the alleged opponent and included links to online material, including YouTube pages. It also referred to Google Translate and Twitter's automatic translation feature. He did not provide a translation of the PDF or address some other questions in the request [13]-[15].
The delegate refused the visa on 13 August 2024. The delegate did not accept the credibility of the plaintiff's claims. The reasons stated that documents not translated by accredited translators would not be included in the assessment [16]-[17].
The plaintiff did not discover the decision when it was emailed to him because it went to his junk mail folder. He became aware of it around 7 October 2024. He later sought an extension of time for merits review, but the ART determined that the application was invalid because it was out of time. He filed in the High Court on 3 April 2025 [5]-[8].
The High Court held that the refusal was affected by jurisdictional error. It extended the time to bring the proceeding, quashed the refusal, and ordered the Minister to determine the visa application according to law within 14 days [3], [37]. It made no order as to costs.
The central issue was not whether the plaintiff had proved his protection claims. The Court was reviewing the legality of the delegate's process, particularly whether the delegate complied with statutory duties to consider information.
Section 54(1) required the Minister, when deciding whether to grant or refuse a visa, to have regard to all information in the application. The PDF was attached to the application and therefore formed part of that information [19], [26]. Section 56(1) provided that if the Minister obtained information under that section, the Minister had to have regard to it in making the decision. The plaintiff's response was information obtained following the request [19], [26].
The Court accepted that the delegate could give minimal weight to parts of documents that were not translated into English. That was different from excluding the documents altogether. The delegate's reasons stated that “any documents” not translated would not be included in the assessment. The Court rejected the Minister's submission that this referred only to the Mandarin portions, rather than the documents as a whole [26]-[28].
The distinction mattered because the documents were not simply Mandarin text without context. They included English descriptions, thumbnails, and links. Even without translation, the images and links were capable of providing some support for the claims. The statutory obligation applied to the entirety of the documents, rather than only the English words separated from the rest [28].
The Court considered materiality. The Minister accepted that the failures, if established, were material jurisdictional errors. The Court agreed. There was a realistic possibility that the decision could have been different if the delegate had considered the material. The delegate could have given it some weight, and proper recognition of the obligation to consider it might also have affected whether the delegate sought more information under section 56 or proceeded to decide the application under section 62 [29].
The Court did not decide the separate argument that the delegate acted unreasonably by failing to take further steps to resolve the translation issue. The plaintiff argued that the delegate could have requested translations of a sample or arranged an interview with an interpreter. But the plaintiff had been specifically asked to translate the PDF and had not done so. He could also have supplied translations of video titles or sample content. Given those circumstances and the applicant's responsibility under section 5AAA(2) to provide sufficient evidence, the Court doubted that the delegate's choices about seeking further information were unreasonable. It left that question undecided because the statutory failures under sections 54 and 56 were enough to resolve the case [22]-[25].
This judgment applies statutory obligations stated in the Migration Act; it does not announce a general rule that decision-makers must translate every document or independently investigate every claim. Section 5AAA(2), as described by the Court, places responsibility on a protection applicant to specify the particulars of a claim and provide sufficient evidence [18]. Sections 56 and 62 give the decision-maker discretionary powers concerning further information and proceeding without it where requested information is not supplied by the specified time [20]-[21].
The decision clarifies how those provisions interact with sections 54 and 56. A request for an accredited translation, and an applicant's failure to provide it, did not permit the delegate to disregard the statutory duty to have regard to the information already in the application and response. The Court said untranslated material could receive minimal weight, but could not be wholly put aside where the Act required it to be considered [26]-[28].
The judgment also applies a materiality inquiry: whether there was a realistic possibility the outcome could have been different without the error [29]. It does not hold that every failure to consider a document is automatically material. Here, the material had potential relevance to the claims, and consideration could have influenced both the evaluation of the visa criteria and the delegate's use of further-information powers.
On timing, section 486A(1) required an application for a remedy in the High Court's original jurisdiction concerning a migration decision to be made within 35 days. Section 486A(2) permitted an extension if the required written reasons were provided and the Court was satisfied an extension was necessary in the interests of the administration of justice [30]. The Court treated an extension of many months as exceptional, but found one justified on the combined facts [31]-[35].
The practical legal result in this case was a quashing of the refusal and an order for redetermination. The judgment does not direct what the new decision must be on the merits. It requires the application to be determined according to law [37].
