AJF19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1092
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJF19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1092
File number(s): MLG 248 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 25 July 2025 Catchwords: MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims – whether the Tribunal made illogical findings – findings were open to the Tribunal – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a), (36)(2)(aa), 46(2A), 476
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) rule 7.01, Division 1 of Part 2 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Craig v State of South Australia (1995) 184 CLR 163
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Doan v Ministerfor Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1119
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 10 July 2025 Place: Melbourne Applicant: Appeared in person Solicitor for the First Respondent: Samantha Liddy, Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 248 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJF19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed 31 January 2019 is dismissed.
2.The Applicant pay the First Respondent’s costs in the amount of $5,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal).
The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (Delegate), to refuse to grant the Applicant a Protection (subclass 866) visa (Protection Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
This matter was:
(a)allocated to the Court as presently constituted on 28 May 2025
(b)listed for hearing on 28 May 2025, and
(c)heard on 10 July 2025 and proceeded in person at the Court’s Melbourne Registry.
To obtain relief from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
BACKGROUND
The background to this matter is derived from the Court Book and submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed jurisdictional error in affirming the decision of the Delegate refusing the Applicant a protection visa.
The application for a Visa
The Applicant is a citizen of India who arrived in Australia on 12 November 2014 as the holder of a Visitor (subclass 600) Visa.[1] The Visitor Visa was valid from 10 November 2014 to 12 December 2014 with no further stay condition.[2]
[1] Court Book (CB) 103.
[2] Ibid.
On 11 February 2015 and on 19 March 2015 the Applicant lodged Protection Visa applications which were invalid. These applications were invalid because they lacked the personal identifiers required under s 46(2A) of the Act.[3]
[3] CB 1-30, CB 31-60, CB 103.
On 10 April 2015, the Applicant lodged a valid application for a Protection Visa.[4]
[4] CB 61-87.
The Applicant’s protection claims can be summarised as follows:[5]
[5] CB 79-82, 104.
(a)He is a follower of Dera Sacha Sauda (DSS) since the age of 16 or 20. He is baptised.
(b)DSS members are targeted by Sikh organisations.
(c)Applicant was involved in a clash between DSS and Sikh protesters in May 2007 at the DSS headquarters in Sirsa. He was hit by a brick and obtained a head injury which required hospitalisation.
(d)As a result of the altercation, a Sikh follower died, and the Applicant was verbally threatened for being involved. The Sikhs demanded him to change his religion to Sikhism.
(e)After the clash the Applicant went in hiding and has been attacked twice by Sikh militant organisations.
(f)On one occasion he was stopped by Sikh militants outside of his village and was beaten and mentally tortured. This incident was reported to the police, but no action was taken.
(g)The Applicant arranged a Visitor Visa to Australia and left India in 2014.
(h)If the Applicant returns to India, he will be forced to change his religion or be killed by anti DSS organisations.
(i)The anti DSS terrorist organisations are active in every part of India; he cannot relocate safely.
(j)The state government’s current ruling party is a strong opponent of the DSS will not protect him and will put him in jail for his DSS membership.
Decision by the Delegate
On 21 April 2015, the Delegate invited the Applicant to attend an interview scheduled for 4 May 2025.[6] The Applicant did not attend.
[6] CB 90-95.
On 24 March 2016, the Delegate refused to grant the Applicant a Protection visa. The Delegate’s decision can be summarised as follows: [7]
[7] CB 100-112.
(a)Accepted that the Applicant was a member of the DSS.
(b)The Delegate was satisfied that the Applicant claimed to fear persecution for reasons of political opinion.
(c)The Delegate was satisfied that the persecution feared claimed amounted to systematic and discriminatory conduct.
(d)Country information indicated that the authorities have made efforts in preventing violence between the DSS and Sikhs.
(e)The Applicant’s claim lacked detail. No information indicated that the Applicant would be targeted nor why police would not offer protection.
(f)No information indicated that he would not be unable to relocate to one of the 44 DSS communities in India.
