DZP19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1137
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DZP19 v Minister For Immigration and Multicultural Affairs [2025] FedCFamC2G 1137
File number(s): SYG 2654 of 2019 Judgment of: JUDGE CLEARY Date of judgment: 25 July 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing protection visa – whether Tribunal considered country information - whether the Tribunal considered applicant’s evidence - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 424AA, 476 Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Attorney-General v Quin (1990) 170 CLR 1
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 18 June 2025 Place: Parramatta Applicants: In person Solicitor for the Respondents: Ms S Lloyd of Minter Ellison ORDERS
SYG 2654 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DZP19
First applicant
DZV19
Second applicant
DZW19
Third applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
3.The first and second applicants pay the first respondent’s costs fixed in the amount of $5,600.
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 CLEARY
INTRODUCTION
This is an application for judicial review, made under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) (now the Administrative Review Tribunal) dated 27 March 2024. The Tribunal affirmed the decision of a delegate of the first Respondent refusing to grant the applicants a Protection (subclass 866) visa (protection visa) under s 65 of the Act.
Courts have a limited role in judicial review proceedings: Attorney-General v Quin (1990) 170 CLR 1 at [35]-[36], Abebe v Commonwealth (1999) 197 CLR 510 at [195] and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23]. In reviewing the Tribunal’s decision, the Court does not consider the merits or wisdom of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. The task of the Court is merely to rule upon the lawfulness or legality of the decision by reference to the complaints made about it: Djokovic at [17].
To obtain the relief sought the applicants must prove that the Tribunal’s decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76]. Jurisdictional error, that is, a serious legal error, results in an administrative decision lacking any legal force: LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] – [3] (LPDT). In most cases, to constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32].
FACTUAL BACKGROUND
The first applicants, citizens of Nepal, are comprised of the first applicant (first applicant), his wife (second applicant) and their daughter (third applicant).
On 24 September 2014, the first and second applicants applied for protection visas. The first applicant was listed as the primary first applicant and the second applicant was listed as a member of the family unit.
On 23 April 2015, the first applicant attended a protection visa interview with a delegate in relation to his protection claims.
On 1 July 2015, the third applicant was born.
On 16 March 2016, an application for a protection visa was lodged on behalf of the third applicant.
On 4 May 2016, the first applicant attended a protection visa interview with a delegate in relation to the third applicant's protection claims.
On 20 May 2016, in two separate decisions, a delegate of the Minister refused the first and second applicant's protection visa application, and the third applicant's protection visa application.
On 16 June 2016, the first applicant sought review of the delegate's decision with respect to the first and second applicants in the Tribunal.
On 5 July 2016, the first applicant sought review of the delegate's decision with respect to the third applicant in the Tribunal.
On 16 September 2019, the Tribunal invited the first applicant to withdraw the review application lodged with respect to the third applicant as it considered it to be a duplicate. The first applicant withdrew the third applicant’s review application.
On 1 October 2019, the applicants appeared before the Tribunal to give evidence and present arguments, assisted by an interpreter in the Nepali language.
On 2 October 2019, the Tribunal affirmed the decision not to grant the first applicants protection visas.
TRIBUNAL DECISION
The Tribunal commenced its decision by setting out the relevant background, the relevant legislative criteria for protection visas, including referring to the relevant Ministerial Direction and refugee guidelines, PAM 3, which the Tribunal is required to take into account.
The Tribunal set out its findings and reasons after considering the material contained in the departmental file, the Tribunal’s file, the contents of the two delegates interviews, which the Tribunal listened to, and the first applicant’s oral evidence which he provided to the Tribunal at the hearing on 1 October 2019. The Tribunal noted that where relevant, it also considered country information about certain claims.
The first applicant claimed to fear harm in Nepal from Maoists, and that his family were targeted because of his father, who was a judge/government official or had been previously a member of a political party in Nepal.
The Tribunal found that the first applicant was not a witness of truth, that his claims were not credible and that he had fabricated them for the purpose of claiming protection in Australia. It did so for a number of reasons at paragraphs [44]-[55] of its decision.
First, the Tribunal found the oral evidence the first applicant provided at the Tribunal hearing was inconsistent to his previous evidence given in his protection visa application and at his departmental interviews before a delegate on 23 April 2015 and 2 May 2016. The Tribunal was not persuaded by the first applicant's response to the Tribunal's questioning about the first applicant’s inconsistent evidence, namely that he was under pressure and unemployed at the time of the interviews with the delegate. The Tribunal was satisfied that, if Maoists had threatened the first applicant as claimed, he would have mentioned this to the delegate. The Tribunal considered that the first applicant made broad claims in his protection visa application that were not true and he had attempted to fill those gaps with detail that, if true, would have been spoken about at the delegate interviews.
