MBJY v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1109
•6 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MBJY v Minister for Immigration and Citizenship [2025] FedCFamC2G 1109
File number(s): PEG 85 of 2025 Judgment of: JUDGE LIVERIS Date of judgment: 6 June 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – matter has a migration history and visa history – allegations of loan lenders with high profile gangsters – whether the Tribunal misconstrued significant harm – whether the Tribunal’s decision was legally unreasonable – jurisdictional error not established – application dismissed with costs
PRACTICE AND PROCEDURE – APPLICATION FOR AN ADJOURNMENT OF THE HEARING – where the applicant would like to be legally represented – where there is no certainty of legal representation – where the discretion to adjourn the hearing is not enlivened
Legislation: Legal Profession Act 2008 (Cth)
Migration Act 1958 (Cth) ss 5J(4), 36, 36(2), 36(2)(a), 36(2)(aa), 501(3A), 501, 501CA
Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 Schedule 2 Part 2 Division 1
Migration Regulations1994 (Cth)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABJ19 v the Minister for Home Affairs [2020] FCA 136
AJR 24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1237
BAX15 v Minister for Immigration and Border Protection [2016] FCA 491
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384,
CCW17 v Minister for Immigration & Anor [2017] FCCA 2622
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
DZT20 v Minister for Immigration and Multicultural Affairs [2025] FCA 286
GPG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] Division 2 1120
Minister for Immigration and Citizenship v SZJSS (2010) HCA 48; 243 CLR 164
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 116 Date of hearing: 5 and 6 June 2025 Place: Perth Counsel for the Applicant: The Applicant appearing in person Counsel for the First Respondent: Ms Scott Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 85 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MBJY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
6 JUNE 2025
THE COURT ORDERS THAT:
1.The application made by the applicant for an adjournment of the hearing on 5 June 2025 be dismissed.
2.The name of the of first respondent will be amended to Minister for Immigration and Citizenship.
3.The application filed on 26 February 2025 be dismissed.
4.The applicant pay the Respondent's costs fixed in the sum of $7,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of India.
By application filed on 26 February 2025, he has applied for judicial review of a decision of the Administrative Review Tribunal that was made on 22 January 2025. The decision that is being reviewed is a decision by the Tribunal to affirm a decision of the delegate that was made on 14 September 2023 to refuse to grant the applicant a Class XA subclass 866 protection visa.
The applicant had applied for the protection visa on 14 June 2023. Before turning to the Tribunal's decision and the judicial review proceedings, I observe that the applicant and this matter has a migration history and visa history that is not uncomplicated and which I will set out by way of introduction and to an extent to contextualise the grounds of review and also the Tribunal's decision within the context of the claims for protection as they were made by the applicant. I will use abbreviations as to the identity of people as they exist throughout the records of decisions that are already produced.
ADJOURNMENT APPLICATION
The applicant has applied to adjourn the final hearing that is listed today. The application was made orally and without an affidavit, though I received sworn evidence from the applicant orally in support of the application. I have also received some documentary exhibits from both the applicant and the respondent.
The proceedings were filed on 26 February 2025. On 27 March 2025, the Minister submitted a response which included remarks that as the applicant is in immigration detention at Yongah Hill Immigration Detention Centre, the matter requires appropriate expedition.
On 11 April 2025, a registrar made procedural orders, including giving the applicant the opportunity to file and serve 28 days before the hearing written submissions, any amended application with particulars of the grounds of the application, and any additional evidence on which he seeks to rely.
On 23 April 2025, a notice of listing was issued to the parties setting the matter for a final hearing on 5 June, at 2 pm. The applicant has acknowledged in his evidence, if not his submissions at least, that he received the email and understood the matter was listed for a final hearing on that day. The basis of the adjournment request is effectively that the applicant would like to be legally represented in the proceedings.
The documentary evidence that I have received shows that on 21 May 2025 - and this is consistent, I should say, with the applicant's oral evidence - that he contacted the Legal Aid Commission about his case. This is, of course, after the notice of listing - several weeks after the notice of listing was sent and also some weeks after the court book, which is a document of substantial volume, was sent to the applicant in or around late April. He contacted Legal Aid on 21 May 2025. He said that he waited because he was under a lot of stress about his circumstances and he also said that he was depressed and that he did not know what to do.
But he said that he was prompted to contact the Legal Aid Commission because he received an email from the court providing him, as I understand it, essentially some access to some organisations that may be able to provide him with legal assistance. I do not have that email, but I accept that the applicant was prompted to contact the Legal Aid Commission because of correspondence he received. He spoke with a lawyer at Legal Aid about his case - or he spoke with someone at Legal Aid about his case. That person formed the view that it was complicated and told him that, and they suggested to the applicant that he needed a lawyer and referred him to Law Access. The email goes on to say that he has never been to - the applicant says he has never been to the Federal Court before and does not know the court process.
That is not quite right in the applicant's litigation history, though I appreciate that in the previous litigation history it seems to me that the applicant was represented, so perhaps it is right to say that he has never been in a court process before self-represented. But in any event, he goes on to say that he thought the hearing on 5 June was just a directions hearing, but it has since been confirmed with him that it was a final hearing. So it seems to me that at least as at 21 May 2025 the applicant was aware that the matter was listed for a final hearing today. He contacted Law Access on the same day, and I have received those emails - the relevant emails in that respect as well.
The email from Law Access says to the applicant in shorthand that his application was assessed - his application for pro bono legal assistance was assessed. He had instructed that the matter was listed for a final hearing on 5 June, and it tells him that the organisation does not organise assistance where matters are too urgent to ask a pro bono lawyer for help and, in that case, it meant that Law Access was not able to organise assistance for him. A footnote to that remark in italics is that - says:
If your matter is adjourned to a later date for any reason, please let us know and we can reassess your application.
It provides some other options for legal assistance, though, stating:
We -
they, Law Access -
cannot guarantee any service will assist you.
And goes on to provide - at least I can see one - Circle Green Community Legal, but the applicant confirmed that he did not take any steps to contact any other lawyer at that time.
In relation to the question of legal representation generally, it is established that there is no right to legal representation in migration proceedings. In GPG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] Division 2 1120, Judge Lucev set out the principles that apply to legal representation in migration proceedings in the context of adjournment applications at paragraphs [13] through to [19] as follows:
13 In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 (“SZHTI”) at [3]-[4] per Gyles J, the Federal Court observed as follows:
3 The first paragraph of the affidavit in support of the application is:
I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.
4That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
14 In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 (“SZQRU”) at [24] per Katzmann J the Federal Court observed that there is no right to legal representation and procedural fairness does not require that a person be legally represented.
