FEB19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1367
•28 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FEB19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1367
File number(s): MLG 4564 of 2019 Judgment of: JUDGE FARY Date of judgment: 28 August 2025 Catchwords: MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s 36(a) or (aa) – delegate’s decision to refuse the grant of the visa affirmed – where the applicant alleged erroneous findings in the tribunal’s decision – found the error to be material – jurisdictional error established – application allowed. Legislation: Australian Constitution s 75(v)
Migration Act 1954 (Cth) s 5J, s 5H, s 36, s 47(1), s 65(1), s 474, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 25.14, Div 1 of Pt 3 of Sch 2
Migration Regulations 1994 (Cth) cll 866.1 – 866.6 of Sch 2Cases cited: BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
SZTFQ v Minister for Immigration & Border Protection [2017] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 135 Date of last submission/s: 11 August 2025 Date of hearing: 19 August 2025 Place: Melbourne Counsel for the Applicants: Mr Kenneally Solicitor for the Applicants: Ms Mason, Victoria Legal Aid Solicitor for the First Respondent: Mr O’Shannessy, Mills Oakley Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 4564 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FEB19
First Applicant
FED19
Second Applicant
FEE19 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
28 AUGUST 2025
THE COURT ORDERS THAT:
1.An order that the decision of the Tribunal on 28 November 2019 be quashed.
2.A writ of mandamus issue directed to the Tribunal requiring it to determine the applicants’ application according to law.
3.The first respondent pay the applicants’ costs of and incidental to the proceeding fixed in the sum of $8,371.30.
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 Fary
INTRODUCTION
By way of Application filed on 23 December 2019, the applicants (Applicants) seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 28 November 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the first applicant (Applicant) a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Migration Act.
The hearing of the Application took place at the Melbourne Registry of the Court on 19 August 2025 (Hearing). The Minister was represented by a solicitor. The Applicants were represented by counsel. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 19 August 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act or that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
BACKGROUND
The Applicants are citizens of India.
The second applicant is the wife of the Applicant (Wife). The third and fourth applicant are the sons of the Applicant and the second applicant.
On 7 July 2012, the Applicant’s son arrived in Australia on a 573 student visa.[2]
[2] CB 360.
On 29 July 2012, the Applicant’s second son arrived in Australia on a 573 student visa.[3]
[3] CB 360.
On 30 September 2014, the Applicant arrived in Australia on a 600 visitor visa accompanied by his Wife, the second applicant.[4]
[4] CB 360.
On 11 November 2014, the Applicant and his Wife departed Australia.[5]
[5] CB 360.
On 19 March 2015, the Applicant arrived back in Australia.[6]
[6] CB 360.
On 14 June 2015, the Applicant departed Australia.[7]
[7] CB 360.
On 24 August 2015, the Applicant and his Wife arrived back in Australia.[8]
[8] CB 360.
On 22 September 2015, the Applicants’ applied for Protection (Class XA) (Subclass 866) Visas, the Visas in relation to these proceedings.[9]
[9] CB 1-148.
On 7 November 2015, the Department of Immigration and Border Protection (Department) acknowledged the Applicant’s Visa application.[10] The correspondence informed the Applicants that their applications may be decided without requesting further information unless they contacted the Department to arrange an interview within 7 days.[11] The Applicants did not contact the Department.
[10] CB 149-176.
[11] CB 152.
On 26 August 2016, a Delegate of the Minister refused to grant the application for the Visa on the basis that they were not satisfied that the Applicants met s 36(2)(a) or s 36(2)(aa) of the Migration Act (Delegate’s Decision).[12]
[12] CB 181-196.
On 1 September 2016, the Applicants’ applied to the Tribunal for review (Review Application) and attached an appointment representative form (Applicants’ Representative).[13]
[13] CB 198-223.
On 6 September 2016, the Tribunal acknowledged receipt of the Review Application.[14]
[14] CB 224-231.
On 21 August 2018, the Tribunal wrote to the Applicants’ Representative and requested their availability for a hearing.[15]
[15] CB 353-356.
On 4 February 2019, the Tribunal wrote to the Applicants’ Representative and invited them to attend a hearing on 27 March 2019.[16]
[16] CB 242-250.
On 21 March 2019, the Applicants’ Representative provided a response to the hearing invitation and attached written submissions for consideration.[17]
[17] CB 251-303.
On 25 March 2019, the Applicants’ Representative provided a further response to the hearing invitation.[18]
[18] CB 304-307.
On 27 March 2019, the Applicants’ attended the hearing with the assistance of an interpreter. The Applicants’ Representative was not present.[19]
[19] CB 308.
On 17 April 2019, the Applicants’ Representative requested an extension of time to provide post-hearing submissions to the Tribunal.[20]
[20] CB 313-314.
On 23 September 2019, the Applicants’ Representative wrote to the Tribunal and attached post-hearing submissions for consideration.[21]
[21] CB 319-331.
