FEZ19 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1376

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FEZ19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1376

File number(s):

SYG 3430 of 2019

Judgment of:

JUDGE CLEARY

Date of judgment:

5 September 2025

Catchwords:

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether applicant denied procedural fairness – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed.   

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Migration Act 1958 (Cth)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

AZE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1097

BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445

WAJR v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] 204 ALR 624

Division:

Division 2 General Federal Law

Number of paragraphs:

62

Date of hearing:

20 August 2025

Place:

Parramatta

Applicant:

In person

Solicitor for the Respondents:

Ms A. Wilford of Sparke Helmore

ORDERS

SYG 3430 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FEZ19

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINSTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CLEARY
DATE OF ORDER:	5 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

REASONS FOR JUDGMENT

JUDGE CLEARY

INTRODUCTION

1. The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act).  The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 27 November 2019 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a protection (class XA) (subclass 866) visa (protection visa) under s 65 of the Act.

   BACKGROUND

2. On 10 January 2016, the applicant, a citizen of India, first arrived in Australia on a Transit (Class TX) (Subclass 771) visa.

3. On 24 February 2016, the applicant lodged an application for a protection visa on the basis that he feared police persecution, harassment, imprisonment and torture due to his political membership with the Marumalarchi Dravida Munnetra Kazhagam Party (MDMK).

4. On 5 April 2016, a delegate of the first respondent invited the applicant to arrange an interview to discuss his visa application.

5. On 11 August 2016, a delegate of the First Respondent refused to grant the visa on the basis that the applicant did not satisfy the criterion contained under subsection 36(2) of the Act and that the applicant was not a person in respect of whom Australia had protection obligations.

6. On 7 September 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

7. On 11 April 2017, the applicant provided further documents in support of his application.

8. On 7 November 2019, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 25 November 2019.

9. On 25 November 2019, the applicant appeared before the Tribunal with the assistance of a Tamil interpreter, to present arguments and give evidence.

10. On 27 November 2019, the Tribunal affirmed the decision under review not to grant the applicant’s protection visa.

    TRIBUNAL DECISION

11. The Tribunal commenced by setting out the background to the application for review, and identifying that it was an application for review of a delegate’s decision to refuse to grant a protection visa under s 65 of Act.

12. The Tribunal then considered the evidence before it, including country information, and the applicant’s written claims contained in the applicant’s protection visa application, the applicant’s written statement and the applicant’s oral evidence to the Tribunal given on 25 November 2025.

13. The Tribunal next set out its findings and reasons. It addressed the applicant’s credibility by reference to the applicant’s written claims in the applicants’ protection visa, his written statement and the oral evidence that he gave to the Tribunal.

14. The Tribunal at [41] noted that the applicant’s evidence raised issues regarding the veracity of his claims and that it had raised these issues with the applicant at the hearing. The Tribunal was not satisfied that the applicant addressed the concerns adequately.

15. These concerns were addressed separately by the Tribunal at [42] to [51] with the Tribunal noting inconsistencies between the applicant’s written evidence and oral evidence.

16. The Tribunal noted the applicant claimed to have joined MDMK in August 2013 and during his membership had developed a sufficiently high profile in the party that led to the applicant being beaten by opposing party members and threatened and tortured by police. The Tribunal considered the applicant’s evidence at [42] and determined that the applicant was not involved with MDMK in the way he described.

17. The Tribunal noted at [43] that applicant gave oral evidence that he had not attended a January 2015 meeting for the party, however, in written evidence submitted in the form of a letter from MDMK it was stated that the applicant had participated. The Tribunal raised concerns regarding the reliability of the letter.

18. The Tribunal considered the applicant’s contact with police at [44], noting that the applicant did not mention during his oral evidence that he had been tortured or mistreated by the police until prompted by the Tribunal. The Tribunal did not accept that the applicant had been harmed by the police, nor that he feared harm in the future from them.

19. The Tribunal then considered the applicant’s claimed injury to his left hand that had been sustained during a claimed politically motivated attack in May 2015. The Tribunal considered the medical evidence that the applicant had been treated for an injury to his left hand, however, during his oral evidence the applicant showed an injury to his left elbow. The Tribunal did not find the applicant’s explanation for the disparity on this matter between the medical evidence and his oral evidence persuasive.  Accordingly, the Tribunal did not accept the applicant was treated for an injury to his left hand in the period 14 May 2015 to 20 May 2015 and found his written evidence on this claim to be unreliable.