At [26], the Court said it was “not open to the delegate to treat all documents involving untranslated components as having not been ‘included as part of this assessment’”. In plain English, the delegate could not treat the translation problem as a reason to ignore entire documents that contained material the statute required the delegate to consider.
At [26], the Court also distinguished between considering evidence and deciding what weight to give it. It said it would have been open to the delegate to afford minimal weight to untranslated parts. That means the statutory duty to consider information does not require the decision-maker to accept it as accurate or give it significant weight.
At [28], the Court explained that section 54 required regard to “all of the information in the application”, meaning “the entirety of the documents and not just the English words separated from the balance of the documents”. In plain English, the decision-maker had to consider the documents as submitted, including the relationship between English descriptions, images, Mandarin text, and links.
At [29], the Court found materiality because “there is a realistic possibility that the decision that was in fact made could have been different if the error(s) had not occurred”. This does not mean the plaintiff would necessarily receive a visa. It means the omitted consideration could realistically have affected the decision or the steps taken before deciding.
At [35], the Court balanced the explanation for delay against the period of delay and the legal errors in the refusal. It acknowledged that the period after solicitors were retained was not consistent with appropriate expedition, but nevertheless found an extension necessary in the interests of the administration of justice. The finding was specific to the circumstances described in the judgment.
The decision is most directly relevant where a decision-maker has a statutory duty to consider specified information, and the record shows that potentially relevant information was excluded rather than considered and assigned little weight. The key feature here was the delegate's express statement that untranslated documents would not be included in the assessment [17], [26].
It is also relevant where a document contains mixed-language content. The Court's reasoning did not depend on the entire document being readily understood in English. The relevant point was that the documents included some English material and other content capable of providing support, including images and links [26]-[28].
A further feature was that the material had been provided as part of the application or in response to a statutory request. The PDF was attached to the application, engaging section 54, and the response was supplied after a section 56 request, engaging section 56 [19], [26]. The Court's reasoning therefore turns on the statutory duties that applied to those categories of information.
The case does not establish that a decision-maker must always obtain a translation, invite additional evidence, interview an applicant, or use automated translation tools. The Court did not decide the legal-unreasonableness argument about further steps, and it noted that the applicant had not supplied the requested translation despite the invitation [24]-[25]. A lawyer assessing another matter would need to check the governing statute, the exact wording of the decision-maker's reasons, what information was submitted, how it was treated, and whether any omission could realistically have affected the outcome.
The judgment is dated 15 October 2025 and the provided text contains no decisions of later courts applying or interpreting it. Its treatment by later courts therefore cannot be established from this source.
The judgment does cite earlier authorities for particular propositions. It refers to Minister for Immigration and Citizenship v Li in explaining that discretionary powers under sections 56 and 62 must be exercised reasonably [21]. However, the Court did not decide the reasonableness issue in this case [24]-[25].
It refers to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for the materiality formulation, namely whether there is a realistic possibility the decision could have been different absent the error [29]. It also discusses Vella v Minister for Immigration and Border Protection, Re Commonwealth; Ex parte Marks, and Gallo v Dawson in the context of the exceptional character of substantial extensions of time [31]. Ex parte Marks is also cited concerning the matters bearing on whether an extension is necessary in the interests of the administration of justice [33].
Those citations show the legal sources the Court relied on for its reasoning in this judgment. They do not establish how later courts have treated Plaintiff M27/2025 itself.
The Court expressly left open whether the delegate's failure to take further steps to resolve the translation issue was legally unreasonable. It doubted that the failure to exercise section 56 powers to obtain further information, or the exercise of section 62 powers to decide without it, could be characterised as unreasonable in these circumstances. But because the separate statutory-duty errors were dispositive, it did not reach a conclusion on that issue [24]-[25].
The judgment does not decide what weight should be given to untranslated material in other circumstances. It says only that minimal weight could have been assigned here, while total exclusion was not open on the statutory duties and record before the Court [26]. It does not prescribe a translation standard, set out a general process for evaluating foreign-language evidence, or address whether different material would have required different treatment.
Nor does the judgment determine the ultimate merits of the plaintiff's protection claims. The orders quashed the refusal and required the Minister to reconsider the application according to law; they did not direct that a visa be granted [37].