15 The observations of the Federal Court in SZHTI and SZQRU that there is no right to legal representation in this Court have been regularly applied over the years in this Court (and its statutory predecessors): see, for example, ELE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1091 at [33] per Judge Ladhams; EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 638 at [31] per Judge Given; ATD16 v Minister for Immigration [2018] FCCA 139 at [31] per Judge Nicholls; WZAWB v Minister for Immigration [2016] FCCA 1345; (2016) 309 FLR 398 at [86]-[90] per Judge Lucev; SZTSY v Minister for Immigration [2015] FCCA 229 at [26] per Judge Nicholls; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. Likewise, the Federal Court has regularly applied SZHTI and SZQRU: see, for example, ELR18 v Minister for Home Affairs [2019] FCA 1583 at [34] per Snaden J; Maere v Minister for Home Affairs [2018] FCA 1694 at [8] per Bromberg J; Babar v Minister for Immigration and Border Protection [2017] FCA 655 at [52] per Siopis J.
16 Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to grant an indulgence (such as an adjournment), waive a requirement or extend a relevant time limitation: and particularly so when considering the weight to be accorded to any delay by an applicant: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J.
17 The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a) of the FCFCOA Act. That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
18 Under r 10.01(3)(r) and (s) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court can make orders or directions in relation to hearing date and any other matter considered appropriate, and therefore has power to adjourn proceedings if it sees fit to do so. Those paragraphs are civil practice and procedure provisions: FCFCOA Act, s 190(4)(a).
19 In considering GPG18’s request for a further adjournment of the hearing the Court has a broad discretion to grant or not grant an adjournment: Myers v Myers [1969] WAR 19 at 21 per Jackson J; FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293 at [15] per Judge Given. That broad discretion is exercisable having regard to the overarching civil practice and procedure provisions under s 190 of the FCFCOA Act.
That summary refers to the court's broad discretion to grant or not grant an adjournment and that it is exercisable having regard to the overarching civil practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021. It also makes the point that although there is no right to legal representation in migration proceedings, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account in considering whether to grant an indulgence such as an adjournment.
Additionally, in AJR 24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1237, Judge Ladhams in considering an application for an adjournment made on the day of the hearing to obtain legal advice acknowledged that there will be an inefficient use of court resources if the hearing does not proceed and further acknowledged that there is a lost opportunity for another matter to be heard.
Her Honour determined that that is a significant consideration in light of the significant backload of migration cases pending before the court. Indeed, that was a matter also referred to by Judge Lucev in GPG18, where his Honour acknowledged that:
...case management considerations weigh against the exercise of the discretion, particularly so when the court already has a backlog of many thousands of unheard migration judicial review cases dating back to at least 2018.
And so his Honour determined that:
...it is important to consider the effect on other litigants who might be denied a final hearing date by reason of an adjournment and a relisting of the matter.
I acknowledge that this matter has a reasonably short history insofar as these particular proceedings in this court are concerned. The matter was filed on 26 February 2025, as I said, and procedural orders made soon thereafter in circumstances where the Minister sought an expedited hearing given the applicant's status is in immigration detention. Whilst I appreciate the limitations that self-representation and being in immigration detention may have on a person, the applicant has not complied with any of the procedural orders that were made on 11 April 2025. There are three broad grounds of review that are pleaded. The first goes to a failure to consider the best interests of the applicant's Australian citizen son.
The second being a failure by the Tribunal to properly consider the risk of harm under the complementary protection criterion. And the third, broadly speaking, being couched in terms of the denial of procedural fairness and legal unreasonableness.
As I have said, the notification of the hearing was on 23 April 2025. The Minister filed and served a court book and written submissions, and yesterday I received responsive written submissions from the applicant, which in some respects clarify and expand upon the issues in the review and particularly, for example, in respect of the first ground where the applicant accepts that the particular ministerial direction does not apply but nonetheless mounts an argument as to why the best interests of his son ought to still be, in his words, a key part of the decision.
I accept that the applicant has shown some proactivity at a point in time, albeit after not having taken steps to try and progress legal representation. However, unlike was the case in AJR24, there is no certainty that a lawyer will be able to advise and represent the applicant if I grant an adjournment. There is not any certainty that if I adjourn the matter today to some unknown future listing date that he will be able to obtain a lawyer from Law Access, or indeed anyone else, given that he is seeking pro bono assistance. The highest that the Law Access email goes is to say that his application can be reassessed. In my opinion, it is not appropriate in the interests of the administration of justice to delay the matter. I consider it to be in the interest of the administration of justice for the adjournment to be refused and for the hearing to proceed today.
Although I am mindful that the applicant has not complied with the orders that were made by the registrar but has made written submissions recently, I will provide him with an opportunity to expand and clarify and add to his grounds of review consistent with the Federal Court decisions of BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 and DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784. So, MBJY, I will make an order dismissing the application to adjourn the hearing and I will proceed with the hearing today.
APPLICATION FOR REVIEW
The applicant arrived in Australia in October 2008 on a student visa. He was granted a subclass TU572 visa and then two partner visas, a temporary UK-820 visa and then a permanent BS-801 visa respectively. Over the following years, he entered Australia on multiple occasions, including his last entry on 25 September 2016.
In short summary, the applicant's personal circumstances are that he met his wife, VS, in 2009, and they were married in December 2010. The applicant obtained permanent residency in 2012 through the permanent partner visa that was granted to him. The applicant's wife has two children from a previous relationship, and the applicant and his wife have a son together, JS, who was born in 2015.
In the first half of 2017, the applicant was charged with a number of offences against VS's two children. The applicant was charged and released on bail with conditions including prohibiting him from contacting VS's two children and precluding him from attending certain places or locations.
On 31 May 2018, after trial, the applicant was acquitted of offences concerning one of his stepchildren, but he was convicted after the trial of three offences concerning the other stepchild. He was sentenced to two years and eight months imprisonment to be served concurrently, making an effective prison term of 12 months that was subject to parole. He was eligible for parole after six months.
On 5 July 2018, the applicant's permanent partner visa, BS-801, was cancelled because of the convictions. The cancellation was made under section 501(3A) of the Migration Act1958 on the basis that the applicant had a substantial criminal record and was serving a sentence for imprisonment on a full-time basis in a custodial institution for an offence against the law of Western Australia.
The applicant was granted parole on 20 November 2018 and on 5 December 2018 he was detained as an unlawful non-citizen. However, before that, on 11 July 2018, the applicant sought to revoke the decision to cancel his permanent partner visa. On 15 March 2019, the delegate refused to revoke the cancellation of the applicant's visa. The applicant then applied to review the delegate's decision on 22 March 2019. On 7 June 2019, the delegate's decision was affirmed and the applicant commenced judicial review proceedings. The application was dismissed on 12 August 2020, and the applicant then appealed to the Full Court of the Federal Court, which dismissed the appeal on 15 February 2021.
