FFX19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1209
•1 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FFX19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1209
File number(s): SYG 3460 of 2019 Judgment of: JUDGE CLEARY Date of judgment: 1 August 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal misunderstood the “totality” of the applicant’s claims - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Attorney-General v Quin (1990) 170 CLR 1
AYH19 v Minister for Home Affairs [2019] FCCA 585
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 22 July 2025 Applicant: In person Counsel for the Respondents: Ms A. Wilford of Sparke Helmore ORDERS
SYG 3460 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FFX19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
1 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be amended to include an order seeking a writ of certiorari (or a quashing order) directed to the second respondent in respect of the decision made on 3 December 2019.
2.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
3.The application is dismissed.
4.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 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 under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the second respondent in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 3 December 2019 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Protection (Subclass 866) visa (protection visa) under s 65 of the Act.
To obtain the relief sought the applicant must prove that the Tribunal’s decision is vitiated by jurisdictional error: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76] and 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].
Courts have a limited role in judicial review proceedings. In reviewing the Tribunal’s decision, the Court does not consider the merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
FACTUAL BACKGROUND
On 23 June 2015, the applicant, a citizen of India, lodged an application for a protection visa. The applicant made the following protection claims (see Court Book page 172-173):
(a)The applicant was born in India in 1969. His family had strong religious affiliation in Islam, his family being one of the religious devotees in Hyderabad;
(b)From the time of his birth, the applicant’s family was oppressed by Hindu cadres.
(c)In 1990, he joined the All India Majlis-e-Ittehadu Muslimeen Party (AIMIM). His father contributed money to the AIMIM. Because of this, cadres of the Barathi Janata Party (BJP) always tried to ruin his family. On a number of occasions, they ransacked and looted his family house.
(d)He attended numerous party programs initiated by the AIMIM. He eventually became a leading activist for the party in 2004. The applicant worked for AIMIM candidates in elections and eventually won. In 2009 assembly elections, the applicant campaigned again for the same AIMIM candidate. Again in 2014, the applicant worked for the same AIMIM candidate.
(e)The applicant’s shop was vandalised after the 2014 election, and an employee was injured. He believed “TDP and BJP activists were involved”. He did not report this incident because Muslim people are not treated well by the police.
(f)In India, he was targeted as a devotee Muslim and because he was an activist of the AIMIM party. Due to the 2014 incident, along with other cruel and discriminatory behaviour, he was compelled to leave India. He believed he was a “captive in [his] own land” and there was no protection from the Government.
On 17 June 2016, the applicant attended an interview with the delegate. At that interview the applicant provided the delegate with several media articles and sought to expand and clarify his claims. In particular, during the interview the applicant gave a different account as to when his shop was vandalised. He told the delegate his shop was vandalised in 1997, and not in 2014.
On 13 July 2016, the delegate of the first respondent refused to grant the visa on the basis that it was not satisfied that the applicant satisfied s 36(2) of the Act.
On 2 August 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 2 October 2019, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 13 November 2019.
On 13 November 2019, the applicant and his representative appeared before the Tribunal.
On 3 December 2019, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.
TRIBUNAL’S DECISION
The Tribunal identified that the main issue before it was the credibility of the applicant and whether, on the accepted claims, the criteria for protection under the Act had been satisfied.
The Tribunal carefully identified and analysed four inconsistencies in the applicant’s evidence in respect of: (i) the catalyst for him coming to Australia; (ii) his claimed level of political involvement; (iii) his traveling to the US on three occasions in 2011, 2012 and 2013 and his failure to make any application for the equivalent of a protection visa in the US on those occasions; and, (iii) his work history. The Tribunal considered that these matters cumulatively significantly undermined the truth of his key claims.
The Tribunal did not consider the applicant to have been truthful in his evidence. It was not satisfied that: (i) the applicant was a 'leading activist' of AIMIM who made public speeches; (ii) that the applicant's shop being vandalised in either 2014 or 1997 and an employee being injured was a result of his political activities; (iii) that the applicant was physically injured on any occasion by political opponents or that his family home was ransacked and looted; or, that (iv) the applicant suffered oppression constituting either serious or significant harm from the mainstream Hindu community over the course of his life because of his Muslim practice and/or his political activity. The Tribunal was not satisfied that the applicant had a subjective fear of, or that there was a real chance of, serious or significant harm for the reasons claimed, namely, his longstanding political involvement associated with his religion.