Finally, the Court's extension-of-time decision depended on the combination of the jurisdictional errors and the plaintiff's explanation and conduct. The judgment notes the delayed discovery of the email, the attempted merits-review process, the retention of solicitors, and the subsequent lack of appropriate expedition [5]-[8], [34]-[35]. It does not lay down a fixed rule for when a delay of several months must be excused.
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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,
GORDON AND BEECH‑JONES JJ
PLAINTIFF M27/2025 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS DEFENDANT
Plaintiff M27/2025 v Minister for Immigration and Multicultural Affairs
[2025] HCA 40
Date of Judgment: 15 October 2025
M27/2025
ORDER
The time for the making of the application for a constitutional or other writ be extended up to and including 3 April 2025.
A writ of certiorari issue quashing the decision made by the delegate of the defendant on 13 August 2024 to refuse to grant the plaintiff a protection visa.
A writ of mandamus issue commanding the defendant to determine the plaintiff's application for a protection visa according to law within 14 days of this order.
There be no order as to costs.
Representation
The plaintiff is represented by WLW Migration Lawyers
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
Plaintiff M27/2025 v Minister for Immigration and Multicultural Affairs
Immigration – Visas – Where plaintiff applied for protection (subclass 866) visa – Where document in application for visa included English text and images with Mandarin characters – Where Minister's delegate requested further information under s 56 of Migration Act 1958 (Cth) – Where plaintiff did not provide translation of document relied on – Where delegate refused application for protection visa – Where delegate stated documents not translated not included as part of assessment – Whether delegate failed to comply with ss 54 and 56 of Migration Act – Whether delegate's decision legally unreasonable – Whether necessary in interests of administration of justice to grant extension of time to make application for constitutional or other writ.
Words and phrases – "certiorari", "constitutional or other writ", "extension of time", "have regard to all of the information", "invitation for additional information", "jurisdictional error", "mandamus", "materiality", "must have regard to that information", "necessary in the interests of the administration of justice", "protection obligations", "protection visa", "realistic possibility", "specify all particulars of his or her claim", "unreasonableness".
Migration Act 1958 (Cth), ss 5AAA, 54, 56, 58, 62, 65, 476, 476A, 476B, 486A.
High Court Rules 2004 (Cth), rr 4.02, 25.02.1, 25.02.2, 25.09.3.
GAGELER CJ, GORDON AND BEECH-JONES JJ. On 3 April 2025, the plaintiff filed an application for a constitutional or other writ, invoking the original jurisdiction of this Court conferred by s 75(v) of the Constitution. The principal relief sought is the issue of writs of certiorari and mandamus directed to the Minister for Immigration and Multicultural Affairs ("the Minister"), quashing a decision of the delegate of the Minister to refuse the plaintiff's application for a protection visa and requiring that application to be redetermined according to law.
The decision of the delegate is a "primary decision" within the meaning of s 476(4) of the Migration Act 1958 (Cth) ("the Act").1 It follows that the Federal Circuit and Family Court of Australia (Division 2) does not have jurisdiction in relation to the decision,2 and nor does the Federal Court of Australia,3 and thus this proceeding cannot be remitted to either court.4 Instead, on 13 June 2025 this application was referred by Beech-Jones J for hearing by a Full Court.5 The parties agreed to a hearing on the papers. One matter raised by the Court was the subject of supplementary submissions from the parties.
For the reasons that follow, the decision of the delegate to refuse the plaintiff's application for a protection visa is affected by jurisdictional errors. Although there has been delay in the bringing of the application, the findings of jurisdictional errors combined with the explanation for the delay means that it is necessary in the interests of the administration of justice to extend the 35 day period provided for in s 486A(1) of the Act to commence the proceedings up to and including 3 April 2025. To the extent necessary, a corresponding enlargement of time under r 4.02 of the High Court Rules 2004 (Cth) in relation to rr 25.02.1 and 25.02.2 should also be granted. The writs of certiorari and mandamus sought should issue.
The plaintiff is a citizen of the People's Republic of China ("the PRC"). He most recently arrived in Australia from the PRC in April 2018. The plaintiff had previously entered Australia in July 2010 to study and work.
