AKW20 v Minister for Immigration and Citizenship

[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 unlawfully in Australia.

4. On 9 May 2016, the applicant lodged an application for a protection visa on the basis that he would be harmed or killed by family members of the woman with whom he had a claimed relationship.

5. On 16 August 2016, a delegate of the First Respondent refused to grant the visa on the basis that it was not satisfied that the applicant met the definition of a refugee or if the applicant were to return to India that he faced a real risk of suffering significant harm.

6. On 30 August 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

7. On 7 November 2019, the Tribunal invited the applicant to appear at a hearing on 18 December 2019 to give evidence and present arguments.

8. On 11 December 2019, the applicant provided submissions, supporting references, a summary of claims and country information to the Tribunal.

9. On 18 December 2019, the applicant (and his representative) appeared before the Tribunal.

10. Following the hearing, the applicant provided further documents comprising a letter from the claimed girlfriend, emails between the applicant and the claimed girlfriend for the period of 5 June 2008 to 29 October 2014, a letter from the applicant’s housemate detailing his knowledge of the applicant’s relationship and threats made towards the applicant, and telephone records between 23 June 2019 and 25 October 2019.

11. On 8 January 2020, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.

    TRIBUNAL DECISION

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. Further, the Tribunal did not accept that the applicant had genuine fears of persecution as he failed to raise his fears or a protection visa with any of the six or seven migration agents he claimed to have visited. The relevant parts of [76] are as follows:

    The Tribunal does not accept that if the applicant had any genuine fears of persecution or there was any real risk that he would suffer significant harm if he returned to India at that time that he would not have raised this with the six or seven agents he claims to have consulted. That no action was taken for almost six years after the applicant became an unlawful noncitizen indicates the claims made by the applicant are not plausible or genuine. This is particularly so when the claim is that he is in a genuine relationship with Ms Kaur and that Ms Kaur remains living with her family in India and the applicant would not be in a position to sponsor her or assist Ms Kaur in leaving India and being with him.

21. The Tribunal did not accept that the applicant had been threatened by his claimed girlfriend’s parents, brother, or extended family, or that he had ever been assaulted or suffered harm due to his claimed relationship. The Tribunal further did not accept that the applicant would face any persecution or that there was a real risk that he would suffer significant harm for any reason if he were to return to India.

22. As a result, the Tribunal found that the applicant was not a person who was owed protection by Australia under s 36(2)(a) of the Act.

23. The Tribunal, having found it was not satisfied the Applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act, went on to consider and determine that it was also not satisfied the applicant was a person to whom Australia owed complementary protection obligations under s 36(2)(aa) of the Act.

24. The Tribunal affirmed the decision not to grant the applicant’s protection visa.

    APPLICATION FOR REVIEW

25. On 31 January 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 7 January 2020. The application contains two (2) grounds of review, both containing several particulars. They are (as written):

    1.The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to consider relevant considerations.

    Particulars

    a.The Applicant matter was remitted to the Second Respondent and the Tribunal decided to invite the Applicant to a hearing on 18 December 2019. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent ("Tribunal").

    b.The Applicant submitted his circumstances before the Tribunal, however the tribunal failed to consider the circumstances and the significant threat to his life and proceeded to make a decision without providing the Applicant another chance for submitting further evidence.

    c.The tribunal in many paragraphs pointed out inconsistencies in the claims made by the applicant but failed to provide the opportunity to provide evidence to substantiate his claims.

    2.The Second Respondent made jurisdictional error under s361 (3) of the Migration Act 1958 in that it failed to provide the Applicant a chance to provide further evidence and failed to have regard to the significant threat to his life.

26. On 12 June 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.

27. On 11 July 2025, the proceedings were docketed to me and set down before me for final hearing on 28 August 2025.

    HEARING ON 28 AUGUST 2025

28. At the hearing of this matter on 28 August 2025, the applicant appeared unrepresented and was assisted by a Mandarin interpreter. Mr C Wang of Clayton Utz appeared for the first respondent.

