Federal Court Dismisses Immigration Procedural Fairness Appeal

Original Word Document (114.7 KB) Federal Court of Australia

Minister for Immigration and Citizenship v LLR24 [2026] FCAFC 26

| Appeal from: | LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 |
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| File number(s): | VID 1182 of 2025 |
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| Judgment of: | O ’ SULLIVAN, MCELWAINE AND HILL JJ |
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| Date of judgment: | 24 March 2026 |
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| Catchwords: | MIGRATION – primary judge allowed an application for judicial review of a decision of the Administrative Review Tribunal (Tribunal) to set aside its decision to refuse to grant the First Respondent a protection visa – whether the primary judge erred in finding that the Tribunal committed jurisdictional error by not informing the First Respondent that it was proposing to make adverse and dispositive findings on matters accepted in the First Respondent’s favour before the delegate where the First Respondent declined an invitation by the Tribunal to attend a hearing – whether the primary judge erred in holding there was a breach of procedural fairness and that the Tribunal’s exercise of power to make a decision without a hearing was legally unreasonable – appeal dismissed |
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| Legislation: | Administrative Review Tribunal Act 2024 (Cth) ss 55, 106 |
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| Cases cited: | 2010120 (Refugee) [2025] ARTA 550

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494

BYI25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1671

Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576

DXY25 v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 51

EES25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1797

EXT20 v Minister for Home Affairs [2022] FCAFC 72; (2022) 291 FCR 55

Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; (2019) 269 FCR 47

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180

National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415

Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

SZUVE v Minister for Immigration and Border Protection [2017] FCA 38; (2017) 156 ALD 304

Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10; (2022) 289 FCR 175 |
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| Division: | General Division |
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| Registry: | Victoria |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 68 |
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| Date of hearing: | 4 March 2026 |
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| Counsel for the Appellant: | Mr R Knowles KC and Mr A Yuile |
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| Solicitor for the Appellant: | Sparke Helmore Lawyers |
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| Counsel for the Respondents: | Mr A White |
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| Solicitor for the Respondents: | Russell Kennedy |
ORDERS

| | | VID 1182 of 2025 |
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| BETWEEN: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant | |
| AND: | LLR24

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | O ’ SULLIVAN, MCELWAINE AND HILL JJ |
| DATE OF ORDER: | 24 March 2026 |
THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

introduction

1 This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Div 2): LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 (J). The primary judge set aside a decision of the Second Respondent (the Tribunal) that had affirmed a decision to refuse to grant the First Respondent (LLR24) a protection visa.

2 The broad issue is whether the Tribunal committed jurisdictional error by not informing LLR24 that it was proposing to make adverse and dispositive findings on matters that had been accepted in LLR24’s favour before the delegate, in circumstances where LLR24 had declined an invitation by the Tribunal to attend a hearing. The primary judge held that there was a breach of procedural fairness, and also that the Tribunal’s exercise of the power to make a decision without a hearing was legally unreasonable. Two different members of the Federal Circuit and Family Court of Australia (Div 2) have reached the opposite conclusion in cases involving similar circumstances.

3 For the following reasons, the appeal should be dismissed with costs.

background

Protection visa application refused by delegate (2017-2018)

4 LLR24 is a citizen of Malaysia. She arrived in Australia in September 2017 (J [7]).

5 In December 2017, LLR24 applied for a protection visa. The basis of her claims to protection was that she is a Shi’a (or Shiite) Muslim (J [8]-[10]).

6 In May 2018, a delegate of the Appellant (the Minister) refused to grant LLR24 a protection visa.

The delegate stated that LLR24 claimed to fear persecution because she is a Shia Muslim. The delegate was satisfied in accordance with s 5J(1)(a) of the Migration Act 1958 (Cth) that LLR24 feared persecution for reasons of her religion.

However, based on country information, the delegate did not accept that LLR24 faced a real chance of serious harm in Malaysia for reasons of her religion, or that there was a real risk that she would suffer significant harm (J [13]-[14]).

Application for merits review (2021-2024)

7 On 8 January 2021, LLR24 applied to the then Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision. On 11 January 2021, the AAT sent LLR24 an acknowledgment of application, attaching a document “Information for refugee review applicants – MR Division”. The latter document contained the statement “[i]n conducting a review, we must consider the case afresh and make a decision that is correct in law”.

8 The AAT concluded that this application was not made within the 28-day application period because LLR24 had not been properly notified of the delegate’s decision, so the application was not out of time (J [16]). LLR24 was informed in April 2021 that due to a large number of applications it may take up to three years for the AAT to assess her application (J [19]). On 14 October 2024, the AAT ceased to operate and, under transitional provisions, AAT matters not finalised by that date were taken to be applications to the Tribunal (see J [24]).

9 On 7 November 2024, the Tribunal sent LLR24 a “Notice of Hearing”, which stated that there was to be a hearing in person on 29 November 2024. This Notice stated further (J [25]):

What you should do on receipt of this letter

Please read and complete the enclosed ‘Response to hearing notice’ form and return it to the ART within 7 days of receipt of this letter. Please use the ‘Response to hearing notice’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider. ...

