ASJ22 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1645
•8 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASJ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1645
File number: PEG 292 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 8 October 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants protection visas – whether the Tribunal inappropriately relied on delay in making a protection visa application in rejecting the claims for protection – whether the Tribunal unreasonably failed to exercise its discretion in s 424 of the Migration Act 1958 (Cth) to get further evidence from the applicants – whether the Tribunal failed to act in a way that is fair and just by not inviting them to comment on the delay – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
Migration Act 1958 (Cth) ss 5AAA, 36, 424, 476, 477
Cases cited: BAX15 v Minister for Immigration and Border Protection [2016] FCA 491
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305
SZJYM v Minister for Immigration [2008] FMCA 652
Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 14 August 2025 Place: Perth Applicants: The first applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 292 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASJ22
First Applicant
ASK22
Second Applicant
ASM22 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
8 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first applicant and the second applicant are to pay the first respondent’s costs, fixed in the amount of $6,500.
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 LADHAMS:
INTRODUCTION
The applicants are citizens of China who applied for protection visas in Australia. A delegate of the Minister refused to grant the applicants protection visas and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicants seek judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicants’ matter was before it for review.
The applicants assert that the Tribunal made jurisdictional errors because it:
(a)made adverse credibility findings and rejected the applicants’ claims merely based on the delay in making the protection visa application;
(b)failed to exercise its discretionary power in s 424 of the Migration Act to seek additional evidence or clarification about the applicants’ claims; and
(c)failed to afford the applicants an opportunity to explain the delay, which amounted to a failure to act in a way that is fair and just.
For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The first applicant and the second applicant are husband and wife and the other two applicants are their children, who were born in Australia. The first applicant entered Australia in 2007 as the holder of a student visa. The visas held by the first and second applicants ceased on 15 March 2010 and the first and second applicants became unlawful non-citizens.
The applicants made an application for protection visas on 8 December 2017. The first applicant was the primary visa applicant and the other applicants were included in the application as members of his family unit. Only the first applicant advanced claims for protection.
A delegate of the Minister refused to grant the applicants protection visas on 26 October 2018.
The applicants applied to the Tribunal for merits review of the delegate’s decision on 11 November 2018. On 17 February 2022 the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas. However, a Judge of this Court quashed that decision on 13 June 2023 and remitted the matter to the Tribunal for reconsideration.
On 7 June 2024 the Tribunal sent to the applicants an invitation to attend a hearing to give evidence and present arguments relating to the issues arising in the review. The first applicant completed a ‘Response to hearing invitation’ form on 26 June 2024 in which he indicated that he would attend the hearing. However, on 2 July 2024, one day before the scheduled hearing, the first applicant wrote to the Tribunal and indicated he would not participate in the hearing. The first applicant provided further submissions and medical records in relation to one of the child applicants.
On 17 July 2024, upon reconsideration, the Tribunal affirmed the decision not to grant the applicants protection visas. This decision is the subject of the judicial review application presently before the Court.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal considered the first applicant’s claim that he was involved in protesting against the acquisition of the family land by the County Government to allow a private property development company to construct residential buildings on their block of land and adjoining ones. The first applicant claimed that he was a leader of a protest and was detained while protesting with others outside the County Government office and that he was detained after being involved in a physical altercation with the County Chief. The Tribunal did not accept that the first applicant was of any interest to the authorities on his departure from China for these reasons. The Tribunal did not accept that the first applicant was a leader of protests or that there was a real chance he would face harm from the Chinese authorities, the County Chief or any other person because he protested against the acquisition of family land or because of compensation payable upon his return to China.
In reaching these findings, the Tribunal noted that the first applicant was 17 years old at the time he claimed to have led the protests and attended meetings with the County Chief. The Tribunal did not accept as plausible that the villagers would regard a 17 year old as a leader or that the County Chief would regard the first applicant as a leader of a group of protesters such that he would seek to meet with him. The Tribunal noted the first applicant’s subsequent evidence that his father sold the land in 2009 for a reasonable price and that the first applicant’s parents and sister remain living in the family home with no further issues with the County Government over the purchase of the family land. The Tribunal had regard to country information and did not accept that the first applicant’s father paid bribes to ensure his son’s safe exit from China. The Tribunal also considered that the delay in seeking protection undermined the credibility of the first applicant’s claims.
