Federal Court of Australia

ALZ18 v Minister for Immigration and Citizenship [2025] FCA 1035

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the Minister for Immigration and Citizenship.

2.    The appellant has leave to amend his notice of appeal to replace the grounds of appeal with the two proposed new grounds set out in his proposed amended notice of appeal.

3.    The appellant file the amended notice of appeal within 7 days of this order.

4.    The appeal be allowed.

5.    The proceeding be remitted to the Administrative Review Tribunal for determination.

6.    The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (Primary Court) dismissing an application for judicial review of a decision of the Tribunal (now known as the Administrative Review Tribunal): ALZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 77 (primary judgment or PJ). By its decision (Tribunal decision or T), the Tribunal affirmed a decision of a delegate of the Minister (now known as the Minister for Immigration and Citizenship) not to grant the appellant a protection (Class XA) (subclass 866) visa.

2    The appellant is a citizen of Sri Lanka of Tamil ethnicity and Hindu faith. The Tribunal noted that there was some confusion about dates and years of events in the appellant’s accounts which was understandable due to the passage of time, problems with memory and the effect of past trauma: T[53]. The Tribunal did not make adverse findings about the appellant as a result of his confusion in relation to specific dates. The confusion with dates and the years in which events occurred in the appellant’s recount carried over into the Tribunal’s reasons. The findings in different parts of the Tribunal’s reasons in relation to some events are inconsistent as to the year in which they occurred.

3    The appellant arrived in Australia on 20 June 2012 as an unauthorised maritime arrival having departed Sri Lanka illegally by boat without travel documents: T[30]. The Tribunal recounts that the appellant had left Sri Lanka illegally in “2013”, presumably intended to be 2012: T[102].

4    The appellant had previously lawfully departed from Sri Lanka for Malaysia on 30 October 2005 and returned to Sri Lanka by 6 May 2006 (sometimes attributed to being in May 2005): T[63]. The appellant claimed that in 2005 he was falsely promised the opportunity of residency in Hong Kong, Malaysia or Norway by an agent. The Tribunal accepted that upon realising that he had been issued a fake visa, the appellant voluntarily returned to Sri Lanka after being detained for overstaying in Malaysia. The Tribunal refers to the appellant’s return to Sri Lanka as voluntary and later in its reasons refers to the appellant being “forcibly returned in 2006”: T[102]. The Tribunal accepted that on his re-entry in 2006, the appellant was questioned in a departmental interview for several hours at the airport and paid a bribe before being released: T[65].

5    This appeal represents the latest stage of the appellant’s attempt to obtain a protection visa. The appellant did not have the benefit of legal representation at his earlier hearings. On this appeal the appellant was represented by counsel instructed by Victoria Legal Aid. The Court is grateful for the assistance provided to the appellant and to the Court.

6    The appellant seeks leave to file an amended notice of appeal dated 17 February 2025, which raises two new grounds of appeal, and also seeks leave to adduce fresh or further evidence.

7    The Minister opposes both the grant of leave to file the proposed amended notice of appeal and the application to adduce evidence on this appeal. The Minister accepts however that if leave is granted to rely on the proposed amended notice of appeal, then the additional evidence should be received. The parties proceeded on the basis that I could have regard to the additional evidence for the purpose of the leave application and if leave to rely on the amended notice of appeal is granted, in the appeal proper.

8    The second respondent, the Tribunal, filed a submitting notice save as to costs.

PROCEDURAL BACKGROUND

The delegate’s decision

9    On 14 November 2012, the appellant lodged a valid application for a protection visa. The appellant claimed protection principally on the bases that he claimed to fear harm if returned to Sri Lanka as a Tamil and as a failed Tamil asylum seeker.

10    On 9 December 2014, a delegate of the Minister refused the appellant’s application for a protection visa.

The proceeding in the Tribunal

11    On 6 January 2015, the appellant applied to the Tribunal for review of the delegate’s decision.

12    On 9 June 2016, the Tribunal invited the appellant to attend a hearing on 5 July 2016.

13    Ground 1 of the proposed amended notice of appeal is concerned with the Tribunal’s refusal of an adjournment application. For that reason, I will detail the circumstances that informed the making on the adjournment application.

14    On 26 June 2016, the appellant submitted a written request for the Tribunal to adjourn the hearing until on or after 29 July 2016 because his support person, Mr Brian Lincoln, would be away and unavailable until that date. Mr Lincoln was not a lawyer or a migration agent. He works for a community organisation known as Tamworth Multicultural Inc.

15    On 28 June 2016, a representative of the Tribunal asked the appellant by telephone if Mr Lincoln was a registered migration agent, lawyer or close relative. The appellant replied that Mr Lincoln was a community service worker and said that Mr Lincoln was very important to him as he needed his support and evidence. The representative of the Tribunal informed the appellant that Mr Lincoln could provide evidence at the hearing by telephone. The appellant said Mr Lincoln was in England and that the appellant could not contact him.

16    On 29 June 2016, a representative of the Tribunal informed the appellant by telephone that the Tribunal had decided not to postpone the hearing and would consider evidence from Mr Lincoln either via telephone or in written form. The representative of the Tribunal further explained that the Tribunal Member was aware that Mr Lincoln was said to be in England and hard to contact and that this could be discussed at the hearing.

17    Later on 29 June 2016, the Tribunal notified the appellant in writing that the Tribunal had decided not to postpone the hearing. The letter said the Tribunal would consider evidence from Mr Lincoln either via telephone or in written form and the matter could be further discussed at the hearing.

18    On 1 July 2016, Mr Lincoln provided a statement to the Tribunal supporting the appellant’s application.

19    On 5 July 2016, the appellant attended a hearing before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter. Mr Lincoln was not present at the hearing.

20    On 10 January 2018, the Tribunal affirmed the delegate’s decision to refuse the grant of a visa. The Tribunal decision was sent to the appellant under cover of a letter dated 11 January 2018.

21    On 1 February 2018, the Tribunal issued a corrigendum to the Tribunal decision to correct the word “Malaysia” which had been incorrectly used to describe the appellant’s country of origin (at T[80]) by replacing it with the word “Sri Lanka”.

