DJI20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 958
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJI20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 958
File number(s): SYG 1732 of 2020 Judgment of: JUDGE MARQUARD Date of judgment: 30 July 2025 Catchwords: MIGRATION – decision of the Administrative Appeals Tribunal – protection visa – error of fact – denial of procedural fairness (interpreter) – bias - failure to consider integer – no jurisdictional error- application dismissed Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) sch 16
Migration Act 1958 (Cth) ss 5H, 29, 31, 36, 45, 65, 425, 425A, 427, 474, 476
Migration Regulations 1994 (Cth)
Cases cited: BTQ16 v Minister for Immigration and Border Protection [2019] FCCA 2101
Craig v State of South Australia (1995) 184 CLR 163;
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Mazimbe v Minister for Immigration and Multicultural Affairs [2023] FedCFamC2G 1227
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
MZAIB v Minister for Immigration v Border Protection [2015] FCA 1392
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Plaintiff S157/2002 v Commonwealth ofAustralia (2003) 211 CLR 476
Refugee Review Tribunal, Re: Ex parte H (2001) 179 ALR 425
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 15 May 2025 Place: Sydney Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms I Leonard of Australian Government Solicitor Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 1732 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJI20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Citizenship.
2.The name of the second respondent is amended to Administrative Review Tribunal.
3.The application for judicial review filed on 17 July 2020 is 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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Marquard
OVERVIEW
Before the Court is an application filed on 17 July 2020, seeking judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal) dated 25 June 2020. The Tribunal affirmed a decision of the Department of Home Affairs (Department), as delegate for the first respondent, dated 19 January 2017. The Department refused to grant the applicant a Protection (Class XA) (Subclass 866) Visa.
The applicant has claimed that the decision of the Tribunal on 25 June 2020 (the Tribunal Decision) fell into jurisdictional error.
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
For the reasons that follow, the application is dismissed.
BACKGROUND
The applicant is a citizen of China (Court Book (CB) 46). He first arrived in Australia in 2015 on a tourist visa (CB 48).
On 11 April 2016, the applicant applied for the protection visa (CB 10–51).
On 16 December 2016, the Department invited the applicant to attend an interview to discuss his claims for protection (CB 66 - 67).
On 19 January 2017, the Department refused to grant the applicant a protection visa (CB 82- 92). The applicant was notified of the Department’s decision by way of post to a residential address the applicant had nominated (CB 78-81).
On 15 February 2017, the applicant applied to the Tribunal for review of the Department’s decision (CB 93 -99).
On 17 February 2017, the Tribunal acknowledged the application and invited the applicant to provide material or written arguments for the Tribunal to consider (CB 100-101).
On 28 September 2018, the applicant emailed the Tribunal with a Change of Contact Details Form (CB 102 -104).
On 2 October 2018, the Tribunal wrote to the applicant requesting that he confirm his preferred means of communication. The applicant responded confirming that his preferred mode of communication was by way of email (CB 105).
On 19 May 2020, the Tribunal invited the applicant to attend a scheduled hearing on 4 June 2020 by way of telephone, in light of the COVID-19 pandemic. The Tribunal emailed the applicant this invitation to the email address he had nominated noting that it was the updated email address the applicant had provided (CB 109- 111).
On 4 June 2020, the applicant, assisted by a Mandarin interpreter, attended a hearing with the Tribunal by telephone to give evidence and present arguments (CB 113-116).
On 25 June 2020, the Tribunal affirmed the decision not to grant the applicant a protection visa (CB 122).
TRIBUNAL DECISION 25 JUNE 2020 (CB 122 -127)
The Tribunal summarised the applicant’s evidence inclusive of his claims for protection at ([2] and [6] to [15] of the Tribunal Decision).
The Tribunal identified the relevant law ([16] to [21] of the Tribunal Decision).
The Tribunal identified the issues for determination as follows ([23] of the Tribunal Decision):
(a)whether the applicant had a well-founded fear of being persecuted in China for one or more of the five legislated reasons: and
(b)whether there were substantial grounds for believing that as a necessary and foreseeable
consequence of the applicant being removed from Australia to China, there was a real risk of significant harm.
The Tribunal observed that: ‘the applicant’s evidence in relation to major things such as where he lived, how long he was allegedly detained by police and how much compensation he allegedly received has continued to change and is not indicative of events that had actually occurred’ ([27] of the Tribunal Decision). The Tribunal’s ‘overall impression’ was that the applicant was not recalling events as they had occurred but was fabricating evidence ([25 -27] of the Tribunal Decision).
