Federal Court of Australia

CLT19 v Minister for Immigration and Citizenship [2026] FCA 1174

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The application for an extension of time within which to file a notice of appeal be dismissed.

3.    The applicant pay the first respondent’s costs of the application, as agreed or taxed.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    The applicant seeks an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (FCR) within which to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Div 2) on 21 February 2025.

2    Those orders dismissed the applicant’s application for judicial review of a decision of the statutory predecessor of the second respondent (Tribunal) and ordered him to pay the costs of the first respondent (Minister) in the sum of $5,500: CLT19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 225.

3    At the outset, it should be said that the proposed appeal concerns arguments not advanced before the primary judge. Leave would therefore be required to advance the arguments identified in either: (a) the draft notice annexed to the applicant’s affidavit of 30 April 2025 (which made reference to s 424A of the Migration Act 1958 (Cth) (Act)); (b) the related but more elaborate arguments made in written submissions filed on 27 July 2026; or (c) the oral argument on the application, which developed a somewhat different argument.

4    But that said, it is not necessary to dwell on the evolving case of the applicant other than to mention this fact as an explanation of the absence of a detailed review below of the primary judge’s reasons. I will proceed to deal with an impressionistic assessment of the proposed new arguments which are relevant to the utility of extending time.

5    Everything that could be said in support of the application was put skilfully by Mr Foster, counsel for the applicant, and although there is an explanation for much of the delay (and the Minister does not identify substantive prejudice from it), the determinative issue on the extension application is that, for reasons I will explain, the proposed appeal is misconceived.

B    BACKGROUND

6    The applicant is a citizen of India and a Hindu. He arrived in Australia in 2014 and, in February 2015, applied for a protection visa. A delegate refused the application on 10 June 2016. The applicant sought merits review on 30 June 2016.

7    The applicant claimed, in summary, that he feared harm from Muslim political opponents because of his asserted involvement with the Akhil Bharatiya Vidyarthi Parishad (ABVP), the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP). He claimed that political opponents vandalised his grocery shop, that he moved to Mangalore to escape persecution, and that he was assaulted there by a Muslim gang.

8    The Tribunal conducted a hearing on 6 June 2019 with the assistance of a Malayalam interpreter. It affirmed the delegate’s decision on the same day.

9    The Tribunal did not accept the central parts of the applicant’s account. It found him to be a highly unreliable witness and was not satisfied that his substantive protection claims were truthful. It accepted that he was a Hindu who supported the BJP (and perhaps the RSS), but was not satisfied that he had formally joined the RSS or that he had joined the ABVP while at school. It rejected the claimed political motivation for the vandalism of his shop and the asserted assault in Mangalore. It also found, in the alternative, that he could safely, reasonably and practicably relocate to Chennai.

10    The Tribunal accordingly was not satisfied that Australia owed the applicant protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

11    The applicant commenced judicial review proceedings as long ago as 25 June 2019. His three grounds alleged, in broad terms, an erroneous approach to significant harm, an absence of lawful “reasonable satisfaction”, and a failure to investigate his claims.

12    As noted above, the primary judge dismissed the application. His Honour held that the pleaded grounds did not identify jurisdictional error. His Honour also considered a notation in the Tribunal’s hearing record that the “Interpreter was terrible”, but found there was no evidence that any inadequacy in interpretation caused unfairness. As would already be evident, that aspect of the primary judgment is not the subject of the proposed appeal.

C    THE PROPOSED APPEAL AND CONSIDERATION

13    In written submissions before the hearing, the applicant identified several findings which, he says, were not put to him before the Tribunal decided the review. They include the Tribunal’s conclusions: (a) that he had not formally joined the RSS or ABVP; (b) that he had not been truthful about his political activities and his shop had not been vandalised because of those activities; (c) that he had not gone to Mangalore to escape religiously or politically motivated persecution; (d) that the asserted assault in Mangalore had not occurred or, if it had, was not motivated as claimed; (e) that his professed fear of returning to Madikai was neither well-founded nor genuine; and (f) that inconsistencies in his explanations concerning information used in his earlier visitor visa application formed part of a broader pattern affecting his reliability. The proposed ground was put in writing in different but related ways.

14    First, the applicant contended that the Tribunal failed to comply with s 424A of the Act because it did not put to him the adverse matters which ultimately formed part of its reasons for rejecting his claims. Section 424A(1) relevantly required the Tribunal to give an applicant clear particulars of information that it considered would be the reason, or a part of the reason, for affirming the decision under review, explain why that information was relevant and the consequences of its being relied upon, and invite the applicant to comment or respond.