29. This Court has duties to take appropriate steps to ensure that unrepresented applicants have sufficient information about practice and procedure of the court they are appearing in, so far as is reasonably practicable, for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 Hill J.

30. I consider, in cases such as the present one where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong. 

31. Accordingly, and on this basis, I took the applicant through each of the three grounds of review.  On each ground he stated that he had submitted all the evidence to the Tribunal in support of his claim, including telephone logs and photographs. He also submitted that he had been in this country for a long time.

32. 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

33. 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). 

34. 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.

35. 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).

36. 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

37. 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)

38. 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)

39. 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).

40. 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.

41. As to the assertion that the Tribunal failed to consider relevant matters, on a fair reading of the Tribunal decision it is clear the Tribunal explicitly had regard to all the information and documents provided to it by the applicant when in making its decision: see for example, paragraphs [8], [26] of the Tribunal decision. This claim appears to be no more than a complaint about the merits of the Tribunal decision, which is something this Court is not permitted to review: see Djokovic.

    Particular (c)

42. In the third particular the applicant asserts that the Tribunal in many paragraphs pointed out inconsistencies in the claims made by the applicant but failed to provide the opportunity to provide evidence to substantiate his claims. I note again that this argument is inconsistent with what the applicant told the Court orally at the hearing (summarised above).

43. In any event, this ground is unmeritorious. 

44. If this ground is a complaint that the applicant was denied an opportunity to provide evidence in support of his claim, then I repeat my conclusions above in relation to particular (b) and reject this argument.

45. If this ground is a complaint that the Tribunal had an obligation to put inconsistencies in the evidence to the applicant for comment prior to its decision, then this argument is also rejected, for two reasons.

46. First, it is apparent from the Tribunal decision, as the first respondent submitted, that the inconsistencies in the applicant’s claims were pointed out to the applicant at the hearing, and he was given an opportunity to address them. The Tribunal decision also records the applicant responded to the alleged inconsistencies at the Tribunal hearing: see paragraph [24] of the Tribunal decision. 

47. Second, as a matter of law, the Tribunal was not obliged to point out inconsistencies in the applicant’s claims to the applicant prior to making its decision. As the High Court has held, the Tribunal is under no obligation to disclose what it is minded to decide so that the parties may have a further opportunity of criticising the Tribunal’s mental processes before reaching a final decision: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48].

48. For these reasons particular (c) is rejected as supporting any arguable ground of jurisdictional error.

49. Ground 1 is dismissed.

    Ground 2

50. Again, like ground 1, given the applicant is unrepresented, I will read ground 2 as being a reference to s 426(3) in Part 7 of the Act, and not s 361(3), which is found in Part 5 of the Act and was not applicable to the Tribunal’s review in the present case.

51. On that basis, ground 2 asserts the Tribunal committed jurisdictional error by breaching s 426(3) of the Act.

52. The applicant was not able to articulate what he meant by ground 2 at the hearing before me. 

53. Section 426(3) required the applicant to provide the Tribunal written notice, within 7 days of being notified of a hearing, that the applicant wants the Tribunal to take oral evidence from another person at the hearing. No written notice was given to the Tribunal, so it is unclear in what way the Tribunal is said to have breached s 426(3). Further, as the first respondent points out in his written submissions, in the applicant’s "Response to hearing invitation", the applicant checked "no" as to whether he requested that the Tribunal take oral evidence from another person.

1. I consider this ground to be unmeritorious.

   CONCLUSION

2. The applicant has not established that the Tribunal’s decision is affected by jurisdictional error.

3. As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.

4. The application is dismissed.

   COSTS

5. The first respondent seeks costs fixed in the sum of $8,371.30. The first respondent submitted that the amount sought was less the costs that solicitor and client costs incurred by the first respondent. I note the amount sought is less than the scale amount for a proceeding concluded at a final hearing under the new rules: see Schedule 2, Part 3, Division 1, Item3 in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).  Fort these reasons, I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

Associate:

Dated:       5 September 2025