As I have said, thereafter, on 14 June 2023, the applicant applied for a protection visa. In the visa application, and using the language of the visa application, the applicant said that he left India because he borrowed money on a loan from a lender for his criminal and immigration matter, over $100,000. He said that he is financially broke and has no capacity in the future to pay the money back as he does not have any assets, and the tax on original value is 10 per cent. He said that the guy is a loan lender and is connected with high profile gangsters. The applicant said that the loan lender has been threatening him and his family in India and his family home has been shot twice. He said that he has not been to India since his criminal case, and he does not want to go back as they are highly connected all over India and have over 700 shooters in all big land and small cities. He claimed if he is required to go back to India he thinks he will be killed straight away because he does not have the capacity to repay the money.
He claimed that he will be abducted, tortured and killed. He said that the authorities are not able to help him, as they have been threatened by these gangsters themselves, and most of them work for them for money. He said that information of his whereabouts in India will be disclosed by the local police station and that he cannot relocate to any part of India or any neighbouring country because the authorities are corrupt.
On 9 August 2023, the applicant was sent a letter from the department requesting more information from him to help the department assess his application. The letter stated that the delegate had started considering the applicant's application for a protection visa and invited him to provide further information regarding a number of matters, specifically under the headings of Claims Lacking Detail, Delay in Lodgement, Relocation in India and State Protection.
On 12 August 2023, the applicant provided a typed statement of 34 numbered paragraphs, some of which comprise only one or two sentences, to the delegate. On 14 September 2023, as I have referred, the delegate refused to grant the applicant the protection visa. On 20 September 2023, the applicant filed an application for review in the Administrative Appeals Tribunal. On 16 October 2023, the AAT wrote to the applicant, telling him that it had considered the material before it, but was unable to make a favourable decision on that information alone. It invited him to appear before the AAT to give evidence and present arguments relating to the issues arising in his case at a hearing that was scheduled for 24 October 2023.
On 17 October 2023, the applicant requested an extension, effectively an adjournment of the AAT hearing, because he was facing the challenge of not having a legal representative. That request was granted and on 20 October 2023 the hearing was rescheduled to 16 November 2023. On 8 November 2023, the applicant wrote to the AAT and again sought an extension of time to enable him to organise a lawyer and gather the necessary documents for his case. That request was also granted, and the hearing was rescheduled to 7 December 2023. On 29 November 2023, the applicant made another request for an adjournment which was also granted, and the hearing was rescheduled to 6 February 2024.
On 11 January 2024, the applicant's lawyer made written submissions to the AAT and provided a number of documents. The hearing took place in the AAT as scheduled on 6 February 2024. On 16 February 2024, the AAT affirmed the delegate's decision not to grant the applicant a protection visa. The AAT also referred the applicant's case for the Minister's consideration with particular regard to the risk of serious, ongoing and irreversible harm and continuing hardship to JS, the applicant's son, an Australian citizen, in circumstances where consent orders in the Family Court of Western Australia made on 5 October 2021 provided the applicant to have sole custody of him with the responsibility for his ongoing welfare.
On 20 March 2024, the applicant applied for judicial review of the AAT's decision in this Court.
On 4 June 2024, the Court made orders by consent quashing the AAT's decision and remitting the matter to be determined according to law on the basis that the Minister accepted that the AAT fell into jurisdictional error by failing to consider a claim clearly arising on the materials, that being whether the applicant was at risk of harm from societal judgment due to his criminal convictions, and failing to afford him procedural fairness in not being given notice of the issue of his ability to relocate as a determinative issue. Thereafter, the applicant engaged new lawyers and further submissions were made to the Tribunal between 29 October 2024 and 3 November 2024, including the provision of additional information, country information, and news articles.
The applicant appeared before the Tribunal on 22 November 2024 represented by his lawyer. He also had the assistance of an interpreter. Both before and after the hearing, the applicant's lawyer submitted further materials and information to the Tribunal. Following the hearing, on 2 December 2024, the Tribunal issued a summons to the legal practice that represented the applicant in his criminal trial, and being the subject of his claims in that he said that he borrowed the money from the moneylenders so that he could pay lawyers to represent him in those proceedings. The legal practice complied with the summons on 11 December 2024. On 12 December 2024, the Tribunal invited the applicant to comment on the information that was provided in response to the summons on the basis that it was relevant to the review application as it may, partially or entirely, undermine the credibility of the claims and evidence made.
The Tribunal sought the applicant's comment by 19 December 2024, and on that day the applicant responded, providing a statutory declaration about the estimate and payment of legal fees, and how the fees were funded. On 22 January 2025, the Tribunal affirmed the delegate's decision, which as I said at the outset, is the decision that is the subject of these proceedings.
Before the Tribunal, the applicant's substantive claims for protection were noted to be succinctly stated in the written submissions made on his behalf, those being related to his criminal charges and trial that took place from the first part of 2017. They were summarised as a claim to fear harm on the basis of the risk of serious harm from moneylenders due to unpaid debts, and when combined with the applicant's other vulnerabilities, including knowledge of his criminal convictions, a family land dispute, mental health, being the sole carer for his son, and lack of family support, it was submitted that the applicant is part of a particular social group of people who have borrowed money from unlawful moneylenders and are unable to repay the loan, and that as a necessary and foreseeable consequence of being removed to India, the applicant will face a real risk of significant harm.
The applicant claimed and the Tribunal accepted that the lawyers who represented him in the criminal proceedings were privately funded and that the firm represented him, including to apply to amend his bail conditions and to represent him in the trial. The applicant claimed that he borrowed $50,000 toward his criminal defence, that he contacted many people for financial help and that no one could assist him. So, he went to a moneylender in India who agreed to lend him the money in cash at a 10 per cent interest rate, doubling in a year if unpaid, and the money was then given to his parents in India.
He said that $30,000 in cash was brought into Australia in August 2017 by his mother and two other men, with the balance to have been made available to the applicant's parents to assist them with their expenses. His claims were that essentially he borrowed $100,000 from private moneylenders who were connected with the Lawrence Bishnoi Criminal Organisation and Goldie Brar and that because of these borrowings and his inability to repay the money, his parents have been threatened and harassed and that if he was to return to India, he would face significant physical harm and even death.
In 2018 and 2019, the applicant's mother took JS to India for several months at a time. The Tribunal's reasons referenced the movement records of JS and his travel to and from India. On 19 June 2019, they left Australia to go to India and shortly afterwards, the applicant claimed that gangsters threatened to kill him if he went back to India.
The applicant also claimed that in May or June 2021, while his mother was standing outside of her home, two men on a bike fired gunshots into the ground. The applicant said that his son was inside the home at the time and the incident was particularly concerning to him because he was worried that his son would be killed. The applicant went on to say that in November or December 2022 his parents travelled to Bangalore for a holiday as a result of being scared. He said that when his parents arrived in Bangalore, his parents were approached and threatened there.