On 24 September 2019, the Tribunal acknowledged receipt of the Applicants’ post-hearing submissions and stated that a Member was yet to rule on their admissibility.[22]
[22] CB 332.
On 16 October 2019, the Tribunal wrote to the Applicant with an invitation to provide further information by 30 October 2019 attached.[23]
[23] CB 333-336.
On 17 October 2019, the Applicants’ Representative wrote to the Tribunal and provided updated contact details.[24]
[24] CB 337-338.
On 18 October 2019, the Tribunal wrote to the Applicants’ Representative and provided confirmation that the updated contact details had been received.[25]
[25] CB 339.
On 23 October 2019, the Applicants’ Representative wrote to the Tribunal and requested further particulars on the use of the word ‘police’ on the Invitation to Provide Information.[26]
[26] CB 340.
On date same, the Tribunal wrote to the Applicants’ Representative and provided further clarification on the use of the word ‘police’ on the Invitation to Provide Information.[27]
[27] CB 341.
On 24 October 2019, the Tribunal wrote to the Applicants’ Representative and provided further clarification on the use of the word ‘police’ on the Invitation to Provide Information.[28]
[28] CB 342.
On 25 October 2019, the Applicants’ Representative sent an email to the Tribunal seeking an extension of time to provide information.[29]
[29] CB 348-349.
On 29 October 2019, the Tribunal wrote to the Applicants’ Representative granting an extension of time to provide information to 12 November 2019.[30]
[30] CB 350-353.
On 28 November 2019, the Tribunal affirmed the Delegate’s Decision.[31]
[31] CB 355-370.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 358 to 370 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [5] to [10].
The Tribunal noted the Applicants’ migration history as submitted to the Department.[32] The Tribunal indicated that the dispositive issue before it was whether the Applicants’ held a well-founded fear of being persecuted for one or more of the reasons set out in s 5J(1) of the Migration Act.
[32] CB 360-361 [12]-[13].
In oral submissions, the Applicant explained that upon his sole return to India from Australia, he found illegal occupants in his house.
The Tribunal engaged with the Applicant’s claims and accepted the importance of adopting a reasonable approach in relation to findings of credibility. The Tribunal noted that the credibility of the Applicant’s claims was central in determining the Review Application, and that the claims were “just not plausible”.[33] The Tribunal concluded that the Applicant’s written and oral claims for protection were “fabricated or embellished solely for migration purposes”.[34]
[33] CB 363 [30].
[34] CB 366 [54].
On the basis of country information before it, the Tribunal did not accept that the Applicant made complaints to authorities of the kinds alleged.[35] The Tribunal rejected the Applicants’ claims of facing persecution on the basis of being Muslim[36] and found that the Applicants could access state protection upon return.[37]
[35] CB 363 [34].
[36] CB 364 [38].
[37] CB 364 [43]-[44].
Apart from the Wife’s alleged anxiety, the Tribunal accepted that the Applicants all had the medical issues and concerns that were alleged. However, the Tribunal considered country information which indicated that health services in India were improving.
The Tribunal was not satisfied that the Applicants met s 36(2)(a) or s 36(2)(aa) of the Migration Act and on this basis affirmed the Delegate’s Decision under review.
PROCEEDINGS IN THIS COURT
On 23 December 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 7 February 2022, Orders were made by Registrar Carney of this Court for the Applicants to file and serve: written submissions, any amended application and any additional evidence. For the Respondent to file and serve: written submissions, Court Book and any additional evidence on which they seek to rely upon.
On 6 August 2025, Orders were made by me in Chambers for Order 6 of the Orders made by Registrar Carney be amended to 12 August 2025.
On 24 July 2025, an Amended Application was filed in this Court.
This matter was heard on 19 August 2025 for a Final Hearing before me.
The Applicants relied upon the following documents:
(a)The Application filed 23 December 2019;
(b)The Affidavit of the Applicant sworn on 23 December 2019 (Applicant’s Affidavit);
(c)Amended Application filed 24 July 2025;
(d)Affidavit of Rachel Mason affirmed on 22 July 2025;
(e)Outline of Submissions filed 24 July 2025;
(f)List of Authorities filed 18 August 2025; and
(g)Further Amended Application filed 19 August 2025.
The Minister relied upon:
(a)The Response, filed 24 January 2020; and
(b)The Minister’s Outline of Submissions filed 11 August 2025.
Both parties relied on the Court Book.
The Further Amended Application contains the following grounds of review (Grounds of Review):
1. The Tribunal’s rejection of the applicant’s claims based on the timing of the First Information Report (FIR) is irrational, unreasonable, illogical, and/or a result of a failure to consider critical and significant country information before the Tribunal. (Ground 1).
Particulars
a. The Tribunal drew an adverse inference from the fact that the applicant made complaints to police on 1, 4, 16 July 2015 but only put in an FIR complaint on 1 August 2015, as the country information indicated making an FIR complaint was necessary to trigger a criminal investigation.
b. The Tribunal’s reasons and country information do not disclose an intelligible basis for the adverse credibility conclusion.
c. The Tribunal failed to have regard to critical and significant portions of the country information it purported to rely upon being the Research directorate, Immigration and Refugee Board of Canada, Ottawa dated 1 May 2017.