Things to do before the hearing

Please provide all documents you intend to rely on to support your case by 22 November 2024 if you have not already done so. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. ...

…

What will happen if you don ’ t appear

If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. …

What if I want the Tribunal to make a decision without holding a hearing

You can use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.

Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision. (emphasis added)

A factsheet attached to the Hearing Notice stated that the hearing “is an opportunity for you to give evidence and present arguments to us relating to the issues arising in your case”.

10 On 15 November 2024, LLR24 returned the “Response to hearing notice” form to the Tribunal by email. She marked the box next to the statement “No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing” (J [26]).

11 On 19 November 2024, the Tribunal emailed LLR24 requesting that she reply to that email to confirm that she was still requesting a decision on the papers, and called her on the same day. LLR24 did not respond to the email or the telephone call. The Tribunal sent LLR24 reminders of the 29 November hearing by text message on 22 and 28 November 2024. LLR24 did not attend the hearing on 29 November 2024 (J [27]-[29]).

Tribunal affirms refusal decision (Dec 2024)

12 The Tribunal decided on 16 December 2024 to affirm the delegate’s decision. LLR24 was notified of this decision on 17 December 2024 (J [30]). Two parts of the Tribunal’s decision should be noted.

13 First, the Tribunal did not accept that LLR24 is a Shi’a Muslim. The relevant parts of the Tribunal’s reasons are as follows (see J [33]):

1.     The applicant is a 31-year-old Malaysian woman who claims that she is a Shiite Muslim. She claims that friends of her have threatened her and tried to make reports when they found out that she is a Shiite, and that two of her friends have been caught. She claims that she has not told her family about her faith because of their religious beliefs. The applicant has not claimed any past harm in Malaysia on the basis of her religion but claims that if she returns to Malaysia her religious freedom will be restricted, and she will face being imprisoned or fined because of her religion.

2.     The Tribunal finds that the applicant’s written claims lack detail, and she has provided no supporting evidence of these claims. The applicant has provided no evidence in support other claim that she practised Shia Islam in Malaysia, nor any evidence that in the approximately seven years since arriving in Australia, she has continued to observe and practise the Shia Islam faith. The applicant’s claims regarding the threats she received from friends who found out that she is a Shiite Muslim are also of a general and vague nature. She claims that ‘they tried to make a report’ but does not specify when this happened or to whom such a report was made, nor whether any action followed from such a report. The applicant also claims that two of her friends were ‘caught’ but does not specify when this happened or what actions or penalties they faced. The applicant has also not provided any details as to how she practises her Shiite Muslim faith, nor specified any activities which would bring her to the attention of the authorities or non-state actors.

…

1.     For these reasons, in particular the limited and general evidence before the Tribunal, the Tribunal does not accept that the applicant is a Shiite Muslim in Malaysia as claimed, nor that she was threatened by anyone because she is a Shiite Muslim or perceived to be a Shiite Muslim. The Tribunal also finds that there is no evidence that the applicant has practised the Shiite Muslim faith in Australia or would seek to practise this faith on return to Malaysia. (emphasis added)

The Tribunal adopted this reasoning in rejecting LLR24’s complementary protection claims (Tribunal reasons (ART) [49]).

14 Second, the Tribunal gave reasons for deciding to proceed without a hearing. The Tribunal found that LLR24 had requested the Tribunal to make a decision without holding a hearing (ART [27]-[29]). The Tribunal identified the “issues” that it was required to determine as (a) “[w]hether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in s 5J(1)(a) of the Act if [s]he is returned to [her] country”; and (b) “[w]hether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to [her] receiving country, there is a real risk that [s]he will suffer significant harm for the purpose of s 36(2)(aa) of the Act” (ART [31]). These issues reflect the statutory criteria for obtaining a protection visa.

15 The Tribunal then gave the following reasons for why it appeared to the Tribunal that the issues just identified could be adequately determined in the absence of the parties:

32.    In this case, it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of a hearing. The Tribunal has before it a copy of the Department file. This includes a copy of the applicant's protection visa application form, which contains her background information and her claims for protection. It also includes identification information in the form of her Malaysian passport and identity cards. The applicant had provided to the Tribunal with a copy of the delegate's decision record. Based on this information the Tribunal is able to determine the applicant's identity and receiving country. It is also able to form conclusions about whether she meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the [Migration] Act without seeking further evidence or submissions from the applicant.

Court below sets aside Tribunal decision (Aug 2025)

16 On 20 December 2024, LLR24 applied to the court below for judicial review of the Tribunal’s decision. LLR24 filed an amended application on 5 May 2025, which contained two grounds (J [42]):

1.    The Tribunal denied the Applicant procedural fairness by failing to ensure that the Applicant was aware of and in a position to make submissions and adduce evidence in relation to a critical issue in the proceeding, namely whether the Applicant was Shi’a Muslim as claimed.

