DUF19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 926
•16 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUF19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 926
File number(s): SYG 2558 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 16 June 2025 Catchwords: MIGRATION – Administrative Review Tribunal – where there were significant discrepancies in the applicant’s evidence – adverse credibility findings – where the grounds of judicial review do not reveal jurisdictional error – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36(2)(a) 36(2)(a)(aa), 65
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83; [2018] FCAFC 133
BT17 v Minister for Immigration and Border Protection [2020] HCA 34
Charisteas v Charisteas [2021] HCA 29
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Fox v Percy [2003] HCA 22
Minister for Immigration v Jia (2001) 205 CLR 507
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 5 June 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Smith (Australian Government Solicitor) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2558 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUF19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
16 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,400.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of the Administrative Review Tribunal’s (“the Tribunal”) decision dated 29 August 2019 affirming a decision of a delegate of the Minister for Immigration (“the delegate”) to refuse to grant the applicant a protection visa (“the visa”) under s 65 of the Migration Act 1958 (Cth) (“the Act”).
For the reasons outlined below, the application should be dismissed.
BACKGROUND
The applicant is a citizen of India. He arrived in Australia on 31 July 2025 on a business visitor visa.
On 31 August 2015, the applicant lodged an application for a protection visa with the assistance of a Registered Migration Agent.
On 20 June 2016, the delegate refused the applicant’s protection visa application.
On 7 July 2016, the applicant lodged an application for review of the delegate’s decision.
In 2018, the applicant returned to India for approximately 50 days.
On 21 August 2019, the applicant’s representative provided additional material to the Tribunal, which comprised of:
·Submissions from the Applicant
·A signed Declaration by the Applicant
·An Affidavit of the Applicant’s mother
·An affidavit of the Applicant’s sister; and
·A medical certificate of the Applicant's mother
On 22 August 2019, the applicant attended a Tribunal hearing, the Applicant claimed protection on the ground that he would be harmed by Hindus as he is a Muslim [8].
The applicant’s claim for protection can be summarised as follows:
·On 4 May 2015, the applicant travelled to West Bengal on business, where he was harassed and threatened by a Hindu mob on the basis of being Muslim, extorted for 200,000.00 Indian rupees (approximately AUD $3,600.00), had his possessions destroyed, stripped naked and chased away [9]. When the applicant reported this event to the police, the police accused him of attacking Hindus and threatened him if he did not leave [9].
·On 10 May 2015, the applicant returned to his home village. From 15 May 2015, he started receiving calls from Hindus stating that they would kill him if he did not pay ransom [27]. The applicant had reason to believe that the Hindu mob from West Bengal were behind the calls, as during the calls the extortionists repeatedly stated that the applicant would not be spared, unlike the incident in West Bengal [27]. The applicant reported the calls to the police. The police accused the applicant of making false accusations [27].
·In 1985, the applicant started operating a small textile trading business, however prior to leaving India, the applicant had to cease operating the business due to harassment from Hindu people in the local area [42].
·Since the election of the current Prime Minister of India, the maltreatment of Muslims by Hindus and the failure of the Indian government and authorities to provide protection have worsened significantly [73]. Hindu cow vigilantes attack Muslims in India, including someone in the applicant’s neighbouring village. The applicant feared that he would also be harmed by Hindu cow vigilantes [73].
At the Tribunal hearing, the applicant claimed that the only reason as to why he returned to India in 2018 was to visit his seriously ill mother [53]. The applicant stayed in a hospital four hours from his home village for three weeks, until his mother was discharged [53]. The applicant then stayed in his home village for one month, with his mother, wife and children, before returning to Australia [53].
On 29 August 2019, the Tribunal affirmed the decision under review. On 1 October 2019, the applicant lodged an application for judicial review.
THE TRIBUNAL’S DECISION
At [2] – [6], the Tribunal set out the criteria for a protection visa as prescribed under s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal had regard to Ministerial Direction No. 56 and took into account the Procedures Advice Manual 3 (“PAM3”) guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) expressly for protection status determination purposes.