2. The Tribunal failed to consider the applicant’s clearly articulated claim or integer of his claim or critical and significant information that the police did not assist him because they had been bribed; and/or if it did consider and deal with the claim, its reasons for doing so were at [39] and [44] of the reasons for decision and affected by errors identified in ground 3. (Ground 2).
3. The Tribunal rejected the applicant’s claim of religious discrimination based on an irrational, illogical, or unreasonable assumptions and/or constructively failed to consider the claim of discrimination. (Ground 3).
Particulars
a. The applicant claimed the police would not provide protection because he was Muslim; and that the police may have not provided him protection because they had been bribed.
b. The Tribunal irrationally assumed that police could not have discriminated against the applicant because the assailants were also Muslim and/or that the police would not accept bribes from a minority group they discriminated against.
c. The Tribunal failed to consider that discrimination may be selective or take the form of indifference.
d. The Tribunal misconstrued or misunderstood the meaning of “discrimination” pursuant to s 5J(4)(c), and/or the meaning of “willing and able” to offer protection in s 5LA(2)(b).
4. The Tribunal failed to complete its statutory task, failed to consider a clearly articulated claim, integers, or critical and significant material, and/or its decision was irrational, illogical or unreasonable; and/or took into account an irrelevant consideration as it found that if the applicants’ property had been stolen as they claimed one would ordinarily have expected the applicants to stay in India and fight for it. (Ground 4).
Particulars
a. The Tribunal assumed a person in the applicants’ situation would have stayed in India and fought for his property.
b. There was no evidence to support the Tribunal’s belief generally or in relation to the applicants, and the reasoning was therefore irrational, unreasonable, or illogical.
c. The Tribunal failed to consider the reasons the applicants claimed they did not remain in India to fight for their property, or their personal circumstances.
d. The Tribunal failed to perform its statutory task to determine whether the applicants would be expected to stay and fight rather than a hypothetical “ordinary person”; and/or took into account an irrelevant consideration being the Tribunal’s personal beliefs as to how one ought to or would respond to property being stolen.
(Words in bold, added otherwise as written)
APPLICANTS’ SUBMISSIONS
The Applicants submit that the Tribunal’s Decision was deeply flawed and fell into jurisdictional error by failing to consider all evidence presented. The Applicants’ claim that the Tribunal drew an adverse inference as while the Applicant complained to the police immediately following the assault, the First Information Report (FIR) was made one month later.
Ground 1
The Applicants submit that the Tribunal’s reasoning for drawing adverse inference due to the Applicant making a FIR after his complaints, are not adequately explained. Based on country information, the Applicants submit that there is no intelligible basis for drawing an adverse inference from the date the FIR was registered or the fact that it proceeded the complaints.
Further, the Applicants submit that the country information confirms the Applicants did not have control over whether a FIR was prepared or registered. There was no basis in the reasons or country information for drawing an adverse inference against the Applicants because the FIR was registered a month after his complaint.
The country information makes it clear that complaints to the superintendent are the appropriate course when police refuse to register a FIR, and such complaints can precede a FIR. The Tribunal’s reasoning, the Applicants submit, assumes he understood the process outlined in the country information which was not established.
The Applicants submit that the adverse inference based on the timing of the FIR was not rational, logical or reasonable.
Ground 2
The Applicants submit that their claim that the police were likely bribed was clearly articulated during the course of the Tribunal hearing and supported by country information regarding corruption. The Applicants note that this supports their claim that state protection would not be available.
The Applicants submit that the Tribunal failed to consider the claim in its entirety.
Ground 3
The Applicants submit that the Tribunal’s assertion that the Applicants would be denied state protection due to their religion was unreasonable and makes an unwarranted assumption that discrimination by police must be uniformly applied across all members of a minority group. Further, the Tribunal’s reasoning that the squatters were also Muslim is irrational and fails to account for corrupt or prejudiced police.
The Applicants submit that the Tribunal’s reasoning as to why the police would not discriminate was unreasonable, especially in circumstances where a lack of police assistance due to his Muslim religion was central to the claim.
Ground 4
The Applicants submit that the Tribunal’s conclusion that “one would think” a person would stay and fight for their property rather than fleeing to another country was arbitrary and irrational. The Tribunal did not provide reasons for its assumption and the Applicants submit that this was not supported by evidence in the Tribunal’s Decision.
Alternatively, the Applicants submit that the Tribunal failed to consider a claim clearly raised by the Applicants; and this failure as being central to an adverse credibility finding constitutes a jurisdictional error.
The Applicants further submit that the Tribunal failed to assess how the Applicant and his Wife would respond considering their personal circumstances, amounting to overlooking critical material which constitutes jurisdictional error.