The Tribunal was prepared to accept that the applicant was involved with AIMIM as an ordinary member and would assist in election campaigning principally by door knocking and promoting the party to residents. On the applicant’s own evidence, he was merely an ordinary member of AIMIM. The Tribunal accepted the applicant was from a well-off family who donated money to AIMIM, however, was not satisfied that the applicant was a leader or otherwise had a high political profile.
After looking at research provided to the Tribunal, at its request, and provided to the applicant at the hearing, the Tribunal accepted that there could be tension involving violence relating to AIMIM political activity in Hyderabad, and that leaders of AIMIM were subject to physical harm, but was not persuaded that an ordinary member would face a real chance of serious or significant harm.
The Tribunal was not satisfied that the applicant had a profile which caused him to be singled out and targeted by the BJP or any other political groups or individuals. The Tribunal was prepared to accept that the applicant, if he returned to India, would continue to be an ordinary member of AIMIM, have some involvement with the organisation in terms of providing financial support and door knocking during election campaigns. The Tribunal noted that, in detail exploration with the applicant as to the nature of his political involvement, the applicant made no mention of being involved in demonstrations and protests, and therefore, the Tribunal was not satisfied that the applicant would be involved in political protests and demonstrations as part of his political involvement.
The Tribunal was not satisfied based on independent evidence before it that an ordinary member of AIMIM whose activities were limited to door knocking and financial support would face a real chance of serious or significant harm based on such involvement. Nor was it satisfied that the applicant had a political or religious profile that would exacerbate the risk of harm.
Considering all of the claims and evidence, the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm on return to India for any of the reasons claimed. Accordingly, the Tribunal found that the applicant did not satisfy ss 36(2)(a) or (2)(aa) of the Act, and accordingly affirmed the delegate’s decision refusing to grant the protection visa.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 30 December 2019, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 3 December 2019. The application contains four (4) grounds of review. They are (as written):
1.The Second Respondent has accepted that the applicant belongs to the BNP in Australia and the Second Respondent denied that the applicant bears a real fear of persecution.
2.The Second Respondent assumed that the applicant does not have adverse interest, but this assumption is not based any evidence.
3.The Second Respondent misunderstood the totality of the claim and basis of the misconception made the decision.
4.The Second Respondent denied that the applicant is subject of the false cases without any investigation.
On 10 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.
On 10 June 2025, the proceedings were docketed to me and set down before me for final hearing on 22 July 2025.
Technical deficiency in the application
The application, as filed, contained a technical deficiency. In the application, as filed, the applicant only sought an order for a writ of mandamus and did not seek an order that the decision of the Tribunal be quashed (also referred to as an order for certiorari). As the applicant is unrepresented, it is open to the Court, with the Applicant’s consent, to amend the application at the hearing, so it seeks the appropriate relief: see AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585 at [20] and Sharma v Minister for Immigration & Anor [2018] FCCA 2152 at [13] and more recently, CZL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1301 at [29].
At the hearing on 22 July 2025, both the applicant and the first respondent consented to the application being amended to correct the deficiency. An order will be made amending the application so that it correctly seeks both a quashing order (an order for certiorari) and mandamus against both respondents.
Hearing on 22 July 2025
At the hearing of this matter on 22 July 2025, the applicant appeared, unrepresented, with the assistance of an interpreter. Ms Annabelle Wilford of Sparke Helmore appeared for 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, to be admitted as evidence.
After admitting the Court Book as evidence, I invited the parties to make oral submissions. As the applicant was legally unrepresented, the Court has a duty to take appropriate steps to ensure that the applicant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Gounder v Mansfield as trustee of the bankrupt estate of Gounder [2025] FCA 856per Hill J and SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing).