2.    Further or alternatively, the Tribunal’s exercise of power under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) [ART Act ] miscarried because:

a.    The Applicant’s request for a decision on the papers was ineffective for the purposes of s 106(3)(b)(ii) insofar as the Tribunal made its decision on an issue not previously notified to the Applicant.

b.    Further or alternatively, the Tribunal misconstrued and/or misapplied the phrase “the issues for determination in the proceeding” in s 106(3)(c) in a way that affected the exercise of power.

c.    Further or alternatively, the Tribunal’s exercise of power under s 106(1) was legally unreasonable in that no decision maker acting reasonably could have reached the same decision.

17 On 6 August 2025, the court below made orders setting aside the Tribunal’s decision. It was common ground below that the Tribunal decided the matter on a different basis to the delegate, because the Tribunal was not satisfied that LLR24 was a Shi’a Muslim (J [35]). LLR24 was not put on notice of this different basis. The primary judge found that the Tribunal had denied LLR24 procedural fairness, because she was denied a reasonable opportunity to present her case (J [77]). The primary judge also found that the Tribunal’s exercise of the power under s 106 of the ART Act had miscarried, on each of the bases set out in paras (a) to (c) of ground 2 below (J [83], [87], [90]). The primary judge also found that these errors were material, because (J [93]):

if fairly put on notice about the issue of her faith, [LLR24] might have addressed it by way of further evidence about being Shi’a Muslim, and that the Tribunal would have approached [LLR24]’s further evidence with an open mind. The loss of that opportunity in the present matter deprived … LLR24 of the possibility of a successful outcome. …

Appeal (Sep 2025)

18 On 3 September 2025, the Minister filed a notice of appeal. The grounds of appeal are as follows (omitting particulars):

1.    The primary judge erred in finding that:

a.    [the Tribunal] denied [LLR24] procedural fairness; and

b.     on that basis, the Tribunal’s decision … is affected by jurisdictional error.

1.     The primary judge erred in finding that:

a.     for the purposes of s 106(3)(b)(ii) of the ART Act, [LLR24] had not made a request to the Tribunal “to make its decision without holding the hearing of the proceeding”;

b.     the Tribunal’s exercise of power under s 106(1) of the ART Act therefore miscarried; and

c.     on that basis, the Tribunal’s decision is affected by jurisdictional error.

1.     The primary judge erred in finding that:

a.     the Tribunal misapplied the criterion in s 106(3)(c) of the ART Act (which states that “it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding”);

b.     the Tribunal’s exercise of power under s 106(1) of the ART Act therefore miscarried; and

c.     on that basis, the Tribunal’s decision is affected by jurisdictional error.

19 These appeal grounds reflect three different ways in which the Tribunal’s decision was found to contain jurisdictional error. Accordingly, to succeed on this appeal, the Minister must win on all three grounds.

Other FCFCOA decisions decline to follow judgment below

20 Since the filing of the notice of appeal, two judges of the Federal Circuit and Family Court of Australia (Div 2) have declined to follow the decision under appeal, considering it to be plainly wrong: BYI25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1671 and EES25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1797. Then in DXY25 v Minister for Immigration and Citizenship (No 2) [2026] FedCFamC2G 51, Judge Marquard followed her own decision in BYI25. The Applicants in each of those cases were legally unrepresented.

applicable legislation

Migration Act Pt 5

21 Part 5 of the Migration Act provides for merits review by the Tribunal of “reviewable migration decisions” and “reviewable protection decisions”. The Tribunal’s decision is a reviewable protection decision, being a decision to refuse to grant a protection visa (see s 338A(1)(c)).

22 By s 336P(1) of the Migration Act, and subject to s 357A, the ART Act applies to the review of reviewable migration decisions and reviewable protection decisions, except to the extent that Pt 5 of the Migration Act expressly provides otherwise. Section 336P(2) sets out specific provisions of the ART Act that do not apply to reviews of reviewable migration decisions or reviewable protection decisions generally.

23 Part 5 Div 2 deals with specific matters relating to Tribunal review, such as the form of the application (s 347), and who may apply for review (s 347A). By s 348A(1), the Minister is taken to be a “non-participating party” to a proceeding for review of a reviewable migration decision or reviewable protection decision, for the purposes of the ART Act.

24 Part 5 Div 4 deals with the conduct of Tribunal review. By s 357A(1) of the Migration Act, the provisions in Pt 5 Div 4 (and other specific provisions as they relate to Div 4) “are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with”.

By s 357A(2A), these “relevant provisions” in the Migration Act prevail to the extent of any inconsistency over specified provisions in the ART Act (including the right to present a case under s 55). In particular, s 55(1)(b) of the ART Act does not apply in relation to a review of a reviewable migration decision or reviewable protection decision (s 357A(2B)).

As an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions do not require the Tribunal “to observe any principle or rule of common law relating to the matters the relevant provisions deal with” (s 357A(2C)).

However, in applying Pt 5 Div 4 of the Migration Act, the Tribunal must act in a way that is “fair and just” (s 357A(3)).

25 Section 359A of the Migration Act (contained in Pt 5 Div 4) deals with the provision of information by the Tribunal to a review applicant.

Section 359A(1) provides that, subject to s 359A(2) (method of giving information), the Tribunal must:

(a)     give to the applicant, in the way that the ART considers appropriate in the circumstances, clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on it.