The Applicants submit that each error made was material and affected the Tribunal’s credibility findings. The Applicants note that the threshold for materiality is low, and even one error could have led to a realistic possibility of acceptance of the claims.[38]
[38] SZTFQ v Minister for Immigration & Border Protection [2017] FCA 562.
The Applicants expanded upon their written submissions at the Hearing.
RESPONDENT’S SUBMISSIONS
Ground 1: Timing of the FIR
The Applicants allege the Tribunal’s rejection of their claims based on the timing of the FIR is irrational, unreasonable, illogical and a result of a failure to consider critical and significant country information.
The Minister submits that precision is required to identify the nature of the jurisdictional error of the kind the Applicants allege.[39] In regard to the allegation of failing to consider country information regarding FIR procedures by authorities, the Applicants identify five pieces of information ‘indicated’ by the Research Directorate, Immigration and Refugee Board of Canada Report (IRB Report). The Minister accepts that some of the matters set out in the Affidavit of Rachel Mason affirmed on 22 July 2025 can be understood as “critical and highly relevant information”[40] such that an omission would support an inference that the Tribunal failed to consider “anything at all”.[41] However, the Minister contends that the correct inference is that the Tribunal plainly considered information contained in the IRB Report and cited the IRB Report as the source of that information.[42]
[39] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 per Gleeson CJ at [5].
[40] Affidavit of Rachel Mason affirmed on 22 July 2025 at pp 14, 21-22.
[41] cf Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at[33]-[34].
[42] CB 363 [33].
The Minister submits that the Tribunal’s reasoning process was relatively straightforward and resulted from inferences available to be drawn from the IRB Report. The inconsistency between the Applicants’ claims and the IRB Report led the Tribunal to conclude that the Applicant did not make complaints to authorities of the kind alleged.[43]
[43] CB 363 [34].
As to the allegation of unreasonableness and irrationality, the Applicants must establish that the decision is one that no rational or logical decision-maker could have arrived at on the same evidence.
The Minister accepts that a “logical or rational or reasonable mind” could reason in the manner advanced by the Applicant.[44] However, this alone is insufficient to establish jurisdictional error. Rather, the Minister submits it was open to the Tribunal to make the findings it did on the material before it.[45]
[44] Affidavit of Rachel Mason affirmed on 22 July 2025 at p 22.
[45] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 per Crennan and Bell JJ at [130].
The Minister contends the Applicant had sufficient knowledge to navigate the escalation of his complaints within the police hierarchy. The Applicant’s claim that the statement “there was no evidence of the applicant’s knowledge of police procedures” should be rejected.
Ground 2: Bribing the police
The Applicant’s submissions appear to indicate that the first occasion wherein he returned home to find other people living in his home, and was assisted by police, occurred in 2024.[46] The FIR appears to indicate that this incident occurred on 6 February 2015.[47]
[46] CB 252-256; Affidavit of Rachel Mason affirmed on 22 July 2025 at p 26.
[47] CB 302.
In any event, the Minister submits that the Tribunal was plainly aware of the Applicant’s claims that the person who had taken over the Applicant’s property may have bribed the police.[48] The Minister submits it was open for the Tribunal to conclude that it was not satisfied that bribery explained the change in the police’s attitude, that is, the police’s willingness to assist the Applicant on the first occasion but not the second.
[48] CB 361-362 [19]-[21].
The Minister submits that the Applicant’s assertion was pure speculation, and it was plain enough from the Tribunal’s findings that the evidence simply did not “add up”.[49] The Minister submits that this ground should be dismissed.
[49] CB 362 [23].
Ground 3: Discrimination by the police
The Minister submits that the Tribunal clearly identified and rejected the Applicants’ claim that state protection may be withheld on the basis of their religion.[50]
[50] CB 363-364 [36]-[38].
The Applicants challenged the Tribunal’s reasons as to the willingness of the police to assist some Muslims, but not others. The Minister submits that any error alleged by the Applicant in the Tribunal’s Decision[51] was not material in that the decision could not “realistically” have been different had there been no error.[52] The Minister submits that this ground should be dismissed.
[51] CB 364 [39].
[52] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [14]
Ground 4: Discrimination by the police
The Applicant alleges that the Tribunal assumed that a person in the Applicant’s situation “would have stayed in India and fought for his property”. Read fairly, the Minister contends that the Tribunal’s findings in relation to the Applicant’s circumstances was focused on concerns held with the plausibility of the Applicants’ narrative.
The Minister submits that it is well-established that credibility findings are the function of the decision-maker par excellence.[53] Acknowledging that credibility findings are not immune from review by the Court, the Minister submits that ‘implausibility’ is a sufficient basis on which to disbelieve a given narrative.
[53] Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 per McHugh J at [67].
The Minister contends that a “logical or rational or reasonable mind” could reason that a person in the Applicant’s circumstances and situation would have stayed in the area to fight for what rightfully belonged to him.
In any event, the Minister submits that the Applicant’s complaints should be rejected. In circumstances where the Tribunal rejected the Applicant’s narrative of dispossession, the Tribunal was not required to further consider the harm the Applicant might face if he sought to recover his home. The Minister submits that this ground fails to succeed.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[54]
[54] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[55] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[56]
[55] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O’Callaghan JJ at [17].
