ADR20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1463

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. In this matter the applicant is challenging a migration decision under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 December 2019 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa) under s 65 of the Act.

1. On 14 June 2015, the applicant, a citizen of China, arrived in Australia as the holder of a tourist visa.
2. On 9 September 2015, the applicant lodged an application for a protection visa.
3. On 14 October 2016, the applicant attended an interview with a delegate.
4. On 2 November 2016, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(a) or (aa) of the Act.
5. On 2 December 2016, the applicant lodged an application for review of the delegate's decision with the Tribunal.
6. On 7 August 2019, the Tribunal advised the applicant to send any additional evidence relevant to his application. The applicant did not respond to that correspondence or otherwise provide any further documentary evidence.
7. On 1 November 2019, the Tribunal invited the applicant to attend a hearing before it on 18 December 2019.
8. On 18 December 2019, the applicant appeared before the Tribunal to give evidence and present arguments.
9. On 20 December 2019, the Tribunal affirmed the decision not to grant the applicant a protection visa.

1. The Tribunal commenced by setting out the background to the application for review, and identifying that it was an application for review of a delegate's decision to refuse to grant a protection visa under s 65 of Act. The Tribunal identified that the primary issue before it was whether there was a real chance the applicant would suffer serious harm if he returns to China now or in the reasonably foreseeable future for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China there was a real risk that he would suffer significant harm.
2. The applicant made claims that, while running a stall selling meat at a market in Libao Town, he became aware that his competitors were illegally selling meat that had been injected with water in order to increase their profits. One of those competitors was a person called Mr Chen. The Tribunal had regard to country information, which showed consistencies with the applicant's claims relating to the practice of injecting water into meat. The Tribunal was prepared to accept that the applicant reported Mr Chen to local authorities and that this resulted in the applicant being harassed and threatened by Mr Chen, and the loss of his business license.
3. The Tribunal accepted that the applicant was detained by the local police for seven days following his attempt to report the matter to higher authorities and was prepared to accept that Mr Chen had government connections that he used to cause harm and that the applicant may face some risk in his local area.
4. The Tribunal was not satisfied that the applicant would be faced with harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal found that the applicant did not have a well-founded fear of persecution, and did not satisfy the criterion at s 36(2)(a) of the Act.
5. The Tribunal considered the criteria in s 36(2)(aa) of the Act, and accepted that the applicant faced a real risk of significant harm in the form of cruel or inhuman treatment or punishment from Mr Chen's associates and/or local authorities if he returned to his local area, however, the Tribunal was not satisfied that he could obtain protection from local police or other authorities if required.
6. The Tribunal discussed with the applicant the reasonableness of him relocating to another part of China, pursuant to s 36(2B) of the Act
7. The Tribunal did not accept that Mr Chen would be motivated to search for the applicant if the applicant relocated within China.
8. The Tribunal referred to country information which indicated there were many opportunities for internal relocation and restrictions on internal relocation had been relaxed as part of an urbanisation programme for large cities. The Tribunal also considered that there was no evidence to suggest that his family could not, or would not be able to, move with him or travel to see him.
9. The Tribunal affirmed the decision not to grant the applicant a protection visa as the applicant could reasonably relocate within China. The Tribunal found he did not satisfy the criteria under s 36(2)(aa) of the Act.

1. On 1 October 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 20 December 2019. The application contains two (2) grounds of review, both containing several particulars. They are (as written):

There exits jurisdictional error in my case.

1. Tribunal refused to approve my application based on subjective guess rather than substantiated evidence. Tribunal accepted that I would be at risk of harm, including serious physical harm if I return to local area. But Tribunal did not have sound ground to reach a conclusion that I would not be harmed if I relocate to another part of China.

2. Tribunal considered irrelevant information.

Tribunal considered there exists internal relocation in China. But it is not relevant to the harm I may confront.

1. On 23 January 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
2. On 11 June 2025, the proceedings were docketed to me and set down before me for final hearing on 26 August 2025.

1. The application, as filed, contains a technical deficiency. In the application, as filed, the applicant only seeks an order for certiorari (or a quashing order). He has not sought an order for mandamus. In applications under s 476 of the Act, which gives the Court the same jurisdiction in relation to migration matters as the High Court does under s 75(v) of the Constitution, the applicant is required to seek a writ of mandamus: Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 241 at [23]. As the applicant is unrepresented, it is open to the Court, with the Applicant's consent, to amend the application at the hearing, so it seeks the appropriate relief: see CZL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1301 at [29].
2. At the hearing on 31 July 2025, the applicant agreed, and the first respondent consented, to the application being amended to correct the deficiency. An order will be made amending the application so that it correctly seeks both forms of relief.