The obligation under s 359A(1) is subject to the exceptions in s 359A(4); for example, s 359A does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member (so-called “country information”) (s 359A(4)(a)).

26 The other provisions in Pt 5 Div 4 of the Migration Act deal with an applicant’s entitlement to have access to written material (s 362A), combining reviews (s 363), examination and cross-examination of witnesses (s 366D), the period for making certain bridging visa decisions (s 367), dealing with new claims or evidence in review of reviewable protection decisions (s 367A), and holding review proceedings for reviewable protection decisions in private (s 367B).

ART Act ss 55 and 106

27 As noted, the ART Act applies to the review of reviewable protection decisions, except to the extent that Pt 5 of the Migration Act expressly provides otherwise. Two key provisions of the ART Act for present purposes are s 55 (right to present case) and s 106 (making a decision without a hearing).

28 At the time of the Tribunal’s decision, s 55(1) of the ART Act provided that the Tribunal must ensure that each party to a proceeding in the Tribunal “is given a reasonable opportunity” to:

(a)     present the party’s case; and

(c)     make submissions and adduce evidence.

(As noted, s 55(1)(b) of the ART Act (access to information or documents) does not apply to review of reviewable migration decisions and reviewable protection decisions: Migration Act s 357A(2B).)

29 However, s 55(1) did not apply in relation to a “non-participating party to the proceeding”, such as the Minister (s 55(2)). Section 55(1) was also subject to the provisions set out in s 55(3), such as s 70 of the ART Act (Tribunal may restrict publication or disclosure of information). None of those exceptions are relevant here.

30 By s 106(1) of the ART Act, the Tribunal was empowered to make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of s 106(2) to (5) applied. Relevantly, s 106(3) applied if:

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

(b)     either:

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

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

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

31 In addition, by s 72(1) of the ART Act, the Tribunal was required to give written notice to the parties of the date, time and place of a “Tribunal case event” in relation to a proceeding. A “Tribunal case event” included the hearing, or part of the hearing, of the proceeding (see para (a) of the definition in s 4).

consideration

32 The main issue in this appeal is whether the Tribunal was required to inform LLR24 before making its decision on a different basis from that of the delegate, either because of the implied principles of procedural fairness or legal unreasonableness, or because of the express requirements of ss 55(1) and 106(3) of the ART Act. The Minister’s grounds of appeal respond to the three particular errors found by the primary judge.

33 However, any analysis of whether there is error must begin with what the Tribunal did. The two particular matters are whether the Tribunal made its decision on a different basis from that of the delegate, and whether the Tribunal informed LLR24 of this different basis. These matters are not controversial in themselves, but inform the discussion of whether there was any error.

Tribunal did not put LLR24 on notice before making its decision on a different basis

34 As noted, it was common ground below (and the primary judge found) that the Tribunal decided the matter on a different basis from that of the delegate. That is plainly correct.

The delegate was satisfied that LLR24 came within s 5J(1)(a) of the Migration Act, which provides that a person has a well-founded fear of persecution if (relevantly) “the person fears being persecuted for reasons of … religion …”. The delegate’s finding that LLR24 feared persecution for reasons of her religion seems to carry an implicit acceptance that LLR24 is a Shi’a Muslim. At the very least, this matter was not in contest before the delegate (J [12]).

By contrast, the Tribunal made a series of findings rejecting the individual factual claims made by LLR24: the Tribunal did not accept that LLR24 is a Shiite Muslim in Malaysia, nor that she was threatened by anyone because she is a Shiite Muslim or perceived to be a Shiite Muslim; and was not satisfied that LLR24 had practised the Shiite Muslim faith in Australia or would seek to practise this faith on return to Malaysia (ART [46]).

35 Next, it is not in dispute that the Tribunal did not put LLR24 on notice before making its decision that it might not accept that she was a Shi’a Muslim or any other of her individual factual claims. (The disagreement between the parties is over whether the Tribunal was required to disclose anything, and whether the Tribunal sufficiently alerted LLR24 in a general way to the possibility that it might not accept the delegate’s factual findings.)

36 The Tribunal’s Notice of Hearing (set out in [9 ] above) contained the following:

(a) In providing documents and preparing for the hearing, LLR24 “should have regard to [the Department’s reasons for decision], and any changes in [her] circumstances”.

(b) If LLR24 requested the Tribunal to make a decision without a hearing, she may “still be required to attend the hearing if the Tribunal is unable to determine the issues in [her] absence”. The Tribunal would inform LLR24 before the hearing date if she was required to attend.

(c) If LLR24 requested the Tribunal to make a decision without a hearing, and the Tribunal proceeded to make a decision because it considered the issues could be determined in her absence, “this does not guarantee [she] will receive a favourable decision”.