Judicial review proceeding in the Primary Court

22    On 2 February 2018, the appellant applied for judicial review of the Tribunal decision. At that time, the appellant did not have legal representation and was appearing in person in the proceeding. The unparticularised grounds of review alleged that the Tribunal decision was affected by an error of law and that the appellant was denied procedural fairness. The appellant said in his application that he was awaiting a decision on an application for a grant of legal assistance from Victoria Legal Aid.

23    On 18 March 2020, the appellant filed a notice of address for service that indicated that he had legal representation. On 29 November 2022, the appellant’s then-solicitor filed a notice of intention to withdraw. On 14 December 2022, the appellant’s then-solicitor filed a notice of withdrawal.

24    On 10 January 2023, the appellant applied for an adjournment of the hearing listed on 23 January 2023, ultimately relying on two grounds in support of an adjournment. First, so that he may engage legal representation. Secondly, on the basis that he was not fit for the hearing in reliance on a psychological report. The application as filed did not refer to adjournment on this second ground. The primary judge received and considered the psychological report tendered by the appellant and stood the matter down to review the report after taking submissions from the appellant (assisted by Mr Lincoln) and the Minister’s legal representative. The primary judge refused the adjournment, finding that the appellant had had sufficient time to engage a lawyer and was capable of engaging in the hearing process: PJ[20]-[45].

25    The hearing proceeded on 23 January 2023. The appellant appeared in person at the hearing with Mr Lincoln present as his support person.

26    On 10 February 2023, the primary judge dismissed the judicial review application.

Decision of the primary judge

27    Prior to the hearing, the appellant did not file any submissions to support his broad and unparticularised grounds of review. The primary judge invited the appellant to address the grounds of review at the hearing: PJ[47].

28    The appellant sought an opportunity to submit evidence that was not provided to the Tribunal. The primary judge said that the role of the Primary Court was to identify whether there is any jurisdictional error in the reasons of the Tribunal, not to conduct a review of the merits: PJ[49].

29    The appellant alleged a denial of procedural fairness: PJ[51]. The primary judge had regard to the material in the court book and before the Tribunal. The primary judge took into consideration the circumstances leading up to and during the hearing before the Tribunal, including amongst other things the invitation to attend the hearing in accordance with statutory requirements, the Tribunal’s refusal to adjourn the hearing, Mr Lincoln’s written statement and that the appellant had the assistance of an interpreter and had the opportunity to respond to particular matters: PJ[51]-[53].

30    The primary judge found that the Tribunal had regard to the material placed before it, identified the relevant law and considered the relevant claims and made findings that were open to the Tribunal on the evidence: PJ[54].

31    The primary judge concluded that the appellant was not denied procedural fairness by the Tribunal, nor did the Tribunal commit any other error as to jurisdiction: PJ[55]. Accordingly, the primary judge dismissed the application for review and ordered that the appellant pay the Minister’s costs of the proceeding.

APPEAL PROCEEDING IN THIS COURT

32    On 6 March 2023, the appellant commenced this appeal. At that time, the appellant was not legally represented. The appellant filed a notice of appeal relying on two broad grounds of appeal, namely that the primary judge erred in first, failing to find that the Tribunal decision was legally unreasonable and secondly, failing to find that the Tribunal did not consider evidence or claims the appellant put forward.

33    On 17 February 2025, the appellant, by then legally represented, filed a proposed amended notice of appeal with two proposed grounds of appeal, an affidavit in support and written submissions.

34    The first proposed appeal ground is that the Tribunal decision “was affected by jurisdictional error in that the Tribunal’s refusal to accede to requests to adjourn the Tribunal hearing for a short period to allow Mr Brian Lincoln, a trained counsellor who had been supporting and assisting the Appellant in the review process, to attend the hearing with the Appellant, was legally unreasonable”. The second is that the Tribunal failed to discharge its statutory task by failing to bring an independent mind to bear on the issues arising in the review, or, alternatively, on the issues arising in the context of the complementary protection criterion in relation to the “illegal departure claim” made by the appellant.

35    On 14 March 2025, the appellant filed an interlocutory application seeking leave to rely on further evidence in support of the new grounds of appeal, under s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and to dispense with the requirement in r 36.57(2) of the Federal Court of Australia Rules 2011 (Cth). In support of the interlocutory application, the appellant relies on an affidavit of Nathan Stormont, solicitor at Victoria Legal Aid, affirmed on 14 March 2025.

36    The further evidence is contained in an earlier affidavit of Mr Stormont affirmed on 17 February 2025 which relevantly annexes:

(1)    the transcript of the hearing before the Tribunal;

(2)    the Tribunal’s “Guidelines on Vulnerable Persons”, issued in July 2015 and in force at the time of the hearing before the Tribunal; and

(3)    the Tribunal’s “Guidelines on Vulnerable Persons”, issued on 28 July 2017 and in force at the time of the Tribunal decision.

37    There is no relevant material difference between the earlier and later iterations of the Guidelines.

CONSIDERATION

Interlocutory application

38    The appellant makes two interlocutory applications, first, for leave to rely on the proposed amended notice of appeal, and secondly, to adduce further evidence.

39    The appellant submits that the proposed grounds of review were not advanced below because the appellant was not legally represented when the application for judicial review was filed on 2 February 2018. The appellant could not afford legal representation. Although the appellant engaged lawyers in around February 2020 and made some payments by instalment for preliminary work on the matter, the appellant could not afford to pay legal fees to obtain counsel’s opinion on the prospects of the appellant’s judicial review application. The appellant’s legal representatives ceased to act on 13 December 2022 before the hearing in the Primary Court. The appellant now seeks, with the benefit of legal representation, to adduce the proposed grounds with new evidence in support.

40    There was no dispute as to principle between the parties. The principles relevant to the exercise of the Court’s discretion to allow a new ground to be raised for the first time on appeal are well established. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48] (Kiefel, Weinberg and Stone JJ); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 at [13] (Derrington J), including by reference to the non-exhaustive list of considerations in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [166] (Madgwick J, with whom Conti J agreed). Ultimately the issue must be determined by reference to the interests of justice: Tohi at [14].

41    The Minister submits that the appellant has not adequately explained his failure to raise the new grounds in the proceeding below. The Minister maintains that it is unclear the extent to which the appellant received legal services at the various points in time at which he was represented, including with respect to preliminary work on his judicial review application. The Minister points to the fact that there was an 18-month period in which the appellant was legally represented and there is no evidence of what legal services were provided to the appellant in relation to his judicial review application, including as to the grounds of appeal available to him.