20. The Tribunal next considered a “First Information Report (FIR)” made on 30 September 2016, submitted by the applicant, which referred to an injury the applicant said he suffered as a consequence of a politically motivated attack. The Tribunal noted it was lodged after the date of the applicant’s protection visa application. The Tribunal found that the applicant had manufactured the claim referred to in the FIR.

21. The Tribunal noted that the applicant had failed to provide his MDMK membership card.  The Tribunal found that the applicant had not been involved in the MDMK party, and that he had not suffered harm due to his political membership of the MDMK.  The Tribunal found that considering his evidence overall, the applicant was not involved with promoting the MDMK as he had described. It also found that information contained in a letter from MDMK to demonstrate his membership which he provided to the Tribunal dated 2 October 2016 of the MDMK was unreliable.

22. Accordingly, the Tribunal at [52] found that it had serious doubts as to the reliability of the applicant’s evidence and found that the applicant was not a credible witness. The Tribunal did not accept the applicant’s claims relating to separate politically motivated attacks, that he had ever come to the adverse attention of police, that he had been denied assistance by the police, or that he had been threatened tortured or harmed by them. The Tribunal did not accept that the deaths of the applicant’s parents were at all associated with his political activity.

23. The Tribunal found that the applicant had manufactured his protection claims and that the applicant was not a person who has a well-founded fear of persecution for any of the reasons set out in the Act.

24. The Tribunal found that the applicant was not a person who was owed protection by Australia under s 36(2)(a) of the Act.

25. The Tribunal considered whether the applicant met the criterion for complimentary protection. The Tribunal, noting its finding that the applicant was an unreliable witness, did not accept the applicant’s claims that there was a real risk of harm if he was returned to India. The Tribunal at [58] found as follows:

    …the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, it finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.

26. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

    APPLICATION FOR REVIEW

27. On 23 December 2019, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 27 November 2019. The application contains two (2) grounds of review, both containing particulars. They are (as written):

    1.The Tribunal failed to consider all the documents which were already on record to prove that the applicant complied with the requirements of the Migration Act for the grant of protection visa.

    Particulars

    The Tribunal failed to consider the evidence on record which proves that the persecution by the ruling political party. I state that none of these documents were properly taken cognisance of by the Tribunal and the matter was disposed off stating that the document was manufactured without verifying the validity and the genuine nature of the document including documents issued by the Courts in India. The Tribunal having relied on the fact that fake documents can be produced from India failed to disclose the source of such information which amounts to violation of the provisions of the Migration act.

    2.The Tribunal was biased in its approach in relation to the evidence adduced by the applicant to substantiate his claims.

    Particulars

    The applicant procured medical certificate from Doctor regarding the an injury that occurred during a politically motivated attack on him. In para 30 the Tribunal states that such certificate in not genuine on the ground that if an Orthopaedic surgeon had issued a certificate then he would have described that location of injury as "elbow" and not "hand" .This is a mere of a speculation by the Tribunal .In India it may be possible that the Orthopaedic Surgeon may not be so well versed in English as he may have done his education in a local language and might have issued his certificate in English so that the people who are overseas can understand. There is no finding that the document was forged or fraudulent but simply states that the document is non genuine due to a misdescription of the location of injury.

28. On 20 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.

29. On 25 June 2025, the proceedings were docketed to me and set down before me for final hearing on 20 August 2025.

    HEARING ON 20 AUGUST 2025

30. At the hearing of this matter on 20 August 2025, the applicant appeared unrepresented, assisted by a Tamil interpreter. Ms Wilford of Sparke Helmore appeared for the first respondent.

31. This Court has duties to take appropriate steps to ensure that unrepresented applicants have sufficient information about practice and procedure of the court they are appearing in, so far as is reasonably practicable, for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 Hill J.

32. I consider, in cases such as the present where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong. 

33. Accordingly, dure the hearing I took the applicant through each of his three grounds of review and asked him what was meant by each ground. As to ground 1, the applicant stated it was all true. As to ground 2, the applicant told the Court, the medical certificate referred to was made by a doctor for whom English was a second language. He also re-iterated his claim, despite what the Tribunal found, that he sustained an injury to his left elbow. The applicant also made general submissions in support of his case to the effect that he had been in Australia for over 10 years, that he had problems in India, and he feared going back. 

34. Ms Wilford made brief oral submissions summarising the first respondent’s written submissions. Ms Wilford submitted that the matters raised by the applicant at the hearing before me did not support any arguable ground of jurisdictional error, and they only went to the merits of the applicant’s case in the Tribunal, which were not reviewable by this Court. I agree that the matters raised by the applicant at the hearing before me only went only to the merits of his claims in the Tribunal and are not reviewable in this Court.