15    But this contention does not withstand analysis. The statutory concept of “information” does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (at 615–616 [17]–[18]), Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ explained that the provision is concerned with evidentiary material or documentation, rather than doubts, inconsistencies or conclusions reached by the Tribunal in evaluating the evidence. Their Honours approved in this respect the observations of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 (at 555 [24]).

16    That distinction is fatal to the first way the proposed ground was put in writing. The matters identified by the applicant are, in substance, evaluative conclusions reached by the Tribunal after assessing his claims, explanations and evidence. Section 424A did not require the Tribunal to announce those proposed conclusions in advance so that the applicant could attempt to persuade it not to reach them.

17    Secondly, the applicant’s written submissions sought to invoke ss 424AA, 422B and 425 of the Act. It was accepted that s 424AA(1)(a) did not require the Tribunal to put every matter which might bear adversely upon the applicant. The complaint was that the Tribunal had not sufficiently identified the matters ultimately relied upon adversely to him, explained their significance and afforded the applicant an opportunity to respond, with the consequence that it had failed to act fairly and justly as required by s 422B(3).

18    That formulation does not materially advance the proposed ground. Section 422B(1) provided that Div 4 of Pt 7 was an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which the Division dealt. Section 425 required the Tribunal to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant was invited and appeared. Those provisions did not impose an additional obligation upon the Tribunal to disclose its provisional reasoning or put to the applicant for further comment each adverse conclusion it might reach upon evaluating his evidence.

19    The Minister’s written submissions in response addressed a certificate given under s 438 of the Act and the documents to which it purported to apply. Nothing turns on that matter. The Tribunal considered the certificate invalid and itself discussed with the applicant the relevant issue concerning the differing explanations given about information contained in his visitor visa application. More fundamentally, the applicant did not identify either the certificate or the documents to which it related as the information said to found the proposed jurisdictional error. It is unnecessary to consider the certificate further.

20    As noted above, when the application came on for hearing, the proposed appeal argument changed in an important respect. Mr Foster accepted, correctly, that the word “may” in s 424AA(1)(a) conferred a discretion upon the Tribunal and that the provision did not oblige the Tribunal to embark upon the procedure there described. That concession was, of course, inevitable: see s 33(2A) of the Acts Interpretation Act 1901 (Cth).

21    His submission became that the Tribunal had in fact exercised that discretion when, during the hearing, it put several matters to the applicant which are recorded at [28], [29], [30] and [34] of its reasons. Having done so, it was submitted, the Tribunal was then obliged to comply with each of the requirements in s 424AA(1)(b). In particular, it was said that the Tribunal had not ensured that the applicant understood why the information was relevant and the consequences of its being relied upon, as required by s 424AA(1)(b)(i), and had not advised him that he might seek additional time to respond, as required by s 424AA(1)(b)(iii).

22    As this argument had not been put in this form in the applicant’s written submissions, the Minister’s written submissions did not address it. It is therefore necessary to address the argument by reference to the text and structure of s 424AA and the principles explained by the High Court concerning the cognate language of s 424A.

23    The oral submission, it seems to me, proceeds from a false premise. Section 424AA(1)(a) did not provide that the requirements in para (b) were engaged whenever, in the course of questioning an applicant, the Tribunal happened to refer to or put to the applicant some factual material. What the Tribunal was authorised to do by para (a) was more particular: it might “orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. It was only “if the Tribunal does so” that the requirements in para (b) followed.

24    The words “does so” must refer to the act described in para (a) as a whole. The relevant inquiry is therefore not simply whether some information was mentioned during the hearing. It is whether the Tribunal orally gave clear particulars of information of the stipulated character, being information which it considered would be a reason, or part of the reason, for affirming the decision. That construction is reinforced by s 424A(2A), which provided that the Tribunal was relieved of the otherwise applicable obligation under s 424A to give particulars of information and invite a response where it had given clear particulars of the information and invited a response “under section 424AA”. Sections 424A and 424AA thus provided written and oral procedures respectively for dealing with information of the statutory character; s 424AA did not transform every reference to evidence or every question asked during a hearing into the commencement of the procedure in para (a).