42    I am satisfied that it is expedient and in the interests of justice to allow the new grounds of appeal on the basis that they identify alleged jurisdictional errors in the Tribunal decision and have sufficient merit. The appellant’s explanation for his failure to raise these issues before the primary judge, while not detailed, is enough in the circumstances. I am satisfied that there is no real prejudice to the Minister in permitting the new grounds to be agitated. Should leave be refused the consequences for the appellant will be significant. The fact that the appellant had legal assistance at an earlier point in time should not prevent him from raising grounds that merit consideration. I will therefore grant the appellant leave to amend the notice of appeal so as to substitute the two proposed new grounds for his original grounds.

43    The evidence in respect of which leave is sought was not adduced in the proceedings below and is confined in scope. The evidence is directed to the conduct of the Tribunal hearing and the refusal of the appellant’s request for an adjournment of the hearing. As mentioned, while the Minister opposes the grant of leave for the appellant to rely on the new grounds of appeal at the hearing, the Minister accepted that if leave is granted in respect of the new grounds of appeal, then there is no objection taken to the additional evidence being relied on by the appellant. I further note that the Minister relied on that part of the additional evidence comprised of the transcript before the Tribunal in aid of the Minister’s arguments on ground 2 of the appeal.

44    I will receive the evidence under s 27 of the FCA Act as further evidence on the appeal. To do so is consistent with the principles set out in District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33 at [149] (Mortimer, Perry and SC Derrington JJ), citing Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16]  (Griffiths and White JJ), including that “[t]he power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry”.

Ground 2

45    I will first deal with ground 2. By this ground, the appellant alleges that the Tribunal failed to discharge its statutory task under s 414 of the Migration Act 1958 (Cth) to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Act in respect of the criteria for the visa in issue before it: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [32] (Kenny, Griffiths and Mortimer JJ). At the heart of this ground of appeal is the contention that by reason of copying and pasting from another decision, or other decisions, coupled with various other factual errors (that is, mistakes), and a degree of structural incoherence, the Tribunal failed to discharge its statutory task on merits review. The appellant contends that the Tribunal failed to conduct a review by reference specifically to the appellant without being infected by an analysis of the circumstances specifically relevant to another, or multiple other, visa applicants.

46    It is common ground that the Tribunal decision includes some element of copying from an earlier matter (or matters) or a template of some sort. That is apparent from the fact that the Tribunal has inadvertently included some factual details that do not relate to the appellant and certain paragraphs of the Tribunal decision are identical to paragraphs which appear in earlier unrelated Tribunal decisions. It is accepted that the evident copying of findings about an individual claim requires that the decision be subject to close scrutiny: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; 234 FCR 154 at [27] (Tracey, Murphy and Mortimer JJ).

47    The issue both parties confronted in their written and oral submissions was what follows from the fact of the copying and factual mistakes. The applicable principles were not in dispute – the argument on ground 2 focussed on the application of the relevant principles to the present decision. The critical issue between the parties was whether, based on a fair reading of the whole of the Tribunal decision, the Court should infer from the mistakes that the Tribunal failed to discharge its statutory task.

48    The appellant correctly acknowledges that to the extent that the Tribunal used a template to write its decision or copied the language of another decision maker, this does not in and of itself necessarily establish procedural unfairness or jurisdictional error in every case: see Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [111] (Gleeson J). The appellant submits that the inference that should be drawn from the mistakes, copying and the structural features of the decision, including repetition without consistency in relation to the same subject matter, is that the Tribunal did not for itself and on the material before it, reach the requisite state of satisfaction on the issues arising on the review: MZYTS at [32]; MZZZW at [59].

49    This ground, however expressed, goes to the core of the Tribunal’s statutory function on review: MZZZW at [30]. In each case, it will be necessary to examine not only the extent of the copying, but its nature, context and degree: MZZZW at [31]. In broad terms, having conducted such an examination, the Court must decide whether it is satisfied that the Tribunal brought its own independent mind to bear on what would be the correct or preferable decision on the review: MZZZW at [31]. The Minister stresses that the onus lies on the appellant to establish that any error made by the Tribunal was material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [14] and [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). 

50    The parties each made further submissions in relation to ground 2 post-hearing pursuant to a limited grant of leave to do so. The appellant’s post-hearing submissions went beyond the limited grant of leave by identifying additional parts of the Tribunal’s reasons that the appellant contends are indicative of the Tribunal copying and pasting significant parts of its reasons when dealing with the illegal departure claim in the context of complementary protection assessment. The Minister has engaged with substantive themes addressed in the appellant’s post-hearing submissions and not taken objection to the breadth of the appellant’s post-hearing submissions. Accordingly, I will address the additional matters raised.

51    Allowing for the submissions made post-hearing, the appellant relies on the following aspects of the Tribunal’s reasons in support of ground 2:

(a)    The Tribunal referred to the appellant’s country of origin as “Malaysia” rather than “Sri Lanka”: T[80]. A corrigendum was issued on 1 February 2018 to correct this error;

(b)    In the Tribunal’s consideration of the risk of harm faced by Tamil males from Sri Lanka’s North-West Province, the Tribunal referred to details which do not relate to the appellant. The Tribunal stated that the appellant “is a fisherman by trade”: T[99]. The appellant did not claim to be a fisherman – he did claim to have traded in fish as part of his trading business;

(c)    In the context of its consideration of complementary protection in relation to the risk of harm faced by returnees who departed Sri Lanka illegally, the Tribunal incorrectly stated that the appellant “started working in Pepsi” and referred to “the previous charges against him in 2005, which were dismissed in June 2006”: T[126]. The appellant did not claim to work at Pepsi in Sri Lanka, and the material before the Tribunal did not suggest that he was subject to any previous charges;

(d)    Also in the context of the Tribunal’s consideration of complementary protection, the Tribunal referred to the appellant’s “profile as a young single educated Tamil male”: T[127]. The appellant submits that he does not answer this description – he was only educated to Year 11 level and was married;