Given the credibility findings ([25 -27] of the Tribunal Decision), the Tribunal did not accept the applicant’s core protection claims that the applicant’s parents’ house was expropriated, that thousands of people in China gathered in response or that people were arrested. The Tribunal did not accept that a nuclear reactor was constructed in front of the applicant’s house or that the applicant’s health was in danger as a result, or that the Chinese military was called and attacked villagers. The Tribunal did not accept that the applicant was attacked, injured or detained. The Tribunal did not accept the applicant’s claim that he appealed the expropriation, petitioned the government or fled China as a result. The Tribunal rejected the applicant’s claim that the Chinese government would exact revenge on him upon his return to China ([28] of the Tribunal Decision).
The Tribunal concluded that the applicant was not a witness of truth in relation to the events and circumstances which took place in China ([29] of the Tribunal Decision).
The Tribunal was not satisfied that the applicant held opinions such that there was a real chance that the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion should he return to China in the reasonably foreseeable future ([29] of the Tribunal Decision).
The Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act. Having concluded that the applicant did not satisfy the refugee criterion, the Tribunal was not satisfied that the applicant held opinions such that there was a real risk of significant harm ([31] of the Tribunal Decision).
Accordingly, the Tribunal was not satisfied that the applicant met the criteria for a protection visa set out in ss 36(2)(a) or 36(2) (aa) of the Act) ([29-33] of the Tribunal Decision).
The Tribunal affirmed the decision of the Department dated 19 January 2017 not to grant the applicant a protection visa ([34] of the Tribunal Decision).
APPLICATION TO THIS COURT AND HEARING
The applicant’s grounds for judicial review are set out in his originating application filed on 17 July 2020. They are set out below (reproduced without alteration):
1.AAT made some mistakes because it has no knowledge of the traditions and cultures in my country. The land belongs to my parents but I considered it as mine too. This is our value that the land belongs to our whole family and I will fight for my family at all costs. We placed high value on our family land and it is not separated from each other even if the land is under my parents name.
2.My parents still live in the house and the land was taken by the government. It was not contraditory as the land and the house are separated.
3. The whole interview is arranged with hasty without proper procedures. The telephone interpreting was terrible and didn't interprete all things I said. I said I didn't understand the definition of persecution; the interpreter showed very impatient and was reluctant to explain to me. AA T was also very impatient and too informal to conduct. The whole process is inaccurate and unfair. There was no real communication, no trust but prejudgements and prejudice. I can only feel the indifference and a lot of misunderstandings during the whole telephone interview. I should be given another chance with more fairness and justice.
The applicant’s affidavit in support of his application for judicial review was filed on 17 July 2020. The affidavit attached the Tribunal Decision.
On 6 March 2025, a Registrar of this Court made procedural orders. These included an order for the applicant to file an amended application, additional evidence and submissions on or before 3 April 2025. No amended application, additional evidence and submissions have been filed by the applicant.
The following documents were before this Court – the application for judicial review, the supporting affidavit of the applicant filed on 17 July 2020 (taken as read and in evidence at the hearing), a Court Book (numbering 134 pages and marked as Exhibit R1) filed 10 September 2020, and written submissions of the Minister filed on 24 November 2020.
On 15 May 2025, the applicant appeared before this Court as a litigant in person. A Mandarin interpreter was present in Court to assist the applicant. The applicant confirmed on a number of occasions that he understood the interpreter. The first respondent confirmed that a copy of the Court Book had been served on the applicant on 11 September 2020 to the last notified address. The applicant said that he had not received a Court Book (Tp 4.30-35). The Court referred him to the callover on 6 March 2025 when he had confirmed that he had retained a copy of the Court Book (Tp 5.5-7). A copy of the written submissions had been served on the applicant and a further copy of the Minister’s written submissions was provided to the applicant at hearing.
As the applicant was a litigant in person, the Court provided him with an overview of the Court processes. The Court also explained that the issue before the Court was whether the Tribunal had fallen into material jurisdictional error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang). It was explained to the applicant that the Court cannot review the merits of the Tribunal’s decision or decide to grant the applicant a visa but must locate jurisdictional error in the Tribunal decision if the application were to succeed.
For the applicant’s benefit, the Court also outlined some of the common categories of jurisdictional error (based on references to kinds of error in Craig v State of South Australia (1995) 184 CLR 163; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [207]-[208]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic). The Court also noted that this list of categories was not exhaustive: Mazimbe v Minister for Immigration and Multicultural Affairs [2023] FedCFamC2G 1227.