Second, the first applicant's oral evidence about his residential history in Nepal was inconsistent and the Tribunal considered the first applicant's explanation that he 'forgot to mention his relocation' to be 'incredulous', given he claimed to have lived there for 2.5 years prior to his departure to Australia.
Thirdly, the Tribunal found that there were inconsistencies in the first applicant's evidence about his employment history in Nepal. He told the Tribunal that he worked for an airline in administration, and he held that job for about two and a half years. Before that, he said he was in Biratnagar helping run his family household, but that he had worked in private companies in administration between 6 and 7 months to one year. He said he did this for about two or three companies. The Tribunal noted that the first applicant gave evidence that he had to stop working at these different companies because he had been surrounded by his persecutors on his way from work, and that he became scared after each occasion and did not return to work. The Tribunal found this evidence was in conflict with the details of the first applicant's employment history he provided in his protection visa application form. In that form, he declared that his occupation before he came to Australia was that of a 'Student'.
Fourth, the Tribunal had concerns with the fact that the first applicant first arrived in Australia in 2008 but did not lodge a protection visa application until 2014, despite claiming that he left Nepal because he feared harm and that is why he started looking at overseas options in 2008. Additionally, the first applicant lodged his protection visa application six weeks after his temporary work visa was cancelled. This suggested to the Tribunal that the first applicant had not experienced the harm he alleged and only lodged a protection visa as a means to remain in Australia for purposes not connected with Australia's protection obligations.
At paragraph [56] of its decision the Tribunal came to the following conclusion based on its analysis of the first applicant’s evidence:
… the Tribunal comes to the conclusion that the first applicant is not a witness of truth and has fabricated his claims for protection in respect of being targeted by Maoists, that he or his family were targeted because of his father (either because he was a Judge/Government official or had previously been a member of a political party). The Tribunal is not satisfied that the first applicant or his family were ever threatened, asked for donations by Maoists, had any issues with the Modeshi movement in Nepal, or that he relocated in Nepal to avoid harm, or that he would be targeted because he was perceived to be wealthy upon his return to Nepal. The Tribunal is satisfied that these claims were fabricated, and that the protection visa was filed for purposes not connected with Australia's protection obligations. Accordingly, the Tribunal is not satisfied that there is a real chance of serious harm, or a real risk of serious harm, to the first applicant if he were to be returned to Nepal, now or in the reasonably foreseeable future on account of these claims.
The Tribunal then dealt with the first applicant’s claim based on his health (his thyroid condition). With respect to this claim, the Tribunal had regard to independent country information which suggested that the Nepalese Constitution guaranteed basic health services and that the country had a variety of public and private health care facilities. It found any deficiencies in the Nepalese health system could not be attributed to a deliberate policy denying health care to the first applicant and did not give rise to serious or significant harm.
The Tribunal then considered the claims raised with respect to the first and second applicant’s daughter, the third first applicant, being tortured, abducted or kidnapped. The Tribunal had regard to independent country information which noted that girls in Nepal were customarily discriminated against but found that the first applicant and second applicant were supportive of the third first applicant being able to pursue education development and had views about the equality of women that were comparable to Australian values.
The Tribunal accepted that women in Nepal faced high levels of societal and official discrimination and a moderate risk of violence but noted that the possibility of some form of criminal activity did not mean there was a real risk of serious harm or risk chance of significant harm. The Tribunal considered that the risk to the third first applicant was too remote to amount to the risk of serious harm or significant harm.
The Tribunal affirmed the decision not to grant the applicants protection visas on the basis that it was not satisfied that neither of the applicants satisfied the criteria set out in paragraphs 36(2)(a) or (aa) of the Act and were unable to satisfy paragraphs 36(2)(b) or (c) of the Act.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 15 October 2019, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision dated 2 October 2019. The application contains three grounds of review of that decision. They are (as written):
1.We were deprived fair justice, DHA and AAT both did not properly investigate about the current political situation in Nepal
2.The evidence and current situation in Nepal was totally ignored
3.Our life will be in danger, we are in risk of losing our life if we return. This fact was ignored by DHA and AAT
On 17 February 2025, a Registrar of this Court made an Order for both the applicants and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicants did not file any documents in accordance with this Order.
The first respondent lodged their written submissions as required by the Order. In the same Order, the first applicant was appointed as litigation guardian for the third applicant, a minor, in these proceedings.
