AQG24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1416
•2 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQG24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1416
File number(s): BRG 84 of 2024 Judgment of: JUDGE EGAN Date of judgment: 2 September 2025 Catchwords: MIGRATION LAW – Where the applicant failed to place evidence in support of his claims before the Tribunal when it was his obligation to do so – where the applicant’s Grounds of Review lacked particularity and were meaningless – where the applicant was in default of Court orders at the time of the hearing before the Court – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s. 5AAA, s. 5H(1), s. 5J(1), s. 36(2)(a), s. 36(2)(aa) Cases cited: BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785
DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240
Hamod v New South Wales [2011] NSWCA 375
SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389
SZTMD v Minister for Immigration and Border Protection [2015] 150 ALD 34
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 22 August 2025 Place: Brisbane Solicitor for the Respondents: Ms C. White of Sparke Helmore Lawyers Counsel for the Applicant: The applicants, appearing on their own behalf ORDERS
BRG 84 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQG24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
2 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration and Citizenship”.
2.The Originating Application for Review filed on 21 February 2024 be dismissed.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of the Republic of Vietnam who applied for a protection visa on 11 August 2017.
On 10 May 2018, a delegate of the Minister refused to grant the visa application on the ground that the applicant was not a refugee, or a person to whom Australia owed complimentary protection obligations.
The applicant applied to the then Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate.
On 28 November 2023, the Tribunal wrote to the applicant advising him that any additional evidence upon which he intended to rely should be provided to the Tribunal as soon as possible as the review application would be scheduled for a hearing. On the same day that such advice was given to the applicant, the applicant requested an extension of time to provide such material to the Tribunal. The Tribunal granted an extension of time until 12 December 2023.
On 10 December 2023, the applicant returned the pre-hearing information form in which the applicant ticked the box which stated ‘No, I do not want to have a hearing and I consent to the Tribunal making a decision on the papers without inviting me to a hearing for my case’.
Due to some ambiguities in the answers contained in the pre-hearing information form, a Tribunal officer contacted the applicant by telephone on 18 January 2024, and with the assistance of an interpreter, received confirmation from the applicant that he did not want to attend any Tribunal hearing, and that he wanted the Tribunal to make a decision in his absence. [1]
[1] See Court Book – Exhibit 1 – p.86
Being satisfied that the applicant had waived his right to appear at a hearing before the Tribunal, the Tribunal proceeded to decide the applicant’s review application on the papers.
On 30 January 2024, the Tribunal by its written reasons affirmed the decision of the delegate.
At [7] – [8] of its reasons, the Tribunal duly recorded the relevant protection obligations owed under s. 36(2)(a) and s. 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
At [9] – [10] of its reasons, the Tribunal duly recorded what constituted a person as a refugee under the provisions of s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under the provisions of s. 5J(1) of the Act.
The Tribunal had recorded the applicants claims for protection at [14] of its reasons as follows:
14. In his protection visa application, the applicant claimed to fear persecution in Vietnam for the following reasons:
•The applicant is a photographer.
•He went around the country to take photos for people and sometimes volunteered to take photos for charities when they held protests.
•The police questioned him, took his camera and made him delete photos three times.
•If he returns, the police will call him again and he does not want to return to a country where he cannot do what he wants.
•The police will threaten him and put him in jail if he keeps taking photos.
•He did not seek help because Vietnam is a communist country and people are afraid of the government.
•He cannot relocate anywhere because Vietnam is a communist government. They will call him two to three times a week and if he does not answer, they will come to his house and ask his parents.
On 21 February 2024, the applicant filed an Originating Application for Review of the decision of the Tribunal.
Grounds of Review
The Grounds of Review as contained in the Originating Application for Review were as follows:
1.The Department did not interview the applicant. The Administrative Appeal Tribunal did not interview the applicant. The applicant did not have an opportunity to provide further evidence to support his claims for protection.
2.The Tribunal did not consider the applicant's claims against any available country information. The Tribunal rejected the applicant's claims on the mere presumption that the applicant’s risk of significant harm does not exist.
3.The Tribunal rejected the applicant's fear of persecution on ground of genuineness but did not provide any ground to the Tribunal's findings or any concerns of the applicant's credibility.