(e)    The Tribunal’s reference to a past experience in 2005 providing guidance to the experience the appellant would have upon return to Sri Lanka in 2016 or beyond is inconsistent with the Tribunal’s finding that the appellant lawfully departed Sri Lanka in 2005 (noting some inconsistency of the relevant dates in the Tribunal’s reasons): T[117]. The appellant emphasises that this paragraph is not only inconsistent with the Tribunal’s other findings, it is also identical to a paragraph from an earlier decision made by the Tribunal, suggesting that the Tribunal’s reasons have been copied from an earlier decision in such a way that the Tribunal has failed to engage with the individual circumstances of the appellant;

(f)    The Tribunal’s assessment of the risk of harm faced by the appellant as an illegal departee from Sri Lanka at T[128]-[129] is identical in terms to two paragraphs of an earlier decision made by the Tribunal. In these paragraphs, the Tribunal also relies on “the submissions of the applicant’s previous adviser”: T[129]. The appellant did not have a “previous adviser” who made submissions and to the extent Mr Lincoln was involved, he was not the appellant’s “adviser”; and

(g)    The Tribunal’s conclusion as to the risk of significant harm on arrival in Sri Lanka at T[130] is identical in terms to a paragraph of an earlier decision made by the Tribunal.

52    The Minister submits that the mistakes identified by the appellant are either not factually wrong when the reasons are read fairly or do not demonstrate that the Tribunal did not bring an independent mind to the issues before it. The Minister submits that the mistakes as to Malaysia as the appellant’s country of origin and the appellant being a fisherman by trade do not involve factual error by the Tribunal. The Minister points out that the error as to source country was subsequently corrected by a corrigendum to the decision and does not demonstrate error. While the Minister accepts that the Tribunal has inadvertently included factual details as to working at Pepsi, previous charges, marital status and education that do not relate to the appellant, the Minister maintains that these mistakes do not amount to jurisdictional error. The Minister points out that elsewhere in the Tribunal’s reasons, the Tribunal correctly identified the salient facts about the appellant that were misstated in the isolated paragraphs of the Tribunal’s reasons on which the appellant relies for ground 2. The gravamen of the Minister’s submission is that the earlier correct summation of the facts by the Tribunal absolves or renders nugatory in the decision-making process the later mistaken recounts of the salient facts in relation to the appellant.

53    The Minister submits that aside from the isolated factual errors, there is no evidence that the Tribunal otherwise copied and pasted the reasoning in T[126]-[127] beyond the sentences that contain the mistakes. The Minister further submits that when the reasons are read as a whole and fairly, the Tribunal cogently reasoned in support of the findings made in a way that was independent of and unaffected by the mistakes on which the appellant relies. The Minister seeks to downplay the significance of the mistakes on the basis that no adverse credibility findings were made by the Tribunal in the paragraphs in which the factual mistakes were made. To similar effect, the Minister submits that the Tribunal has not, by using a template, accidentally overlooked a claim based on relevant material: cf CFC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1003 at [88] (Murphy J); SZRBA v minister for Immigration and Border Protection [2014] FCAFC 81 at [21] (Siopis, Perram and Davies JJ).

54    The Minister submits that if there was an error, it was not material in the requisite sense. The Minister submits that there is not a realistic possibility that the Tribunal’s decision could have been different if the error had not occurred, having regard to the remaining paragraphs of the Tribunal’s decision that are unaffected by the mistakes to which the appellant points.

55    Having weighed the submissions made by each of the parties, I have concluded that ground 2 must be allowed. My reasons for reaching this conclusion are informed by considering the impact of the alleged errors individually, and is cemented by considering the combined effect of the mistakes, on the assessment of whether the Tribunal has discharged its statutory task. I will now turn to the individual errors alleged by the appellant in relation to the Tribunal’s decision.

T[80]: “Malaysia”

56    The erroneous reference to the appellant’s country of origin as being “Malaysia” rather than “Sri Lanka” as the very last word in T[80] was subsequently corrected by a corrigendum to the Tribunal’s decision to make it clear that it should be a reference to Sri Lanka. The first reference to the appellant’s home country in T[80] is a reference to Sri Lanka. It is clear that the Tribunal correctly identified and acted on the basis that the appellant’s home country was Sri Lanka. The reference to Malaysia read in context and noting the appellant’s evidence about his travel to Malaysia at an earlier point in time is clearly a simply mistake in the nature of a slip. It was corrected shortly after publication of the Tribunal’s decision. I am satisfied that the inclusion of the word “Malaysia” as the last word in T[80] as first published and subsequently corrected does not demonstrate error that vitiated the Tribunal’s discharge of its task.

57    The appellant ultimately accepted that this error was not sufficient to establish jurisdictional error, especially having regard to the corrigendum but makes the broader submission that it is relevant to demonstrating the Tribunal’s lack of care in its approach to the statutory task. I am unable to accept the appellant’s submission as to the broader significance of the error in T[80], in circumstances where the error was identified and corrected by the Tribunal shortly after the publication of its reasons. I do not draw any broader inference from this aspect of the Tribunal decision as to the manner in which the Tribunal discharged its statutory task.

T[99]: “fisherman by trade”

58    The appellant relies on the mistake in T[99] that the appellant “is a fisherman by trade” as an instance that reveals that the Tribunal has erred in undertaking its review by reference to another applicant or potentially multiple other applicants. The appellant maintains that he was not a “fisherman by trade” and that the inclusion at T[99] of this description of him is indicative of the Tribunal’s review miscarrying. The appellant submits that although this is a confined factual error, that it has been made is relevant in demonstrating the way in which the Tribunal approached its statutory task.

59    The Minister submits that the reference to the appellant being “a fisherman by trade” at T[99] is not a factual error, maintaining that it is consistent with some of the evidence given by the appellant. The Minister’s submission is that read in the context of the appellant’s evidence, the reference “fisherman by trade” is in effect a reference to the appellant trading in fish, as part of his trading business. The Tribunal accepted the appellant’s evidence of his occupational history, including that the appellant had owned a wholesale and retail business and would regularly travel to Colombo depending on his business needs and at other times the appellant had been variously employed in a garment factory and in the construction sector: T[66]. The appellant’s evidence at the hearing before the Tribunal was that at one time he sold fish as part of a trading business. The Tribunal asked the appellant “what kind of work did you do when you were in Sri Lanka?”. The appellant replied “[b]uying fish, buying from one – buying from fishermen and sell it” and later “it’s a trading business”.