These claims were supported by a statutory declaration from the applicant’s mother, who is referred to as GK, dated 1 November 2024. The applicant's mother also gave oral evidence to the Tribunal by telephone at the hearing. The applicant's mother claimed that in June or July 2019 gangsters related to the LBCO threatened them in the market, demanding money from the applicant and threatening to kill him if he did not pay. She said that was the first time that they found out that the people were from the LBCO. She also gave evidence about the incident in May or June 2021 and the gunshots fired in front of her house. She said that since returning to India in September 2024 they had experienced the same harassment, making them feel unsafe and stressed. In her oral evidence, the applicant's mother said that she had not reported the matters to police because she had been warned not to do so.
The applicant's brother, referred to as GS, also provided a statutory declaration made in November 2024 and also gave oral evidence to the Tribunal. His evidence was that he first became aware of the applicant borrowing money from the LBCO in or about January or February 2019. He said that he also lent money to the applicant, around $50,000. In assessing the evidence given by the applicant's mother and brother, the Tribunal raised concerns during the hearing about similarities in terms and phrasing, with reference to past events in which the Tribunal assessed as of concern regarding the dates of events. It pointed out that the written evidence was given by both witnesses in almost identical, albeit imprecise, terms regarding those dates.
When asked, or when those concerns were put to the applicant's representative, she submitted to the Tribunal that she had emphasised to the applicant and the witnesses the importance of consistency in the evidence that was presented to the Tribunal. Without making any criticism of the applicant's representative, the Tribunal considered that where witnesses are expected or encouraged to confer with one another with a view toward obtaining consistent evidence, it risks the credibility and reliability of that evidence. Noting that consistency is also only one aspect of a credibility assessment, the Tribunal considered when the written and oral evidence of the witnesses was taken into account, it was not satisfied that the evidence was either credible or reliable, finding also that they had endeavoured to give evidence to support the applicant, who they both no doubt cared for greatly and wished to be able to remain in Australia. The Tribunal, however, concluded that the result of its concerns was such that it was not prepared to give the evidence of either witness any real weight.
The Tribunal also considered the applicant's delay in applying for a protection visa, commencing with the delegate's invitation on 9 August 2023 to provide information in support of his application, including being put on notice of the concern that he did not apply for a protection visa until nearly five years of being held in a detention facility after the cancellation of his visa and a corresponding concern about the genuineness of his protection claims. The Tribunal had regard to the evidence including the applicant's written statement dated 12 August 2024. It found that the delay was significant and reckoned that the delay was almost five years from the cancellation of his visa and more than two years from the time that his appeal to the Full Court of the Federal Court in the previous proceedings had been dismissed.
The Tribunal observed that the prospect of a protection visa application being made was raised in the AAT's decision in 2019 when the delegate's decision to refuse to revoke the cancellation of the applicant's visa was affirmed. In particular, that decision records at paragraph 196 the following:
[196] The Tribunal notes, and the Applicant accepted, that it is open to the Applicant to make a protection visa application and if he chooses to do so to provide further evidence which may satisfy a different decision-maker that a protection obligation is owed to him. In the event that such a determination is made on evidence not currently available to the Tribunal it is possible that a non-refoulement obligation may arise. However, the Tribunal is not satisfied that there is sufficient evidence to make such finding on this application.
The Tribunal accordingly did not accept it plausible that the applicant was not aware of his ability to seek protection until shortly before he applied, and was not satisfied that he had adequately explained his delay in applying for protection. The Tribunal was satisfied that the applicant knowingly delayed applying for protection and only did so in response to attempts to bring about his removal from Australia.
When it assessed the applicant's claims against the refugee criteria, the Tribunal did not accept his claims to have borrowed money from private moneylenders connected with the LBCO as being credible. The Tribunal noted the extensive country information that the applicant had supplied about Goldy Brar, Lawrence Bishnoi and the LBCO, and it accepted that it is a significant criminal enterprise that operates on an international scale. The Tribunal accepted that Goldy Brar is a high-ranking and significant member of the LBCO. However, the Tribunal considered that the applicant had embellished his claims relevantly related to his borrowings so as to obtain a migration outcome. The Tribunal had several concerns about the applicant's evidence about borrowing the money, which collectively led the Tribunal to reject his evidence about borrowing $100,000 or that he had borrowed money from the LBCO or people associated with that organisation.
The Tribunal, in an overview sense, explained how and why it reached that conclusion in the following way:
(a)The Tribunal found that the applicant did not raise the risk of harm allegedly posed by moneylenders during the proceedings before the AAT in the prior matters relating to the revocation of his visa. The Tribunal found that the applicant had an ample opportunity to raise the claims during the visa cancellation revocation proceedings, but observed that the only fear that he stated at the time related to societal attitudes linked to his past offending. His failure to refer to threats of harm from moneylenders with alleged connections to the LBCO significantly detracted from the plausibility of the claims in the Tribunal's view. The Tribunal also pointed out that the applicant acknowledged at the hearing that he did not disclose the alleged debt to moneylenders or related threats during the earlier proceedings in the AAT, and it found that this further undermined the consistency and reliability of his narrative.
(b)The applicant's delay in seeking protection was another factor that the Tribunal considered weighed against the credibility of his claims. In circumstances where, on the applicant's own account, the threats from moneylenders were apparent by May or June 2021, he did not lodge a protection visa application until two years later. The Tribunal considered this extended period of inaction suggests either a lack of genuine fear or a calculated attempt to delay the applicant's removal from Australia. The Tribunal considered that the inconsistencies between the applicant's statements, the delay in disclosing critical details in the absence of corroborating evidence weighed heavily against the veracity of his claims and, viewed cumulatively, suggested that the applicant's fears were exaggerated or fabricated to bolster his protection visa application.
(c)When asking why the applicant borrowed the money and how he intended to repay it, the Tribunal found that the applicant's evidence regarding the borrowing arrangement to be unconvincing and in some respects implausible. The applicant said that he borrowed $50,000 in two tranches, however, only $80,000 was ultimately paid to him to help fund his legal fees. The applicant said that the moneylenders did not question what would happen if he did not win the trial, and that they did not require any collateral or security. The Tribunal considered this to be implausible in circumstances where the applicant was overseas, and repayment was connected to the outcome of a criminal case.
(d)Noting the applicant's evidence at the criminal trial that he denied the offending but was later convicted of some counts, the Tribunal observed that the applicant's now purported expressions of remorse about his conduct to be inconsistent and that inconsistency, the Tribunal found, did not reflect well on the applicant's overall credibility.
(e)The Tribunal found that some of the evidence led by the applicant provided some support for the proposition that he borrowed money from people in India. In particular, the Tribunal referred to consultation notes from Dr van Hattem on 18 November 2021, where the applicant referred to having encouraged his parents to take loans from his mates to pay for his legal bills and that those people may hurt him or his son to extort money from him if he returns to India. The Tribunal accepted that this provided some support for the applicant's claims, however, it noted that the entry lacked detail about the borrowings. In attributing weight to that evidence, the Tribunal noted the fact that it is silent as to the gunshots that were allegedly fired around five months earlier, or about the threats that had been made.