(g)Based on all the information considered individually and cumulatively, the Delegate was not satisfied there is a real chance that on return to India the Applicant would suffer persecution for reasons relating to his involvement with DSS.
(h)The Delegate was not satisfied that the Applicant has a well-founded fear of persecution and ultimately not satisfied that the Applicant is a refugee as defined by s 5H(1) of the Act.
(i)The Delegate was not satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence his being removed from Australia to India, there would be a real risk that he would suffer significant harm.
The Delegate was therefore not satisfied that the Applicant had a real chance of being persecuted for a refugee convention reason under s 36(2)(a), nor that there was a real risk of significant harm for the purposes of complementary protection under s 36(2)(aa). The application for a Protection Visa was accordingly refused.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Application to the Tribunal
On 20 April 2016, the Applicant applied to the Tribunal for review of the Delegate’s decision.[8]
[8] CB 113-119.
On 2 October 2017, the Applicant appointed a representative from Viva Migration Pty Ltd.[9]
[9] CB 122-125.
On 20 August 2018, the Applicant’s representative was invited by the Tribunal to provide any additional evidence that was relevant to the application for review.[10]
[10] CB 127-128.
On 26 September 2018, the Tribunal invited the Applicant to attend a hearing on 30 November 2018.[11]
[11] CB 130-133.
On 23 November 2018, the Applicant’s representative provided the Tribunal with a written submission, supporting evidence and an affirmative response to the hearing invitation.[12]
[12] CB 134-154.
The Applicant’s written submission provided by the Applicant’s representative can be summarised as follows:[13]
(a)Applicant born into a middle-class Sikh family in India and became a stern follower of DSS,
(b)Resentment arose as the DSS imitated a Sikh Guru,
(c)Widespread violence due to the resentment led to a child being killed,
(d)Applicant’s turban was snatched, hair forcibly cut, and finger cut in the violence,
(e)After the leader of the DDS was framed, the group was dismantled, to escape the complicated, tense and life-threatening situation in India, his uncle sent him to Australia,
(f)Returning to India is a clear risk to the Applicant’s life due to religious prejudice and caste discrimination.
[13] CB 136-138.
The evidence provided by the Applicant’s representative included:
·Translated statement of alleged facts and list of witnesses of Applicant being physically harmed by a sword[14]
·Translated Caste Certificate[15]
·Translated Death Certificate[16]
·Indian passport of Applicant[17]
·Affidavits supporting the Applicant’s protection claims deposed by friends and family of the Applicant[18]
·A statutory declaration[19]
·A medical certificate of Bhatia Hospital confirming the Applicant suffered minor injuries to his face and body on 26 May 2007[20]
[14] CB 139-142.
[15] CB 143.
[16] CB 144
[17] CB 145.
[18] CB 146-149.
[19] CB 150.
[20] CB 151.
On 30 November 2018, the Applicant attended the scheduled hearing in person with the assistance of his representative and a Punjabi interpreter.[21] The Applicant was requested to provide information and submissions by 8 December 2018.[22]
[21] CB 156-159.
[22] CB 158.
On 7 December 2018, the Applicant’s representative provided further submissions to support the Applicant’s claims which included various media and internet reports.[23] These examples were put forward to provide evidence of religious suppression and discrimination in India.
[23] CB 160-171.
On 17 December 2018, the Department provided the Tribunal with information subject to a s 438 non-disclosure certificate issued on the basis that disclosure of the material would be contrary to the public interest because it may disclose or enable a person to ascertain the existence or identity of, a confidential source of information.[24]
[24] CB 172.
On 11 January 2019, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Protection visa.[25]
[25] CB 173-183.
TRIBUNAL’S DECISION
The Tribunal’s decision is 11 pages long and spans 38 paragraphs.
At paragraphs 13 to 21 of their outline of submissions filed on 20 June 2025, the Minister’s legal representative summarised the Tribunal’s reasons. I have carefully read the Tribunal’s reasons and accept counsel’s summary as comprehensive, fair and properly referenced. I adopt it for the purposes of this judgment (citations omitted).