1. At the hearing of this matter on 26 August 2025, the applicant appeared unrepresented assisted by a Mandarin interpreter. Mr T Guihot of Sparke Helmore appeared for the first respondent.
2. This Court has duties to take appropriate steps to ensure that unrepresented applicants have sufficient information about practice and procedure of the court they are appearing in, so far as is reasonably practicable, for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 per Hill J. It has been suggested that the best approach is to give the unrepresented litigant enough information to make an effective choice in the conduct of the proceedings: see, for example, SZRUR at [60].
3. I consider, in cases such as the present where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong.
4. Accordingly, at the hearing I took the applicant through each of the three grounds of review and asked what was meant by each ground. The applicant did not want to say anything about either of the grounds of review. I asked him if he wanted to make any general submissions in support of his case. He made some brief statements. In summary he said he was at risk of harm if he had to returned to China.
5. Mr Guihot made brief oral submissions summarising the first respondent's written submissions on both grounds.

1. The issue before this Court is whether the Tribunal's decision contained a jurisdictional error; that is, a serious legal error that results in an administrative decision lacking any legal force: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (LPDT). To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32] and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
2. The Court does not consider the merits of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
3. Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error.

1. In essence, under this ground, the applicant is asserting the Tribunal made a jurisdictional error in its assessment of the reasonableness of relocation under s 36(2B)(a) of the Act.

1. The applicant did not want to make any submissions specifically on this ground. I have taken that to mean he relies upon what is said in his application.

1. In his written submissions at paragraph 18, the first respondent set out a number of legal propositions summarising how the first respondent understands the relocation principle to operate. Omitting footnotes, paragraph 18 reads as follows:

In considering relocation under the complementary protection criterion, the Tribunal was required to consider whether it was 'reasonable', in the sense of being 'practicable', for the applicant to relocate. What is reasonable, in the sense of being practicable, must depend upon the particular circumstances of the applicant and the impact upon him of relocation within China. Whether relocation is reasonable is a matter of fact for the decision-maker, and this may be affected by the "framework dictated by the evidence and claims advanced to it by the applicant".

1. The first respondent submitted at paragraphs 19 - 20 of his written submissions, in summary, that the Tribunal properly applied the law (as summarised in paragraph 18 of the first respondent's submissions as set out above) by:

(a) accepting that the applicant may be harmed by Mr Chen if he returned to his local area;

(b) specifically making findings about the risk of harm if the applicant relocated to another area, noting Mr Chen was unlikely to search throughout the country in order to harm him, and specifically noting it was the applicant's evidence that his rival had not actually been disadvantaged by the complaint;

(c) expressly taking into account the applicant's past success in restarting his life in Australia, his work experience and skillset (including native language ability), and the potential for his family to relocate or visit him, in forming its view that it would be reasonable for the applicant to relocate in China; and

(d) directly addressing the applicant's objections to relocation, namely that his ability to relocate was conditional on home ownership, but was not satisfied that he would be unable to rent accommodation in another city.

1. Sections 36(2) and (2B) of the Act relevantly provides that:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) ....

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; ...

1. Section 36(2B)(a) of the Act is informed by, and gives effect to, a principle akin to the relocation principle, which is well known in Australian refugee law: see APE16 v Minister for Home Affairs [2020] FCAFC 93; (2020) 277 FCR 640 at [48] per Kenny, Wheelahan and Anastassiou JJ. The principle of relocation is discussed at length in leading High Court authorities such as SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV) and in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 (SZSCA).
2. In DEO19 v Minister for Immigration, Citizenship, Multicultural Affairs and Migrant Services [2022] FCA 608 (DEO19) Cheeseman J conveniently summarised the law relating to the relocation principle at [35] as follows:

(1) reasonableness is referable to what is practicable for the appellant to relocate to a region where, objectively, "there is no appreciable risk of the occurrence of the feared persecution": SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at 26 - 27 [23] (Gummow, Hayne and Crennan JJ);

(2) the enquiry is fact dependent and will turn on the particular circumstances of the applicant and the impact of relocation within the receiving country: SZATV, 27 [24] (Gummow, Hayne and Crennan JJ); Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 at 328 [27] (French CJ, Hayne, Kiefel and Keane JJ);