[56] LPDT at [2].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[57] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[58] Different kinds of error may overlap.[59] The categories are not closed.[60]
[57] Plaintiff S157/2002.
[58] LPDT at [3].
[59] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[60] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[61] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[62] It has been described as an “undemanding” standard.[63]
[61] LPDT at [7].
[62] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[63] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].
Protection Visas (Class XA) (Subclass 866)
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Migration Regulations 1994 (Cth) (Regulations)) have been satisfied, and to refuse to grant the visa, if not so satisfied.
Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term “refugee” is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a “well-founded fear of persecution”[64] as defined by s 5J.
[64] See s 5H(1)(a) of the Migration Act.
Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(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.
Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Regulations.
CONSIDERATION
Following the sequence of the Applicant’s oral submissions, I commence my analysis with Grounds 2 and 3.
Grounds 2 and 3
Ground 2 is that:
The Tribunal failed to consider the applicant’s clearly articulated claim or integer of his claim or critical and significant information that the police did not assist him because they had been bribed; and/or if it did consider and deal with the claim, its reasons for doing so were at [39] and [44] of the reasons for decision and affected by errors identified in ground 3.
Ground 3 is that:
The Tribunal rejected the applicant’s claim of religious discrimination based on an irrational, illogical, or unreasonable assumptions and/or constructively failed to consider the claim of discrimination.
The particulars to Ground 3 are that:
The applicant claimed the police would not provide protection because he was Muslim; and that the police may have not provided him protection because they had been bribed.
The Tribunal irrationally assumed that police could not have discriminated against the applicant because the assailants were also Muslim and/or that the police would not accept bribes from a minority group they discriminated against.
The Tribunal failed to consider that discrimination may be selective or take the form of indifference.
The Tribunal misconstrued or misunderstood the meaning of “discrimination” pursuant to s 5J(4)(c), and/or the meaning of “willing and able” to offer protection in s 5LA(2)(b).
Paragraph [39] of the Tribunal’s Decision provides:[65]
Further, the applicant told the Tribunal that the people who moved into his house are Muslim themselves. It makes no sense that the police would not help him because he was Muslim, yet they would take bribes and act corrupt for another Muslim.
[65] CB 364 [39].
Paragraph [44] of the Tribunal’s Decision provides:[66]
Given the above discussion around the timing and police reporting requirements and combined with the applicant’s assertions that the applicant will not be afforded state protection as he is a Muslim, yet his alleged attacker is also Muslim the Tribunal finds that all four applicants would be afforded state protection upon return to India.
[66] CB 364 [44].
Paragraphs [39] and [44] of the Tribunal’s Decision are deeply flawed.[67]
[67] CB 364 [39]-[44].
The flaw evidenced by these paragraphs[68] is best captured by particular (b): “The Tribunal irrationally assumed that police could not have discriminated against the Applicant because the assailants were also Muslim and/or that the police would not accept bribes from a minority group they discriminated against”. The acceptance of bribes is not an instance of non-discrimination, and even if it were, it is fallacious to generalise from a single instance. There are other ways of characterising the error in [39],[69] but for present purposes it is sufficient to resolve the matter by reference to the false premise and fallacious reasoning.
[68] CB 364 [39]-[44].
[69] For example, a potential misconstruction of the meaning of “discrimination” pursuant to s 5J(4)(c) of the Migration act.
The Minister does not dispute that [39] and [44] are flawed but contends that those paragraphs are effectively severable from the Tribunal’s Decision, which it is contended, can be read without reliance on those paragraphs.[70]
[70] CB 364 [39]-[44].
In order to determine whether paragraphs [39] and [44] can be treated in the manner contended for by the Minister it is necessary to consider those paragraphs in their context.[71]
[71] CB 363 [39]-[44].
The Applicant’s claims are set out in detail in the Tribunal’s Decision.[72] The central events leading to the Applicant’s claims begin with the neighbour’s illegal occupation of the Applicant’s house while he and his wife were in Australia. On the first occasion, the Applicant said that he was able to enter and stay at the property with the assistance of police and the authorities. On the second occasion, he and his wife were not able to stay at the property, but instead were pushed and the Applicant was injured when recovering personal items. A critical claim made by the Applicant was that the police did nothing on the second occasion because they were bribed.
[72] CB 361-362 [18]-[23].
The Tribunal rejected the Applicant’s claims and made adverse findings about his credibility and the veracity of the documents that he relied upon, including the FIR.
A summary of some of the critical findings is found in the Tribunal’s Decision:[73]
Given this country information and the timing of the applicant’s claims the Tribunal does not accept that the applicant made these complaints to the police or any other authority. It follows that the Tribunal does not accept the documents provided by the applicant in relation to his claims. The applicant’s claims that the first time they moved into his home the police assisted him do not add up when in the second and third incidences the police had no interest in the applicant or his complaints. Further, one would think if someone took over one’s house and all possessions you would stay in the area and fight for what rightfully belongs to you, not simply leave and go to another country with the intent to stay permanently.
