Overview

In October 2024, the then Administrative Appeals Tribunal was abolished and replaced by the Administrative Review Tribunal. As with any significant legislative reforms, it generated a degree of uncertainty as to how case law decided under the previous legislative regime would apply to the provisions of the new Administrative Review Tribunal Act 2024 (Cth) (the ART Act). In Minister for Immigration and Citizenship v LLR24 [2026] FCAFC 26, the Full Court of the Federal Court of Australia considered, for the first time, the operations of ss55 and 106 of the ART Act. In short, insofar as procedural fairness is concerned, the more things change, the more they stay the same.

Key Takeaways

1. The holding in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 that it is an important aspect of common law procedural fairness obligations that a tribunal on merits review is required to put a party on notice of critical issues on review in circumstances where the issues were not considered dispositive by the primary decision-maker, applies with equal force in the new statutory regime created by the ART Act.
2. The Tribunal’s exercise of its power under s106(1) of the ART Act, which provides for the Tribunal to make a decision without holding a hearing in certain circumstances (including where the only parties are the applicant and a non‑participating party to the proceeding or hearing: s106(3)), is subject to the Tribunal complying with its procedural fairness obligations. That obligation arises, in part, from s55 of the ART Act which requires the Tribunal to ensure an applicant be given a reasonable opportunity to present their case.
3. In LLR24, the Applicant had consented to proceeding without a hearing. Notwithstanding that, the Court held that the Tribunal’s procedural fairness obligation remains extant – the Tribunal must ensure it has taken adequate steps to notify an applicant of the issues for determination before deciding to proceed without a hearing and make a determination on the papers.

Introduction

The common law procedural fairness obligation known as the natural justice hearing rule is a cornerstone of administrative decision-making. Its importance is perhaps best captured by Mason J in Kioa v West (1985) 159 CLR 550, in which his Honour stated at 582:

‘It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.’

As with any common law obligations, that duty can be excluded or modified by statute. While such exclusion or modification can be done either expressly or by necessary implication, given its fundamental importance, courts have been reluctant to infer such exclusion. Indeed, it has been held that exclusion of procedural fairness may only be done ‘by plain words of necessary intendment’: see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, [74].

As previously discussed in From ‘Full Blown Trial’ to ‘Nothingness’ – How to Ascertain the Existence of a Duty to Provide, and the Content of, Natural Justice Under a Particular Statutory Provision, the content of the procedural fairness obligation will vary depending on the circumstances of a case and the relevant legislative provisions under which it arises.

In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Federal Court found that compliance with procedural fairness obligations requires that a decision-maker advise a person liable to be affected by the decision of:

• Relevant issues which are not apparent from the nature of the decision or the terms of legislation under which the decision is made; and
• Any ‘adverse conclusion’ which the decision-maker arrives at that is not obvious on the known material.

However, compliance with procedural fairness obligations does not require a decision-maker to expose their thought processes or provisional views to an affected party before making the relevant decision.

These principles were in turn endorsed by the High Court in SZBEL – a judgment that concerned s425 of the Migration Act 1958 (Migration Act), a provision that was repealed following the commencement of the ART Act.

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

In LLR24, the visa applicant claimed that she is a Shi’a Muslim and would be harmed in Malaysia on that basis. A delegate of the Minister refused the protection visa. While the delegate accepted that she is a Shi’a Muslim, they did not accept that she faced a real chance of serious harm in Malaysia for that reason.

On review to the Tribunal, the visa applicant agreed to the Tribunal deciding the review on the papers. The Tribunal affirmed the decision on the basis that, contrary to the delegate’s finding, the visa applicant was not a Shi’a Muslim. The Tribunal gave reasons for deciding to proceed without a hearing under s106(3) as follows:

• The visa applicant had requested the Tribunal make a decision without holding a hearing; and
• The issues the Tribunal was required to determine, ie. whether the visa applicant meets the statutory criteria for the grant of the protection visa, could be adequately determined in the absence of the parties because it had a copy of the Department’s files.