The Tribunal was not satisfied on the evidence before it that there was a real chance the first applicant would face serious harm on his return to China from the County Chief retaliating against him for any reason.
The Tribunal found on the basis of country information that the first and second applicants would be able to resume their household registration on return to China. The Tribunal did not accept the applicants’ assertion that the County Chief would make it difficult for them to resume their household registration on their return and therefore did not accept that they would be unable to find accommodation, employment or access to healthcare, education or any other social services on their return to China. The Tribunal therefore found there was no real chance they would face serious harm on return to China due to their claimed inability to renew their household registration.
The Tribunal also found on the basis of available country information that the third and fourth applicants would be able to be registered on their return to China and this would enable them to access social services such as education and health. The Tribunal did not accept the third applicant and fourth applicant would be denied registration on the family household register for any reason or that they would face a real chance of serious harm on return to China because of difficulties being registered on the household registration.
The Tribunal did not accept that the fourth applicant would be denied medical treatment for his medical condition if returned to China, relying on country information about the availability of medical treatment. Further, the Tribunal did not accept that the cost of any medical treatment for the fourth applicant would cause the family to be overstrained financially in a way which would affect their capacity to subsist.
The Tribunal acknowledged that the third and fourth applicants have grown up in Australia and would have difficulties relocating to China. The Tribunal found that the third and fourth applicants have some familiarity with Chinese culture and language. The Tribunal did not accept that finding it difficult to adjust on return to China reaches the level of serious or significant harm as defined.
The Tribunal was not satisfied that any of the applicants satisfied the criteria for a protection visa in s 36(2)(a) or (aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicants filed their application for judicial review on 8 August 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicants rely on the following single ground (reproduced without alteration):
Apparently, as indicated in paragraph [51] of the AAT decision record (A copy of AAT Decision Record is attached to Annexure 1), the presiding member found that my delay in seeking protection was one of the reasons why the Tribunal concluded that my entire claims were not credible. I conceded that even a three-month delay in making application for a protection visa is one of the most significant matters to take into account when assessing and deliberating the truthfulness of an applicant’s fear of persecution (Andaraj Subramaniam v MIMA. [1998] FCA 305)
On top of that, in the case of Selvadurai v Minister for Immigration and Ethnic Affairs (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347), the Court observed in regard to a delay in lodgement of a protection application: “In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material.....”
Given the review applicant’s prolonged period of unlawfulness in the Community and the circumstances where the application was lodged, to cast doubt on genuineness of his claimed religious practice in Australia is consistent with both the afore-mentioned legal authorities and AAT’s Guidelines on the Assessment of Credibility.
However, making adverse findings of my credibility and rejecting my entire claims merely based on my delay in making the application may go against the legal principle in the case of SZJYM v Minister for Immigration and Citizenship. (SZJYM v Minister for Immigration & Anor [2008] FMCA 652) I chose not to attend the Hearing and requested the Tribunal to make its findings based on all evidence submitted, but that did not stop the Tribunal to seek for additional evidence or/and clarification from me under s 424 of the Act.
The Tribunal affirmed the decision made by the First respondent with offering me a chance to explain as to why there was a delay in seeking for protection, which means the Tribunal failed to act in a way that is fair and just as requested by statutory provision outlined in s422B (3) of the Act.
The evidence before the Court comprises:
(a)an affidavit of the first applicant filed with the applicants’ judicial review application annexing a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 8 November 2024; and
(c)an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 23 June 2025.
The application came before the Court for hearing on 14 August 2025. The first applicant appeared at the hearing and the second applicant also attended. I referred the first applicant to the ground in his application and explained the Court’s understanding of his ground. The first applicant declined to make oral submissions at the hearing, indicating that he wished only to rely on the information in the application. The second applicant also confirmed that she did not wish to make any submissions to the Court.
CONSIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … 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.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The applicants’ ground does not establish jurisdictional error
The ground in the applicants’ judicial review application gives rise to the following interrelated issues:
(a)whether it was open to the Tribunal to rely on the applicants’ delay in making a protection visa application in the way it did;
(b)whether the Tribunal denied the applicants procedural fairness by not exercising its discretionary powers to obtain further information; and
(c)whether the Tribunal denied the applicants procedural fairness by failing to afford them an opportunity to comment on the Tribunal’s concerns about the delay in their application.