The Federal Court has held that the appropriate procedure in cases such as the present where the applicant seeks relief in respect of a decision concerning an application for a protection visa, and is appearing on his own behalf, is to give the applicant an opportunity to explain orally what he meant by each of their ground of review as they appear in their application to this Court: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [9].
Accordingly at the hearing, I took the applicant through each of the four (4) grounds of review in his application and asked him if he wanted to make any submission about them, and to tell the Court why he considered the Tribunal’s had made a made a jurisdictional error. I explained to the applicant what jurisdictional error meant in broad terms, and asked him if he could tell me what mistake the Tribunal made or why it “got it wrong”. The applicant made brief submissions on ground 1. On ground 2 he said that he did not understand it. When asked if he wanted to say anything about grounds 2 to 4, he told the Court, no. Then, I asked the applicant if he wanted to make any other submissions as to his case more generally. The applicant made some brief submissions generally in support of his case, and briefly in reply to Ms Wilford.
Ms Wilford made brief submissions to the matters raised orally by the applicant but was otherwise content to rely upon the first respondent’s filed written submissions.
CONSIDERATION
Below the Court sets out its consideration of the grounds of judicial review in this matter, and whether the Tribunal’s decision is affected by jurisdictional error.
Ground 1
In ground 1, the applicant asserts that the second respondent has accepted that the applicant “belongs to the BNP in Australia” and the second respondent “denied that the applicant bears a real fear of persecution”. This ground of review is not particularised.
As I outlined above, at the hearing I asked the applicant to explain orally what he meant by ground 1. The applicant told the Court, in relation to this ground, that when he talked to Department officers during his first interview (I infer, the interview before the delegate), he did not understand them. He also told the Court his lawyer was with him at that time, and that he did not know the word, “BNP”.
The first respondent in its written submissions argued ground 1 had no relevance to the facts as found by the Tribunal in the decision or the claims made by the applicant in the Tribunal. I agree. I further note that in his original visa protection application the applicant claimed cadres of the “BJP” tried to ruin his family. The “BJP” and the “BNP” are completely different organisations from different countries. The BNP, as I understand, is an acronym for the “Bangladesh Nationalist Party”, a political party in Bangladesh. The BJP is an acronym for the “Barathi Janata Party”, a political part in India. The applicant is not, nor has he ever claimed to be, a member of the BNP either in his protection visa application or at the Tribunal hearing. Neither did the applicant ever claim that he belonged to the “BNP in Australia”. At the hearing, the applicant did not know who the “BNP” was.
Ultimately, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [44]-[45] and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (SZGUR). Despite being given the opportunity to tell the Court what he meant by ground 1, the applicant has not been able to identify any arguable jurisdictional error in ground 1.
Thus, I accept the first respondent’s submissions that ground 1 does not establish the Tribunal committed jurisdictional error.
Ground 2
Likewise in ground 2, the applicant has pleaded a ground of review which is meaningless on its face, without particulars. It claims, without any context, that “the second respondent assumed that the applicant does not have adverse interest, but this assumption is not based on any evidence”.
As the first respondent submits, no claim that the applicant was or was not a person of “adverse interest” was ever made by the applicant in these terms. The ground is totally unrelated to the claims made by the applicant, and factual findings made by the Tribunal.
At the hearing before me, as described above, I gave the applicant an opportunity to explain orally what he meant by ground 2. The applicant declined to take up that opportunity.
As stated above, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal, which the applicant has failed to do in respect of ground 2: see SZGUR at [67].
Ground 2 does not establish the Tribunal committed jurisdictional error.
Ground 3
In ground 3 the applicant claims that the Tribunal committed jurisdictional error by misunderstanding the “totality” of the claims and appears to assert that its decision was misconceived. Again, there are no particulars given for this ground of review.
At the hearing before me, again, I gave the applicant an opportunity to explain orally what he meant by ground 3. The applicant did not take up that opportunity.
The first respondent submitted ground 3 does not establish the Tribunal committed jurisdictional error. For the following reasons, I agree with that submission.
