FFX19 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1209

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

  1. 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.

  2. To obtain the relief sought the…

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FFX19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1209
Case
[2025] FedCFamC2G 1209
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia heard an application for judicial review brought by an applicant (FFX19) against the Minister for Immigration and Citizenship, challenging the decision of the Administrative Appeals Tribunal (AAT) to refuse a protection visa. The central issue was whether the AAT had misunderstood the "totality" of the applicant's claims. The applicant contended that the AAT had failed to properly consider the credibility of his evidence and the likelihood of harm he would face if returned to India.

The Court examined two grounds of judicial review. The first ground, concerning the applicant's claim that the Department had accepted his membership in the BNP and denied his fear of persecution, was found to be irrelevant to the Tribunal's decision. The Court noted that the applicant had not claimed membership in the BNP in his visa application or at the Tribunal hearing, and that the BNP and BJP were distinct organisations. The second ground, which claimed that the Department's assumption that the applicant had no adverse interest was not evidence-based, was also deemed unrelated to the applicant's claims and the Tribunal's findings.

The Court concluded that the applicant had failed to establish any jurisdictional error in the Tribunal's decision. The applicant's arguments were either irrelevant to the Tribunal's decision or lacked particulars, and thus did not demonstrate that the Tribunal had misunderstood the "totality" of the applicant's claims. The application for judicial review was dismissed, and no orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.