60    In light of the appellant’s evidence to the Tribunal, I would not infer that the refences to the appellant being a “fisherman by trade” is an extraneous matter copied from another decision. I regard it as more likely that this is an imprecise reference to the applicant’s involvement in a business in which fish were traded. While this aspect of the appellant’s occupational history may be more aptly described as being a fishmonger rather being than a “fisherman by trade”, I do not regard it as indicative of copying and pasting from another decision or template.

61    In any event, whether the appellant was involved in selling fish as part of a wholesale or retail business or was a fisherman by trade, that detail is not a critical step in the discharge of the Tribunal’s statutory task. The appellant’s occupation in Sri Lanka as a fisherman or fishmonger makes no difference to his eligibility for a protection visa.

62    As to the appellant’s broader submission that even though this factual error will not of itself establish jurisdictional error, it is nonetheless relevant to demonstrating the Tribunal’s approach to the statutory task, I do not accept that describing the appellant as a fisherman by trade instead of as a person engaged in a trading business that involved fishmongering advances the appellant’s contention in relation to the Tribunal’s execution of its statutory task. Read fairly, and in light of the evidence given by the appellant, this is no more than an infelicity of expression.

T[126]-[127]: “started working in Pepsi”, “previous charges against him in 2005, which were dismissed in June 2006” and “his profile as a young single educated Tamil male”

63    The appellant relies on the Tribunal’s mistakes about the identifying characteristics of the appellant in T[126]-[127], which is relevantly situated under the heading Illegal Departure and forms part of the Tribunal’s discussion of what faces returnees in circumstances of illegal departure and complementary protection. A number of the preceding paragraphs are general in nature and are not specific to the appellant, whereas T[126]-[127] contain conclusionary propositions about the real risk that the applicant will suffer significant harm.

64    Paragraph T[126] of the Tribunal’s decision is as follows (emphasis added):

126.     Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The Tribunal does not accept the applicant was of any interest to the authorities, including the army, the CID or the police, once he allegedly started working in Pepsi because of his Tamil ethnicity and perceived support of the LTTE or suspected involvement with the LTTE based on his Tamil ethnicity and/or the previous charges against him in 2005, which were dismissed in June 2006. As such, for the reasons discussed above, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from the authorities in Sri Lanka as a perceived opponent to the government and/or supporter of the LTTE.

65    The appellant was not, and did not claim to have been, working in Pepsi. There were no charges against the appellant in 2005, and thus there were no charges to be dismissed in 2006. These references are plainly to someone other than the appellant. The balance of the paragraph is generic and would likely apply to many returnees from Australia to Sri Lanka who cite a fear of harm based on perceived opposition to the government or support of the Liberation Tigers of Tamil Eelam (LTTE). I infer that the whole of this paragraph is likely copied and pasted from another decision dealing with a different visa applicant, who like the appellant was Tamil and facing return from Australia but whose relevant circumstances where otherwise separate and distinct from those of the appellant.

66    Paragraph T[127] says (emphasis added):

127.     In light of the relevant definitions set out at s.5(1) of the Act, and the independent information regarding the situation for Tamils in Sri Lanka since the cessation of the civil war in 2009, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity, his profile as a young single educated Tamil male or an imputed political opinion based on his Tamil ethnicity or any combination of these factors. The Tribunal refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war. UNHCR have said that that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE, which for the reasons provided above, the Tribunal does not accept the applicant falls within.

67    The appellant was educated to Year 11 level and was married with two daughters. Again, as with T[126], the balance of T[127] is generic and would likely apply to many returnees from Australia to Sri Lanka. I infer that the whole of this paragraph is also likely copied and pasted from another decision dealing with a different visa applicant who was Tamil and facing return from Australia to Sri Lanka.

68    It is apparent that the Tribunal has copied at least part of, but more probably all of, T[126] and T[127] from a decision in an earlier matter or from a template created for use in the Tribunal. The Minister accepts that these paragraphs (or part of them) have been copied. The issue is whether the copying demonstrates that the Tribunal did not bring an independent mind to the issues before it: MZZZW at [52]-[55].

69    These two paragraphs contain significant conclusory propositions, and the errors are not de minimis or peripheral. They purport to include the personal details of the particular appellant in the context of the relevant decision-making framework. Paragraphs T[126] and T[127] are situated in the context of the Tribunal’s assessment of the complementary protection criterion directed to the illegal departure claim. The appellant submits that the inference that ought be drawn is that the Tribunal is assessing that criterion from the perspective of the personal details of another applicant such that there has been a failure to bring an independent mind to the review task at hand by reference to appellant’s own circumstances when assessing the complementary protection criteria, particularly with respect to illegal departure. The substantially copied reasoning in these paragraphs of the Tribunal’s decision does not involve adverse credibility findings, but that does not mean the copied reasoning implanted with the extraneous personal circumstances applicable to another visa applicant (and not the appellant) is unimportant: CFC16 at [87]. The appellant submits that had the Tribunal considered the appellant’s own individual circumstances and the submissions made on his behalf, the Tribunal’s decision could realistically have been different: LPDT at [14]. The appellant maintains that the threshold of materiality is met by the fact that the Tribunal’s review task was directed to the circumstances of another applicant.

70    The Minister contends that the mistake of including this extraneous and incorrect information does not indicate that the Tribunal did not bring an independent mind to bear because the decision elsewhere expressly refers to the correct information and details relating to the appellant. I accept that the Tribunal correctly identified details of the appellant’s employment, contrary to the matters recorded at T[127]. There was no suggestion that the appellant has been previously convicted of any matters and thus no suggestion that he has been dismissed of any charges. While the Minister notes that there is no express statement by the Tribunal that the appellant had never been the subject of charge, the Minister submits that that is implicit in the Tribunal’s reference to the fact that some people with other criminal charges have been held for longer periods upon returning to Sri Lanka and accepted that this was not the situation for the appellant: T[117]. The Minister submits that because the Tribunal made findings that were correct on the same issues that are the subject of the erroneous statements later in the Tribunal’s reasons, there is no jurisdictional error. As I followed the submission, the Minister submits that the inclusion of the erroneous findings is in effect neutralised by the earlier correct findings and so the threshold of materiality is not met.

71    I am not persuaded by the Minister’s submission. The Tribunal’s other correct findings precede the impugned paragraphs. The Tribunal does not refer back to its earlier correct findings or factual statements when reasoning to its conclusions at T[126] and T[127]. Instead, it expressly proceeds on the basis of the mistaken statements that do not reflect the personal circumstances of the appellant.