13. The Tribunal accepted the applicant’s uncle had been killed in a road accident, but found that his evidence in respect of the cause of death was highly speculative and not credible. The Tribunal found that the applicant’s uncle’s death was not due to DSS membership or caste related issues.
14. The Tribunal had regard to two affidavits submitted by the applicant which both stated that following the arrest of the Gurmeet Ram Rahim Singh, the DSS guru, the applicant’s family was badly affected and the applicant suffered violence, lost his finger and was admitted to hospital. Based on country information, the Tribunal noted that the guru was convicted in 2017 and that the applicant had been in Australia since November 2014. The Tribunal found that the affidavits were not credible and did not accept any of the claims made in the affidavits.
15. The Tribunal accepted that the applicant was a member of DSS, that he was inadvertently injured in disturbances in 2007 and again suffered harm in 2008 in an attack. The Tribunal also accepted that the applicant was a member of the Ad-dharma Singh caste and that this was the primary reason for him joining DSS. The Tribunal accepted that he would remain an active member of DSS if he returned to India.
16. The Tribunal found that there was no credible evidence that the applicant, his siblings or family had suffered harm due to their caste and noted that they had instead largely shunned DSS membership to avoid potential harm. The Tribunal recorded that the applicant did not press caste related issues as a reason for fearing harm in India. The Tribunal found that the applicant did not face a real chance of serious harm by Jat Sikh extremists, Indian authorities or any other group if he returned to India on the basis of his caste.
17. The Tribunal considered the applicant’s claim to fear harm on the basis of his religion and put to the applicant various sources of country information regarding the situation of DSS members in India. The Tribunal considered the applicant’s submissions in response to the country information and noted that it had provided the applicant further time to submit corroborating evidence. The Tribunal noted that the applicant had provided various reports of recent religious based violence in India, however, this information did not support the applicant’s submissions at the hearing.
18. The Tribunal found that the applicant resided in his hometown between 2009 and 2014 without experiencing further harm or threats of harm. The Tribunal also found that the applicant did not face a real chance of serious harm for reasons of religion or his DSS membership if returned to India nor did he face a real chance of being targeted for serious harm by police, Indian authorities, Jat Sikh extremists or any other group on the basis of his activities with DSS.
19. The Tribunal found that the applicant did not have a well-founded fear of persecution if he returned to India for the reasons claimed.
20 The Tribunal found that the applicant and his family had not been threatened with harm or harmed since 2009 on the basis of caste or religion and found that there was not a real chance that the applicant would face harm on return to India on the basis of his involvement with DSS or his caste. Th Tribunal also found that there was not a real risk that the applicant would face significant harm if returned to India.
21 The Tribunal concluded that the applicant was not a person to in respect of whom Australia had protection obligations and did not meet s 36(2)(a) or s 36(2)(aa) of the Act.
Based on the findings made by the Tribunal it was not satisfied that the Applicant was a person whom Australia owed protection obligations to and did not meet s 36(2)(a) or s 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Protection visa.
PROCEEDINGS IN THIS COURT
The application
The Applicant filed an Originating application (Application) for judicial review on 31 January 2019. The application is brought pursuant to s 476 of the Act. The Applicant seeks orders that the decision of the Tribunal be quashed.
During the hearing the Court noted that to properly invoke the jurisdiction of this Court, the Applicant’s application must also seek a writ of mandamus directed at the Tribunal requiring them to determine the visa application according to the law.
Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the application filed on 31 January 2019 is taken to have been amended to seek a writ of mandamus directed at the Tribunal requiring them to determine the Applicant’s application according to law.