The applicant was provided with an opportunity at the hearing to tell the Court what he believed the Tribunal did wrong in his own words.
CONSIDERATION – WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?
Principles
The Tribunal was required to consider whether the applicant met the legislative criteria for a protection visa.
Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Migration Regulations 1994 (Cth) (Regulations) prescribe the criteria for classes of visas: ss 31(1) and 31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act.
Subsections 36(2)(a) and 36(2)(aa) of the Act provide that a criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
Section 5H of the Act provides that a person is a refugee if they have a well-founded fear of persecution.
A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth ofAustralia (2003) 211 CLR 476.
The task of this Court in judicial review is not to undertake a general review, but to consider jurisdictional error and if found, to quash the decision of the Tribunal: Craig v State of South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
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: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32] (LPDT).
It is not for the Court to review the merits of the Tribunal’s decision: Wu Shan Liang at 272.
The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about the decision: Djokovic at [17]. In cases such as this however, where the applicant is unrepresented, the Court should consider the applicant’s complaints and be astute and alert to legal error: MZAIB v Minister for Immigration v Border Protection [2015] FCA 1392 at [100].
Consideration of the grounds of jurisdictional error alleged by the applicant
The applicant specified three grounds of jurisdiction error in his application and raised a further ground in oral submissions.
As the applicant was a litigant in person, the Court has interpreted the applicant’s grounds for review set out in his application, and his oral submissions at hearing, as broadly as possible.
Ground 1
The applicant submitted in his application that the first ground of jurisdictional error was that:
AAT made some mistakes because it has no knowledge of the traditions and cultures in my country. The land belongs to my parents but I considered it as mine too. This is our value that the land belongs to our whole family and I will fight for my family at all costs. We placed high value on our family land and it is not separated from each other even if the land is under my parents name.
The applicant was invited at the hearing of this Court to provide particulars in relation to this ground. He submitted that the Tribunal did not understand his culture. He said that the Tribunal found that as the land was in his parents’ names, it was ‘not his’. He said that according to his culture, the land was ‘essentially mine’ (Tp 7.29-44).
The first respondent submitted that in this ground the applicant was alleging that the Tribunal had made an error of fact in finding that the land belonged to the applicant’s parents, in circumstances where the applicant believed the land belonged to him as well, based on cultural practices. The first respondent argued that it was reasonably open to the Tribunal to find that the land belonged to his parents as the land was in his parents’ names (Tp 12.25-31). The first respondent contended that in any event a mistake of fact does not of itself normally constitute an error of law or a jurisdictional error. It was submitted that the Tribunal Decision did not turn on whether the land was owned by the applicant or his parents, such that ‘correction’ of the error would not have resulted in a different outcome (Tp 12.35-38). In the Court’s view, it is this last submission that is of pertinence.
It appears that the applicant is contending that the Tribunal fell into error by finding that as the applicant’s parents owned the house, the applicant would not have fought for compensation, without understanding that in his culture if his parents owned the house, he would also be closely connected to the residence. The Court is of the view that the Tribunal did not rely on ownership of the house to find that the applicant would not have fought for compensation in the way he claimed that he did.
In the Tribunal Decision, the applicant’s written statement accompanying his application to the Department, was extracted in totality ([2] of Tribunal Decision). In this statement, the applicant referred to a nuclear reactor being constructed ‘in front of my house’. He told the Tribunal at the hearing that he did not have property in China, but his parents had a house ([6] of Tribunal Decision). He also said that he lived there from birth until 16 years old ([6] of Tribunal Decision).
At [26] of the Tribunal Decision, the Tribunal referred to the applicant’s evidence that his parents’ house was expropriated by the government on 11 April 2021. It was open to the Tribunal to refer to the house as his parents’ house given the applicant’s evidence at [6] of the Tribunal Decision that the house was owned by his parents. There is no jurisdictional error disclosed in doing so.
The reasoning for the decision is found in [25 – 29] of the Tribunal Decision. In its reasoning, the Tribunal does not find or imply that the applicant’s evidence about fighting for compensation lacked credibility because the house was owned by his parents. Further, nowhere in the reasoning is there a finding that as the house was owned by his parents, the applicant did not face a real chance of serious harm or a real risk of significant harm.