(Emphasis added)
[73] CB 363 [34].
The highlighted passage demonstrates the relevance of the Applicant’s claims of bribery. That claim, albeit one largely based on supposition, was an explanation of the failure by police to investigate on the second occasion. If the Applicant’s explanation (of bribery) were considered plausible, it had the potential to dislodge a central plank of the Tribunal’s reasons for rejecting the Applicant’s credibility and the documents relied upon by him.
Paragraph [39] appears under the heading “Muslims in India”.[74] The paragraph in context reads:
The primary applicant and his representative alluded to the fact that as the applicants are Muslim this may give rise to discriminatory practices in the execution of state authority protection. The representative also provided DFAT information on Muslims which indicates that: ‘DFAT assesses that Muslims face a low risk of societal discrimination and violence.
The DFAT report does not state that Muslims will not be afforded protection or that they are targeted for being Muslim. It states that they face a low risk of societal discrimination and violence. Further the Muslim community in Uttar Pradesh where the applicants are from forms the largest religious minority in the Indian state. They are 19.3% of the population.
There was nothing in the applicant’s written evidence or oral testimony that indicated the applicants were targeted for being Muslim or that they could not receive adequate protection from the authorities based on religion. Therefore, the Tribunal does not accept the applicants claimed persecution based on being Muslim in India.
Further, the applicant told the Tribunal that the people who moved into his house are Muslim themselves. It makes no sense that the police would not help him because he was Muslim, yet they would take bribes and act corrupt for another Muslim.
(Footnotes omitted)
[74] CB 363-364 [36]-[39].
While paragraphs [36] to [38] were arguably sufficient to support the conclusion at the bottom of [38], the role that [39] may have had in that conclusion cannot be ignored.[75] There is a “realistic possibility” that the decision “could” have been different, but for the error.[76] In reaching this conclusion, I accept the Applicant’s submission, that the Tribunal’s Decision ought not to be construed in a strictly linear manner, such that the Tribunal’s finding at [39] that commences “Further” can be ignored when considering the earlier reasoning.[77] As the Full Court held in EVA17 v Minister for Immigration and Border Protection,[78] “it is a path fraught with danger to attribute to a decision maker the linear reasoning process which emerges from the manner in which a decision is expressed on paper.”
[75] CB 363-364 [36]-[39].
[76] LPDT at [7].
[77] CB 364 [39].
[78] (2018) 262 FCR 304 at [45].
The question also arises as to whether the erroneous reasoning at [39] infects the Tribunal’s earlier conclusion at [34] concerning the credibility of the Applicant and the veracity of the documents he relied upon.[79] The erroneous reasoning for rejecting the bribery claims, must call into question the earlier finding at [34] which was based on the fact that the police had “no interest” in investigating on the second occasion.[80] A possible answer to that observation was the explanation of bribery; an answer subsequently rejected on the basis of flawed reasoning at [39]. I am not satisfied that that reasoning was immaterial to the conclusions at [34].[81]
[79] CB 363-364 [34] and [39].
[80] CB 363 [34].
[81] CB 363-364 [34] and [39].
As Lee J held in SZTFQ v Minister for Immigration and Border Protection,[82] “the assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence.” Save for “peripheral findings”,[83] it is generally not possible to unscramble a credit finding based upon a number of matters, including an erroneous matter.
[82] [2017] FCA 562 per Lee J at [44].
[83] See BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40 at [89].
Paragraph [44] appears under the heading “State Protection”.[84] The paragraph in context reads:[85]
The Tribunal finds that the applicants will be afforded state protection upon their return to India. The Tribunal finds that the Indian government has the willingness and ability to discharge its obligations to protect its citizens. According to the UK Home Office:
“Despite some failings, in general, the state appears both willing and able to offer effective protection’.
Given the above discussion around the timing and police reporting requirements and combined with the applicant’s assertions that the applicant will not be afforded state protection as he is a Muslim, yet his alleged attacker is also Muslim the Tribunal finds that all four applicants would be afforded state protection upon return to India.
(Emphasis added)
[84] CB 364 [44].
[85] CB 364 [43]-[44].
The highlighted words are another instance of the flawed reasoning at [39].[86] The repetition of that flawed reasoning in this part of the Tribunal’s Decision is consistent with and fortifies my conclusion of jurisdictional error.
[86] CB 364 [39].
I do not overlook the fact that the evidence in support of the claim of bribery was weak. The Applicant’s evidence on the topic was little more than speculation. Further, the country information was addressing a different problem with bribery, namely police demanding of monies to register a FIR. Despite these matters I remain of the view that the errors in paragraphs [34] an [39] were material,[87] because it is plausible that notwithstanding the weakness in the evidence, the Tribunal might have accepted bribery as an explanation for what had occurred; noting that the alternative explanation that was found by the Tribunal was that the Applicant’s evidence and the documents relied upon by him were made up.