The Applicant lists two grounds of alleged error. The Applicant’s grounds of review, extracted from his Originating application, are as follows:
1. Under s.5J(l) of the Migration regulations 1994, I have well founded fear to be prosecuted in my home country and I do have supporting evidence for my claims , but presiding member of AAT hearing did not consider my claims , my Uncle death has been denied to be a significant fact amongst my claims as Tribunal Member implied that he should have been travelling at some speed to be killed. The reasoning behind my Uncle's death has been denied by the review member
2. Under the Ministerial Direction No.56, made under s.499 of the Ac, I had put my claims in AAT for my application but although as you would see below AAT accepted my claims as below:
"Despite some of the inconsistencies in the evidence put forward to the Tribunal overall the Tribunal accepted that the applicant is a member of DSS and that he was inadvertently injured in the disturbances surrounding the 2007 events concerning Gurmeet Ram Rahim Singh actions and again suffered harm in 2008 in an attack related to his inadvertent involvement in the events of 2007. The Tribunal also accepted the applicant is a member of the Ad-dharma Singh caste and this was a primary reason for him joining DSS. The Tribunal accepted that should he return to India he would remain an active member of DSS for this reason.”
Yet my application has been refused for which I seek judicial review.
Case management
On 18 February 2019, the First Respondent (Minister) filed a response and opposed the making of the orders sought by the Applicant and sought that the application be dismissed.
On 3 March 2021, the Minister filed a bundle of relevant documents (Court Book).
On 18 December 2024, a Registrar of this Court issued an Order (Registrar’s Order) directing the:
(a)The name of the First Respondent be amended to “Minister for Immigration and
Multicultural Affairs”.
(b)Applicant to file any amended application, written submissions and further evidence at least 28 days before the hearing.
(c)Minister to file any written submissions and further evidence in reply at least 14 days before the hearing.
The Applicant did not file an amended application and nor did he provide further particulars of the grounds for judicial review, despite being invited to do so.
However, on 7 July 2025 the Applicant sent several documents/attachments to the Court. On 8 July 2025 the Applicant was advised that:
(a)the attempt to file the documents did not comply with the Registrar’s orders made on 18 December 2024 (i.e. that evidence must be filed 28 days before the hearing),
(b)leave of the Court must be obtained to file the documents late,
(c)the documents had not been lodged in the Court’s eLodgment system, and
(d)any evidence must be filed by way of Affidavit, and
(e)all documents must be served on the First Respondent.
The Applicant made no attempt to regularise the filing of the documents/attachments.
Before the Court on 10 July 2025 the Applicant indicated that he wanted to provide the documents sent by email and further documentation about more recent events. The material proposed to be provided to the Court was not before the Tribunal, did not relate to the decision of the Tribunal, and could only be characterised as relating to the merits of the Applicant’s underlying claim for protection. The Minister opposed the Court receiving the material.
The circumstances in the present matter are like those in Doan v Minister.[26] In that matter his Honour Judge Lucev observed,
[26] [2024] FedCFFamC2G 1119.
17 Ms Doan’s affidavits were not before the Tribunal at the time the Tribunal made the Tribunal Decision. Much of the evidence in Ms Doan’s affidavits might arguably be said to have been presented to invite the Court to make new factual findings contrary to those made by the Tribunal. Such a course is not permissible upon judicial review: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23; (2017) 350 ALR 47 (“Tesic”) at [55] per Reeves, Robertson and Rangiah JJ (from which an application for special leave to appeal was refused by the High Court: Tesic v Minister for Immigration and Border Protection [2017] HCASL 271 at [1] per Bell and Nettle JJ). Further, if any of the affidavit evidence does not bear on any jurisdictional error alleged by Ms Doan (as to which see grounds 1 and 2 at [23] and [34] below), nor any jurisdictional error otherwise: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] per McKerracher J, the affidavit evidence is not admissible on this Judicial Review Application as it is irrelevant: Evidence Act 1995 (Cth) (“Evidence Act”), s 56(2).
18 Ms Doan seeks to have the Court consider the new evidence in the affidavits for the purposes of this Court considering her Judicial Review Application. Courts considering judicial review applications generally resist the introduction of new evidence in judicial review proceedings.
19 In MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 (“MZXLD”) at [10]-[11] per Gordon J the Federal Court observed as follows:
10 The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29]-[31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
11 Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15]-[16] (per Weinberg J).