The Tribunal’s reasons at [75]-[76] make it clear that the Tribunal was under no misunderstanding or misconception of the applicants claims or evidence given to the Tribunal. At [75]-[76] the Tribunal set out its understanding of the claims being made in the following way:
75.Before considering credibility, the Tribunal considers whether claims are being made on the basis of the applicant’s religion alone. The written claims tend to indicate that claims are being made on the basis of the applicant being a Muslim. This was discussed with the applicant in the hearing. The Tribunal indicated that it would not be inclined to consider, based on independent information including the DFAT report, that there is a real chance of serious or significant harm being faced in India by Muslims based on being members of that religion alone. In response, the applicant indicated that his risk of harm is based on his political connection as associated with his Muslim religion. In further discussion on this issue, the applicant and his migration agent indicated that a claim is not being made that the applicant faces harm requiring protection based on simply being an Indian Muslim.
76.On that basis, the Tribunal does not consider that the claim is being made that the applicant faces a real chance of serious or significant harm based on being a Muslim alone. The claim by the applicant is that he faces harm as a result of his political involvement with AIMIM, a Muslim political party, combined with the applicant's religion.
In other words, the Tribunal identified that the applicant claimed to fear harm if he returned to India on the basis that he faced a real chance of serious or significant harm because of his Muslim faith and because of his involvement with the AIMIM. As the first respondent correctly pointed out in its written submissions, the Tribunal’s statements in [75] and [76] are in reference to oral submissions made by the applicant at the hearing before the Tribunal on 13 November 2019. It appears from [75] that both the applicant and his representative indicated to the Tribunal that a claim was not being made that the applicant faced harm requiring protection based on simply being an Indian Muslim. This led the tribunal to conclude in [76] that the claim by the applicant was being put on the basis that he faced harm as a result of his political involvement with a AIMIM, a Muslim political party, combined with his religion.
For this reason, any argument that the Tribunal misunderstood the “totality” of the applicant’s claims must be rejected. Further, I agree with the first respondent’s submission that on proper reading of the Tribunal’s decision the Tribunal sets out a comprehensive summary of the evidence, including the applicant’s oral and documentary evidence. It also sets out at length the country information identified by it as being relevant to the review.
For example, at Court Book page 173 to 177, the Tribunal sets out both the oral evidence given by the applicant together with a detailed analysis of the written documents provided by the applicant to the Department and a number of news reports and articles provided to the tribunal by the applicant migration agent at the hearing on 13 November 2019. The Tribunal then sets out at length from Court Book page 179 to 182 an analysis of relevant independent country information (from the Department of Foreign Affairs and Trade) regarding discrimination based on the Muslim religion in India and information (from the Department of Home Affairs) regarding the AIMIM and the harm experienced from the BJP in India.
I am satisfied, based on my review of the Tribunal's decision, that it well understood the claims made by the applicant and the evidence in support of those claims. I agree with the first respondent’s submission that there is no basis to infer the Tribunal failed to consider any claim that was expressly made to it or which could be said to clearly arise from the material before it: see NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1.
After correctly identifying and understanding the applicant's claims, and after examining all of this evidence, the Tribunal made the following finding at [77] as to the applicant’s subjective fear:
77.Considered cumulatively the four credibility concerns are significantly undermining as to the truth of key claims made by the applicant. The Tribunal does not consider that the applicant has been truthful in his evidence. The Tribunal is not satisfied that the applicant was a 'leading activist' of AIMIM who made public speeches. The Tribunal is not satisfied that the applicant's shop was vandalised in either 2014 or 1997 and an employee injured as a result of the applicant's political activities. The Tribunal is prepared to accept there was an incident in 1997 when the applicant's shop was vandalised, and an employee injured but the Tribunal is not satisfied that this was due to political activity by the applicant. The Tribunal is not satisfied that the applicant was physically injured on any occasion by political opponents or that his family home was ransacked and looted. The Tribunal is not satisfied that the applicant suffered oppression constituting either serious or significant harm from the mainstream Hindu community over the course of his life because of his Muslim practice and/or his political activity. The Tribunal is not satisfied that the applicant has a subjective fear of, or that there is, a real chance of serious or significant harm for the reasons claimed, namely his long-standing political involvement associated with his religion.