The Tribunal made adverse credibility findings based on extensive concerns as to discrepancies between the applicant’s written and oral evidence, which can be categorised and summarised as follows:
4 May 2015 Hindu Mob Incident
In relation to the applicant’s 4 May 2015 incident, the Tribunal at [9]-[26] raised the following concerns:
·The applicant omitted from his written evidence that he was chased out of the hotel by a Hindu mob.
·Whether the Hindu mob had stolen the 200,000.00 Indian rupees from the applicant’s hotel room as he claimed at the Tribunal hearing, or whether he had given it to the Hindu mob in response to their threats to kill him.
·The fact that the applicant failed to mention at the Tribunal hearing, until prompted, that he was stripped naked and chased by the Hindu mob.
·Whether, upon the applicant’s attempt to report the incident to the police, the police threatened him or advised him to return to his hometown.
In response to the discrepancies in the applicant’s account and the account recorded in his statutory declaration, the applicant claimed he suffered from memory loss and had only recounted to the Tribunal what he could remember [18].
The Tribunal noted at [20] that in response to being questioned as to why the applicant did not give evidence to the Tribunal that he was chased naked out of the hotel until he was prompted, the applicant claimed that this was due to being ashamed. At [21], the Tribunal rejected this explanation, reasoning that if the applicant was willing to state in his declaration that his attackers stripped him naked and chased him away, then the applicant could reasonably be expected to give that account to the Tribunal when initially questioned about what happened on this particular occasion.
At [26], the Tribunal noted that the applicant, in response to the raised discrepancies, displayed a willingness to invent or adopt earlier evidence when he saw it as advantageous to do so and in an attempt to conceal inconsistency in his accounts. The Tribunal was unimpressed by the Applicant’s belated adoption of evidence in his statutory declaration only after being reminded of it. The Tribunal found that the applicant did not provide an adequate explanation for the inconsistencies and found that the inconsistencies reflected poorly on the applicant’s credibility.
Harm Suffered on Return to His Home Village in 2015
At [33], the Tribunal noted that it put to the applicant that the account he gave to the Tribunal about the harm he suffered on return to his home village in 2015 was inconsistent with his account of the same period in his statutory declaration. In the applicant’s declaration, the only harm the applicant refers to during this period is receiving threatening telephone calls from people trying to extort money from him. The applicant’s declaration mentions that this caused him and his family to be afraid and resulted in the applicant feeling as if he were being watched. The applicant’s declaration makes no mention of the claims raised at the Tribunal Hearing that on a number of occasions, in more than one location, the Hindus beat him, sometimes so seriously that he had to have medical treatment for his injuries.
In response to this concern, the applicant said that he forgot to mention those claims in his declaration. The Tribunal rejected that response at [34], on the basis that if the Applicant was relating a truthful account, he would have mentioned it in his declaration.
At [34], the Tribunal reminded the Applicant of an affidavit made by his sister on 16 May 2018, in which she also referred to this particular period. At [35], the Tribunal put to the Applicant that his sister’s affidavit made no claim that, in this period, the Applicant was beaten by Hindus a number of times. In response, the applicant said that his sister was not present on the occasions he was beaten. The Tribunal rejected that response on the basis that the applicant said that his sister and mother lived in the same home as him in India. If his sister knew that he was receiving threatening telephone calls, she would also have said that he was attacked a number of times, if these events truly happened.
The Tribunal also put to the applicant at [36], that in his most recent ‘submissions’ of 16 August 2019, he made a number of statements about his protection claims, however he omitted the claim in relation to the harm suffered on return to his home village in 2018. Ultimately the Tribunal rejected the applicant’s response that that he thought that those claims would have been mentioned and perhaps they were omitted by mistake.
Overall, the Tribunal found at [36], that the applicant’s failure to mention in his statutory declaration, his submissions and the affidavit of his sister, his claims about being attacked in his home village in 2015, as well as his failure to provide a satisfactory explanation for such a failure, reflected poorly on his credibility.
