APX20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1530
•18 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
APX20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1530
File number(s): SYG 305 of 2020 Judgment of: JUDGE CLEARY Date of judgment: 18 September 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - where Tribunal exercised discretion to proceed in the applicant’s absence under s 426(1A)(a) and not under s 426(1A)(b) - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 426(1A)(a), 426(1A)(b) 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
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EEF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 335
EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173
ERO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 195
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [38]-[40]
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091
Smith v Blanch [2025] NSWCA 188
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 18 September 2025 Place: Parramatta Applicant: In person Counsel for First Respondent: Mr T. Maybury Solicitor for Respondents: Australian Government Solicitor ORDERS
SYG 305 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: APX20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
18 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,467.
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
The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 29 January 2020 under s 476 of the Migration Act 1958 (Cth) (Act). The Tribunal decision affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the first applicant a Protection (subclass 866) visa (protection visa) under s 65 of the Act.
BACKGROUND
On 11 March 2016, the applicant, a citizen of China, lodged an application for a protection visa, claiming a fear of harm from the leader of her village of Yongan in Fujian province, China, following a village election in April 2015.
In the applicant’s visa application, she provided contact details including an email address ending in “@qq.com” (qq.com email address) and a telephone number (mobile number).
On 11 April 2016, the Department received a change of address and/or passport details form from the applicant in which the applicant provided an updated residential address in Bexley and a post office box address in Campsie.
On 1 December 2016, the Department sent a letter to the applicant via email to the qq.com email address inviting her to attend an interview on 15 December 2016 to discuss her Visa application and her claims that she was a person in respect of whom Australia owed protection obligations.
On 29 December 2016, the Department notified the applicant, via a letter sent by post to the applicant’s post office box in Campsie, of the delegate’s decision to refuse the applicant’s visa application, having concluded that the applicant did not satisfy s 36(2) of the Act.
On 12 January 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal. On the same date, the applicant sent an email to the Tribunal’s “National Registry Mailbox” requesting that the Tribunal issue her a letter to allow her to apply for a Medicare card. The email address the applicant used to send this email is unclear on the evidence.
On 13 January 2017, the Tribunal sent a letter dated 12 January 2017 to the applicant via email to the qq.com email address acknowledging the applicant’s merits review application. On the same date, the Tribunal sent a letter dated 13 January 2017 to the applicant via email to the qq.com email address confirming the applicant’s merits review application for her Medicare card application.
On 31 May 2017, the applicant sent an email to the Tribunal’s “National Registry Mailbox”, using the qq.com email address, again requesting a letter from the Tribunal for the purpose of applying for a Medicare card. On the same date, a Tribunal registry officer responded asking the applicant to provide her postal address. On the same date, the applicant responded using the qq.com email address and provided the post office box address in Campsie.
On 1 June 2017, the Tribunal sent a letter dated 31 May 2017 to the applicant via email to the qq.com email address again confirming her merits review application for a Medicare card application.
On 8 January 2020, the Tribunal invited the applicant to appear at a hearing on 29 January 2020 to give evidence and present arguments.
On 21 January 2020 and 28 January 2020, the Tribunal sent the applicant two SMS messages to the applicant’s mobile number containing a reminder that the applicant’s hearing was scheduled on 29 January 2020.
On 29 January 2020, the applicant did not appear before the Tribunal.
On 30 January 2020, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.
TRIBUNAL DECISION
In its decision, the Tribunal recorded that it had written to the applicant on 8 January 2020 via her last notified email address advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal noted that it had invited the applicant to give oral evidence and present arguments at a hearing on 29 January 2020 and advised the applicant that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.
The Tribunal confirmed that the hearing invitation was sent to the applicant at the most recently advised email address.
On the date of the hearing, the applicant did not appear before the Tribunal and did not provide a reason as to her failure to appear.
The Tribunal found, pursuant to s 426A of the Act, it had to make its decision on the review without taking further action to enable the applicant to appear before it.
The Tribunal affirmed the decision not to grant the applicant’s protection visa.
APPLICATION FOR REVIEW
On 13 February 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 29 January 2020. The application contains four (4) grounds of review. They are (as written):
1.THE TRIBUNAL OFFICER REFUSED MY APPLICATION BECAUSE I COULD NOT PROVIDE ENOUGH EVIDENCE TO SUPPORT MY CLAIMS.