20 There is not, however, an absolute prohibition on evidence being admitted in judicial review proceedings. In Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31; (2010) 270 ALR 393; (2010) 116 ALD 126; (2010) 187 FLR 31 (a case concerning the validity of appointments to a committee set up pursuant to statute) at [40]-[42] per Bromberg J the Federal Court observed that:
40 The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: McCormack v The Commissioner of Taxation (2001) 114 FCR 574 at [38]-[40] per Sackville J. The touchstone for the determination of admissibility will usually be relevance. That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon. Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442] per Weinberg J. However, the admissibility of evidence not before the decision maker depends upon the grounds of review on which the application relies: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 per Lockhart J; Australian Retailers at [455]; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319-320 per Wilcox J; and Saint v Holmes (2008) 170 FCR 262 at [54] per Siopis J.
41 Authorities dealing with ADJR Act challenges have recognised that in relation to particular grounds of review, evidence beyond the evidence that was before the decision maker may be relevant and admissible. Without seeking to suggest that the following list is exhaustive, evidence beyond that which was before the decision maker may be relevant where the following grounds of review are raised:
•the unreasonable exercise of the power given to the decision maker: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at 539-40; Australian Retailers at [458]; Hand at 320; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169;
•excess of jurisdiction because of the absence of a jurisdictional fact: McCormack at [38]-[40]; Attorney General for the Northern Territory v Minister for Aboriginal Affairs at 539-540; and
•a breach of the rules of procedural fairness: Percerep v Minister for Immigration (1998) 86 FCR 483 at 495 per Weinberg J; McCormack at [38]; Hand at 320.
42 The position at common law is similar, if not the same. As Denning LJ said in R v Northumberland Compensation Tribunal, ex parte Shaw [1952] 1 KB 338 at 352:
“When Certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.”
See further, Ex parte Mullen; re Hood (1935) 35 SR (NSW) 289 at 296 per Jordan CJ and R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800 per Lowe, O'Bryan and Smith JJ.
Having regard to the above authorities, which are respectfully adopted, the Court as presently constituted declined to receive the documents sort to be tendered by the Applicant. The material was ruled inadmissible because it was material which post-dated the Tribunal Decision and with effectively invite the Court to undertake impermissible merits review.[27]
[27] Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tesic at [55] per Reeves, Robertson and Rangiah JJ; MZXLD at [10] per Gordon J.
On 20 June 2025, the Minister complied with the Registrar’s Order by filing written submissions.
Therefore, the materials before the Court are as follows:
(a)the application for judicial review filed 31 January 2019,
(b)the Affidavit of AJF19 filed 31 January 2019,
(c)a Court Book numbering 186 pages filed 3 March 2021 (marked as Exhibit R1),
(d)submissions filed by the Minister on 20 June 2025
(e)Affidavit of service filed 24 June 2025
(f)Bundle of Authorities filed 27 June 2025
The judicial review hearing
At the hearing, the Applicant appeared before the Court without legal representation. They were assisted by a Punjabi interpreter. The Minister was represented by Samantha Liddy, solicitor at Sparke Helmore.
The Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
To assist the Applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Before the Court the Applicant indicated that he spoke “a little English”. In any case all explanations provided to the Applicant were interpreted. Based on the Applicant’s responses I am confident he properly comprehended the scope and purpose of the hearing.
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
Before this Court, the Applicant made submissions in support of the grounds set out in their application. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 20 June 2025.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. The Applicant made further submissions also considered below.
The role of the Court in judicial review proceedings
Bhasker v Minister for Immigration and Multicultural Affairs[28] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[29]
50. “The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[30]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[31] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[32] Different kinds of error may overlap.[33] The categories are not closed.[34] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[35]
52.In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[36] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[37] It has been described as an “undemanding” standard.[38]
[28] [2025] FedCFamC2G 620.
[29] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[30] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[31] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[32] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[33] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[34] LPDT at [3].
[35] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[36] LPDT at [7].