On 6 May 2025, these proceedings were docketed to me and set down before me for final hearing on 18 June 2025.
Hearing on 18 June 2025
At the hearing of this matter on 18 June 2025, both the first and second applicants appeared, unrepresented, assisted by an interpreter in the Nepali language. Ms Sophie Lloyd of Minter Ellison appeared on behalf of the first respondent.
At the commencement of the hearing, I allowed the Court Book which contained the Tribunal’s decision and other documents that were before the Tribunal together with the first applicant’s affidavit in support of his application, to be admitted as evidence in the proceedings. The first respondent objected to paragraphs 5 to 9 of the first applicant’s affidavit in support of the application. I allowed those paragraphs to be read as submissions in support of the application.
I then invited the parties to make final oral submissions.
I took the first and second applicants through each of the three grounds of review contained in the application and asked her if she wanted to make any submission about them. Both the first and second applicants declined to make any oral submissions about the three grounds of review.
I then asked the first and second applicants if they wanted to make any other submissions in support of their case, and the third applicant’s case, and why they considered the Tribunal decision was wrong, or had made a mistake. The first applicant made brief submissions about some factual matters, including that “back then” his uncle had been killed by Maoists, and that the situation in Nepal at the political level had changed. He also said that in 2015 his daughter, the third first applicant, had been born, and he did not want to go to Nepal with his daughter at that time.
I then took the first and second applicants through paragraphs 5 to 9 of the first applicant’s affidavit in support of the application, and asked them if they wanted to expand upon their submissions. They did not want to say anything further about paragraphs 5 to 8, but the first applicant wanted to say something further about paragraph 9. In relation to paragraph 9, the first applicant told the Court that Nepali Constitution has never been followed, even lately, from what he saw in the news. He also said that he had read in the news about human trafficking in Nepal, in particular he said it was happening at the Nepali international airport.
Ms Lloyd then made brief submissions in reply on behalf of the first respondent, addressing both the matters raised by the first applicant at the hearing, and the grounds of review in the application. In relation to the matters raised orally by the first applicant at the hearing, Ms Lloyd submitted that most of the matters raised were factual matters, some of which had not been raised before the Tribunal, for example the death of the first applicant’s uncle, and were therefore not relevant to whether the Tribunal had committed jurisdictional error.
I agree with Ms Lloyd that to the extent the first applicant’s submissions made at the hearing before this Court only go to the merits of the Tribunal decision, the Court cannot accept those submissions as the Court is not permitted to undertake merits review: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17].
I address Ms Lloyd’s oral submissions in relation to the three grounds of judicial review below as part of my consideration of those grounds, where necessary.
CONSIDERATION
Below I set out my decision on each of the three grounds of judicial review relied upon by the applicants.
Ground 1
In ground 1 the first applicant claims he was denied “fair justice” because both the Department of Home Affairs (Department) and the Tribunal did not properly investigate the current political situation in Nepal.
As outlined above, the applicants declined to make any oral submissions about this ground. Ms Lloyd made the following submissions in relation to this ground at the hearing.
First, it was submitted the Tribunal considered the claims that were made to it by the applicants, namely, a fear of being targeted by Maoists. Ms Lloyd submitted there was no general political claim made in the Tribunal by the first applicant that he feared harm based on the current political situation in Nepal, as at the time of the Tribunal’s decision. Therefore, it was submitted, there was no obligation to investigate the current political situation in Nepal as at the time of the Tribunal’s decision in October 2019.
I agree with Ms Lloyd’s first submission. The Tribunal dealt with the political claims as framed by the first applicant in paragraphs [41]-[56] of its decision, namely a fear of being targeted by Maoists, and, that he or his family were targeted by Maoists because of his father (either because he was a Judge/Government official or had previously been a member of a political party). The Tribunal found that these claims were fabricated for the purpose of claiming protection in Australia. As there was no claim made (either express or arising from the material) that the first applicant feared harm based on the current political situation in Nepal, and given the adverse credibility finding, summarised in paragraph [56] of the decision, it was unnecessary for the Tribunal to investigate the current political situation in Nepal.
Second, Ms Lloyd submitted that in so far as ground 1 contained a challenge to the decision of the delegate, this Court did not have jurisdiction to review that decision.
I also agree with this submission. Under s 476(2)(a) of the Act, this Court has no jurisdiction to review “a primary decision”. Under s 476(4) a “primary decision” is “privative clause decision” reviewable, relevantly in this case, under Part 7 of the Act. The “privative clause decision” in the present case was the delegate’s decision. Therefore, this Court has no jurisdiction to review the delegate’s decision in the present case.