2.THE TRIBUAL OFFICER DID NOT ACCEPT THAT I WAS PERSECUTED BY CHINESE GOVERNMENT. I DID NOT MEET THE REFUGEE CRITERION
3.I DID NOT ATTEND THE HEARING BECAUSE I MISSED THE DATE FOR HEARING.
4.I HAVE LEFT CHINA FOR SUCH A LONG TIME AND CAN NOT PROVIDE MORE EVIDENCE FOR MY CLAIMS.
On 11 March 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. On 29 August 2025, I made orders to extend the first respondent’s filing date to 2 September 2025. The applicant did not file any documents in accordance with the Order. The first respondent filed their written submissions as required by the Order.
On 30 July 2025, the proceedings were docketed to me and set down before me for final hearing on 11 September 2025.
HEARING ON 11 SEPTEMBER 2025
At the hearing of this matter on 11 September 2025, the applicant appeared unrepresented with the assistance of a Mandarin interpreter. Mr T Maybury of counsel appeared for the first respondent instructed by the Australian Government Solicitor.
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. It has been suggested that the best approach is to give the unrepresented litigant enough information to make an effective choice in the conduct of the proceedings: see, for example, SZRUR at [60].
I consider, in cases such as the present 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.
Accordingly, I took the applicant through each of the four grounds of review and asked what was meant by each ground. She made some brief comments about grounds 1 and 2, essentially about the merits of the Tribunal decision. She did not want to say anything about ground 3. On ground 4 she said she did not want to return to China as her husband had died her in Australia, and she had no one back in China.
Mr Maybury made brief oral submissions summarising the first respondent’s written submissions on the grounds and also made submissions on the issue of whether the Federal Court judgment in DNK17 was applicable to this matter (discussed below).
CONSIDERATION
In reviewing the Tribunal’s decision, the Court does not review the factual merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
To obtain the relief sought the applicant has the onus to prove that the Tribunal’s decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76]. In LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [3] (LPDT) the High Court explained that:
… Jurisdictional error on the part of a statutory decision-maker in making a decision can 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.
To constitute jurisdictional error, in most cases, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32].
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
Ground 1 does not disclose a reasonably arguable ground that the Tribunal has committed jurisdictional error.
Further, as pleaded, ground 1 misunderstands the Tribunal’s decision. The applicant is incorrect to assert that the Tribunal affirmed the delegate’s decision because the applicant could not provide enough evidence to support her claims. The Tribunal found, instead, it was not satisfied that the applicant was a person to whom Australia owed protection obligations because (i) the material before it was lacking in detail; and (ii) the Tribunal was unable to question the applicant about her claims because she did not attend the hearing before the Tribunal.
At the hearing I asked the applicant if she wanted to make any submissions about this ground. The applicant made submissions about the merit of the Tribunal decision, but not about the specific ground of review in ground 1. On an application for judicial review the review applicant bears the onus of proof on the balance of probabilities: see LPDT at [10]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [67], MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [38]-[40] and [60], and Smith v Blanch [2025] NSWCA 188 (Kirk, Stern and McHugh JJA) at [113]. We are not concerned in these types of proceedings with questions of a presumption of the regularity or validity of administrative action: see SZGUR at [67] per Gummow J, and see Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) at 255 [4.345]. Ultimately it falls to the applicant to establish a basis for drawing the inference necessary to make out any alleged jurisdictional error.
Thus, without any further articulation of this ground, Ground 1 is dismissed.
Ground 2
Ground 2 does not disclose a reasonably arguable argument that the Tribunal has committed any jurisdictional error. This ground merely re-states the Tribunal’s reasons for decision without articulating any asserted error.
Again, at the hearing I asked the applicant if she wanted to say anything on this ground. Again, the applicant made submissions about the merit of the Tribunal decision, but not about the specific ground of review in ground 2.
For the same reasons I have outlined above in paragraph [35], I consider this ground to be without merit, and it is rejected.
Ground 3
As to ground 3, it simply asserts the applicant did not attend the Tribunal because she “missed the date for hearing”. Again, such a contention does not disclose a reasonably arguable ground that the Tribunal committed any jurisdictional error.
The applicant did not make any submission on this ground.
On 8 January 2020, the Tribunal invited the applicant to appear at a hearing on 29 January 2020 to give evidence and present arguments. This was given via email within a reasonable period (namely three weeks) in compliance with s 425A, read together with s 441A(5) of the Act.