Then, at [88] – [89] the Tribunal made the following finding as to whether the applicant faced a real chance of serious or significant harm if returned to India:
88.The Tribunal is not satisfied on the independent evidence before it that an ordinary member of AIMIM whose activities were limited to doorknocking and financial support would face a real chance of serious or significant harm based on such involvement. As indicated, the Tribunal is not satisfied that the applicant has a political or religious profile beyond this that would exacerbate the risk of harm.
89.Considering all of the claims and evidence, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to India for any of the reasons claimed.
These findings were open to the Tribunal on the evidence before it.
Ground 3 does not establish the Tribunal committed jurisdictional error.
Ground 4
Ground 4, like ground 2, pleads a ground of review which is meaningless on its face, without particulars. Again, the applicant never made a claim that he was or was not a person who was “subject to false cases”.
At the hearing before me, I gave the applicant an opportunity to explain orally what he meant by ground 4. The applicant did not take up that opportunity.
This ground, on its face, is totally unrelated to the claims made by the applicant, and factual findings made by the Tribunal.
Again, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal, which the applicant has failed to do in respect of ground 4: see SZGUR at [67].
Ground 4 does not establish the Tribunal committed jurisdictional error.
Matters raised orally at the hearing by the applicant
As I outlined above, after taking the applicant through his 4 grounds of review I gave him the opportunity to make any submissions he wanted to make generally in support of his case as to why the Tribunal made a jurisdictional error (or as I described it to him, a serious mistake).
Applicant’s oral submissions
The applicant told the Court that when he attended the interview before the delegate, with his lawyer, he did not understand what was being asked of him as he was not given an interpreter. He told the Court that when he attended the oral hearing before the Tribunal member in 2019, with his representative, he did not understand the questions he was asked because he did not have an interpreter.
The applicant took the Court to paragraph [48] of the Tribunal's decision at page 183 of the Court Book. The applicant submitted that paragraph [48] contained evidence of a communication that occurred between the Tribunal Member and the applicant's lawyer at the Tribunal hearing which the applicant did not understand as he was not provided with an interpreter.
I asked the applicant if he had anything further to say. He told the Court that when he goes back to the Tribunal, he would need an interpreter.
At the conclusion of the applicant’s oral submissions, I drew his attention to a document at page 122 to 124 of the Court Book, which was a document titled, “Response to hearing invitation - MR Division” (Response to Hearing Invitation). I took the applicant to page 124 of the Court Book and asked him if that was his migration agent’s signature, to which he said “yes”. I also drew the applicant’s attention to page 122 of the Court Book, in Part 2, where in answer to the question of whether the applicant or any other person attending the Tribunal hearing needed interpreter, the “no” box had been ticked. I asked the applicant if that was done by his lawyer, he said it was done by his migration agent.
First respondent’s oral submissions in reply
Ms Wilford made the following oral submissions in reply to the oral submissions made by the applicant. She submitted:
(a)In so far as the applicant is complaining about the lack of an interpreter at the delegate’s interview, this Court does not have jurisdiction under s 476 of the Act to review the delegate’s decision as it was a “primary decision” within the meaning of s 476(4)(a) of the Act, and thus not reviewable by this Court.
(b)In so far as the applicant is seeking to give a reason why he made inconsistent statements at the Tribunal hearing, because of the absence of an interpreter, then that argument must be rejected. Ms Wilford submitted the only evidence of what had occurred at the Tribunal hearing was the Tribunal’s decision record (there being no transcript of the hearing in evidence). Ms Wilford submitted that the decision record does not contain any evidence that the applicant’s representative, or the applicant himself, either had translation issues, or that the applicant could not understand the questions he was being asked by the Tribunal member.
(c)In relation to paragraph [48] of the Tribunal’s decision, that paragraph merely contains a summary of the evidence given by the applicant to the Tribunal, and what the applicant told the delegate, it does not show the applicant issues with translation.