The findings of the Tribunal were based on different reasoning. The Tribunal was not satisfied that the applicant’s evidence was credible based on his evidence about where he lived, how long he was allegedly detained, and how much compensation he received ([25-29] of the Tribunal Decision).
The ownership of the house was simply not an issue that was dispositive to the findings made by the Tribunal, and therefore no jurisdictional error has been demonstrated.
Ground 2
The applicant submitted in his application that the second ground of jurisdictional error was that:
My parents still live in the house and the land was taken by the government. It was not contraditory as the land and the house are separated
At the hearing, the applicant said that the Tribunal ‘skipped content’ in his answers, by moving on to other questions (Tp 8.24-34). He said that they did not understand that the land and house were separated.
The first respondent submitted that no misunderstanding took place on the part of the Tribunal as the applicant had stated in his written application that all his land was taken in 2011 and there was no mention of the house being retained (Tp 12.40-45). The first respondent submitted that it was open to the Tribunal to make this finding (Tp 13.1).
The Court accepts that the findings that the Tribunal made were open to it.
The applicant stated in his written statement accompanying his application that the nuclear power station was constructed in front of his ‘house’. He said that ‘all the land we were living on ground were taken by the government’ ([2] of Tribunal Decision). In his application, he provided one address where he lived from 1990 to 2015, implying that his house was not taken by the government. He also referred to hope that he ‘could use my hands to rebuild my home’ ([2] of Tribunal Decision) suggesting that they had lost the house. When the Tribunal put to the applicant at hearing that he only included one address in his protection visa application and had said he lived there from 1990 until May 2015 which did not suggest that his parent’s house which he had lived in since birth had been demolished, he said that the house was not demolished but the land was taken.
There is no reference in the Tribunal Decision to evidence provided by the applicant to the Tribunal, that his parents still lived in the house, which the applicant has contended in ground two.
In the findings made by the Tribunal ([25-29] of the Tribunal Decision), the Tribunal referred to contradictions in his evidence about where he lived, how long he was allegedly detained, and how much compensation he was paid. In respect of where he lived, the Tribunal noted that in his application his evidence was that all his land was taken, and that he had said that he had lived at one address until 2015. The Tribunal noted that at hearing, he said that his parents’ house and land were expropriated and that he moved from the place where he was born when he was 16 years old.
The Tribunal findings were based on ‘changing’ evidence about where he lived, how long he was allegedly detained, and how much compensation he received. In respect of where he lived, the Tribunal recorded that it did not accept that if his parents’ house had been demolished, that he would have identified only one address where he lived until 2015.
These findings were open to the Tribunal, based on the evidence provided by the applicant. The characterisation of a decision as legally unreasonable is not easily made out: Djokovic at [33] citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [52], and [135].
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [76], the High Court observed ‘unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’. The findings did not lack an evident and intelligible justification, based as they were on evidence before the Tribunal. There is, therefore, no jurisdictional error in the Tribunal Decision in relation to the findings referred to in ground two.
To the extent that the applicant contends that the Tribunal should have made a different decision based on the evidence, the Court cannot review the merits of a Tribunal decision, or reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Tran).
Ground 3
The applicant stated in his application that the third ground of jurisdictional error was that:
The whole interview is arranged with hasty without proper procedures. The telephone interpreting was terrible and didn't interprete all things I said. I said I didn't understand the definition of persecution; the interpreter showed very impatient and was reluctant to explain to me. AA T was also very impatient and too informal to conduct. The whole process is inaccurate and unfair. There was no real communication, no trust but prejudgements and prejudice. I can only feel the indifference and a lot of misunderstandings during the whole telephone interview. I should be given another chance with more fairness and justice.
The applicant made further submissions at the hearing. He said that the Tribunal hearing was ‘hasty’ and that it is difficult to gain trust in a telephone hearing (Tp 9.10-23). He contended that the Tribunal Member did not believe him. He said that tribunal members must conduct ‘countless hearings’ in a day, and that he was pre-judged, and the Member was impatient and did not give serious consideration to the matter (Tp 9.25-39). He also submitted that the interpreter did not understand what he was saying (Tp 10.1-13).
In this ground, the applicant is alleging bias by the Member and lack of procedural fairness.