On 10 November 2019, the plaintiff applied for a protection (subclass 866) visa. His application was refused by the delegate of the Minister on 13 August 2024. The effect of the plaintiff's affidavit is that the notification of the decision was sent to his email address on 13 August 2024 but allocated to his "junk mail" folder, so that he did not discover that his application had been refused until about 7 October 2024 when he checked his immigration account for the purposes of seeking to prove his entitlement to work in Australia.
On 8 October 2024, the plaintiff filed an application with the Administrative Appeals Tribunal (which on 14 October 2024 became the Administrative Review Tribunal ("the ART"))6 to extend the time for making an application for a merits review of the delegate's decision.
On 3 December 2024, the ART wrote to the plaintiff inviting him to provide any comments, by 17 December 2024, on whether he had made a valid application. He responded on 13 December 2024. On 10 April 2025, the ART determined that the application was invalid as the application had not been lodged within the relevant time limit.
In the meantime, in late December 2024 the plaintiff retained solicitors. In his affidavit the plaintiff stated that, at around this time, he learned that he was out of time in which to apply to this Court for judicial review of the delegate's decision. After applying for access to the plaintiff's file and the New Year break, the plaintiff's solicitors commenced preparing these proceedings. As noted, proceedings were not filed until 3 April 2025.
In his application for a protection visa dated 10 November 2019, the plaintiff stated that, if he is returned to the PRC, it is likely that he would be subject to "[a]rrest, confessions by torture, abuse, unfair trials and imprisonment", which may be "life-threatening". He said that he had made "hundreds of programs in the media", including on the social media platforms YouTube and Twitter, "that expose the evils" of the Chinese Communist Party ("the CCP") and which have attracted "millions of view[s]". He referred to his public support for an alleged opponent of the CCP ("the alleged opponent"). He also said that he had "produced dozens of programs to support Hong Kong protesters and expose[] the truth of Hong Kong".
Enclosed with the plaintiff's application for a protection visa was a portable document format document said to provide "YouTube channel evidence" to support his claims ("the pdf document"). The pdf document consisted of five pages that included screenshots of results from both the search engine Google and the search function on YouTube, which depicted "thumbnail" images of YouTube videos with titles in Mandarin characters. The pdf document also included English text added by the plaintiff providing a general description of the searches that were undertaken (for example, "[s]earching for my program name [in Mandarin characters] on YouTube and Google will have many results") or a broad description of what the YouTube links depict (for example, "[e]very program is related to the opposition to the [CCP]").
By a letter dated 27 November 2023, an officer of the Department of Home Affairs wrote to the plaintiff seeking further information in relation to his application for a protection visa. It was common ground that the letter involved an exercise of the power conferred by s 56 of the Act to "get any information" that the Minister or his or her delegate "considers relevant" in considering an application for the visa ("the s 56 letter"). The s 56 letter advised the plaintiff that, if documents were provided in support of his application in a language other than English, then they had to be translated into English with both the translation and the document in its original language to be provided.
The s 56 letter also stated that the plaintiff's application for a protection visa "lack[ed] detailed information and evidence, such as dates and locations" of aspects of his claims within the application, and that the absence of that information and evidence raised a concern about the genuineness of his protection claims. The s 56 letter stated that the pdf document "lack[ed] in key details and is not in English" and requested that the plaintiff provide an English translation. The s 56 letter also requested further information, evidence and clarification about the plaintiff's claims, including details of his YouTube channel and the alleged opponent that the plaintiff supported and the plaintiff's relationship with him. Further, the s 56 letter sought information from the plaintiff about his delay in the lodging of his application for a protection visa, and his departure from Australia to the PRC and his return to Australia in 2018.
The delegate was not satisfied of the credibility of the plaintiff's claims: namely, that he had produced hundreds of programs on social media exposing the evils of the CCP; that he had participated in many organisations opposing the CCP; that he had supported the alleged opponent; or that he had produced dozens of programs in support of protesters in Hong Kong. The delegate was likewise not satisfied of the credibility of the plaintiff's claim that he is unable to return to the PRC because he will be arrested and harmed.
In reaching these conclusions the delegate noted that, contrary to the request in the s 56 letter, the plaintiff "did not provide any official translations of his documents which he claims are evidence of social media and online content that supports his claims". The delegate added that "[t]herefore, any documents that are not translated by accredited translators in Australia, or by official offshore translators, will not be included as part of this assessment". In relation to the plaintiff's claims that he supported protests in Hong Kong, the delegate observed that to "instruct the Department to view and translate th[at] content demonstrates that the [plaintiff] is unable or unwilling to address the specific concerns raised in the invitation under s 56 of the Act to provide further information". A similar observation was made in relation to the plaintiff's provision of links to Wikipedia and social media content concerning the alleged opponent of the CCP regime.