It was open to the Tribunal to rely on the delay in applying for protection in making adverse credibility findings against the first applicant
As indicated above, the first applicant entered Australia in 2007, held a substantive visa that ceased on 15 March 2010, and remained in Australia as an unlawful non-citizen for a number of years before applying for a protection visa in December 2017.
The Tribunal commented on the first applicant’s delay in seeking protection at [45]-[46] of its reasons, where it said:
45. The Tribunal has regard to the fact that the applicant was unlawful for a considerable period, lodging his application for protection about ten years after his arrival in Australia. The Courts have held that delay in seeking a protection visa can support an adverse credibility finding as well as finding that an applicant does not have a well-founded fear of harm. The Tribunal does not accept the birth of their children as reasonable excuse for not regularising their status. Both the applicant and the second named applicant were unlawful for about three years before the birth of their first child and failed to take steps to regularise their visa status or apply for protection in that time. It was submitted that they were fearful of the Chinese authorities becoming aware of their applications and seeking their removal from Australia. The process of applying for protection is confidential and the Tribunal does not accept this submission as a convincing reason for the delay in applying for protection.
46. The Tribunal has considered the applicant’s reasons for his failure to resolve his unlawful status and his reasons for not applying for protection shortly after his arrival in Australia as set out. The Tribunal considers that a person so fearful of returning to their home country, particularly after claiming they were detained twice, being held for a month on the second occasion as the applicant claims then maintaining a low profile until his departure for Australia, would seek to apply for protection shortly after their arrival in Australia. The Tribunal finds that the applicants’ delay in applying for protection suggest that the basis for the claim for protection is not genuine.
The applicants accept that it was open to the Tribunal to have regard to their delay in seeking protection. This is consistent with past cases of the courts, including Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 at [11(v)] (both of which were cited by the Tribunal and by the applicants in their ground) and Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 (Thuraisamy) at [10] (cited in the Minister’s submissions).
However, the applicants claim that the Tribunal made a jurisdictional error by relying solely on the delay in applying for protection. In support of their assertion, they rely on SZJYM v Minister for Immigration [2008] FMCA 652, in which Barnes FM surveyed the relevant authorities and then said at [61]:
Hence, it is legitimate to take delay into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution. The view has been expressed that it is also a legitimate matter to take into account in deciding whether to believe an applicant. However in Makouei [v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia VG 327 of 1997, Wilcox J, 6 February 1998)] Wilcox J made it clear that if the Tribunal had treated delay as determinative in relation to whether an applicant genuinely had a fear of persecution that would be a clear error of law. Similarly if a Tribunal treated delay in making a protection visa application as concluding the question of whether to believe an applicant, rather than as being a relevant factor to be taken into account, that would also be an error of law and not consistent with the approach taken in any of these cases.
I accept that the delay in bringing a protection visa application cannot of itself be the determinative reason for rejecting a claim: see also Thuraisamy at [10] and BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 at [43].
I accept the Minister’s submission that the Tribunal in the present case did not solely rely on the delay in seeking protection in making adverse credibility findings in this case.
The Tribunal summarised its conclusion about the first applicant’s fear based on events in China at [51] of its reasons, where it said:
The Tribunal finds that his delay in seeking protection, together with the fact that his father sold the land for an acceptable price in 2009 with no further issue with the County Government, as well as his ability to exit China easily, leads it to conclude that the applicant’s claims to fear harm because of his involvement in protests lack credibility. Therefore, the Tribunal does not accept that the applicant was a leader of protests or there is a real chance he faces any harm from the Chinese authorities, [name redacted] or any other person because he protested against the acquisition of family land and the amount of compensation payable on his return to China.
It can be seen from this paragraph that the Tribunal rejected the first applicant’s claims based on the events that he alleged happened in China for reasons additional to the delay in making the protection visa application. These additional reasons included that the first applicant’s father sold the land the subject of the dispute with the authorities for an acceptable price back in 2009, without further issues with the County Government, and that the first applicant was able to exit China easily.
The applicants have not established that the Tribunal erred by rejecting the first applicant’s claim solely on the basis of the delay in making the protection visa application. It was open to the Tribunal to rely on the delay in making the application in the way that it did.