The Court explained to the applicant that the evidence of the Tribunal processes and Tribunal hearing which the Court had before it, was contained in the Court Book and the Tribunal Decision. The Court asked the applicant if he could point to any bias or interpreter error which was demonstrated in the Court Book or Tribunal Decision. The Court also invited the applicant to make an application to the Court for leave to adduce additional evidence by way of provision of a transcript or audio tapes of the Tribunal hearing. The Court outlined the processes for obtaining this evidence (Tp 11.1- 14). To be fair to the applicant, the Court explained that were he to be unsuccessful in the proceedings, the costs of adjourning the matter to obtain this evidence would be likely to be borne by him.
As the applicant was a litigant in person, the Court explained in a broad manner the legal principles relating to actual and apprehended bias and interpreter error. The Court noted that the test for apprehended bias is whether a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the relevant conduct, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided: Refugee Review Tribunal, Re: Ex parte H (2001) 179 ALR 425 (Ex Parte H) at [27-28].
The Court referred to the case of Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 per Kenny J at [26] (Perera), where it was suggested that the standard for interpretation is not ‘perfection’ although interpretation must be acceptable. There may be jurisdictional error where the quality of interpretation is so poor or incompetent that it could be concluded that the Tribunal did not give the applicant an effective opportunity to give evidence: Perera per Kenny J at [17] and [20].
The applicant informed the Court that he did not wish to make an application for leave to provide further evidence of bias or interpreter error, as he was ‘not hundred per cent certain’ that he could prove bias or interpreter error through the evidence. He said that he believed that the Court would make a ‘fair judgment’ (Tp 11.23-47).
The first respondent submitted that the applicant’s grounds did not establish any actual or apprehended bias. The first respondent noted that such a claim must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 (Jia) at [69]. The first respondent submitted that the Tribunal complied with procedural fairness obligations (Tp 13.35-39). The first respondent noted that the applicant was invited to a hearing, which the Tribunal was entitled to hold by way of telephone pursuant to s 425A of the Act, and COVID-19 Special Measures Practice Direction – Migration and Refugee Division (Tp 13.14-19).
To show actual bias, it must be demonstrated that the Tribunal was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia at [71]-[72]. This test reflects an understanding that an allegation of actual bias is a serious matter which carries a ‘heavy onus’ (South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] per McColl JA). Actual bias requires prejudgment in a manner so committed to a conclusion that it is ‘incapable of alteration’ regardless of arguments or evidence Jia at [72] per Gleeson CJ and Gummow J.
As outlined to the applicant at the hearing, it is well-established that the test for an allegation of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided: Ex Parte H at [27-28].
Allegations of bias must be ‘distinctly made and clearly proved’: Jia at [72].
It would be rare for an allegation of bias to be established based upon the reasons for decision alone: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 [18], as is the situation in this matter. No bias is evidence in the Tribunal Decision.
The Tribunal’s obligations regarding procedural fairness were set out in Part 7 of the Act, as it then applied. The evidence suggests that the Tribunal complied with these obligations, including providing the applicant with a real and meaningful opportunity to present evidence at a hearing. The Tribunal wrote to the applicant on 17 February 2017 to acknowledge his application (CB 100). He was invited to provide material or written arguments in support of his case (CB 110). The Court Book does not show that any materials were provided although he was provided with this opportunity. On 19 May 2020, the applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments relating to the issues arising in his case. He was notified that to help slow the spread of COVID-19, the Tribunal was not holding in-person hearings (CB 109). He was invited to complete a ‘Response to Hearing Invitation’ form and return it to the Tribunal and to provide by seven days before hearing all documents he intended to rely on to establish that he met the criteria for the visa. (CB 110). No further documents were provided, according to the summary of relevant documents found in the Court Book.
In the Tribunal Decision, the Tribunal Member set out the legal principles relevant to the matter ([16-21] and [23] of the Tribunal Decision). The Tribunal Member extracted the applicant’s statement in full ([2] of the Tribunal Decision). The Tribunal Member noted in the decision that the Tribunal hearing was conducted with the assistance of a NAATI level 3 accredited interpreter in the Mandarin and English languages ([4] of the Tribunal Decision). The Tribunal outlined the evidence provided by the applicant at the hearing. ([5-15] of the Tribunal Decision).
The Tribunal Member noted that she had ‘specifically asked’ the applicant if there was anything else he wanted to say and he said that there was not ([15] of the Tribunal Decision). The Tribunal Member stated in [22] that ‘while the Tribunal spoke to the applicant by telephone, the applicant confirmed that he had stated everything he wanted to say and the Tribunal’s observations were that the hearing flowed in an unobstructed manner and the applicant was given ample opportunity to submit all the evidence that he wanted the Tribunal to consider.