The Applicant’s Business
The Tribunal noted at [37] that the applicant’s evidence regarding the business he operated in India was inconsistent. The applicant told the Tribunal that in 1985, he started operating a small textile trading business. The applicant said that he operated this business from his home. When asked if he did this until leaving India to come to Australia in July 2015, the applicant said ‘not that business’. The applicant said that he could not operate that business and, for that reason, travelled to a country in the Middle East in 2014 to work. Further in his evidence, the Applicant said that for almost five years before going abroad in 2014, he had closed his business. At the Tribunal hearing, the Applicant said he stopped operating the business because of harassment from Hindu people in his local area.
At [42], the Tribunal noted that it put to the applicant that his evidence in his statutory declaration, to the effect that he continuously operated his business from 1985 virtually up until just prior to leaving India in July 2015 and that the business actually prospered and was expanding over this period, was inconsistent with his evidence given to the Tribunal at the hearing.
In response to this concern, the applicant said that he did not give this evidence in his statutory declaration because the content of the declaration was simply what was in his mind at the time it was prepared. The Tribunal rejected this explanation because it could see no plausible reason for the applicant not to remember, when preparing his declaration, that, at some stage, he had to close his business due to harassment from local Hindus.
At [44], the Tribunal found that the applicant’s evidence about his business was inconsistent, he has not provided an adequate explanation for that, and this reflected poorly on his credibility.
The Applicant’s Return to India in 2018
At [55], the Tribunal noted that it put to the applicant that it had difficulty accepting that, if he left India in fear for his life in July 2015, he would take the risk of returning there in late 2018. In response, the applicant said that he felt that he should return in the event that something happened to his mother.
The Tribunal further put to the applicant at [56] that it had difficulty accepting that after his mother came out of the hospital, he remained for a further month in the same city in which his home village was located and took the risk that the people he claims to fear might locate and harm him.
As such, at [60], whilst the Tribunal acknowledged the applicant’s wish to see his mother if she was seriously ill, however the measures the applicant states he took for his safety on return to India in no way overcome the Tribunal’s concern about him returning to India in his claimed circumstances and remaining there, after seeing his mother, for a further month, in the very city he fled in 2015 to save his life. At [61], after considering the above concerns cumulatively, the Tribunal found that the applicant was not a witness of truth and that the account of events on which his protection claims were based are false.
At [66], given that the applicant was not a witness of truth, the Tribunal found that it had no credible evidence as to why he left India in July 2015. The Tribunal also found that it had no credible evidence as to why the applicant went back to India in 2018 and why he did not remain there. The Tribunal found it had no credible evidence before it as to why the applicant remained in Australia and why he does not want to return to India. The Tribunal found that there was no credible evidence before it that the applicant suffered harm of any kind in India, and there was no credible evidence that any member of his family had suffered harm.
The Tribunal then turned to an assessment of the risk of the applicant suffering serious harm in India on the basis of his religion.
At [67], the Tribunal noted that whilst the Department of Foreign Affairs country information discussed incidents of violence and riots involving harm to Muslims, the Tribunal understood that these incidents are sporadic and isolated. At [68], the Tribunal found that while there have been attacks against Muslims, when considered in the context of the size of the Muslim population in India, these attacks do not occur on a scale on which the Tribunal could find that there is a real chance that the applicant would have suffered serious harm on this ground. The Tribunal also inferred that while Muslims may encounter both official and societal discrimination, this is low-level and not to a degree that equates with a real chance of the applicant suffering serious harm on that basis. The Tribunal found that the risk of the applicant suffering serious harm in India on the ground of his religion was remote.
At [69]-[70], the Tribunal rejected the claim raised by the applicant during the Tribunal hearing that incidents of attacks against Muslims are not reported.
The Tribunal noted at [71] that it had no credible evidence that the Applicant or any member of his family suffered harm in India on the basis of religion. This finding included harm in the form of being attacked or in the form of discrimination. There was no credible evidence before the Tribunal that the applicant’s family in India had suffered harm since his departure in 2015. The Tribunal found that whatever apprehension the applicant may feel, on return to India, he will be able to resume his life there, including, if he seeks to, operating a business as he appears to have done before he left India.