One class of visa that the Minister may grant is a protection visa,7 a criterion of which is that the applicant is a person in respect of whom the Minister is satisfied Australia has protection obligations (or a member of the family unit of such a person).8 Section 5AAA(2) of the Act provides that it is the responsibility of a non‑citizen who claims to be a person in respect of whom Australia has protection obligations to specify all particulars of his or her claim and to provide sufficient evidence to establish the claim.
Section 54(1) of the Act obliges the Minister, in deciding whether to grant or refuse to grant a visa, to have regard to all of the information in the application, which includes a document attached to the application when it is made.9 Section 54(3) provides that a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions. Section 56(1) provides that "[i]n considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa". Section 58(1) provides that the invitation for additional information made pursuant to s 56 may be given in writing, at an interview, or by telephone.
Section 62(1) of the Act provides that, if an applicant for a visa has been invited to give additional information (under s 56) and does not give the information before the time for giving the information has passed, then the Minister may make a decision to grant or refuse the visa without taking any further action to obtain the additional information. Subject to provisions allowing for the suspension of the processing of visa applications of a specified class10 or limiting the number of visas of a specified class that are granted,11 s 65(1) obliges the Minister to grant a visa if satisfied that the visa criteria have been satisfied.12 The Minister must refuse the visa if he or she is not so satisfied.13
Section 486A(1) of the Act provides that an application to this Court for a remedy to be granted in exercise of this Court's original jurisdiction in relation to a migration decision, such as the decision made by the delegate, must be made within 35 days of the decision. Section 486A(2) enables this Court to extend that 35 day period if (a) "an application for that order has been made in writing ... specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) this Court "is satisfied that it is necessary in the interests of the administration of justice to make the order".
In the case of the plaintiff, the 35 day period referred to in s 486A(1) ended on 17 September 2024. As noted, the application for a constitutional or other writ was not filed in this Court until 3 April 2025. An extension of the 35 day period by a period of many months has been described by this Court as "exceptional".21
Rule 25.02.1 of the High Court Rules provides that an application for a writ of mandamus "must be filed within 2 months after the day of the" relevant refusal to hear and determine a matter. Rule 25.02.2 requires that an application for a writ of certiorari must be filed "within 6 months after the day the decision sought to be quashed was made", or within a shorter period as any other law may require. Section 486A(1) of the Act is such a law. Otherwise, r 4.02 provides that any period of time fixed by or under the High Court Rules may be enlarged or abridged by an order of the Court or a Justice, whether made before or after the expiration of the time fixed. For this matter it suffices to observe that, if the Court is satisfied pursuant to s 486A(2)(b) of the Act that it is in the interests of the administration of justice to extend the time for the making of the application until 3 April 2025, then, to the extent necessary, an appropriate order under r 4.02 would be made.
For the purposes of s 486A(2)(a), the plaintiff's posited reasons for which he considers it necessary in the interests of the administration of justice to make an order for an extension of time comprise: the merit of his substantive application; the lack of prejudice to the Minister; and his explanation for the delay as summarised above. Those matters also bear upon whether it is necessary in the interests of the administration of justice to extend the 35 day period.22
We have already concluded that the delegate's decision is affected by jurisdictional errors. In written submissions, the defendant criticised the plaintiff's explanation that he overlooked the email notification of the delegate's decision because it was allocated to his junk email folder. It is noteworthy, however, that there is no evidence that the plaintiff only took action in respect of the refusal of his application for a protection visa because of any threatened enforcement action. Once apprised of the decision, the plaintiff filed an application with the Administrative Appeals Tribunal to extend the time for making an application for merits review of the delegate's decision, although that application was out of time and invalid. Upon suspecting that the application was out of time and invalid, he retained solicitors in late December 2024.
(1) The time for the making of the application for a constitutional or other writ be extended up to and including 3 April 2025.
(2) A writ of certiorari issue quashing the decision made by the delegate of the defendant on 13 August 2024 to refuse to grant the plaintiff a protection visa.