(d)There was no other information in the Court Book which was before the Tribunal which could suggest that the applicant had translation issues.
Consideration of matters raised by the applicant orally at the hearing
The matter raised by the applicant at the hearing did not concern defects or irregularities in translation and interpretation. Rather, in summary, the complaint made by the applicant was that he was denied the opportunity to have an interpreter present at both the interview before the delegate, and at the Tribunal hearing. As a consequence of this, the applicant submits that he did not understand the questions he was being asked by the delegate and by the Tribunal member.
In so far as the applicant makes a complaint about the delegate’s decision, this Court does not have jurisdiction to review the delegate’s decision. That is because the delegate’s decision is not a “migration decision” within the meaning of s 476 of the Act. Rather, the delegate’s decision is a “primary decision”, being a decision that is reviewable under Part 7 of the Act: see s 476(4)(a). Under section 476(2), this Court does not have jurisdiction in relation to a “primary decision”.
In so far as the applicant makes a complaint about translation issues in relation to the Tribunal decision, I reject the applicant's arguments for the following reasons.
Firstly, it is clear from the Response to Hearing Invitation, signed by the applicant’s migration agent (Court Book page 124) and emailed to the Tribunal on 7 November 2019, that the applicant indicted to the Tribunal that he did not require an interpreter at the hearing scheduled for 13 November 2019. It is clear from the Tribunal’s hearing record (Court Book page 126-127) that the Tribunal, unsurprisingly, followed that instruction as no interpreter is recorded to have been present during the hearing on 13 November 2019.
Secondly, it is clear from the Tribunal’s decision no issue was raised by either the applicant’s representative, or the applicant himself, about the absence of an interpreter, or any lack of understanding the applicant had about the questions he was asked by the Tribunal Member during the Tribunal hearing. The applicant in his oral argument pointed to paragraph [48] as evidence that he did not understand what was being asked of him by the Tribunal Member.
Paragraph [48] is as follows:
The Tribunal sought the applicant's explanation in the hearing as to why the original written statement makes claims which are not true. The applicant did not provide an explanation other than to indicate that it must be a mistake or misunderstanding. In the interview with the delegate when this inconsistency was put to the applicant, he indicated that it must be due to a miscommunication with his agent who prepared the application.
I do not accept the applicant's argument that paragraph [48] is evidence of a lack of understanding by the applicant of the questions the Tribunal Member was asking him at the Tribunal hearing. Rather, it contains part of the Tribunal’s reasoning process which commenced at paragraph [46] leading to the conclusion at paragraph [77] that the applicant had not been truthful in his evidence. In paragraph [48], the Tribunal records what had happened at the Tribunal hearing when he asked the applicant why the original claim in his protection visa application was not true. In his protection visa application, the applicant had claimed that his shop was vandalised, and an employee injured after the applicant’s involvement in the 2014 election, whereas before the delegate and in evidence given to the Tribunal, he said that these events had occurred in 1997, not in 2014. The Tribunal observed that at the Tribunal hearing the applicant did not provide an explanation other than to indicate it must be a mistake or misunderstanding, whereas, before the delegate the applicant indicated it must be due to a miscommunication with his agent who prepared the application.
Contrary to the applicant’s oral submissions, paragraph [48] of the Tribunal’s decision does not contain evidence which shows that the applicant did not understand questions that were being asked of him at the Tribunal hearing because he did not have an interpreter.
For these reasons nothing that was submitted orally by the applicant at the hearing before this Court establishes the Tribunal committed jurisdictional error.
DISPOSITION
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision, noting the Court's obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114].
The application is dismissed.
COSTS
I invited submissions from the parties on costs. Ms Wilford sought an order that the applicant pay the first respondent’s costs in the sum of $5,000, which, she submitted, was less than scale amount under Schedule 2 to the Rules, of $8,371.30. The applicant did not object to the amount but said he could only pay half that amount. I told the applicant he could communicate with Ms Wilford after the hearing about issues regarding payment of the costs amount. I consider the amount is reasonable given these types of matters. I will make an order for costs in this amount.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 1 August 2025
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