35. The applicant made a brief submission in reply.  He essentially re-iterated what he already said in support of his case initially.  He also told the Court he wanted to stay in Australia.

    CONSIDERATION

36. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal's decision by reference to the applicants' complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17].

37. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ in: LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] – [3] and [32] (LPDT). 

38. Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error.

    Ground 1

39. The first ground of review is a challenge the findings made by the Tribunal about documents adduced by the applicant that were said to prove persecution by the ruling political party, the AIADMK.  The applicant alleges the Tribunal failed to consider these documents. 

40. The documents referred to by the applicant in this ground are described by the Tribunal at paragraph [9]-[10] as follows:

    9.When making his review application the applicant provided a copy of a First Information Report (FIR) made on 30 September 2016 (after the applicant made his visa application) by a relative which refers to an alleged incident on 14 May 2015. It is claimed the applicant, and his father-in-law were travelling on a motorcycle from their house in Mullurpattikkadu to Silambavelankadu. Someone stopped their motor bike. Another person shouted, 's baster' and used some 'unparliamentary' words and attacked the applicant with a wooden stick. His father-in-law saved the applicant from the attackers who threatened to kill the applicant next time they saw him. The applicant was then attacked by someone with an iron rod. His left hand was severely injured. The attackers escaped when the public rushed to the spot.

    10.The applicant also provided a translated photocopy of a letter dated 2 October 2016 from an unclear source stating the applicant joined MDMK in August 2013. It is claimed that, after the applicant left the party's General meeting in January 2015, he was stopped by two AIADMK supporters and abused and threatened. He lodged a complaint with the MDMK's Pattukkottai office. The AIADMK supporters were invited to the MDMK office and warned about their behaviour. Then on 14 May 2015 the applicant was attacked by the same men while returning a bike to his father-in-law. His left hand was severely injured. The men escaped. The applicant was taken to hospital and family members filed an FIR. Because the offenders belong to the AIADMK the police did not investigate. The party then helped the applicant escape. The applicant's mother died on 17 June 2015 and his father on 4 January 2016.

41. The claim the Tribunal failed to consider these documents is wholly misconceived. They were considered, and, as the first respondent correctly submitted, there is no obligation on the Tribunal to verify the genuineness of the documents he presented. Rather, relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-2, the first respondent submits, “the Tribunal was required to have regard to the material provided by the applicant in support of his claims and to give it what weight it considered appropriate”: see paragraph 21 of the first respondent’s written submissions. The first ground as expressed is unmeritorious and I would therefore reject it.

42. However, as the applicant is unrepresented, I have considered this ground as raising the type of jurisdictional error which was identified by the Federal Court in cases such as WAJR v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] 204 ALR 624 (WAJR) at [56] per French J and AZE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1097 (AZE18) at [53]. Namely, whether the findings went beyond the mere dissatisfaction as to the reliability of the documents (first category), and amounted to a highly prejudicial finding that the documents were concocted and/or fraudulent (second category).  If the documents fall under the second category the authorities such as WAJR are clear, the applicant should have been afforded procedural fairness under s 425 of the Act by being put on notice and afforded the opportunity to comment on such a finding before it was made. The failure to do so would be a jurisdictional error.

1. The first respondent submits the documents fell within the first category and therefore no obligation arose under s 425 of the Act. I agree for the following reasons.

2. The Tribunal did not make any finding that the applicant’s documents were manufactured, fraudulent or concocted, rather, the Tribunal found the applicant’s “claims” were manufactured: see paragraph [46] of the Tribunal decision.

3. At paragraph [52] of its decision, the Tribunal found that, overall, the Tribunal had serious doubts about the “reliability” of the applicant's evidence.  There was no finding the documents were either fraudulent or concocted.  Rather, it found the “information” in the letter dated 2 October 2016, said to be from the MDMK regarding its contact with opposition members, warning them about their misbehaviour, to be “manufactured” having regard to the Tribunal’s earlier finding that the applicant was not the subject of a politically motivated attack as claimed.  The Tribunal also said it was not satisfied the alleged injury to the applicant’s left arm, referred to in the FIR, was the subject of an Indian court claim because it did not accept that the applicant was injured in a politically motivated attack, and had serious doubts that an Indian Court would pursue the matter when the applicant was not in the country, and the claim was based on a report by a relative made nearly 18 months after the incident occurred. For these reasons, the Tribunal found that both the letter dated 2 October 2016, and the FIR lodged on 30 September 2016 were not reliable documents. Further, as the Tribunal noted, both these documents came into existence after the applicant made his protection visa application on 24 February 2016.