[87] CB 363-364 [34]-[39].
I am satisfied that jurisdictional error is made out by reference to Grounds 2 and 3.
Ground 1
Ground 1 is that:
The Tribunal’s rejection of the applicant’s claims based on the timing of the First Information Report (FIR) is irrational, unreasonable, illogical, and/or a result of a failure to consider critical and significant country information before the Tribunal.
As I have explained above, the Tribunal’s finding that the credibility of the Applicant’s claims was central in determining the Review Application adversely to the Applicant:[88]
The claims that some people moved into their home whilst they were overseas and that then the police failed to intervene despite the applicant having a deed to the home and having lived there for many years is just not plausible.
[88] CB 363 [30].
The critical finding of the Tribunal is that it did not accept that the Applicant had made complaints to the police or any other authority, for four reasons:[89]
(a)Delay in lodgment (or non sequential lodgment) of a FIR on 1 August 2015, which the Tribunal regarded as a precondition to an investigation;
(b)The implausibility of the police assisting in 2014, but not in 2015;
(c)The implausibility of the police not assisting the applicant due to his religion (Muslim), when the squatters were also Muslim; and
(d)The implausibility of the Applicant returning to Australia and not staying in India to recover his property.
[89] CB 363 [34].
Ground 1 included a determination that the Applicant had not made complaints to the police, and that the “written and oral claims for protection” were “fabricated or embellished”.
The issue of the FIR is addressed at [31] to [35] of the Tribunal’s Decision:[90]
The applicant gave the Tribunal a copy of a translated First Information Report (FIR) taken at the Rail Bazar Police Station on 1 August 2015. It states the time of the offence over a period of 10 March 2015 until 29 June 2015. In the applicants representatives submission (no date) the applicant returned to his home and noticed the locks had been changed but no one was living in the home. He went to the police and the police assisted him and he stayed at the family home until 19 March 2015 when he came back to Australia.3
The applicant claims he made a complaint to the police via letter on 1 July 2015, the Senior Superintendent of Police Kanpur, the Director General of police Kanpur, the District Magistrate Kanpur, and Chief Minister Uttar Pradesh on 4 July 2015 and again to the Senior Superintendent of Police Kanpur 16 July 2015. However, the applicant did not put in a First Information Report (FIR) until 1 August 2015.
According to the Commonwealth Human Rights Initiative (CHRI) a First Information Report (FIR) is required before any investigation into alleged crimes can take place. Further, they report that there is nothing specific in the law which requires them to keep a person informed about the progress of a case. In addition, Section 157 of the Code of Criminal Procedure notes that a police officer can decide not to investigate even with an FIR when the police officer is of the view that the case is not of a serious
Given this country information and the timing of the applicant’s claims the Tribunal does not accept that the applicant made these complaints to the police or any other authority. It follows that the Tribunal does not accept the documents provided by the applicant in relation to his claims.5 The applicant’s claims that the first time they moved into his home the police assisted him do not add up when in the second and third incidences the police had no interest in the applicant or his complaints. Further, one would think if someone took over one’s house and all possessions you would stay in the area and fight for what rightfully belongs to you, not simply leave and go to another country with the intent to stay permanently.
Overall, the Tribunal is not satisfied that the applicant’s claims fall under the Refugees Convention in that the applicant has a well-funded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. There is no evidence before the Tribunal that the applicants were targeted for any of these reasons.
[90] CB 363 [31]-[35].
The country information[91] was the CHRI 23 October 2015 First Information report identified in footnote 4 (CHRI Report) which formed part of the Country of Origin Information which is annexure A to the Affidavit of Rachel Mason affirmed 22 July 2025 under the heading “Responses to Information Requests”.
[91] CB 363 [33]-[34].
I shall start with the issue of the delay or non sequential lodgment of the FIR.
The translated FIR[92] relied upon by the Applicant records the following information:
(a)Dated: 01/08/2016
(b)Case Crime No: 0221
(c)Date from: 10/03/2015 Date To: 29/06/2015
(d)Information received at Police Station
(e)Type of information: written
(f)Complainant: [name of Applicant]
[92] CB 301.
The Tribunal’s findings with respect to timing were:[93]
The applicant claims he made a complaint to the police via letter on 1 July 2015, the Senior Superintendent of Police Kanpur, the Director General of police Kanpur, the District Magistrate Kanpur, and Chief Minister Uttar Pradesh on 4 July 2015 and again to the Senior Superintendent of Police Kanpur 16 July 2015. However, the applicant did not put in a First Information Report (FIR) until 1 August 2015.
[93] At [32].
The Tribunal’s findings with respect to the country information were:[94]
According to the Commonwealth Human Rights Initiative (CHRI) a First Information Report (FIR) is required before any investigation into alleged crimes can take place. Further, they report that there is nothing specific in the law which requires them to keep a person informed about the progress of a case. In addition, Section 157 of the Code of Criminal Procedure notes that a police officer can decide not to investigate even with an FIR when the police officer is of the view that the case is not of a serious nature or there are not enough grounds to investigate.