On judicial review of the Tribunal’s decision, the Federal Circuit and Family Court of Australia found that, applying the principle emerging from SZBEL, the Tribunal had denied the visa applicant procedural fairness by failing to provide her a reasonable opportunity to present her case. This is chiefly because the Tribunal did not give the visa applicant an opportunity to comment on its concerns about whether she was in fact a Shi’a Muslim, a claim that was accepted by the delegate.

In dismissing the appeal, the Court focused on the Tribunal’s procedural fairness obligation having regard to ss55(1) and 106(3) of the ART Act.

Relevantly, s55(1) requires the Tribunal to ensure each party to a proceeding is given a ‘reasonable opportunity’ to present their case. Subsection 106(3) provides that the Tribunal may only proceed to make a decision without a hearing if, critically, it appears to the Tribunal that the ‘issues for determination’ can be ‘adequately determined’ in the absence of the parties.

In finding that the Tribunal in this case denied the visa applicant procedural fairness, the Court:

• Confirmed that consistent with Alphaone and SZBEL, it is a substantive principle of procedural fairness that a tribunal on merits review is required to put a party on notice of critical issues on review in circumstances where the issues were not considered dispositive by the primary decision-maker;
• Found that s55(1) requires the review applicant be given a reasonable opportunity to present their case, and that statutory duty remains extant even if the review applicant consents to a decision on the review without a hearing. Therefore, it was not enough to give the review applicant an opportunity to ascertain the issues for determination, they needed to be put on notice of the issues that the Tribunal considers to be critical to the review (unless those issues were obvious);
• Considered that the proper construction of the phrase ‘issues for determination’ in s106(3)(c) is not simply whether a review applicant meets the relevant statutory criteria; rather, it requires the Tribunal to identify the relevant issues with some particularity or specificity.

  The Court found that in the matter before it, one of the ‘issues for determination’ was whether the visa applicant was a Shi’a Muslim because that issue was a matter of dispute before the Tribunal. At no point did the Tribunal notify the visa applicant of this issue. On this basis, the Court held that the Tribunal failed to comply with its procedural fairness obligations. In turn, this meant the Tribunal failed to give the visa applicant a reasonable opportunity to present her case as required by s55(1), or that the Tribunal’s satisfaction under s106(3)(c) that the ‘issues for determination’ can be ‘adequately determined’ was not reached lawfully. The net result is that the Tribunal’s decision was affected by jurisdictional error.

Comments

In light of LLR24, the Tribunal will need to carefully consider whether it has taken adequate steps to inform review applicants of the issues dispositive of the review, so that it complies with its obligation under s55(1) of the ART Act. While every matter will turn on its own facts, it appears that if the Tribunal were to determine the review on a different basis to the primary decision-maker, then at a bare minimum:

• Where there is a hearing, the Tribunal should indicate to the review applicant at the outset of the hearing of the issues that it was required to determine;
• Where there is no hearing, the Tribunal should send correspondence to the review applicant bringing the issue to their attention and invite further evidence.

Further, the Court’s finding on the interpretation of ‘issues for determination’ will have impact beyond reviews of migration matters. Indeed, that reasoning is equally applicable to s106(2), (4)-(6). By way of example, assume both parties to the review have consented to the proceeding being determined without a hearing. The Tribunal proceeded to determine the review in accordance with s106(2). However, if the Tribunal decided the review on a basis that was never advanced by either party, that will be an error because the Tribunal’s satisfaction that the issues for determination in the proceeding can be adequately determined, was not reached lawfully.

What is left unsaid in LLR24 is what is an acceptable level of specificity in terms of the Tribunal’s identification or characterisation of ‘issues for determination’. In that regard, LLR24 does not overturn the well-established principle that procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. If ‘issues for determination’ may not simply be whether the legislative criteria are met, then the lawful level of specificity probably lies somewhere in between the two extremes.

What is clear is that while the evident legislative intention behind s106 is to provide the Tribunal with the ability to determine reviews quickly and efficiently, that efficiency must not be achieved at the expense of procedural unfairness.

If you encounter any matters which are administrative law in nature, whether they involve the natural justice hearing rule or otherwise, Moray & Agnew’s Government Team has the experience to assist you.