37 The Minister contends that the Notice did not purport to limit the hearing, or any determination of the matter, by reference to the issues before the delegate. By the same token, it cannot be said that the Notice clearly put LLR24 on notice that all matters relevant to her application were in issue. It is true that the statement in (c) above warns LLR24 that the Tribunal may make an adverse decision in her absence. However, the statement in (a) above does suggest that, barring a change in circumstances, the dispositive issues before the Tribunal would be the same as those before the delegate. That is particularly the case when the statement in (b) above is that LLR24 will be notified if the Tribunal is unable to determine the issues in her absence. And as explained below, it is not enough that the Tribunal says to a review applicant in general terms that it is not bound by the findings of a delegate.

38 For similar reasons, it is not significant that the general information provided in January 2021 stated that the AAT would consider the matter “afresh”: see [7 ] above; cf BYI25 at [169]. Not only was that a statement about the AAT, and sent to LLR24 some years before her matter was to be heard, but this statement conveys no more than the Tribunal’s task is not simply to look for error. A more telling part of the statutory scheme is that the Tribunal does not have to hold a hearing if the Tribunal is going to decide the matter in the review applicant’s favour: see [43 ] below.

39 As discussed below, the legal effect of LLR24’s request that the Tribunal determine the matter without a hearing must take account of what was said in the Hearing Notice. LLR24 made that request in the context where the Notice of Hearing did not put her on notice that all factual matters would be in issue (and, if anything, suggested that the dispositive issues would be the same as before the delegate). Later communications by the Tribunal sought to confirm with LLR24 that she did not want a hearing, and informed her of the hearing date: see [10 ]-[11 ] above. However, those later communications did not provide any additional information about the scope of the factual matters that would be in issue before the Tribunal.

Was the Tribunal required to inform LLR24 of this different basis for decision?

40 The question then becomes whether the Tribunal was required to inform LLR24 of this different basis before making its decision. That question turns on whether the Tribunal was under an obligation to inform LLR24 of the dispositive issues arising in the review application, even after LLR24 had requested that the Tribunal make a decision without a hearing. The potential sources of that obligation are: (a) the principles of procedural fairness; (b) the express requirements of ss 55(1) and 106(3) of the ART Act; and (c) the principles concerning legal unreasonableness. Although one would usually start with the statute, in this case the interpretation of the ART Act is informed by an understanding of common law procedural fairness.

Procedural fairness – Alphaone and SZBEL (appeal ground 1)

41 The procedural fairness hearing rule requires in general terms that a person be given a reasonable opportunity to present their case before a decision is made that adversely affects their rights and interests: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 40; Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102 at 55. More specifically, procedural fairness requires a decision-maker to advise a person likely to be affected by the decision of any “issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”, as well as any “adverse conclusion which has been arrived at which would not obviously be open on the known material”, although a decision-maker is not required to “expose his or her mental processes or provisional views to comment before making the decision in question”: see Commissioner f o r ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 591-592 (the Court); EXT20 v Minister for Home Affairs [2022] FCAFC 72; (2022) 291 FCR 55 at [127], 141; see also 42.

42 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, the former Refugee Review Tribunal (RRT) found in its decision that two events described in a statutory declaration by an applicant for a protection visa were implausible. The delegate’s decision had not put these two events in issue. At the hearing, the RRT did not identify these two events as important issues, and did not challenge what the visa applicant said: SZBEL at [43]. The High Court held that the RRT’s decision was invalid.

The previous s 425(1) of the Migration Act required the RRT to invite an applicant for review to a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The High Court stated that the RRT was not confined to whatever may have been the issues that the delegate considered. However, if the RRT takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the review applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”: SZBEL at [35].

The High Court stated that it was important that the RRT did not need to extend an invitation to appear if the RRT considered that it should decide the matter in the review applicant’s favour. The RRT would therefore start a hearing knowing that it was not persuaded by the material already before it. The Court stated that, “unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision” (SZBEL at [36]).

In SZBEL, the RRT had not said anything to indicate that these two events set out above were live issues. The High Court held that the RRT did not accord SZBEL procedural fairness, and did not give him a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three dispositive issues arising in relation to the decision under review: SZBEL at [43]-[44].

The High Court stated that there may well be cases where either the delegate’s decision, or the RRT’s statements or questions during a hearing, sufficiently indicate to a review applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. But where, as in SZBEL, there are specific aspects of an applicant’s account that the RRT considers may be important to the decision and may be open to doubt, the RRT must at least ask the applicant to expand on those aspects of the account and ask the applicant to explain why the account should be accepted: SZBEL at [47].

43 It is true that the content of procedural fairness takes account of the statutory context. However, SZBEL is not simply a product of the requirements of the previous s 425 of the Migration Act, but rather reflects a substantive principle of procedural fairness. Thus, in Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10; (2022) 289 FCR 175 at [119], the Full Court’s summary of common law procedural fairness principles included that a merits review tribunal is required to put a party on notice of critical issues on review in circumstances where the issues were not considered dispositive by the primary decision-maker (citing “by analogy” SZBEL at [35] and Alphaone at 591). And in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516 at [151], the Full Court stated that the principles in SZBEL at [29], [35], [47] were “equally applicable” to the review by the then AAT of decisions made under s 501CA(4) of the Migration Act (to which neither of previous ss 360 and 425 applied). In other words, the result in SZBEL did not turn on the precise wording of previous s 425 of the Migration Act, which referred to “the issues arising in relation to the decision under review”.