(3) a "broad brush approach" typified by general statements will be insufficient. Detailed consideration of the circumstances "on the ground" in the area proposed for relocation will be required. Likewise, the circumstances of the individual taking into account the individual's strengths and weaknesses; skills; and material and family support will need to be considered in some detail: MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (MZANX), [55] (Mortimer J);

(4) assessing reasonableness is an inquisitorial task that is informed by what the applicant puts forward but is not necessarily confined to those matters: CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 at [10] (Jagot, [Charlesworth] and Snaden JJ); MZANX, [58] (Mortimer J);

(5) a decision-maker is not obliged to deal with claims that do not clearly arise from the material (in the sense understood in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ): BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 at [10] (Jackson J). The task is not limited to the material submitted by the applicant and extends to claims arising clearly on the decision-maker's own findings: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [26] (Collier, McKerracher and Banks-Smith JJ);

(6) there are no mandatory relevant considerations applicable to the question of whether it is reasonable to relocate. Minute examination of every circumstance of the proposed relocation is not required: BDA17 at [15] (Jackson J); see also SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22] (Allsop J, as his Honour then was); and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [110] (Robertson, Murphy and Kerr JJ);

(7) a failure to consider a relevant matter going to the reasonableness of relocation can be a jurisdictional error: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [19] - [20] (Flick and Jagot JJ), [38] (Yates J).

1. In the present case, the Tribunal set outs its consideration of s 36(2B) at paragraphs [29]-[35] of its decision. The Tribunal commenced its assessment of the reasonableness of the applicant relocating by accepting that the applicant may be harmed if he returned to his local area by Mr Chen (a person who the applicant had reported to local authorities), or Mr Chen's associates and/or local authorities. Then, the Tribunal found it was no persuaded that Mr Chen would search for the applicant throughout China, or outside his local area. The Tribunal found that, provided the applicant did not return to his local area, Mr Chen would not be motivated to search for him. This was based on the applicant's evidence that Mr Chen was not disadvantaged as a result of the complaint the applicant had made about his meat distribution business in the past to the market co-ordinator and local authorities. The Tribunal found as long as Mr Chen was not physically confronted by the applicant, the Tribunal did not accept that Mr Chen would be motivated to search for the applicant "throughout the country in order to harm him".
2. After premising the relocation finding on relocating to any area in China outside his local area, the Tribunal then considered relevant country information in relation to opportunities for relocation, and expressly considered the particular, personal circumstances of the applicant, his work experience, his previous experience at having operated his own business, his language skills, the impact of relocation would have on him, and the potential for his family to visit him. The Tribunal also addressed the objections the applicant had to relocation, namely, his inability to buy a house in China. The Tribunal addressed that objection, finding it was not satisfied the applicant would not be able to rent a house in another city. It found, based on these considerations, it was reasonable for the applicant to relocate to another area in China where there would not be a real risk he would suffer significant harm at the hands of Mr Chen and/or the authorities in his local area.
3. The Tribunal in reaching its conclusion on the relocation issue, gave a detailed consideration to the personal circumstances of the applicant taking into account the applicant's work experience, his skills, and family support. It also addressed the objection the applicant specifically had to relocating to another area in China. By so doing I consider the Tribunal has complied with the relocation principles outlined above in DEO19.
4. Further, I consider all these factual findings were reasonably open to the Tribunal on the evidence.
5. Ground 1 does not establish jurisdictional error.

1. In ground 2, the applicant appears to be asserting that the consideration of the issue of relocation by the Tribunal was an irrelevant consideration.
2. This ground is misconceived. In order for the applicant to meet the complementary protection criteria under s 36(2)(aa) of the Act, the Tribunal must have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a "real risk that the non-citizen will suffer significant harm". Section 36(2B)(a) sets out the circumstances where there is taken not to be a real risk that the non-citizen will suffer significant harm. One of those circumstances is where the Minister or Tribunal is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. In other words, the Tribunal must, in the appropriate case, consider whether the relocation principle is satisfied in order to decide if the complementary protection criteria has been met by the applicant, or not. This is what happened in the present case.
3. Therefore, contrary to the applicant's second ground of review, consideration of the question of the issue of relocation was a relevant consideration for the Tribunal's decision under s 36(2)(aa).
4. Ground 2 is not meritorious.

1. For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by jurisdictional error.
2. As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
3. The application is dismissed.

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

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.