(f)The Tribunal assessed the amounts paid into the trust account of the applicant's legal representatives in the criminal trial, finding that the applicant paid funds into the trust account between 26 June 2017 and 28 March 2018, and that he was invoiced on 21 September 2017 and 31 May 2018 at the conclusion of the trial in the total sum of $29,810 including GST.
(g)The Tribunal pointed out that the applicant's claims in respect of his legal representation suggest not only breaches of the Legal Profession Act2008 (WA), but also tax evasion and conduct amounting to fraud by a solicitor and officer of the Court. The Tribunal noted that the allegations were very serious and that the only evidence supporting the assertions was the applicant's own evidence. The Tribunal did not accept the applicant's evidence that he borrowed $50,000 in cash, paid it to his solicitor off the books or personally in a black bag as he had asserted. The Tribunal found that the electronic funds transfers made into the law firm's trust account were unremarkable and consistent with the proper conduct of a legal practice. Additionally, in the absence of more cogent and clear evidence supporting such a serious allegation, the Tribunal regarded the applicant's evidence as implausible and rejected it entirely.
The Tribunal did not accept that the applicant's parents had been threatened about the loan by the LBCO or individuals associated with the organisation or by any other person, including the applicant's mates, from whom the Tribunal found that any amount was borrowed.
The Tribunal was not, however, satisfied that those people would act in such a way as to expose the applicant to a real chance of serious harm if he were to return to India now or in the reasonably foreseeable future. The Tribunal found, in some respects, that the applicant's evidence was given to suit his interests without a proper regard to the truth of the content of the evidence. It did not accept that the applicant has borrowed money from anyone associated from the LBCO, and rejected entirely the narrative that he advanced in connection with that claim. It did not accept that the applicant is of any adverse interest to the LBCO or of anyone associated with the organisation.
The applicant's convictions relate to indecently dealing with a child who is a lineal or de facto relative - they are the 2018 convictions - and an earlier property damage conviction from 2015. The Tribunal found the evidence supported a conclusion that the fact of the applicant's offending is known in his home town, but it was not satisfied that knowledge of his offending can be described as notorious or widely known. The Tribunal did, however, accept that if the applicant was to return to his home area, it was likely that knowledge of his offending would become more widely known than it is presently. The Tribunal had regard to country information including the amplification of unrest on social media platforms by spreading misinformation, occasionally leading to vigilantism. The Tribunal accepted that instances of vigilante type justice take place in India and that the applicant's home community members may be concerned about his return to the local area for this reason, where some are likely to know about his offending in Australia and that it involves a child.
The Tribunal was prepared to accept that knowledge of the applicant's offending will lead to some ostracism within the community, but it did not consider that that will involve a real chance of serious harm for the purposes of section 5J(4) of the Act. The Tribunal also went on to consider a number of other claims advanced by the applicant relating to his personal circumstances upon his return to India, but was not satisfied that any of them gave rise to a real chance of serious harm. These included, as claimed, the applicant's claimed difficulty in re-establishing himself upon returning to India, including difficulty obtaining a rental property because of his criminal record, and in his hometown because of his past offending and the prospect of being known to potential landlords.
The Tribunal was not satisfied that the applicant would face a real chance of serious harm because of any difficulties he might have renting a property or that his actual or imputed criminal convictions will result in him facing a real chance of serious harm, such as being unable to obtain housing for himself and JS. The Tribunal was also not satisfied that the applicant's actual or imputed criminal convictions or activity will result in him facing a real chance of serious harm arising out of unemployment. It was satisfied that based on his skills and experience he would be able to obtain employment and that would enable him to support himself and his son to at least a subsistence level. The Tribunal accepted that the applicant would be caring for his son as a single parent and that he would have the support of his parents, noting the evidence suggested that the applicant's son views the applicant's mother as his primary attachment figure.
The Tribunal found that even if the applicant was to become the sole carer of his son and his mother was to have limited or no involvement with his care, it was not satisfied that his responsibility to care for his son will be such that the applicant will face a real chance of serious harm. The Tribunal also considered the applicant's claim to fear harm in being unable to access proper mental health facilities in India, in turn impacting upon his ability to work and also provide for his son. The Tribunal wasn't satisfied that the applicant would face a real chance of serious harm based on the availability or quality of healthcare in India, now or in the reasonably foreseeable future, nor that any medical needs that his son has or might not be met in India will result in him facing a real chance of serious harm either individually or when considered with the other claims that he had raised.
The Tribunal considered the applicant's claims in relation to corruption and took into account in its overall assessment of the chance that he would face serious harm. It was not satisfied that the applicant faces a real chance of serious harm because of corruption generally. The applicant also made a claim to lack familial support, but the Tribunal rejected this claim on the evidence, particularly noting the evidence the applicant had led and the support that his parents, particularly his mother, had given him, finding it to be immense. The Tribunal was not satisfied that the applicant will face a real chance of serious harm on account of any lack of familial support now or in the reasonably foreseeable future.
The Tribunal also took into account country information about the religious diversity of India. It found and accepted that the applicant will face a degree of societal judgment arising from knowledge of his past offending, but it was not satisfied that any such judgment either alone or in combination with other aspects or circumstances would result in the applicant facing a real chance of serious harm for any reason. The Tribunal asked the applicant about the land dispute within the family, and that was the subject of his claims, and why the harm related to the land dispute had not been raised in his written claims before the delegate, to which the applicant said that he was more concerned about the issues with the LBCO related to his borrowings.
The Tribunal was prepared to accept that there may be a dispute in the applicant's broader family in relation to some land in India, but its overall concerns as to his evidence and his mother's evidence, together with delay considerations, resulted in the Tribunal not being satisfied that the applicant faces a real chance of serious harm arising out of or in connection to any such land dispute.
The Tribunal also took into account country information about historical violence linked to pro-Khalistan separatist movement in the 1980s, but it noted that this type of unrest is now rare. The applicant claimed at the hearing that whilst he is not a member of the Khalistan movement, he believes in it. He has not claimed any involvement - he did not claim any involvement in the movement or of any events in Australia. The Tribunal was not satisfied on the material before it that there was a real chance that the applicant would be identified or imputed to be a member of a pro-Khalistan movement, such that he would be of adverse interest to the Indian authorities, or that he faces a real chance of harm based on his actual or imputed political opinion as a supporter of Khalistan.
The Tribunal noted the express claim that the combination of circumstances of the applicant's claims results in him facing a real chance of serious harm in his hometown of Mohali and throughout India more generally. The Tribunal, considering its findings, considered the applicant's claims cumulatively, but was not satisfied that the applicant would face a real chance of serious harm when attempting to re-establish himself, and it was not satisfied that a cumulative consideration of his claims leads to a conclusion that the applicant would face anything more than a remote chance of serious harm, now or in the reasonably foreseeable future.