72    Although T[126] appears under the heading Illegal Departure, the Tribunal does not address the appellant’s illegal departure or its effect on the complementary protection criterion. Rather, the relevant sentences in T[126] relate to the Tribunal’s rejection of the claim that the applicant was of any interest to the authorities and the Tribunal’s more general finding in relation to the complementary protection criterion respectively. The Tribunal had already made conclusions as to such matters that were unaffected by error (see T[77], T[92], T[93], T[117] and T[101]).

73    The errors contained in T[126] are not insignificant or peripheral matters. The errors are about the particular circumstances of the applicant at issue in the context of complementary protection criterion directed to the illegal departure claim. The fact that the Tribunal misstates the facts which go to identifying, understanding and addressing the claims made by the appellant is potentially significant. It is possible that had the Tribunal considered the appellant’s own individual circumstances, then the Tribunal’s decision could realistically have been different.

74    As to T[127], the Minister submits that the Tribunal correctly identified the applicable facts in respect of the appellant in earlier paragraphs of the Tribunal’s decision, as follows:

(a)    that the appellant was educated up to the equivalent of Year 11 in Sri Lanka: T[28], T[55]; and

(b)    that the appellant was married: T[26], T[31], T[34], T[36], T[58], T[60], T[61], T[70], T[95], T[99], T[131], T[134].

75    The Minister submits that the Tribunal expressed detailed reasoning on the question of complementary protection elsewhere in the decision unaffected by the mischaracterisation of the appellant, for example, at T[100], the Tribunal considered the totality of the appellant’s circumstances (including “his race, age, location or gender, or any imputed anti-Government political opinion arising from this background”) in order to conclude that the refugee criterion was not satisfied. The errors identified in T[127] did not form part of this earlier assessment of the appellant’s background and profile.

76    The Minister submits that the structure of the Tribunal’s reasons suggests that this section of the Tribunal’s reasons was in effect sense-checking the conclusions already drawn earlier in the reasons under different sections, or alternatively, is simply a repetition of its findings. The Minister submits that the Tribunal has already made its findings concerning illegal departure before reaching the paragraphs that contain the errors. I do not accept the Minister’s submissions as to, in effect, the irrelevance of the errors made in this section of the Tribunal’s reasons. The Minister may well be correct in explaining how the mistake came to be made, but even if so, the extent of repetition in the decision and the lack of a cohesive structure coupled with the inclusion of inconsistent fact finding on the same issues in different parts of the reasons demonstrates that the Tribunal has erred in its approach to its statutory task. Having regard to the relatively low threshold to establish materiality, I am satisfied that the error is material in the requisite sense.

T[117]: “the applicant’s past experience, in 2005”

77    During the hearing, the appellant identified an additional error in the Tribunal’s decision at T[117] by reference to the appellant’s past experience in 2005. I granted leave for the appellant to provide further submissions on this further point, and for the Minister to provide a reply.

78    The appellant has identified that the Tribunal’s reasons at T[117] are identical to a paragraph of a different Tribunal decision made in March 2016. This predates the Tribunal’s decision, which was made on 10 January 2018.

79    The appellant highlights an incongruity between the Tribunal’s earlier factual findings as to the appellant’s lawful departure in 2005/2006 and the conclusory sentence in T[117]: “The Tribunal does not accept that the applicant’s past experience, in 2005, provides guidance to the experience he will have on return in 2016 or beyond.”

80    The appellant’s complaint as to T[117] is twofold: first, that the Tribunal’s inconsistent chronology of the appellant’s experiences, particularly in relation to the appellant’s departure and return to Sri Lanka in 2005/2006, is indicative of the Tribunal not bringing an independent mind to the appellant’s individual circumstances; and secondly, that the Tribunal has copied the paragraph from another decision which concerns another visa applicant’s experiences rather than the appellant’s.

81    The reference to 2005 in the final sentence of this paragraph is either another instance of copying being a remnant reference to the past experience of another visa applicant rather than that of the appellant, or is a further manifestation of the variable allocation of the year in which certain events occurred based on the “confusion” inherent in the appellant’s evidence.

82    As mentioned, the dates referred to in the Tribunal’s decision concerning the appellant’s departure to and return from Malaysia are somewhat inconsistent. The Tribunal accepted that the appellant departed Sri Lanka in either 2005 or 2006 and returned some time later in 2006. Given that the Tribunal noted that the appellant’s own evidence was inconsistent in terms of identifying the years in which events occurred and that this was understandable in light of his experiences and the effluxion of time, I do not think that the reference in the concluding sentence of T[117] gives rise to a reliable inference that this paragraph is the product of impermissible copying rather than the product of the Tribunal’s consideration of the appellant’s personal experience. The appellant’s personal experience and circumstances relating to his 2005/2006 excursion to Malaysia following a lawful departure from Sri Lanka and forcible return and his illegal departure from Sri Lanka in 2012/2013 and potential forcible return are recounted in some detail in this section of the reasons and in a way that does not cause me to infer that T[117] is the product of pure copying divorced from a consideration of the appellant’s circumstances.

83    Similarly, I do not regard the variation between the Tribunal’s description of the appellant voluntarily returning from Malaysia (where he was being detained for the reason that he had overstayed what transpired to be a fake visa) or as being forcibly returned as demonstrating that the Tribunal did not engage with the appellant’s particular circumstances. In the context of the appellant’s circumstances, his return may answer both descriptions, being a voluntary act to return to Sri Lanka as the only means available in the absence of a valid visa to leave detention in Malaysia. The view reached by the Tribunal in the last sentence of T[117] is a view that was available to it, based on the reasons it expressed, namely the contrast between returning to Sri Lanka following a lawful departure in 2005/2006 versus returning to Sri Lanka following an illegal departure, posited to take place in around 2016 and beyond.

T[128]-[129] and T[130]: copying from other Tribunal decisions

84    As mentioned, in the appellant’s post-hearing submissions, the appellant identified a further three paragraphs of the Tribunal decision (T[128], T[129] and T[130]) that he contends were copied verbatim from other Tribunal decisions with the consequence that it should be inferred that the Tribunal did not bring an independent mind to the review task and failed to discharge its statutory task on review.