[37] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[38] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[39]
[39] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
(a)why they believe the Tribunal made a jurisdictional error; and
(b)each of the two grounds of application.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant made more general submissions, those submissions largely invited the Court to engage in impermissible merits review of the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. I incorporate (without repetition) paragraphs 23 to 26 of the Minister’s outline of submissions.
Ground 1
1. Under s.5J(l) of the Migration regulations 1994, I have well founded fear to be prosecuted in my home country and I do have supporting evidence for my claims , but presiding member of AAT hearing did not consider my claims , my Uncle death has been denied to be a significant fact amongst my claims as Tribunal Member implied that he should have been travelling at some speed to be killed. The reasoning behind my uncle’s death has been denied by the review member
At the hearing, the Court asked the Applicant what he meant by this ground. The Applicant provided a recount of his uncle’s accident; (that his uncle was pushed off a bike by 3 or 4 persons, which led to his death). The Applicant also informed the Court that he had provided his uncle’s death certificate in his application.[40] The Applicant otherwise did not add anything to the basis for this ground of review.
[40] Transcript P-8 at [12]-16].
Before the Court the Applicant confirmed the correctness of the Tribunal’s finding that there were no witnesses to the uncle’s accident.[41] The Applicant confirmed to the Court that he did not see his uncle attacked.[42] The Applicant then spoke about going to the police about the accident. The Court noted that the Tribunal dealt with this claim.[43]
[41] Transcript P-8 at [29]-[39].
[42] Transcript P-9 at [17]-[26].
[43] Transcript P-9 at [6]-[11].
Ground 1 appeared to seek to agitate a claim that the Tribunal did not consider the Applicant’s assertions about his uncle’s death. Consequently, the Court took the Applicant to the Tribunal’s decision at paragraph 17,
17. In the hearing the applicant claimed that his uncle Gurpal Raim had been killed by Jat Sikh extremists in his village in May 2017 and speculated this may have been due to his DSS membership or caste. At first his family had thought he had fallen off his motorbike however a truck driver later told them he had seen masked men push him off the bike. Family members had reported this to police but the police had not followed it up as they said it was after the event and there was no evidence in respect to potential suspects. The applicant confirmed he only had his uncle's death certificate as documentary evidence of this event. There was no affidavit or statement from the witness. The applicant noted that his uncle was a very important figure of support to the applicant and that was why he has supplied his death certificate. The tribunal considered the applicant's evidence in respect to the cause of his uncle's death to be highly speculative. The Tribunal accepted his uncle has passed and accepted his evidence that this occurred in a vehicle accident. However the reported second hand account of masked men pushing his uncle while on his motorbike is not credible in the Tribunal's view. To be killed in the accident his uncle must have been travelling at some speed. The attackers would have had to be able to identify the applicant's uncle in time to put on masks and then reach him on the road to be able to push him. Further the Tribunal did not accept that a written statement would not have been obtained from the truck driver, in circumstances where the driver has apparently taken the trouble to independently contact the applicant's family to detail his witnessing of a murder, and that this would not have been made available to police resulting in at least an initial first information report. The Tribunal found that the applicant's uncle was killed in a road accident however that this death was not due to DSS membership or caste related issues.
It is immediately apparent that paragraph 17 of the Tribunal decision comprehensively considered the Applicant’s claims and evidence provided in relation to his uncle’s death.
The Tribunal accepted that the Applicant’s uncle was killed in a road accident, but did not accept that the death was due to his membership to the DSS or his caste.[44] It was open to the Tribunal to make a finding about the uncle’s cause of death based on the evidence before it and after having clearly given that evidence genuine consideration. In coming to that conclusion, it is apparent that the Tribunal reached its finding by employing an “active, intellectual process”.[45]
[44] CB 179 at [17].
[45] Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57] citing Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ); Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, 292 per Gummow J.
The ground of review as contended for by the Applicant amounts to no more than a disagreement with the decision of the Tribunal. It does not establish jurisdictional error.
Ground 1 of the application for judicial review is not made out. It does not establish jurisdictional error and must be dismissed.
