ASV22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 157

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 25 February 2022, affirming a decision of a delegate (the delegate) of the first respondent, to refuse the grant of a Protection (Class XA) (subclass 866) visa (the visa) to the applicant pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant, a citizen of Thailand, arrived in Australia on 13 December 2015 on a student visa.
2. On 14 September 2019, the applicant applied for the visa, claiming she feared harm from debt collectors.
3. On 4 May 2020, the delegate refused the application, finding the applicant was not owed protection under ss 36(2)(a) or (aa) of the Act. The delegate accepted the applicant's claims but found that Thai authorities could provide effective protection through appropriate laws, a functioning police force, and an impartial judiciary.
4. On 13 May 2020, the applicant applied for merits review with the Tribunal.

1. At [1], the Tribunal recorded that the applicant sought review of the delegate's decision dated 4 May 2020, refusing to grant her a Protection visa under s 65 of the Act.
2. At [2], the Tribunal outlined the applicant's visa history. This included the applicant's arrival in Australia in December 2015 on a Student visa, that her visa expired in October 2017, and that she then remained unlawfully in Australia until being granted a Bridging C visa, associated with her protection visa application on 24 September 2019.
3. At [3], the Tribunal noted that the applicant applied to the Department of Immigration (the Department) for a protection visa on 14 September 2019. The delegate refused the application on the basis that Australia did not owe the applicant protection obligations. The applicant then applied to the Tribunal for review on 14 May 2020.
4. At [4], the Tribunal noted that on 29 October 2021, it invited the applicant to appear via video at a hearing on 16 November 2021. The applicant did not attend, and the Tribunal dismissed the review on 17 November 2021. The Tribunal notified the applicant that she could seek reinstatement by 1 December 2021, but she did not do so.
5. At [5], the Tribunal explained that it later determined the matter should not have been dismissed because the hearing link sent to the applicant had not worked. On 2 December 2021, the Tribunal revoked its earlier dismissal under s 426A(1A)(b) of the Act.
6. At [6], the Tribunal noted that, on 10 January 2022, it invited the applicant to appear via video at a hearing scheduled for 25 February 2022. The applicant did not respond.
7. At [7], the Tribunal recorded that on 13 January 2022, it sent another letter inviting the applicant to appear at the hearing scheduled for 25 February 2022, and warned her that non-attendance could result in a decision without further action.
8. At [8], the Tribunal noted that on 15 February 2022, it invited the applicant to participate in a test hearing on 18 February 2022 to ensure she could connect. The applicant did not participate, and the Tribunal's attempts at contacting the applicant by phone were unsuccessful.
9. At [9], the Tribunal noted that on 18 and 24 February 2022, it sent SMS reminders to the applicant's mobile number. Those SMS reminders also provided a telephone number for the applicant to contact the Tribunal. The applicant did not contact the Tribunal or raise any difficulty about attending a video hearing.
10. At [10], the Tribunal recorded that the applicant did not attend the hearing on 25 February 2022. The Tribunal attempted to telephone the applicant without success. The Tribunal determined that it would proceed to make a decision on the review in her absence.
11. At [11], the Tribunal identified the issues on review as whether the applicant was owed Australia's protection under the refugee criterion or the complementary protection criterion of the Act.
12. At [18], the Tribunal summarised the applicant's claims, which were as follows:
    • She is a Thai citizen born in Chiang Mai.
    • She borrowed money in Thailand but could not repay it due to high interest.
    • She was threatened and beaten by a debt collector.
    • Thai authorities did not protect her and will be unable to protect her.
    • She was chased when she tried to relocate; and
    • She fears she will be harmed or tortured by the debt collector if returned.
13. At [21], the Tribunal accepted that the applicant is a citizen of Thailand and determined that Thailand is her receiving country for the assessment of protection obligations.
14. At [23], the Tribunal outlined the general principles for assessing claims, noting that merely asserting fear does not establish a well-founded fear and that applicants must provide evidence that allows the Tribunal to evaluate their claims.
15. At [24], the Tribunal found that the applicant's claims were unsubstantiated and lacked supporting evidence. Due to her failure to attend the hearing, the Tribunal could not question her or obtain further information regarding key matters, such as the loan details, repayments, threats, or outstanding debt. The Tribunal stated that, had she attended the hearing, it would have asked detailed questions about the loan increase, her interactions with Thai authorities, any protection sought in Thailand, and how and why she feared torture on return [25].
16. At [26], the Tribunal observed that the applicant's failure to attend prevented inquiry into how she afforded tuition fees and living expenses in Australia if she was unable to repay a loan, as well as her reasons for delaying her visa application until 14 September 2019, despite arriving in 2015.
17. At [27], the Tribunal found that, on the limited evidence, it was not satisfied that the applicant had borrowed money from loan sharks, was in debt, or was at risk from money lenders or debt collectors, nor that she left or feared returning to Thailand for those reasons. At [28], the Tribunal concluded it was not satisfied that there was a real chance of serious harm or a real risk of significant harm if she were to return to Thailand now or in the reasonably foreseeable future.
18. At [29], the Tribunal concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act as she had not established a well-founded fear of persecution for any s 5J(1) reason, nor a real chance of persecution in Thailand.
19. At [30], the Tribunal proceeded to consider complementary protection under s 36(2)(aa) of the Act.
20. At [31]-[32], the Tribunal found no substantial evidence that the applicant would face arbitrary deprivation of life, the death penalty, torture, or cruel or degrading treatment or punishment upon return to Thailand. Accordingly, the Tribunal determined that there were no substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of her removal, and that she therefore did not meet the complementary protection criterion.
21. Consequently, at [33]-[34], the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act, and further found that there was no basis to consider her eligible for a Protection visa on family membership grounds under s 36(2)(c).