The Court considers that in the circumstances summarised above, the Tribunal gave the applicant a fair opportunity before and during the hearing to provide all the evidence and arguments and evidence that he wanted the Tribunal to consider.
The Tribunal Decision does not point to any actual or apprehended bias demonstrated by the Tribunal Member, either in her manner or in complaints expressed by the applicant. At the hearing before this Court, the applicant did not draw attention to any such examples. No actual bias is proven by evidence, and the Court is not satisfied that a fair-minded lay observer might reasonably apprehend that the Tribunal Member did not bring an impartial mind to the resolution of the question to be decided: Ex Parte H at [27-28].
The Court is satisfied that no actual or apprehended bias has been demonstrated.
A failure to provide a competent interpreter to assist a non-English speaking applicant may constitute a ground for review within s 476 of the Act, where it involves a failure by a tribunal to comply with s 425(1) and 427(7) of the Act: Perera per Kenny J at [17] and [20]. There may be jurisdictional error where the quality of interpretation was so poor or incompetent that it can be concluded that the tribunal did not give the applicant an effective opportunity to give evidence: Perera per Kenny J at [38] to [41]. In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 the court held that there must be ‘material errors of substance’ that may well have ‘affected the decision in a real way: at [10].
Proper evidence must be provided of interpreter error: BTQ16 v Minister for Immigration and Border Protection [2019] FCCA 2101. The applicant bears the onus of provision of this evidence. The evidence before the Court does not demonstrate interpreter error. There is no correspondence in the Court Book where the applicant refers to interpreter error, and there is no reference to complaints about the interpreter in the Tribunal Decision. The processes for obtaining a transcript or audio tapes of the Tribunal hearing were explained to the applicant by this Court, but the applicant decided not to adduce that evidence. The Tribunal Member noted that the applicant had stated everything he wanted to say and observed that in her view the hearing flowed in an unobstructed manner and the applicant was given ample opportunity to submit all the evidence that he wanted the Tribunal to consider.
The Court is not satisfied that interpreter error in the Tribunal hearing has been demonstrated.
No jurisdictional error is established in Ground 3.
Ground raised at the hearing
At the hearing of this Court, the applicant raised a further ground of error. He claimed that the Tribunal did not consider the influence the nuclear reactor would have on the health of the applicant (Tp 15.5-13).
The first respondent submitted that at [28] of the Tribunal Decision, the Tribunal records that it did not accept that a nuclear reactor was constructed in front of the house or that the applicant’s health was in danger as a result (Tp 15.18-22).
In this ground, the applicant appears to be alleging that the Tribunal did not consider an integer of the claim. It is clear from [28] of the Tribunal Decision that the Tribunal did consider the issue of the impact of the nuclear reactor on the applicant’s health, finding that the Tribunal did not accept that a reactor was constructed or would have an adverse impact on health.
In this ground, the applicant may also be taking issue with the Tribunal’s finding that it did not accept the applicant’s evidence about the nuclear reactor. To the extent that the applicant is challenging that finding, the Court cannot engage in impermissible merits review: Wu Shan Liang at [272].
The findings were open to the Tribunal based on the process of reasoning in which it engaged: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [133], noting that the court suggested that a court should be slow, although unwilling to interfere, at [130]. The findings had an evident and intelligible justification: Li at [76] in that they were based on factual findings as set out in [25-27] of the Tribunal Decision.
No jurisdictional error is demonstrated in respect of the findings about the nuclear reactor.
AMENDMENTS TO THE MIGRATION ACT 1958 (CTH)
Since May 2025, the portfolio of the Department is now named Department of Immigration and Citizenship. The Court has made an order substituting the Department of Immigration and Citizenship as the first respondent in this proceeding.
The Act was amended on 14 October 2024 after the commencement of the Administrative Appeals Tribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Consequential Act).
This judgment concerns a decision of the former Administrative Appeals Tribunal. References in this decision to the Act are to the Act at the time of the Tribunal Decision, unless otherwise stated.
Pursuant to Item 10 of Schedule 16 of the Consequential Act, the ART is substituted as a party in all pending proceedings. Item 25 further provides that pending proceedings are to continue under the new legislative regime.
In the circumstances, this Court has made an order substituting the ART as the second respondent in this proceeding.
CONCLUSION
For the reasons set out above, the application for judicial review must be dismissed as none of the grounds raised by the applicant establish jurisdictional error.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 30 July 2025
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