The Tribunal was not satisfied for those reasons that the applicant has a well-founded fear of persecution within the meaning of section 5J(1) of the Act, or that he is a refugee within the meaning of the Act. It found that the applicant does not satisfy the refugee criterion in section 36(2)(a) of the Act.
The Tribunal then went on to consider whether the applicant satisfied the complementary protection criterion, identifying that there must be substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. The Tribunal relied on its anterior findings in the refugee assessment to find that the applicant does not face a real risk of significant harm, including on a cumulative consideration of the claims raised and assessed. It found that the applicant does not satisfy the complementary protection criterion in section 36(2)(aa) of the Act.
The Tribunal accordingly found that the applicant does not satisfy the criterion in section 36(2), and it affirmed the decision under review.
On 26 February 2025, the applicant applied for judicial review of the Tribunal's decision. There are three grounds of review that are pleaded. The applicant has been self-represented in these proceedings. At the hearing, he applied for an adjournment to enable him to be represented by a lawyer, and I received evidence from the applicant about that application and I ruled to dismiss it.
As I have referred to, the applicant was not represented. I received, without objection, an outline of written submissions that the applicant had prepared the day before the hearing, so on 4 June, that responded to the Minister's outline of submissions and to an extent developed and particularised further his grounds of review.
I also asked the applicant whether he wished to amend or add, expand upon, and give additional particulars to his grounds of review. I explained to him the limitations on the Court's jurisdiction, that it was concerned only with the Tribunal's decision that was made on 22 January 2025, that the Court is not permitted to conduct a merits review of that decision and that it does not have the power to grant the application a protection visa.
I set out for the applicant some of the more commonly recognised categories of jurisdictional error, some of which are clearly pleaded and apparent in his grounds of review. I also explained to the applicant that in order to be entitled to the relief that he is seeking in the application, he must establish that the Tribunal's decision is affected by jurisdictional error whereby it exceeds the limits of the decision-making authority that's conferred upon it by statute and is material in the sense that it could realistically have deprived him of a successful outcome. I provided him, as I said, with the opportunity to amend and to break down and further particularise his grounds. Whilst the applicant did not do that - did not wish to do that, I permitted him to rely on an outline of submissions that he had provided in response, notwithstanding the slight procedural irregularity in that, but it was done without objection by the Minister.
In general terms, the applicant has the onus of establishing jurisdictional error, but I have also endeavoured to assess the recognised categories of jurisdictional error that are apparent within the grounds of review, and consider them based upon all the materials that I have, the submissions that the applicant made to me, and the Minister's submissions in response. I assess the grounds, in turn, commencing with ground 1 now.
Ground 1
Ground 1 alleges the following:
Failure to Consider the Best Interests of the Applicant’s Australian Citizen Child
The Tribunal failed to properly consider the best of interests of the Applicant’s Australian citizen child, JS as required under Ministerial Direction 90 and Convention on the Rights of the Child (CRC). The Tribunal ignored key evidence of JS’s mental health struggles due to the Applicant’s detention, making this a jurisdictional error.
In my view, this ground is misconceived and misunderstands the relevant statutory criteria. In ABJ19 v the Minister for Home Affairs [2020] FCA 136, Lee J said at paragraph [28] the following:
[28] There is nothing in Ground 2B. It is misconceived and proceeds on a misunderstanding of the relevant statutory criteria. The cases referred to by the appellant are directed to the operation of s 501 of the Act ("Refusal or cancellation of visa on character grounds") and the relevant Ministerial Direction with regard to that provision, which provides for a requirement to consider the "best interests" of minor children. Here the Tribunal was required to determine whether the criteria in s 36 of the Act were met, which imposes no requirement upon the Tribunal to consider the "best interests" of the child in the sense alleged.
Ministerial Direction 90 does not apply to this case in my view. The applicant in his written submissions and oral submissions appears to concede this to some extent. He has asserted that, nonetheless, that the impact on his son was a clear and important issue raised in the case which the Tribunal did not deal with properly.
The written submissions advanced by the applicant said that Ministerial Direction 90 "may not apply to protection visas", but went on to assert, that his son's best interests should still be a key part of the consideration and decision, especially because Australia is a signatory to the Convention on the Rights of the Child.
As the cases such as ABJ19 make clear, Ministerial Direction 90 applies to consideration of a visa refusal and cancellation decision under section 501 of the Act. In contrast, the Tribunal's statutory task in this instance was to consider whether the applicant met the criteria for the grant of a protection visa pursuant to section 36 of the Act. The requirement in Ministerial Direction 90 for decision-makers to make a determination about whether cancellation or refusal under section 501 or non-revocation under section 501CA, whether that is or is not in the best interest of a child affected by the decision, is not a mandatory or relevant consideration for the Tribunal when it assesses whether a person meets the criteria to be granted a protection visa. I do not accept the submissions that were made by the applicant as to how the interests of his child ought to have weighed into the Tribunal's consideration.
As Lee J made clear in ABJ19, the Tribunal was required to determine whether the criteria in section 36 of the Act were met. This imposes no requirement on the Tribunal to consider the best interests of the child in the way in which, in my assessment, the applicant has put that should attract some primacy in the Tribunal's consideration in this case, or in other words, that the Tribunal failed to consider or did not take seriously enough the impact of the applicant's detention on his son's mental health.
The Tribunal is not exercising a discretion when it considers the applicant's claims. In DZT20 v Minister for Immigration and Multicultural Affairs [2025] FCA 286, Jackson J confirmed at paragraph 35 the following:
[35] As for the first ground of appeal, for the reasons the primary judge gave her Honour was correct to conclude that the Tribunal was not under any obligation to follow the Convention on the Rights of the Child when deciding whether to grant protection visas to the appellants. The Tribunal was not exercising a discretion; it was deciding whether the material before it satisfied it that statutory criteria of fact were satisfied. There was therefore no room for it to take into account the best interests of the appellants' Australian citizen child: see SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29] (Griffith J).
Here, the applicant's son is an Australian citizen. He was not included on the protection visa application because he is not eligible for a protection visa. Consequently, consideration of JS's mental health was not relevant to the Tribunal's statutory task other than to the extent that the applicant claimed that his son's inability to access mental health facilities would have a negative effect on him or to the extent that it was otherwise somehow connected to the applicant's claims.
In this respect, the Tribunal correctly identified that it is not assessing whether JS meets the criteria to be granted a protection visa because, as I said, he is an Australian citizen and that he is not eligible for a protection visa.
JS has been living in India in accordance with the consent orders made in the Family Court of Western Australia. The Tribunal considered the applicant's claim that he will be a single parent and will be responsible for his son's sole care. Noting that at that stage JS had been able to stay in India for approximately four years, the Tribunal went on to assume, as it expressed favourably to the applicant, that his son would be able to obtain a permanent visa or citizenship in India and that the applicant would be responsible for his care as a single parent.