(3) A writ of mandamus issue commanding the defendant to determine the plaintiff's application for a protection visa according to law within 14 days of this order.
(4) There be no order as to costs.
The decision was reviewable under Pt 5 of the Migration Act 1958 (Cth) but was not the subject of an application for review within the specified period: Migration Act, s 476(4). ↩
Migration Act, s 476(2)(a). ↩
Migration Act, s 476A(1). ↩
Migration Act, s 476B; cf Judiciary Act 1903 (Cth), s 44(1). ↩
Pursuant to High Court Rules 2004 (Cth), r 25.09.3(d). ↩
Administrative Review Tribunal Act 2024 (Cth), s 2(1); Australia, Administrative Review Tribunal Commencement Proclamation 2024, 18 July 2024. ↩
Migration Act, ss 29(1), 35A, 36, 65. ↩
Migration Act, s 36(2). ↩
Migration Act, s 54(2)(b). ↩
Migration Act, s 84. ↩
Migration Act, ss 85, 86. ↩
Migration Act, s 65(1)(a). ↩
Plaintiff M27-2025
Minister for Immigration and Multicultural Affairs [2025] HCA 40
(2013) 249 CLR 332
(2024) 280 CLR 321
(2015) 90 ALJR 89
(2000) 75 ALJR 470
(1990) 64 ALJR 458
Time to make the application was extended to and including 3 April 2025; certiorari issued quashing the delegate’s refusal; mandamus issued requiring the Minister to determine the protection visa application according to law within 14 days; no order as to costs.
On 23 December 2023, the plaintiff provided a six‑page typed response ("the s 56 response"). The s 56 response addressed his support for, and subsequent disillusionment with, the alleged opponent. The s 56 response provided embedded links to various sites, including YouTube pages that the plaintiff said contained programs referring to the alleged opponent. The plaintiff said he "participated" in programs discussing the alleged opponent and joined the alleged opponent's social media group. The s 56 response also contained links to YouTube pages said to contain programs addressing the 1989 Tiananmen Square incident. The plaintiff claimed that he helped produce certain versions of this program. The plaintiff also provided a link to a YouTube page said to contain a program that the plaintiff had broadcast featuring a different opponent of the CCP regime. The s 56 response included a screenshot containing Mandarin characters, which was said to show the numbers of subscribers to and views of the plaintiff's YouTube channel.
The s 56 response stated that "Google Translate" could be used to verify that the titles of the videos on the plaintiff's YouTube channel matched his descriptions. He added that the "vast number and length of my videos make it impossible for me to translate each one". The s 56 response also stated that the plaintiff's Twitter account sets out his views and promotes his YouTube channel. He advised that Twitter also "has an automatic translation feature for browsing".
The plaintiff did not provide a translation of the pdf document, address the delay in the lodging of his application for a protection visa or address the circumstances surrounding his departure from Australia to the PRC and his return to Australia in 2018.
Each of ss 56 and 62 confers a discretionary power on the Minster. Those discretionary powers must be exercised reasonably.14
The plaintiff contended that the decision of the delegate to refuse his application for a protection visa was affected by legal unreasonableness. The plaintiff contended that, given the volume of material supplied by the plaintiff, it was unreasonable for the delegate not to take some further step under s 56 of the Act to address or resolve the "translation issue" prior to making a decision to grant or refuse the visa. The plaintiff contended that, having provided the delegate with the means to interpret the material, it would have been "administratively easy" for the delegate to ask the plaintiff to provide translations of a sample of the material or to interview the plaintiff in the presence of an interpreter who could translate "some of the YouTube content".
The defendant submitted that the plaintiff was afforded a clear and reasonable opportunity to provide supporting material in an appropriate form, including through translations by accredited professionals, but failed to do so. The defendant also contended that none of the alternative methods proposed by the plaintiff for translating the material, namely using Google Translate or Twitter's automatic translating features, met the necessary standards of accreditation referred to in the s 56 letter, "and thus the material could not be included as part of the delegate's assessment". The defendant further contended that it was for the plaintiff to provide sufficient evidence to establish his claims and the complaint that the plaintiff should have been offered an interview with an interpreter present is "no more than a disagreement with the delegate's assessment of how best to obtain information".
