AKW20 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1462

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AKW20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1462

File number(s): SYG 210 of 2020
Judgment of: JUDGE CLEARY
Date of judgment: 5 September 2025
Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal failed to provide applicant with opportunity to provide evidence – whether Tribunal breached s 426(3) of the Act - no jurisdictional error established – application dismissed.
Legislation: Migration Act 1958 (Cth)
Cases cited:

BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610

Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445
Division: Division 2 General Federal Law
Number of paragraphs: 58
Date of hearing: 28 August 2025
Place: Parramatta
Applicant: In Person
Solicitor for the Respondents: Mr C. Wang of Clayton Utz

ORDERS

SYG 210 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AKW20

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CLEARY

DATE OF ORDER:

5 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

REASONS FOR JUDGMENT

JUDGE CLEARY

INTRODUCTION

  1. In this matter the applicant is challenging a migration decision under s 476 of the Migration Act 1958 (Cth) (Act).  The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 January 2020 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the first applicant a Protection (Class XA) (Subclass 866) visa (protection visa) under s 65 of the Act.

    BACKGROUND

  2. On 23 August 2008, the applicant, a citizen of India, first arrived in Australia as the holder of a student visa. The applicant applied for and was granted an extension to his student visa on 24 March 2010 that was valid until 26 December 2010.

  3. Between 26 December 2010 and 9 May 2016, the applicant resided…

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AGLC
AKW20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1462
Case
[2025] FedCFamC2G 1462
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, AKW20, the applicant, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) which had affirmed the decision of the Minister for Immigration and Citizenship to refuse to grant the applicant a protection visa. The AAT had considered the applicant's claims that he and his girlfriend in India were in love and wanted to marry, and that their relationship was not approved by her brother, who had threatened and assaulted the applicant. The AAT found the applicant's claims to be inconsistent and implausible and did not accept the applicant's assertions that he was unaware of his immigration status or that he could remain in Australia unlawfully.

The primary issue for the court was whether the AAT had failed to provide the applicant with an opportunity to provide evidence or had failed to consider relevant matters, thereby committing a jurisdictional error. The applicant argued that he had been denied procedural fairness as he was not given sufficient opportunities to submit further evidence and that the AAT had failed to consider certain relevant matters. The court rejected these arguments, finding that the applicant had been given ample opportunities to provide evidence and that the AAT had properly considered the material before it. The court held that the applicant's claims were inconsistent and implausible and that the AAT had not committed any jurisdictional error in its decision.

The court found that the applicant's claims were inconsistent and implausible, and that the AAT had properly considered the material before it. The court held that the AAT had not committed any jurisdictional error in its decision and dismissed the applicant's application for judicial review. The court noted that it did not have the power to consider the merits of the AAT's decision or to remake the decision. The court made no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 8 January 2020, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.TRIBUNAL DECISION At the Tribunal hearing the applicant claimed that he and his girlfriend in India were in love and wanted to marry. He claimed their relationship was not approved of by his girlfriend’s brother, who threatened to kill the applicant if he had the opportunity. It was claimed his girlfriend’s brother assaulted the applicant the last time he was in India. The Tribunal first considered the material before it, including country information, the applicant’s written claims contained within his application, and the applicant’s oral evidence. The Tribunal set out its findings and reasons. The Tribunal addressed the applicant’s credibility by reference to the applicant’s written claims in his protection visa application, his written statement, and the oral evidence that he gave during the Tribunal hearing on 18 December 2019. The Tribunal noted there were numerous inconsistencies in the applicant’s claims that undermined the credibility and validity of the claims being made. The Tribunal raised eight inconsistencies in the applicant’s evidence, with these inconsistences addressed separately by the Tribunal in its reasons at [43]-[63]. These inconsistencies related to the applicant’s claims of threats and assaults occasioned upon him and his family as a result of his relationship, with the Tribunal noting inconsistencies between what was stated in the applicant’s visa application, the applicant’s written statement, and the applicant’s oral evidence. The Tribunal at [58] found that:The inconsistent information provided by the applicant undermines the credibility of all claims being made that the applicant has been threatened by [the claimed girlfriend]’s family at any time. The Tribunal also found that there were numerous claims made by the applicant in relation to the claimed girlfriend’s family that were not plausible. These implausible claims related to the lack of repercussions the claimed girlfriend has faced as a result of her refusing an arranged marriage, and lack of evidence provided that any person had suffered any repercussions for these slights to the honour of the family, and the applicant’s oral evidence which indicated the claimed girlfriend’s family were 50:50 about the relationship. The Tribunal found that the lack of information indicated that the claims made by the applicant were not plausible. A further factor noted by the Tribunal that was found to have undermined the credibility of the applicant was the delay in the applicant applying for a protection visa. The applicant provided differing statements in his written application and his oral evidence regarding immigration advice that he sought and when. The Tribunal did not accept the applicant’s assertion that he held the belief that he could remain in Australia and continue working. The Tribunal at [75] found as follows:…the applicant was fully aware of his immigration status when he became an unlawful noncitizen chose to remain in Australia unlawfully with no valid basis to be able to remain in Australia.

Ratio Decidendi

Legal Principle Established

Mr Wang made brief oral submissions summarising the first respondent’s written submissions on both grounds. In relation to the matters which the applicant submitted orally at the hearing Mr Wang submitted many of those matters were inconsistent with many of the matters raised in the application, and all went to the merit of the claims made in the Tribunal by the applicant, and could not be reviewed in this Court. I agree with Mr Wang’s oral submission that the matters raised by the applicant in oral submissions went to the merits of the Tribunal decision and are not reviewable by this Court.CONSIDERATION The issue before this Court is whether the Tribunal’s decision contained a jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] (LPDT). To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: see LPDT at [32] and Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421. This Court does not consider the merits of the decision; nor does it have any power to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic). Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, neither of the grounds identify the Tribunal committed jurisdictional error.Ground 1 As the applicant is unrepresented, I will read the reference to s 359 of the Act in this ground as a reference to s 424 of the Act, as s 359 was not relevant to the review in the Tribunal, but s 424 may have been. In this context, the applicant asserts he was denied procedural fairness by the Tribunal as he was not provided further opportunities to give substantiating evidence for his claims and failed to consider certain relevant matters. This argument is supported by three particulars. I will deal with each particular individually.Particular (a) The applicant asserts under particular (a) that he was invited to a hearing in the Tribunal but was denied procedural fairness owing to the inconsistency of processing time of applications before the Tribunal. It is unclear what this particular is referring to. The applicant did not clarify what he meant at the hearing before me. This particular does not assert any arguable jurisdictional error and is therefore rejected.Particular (b) In this particular of ground 1, the applicant generally asserts the Tribunal failed to proceed to make a decision without providing the applicant an opportunity to submit further evidence in support of his claims for asylum. I note this argument is inconsistent with what the applicant told the Court orally at the hearing (summarised above). In any event, this argument has no merit at a factual level. I consider from the evidence in the decision and in the Court Book the applicant was given ample opportunity to provide evidence to the Tribunal in support of his claims. In letters dated 31 August 2016 (Court Book page 97), 5 October 2018 (Court Book page 106) and 7 November 2019 (Court Book page 115) the Tribunal invited the applicant to submit further evidence or documents in support of his claims. The applicant was also invited to attend an oral hearing at the Tribunal, and, prior to the hearing the applicant provided the Tribunal with about 200 pages worth of additional documents. Further, after the hearing the applicant provided the Tribunal again with further documents. For these reasons, at a factual level, I do not accept the argument that the Tribunal failed to provide the applicant with the opportunity to provide evidence. There was ample opportunity provided to the applicant in this regard.