But in the context of the applicant's claims, the Tribunal considered whether the applicant's care for his son, and in particular whether any lack of medical services in India for him, will lead to him facing a real chance of serious harm now or in the reasonably foreseeable future. The Tribunal's finding that it was not satisfied that any medical needs that JS has or that may not be met in India will result in the applicant facing a real chance of serious harm either individually or when considered with his other claims, was in my view open on the evidence. That is to say, to the extent that it was relevant to the Tribunal's statutory task, the Tribunal took into account the evidence of any medical needs that JS may have.
The Tribunal also took a liberal approach to how it assessed the applicant's claims and about the impact on JS, including in the context of it accepting that he will be a single parent responsible for JS's sole care. It took into account how the applicant's ability to find housing would enable him to support himself and his son. It took into account how the applicant's ability to obtain employment would enable him to support himself and his son, and it considered the evidence put forward about JS's mental health, to the extent that it was connected to the applicant's claims, and otherwise whether the relative lack of medical services available for JS between India and Australia may impact upon the applicant's claims. As I have also expressed or stated, the Tribunal assessed the familial support available to the applicant in India, including the assistance for him from his family in support of his care for JS.
I conclude that the Tribunal took into account the medical and living circumstances for JS in India and the impact that they may have on the applicant and his claims to the extent that was required of the Tribunal. In my opinion, there is no merit in ground 1, and I will dismiss ground 1 for these reasons.
Ground 2
Ground 2 asserts the following:
Failure to Properly Consider the Risk of Harm Under Complementary Protection
·The Tribunal erred in finding that the Applicant could safely relocate to Delhi, failing to consider.
·The nationwide influence of the Lawrence Bishnoi gang, making relocation unsafe.
·Past threats, including gunfire, which indicate a real risk of harm.
·The lack of support network, making relocation unreasonable.
·This misapplication of complementary protection law amounts to a legal error.
The applicant's written submissions do not address this directly. They do, however, refer to a threat from the LBCO being not only in his home area, but that organisation operating throughout India, and as I have said already, the Tribunal accepted that the LBCO is a serious organisation operating throughout the country and indeed internationally. However, I accept the Minister's submission that the particulars to ground 2 and the findings pointed to by the applicant are misconceived in that they make reference to findings made in the Tribunal decision of 16 February 2024 concerning the applicant's ability to relocate, the order of which was subsequently quashed by this court by consent.
I also accept that the issue of relocation did not arise in the Tribunal's reasoning in this case, as the Tribunal did not accept the applicant's evidence in respect of his claims to fear harm. Accordingly, in my view, the question of relocation within India was not one that arose before the Tribunal, and the reasonableness or otherwise of his ability to relocate was not an issue in the proceedings.
In his written submissions, the applicant has claimed that the Tribunal's conclusion that he does not face the real risk of significant harm was not fair or reasonable. In oral submissions, the applicant, I take, expanded this ground to include a general pleading of legal unreasonableness with respect to the Tribunal's findings, that is to say, expanded more broadly than perhaps simply the complementary protection criteria as the ground as pleaded suggests.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, the Full Court restated the principles that the characterisation of a decision or state of satisfaction as legally unreasonable because of illogicality or irrationality is not one that is easily made out, when it said:
[33] The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at 517 –518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
[34] The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
[35] Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20 –21 [38]; Re Minister for Immigration &Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
As I explained to the applicant at the hearing yesterday, it is a state where the approach of the decision-maker and reasoning process is so lacking in a rational or logical foundation that the decision or the relevant state of satisfaction was one that no rational or logical decision-maker could reach.
The applicant's submissions also allege or go on to allege that the Tribunal did not take threats from the LBCO and the targets on his family seriously or give them proper weight. These claims were rejected by the Tribunal. In any event, where this particular of the ground takes issue with the way in which the Tribunal considered the evidence, the degree of weight to be given to evidence is a factual question for the decision-maker alone.[1]
[1] Minister for Immigration and Citizenship v SZJSS (2010) HCA 48; 243 CLR 164 at [33]; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197].
Additionally, and speaking more generally, as the Tribunal decision itself stated, it is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant and nor does the Tribunal have to have rebutting evidence before it holds that a particular assertion is not made out.[2]
[2] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at [451]; Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348].
It is for the applicant to satisfy the Tribunal that he meets the criteria for the grant of a protection visa. In terms of the way that the Tribunal approached the complementary protection assessment more generally, as the ground as pleaded touches on or specifies, the Tribunal correctly identified the complementary protection criterion as a prospective inquiry that asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of his return to India.
After the Tribunal concluded the refugee assessment, it went on to consider whether the applicant satisfied that criteria. Having correctly identified the legal framework in which the complementary protection assessment took place or was to take place, the Tribunal was entitled to rely on its anterior findings in the refugee assessment in order to consider whether it was satisfied that the applicant met the complementary protection criteria or not.
The Tribunal considered the applicant's claims that were concerned with his personal circumstances, including his criminal record and his mental health, and his familial support. Ultimately, and speaking more generally, as I have said, the Tribunal simply did not accept the applicant's claims as credible. But before it rejected the claims, it also noted that assessing credibility is a difficult task which should be careful, thoughtful and conducted fairly and reasonably. It directed itself that inconsistencies may or may not be significant and allowances may be required where account is given through an interpreter.
The Tribunal also informed itself that it should usually give the benefit of the doubt to those who are generally credible but are unable to substantiate their claims. I do not accept the applicant's assertions that the Tribunal's rejection of his claims about the borrowed money were as straightforward as, as he has said in writing and orally, some issues with dates and there being no formal receipts. The Tribunal explained in careful detail in the reasons how and why it did not accept the applicant's claims to have borrowed the money as credible, and to support its finding that he had embellished his claims in relation to these matters to obtain a favourable migration outcome.
Those concerns are clearly set out in the decision record as providing a basis for the rejection of his evidence that he borrowed $100,000 or that he borrowed money from the LBCO, which in my assessment was an analysis that was clear, cogent and methodical in reaching a conclusion to not accept the applicant's claims and to find that any money borrowed was money borrowed from the applicant's mates as generally described and did not accept that his parents had been threatened about the loan from the LBCO or from any other person.
Factors such as delay, inconsistencies in the applicant's statements over time, some of which were accepted by the applicant as I have stated, the lack of corroborating evidence and general vagueness and implausibility of the narrative all contributed to the detail of the analysis performed by the Tribunal and the conclusions reached. In my opinion, those conclusions and the overall adverse credibility finding that was made against the applicant was open on the evidence and reasoned in a way that was not illogical or irrational in the sense required for a decision-maker for a state of satisfaction to be legally unreasonable.