[94] At [33].
The Minister’s explanation for the Tribunal’s conclusion was:
(a)The applicant claimed to have made written complaints to police on 1 July 2015, and to increasingly senior police on 4 and 16 July 2015, but complained that ‘no action was taken from any of the authorities’;[95]
(b)The applicant also claimed to have ‘lodged’ a FIR on 1 August 2015;[96] and
(c)That order of events was inconsistent with the information the Tribunal extracted from the IRB Report, namely that a FIR is required before any investigation into alleged crimes can take place.
[95] CB 2.
[96] CB 256.
The finding of delay by the Applicant in the filing of the FIR is supported by the submission made by the Applicant’s Representative’s to the Tribunal that he “subsequently lodged an FIR on 01 August 2015”.[97] That conclusion is not undermined by country information that suggests that it is the police who register a FIR after a written or oral complaint is made to them, and potentially after a period of delay. The Applicant’s claim can sensibly be understood as a reference to the date on which the Applicant made the complaint to the police. Accordingly, I reject the contention that “there is no basis in the reasons or country information for drawing an adverse inference against the applicant because the FIR was registered a month after his complaint.”[98]
[97] CB 256.
[98] Applicant’s submissions at [22].
I also reject the Applicant’s secondary submission that the Tribunal fell into jurisdictional error by the following reasoning: “because an FIR is required to initiate a police investigation, the applicant’s failure to lodge one on 1 July 2015 undermined his claim of fearing harm”. The Applicant relied on two matters for which it was contended that there was no evidence: “First, it assumes the timing of the FIR was within the applicant’s control” As indicated above, the Applicant’s Representative’s submission was that he “subsequently lodged an FIR on 01 August 2015”.[99] “Second, it assumes the Applicant understood that requesting an FIR was necessary to trigger an investigation.” On this second point, as the Minister contends, the evidence before the Tribunal indicates that he “knew enough about police procedures to navigate the escalation of his complaints within the police hierarchy”.
[99] At CB256.
While there is some force in the observation that the serious finding that the FIR was fabricated was insufficiently explained,[100] having already found that the Tribunal’s finding[101] was materially affected by the erroneous reasoning,[102] it would be artificial to attempt to determine whether the Tribunal’s rejection of the Applicant’s claims based on the FIR is a standalone basis for a finding of jurisdictional error, for example on the basis that the finding was unreasonable, illogical or irrational. As indicated earlier, generally speaking, it is not possible to unscramble a credit finding based upon a number of matters, including an erroneous matter.
[100] Compare Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15, per Gordon J at [43].
[101] CB 363 [34].
[102] CB 364 [39].
The question of whether a jurisdictional error is established by reference to Ground 1 is subsumed within my conclusion of jurisdictional error in relation to Grounds 2 and 3.
Ground 4
Ground 4 is that:
The Tribunal failed to complete its statutory task, failed to consider a clearly articulated claim, integers, or critical and significant material, and/or its decision was irrational, illogical or unreasonable; and/or took into account an irrelevant consideration as it found that if the applicants’ property had been stolen as they claimed one would ordinarily have expected the applicants to stay in India and fight for it.
The focus of the complaint in relation to Ground 4 is the following sentence:[103]
Further, one would think if someone took over one’s house and all possessions you would stay in the area and fight for what rightfully belongs to you, not simply leave and go to another country with the intent to stay permanently.
[103] CB 363 [34].
The Tribunal’s finding, if understood to be a “universal proposition”, is irrational. Plainly, what a person should do in the situation contemplated depends on their personal circumstances, as well as some assessment of the feared harm. The finding is also expressed at an unhelpful level of generality, begging the question as to what is meant by the word “fight”.
While the Tribunal’s language is open to more than one interpretation, I am inclined to view the statement at [34] was addressing the Applicant personally and the circumstances of his case. [104] With some hesitation, I accept the Minster’s submission that the statement should be read in the context of the findings already made as meaning that in the circumstances as found, the Applicant would be expected to have done more by testing his capacity to enforce his rights in relation to the home.
[104] CB 363 [34].
I am not satisfied that jurisdictional error is made out by reference to Ground 4.
CONCLUSION
As jurisdictional error has been established, the Tribunal’s Decision ought to be quashed and the matter should be remitted to the Tribunal for reconsideration according to law.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was successful, the Applicant sought costs in the scale amount.[105] I am satisfied that the Applicants are entitled to their costs in the proceedings on the basis that costs ought to follow the event.[106] I am further satisfied that it is appropriate to make an order for payment of the amount sought by the Applicants in the amount of $8,371.30 having regard to the scale and the extent of work undertaken as evidenced by the Court file.[107]
[105] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
[106] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[107] See 25.14 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate: MC
Dated: 28 August 2025
SCHEDULE OF PARTIES
MLG 4564 of 2019 Applicants
Fourth Applicant:
FEF19
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