44 The Minister submits that SZBEL should be understood as establishing only that procedural fairness requires the party affected to be given “ the opportunity of ascertaining the relevant issues ” (SZBEL at [32]). That understanding of SZBEL is contrary to later cases. As just noted, Wills understood SZBEL to hold that procedural fairness required a decision-maker to put an affected person “on notice” of any new issues, consistent with the extract from Alphaone cited in SZBEL at [29]. Similarly, in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [69], the Court held that the review applicant in that case “ was entitled to be directed to the critical issues on which the Tribunal was likely to decide unless recognition of such issues was, from the material, an obvious and natural conclusion to draw” (emphasis added). And Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [83], the High Court held that “[o]rdinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of … the issues to be considered in conducting the inquiry” (emphasis added).

45 It is not significant that s 5AAA(2) of the Migration Act (added in 2015) now provides that it is the responsibility of an applicant for a protection visa to provide sufficient evidence of the claim: cf BYI25 at [213]. An applicant for a protection visa will have placed the materials on which it wishes to rely before the delegate and obtained certain findings. From that point onwards, there is no inconsistency between saying that the Minister does not have any obligation to assist in specifying or establishing a claim, but also saying that a review applicant should be told what the dispositive issues on review are, in the sense used in SZBEL. The reason is that SZBEL at [35]-[36], [40] held that a review applicant is entitled to assume (unless told to the contrary) that the issues on review are the reasons given by the delegate for refusing the visa arise out of the structure of merits review: the RRT conducted a “review” of the delegate’s decision, and was not required to hold a hearing if the RRT proposed to make a decision in favour of the review applicant. This broad structure remains the same in reviews in the Tribunal under the current Pt 5 of the Migration Act and the ART Act.

46 There is a question about how specific the Tribunal needs to be in putting a review applicant on notice that matters which were accepted before the delegate may or will be in issue in the Tribunal. It is not enough that the Tribunal states that it is not bound by the delegate’s findings: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494 at 62; applied in SZUVE v Minister for Immigration and Border Protection [2017] FCA 38; (2017) 156 ALD 304 at 68.

47 The reasoning in BYI25 and EES25 places great weight on the amendments made to the provisions in the Migration Act for dealing with merits review, and the textual differences between the current provisions and previous s 425. However, not only does SZBEL establish a general principle (as just explained), but the legislative history also indicates that the new scheme for merits review was not intended to afford any less procedural fairness than the previous scheme.

48 Previously, Pt 5 of the Migration Act contained s 360, which corresponded to s 425 (the provision considered in SZBEL). Section 360 was repealed in 2024, when merits review of migration decisions was taken over by the Tribunal: see Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) Sch 2 item 163. However, this repeal of s 360 was not intended to reduce the level of procedural fairness being provided in review of migration and protection decisions. The Explanatory Memorandum to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023 (Cth) explains the reasons for that amendment as follows:

At a general level, when amendments to Pt 5 of the Migration Act remove special procedures for reviews of migration and protection decisions, “the standard provisions in the ART Bill will apply”. These amendments are designed to “standardise” the availability of powers and procedures in migration and protection matters: at [392].

In relation to Sch 2 item 163 in particular, the specific provisions of the Migration Act including s 360 were being repealed (at [600]):

to enable the Tribunal to undertake a flexible conduct of review, proportionate to the matters before it. Instead of requiring the Tribunal to comply with the procedures set out in these provisions, the standard powers and procedures set out in the ART Bill will apply.

49 Accordingly, when interpreting and applying the ART Act (read together with Pt 5 of the Migration Act), the question is not whether the well-established principles in Alphaone and SZBEL have been adopted, but rather whether those principles have been clearly excluded by plain words of necessary intendment: see Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 14.

50 As an aside the Minister, correctly, does not suggest that s 357A of the Migration Act excludes the principles in Alphaone and SZBEL. Section 357A(1) is only an exhaustive statement of procedural fairness in relation to the matters dealt with by the relevant provisions, principally in Pt 5 Div 4. Nothing in those provisions deals with the requirement to identify the issues arising for decision. As just noted, the previous s 360 was repealed, precisely because it was thought that this requirement was dealt with in the standard provisions of the ART Act.

ART Act ss 51(1) and 106(3) (appeal grounds 1 and 3)

51 Turning to the ART Act, the two key statutory requirements are: the Tribunal must ensure that each party to a proceeding is given a “reasonable opportunity” to present their case (s 55(1)); and the Tribunal may only proceed to make a decision without a hearing under s 106(3) if it appears to the Tribunal that the “issues for determination” can be “adequately determined” in the absence of the parties (s 106(3)(c)). The expressions “reasonable opportunity”, “issues for determination” and “adequately determined” are flexible enough to incorporate the principles in Alphaone and SZBEL.