The hearing of the application for review was listed for 22 August 2025. The applicant was self-represented at the hearing but appeared with the assistance of an interpreter. At the time of the hearing, the applicant was in default of order 5.1 of the orders made by Registrar Downing on 18 November 2024 – namely that the applicant had failed to file and serve written submissions in support of his claims at least 28 days before the date of the hearing.
Ground 1 is without merit. The Tribunal appropriately heard the matter on the papers in circumstances where it was reasonably satisfied that the applicant did not want to appear at any Tribunal hearing for the purpose of making submissions and presenting arguments. There was no evidence before the Court which could in any way assist the applicant in relation to such claim. Such ground is accordingly dismissed.
As to Ground 2, the Tribunal at [13] of its reasons specifically referred to the fact that it had taken account of country information assessments provided by DFAT for protection status determination purposes to the extent that they were relevant to the decision under consideration.
In circumstances where the applicant had failed to file any affidavit material in support of such claim, there was no basis for this Court finding that the Tribunal had not had appropriate recourse to country information when arriving at its decision. The Tribunal was not required to identify each and every aspect of the evidence which it relied upon when coming to its decision. No inference ought to be draw that the Tribunal had failed to consider relevant country information in the context of the applicant’s claims. [2]
[2] SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 at [15] – [20]
There was no demonstrated basis for the making of the claim in Ground 2. Such Ground, unparticularised as it was, was without merit and is dismissed.
As to Ground 3, at [16] of its reasons, the Tribunal, when referring to the lack of information placed before the Tribunal by the applicant, found as follows:
16. In his pre-hearing form response the applicant attached a certified translation of the section of the form titled 'Claims for protection' as follows:
I participated in a volunteer group who helped gave parcels and food to the needed in my hometown. However, the government threatened and caused troubles to me a lot of times. Therefore, I had to flee away by travelling as a tourist to your country, hoping that you will protect and help me. If I had return to Vietnam, I was terrified that the government would keep on causing troubles to, threatening, harassing both me and my family in Vietnam.
When detailing how the Tribunal was unable to be satisfied that any protection obligations were owed to the applicant based upon the evidence before it, the Tribunal at [17] – [25] inclusive of its reasons found as follows:
17. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is a person entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
18. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
19. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying particulars of a claim, or assist in establishing a claim.
20. There is insufficient information before the Tribunal for it to be satisfied that the applicant meets the relevant statutory criteria. The applicant has provided insufficient information in his protection visa application about his work as a photographer, the circumstances of his claimed interactions with the police and authorities, or his future conduct if he were to return to Vietnam. His pre-hearing form statement also contains insufficient information about why, and how, the Vietnamese government had threatened and harassed him or his family, for handing out parcels and food in his hometown.
21. Had he taken the opportunity to appear at a hearing, the Tribunal could have further explored these issues and provided him the opportunity to present arguments and evidence. He has, as noted above, waived his right to do so.
22. The Tribunal finds that the applicant's claims are not sufficiently detailed for it to be satisfied that the applicant faces a real chance of persecution in Vietnam. Nor are his claims sufficiently detailed to enable the Tribunal to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk that he will suffer significant harm.
23. On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that he will suffer significant harm.
24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
25. Having concluded that the applicant does not meet the refugee criterion ins 36(2)(a), the Tribunal has considered the alternative criterion ins 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
It was the responsibility of the applicant to particularise his claim in a clearly articulated way, and for him to provide the Tribunal with all relevant evidence in support of his protection claims. In the present matter, the applicant clearly failed to do so in both respects. Such obligation is clearly set out in s. 5AAA of the Act, which relevantly provided as follows:
5AAA Non‑citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a) the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
For the above reasons, Ground 3 is without merit and is dismissed.
Further, none of the grounds permit the Court to properly adjudicate on the applicant’s claims because of their lack of particularity. It has long been held that an unparticularised claim of itself is a basis for its dismissal. [3]
[3] BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785 at [9] – [19]
Further, it is contrary to public policy to allow litigants an indulgence when they are in default of Court orders.
The decision of the Tribunal was open to it based upon the evidence before it. It was not for the Tribunal to make out the applicant’s case.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate: JW
Dated: 2 September 2025
DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240 at [37] per Flick J;
Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] per Beazley JA; SZRKG v Minister for
Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389 at [22] per Farrel
J; and WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmore J.
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