Ground 2
2. Under the Ministerial Direction No.56, made under s.499 of the Ac, I had put my claims in AAT for my application but although as you would see below AAT accepted my claims as below:
"Despite some of the inconsistencies in the evidence put forward to the Tribunal overall the Tribunal accepted that the applicant is a member of DSS and that he was inadvertently injured in the disturbances surrounding the 2007 events concerning Gurmeet Ram Rahim Singh actions and again suffered harm in 2008 in an attack related to his inadvertent involvement in the events of 2007. The Tribunal also accepted the applicant is a member of the Ad-dharma Singh caste and this was a primary reason for him joining DSS. The Tribunal accepted that should he return to India he would remain an active member of DSS for this reason.”
Yet my application has been refused for which I seek judicial review.
On one assessment ground 2 is a statement of fact about what happened, that is, that the Applicant made claims, the Tribunal made findings, the application was refused and the Applicant seeks review.
At the hearing, the Court asked the Applicant what he meant by this ground. The Applicant responded that he has been a member of the DSS since he was young, and that people of his caste opposed his membership and attacked him. The Applicant submitted that the Tribunal did not consider that he was attacked.[46] The Court noted that the Tribunal did accept that he was inadvertently injured in 2007 and that he suffered harm in 2008.[47]
[46] Transcript P-10 at [1]-[9].
[47] CB 180 at [20].
Further, the Applicant put forward that the Tribunal was wrong in concluding he will be safe if he returns to India. The Court noted that the Applicant simply disagrees with the Tribunal’s decision. This ground does not articulate any jurisdictional error.
The Tribunal accepted the Applicant was harmed (in 2007 and 2008) but went on to find he does not have a well-founded fear of persecution and there was not a real risk that the Applicant would face significant harm if he returned to India. To the extent this ground claims the Tribunal made illogical findings, these findings were open to the Tribunal.
In Minister for Immigration and Border Protection v Stretton,[48] Wigney J stated,
In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision[49] or if the decision is within the “area of decisional freedom” of the decision-maker,[50] it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.
[48] (2016) 237 FCR 1, [92].
[49] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [44]-[45].
[50] Li, supra, [28], [66], [105]; Singh, supra [44].
On the evidence, the Tribunal found that neither the Applicant nor his family had been harmed since 2009 on the basis of caste or religion[51], and that the Applicant resided in his hometown from 2009 to 2014 without experiencing further harm or threats of harm, before arriving in Australia in 2014.[52] Further, the Tribunal considered the country information before it, and none of the information indicated that DSS supporters are being targeted since the conviction of the DSS leader in August 2017 or any significant length of time before this.[53] These findings were not irrational or illogicality. The Tribunal acted within its zone of decisional freedom and the findings were not outside the domain of what another decision-maker could find. The clear decision-making process of the Tribunal is discernible.
[51] CB 182 at [33].
[52] CB 182 [30].
[53] Ibid.
Ground 2 of the application for judicial review is not made out. It does not establish jurisdictional error and must be dismissed
CONCLUSION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed.
In its submissions the Minister sought a further order that the “The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00”.
The Court explained to the Applicant that:
(a)it had not made a decision about their application,
(b)the Minister is seeking costs in the event that it is successful,
(c)in deciding the question of costs, the Court is required to consider
(i)whether it is appropriate that the Applicant should pay any costs at all, noting that the usual rule in courts in Australia is that an unsuccessful party pays the party/party costs of the successful party, and
(ii)if the Court is so satisfied that the Applicant should pay costs, what is the reasonable quantum.
The Court then invited the Applicant to make a submission about costs in the event that they are unsuccessful, and their application is dismissed. The Applicant submitted, costs of $5,000 will cause him hardship given the amount of money he has spent coming to Australia and the cost of the application in this proceeding.
The Court is satisfied that costs ought to follow the event, and that it is appropriate to make an order in the amount sought by the Minister which is below the scale costs[54] and given the amount of work undertaken as evidenced by the court file.
[54] Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) Division 1 of Part 2 of Schedule 2.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 25 July 2025
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