52 Contrary to the Minister’s arguments, this requirement to notify a review applicant of any new issues arising in the review is not removed, simply because the review applicant has requested that the Tribunal determine the matter without a hearing. There is a substantive unfairness to the review applicant if they are not informed of any new dispositive issue: their request that there not be a hearing will have been made on the basis of the issues known to the review applicant at the time of making the request. If the Tribunal identifies a new issue, then the review applicant may wish to provide further information (see J [74]-[77]). As explained below, the terms of ss 55 and 106 (interpreted in the light of SZBEL) require that the review applicant be given this opportunity.

53 Starting with s 55 of the ART Act, it may be accepted that a review applicant is only entitled to a reasonable opportunity to present their case, not every opportunity. However, SZBEL indicates that a review applicant has not been given a “reasonable opportunity” to present their case, if the Tribunal makes a decision without informing the review applicant of any dispositive issues in the review that are different from the issues before the delegate. Textually, s 55(1) is not tethered to a hearing, so the fact that a review applicant has declined a hearing does not bring the s 55(1) duty to an end. Considering this issue more generally, the fact that a review applicant has declined a hearing does not prevent at least some procedural obligations from arising after that point. For example, the Minister accepts that the obligation to disclose new adverse information to an applicant under s 359A(1) of the Migration Act and to invite comment would still apply, even if the Tribunal received that adverse information after the review applicant had requested that the matter be decided without a hearing.

54 In other words, the review applicant who requests that a decision be made without a hearing has only “waived” a right to a hearing; they have not waived any and all procedural protections from that point. For that reason, it is not correct to say that the Tribunal is never required to seek any further information if a review applicant requests that the matter be decided without a hearing; that general position is qualified in the way set out above. The Tribunal is also required to notify the review applicant of any new issues that arise in the review.

55 The Minister contends that the Tribunal was only required to give LLR24 a reasonable opportunity to ascertain the issues, and that LLR24 passed up this opportunity by requesting that there be no hearing. However, s 55 requires that a review applicant be given a reasonable opportunity to present their case, and that duty exists whether or not there is a hearing. Although one way of satisfying SZBEL is to notify a review applicant of the new issues at the hearing, it does not follow that there is no obligation at all to notify the review applicant of new dispositive issues if the review applicant requests that the matter be determined without a hearing (unless the Tribunal made clear to the review applicant in advance that the dispositive issues may change from the issues before the delegate). As stated earlier, the relevant obligation is not merely to give an affected person an opportunity to ascertain the issues, but to put an affected person on notice of the critical issues (unless those issues are obvious): see [43 ] above.

56 Turning to s 106(3) of the ART Act, it is plain from the wording of s 106(3)(b)(ii) and (c) that the question of whether the “issues for determination” can be “adequately determined” in the absence of the parties is separate from, and additional to, whether the review applicant has requested that the matter be determined without a hearing. For that reason, the Hearing Notice correctly stated that LLR24 might still be required to attend a hearing, despite her request, if the Tribunal determined that it was unable to make a decision in the absence of the parties. Again, these phrases should be interpreted consistently with the procedural fairness requirements in SZBEL.

In particular, when the ART Act is read as a whole, and in light of the Tribunal’s obligations to conduct its reviews in a “fair and just” manner and to give proper consideration of the matter before it (ART Act s 9(a) and (b)), the Tribunal cannot give “adequate” consideration if to decide the matter without a hearing would be in breach of procedural fairness obligations: 2010120 (Refugee) [2025] ARTA 550 (BXFHJ) at [52]-53.

Similarly, the phrase “issues for determination in the proceeding” in s 106(3)(c) of the ART Act can readily be interpreted as referring to the same types of issues as “issues arising in relation to the decision under review” in previous s 425 of the Migration Act. Once it is realised that SZBEL is a substantive principle, the textual differences between s 106(3)(c) of the ART Act and the previous s 425 of the Migration Act are much less significant than the common focus on identifying the relevant “issue”. And the need for the Tribunal to put a review applicant on notice of any new issues on review is particularly acute when there is only one active party (as is the case under s 106(3)(a)), and therefore no “contradictor” who can be counted on to set out the case against the review applicant.

57 Two points follow:

58 First, the Tribunal’s analysis in ART [31] of the “issues for determination” within s 106(3)(c) was at too high a level, and the issues in this case included whether LLR24 is actually a Shi’a Muslim, because that issue was a matter of dispute before the Tribunal (see SZBEL at [34]-[35] and J [87]; contra EES25 at [75]-[77]). It is true that s 106(3)(c) of the ART Act applies before a hearing, whereas previous s 425 of the Migration Act applied at a hearing. However, this difference does not suggest any difference in the specificity of the issues being referred to: the Tribunal may only exercise the power in s 106(1) “after considering the documents and things given to the Tribunal”, meaning that the Tribunal will have some familiarity with the materials when deciding whether the issues can be “adequately determined” without a hearing and will be able to identify the relevant issues with some particularity. And the broad function of both provisions is to identify the issues on which the Tribunal requires more information, in addition to the materials before the delegate, to make its decision.