The plaintiff was specifically requested to provide a translated version of the pdf document but declined to do so. It was also open to him to provide a translation of the titles of his videos and a sample of their content, but he chose not to do so. In these circumstances, and where s 5AAA(2) of the Act imposed an obligation on the plaintiff to provide sufficient evidence to establish his claim, we doubt that either the failure of the delegate to exercise the discretion conferred by s 56 to get further information or the exercise of the discretion conferred by s 62 to make a decision on the application without doing so could be characterised as failing to meet the legal standard of reasonableness.15
Ultimately, however, it is not necessary to decide that issue because the delegate's decision reveals a breach of different statutory obligations, which, had they been properly complied with, may have led to different exercises of the discretions conferred by ss 56 and 62 and which invalidates the purported refusal of the visa application under s 65.
As noted, the effect of s 54 of the Act was that the delegate was obliged to have regard to all the information included in the plaintiff's application for the protection visa. That information included the pdf document, being a document that was attached to the application when the application was made.16 Similarly, the delegate was obliged to have regard to the s 56 response provided by the plaintiff.17 Parts of the pdf document and the s 56 response were in English. Although certain substantive parts of the documents were in Mandarin, those parts of the documents appeared to be at least consistent with the English language descriptions of their contents. While it would have been open to the delegate to afford minimal weight to those parts of the documents (and recordings) that were not translated into English, it was not open to the delegate to treat all documents involving untranslated components as having not been "included as part of this assessment" (as the delegate's reasons state). Sections 54 and 56 of the Act obliged the delegate to have regard to those documents. They could not be wholly put aside.
The defendant submitted that the statement of the delegate that "[t]herefore, any documents that [were] not translated ... will not be included as part of this assessment" was only referable to so much of the pdf document and the s 56 response that was in Mandarin, and thus the balance written in English was considered. The defendant pointed to aspects of the delegate's decision that summarised the plaintiff's claims, which in the defendant's submission were taken from those parts of those two documents that were written in English, and which were said to demonstrate that the delegate had regard to the English language portions of the relevant documents.
There are three related difficulties with this contention. First, the statement of the delegate in his reasons was that "any documents" that were not translated would not be included as part of the assessment. That statement was not confined to parts of documents. Second, even absent translation, the thumbnail images with Mandarin writing in the pdf document18 and the embedded links in the s 56 response were capable of providing some support for the plaintiff's claims. The obligation imposed by s 54 of the Act was to "have regard to all of the information in the application", which in this case meant the entirety of the documents and not just the English words separated from the balance of the documents. The obligation imposed by s 56 to have regard to the s 56 response was not substantively different. Third, even if the delegate reviewed the pdf document and the s 56 response to identify the plaintiff's "claims for protection", the delegate nevertheless failed to have regard to "all of the information in the application"19 (including the pdf document) and the information in the s 56 response in deciding whether to grant or refuse to grant the visa and thereby failed to comply with ss 54 and 56 of the Act.
If these failures to comply with ss 54 and 56 were established the defendant accepted that they were material and thus jurisdictional errors. That concession was properly made; there is a realistic possibility that the decision that was in fact made could have been different if the error(s) had not occurred.20 It would have been open to the delegate to afford those documents weight in the evaluation of whether the visa criteria were satisfied. Further, as noted, had the delegate appreciated that some regard had to be had to those documents, the delegate may have again exercised the power conferred by s 56, and exercised the power conferred by s 62 differently.
The period between the retention of solicitors and the commencement of proceedings was not consistent with the appropriate level of expedition that can be expected in the circumstances. Even so, when the plaintiff's explanation is considered with our findings in relation to the validity of the delegate's decision, we are satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35 day period up to and including 3 April 2025.
Migration Act, s 65(1)(b). ↩
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 351 [29], 362 [63], 370 [88]. ↩
See Li (2013) 249 CLR 332 at 351 [29], 362 [63], 370 [88]. ↩
Migration Act, s 54(2)(b). ↩
Migration Act, s 56(1). ↩
See [10] above. ↩
Migration Act, s 54(1) (emphasis added). ↩
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at 327 [7]. ↩
Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89 at 90 [3]; 326 ALR 391 at 392, citing Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [13]; 177 ALR 491 at 495, citing Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 481. ↩
Ex parte Marks (2000) 75 ALJR 470 at 473-474 [13]; 177 ALR 491 at 495. ↩