25    This distinction accords with the reasoning in SZBYR. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ emphasised at [15] that s 424A did not require notice of every matter which the Tribunal might consider relevant. At [17], their Honours explained that the statutory criterion does not turn upon the Tribunal’s published reasoning and observed that the use of the future conditional expression “would be” indicates that the operation of the provision is to be determined in advance of, and independently from, the Tribunal’s ultimate reasoning on the facts. At [18], their Honours distinguished evidentiary material or documentation from the Tribunal’s doubts, inconsistencies, disbelief and evaluative conclusions. Their Honours then explained at [19]–[21] the anomaly which would follow from a construction under which inconsistencies emerging during a hearing repeatedly generated fresh obligations to put matters back to an applicant, concluding that s 424A had a more limited operation.

26    The same difficulty attends the argument now advanced under s 424AA. It does not follow from the fact that the Tribunal put a proposition to the applicant, obtained his answer and later drew an adverse conclusion from the exchange that the Tribunal had thereby exercised the particular discretion conferred by s 424AA(1)(a). To reason in that way is to elide the distinction between information of the statutory character and the ordinary process by which a merits review tribunal tests evidence, obtains explanations and thereafter evaluates what it has been told.

27    The passages relied upon demonstrate the point. At [28], the Tribunal tested the applicant’s repeated assertion that he faced a permanent threat of death and would not return voluntarily to India by referring to the fact, apparent from the passport he had brought to the hearing, that he had voluntarily returned twice; the applicant gave an explanation, which was then further explored. At [29], the Tribunal tested his assertion of risk against his evidence concerning his years living and working in Chennai and his movements between Chennai and Madikai, and again obtained his explanation. At [30], country information concerning the political position in India was raised and the applicant responded by distinguishing conditions in Kerala. At [34], the Tribunal put the apparent inconsistency between two explanations the applicant had given concerning the visitor visa application, and he gave a further explanation. In each instance, the reasons record an exchange in which the Tribunal tested the applicant’s case and received an answer.

28    The adverse matters which then appeared in the Tribunal’s findings were the conclusions drawn from that process. The Tribunal concluded, among other things, that the applicant’s professed fear of returning to India was not genuine, that the unresolved inconsistency concerning the visitor visa formed part of a broader pattern affecting his reliability, and that he could safely, reasonably and practicably relocate to Chennai. Those were evaluative conclusions reached after consideration of his evidence and answers. They were not themselves “information”, for the reasons explained in SZBYR.

29    It is unnecessary to determine whether every item of factual material referred to in the exchanges at [28], [29], [30] and [34] was, considered in isolation, capable of answering the description “information”. The applicant’s oral argument fails because it proceeds on the footing that, merely by raising those matters while questioning him, the Tribunal was necessarily exercising the discretion in s 424AA(1)(a) to give clear particulars of information which it then considered would be a reason, or part of the reason, for affirming the decision. For the reasons already given, that does not follow.

30    There is a further difficulty. Even if it were assumed in the applicant’s favour that the Tribunal had engaged s 424AA(1)(a) in relation to one or more of those matters, the material before this Court does not establish the alleged non-compliance with para (b). There is no transcript of the hearing before the Tribunal in evidence. The MRD Hearing Record records administrative matters concerning the hearing but does not record the substance of what was said. Neither affidavit sworn by the applicant gives evidence that the Tribunal failed to explain the relevance or consequences of information, failed to invite a response, or failed to advise that additional time might be sought. The Tribunal’s reasons record some of the exchanges which occurred but do not purport to be a transcript of the hearing. The absence from those reasons of a recital that each step in s 424AA(1)(b) occurred does not establish that it did not occur.

31    For those reasons, the oral reformulation does not give the proposed appeal any realistic prospect of success. The applicant’s written case treats adverse findings and evaluative conclusions as information which was required to be put to him, contrary to SZBYR. His oral case avoids that error only by advancing a different but equally unsustainable proposition, namely that the Tribunal necessarily engaged s 424AA(1)(a) whenever it referred to factual material while testing his evidence. The text of the provision does not support that proposition, and, in any event, the evidence does not establish the asserted failure to comply with s 424AA(1)(b).

32    Even if time were extended, the applicant would require leave to advance a ground which was not raised below. His self-represented status provides an explanation for that omission, but granting leave would serve no purpose.

D    CONCLUSION

33    The application for an extension of time will therefore be dismissed with costs.

34    The Minister seeks an order amending the name of the first respondent to the Minister’s current title, “Minister for Immigration and Citizenship”. The title should be amended accordingly.

Associate:

Dated: 19 August 2026