59 Second, it does not cure any breach of procedural fairness that the Tribunal had given LLR24 notice of the hearing date, and that she did not attend. At no point did the Tribunal notify LLR24 that the Tribunal might not accept that she was a Shi’a Muslim, and that matters that had been accepted before the delegate might not be accepted in the Tribunal. For similar reasons, it is also irrelevant that LLR24 did not file any material in support of her application: she did not abandon her application, so the Tribunal was required to afford her procedural fairness (including compliance with the principles in SZBEL and Alphaone).

60 This is not to say that the Tribunal must always invite a review applicant to attend a hearing, or that the Tribunal is prevented from deciding a matter if the review applicant declines to attend a hearing, having been notified of the new issue. Whether the review applicant has had a “reasonable opportunity” to present their case within s 55, and whether a matter can be “adequately determined” without a hearing under s 106(3)(c), will depend on all the facts and circumstances of the matter. However, when the Tribunal identifies a new issue on the review (here, whether LLR24 is actually a Shi’a Muslim), it is necessary for the Tribunal at least to notify the review applicant of this new issue, and invite them to respond. The form of the response, and whether a hearing is required to afford procedural fairness, will depend on all the circumstances. The Minister correctly accepts that the “general position” in the Tribunal (as with the previous AAT) is that a hearing is conducted, citing Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; (2019) 269 FCR 47 at 63. Crucially for this case, to make a decision without even notifying the review applicant of the new issue does not give the review applicant a reasonable opportunity to present their case within s 55(1), and any consideration of whether a matter can be “adequately determined” in the absence of the parties must at least take into account the need to notify the review applicant of any new dispositive issues arising in the review (noting further that the “issues” in s 106(3) are more specific than those identified in ART [31]).

61 Two final points raised by the Minister can be dealt with briefly:

First, the Minister objects to the primary judge’s conclusion that LLR24 could not be taken to have made a “request” within s 106(3)(b)(ii), if she had not been notified of the new issue arising on the review (appeal ground 2; cf J [82]-[83]). It is not necessary to resolve this point: for the reasons just given, LLR24 was not given a “reasonable opportunity” to present her case under s 55(1), and the Tribunal asked the wrong question in determining whether the “issues” could be “adequately determined” in the absence of the parties within s 106(3)(c).

Second, the particulars to appeal grounds 2 and 3 contend that the Tribunal did in fact hold a hearing on 29 November 2024, so s 106(3) did not apply. This point does not answer the breach of s 55(1) of the ART Act. In any event, the Tribunal purported to rely on s 106(3) of the ART Act to make a decision on the merits in the absence of the parties (ART [32]). The Tribunal did not purport to rely on its power to dismiss an application for non-appearance (see ART Act s 99).

Legal unreasonableness and ART Act s 106(3)

62 The analysis so far relies on the principles of procedural fairness, as informing the proper construction of ss 55 and 106 of the ART Act. The primary judge held additionally that the decision to determine the review without holding a hearing was also legally unreasonable (J [88]-[91]). However, that conclusion seems to rest entirely on the errors of law and breaches of procedural fairness previously identified. At least in this case, legal unreasonableness does not add anything to the arguments based on procedural fairness and the proper interpretation of ss 55 and 106 of the ART Act, and it is not necessary to say anything separate about it.

Tribunal was required to inform LLR24 of the new dispositive issues and did not

63 For these reasons, the Tribunal was required to inform LLR24 before making its decision that her individual factual claims were in issue, particularly her claim to be a Shi’a Muslim. The Tribunal’s failure to do so was a breach of procedural fairness, contrary to s 55(1) of the ART Act (because LLR24 was not given a “reasonable opportunity”), and involved asking the wrong question under s 106(3)(c) of the ART Act (because the Tribunal identified the wrong “issues”, and because notions of procedural fairness inform whether those issues can be “adequately determined” without a hearing). Accordingly, the Tribunal’s decision contained jurisdictional error, subject to the issue of materiality (considered briefly next).

64 The preceding analysis is contrary to BYI25 and EES25. It might be noted that the judges in those cases did not have the assistance of counsel for the review applicants. The key point of departure is the analysis of SZBEL as a substantive principle of procedural fairness, and not just a product of the wording of previous s 425: see [42 ]-[49 ] above. That substantive principle then informs the proper construction of the ART Act.

Was the Tribunal’s error material?

65 For completeness, a remaining issue is whether the Tribunal’s error (of failing to notify LLR24 of the new issues in the review) was material to its decision. The Minister correctly does not dispute the primary judge’s analysis in J [93].

66 Generally, an error will only be a jurisdictional error if it was material, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at 7. Meeting the threshold of a “realistic” possibility is not demanding or onerous: LPDT at [14].

67 Here, the Tribunal based its adverse decision entirely on its rejection of LLR24’s individual factual claims (ART [46], [49]). Unlike the delegate, the Tribunal did not refer to or rely on country information, meaning that its decision did not contain any independent analysis that could potentially support the result. Accordingly, the primary judge was, with respect, entirely correct to conclude that the Tribunal’s error was material.

conclusion

68 For these reasons, the appeal should be dismissed with costs.

| I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices O’Sullivan, McElwaine and Hill. |
Associate:

Dated: 24 March 2026

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