The Tribunal acknowledged at [72], that whilst the applicant complained that country information referred to in the decision of the delegate was out of date, the Tribunal considered the country information relied on to be sufficiently recent so as to enable the Tribunal to accurately assess the risk of the applicant suffering serious harm.
Whilst the Tribunal acknowledged at [76] the applicant’s claim that the maltreatment of Muslims had increased under the rule of the current Prime Minister, the Tribunal was not satisfied that this continued pattern takes place or will take place in the reasonable future on a scale on which the Tribunal could find that there was a real chance that the applicant will suffer serious harm.
With respect to the claim made by the applicant’s sister in her affidavit about Muslim businessmen being murdered, the at [77] the Tribunal found that it had no credible evidence that the Applicant suffered harm in India, and did not see any elevated risk to the Applicant of suffering harm as a Muslim businessman. The Tribunal found that, based on country information, there was not a real chance that the applicant would suffer serious harm in India as a Muslim businessman.
At [79], the Tribunal found that there was not a real chance that the applicant would suffer serious harm in India, nor did he hold a well-founded fear of persecution within the meaning of s 5J(1) of the Act. Similarly, the Tribunal found that the applicant did not meet the complementary protection criterion.
At [80], the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act. The Tribunal went on to consider the alternative criterion in s 36(2)(aa) of the Act, with the Tribunal concluding that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal noted at [81], that there was no suggestion that the Applicant satisfied s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal concluded that the Applicant did not satisfy the criterion in s 36(2) of the Act.
At [83], the Tribunal affirmed the decision not to grant the applicant a protection visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances eight grounds of judicial review contained in an Originating Application filed on 1 October 2025. They are as follows:
1. The review by the Administrative Appeals Tribunal was unfair because it ignored relevant material.
2. The Administrative Appeals Tribunal had jurisdictional error as it performed an incorrect interpretation of the applicable law to the facts. This is because the Member who performed the review had interpreted the law incorrectly to the facts.
3. The Administrative Appeals Tribunal ignored relevant material that 1 had presented. It had falsely considered a contrast between my earlier statutory declaration, and my evidence to the Tribunal on the day of the hearing. The Member had considered irrelevant material and considered this as a contrast which is indeed false. As such, the Administrative Appeals Tribunal had identified wrongs issues, and based the case on irrelevant material, that had in tum produced an incorrect interpretation and application of the applicable law to the facts.
4. The review by the Administrative Appeals Tribunal was unfair as it had made constant tests of credibility to me in numerous occasions throughout the review. The Tribunal had put to me that I made a discrepancy in that in my statutory declaration I had said that l had given the money to the Hindu mob for the safety of my life, and that in the Tribunal l had said that the money was stolen by the Hindu Mob from me. I do not understand how the Tribunal can interpret these two interpretations so differently. To me, giving the mob money for the safety of my life, and being robbed by them is essentially the same thing. I strongly believe that this is jurisdictional error, as the Tribunal had identified a wrong issue, and as such had provided an incorrect interpretation of the applicable law to the facts.
5. I also submit that jurisdictional error also occurred as the review by the Administrative Appeals Tribunal failed to consider claims. This is because the Tribunal had stated that the evidence that I had stated in the Tribunal was a new account. This is completely incorrect as I was providing greater detail to the facts. As such the Tribunal had failed to consider these claims and I consider this a jurisdictional error.
6. I submit that the Tribunal ignored relevant material as it did not consider the material if presented on the hearing of my neighbour in India being murdered by Hindu cow vigilantes who had heard that my neighbour had cooked beef. I find this as very relevant material and should have been considered in the review.
7. I also submit that review by the Administrative Appeals Tribunal applied incorrect tests and did not consider my protection claims but was more concerned about my specific memory of incidents that occurred years ago. I feel that it was bias by the Tribunal to not consider the considerable impact of my persecution in India, and the Tribunal did not apply the law correctly as the Tribunal did not go through the protection provisions of the Migration Act and consider my fears of persecution through the law justly.
