ASJ22 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1645

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…

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ASJ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1645
Case
[2025] FedCFamC2G 1645
Decision Date

CaseChat Overview and Summary

The case of ASJ22 v Minister for Immigration and Citizenship involves the applicants, ASJ22 and another individual, seeking judicial review of the Administrative Appeals Tribunal's (AAT) decision that affirmed the Minister's decision to deny them protection visas. The applicants argue that the Tribunal improperly considered the delay in their application and failed to exercise its discretion to obtain further evidence, thereby denying them procedural fairness. The applicants' primary contention is that the Tribunal should not have relied on the delay in making their protection visa application when assessing their claims for protection, and that the Tribunal unreasonably declined to exercise its discretion under section 424 of the Migration Act 1958 (Cth) to obtain additional evidence. They also argue that the Tribunal failed to afford them an opportunity to comment on the delay in their application, which they believe was a denial of procedural fairness.

The legal issues before the Court were whether the Tribunal was correct in relying on the applicants' delay in making their protection visa application, whether the Tribunal unreasonably declined to exercise its discretion to obtain further evidence, and whether the Tribunal failed to act in a manner that was fair and just by not inviting the applicants to comment on the delay. The Court examined the Tribunal's decision in light of the principles of jurisdictional error, as outlined in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Court noted that jurisdictional error involves a breach of an express or implied condition of a statutory conferral of decision-making authority, which can include misunderstanding the applicable law, asking the wrong question, or failing to observe procedural fairness. However, the Court found that the applicants' ground did not establish jurisdictional error.

The Court found that the Tribunal was entitled to consider the delay in making the protection visa application as it pertained to the applicants' credibility and the plausibility of their claims. The Court held that the Tribunal's reliance on the delay was not an error of law or a failure to observe procedural fairness. Regarding the Tribunal's discretion to obtain further evidence, the Court found that the Tribunal was not obligated to exercise this power unless there was a compelling reason to do so. The Court concluded that the Tribunal's decision not to seek further evidence did not constitute a jurisdictional error. Lastly, the Court held that the Tribunal was not required to invite the applicants to comment on the delay, as it was not a procedural requirement that would have necessarily led to a different outcome. Therefore, the application for judicial review was dismissed.

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 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.

Ratio Decidendi

Legal Principle Established

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 APPLICATIONThe 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