85    In addition to the appellant’s earlier submissions in regard to T[126]-[127], the appellant submits that T[128]-[129] are in the same terms as two paragraphs of another tribunal decision reproduced in CGV15 v Minister for Immigration and Border Protection [2017] FCA 1610 at [8] (Davies J). The relevant tribunal decision predates the Tribunal’s decision, and the appellant submits that I should infer that T[128]-[129] were copied and pasted by the Tribunal from another Tribunal decision. Similarly, T[130] is in the same terms as a paragraph of another Tribunal decision pre-dating the Tribunal’s decision: 1319174 (Refugee) [2015] AATA 3676.

86    While much of the language of paragraphs T[128]-[130] are conclusory expressions of the relevant statutory criteria, there is a reference at T[129] to “the submissions of the applicant’s previous adviser.” The appellant submits, and I accept, that he did not have a “previous adviser” making submissions on his behalf before the delegate or before the Tribunal. To the extent that Mr Lincoln was involved, he was not the appellant’s adviser, and the Tribunal made this point of distinction in its consideration of the appellant’s request for an adjournment. As with the earlier copying in T[126]-[128], I regard the reference to the appellant’s previous adviser’s submissions as being a further indication of blanket copying without regard to the appellant’s personal circumstances.

87    When T[126]-[130] are read consecutively, and having regard to the location of these paragraphs in the structure of the Tribunal’s reasons, this sequence of the Tribunal’s reasons strongly supports that the Tribunal has, in the later stages of its reasons, conflated the circumstances of the appellant with those of other applicants.

Conclusion

88    I am satisfied that the appellant has established error on the part of the Tribunal in relation to the Tribunal’s reasons at T[126]-[130]. The Tribunal has engaged in substantive copying in this section of its reasons from what I would infer to be a variety of sources. In doing so, the Tribunal has failed to demonstrate in its reasons that it was acting on a coherent and consistent understanding of the appellant’s circumstances and excluding from its consideration remnant details gleaned from other decisions that were irrelevant to the appellant’s claims. I accept the appellant’s contention that the Tribunal has failed to discharge its statutory task.

89    As to whether the error was material, the relevant test is as articulated by the plurality in LPDT at [16]:

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

90    With the exception of the mistake at T[80] (which was corrected by the corrigendum), the alleged error at T[99] (which I have found was no more than an infelicity of expression), and the complaint about T[117], I am satisfied that error was material in the requisite sense. The errors were made in a significant part of the Tribunal’s decision, directed to the complementary protection analysis, and went to the heart of the Tribunal’s function. I cannot be affirmatively satisfied that the outcome would inevitably have been the same had the Tribunal reasoned in this section of its reasons by reference to a correct recount of the substantive details of the appellant’s circumstances.

91    The Minister suggests that if the Court were to disregard T[126] and T[127], which contain the most significant errors, the Tribunal would still be found to have undertaken its statutory task based on the overall structure of the Tribunal’s decision and separate findings made elsewhere in the Tribunal’s decision. Having regard to the Tribunal’s findings and conclusions drawn throughout various parts of the decision, I am not satisfied that the disparate isolated findings in earlier paragraphs of the Tribunal’s decision are capable of curing the Tribunal’s subsequent analysis.

92    I am satisfied that the cumulative effect of the Tribunal’s mistakes outlined above supports an inference that the Tribunal has not discharged its statutory task with respect to the appellant’s claims. Had the Tribunal solely considered the appellant’s own individual circumstances and not been distracted by details relating to another or multiple other individual’s circumstances in the Tribunal’s assessment of whether the appellant faces a real chance of serious harm now or in the reasonably foreseeable future upon return to Sri Lanka, it is a realistic possibility that the Tribunal’s decision could have been different: LPDT at [14]. I am satisfied that these errors are material and jurisdictional: LPDT at [4].

93    Accordingly, ground 2 is allowed.

Ground 1

94    As I have resolved ground 2 in favour of the appellant, I will be brief in addressing ground 1. The appellant submits that the Tribunal’s refusal of the adjournment sought by the appellant was, in all the circumstances, legally unreasonable.

95    This ground was not expressly raised before the primary judge. In considering the unparticularised ground of denial of procedural fairness, the primary judge noted that the Tribunal had refused to adjourn the hearing to a later date to enable Mr Lincoln to attend. The primary judge further noted, amongst other things, that Mr Lincoln had submitted a written statement which was considered by the Tribunal and that the appellant had the assistance of an interpreter: PJ[51]-[53]. The primary judge found that the appellant was not denied procedural fairness and that the Tribunal did not commit a jurisdictional error: PJ[55].

96    The relevant principles regarding legal unreasonableness are well-established and are not in dispute: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11]-[12] (Kiefel CJ), [59] (Gageler J), [79], [90] (Nettle and Gordon JJ), [135] (Edelman J); Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332 at [58], [67], [71], [74], [85] (Hayne, Kiefel and Bell JJ).

97    The conduct of the review before the Tribunal was governed by Division 4 of Part 7 of the Act. In applying the provisions under Division 4 of Part 7, the Tribunal was required to “act in a way that is fair and just”: s 422B(3). The Tribunal was required to invite the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). The Tribunal had discretionary power to adjourn the review from time to time: s 427(1)(b). That statutory discretion was conditioned by a requirement that it be exercised in a legally reasonable way: Li at [23]-[26] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88]-[92] (Gageler J). In exercising its discretion, the Tribunal was not bound by technicalities, legal forms or rules of evidence, but was required to act according to substantial justice and the merits of the case: s 420.

98    The Tribunal was required to exercise its discretion to decide whether to adjourn the hearing in a reasonable way. I am satisfied that it did so and no jurisdictional error has been established.

99    As the appellant correctly acknowledges, the application of the principles of legal unreasonableness is invariably fact dependent. Here, the Tribunal’s decision to refuse the adjournment was supported by an intelligible and reasoned justification. At T[40]-[42], the Tribunal said:

40.     The applicant contacted the Tribunal after a hearing invitation was issued to him on 9 June 2016 seeking a postponement because Mr Brian Lincoln was not available to represent him. The request was refused as Mr Lincoln was not a registered to provide migration advice or assistance. The Tribunal advised the applicant that this could be further discussed at the hearing.