8. I submit that the review by the Administrative Appeals Tribunal maintained jurisdictional error as the Tribunal ignored relevant material that clearly demonstrated my persecution in India. I had provided an Affidavit from my wife, and an Affidavit from my sister that had presented their serious concerns of the safety of my life, however the Tribunal ignored the relevant material.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case. The applicant told the Court that Muslims are living in fear in India. The Muslim community is a minority community with no voice in the media or with those in control. He stated that ‘our voice is not heard”.
The applicant was reminded that these matters went to the merits of the Tribunal decision and not whether there was jurisdictional error in the Tribunal decision. He was then asked if he wished to address the Grounds of Judicial Review set out in his initiating Application. He replied that he “had nothing to say”.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The Minister submits that the applicant’s eight grounds of judicial review contain a large degree of overlap.
Ground One & Eight
The applicant’s assertion contained in grounds one and eight is factually incorrect, being that the Tribunal failed to consider relevant material, including an affidavit from the applicant’s wife and sister.
The Minister asserts that the applicant did not provide an affidavit from his wife. The Minister notes that the applicant did however provide an affidavit from his sister, as well as an affidavit from his mother, both of which were expressly considered by the Tribunal at [62]-[63].
Ground Two
Ground two is unclear. Ground two generally asserts either that the Tribunal incorrectly interpreted the law or incorrectly applied that law to the facts. However, in the absence of further particulars, Ground two does not reveal jurisdictional error.
Ground Three and Five
Grounds three and five take issue with the inconsistencies identified by the Tribunal between the applicant’s earlier statutory declaration and his account at the Tribunal hearing.
To the extent that the applicant contends that the inconsistencies identified were not in fact inconsistencies, but rather the applicant providing greater detail of the facts, the applicant has not identified the finding that he seeks to impugn. Rather, the Tribunal set out the inconsistencies in some detail and explained its concerns at [9] – [23]. Further, the Tribunal’s findings were reasonably open to it and have a logical, rational and probative basis. In fact, the Tribunal decision noted that it put the various inconsistencies to the applicant (for example at [18], [33], [35] and [42]), and explained why it was not satisfied with the applicant’s responses (for example at [21], [23], [26], [34] and [43]).
Ground Four
Ground four similarly takes issue with the inconsistencies identified by the Tribunal and the Tribunal’s consequent adverse credibility findings.
At [18], the Tribunal put to the applicant that his account at the Tribunal hearing was inconsistent with his statutory declaration in a number of respects, including that:
a.His declaration “conveys the impression that he was attacked by Hindus in a particular district he visited to meet people for his business”, but “omits any mention of a Hindu mob chasing him into the hotel where he was staying and attacking him in his room”, which he orally submitted to the Tribunal [11];
b.His declaration conveys that the “people who attacked him did not so much as steal his money, as he told the Tribunal, but he gave that money to them in response to their threat that they would kill him” [12]; and
c.His declaration conveys that “the people who attacked him stripped him naked and chased him away”, whereas he told the Tribunal that “these people attacked him and beat him, stole his money and simply left” [13]–[14].
Ground four takes issue with the second discrepancy noted at paragraph (c) above, namely that the Tribunal drew a distinction between the applicant handing over money in response to a threat and attackers forcefully stealing his money.
The Tribunal noted that the applicant sought to explain this discrepancy by stating that “he suffered from memory loss” at [19], and “it was only after being reminded of this account in his declaration that he then remembered it” at [22]. The Tribunal’s reasons at [22]–[23] make clear that its reason for not accepting the applicant’s explanation is that he “belatedly adopted” the version of events in which he was threatened, rather than simply robbed, “once reminded of it by the Tribunal”. This reasoning was plainly open and is a rational basis for rejecting the applicant’s explanation.
This particular discrepancy was one of numerous other identified inconsistencies and defects in the applicant’s evidence that independently led to the Tribunal’s ultimate conclusion. As such, this ground does not establish jurisdictional error in the Tribunal’s adverse credibility findings: AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83; [2018] FCAFC 133 at [41(d)].