Finally, the first respondent also submitted, in its written submissions, that to the extent this ground contains a complaint about a denial of procedural fairness by the Tribunal, such an argument should be rejected as there is no evidence of any procedural unfairness.
From my review of the Court Book, the applicants were invited under s 425 to attend a hearing at the Tribunal. They attended the hearing on 1 October 2019 and gave evidence to the Tribunal with the assistance of a Nepali interpreter. I note that during the hearing the Tribunal put information relating to the Tribunal’s concerns with the first applicant's credibility to the first applicant orally under the provisions of s 424AA of the Act. This was strictly unnecessary as concerns with the first applicant's credibility is not “information” within the meaning of s424A of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]–[18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. However, there was no error in the Tribunal adopting the approach of putting such information to the first applicant orally under s 424AA, even though it was not obliged to: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30] per Dowsett, Bennett and Edmonds JJ.
Ground 1 does not establish the Tribunal committed jurisdictional error.
Ground 2
Ground 2 makes an assertion that the Tribunal “ignored” (or did not consider) evidence and ignored the current situation in Nepal.
As outlined above, the applicants declined to make any oral submissions about this ground. The first applicant does not identify the “evidence” the Tribunal ignored. Nor does he identify what he means by “the current situation in Nepal”.
Ms Lloyd submitted at the hearing that the Tribunal comprehensively considered both the evidence of the first applicant in support of his claims (see paragraphs [41]-[56]), and the relevant country information, at the time of the decision, regarding the claims of the first applicant (for example see paragraph [59] relating to the first applicant’s health claim) and the claims made on behalf of the third first applicant (for example see paragraph [65] relating to the claim the third first applicant was at risk of kidnapping as a female child if she returned to Nepal). The first respondent submitted that ground 2 merely contained unparticularised assertions.
As outlined above, the Tribunal comprehensively dealt with the claims and evidence of the first applicant, and with independent country information, where relevant. Further, at the hearing I invited the first and/or second first applicant to explain what they meant by this ground: namely, what “evidence” was ignored. Both applicants declined the invitation to say anything further about this ground. I agree that unparticularised assertions about a failure to “consider” evidence amounts to no more than impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ and a ground of review based on such an argument must be rejected.
For these reasons ground 2 is dismissed.
Ground 3
Ground 3 asserts the applicants’ lives will be in danger, and they risked losing their lives if they returned to Nepal, and that this “fact” was ignored by the Department and the Tribunal.
As outlined above, the applicants declined to make any oral submissions about this ground.
Ms Lloyd submitted at the hearing, firstly, as far as the claim made as against the Department is concerned, the applicants are, again, seeking to impermissibly challenge the delegate’s decision. For the reasons outlined above in ground 1, I agree that this Court does not have jurisdiction to review the delegate’s decision in the present case.
The first respondent also submitted, as far as the claim made against the Tribunal is concerned, all of the first applicant’s claims to fear harm if he returned to Nepal (including the claims relating to his daughter, the third first applicant) were comprehensively considered by the Tribunal. I agree.
As outlined above, the first applicant’s claims to fear harm in Nepal were all rejected by the Tribunal, either because they were found to be fabricated on the basis of adverse credibility findings at paragraphs [41]-[56] or, based on independent country information at paragraphs [57]-[60], and, in the case of the third applicant, on the basis of independent country information at paragraphs [63]-[67].
Based on the findings in [41]-[55], at [56] the Tribunal ultimately found it was not satisfied that there was a real chance of serious harm, or a real risk of serious harm, to the first applicant if he were to be returned to Nepal, now or in the reasonably foreseeable future on account of his claims. The Tribunal’s findings were reasonably open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings made against the first applicant in paragraphs [41]-[56].
At paragraphs [41]-[56], summarised above under the heading Tribunal Decision, the Tribunal set out four cogent and logical reasons why it found the first applicant was not a witness of truth, and why, the Tribunal considered the first applicant’s claims were fabricated. Each reason was logical and reasonable based on an analysis of the evidence given by the first applicant to both the Department delegate’s and to the Tribunal at the Tribunal hearing in 2019. I find, were made on a logical and probative basis: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
DISPOSITION
For the reasons outlined above, the applicants have not established that the Tribunal’s decision is vitiated by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision.
The application is dismissed.
COSTS
The first respondent has sought an order that the first and second applicant pay the first respondent’s costs in the amount of $5,600. The amount sought is less than the scale amount set out in Schedule 1 of the Rules. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. I will make an order in this amount.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 25 July 2025
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