The applicant did not appear before the Tribunal. The Tribunal decided to make its decision on the review without taking further action to enable the applicant to appear before it. Although it is not stated expressly in the decision, I consider that it is clear that the Tribunal made its decision under s 426(1A)(a) of the Act. There was nothing unlawful about the Tribunal exercising its discretion under s 426(1A)(a) in this way.
Ground 3 has no merit and is rejected.
Ground 4
As to ground 4, the applicant merely asserts that she has left China for such a longtime and she now cannot provide any evidence about her claims. As to this ground the applicant told the Court that she did not want to return to China.
I consider this ground to be unmeritorious. It is essentially seeking to review the merits of the Tribunal decision. It is well established that this Court is not permitted to review the merits of the Tribunal decision in applications for judicial review: see Djokovic.
Ground 4 is rejected as it fails to disclose any arguable jurisdictional error.
Other issues
Under the heading of “Other issues” in the Minister’s written submissions, the first respondent raises, in accordance with its model litigant policy, whether the Tribunal decision is affected by the type of error identified by Horan J in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17).
In DNK17 Horan J held, in the context of the particular factual circumstances of that case, that it was legally unreasonable for the Tribunal to have exercised its discretion to make a decision on a review under s 426A(1A)(a), as opposed to exercising its power to dismiss the application under s 426(1A)(b), in circumstances where the Tribunal did not provide reasons for why it chose to exercise the power in subparagraph (a), and not subparagraph (b), of s 426A(1A).
After some assessment of this potential ground, I do not consider the type of error in DNK17 arises in the present case. That is because I consider DNK17 is distinguishable from the present case, for the reasons, amongst others, given at paragraph [36] in the first respondent’s written submissions, which are as follows:
In DNK17, the applicant engaged with the Tribunal with respect to the hearing, including by requesting three adjournments of the hearing: see DNK17 at [22]-[30]. In this matter, the applicant engaged with the Department in 2016 including by providing identification information when requested and attending the interview with the delegate … and engaged with the Tribunal in 2017 after she applied for review insofar as she twice requested and received letters from the Tribunal for the purpose of applying for a Medicare card. However, in contrast to the applicant in DNK17, the applicant failed to engage with the Tribunal at all with respect to the hearing, after it re-established contact with the applicant in 2020.
Further, unlike the situation in DNK17, the applicant in this case did not make an adjournment application on, or immediately before, the scheduled hearing on 29 January 2020. She simply did not appear at the hearing. I consider that this is a significant factual matter which distinguishes DNK17 from the present case.
Another distinguishing feature of the present case was the absence of any credibility concerns finding by the Tribunal about the applicant’s claims. In DNK17 Horan J found at [106] that the Tribunal had credibility concerns about the applicant’s claims that could not be resolved without a hearing based on “limited and contradictory” material. There were no such concerns in the present case. Rather, the basis on which the Tribunal was not satisfied there was any protection obligations owing to the applicant was because of a lack of “essential details”, “unclarified claims” and “unanswered” questions, and not because of inconsistencies in the evidence.
As the first respondent submitted, there have now been a number of cases decided in this Court considering this issue, including, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 at [50]-[51]; EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173 at [30]; ERO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 195 at [24]; EEF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 335 (EEF18).
Mr Maybury also submitted that there a number of cases, including EEF18, which are similar in factual circumstances to the present case, where the Court held that the DNK17 error did not arise.
I have read the cases I was referred to by Mr Maybury. In particular in EEF18, like the present case, there was a complete absence of engagement by the applicant with the Tribunal with respect to, and leading up to, the hearing arranged by the Tribunal. It was for that reason Judge Gostencnik found in EEF18 that no DNK17 error had been committed.
For these reasons, I consider it was legally reasonable for the Tribunal to have exercised its discretion to proceed in the applicant’s absence under s 426(1A)(a), and not under s 426(1A)(b). I consider that no error of the kind identified in DNK17 arises in this matter.
CONCLUSION
The applicant has not established that the Tribunal’s decision is affected by jurisdictional error.
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 v Minister for Immigration and Border Protection [2018] FCA 784 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.
The application is dismissed.
COSTS
The first respondent seeks costs fixed in the sum of $7,467. 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 sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 18 September 2025
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