41.     The applicant appeared before the Tribunal at a scheduled hearing on 5 July 2016. He was assisted by an interpreter in the Tamil and English languages. The applicant’s supportive friend and authorised recipient, Mr Brian Lincoln, who had provided some written arguments in favour of this review applicant, was not present at the scheduled hearing.

42.     The Tribunal notes that during the scheduled hearing the applicant complained that he did not have enough time to find a migration agent or lawyer to represent him. As explained in the hearing, that was not the case as the applicant had his application for review for a considerable amount of time (nearly eighteen months). The applicant did not ask for a further postponement and the hearing proceeded.

100    The Tribunal also made the following additional findings that, amongst other things, provide further context for its the decision to refuse adjournment application:

Additional Findings

131.     The decision has been additionally difficult in assessing the real chance of serious harm and the real risk of significant harm arising from the applicant’s past trauma. In this regard, the Tribunal accepts, despite a lack of independent evaluation from a medical or psychological professional, that the applicant has experienced extreme humiliation by being forced to commit degrading sexual acts by members of Sri Lanka’s armed forces. This is accepted the applicant’s friend, Mr Lincoln, as a professional counsellor recognised substantial psychological stress. The Tribunal also notes that the applicant has accessed psychological services while he was in Brisbane about three years ago after which the applicant did not take the medication recommended to him. It is also accepted that the applicant has not told his wife about these specific experiences. The Tribunal further accepts that the applicant’s short term memory and capacity to concentrate have been affected and he experiences low moods due to these psychological injuries. The applicant added that he kept himself working and busy his mood improved. Although he has the opportunity to provide them to the Tribunal, there is no evidence before the Tribunal that the applicant experiences severe or deliberating psychological symptoms requiring intensive treatment as the applicant was otherwise highly functional.

132.     The Tribunal notes the applicant was able to participate and respond to questioning throughout a lengthy hearing and it is accepted that he forgot some aspects of his otherwise consistent testimony, in particular, specific dates and years. The Tribunal accepts that the applicant’s difficulties in recalling some details was due to appearing before the Tribunal which can be distressing in the context of the applicant’s accepted past trauma. Nevertheless the Tribunal is satisfied that the applicant was able to meaningfully and expressively participate in the hearing consistent with s.425 of the Act.

101    Mr Lincoln has known the appellant since October 2014 through Tamworth Multicultural Inc. Mr Lincoln provided the appellant with information, emotional and personal support, and practical assistance regarding community service. As mentioned, Mr Lincoln was not a registered migration agent and therefore was prohibited from giving immigration assistance to the appellant: s 280.

102    Prior to the hearing, in the period from about January 2016 to at least June 2016 when the hearing date of 5 July 2016 was allocated, the Tribunal corresponded with Mr Lincoln as the appellant’s “authorised representative”.

103    On 29 June 2016, the Tribunal notified the appellant in writing and by telephone that it had decided to refuse the adjournment request. In each instance, the appellant was advised that the Tribunal would consider evidence from Mr Lincoln via telephone or in written form and that the matter could be further discussed at the hearing with the presiding member.

104    On 1 July 2016, Mr Lincoln submitted a written statement explaining that he was unable to attend the hearing. In the written statement, Mr Lincoln provided information in relation to the review.

105    The Tribunal raised and addressed the adjournment application during the hearing. The Tribunal rejected the appellant’s complaint that the appellant had not had enough time to find a migration agent or lawyer. The Tribunal explained that the appellant had had a considerable amount of time since the appellant’s application had been made (nearly eighteen months). Despite the reasonably short length of the proposed adjournment, the Tribunal properly considered the relevant lengthy history of the proceeding. The appellant’s submissions based on the time the Tribunal took to deliver its decision are misplaced. At the time the adjournment application fell to be decided, the date on which the Tribunal would deliver its decision was not something that was known by the Tribunal. That the decision was not delivered for some time does not support an inference that the Tribunal exercising its discretion to refuse the adjournment was legally unreasonable. The appellant did not request a further postponement of the hearing.

106    In so far as the appellant maintains that the Tribunal’s refusal of the adjournment was legally unreasonable because it did not comply with the Guidelines, I do not accept that submission. The Guidelines recognise that the Tribunal may permit a representative other than a lawyer or a migration agent to represent or otherwise assist a vulnerable applicant at a hearing, but the Guidelines are not mandatory: SZUZK v Minister for Immigration and Border Protection [2016] FCA 498 at [13], [22] (Bromwich J). In any event, the Tribunal did not find that the appellant came within the description of being a “vulnerable person” within the meaning of the Guidelines, notwithstanding that it accepted that he had suffered psychical abuse or trauma and psychological stress. To the contrary, the Tribunal found that the appellant was able to meaningfully participate in the hearing in a way that was consistent with s 425 of the Act: T[132].

107    The appellant accepts that he was not entitled to representation before the Tribunal: s 427(6)(a); see WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; 204 ALR 687 at [67]-[69] (French, Lee and Hill JJ). Whilst Mr Lincoln was prohibited from providing the appellant immigration assistance, the appellant contends that Mr Lincoln could have assisted the appellant in a different role, for example, as a counsellor or support person. The appellant relies on Mr Lincoln’s familiarity with the appellant and the appellant’s history to infer that Mr Lincoln’s participation in the hearing could have improved the quality of the evidence given by the appellant. The Tribunal gave coherent reasons for refusing the adjournment application which considered the issues addressed in Mr Lincoln’s written statement, including the observations he made in his capacity as a professional counsellor: T[39]-[42].

108    The Tribunal’s decision not to adjourn the hearing was not solely predicated on Mr Lincoln not being a migration agent or lawyer. The Tribunal also had regard to the communications between the appellant and the Tribunal staff both prior to and during the hearing. The Tribunal considered the information provided by Mr Lincoln in making its decision: T[39]. The Tribunal took into account its assessment of the appellant’s ability to meaningfully and expressively participate in the hearing consistent with s 425 of the Act. The high bar of unreasonableness has not been met. Had it been necessary to consider it, I would have dismissed ground 1.

CONCLUSION

109    For the reasons set out above, the appeal is allowed. The orders made by the primary judge should be set aside and the appellant’s application should be remitted to the Administrative Review Tribunal for determination.

110    The Minister is to pay the appellant’s costs of this appeal and the proceeding below.

Associate:

Dated:    29 August 2025