Background
The appellant, a Kenyan national, arrived in Australia in November 2014 on a higher education visa. After applying for a protection visa in April 2024, a delegate of the Minister refused the application on 7 May 2024. The appellant sought review before the Administrative Appeals Tribunal (AAT), claiming a well-founded fear of persecution and complementary protection grounds, including fears of arrest, interrogation, and prolonged detention in Kenya arising from criminal charges (subsequently withdrawn) that had been brought against his mother for possession of explosives.
The appellant formally requested, under s 426 of the Migration Act 1958 (Cth), that the AAT obtain oral evidence from his mother. At the first hearing on 18 June 2024, the AAT contacted the mother by telephone but could not take her evidence because the interpreter had not been booked for the full duration of the hearing. The AAT member acknowledged the evidence was “obviously quite important” and adjourned to a further hearing specifically to obtain it. The night before that second hearing on 26 June 2024, the appellant provided a written statement from his mother. On the day, three telephone attempts to reach her failed. The appellant offered two explanations: he had indicated to his mother that she might not need to appear in person, and there was “uncertainty back home” — a reference to political protests then underway in Kenya. The AAT concluded the hearing without further adjournment and, approximately one week later, affirmed the delegate’s refusal. The AAT considered the written statement but was not satisfied the appellant met either the refugee or complementary protection criteria.
The appellant sought judicial review in the Federal Circuit and Family Court of Australia (Division 2), which rejected all three grounds and dismissed the application. He then appealed to the Federal Court. Before the appeal hearing, his legal representative withdrew, leaving him to appear as a self-represented litigant. Interlocutory applications for recusal and a further adjournment were dismissed. The Federal Court did, however, receive the audio recordings of both AAT hearings as further evidence on appeal, finding their admission just given the appellant’s litigant-in-person status and the importance of the recordings to understanding the procedural fairness grounds.
The Court’s Holding
Feutrill J allowed the appeal, holding that the AAT’s decision not to adjourn the review a second time to obtain the appellant’s mother’s oral evidence was a legally unreasonable exercise of the discretionary power conferred by s 427(1)(b) of the Migration Act 1958 (Cth), and therefore beyond jurisdiction. This made it unnecessary to address the separate ground concerning the Secretary’s alleged failure to provide certain documents to the AAT Registrar under s 418(2).
The Court reasoned that the AAT’s own conduct contributed materially to the situation: it was the AAT’s failure to book an interpreter for the full first hearing that prevented the mother’s evidence from being taken on 18 June 2024, and it was the AAT member’s own statements at that hearing — suggesting that a written statement might suffice and oral evidence might not ultimately be needed — that plausibly explained why the appellant had communicated to his mother that she might not need to appear. The AAT’s reasons also omitted these circumstances entirely, recording neither the interpreter failure nor the appellant’s reference to Kenyan political unrest as an explanation for his mother’s unavailability. Applying the principles in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the Court found the exercise of the adjournment power lacked an evident and intelligible justification, depriving the appellant of a meaningful opportunity to present his protection claim as contemplated by s 425(1) and the fair-and-just requirement of s 422B(3).
Accordingly, the Court issued certiorari quashing the AAT’s decision to affirm the delegate’s refusal, and mandamus compelling the Administrative Review Tribunal (the AAT’s successor body) to conduct the review according to law. The primary judge’s orders were set aside. The Minister was ordered to pay the appellant’s costs of both the original application and the appeal. The costs of the appellant’s interlocutory application (recusal and adjournment) were awarded against the appellant, as those applications were unsuccessful.
Key Takeaways
- A tribunal’s failure to adjourn to obtain witness evidence it had itself previously committed to securing can constitute a legally unreasonable exercise of the s 427(1)(b) discretion, particularly where the tribunal’s own conduct contributed to the witness’s unavailability.
- Under the former Pt 7 of the Migration Act 1958, the duty to afford a visa applicant a “meaningful chance” to present their protection claim under s 425(1) informs the exercise of ancillary discretionary powers, including the powers to obtain oral evidence (s 426(3)) and to adjourn (s 427(1)(b)); an exercise of those powers that defeats that opportunity may constitute jurisdictional error.
- Where an AAT’s statement of reasons omits significant contextual facts — such as the tribunal’s own role in an earlier failure to take evidence and plausible explanations for a witness’s subsequent unavailability — it may be unable to demonstrate the “evident and intelligible justification” required to sustain the exercise of a discretionary power against a challenge for legal unreasonableness.
- A self-represented migration appellant may be granted leave to adduce further evidence on appeal, including audio recordings of tribunal hearings, where non-production is adequately explained by the challenges of litigant-in-person status and the evidence is clearly relevant to procedural fairness grounds.
Why It Matters
This decision reinforces that protection visa applicants are entitled to a genuinely meaningful hearing before the merits review tribunal, not merely the formal trappings of one. Where a tribunal itself creates the circumstances that prevent a requested witness from giving evidence — through poor administrative arrangements — and then declines a further adjournment without acknowledging its own role or adequately engaging with the applicant’s explanations, courts will scrutinise that decision closely. The judgment applies the Li and Singh framework with particular force in the Pt 7 context, where the tribunal is the sole merits arbiter and the individual applicant’s liberty and safety may depend on the quality of the review.
The case also offers practical guidance on the receipt of further evidence in migration appeals, confirming that litigant-in-person status and the absence of a prior explanation for failure to adduce audio evidence below do not automatically preclude admission on appeal — especially where the Minister does not oppose reception and the material is central to procedural fairness grounds. For practitioners advising asylum seekers in AAT proceedings, the decision underscores the importance of keeping contemporaneous records of tribunal communications about witness arrangements and of clearly requesting a further adjournment on the record if a key witness cannot be contacted.