In terms of the money paid to the applicant's lawyer, as I have stated, the Tribunal pointed out that the only evidence supporting that assertion was the applicant's own. It contradicted what the Tribunal considered to be unremarkable evidence of trust account activity within the legal practice, and in my view, the Tribunal's finding that in the absence of more cogent and clear evidence supporting such serious allegations that were implicit in the applicant's narrative, the conclusion that the applicant's evidence was implausible and ought to be rejected or - and was rejected by the Tribunal was open to the tribunal in my view.
For these reasons, I do not accept the applicant's submission that the Tribunal's findings or its relevant state of satisfaction meet the threshold of legal unreasonableness. Further, to the extent that the applicant's written submissions make submissions about the facts found by the Tribunal, or perhaps invite a reconsideration of findings to not accept his claims and some sort of merits review of those conclusions, I make that observation to the extent that the submissions may suggest that. That is not permissible, as I explained to the applicant.
I do not consider there to be any jurisdictional error in the manner in which the Tribunal assessed the applicant's claims made under the complementary protection criteria or otherwise, as asserted under the umbrella of unreasonableness, and I dismiss ground 2.
Ground 3
Ground 3 asserts the following:
Procedural Fairness & unreasonable findings
The Tribunal unfairly dismissed key evidence, including threats from moneylenders and the mental health impact on JS, without proper clarification. It also unreasonably relied on delay in the Applicant’s visa application, despite valid explanations. These errors amount to a denial of procedural fairness.
The applicant's written submissions expand upon this claim of a denial of procedural fairness. He asserts that the Tribunal rejected statements from his mother and his brother because they looked too similar and rejected them without giving him a chance to explain. That is, in a sense, a further particular to the ground pleaded by the applicant.
In my assessment, this assertion is contrary to the decision record, which commences by stating that during the hearing the Tribunal raised its concerns about the form of the evidence provided and obtained an explanation from the applicant's legal representative. The Tribunal accepted the explanation given by the applicant's legal representative and considered that it would explain or that it might explain at least in part why the information was expressed in such similar terms, but it did not assist in the Tribunal's finding in persuading the tribunal that the evidence was credible or reliable.
The Tribunal inferred that what in fact took place was that the applicant's representative gave advice about the desirability of consistency without intending to suggest that the applicant, his mother and his brother, take steps to ensure that their evidence was consistent. But in any event, the Tribunal went on to note that consistency is only one aspect of the assessment of credibility and reliability of the claims.
I accept also that the Tribunal was not prepared to give any real weight to the evidence of the applicant's mother and brother. It included an assessment of the oral evidence that it received from both witnesses. It assessed the evidence, noting that the applicant's mother's evidence was given over the phone, that was considered by the Tribunal in the words explained as almost as if she was reading from the statutory declaration. In finding that it would give very little weight to the evidence, the Tribunal had regard to both the written and oral evidence of both witnesses. It noted that the oral evidence did not materially depart from or expand upon the written evidence given by either witness, and that accordingly, the Tribunal found that neither witness's evidence was credible or reliable.
Particular to the complaint in this ground, I do not find that the applicant's ground in procedural fairness in this respect to be made out. In any event, the Tribunal is not under any obligation to put its findings to an applicant in advance, and it is not required to give an applicant the running commentary on what it thinks about the evidence as it is being given.[3] The remainder of the particulars and submissions set out by the applicant go on to attack the Tribunal's conclusions. Before looking at those, I do not consider that the broad claim in a denial of procedural fairness to be made out.
[3] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [48].
The applicant was invited to attend a hearing at the Tribunal. He had the assistance of an interpreter. He was represented and provided written submissions and evidence before and after the hearing, and he was invited to make submissions on information obtained after the hearing that might undermine the claims and credibility to which he responded. The hearing record shows that the hearing opened at 11 am and concluded at 3.48 pm. I do not consider that there's anything in the Tribunal's reasons or procedures that shows it denied the applicant procedural fairness.
As I have said, in terms of the submissions that go on to take issue with the Tribunal's conclusions and link, perhaps, the denial of procedural fairness to findings that are said to be unreasonable, the applicant has made a statement in an overall sense that the mistakes pointed to affect the whole decision, and in his words, the Tribunal's findings were not reasonable or balanced, and that caused serious harm to his case.
I have already set out under the consideration of ground 2, the characterisation of a decision or state of satisfaction as legally unreasonable is not an easily made out one. I also note that the applicant has criticised the Tribunal's findings about delay, making a submission to me that the Tribunal should not have considered delay and that it should have been a non-issue. The Minister submits that it was legitimate for the tribunal to take delay into account as a relevant factor when it assessed the applicant's fear of persecution and credibility. The Minister has cited BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 and also CCW17 v Minister for Immigration & Anor [2017] FCCA 2622 in support of that contention. I accept the contention. In my view, the authorities make it clear that the Tribunal is entitled to take into account delay as part of its process of reasoning and making particular findings about whether it is satisfied that an applicant has a subjective fear of persecution as well as in the overall credibility assessment that it might conduct about an applicant's claims and evidence.
The applicant has also submitted under this ground that the Tribunal should have accepted his explanations about the loan. He said that it is not uncommon in India for there to be no receipts and cash transactions and that effectively those types of transactions are commonplace in India. As I have pointed out, the Tribunal found that the applicant's claims were not credible on a multifaceted basis. Delay was one aspect, but there were others. The lack of corroborating evidence was one aspect, but it was a far greater analysis than is suggested. In my view, the findings and conclusions made and reached by the Tribunal were open to be made on the evidence, and again, to the extent it speaks of illogicality or irrationality, there is nothing unreasonable in the Tribunal's assessment of those claims.
I do not accept the applicant's submission that the Tribunal ignored key parts of his story, including how the threats happened and how badly they affected him and his son and how his return to India will affect his son and the harm that might flow on them to the applicant. In my assessment, as I have already explained, I think the Tribunal had regard to these matters, made a thorough assessment of them, and I am unable to accept that the Tribunal ignored key parts of the applicant's claims.
Even noting that the Tribunal is not under an obligation to refer to every piece of evidence, in my view, the Tribunal's reasons are comprehensive and detailed in their analysis of the applicant's claims, and I do not discern there to be any areas where key parts of the applicant's story or evidence were not taken into account or was ignored by the Tribunal.
I do not consider that there is any error made out in ground three and I will dismiss ground 3.
More broadly, I do not consider that the applicant has established jurisdictional error by the Tribunal or that jurisdictional error is otherwise apparent in the Tribunal's reasons and decision record.
In the circumstances, I will dismiss the application.
Costs
Counsel for the Minister has applied for an order that the applicant pay the Minister's costs fixed in the sum of $7,500.
The applicant did not have any further submission to make about that application. In circumstances where the application has been dismissed, I will make an order that the applicant pay the Minister's costs fixed in the sum of $7,500.
In fixing that sum, I note that it is less than the amount that is specified in schedule 2, part 2, division 1 of the Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 and having regard to the work that has been done in preparing for and attending the final hearing yesterday, I am satisfied that the amount sought is fair and reasonable.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 16 July 2025
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