Ground Six
Ground six asserts that the Tribunal failed to consider material that the applicant presented on his neighbour’s murder by Hindu cow vigilantes as a result of the neighbour cooking beef. The Minister submits that it is incorrect, and in fact, the Tribunal did consider this at various points in the decision record, for example at [62], [69], and [73].
Ground Seven
The Minister submits that ground seven is vague and refers to bias by the Tribunal.
An allegation of bias must be distinctly made and clearly proved: Minister for Immigration v Jia (2001) 205 CLR 507; [2001] HCA 16 at [69].
As the applicant does not particularise this claim, and there was nothing that reasonably suggested bias in the Tribunal’s decision.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.
If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Ground one
Ground one is an assertion that the Tribunal was unfair because it ignored relevant material. No particulars are provided as to what material was ignored. In these circumstances, no jurisdictional error arises. Ground one has no merit.
Ground two
Ground two is a bare assertion that the Tribunal member who performed the review interpreted the law incorrectly to the facts. Again, this is a bare assertion that is unsupported by any particulars. In these circumstances, no jurisdictional error is revealed. The ground has no merit.
Ground three, four and five
Grounds three, four and five take issue with the inconsistencies highlighted by the Tribunal between the applicant’s evidence and his earlier statutory declaration. Ground three asserts that the member considered irrelevant material and considered this as a contrast to his earlier evidence. Ground four takes issue with the Tribunal’s findings of inconsistencies in relation to the assertion that the applicant had given money to the Hindu mob for the safety of his life.
Ground five asserts that the conclusion of inconsistency was not available, as the applicant was simply giving greater detail to his account.
Read as a whole, the Tribunal correctly found there were significant inconsistencies with the applicant’s evidence. It is clear that the Tribunal sought to highlight these to the applicant at a number of points, including at [18], [33], [35] and [42]. The Court is satisfied that the Tribunal considered the explanations given by the applicant as to why there were inconsistencies in his evidence, but the Tribunal was not satisfied with his explanations.
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of the evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62] per Nettle J.
While credit findings are not immune from attack on the ground of legal unreasonableness, the Court is satisfied there was nothing illogical, irrational or legally unreasonable in the ultimate factual findings made by the Tribunal, that the applicant was not a witness of truth, given the multiple concerns it had with the applicant’s credibility. The Tribunal was cognizant of the claim by the applicant that he suffered from memory loss but noted that he belatedly adopted a different version when reminded of his previous evidence.
The Court is satisfied that the adverse credibility conclusions arrived at by the Tribunal were open to it, on the evidence before it and for the reasons it gave. There were significant discrepancies between the evidence given by the applicant at the Tribunal hearing as compared to his previous statutory declaration. Grounds three, four and five have no merit.
Ground six
Ground six is a claim that the Tribunal did not consider material that the applicant presented in relation to his hearing of his neighbour in India being murdered by Hindu cow vigilantes. This claim cannot be sustained. The Tribunal specifically referred to and considered this claim at [69] and [73]- [74]. The Tribunal rejected the claim based on country information that the maltreatment of Muslims in India does not take place on a scale that equates to a real chance of the applicant suffering serious harm [75]. Ground six has no merit.
Ground seven
Ground seven is a broad claim of bias. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. It is a rare and exceptional case that bias will be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. There is nothing in the material before the Court that would indicate that the Tribunal’s decision was infected by actual bias.
The law in relation to apprehended bias is well known. In Charisteas v Charisteas [2021] HCA 29 at [11], the following was said:
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
There is no evidence before the Court that would indicate that there was anything in the way the Tribunal member conducted the hearing which would support a finding of apprehended bias. In circumstances where there are no particulars to support the claim, the ground has no merit.
Ground eight
Ground eight is a claim that the Tribunal ignored relevant material as the applicant provided an affidavit from his wife and his sister. As noted by the respondent, while the applicant did provide an affidavit from his sister, which was considered at [62], the Tribunal also had before it an affidavit from the applicant’s mother. There was, however, no affidavit from the applicant’s wife. In these circumstances, the assertion is factually incorrect, and the ground has no merit.
DETERMINATION
As none of the assertions of jurisdictional error have merit, the application must be dismissed with costs.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 16 June 2025
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