The Tribunal did not make any jurisdictional error by failing to exercise its discretionary powers to obtain further information
Section 424 of the Migration Act conferred on the Tribunal a discretion, in conducting the review, to get any information that it considered to be relevant. As with all discretionary powers, the Tribunal had to act reasonably in exercising, or not exercising, the discretion in s 424. Although the applicants have not expressly asserted that the Tribunal acted unreasonably, I have considered the ground on this basis, as it is the only logical way to view the assertion in the final sentence of the fourth paragraph of the applicant’s ground as alleging any type of jurisdictional error. In considering the reasonableness of the Tribunal not exercising its discretion to obtain further information, it is important to consider s 424 in its proper statutory context.
As submitted by the Minister, the wide discretionary powers conferred on the Tribunal by s 424 of the Migration Act do not impose on it any general duty to make inquiries: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [20].
The applicants, as non-citizens claiming to be owed protection obligations by Australia, were required to specify all particulars of their claim to be such persons and to provide sufficient evidence to establish the claim: s 5AAA of the Migration Act.
The Tribunal recognised this at [44] of its reasons:
The applicants’ decision not to accept the Tribunal’s invitation to attend a hearing has left the Tribunal unable to address concerns it has regarding the applicant’s claims. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. The Tribunal is not required to accept uncritically any, and all allegations made by an applicant.
In the present case, the Tribunal invited the applicants to attend a hearing and indicated in the hearing invitation that it had considered the material before it but was unable to make a favourable decision on that information alone. The hearing invitation also confirmed that the applicants could provide additional information in writing to the Tribunal. The applicants exercised this opportunity by providing additional information, primarily relating to the medical condition of one of the child applicants.
In these circumstances, the Tribunal did not act unreasonably in failing to exercise its discretion in s 424 of the Migration Act to invite the applicants to provide further information.
The Tribunal did not deny the applicants procedural fairness by failing to invite them to comment on the delay in making their protection visa application
Concern regarding the delay in making the protection visa application was not a new issue that arose before the Tribunal for the first time. The delegate made adverse findings based in part on the delay in making the protection visa application. The Tribunal in its earlier purported decision made on 17 February 2022 also made adverse findings based in part on the delay.
The applicants attended an interview before the delegate. The delegate’s decision records that the delegate put to the first applicant that the delay in submitting the protection visa application raises serious concerns about the immediacy, gravity and credibility of his claims of fearing persecution in China. The delegate recorded that the first applicant indicated that he thought he could use the student pathway to stay in Australia, but his family’s economic situation became worse and they could not pay for his tuition. He said he was scared to return to China so he stayed in Australia.
The applicants also attended hearings before the Tribunal as constituted prior to the remittal. The Tribunal, in the purported decision made on 17 February 2022, recorded that it asked the first and second applicants about why it had taken them so long to seek protection in Australia and they both responded that circumstances of life, with children, and living in a foreign country, had made it difficult for them to concentrate their minds to the fact that they were unlawful in Australia for seven years.
The applicants provided a written submission to the Tribunal prior to the purported decision of 17 February 2022. The submission was prepared by a migration agent. It included a submission that the applicants did not regularise their status as they were fearful of the details of their protection visa application becoming known to the Chinese authorities, because country information suggested that China sought the return of Chinese nationals granted refugee status in other countries. The submission also suggested that the birth of the first and second applicants’ children diverted their attention from regularising their status. The Tribunal referred to this submission at [33] of its reasons.
As can be seen from [45]-[46] of the Tribunal’s reasons, which are extracted above, the Tribunal was aware of the submissions advanced by the applicants’ regarding the delay in applying for a protection visa and had regard to those submissions.
The applicants could have again explained any reasons for the delay at a hearing before the Tribunal if they had accepted the invitation to attend a hearing, rather than consenting to the matter being determined on the papers. The applicants do not assert that the Tribunal made any jurisdictional error by determining the matter on the papers without a hearing.
The Tribunal has not failed to act in a way that is fair and just by not specifically affording the applicants a further opportunity to comment on the delay in making their protection visa application. The applicants were aware of the issue, had addressed it previously and made an informed choice not to attend the hearing, where they might have had a further opportunity to address it.
Conclusion in relation to the ground
The applicants’ ground does not establish jurisdictional error.
CONCLUSION
In circumstances where the applicants have not established that the Tribunal made a jurisdictional error, the application to this Court must be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 8 October 2025
SCHEDULE OF PARTIES
PEG 292 of 2024 Applicants
Fourth Applicant:
ASL22
0
13
2