4. I am satisfied no error of the kind identified by cases such as WAJR was committed by the Tribunal in the present case. I find the applicant’s documentary evidence fell into the first category of documents referred to in WAJR, namely, findings that the documents were unreliable, and not the second category of fraudulent or concocted, and therefore no obligation arose under s 425 of the kind found in AZE18 at [53].

5. Ground 1 does not establish the Tribunal committed jurisdictional error.

   Ground 2

6. In ground 2 the applicant alleges the Tribunal was biassed in its treatment of the medical evidence provided to the Tribunal by the applicant, namely, a photocopy of a medical certificate in English from an orthopaedic surgeon dated 27 October 2016 (Medical Certificate) stating the applicant was an outpatient at Elangovan Hospital from 14 May 2015 to 20 May 2015 for treatment to his injured left hand.

7. In particulars to this ground the applicant says that the Medical Certificate’s misdescription about the location of the injury on the applicant’s hand can be explained on the basis that that the Orthopaedic Surgeon may not have been well versed in English.

8. The first respondent submits that this attempt to introduce this explanation only after the making of the Tribunal’s decision is an impermissible invitation for this Court to engage in merits review, and cites Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-2. The first respondent also submits that there is no evidence of bias.

9. The Tribunal’s discussed the difficulties it had with the Medical Certificate at paragraph [30] of the Tribunal decision where it said:

   The Tribunal noted that the applicant had claimed that his hand was injured during a politically motivated attack. It explained that, while it may accept that the applicant's hand was injured, it may not accept that he had been attacked because of any political association. He insisted that they hit him because of his political connection. The Tribunal referred to the letter from the hospital indicating he had been treated. It asked the applicant if he could show the Tribunal the scars on his left hand. He then showed the Tribunal a scar, about 1.5 cm x 2.5 cm, on his left elbow. The Tribunal indicated that this may suggest that his medical evidence indicating he attended hospital for treatment to an injured left hand is not genuine as it refers to an injured hand. He indicated that the doctor was referring to his left side when he said his left hand. The Tribunal explained that it may form the view an orthopaedic surgeon, writing medical evidence in English, would have referred to the applicant's elbow and not his hand if that was the case that he had required treatment for an injury to the elbow. It explained that it may not accept the applicant's medical evidence is genuine. The applicant indicated he was on a bike and someone punched him in the eye. Then they hit him on the left arm.

10. It found this evidence to be unreliable.  At paragraph [45] the Tribunal held that:

    The Tribunal also finds the applicant's evidence about the injury, allegedly sustained as a result of a politically motivated attack on 14 May 2015, to be inconsistent and unpersuasive. In his written application he indicated that his left hand was severely injured during the attack. He claims he was taken to the hospital. He provided medical evidence claiming that he was treated for an injury to his left hand by an orthopaedic surgeon from 14 May 2015 to 20 May 2015. However at the hearing when the Tribunal asked the applicant to show it the injury to his left hand he showed the Tribunal a scar on his left elbow. The Tribunal finds his explanation for why the orthopaedic surgeon would have referred to his left hand instead of his elbow unpersuasive. Accordingly, the Tribunal does not accept the applicant was treated for an injury to his left hand in the period 14 May 2015 to 20 May 2015. It finds his written evidence on this claim is unreliable.

11. The finding that the applicant’s explanation for why the doctor would have referred to his left hand instead of elbow was reasonably open to it for the reasons it gave. This was a factual finding that the Tribunal was “not satisfied about the reliability or genuineness of particular documents”, being a type of finding about a document where the Tribunal is not required to invite the applicant to comment upon before making: see WAJR at [56].

12. Further, there is no evidence, as the first respondent submitted, of pre-judgment by the Tribunal, or bias. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons for a decision. Further, the mere fact that the Tribunal makes adverse credit findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion: see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.

13. The only evidence before the Court to prove this allegation is the decision itself, there is no transcript of the hearing before the Tribunal Member.

14. On a fair reading of the decision there is no evidence of the Tribunal being so committed to a conclusion already formed about the applicant’s documents, including the Medical Certificate, as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 and see Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed.

15. I consider what the applicant is really seeking to do by this ground is to disagree with the Tribunal’s factual finding in paragraph [45] and invite the Court to undertake merits review of the findings and conclusions about the Medical Certificate which is not permitted in judicial review: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J.

16. Ground 2 does not establish the Tribunal committed jurisdictional error.

    CONCLUSION

17. For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by jurisdictional error.

18. As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.

19. The application is dismissed.

    COSTS

20. The first respondent seeks costs fixed in the sum of $5,000. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

Associate:

Dated:       5 September 2025