1. The applicant advances five grounds of judicial review contained in an Originating Application filed with the Court on 13 March 2022. The grounds of judicial review are as follows, (reproduced as written):
   1. Not all facts or evidence was taken to provide
   2. I fears the debt collector will force me to work to repay the debt and torture me if I returns to Thailand. I will live in fear and the debt collector will continue to harm me if I does not repay the debt.
   3. I applied for protection visa and The Tribunal affirms the decision not to grant the applicant a protection visa.
   4. I apply to The Federal Circuit Court of Australia to give me mercy for more the period of time to stay safe in Australia.
   5. I claims that I left Thailand after receiving threats from debt collector was ture.

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Book and that the respondent's written submissions had been translated to her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the hearing, should she wish to.
2. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two. The Court also explained the procedure by which the hearing would be undertaken.
3. Despite Court Orders, no written submissions or other material were provided to the Court by the applicant in support of her case. The applicant was asked if she wished to state anything to the Court. The applicant replied that she had come only to hear the Court's verdict. The Court explained that it was conducting an oral hearing and that this was her opportunity to say anything she wanted regarding her case. The applicant again responded that she had nothing to say.
4. The applicant was then taken through each Ground of judicial review and asked whether she wanted to say anything in support of them. The applicant again declined.
5. At the conclusion of the respondent's oral submissions, the applicant was asked if she wished to state anything in reply. The applicant answered "No".

1. Grounds One, Two, and Five assert, collectively, that the Tribunal failed to consider the applicant's sole protection claim, that is, that she feared a debt collector who threatened and assaulted her when she could not repay a loan. This assertion merely disagrees with the Tribunal's factual findings and invites impermissible merits review. Framed this way, the ground risks turning judicial review into a reconsideration of the merits: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
2. Allegations of "improper consideration" often amount to nothing more than disagreement with factual conclusions, which cannot justify merits review: Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 921 at [24].
3. The Tribunal summarised the applicant's claim but found it "general" and "unsubstantiated." The Tribunal also noted that the applicant provided no written evidence to the Department or Tribunal and did not attend the Tribunal hearing.
4. The Tribunal's conclusions must be considered in light of the Tribunal's notices of 29 October and 10 December 2021, advising the applicant that it could not make a favourable decision on the available information: CB 64, 97.
5. On the limited material before it, the Tribunal was not satisfied that: (a) the applicant took out a loan in Thailand, and therefore could not accept any claims flowing from that assertion, including alleged adverse interest from lenders or debt collectors, or her stated reasons for leaving or fearing return [27]; (b) there was a real chance of serious harm or a real risk of significant harm for the claimed reasons [28]; or (c) there were substantial grounds for believing she would face significant harm upon removal to Thailand, and thus she did not meet the criteria for protection under s 36(2)(aa) of the Act [32].
6. The Tribunal's reasons clearly show that it did consider the applicant's claim and evidence, which it restated at [18]. The Tribunal rejected the applicant's claim because it lacked sufficient detail to allow any assessment of its truth. The adequacy of its reasons under s 426A(1A)(a) of the Act is further reflected in the Tribunal's clear notices advising the applicant that, on the material before it, a favourable decision could not be made: CB 64, 97; and in its invitation to provide further information in writing or at a hearing. Having provided that opportunity, the Tribunal could do little more than allow the applicant to elaborate at a hearing. Where an applicant chooses not to take up that opportunity, the inevitable consequence is that their application will be rejected: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
7. Accordingly, the applicant has not established that the Tribunal erred or that its decision is affected by jurisdictional error.
8. Ground Three states a fact and does not establish any jurisdictional error.
9. Ground Four does not seek review of the Tribunal's decision. Rather, it seeks orders the Court cannot make and is therefore without merit.
10. Although not raised by the Applicant, the Minister's model litigant obligations require addressing whether the present application is affected by the same error as in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17). In particular, whether it was legally unreasonable for the Tribunal to decide the review under s 426A(1A)(a) of the Act, rather than dismissing the application under s 426A(1A)(b), without giving reasons for choosing one course over the other.
11. The Court has recently confirmed that DNK17 does not establish a general rule that it is always unreasonable for a Tribunal to proceed under s 426A(1A)(a) rather than (b) without articulating reasons: EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173 (EEV18) at [30]. The Tribunal is not required to expressly state why it exercised the power under s 426A(1A)(a), nor to refer to alternative options: EGA19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 614 (EGA19) at [37].
12. Once the preconditions in ss 425 and 425A of the Act were met, the Tribunal was entitled to exercise its powers under s 426A: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [8]. The Tribunal did so by inviting the applicant to a hearing under s 425 and giving proper notice of the hearing's date, time, and place under s 426: CB 125 - 126.
13. DNK17 is distinguishable from the current matter as the Tribunal's decision here discloses an "evident and intelligible justification" for proceeding as it did, which may be reasonably inferred from the circumstances. The applicant repeatedly declined opportunities to engage with the Tribunal, indicating she was unlikely to participate further or provide material necessary for the review: Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 (Singh) at [52]-[53]. Such conduct provides a rational basis for the Tribunal to decide the review without taking further steps to secure her attendance: Singh at [48].
14. Consistent with Singh at [52], the Tribunal's reasons for exercising its discretion under s 426A(1A)(a) of the Act were:

...directed at the steps taken to invite the applicant to a hearing and the advice given that failure to appear might result in a decision without further notice. The Tribunal was satisfied that the applicant had been properly invited to the hearing, that the invitation had not been returned, that the applicant had not responded to the hearing invitation and had then not appeared at the hearing. In the circumstances of this case the reasoning, while sparse, provided an evident and intelligible justification for the decision to proceed.

1. DNK17 is also distinguishable from the current matter for the following additional reasons: (a) the application had previously been dismissed for non‑appearance under s 426A(1A)(b) of the Act, and the applicant did not seek reinstatement; (b) the applicant did not engage with either the Department or the Tribunal by supplying further evidence or documents, despite repeated requests (EGA19 at [42]); (c) the applicant did not seek an adjournment, and her failure to attend the hearing was unexplained, unlike in DNK17 where three adjournments were sought; (d) the Tribunal's decision was not based on credibility findings, unlike in DNK17; and (e) there was no technical defect in the Tribunal's notice of the hearing's date, time, or place, unlike the issues in AMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 423 at [65]- [67].
2. Further, the Tribunal's decision to determine the review cannot be characterised as unreasonable merely because the applicant's claims lacked sufficient detail: Alka v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1347 at [60]. The Tribunal found the applicant's claims were made in very general terms and were unsubstantiated [24]. As explained above, it was reasonable to infer the applicant would not meaningfully engage even if a further opportunity was afforded.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:

... an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
2. It is for the applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to "afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence": Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82].
3. Grounds One, Two and Five each and cumulatively assert the Tribunal did not consider the applicant's protection claim. This is in circumstances where the applicant, although invited to attend the Tribunal hearing, failed to do so, and submitted no additional material for the Tribunal to consider.
4. Further, the applicant has not particularised which material or claim the Tribunal did not consider.
5. A perusal of the Tribunal decision record clearly indicates the Tribunal considered each of the applicant's claims, as they were, and found they were not satisfied that the applicant met the threshold for the grant of the visa. This was a conclusion open to the Tribunal on the evidence before it and for the reasons it gave. Grounds One, Two and Five have no merit.
6. Grounds Three and Four are statements of fact and are not proper grounds of review. They have no merit.
7. This then leaves the question of whether the application is affected by Horan J's decision in DNK17. In my view, it is not. In circumstances where the applicant had been properly invited to attend a hearing, and had not provided any reasons for not attending, it was reasonably open to the Tribunal to dismiss the matter pursuant to s426A(1A)(a) of the Act rather than (b). There was no need for the Tribunal to provide reasons for proceeding under (a) rather than (b).
8. In coming to this conclusion, I adopt the reasoning of Gostencnik J in EEV18 at [30] and McCabe J in EGA19 at [37].
9. To those reasons, I would add the following. The Tribunal is a high-volume merits review tribunal, particularly in the migration jurisdiction. It is well settled that the reasons of the Tribunal should not be read with an eye finely attuned to error. In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19], Abraham J said the following:

It is first appropriate to recall that a Tribunal's reasons should be read fairly, and as a whole. The Tribunal's reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 -272 ; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].

1. Further section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (the relevant legislation as enforced at the time of the Tribunal's decision) stated the following:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

a) is accessible; and

b) is fair, just, economical, informal and quick; and

c) is proportionate to the importance and complexity of the matter; and

d) promotes public trust and confidence in the decision-making of the Tribunal.

1. In circumstances where there might be competing interpretations of a particular section of the AAT Act, any interpretation should be through the lens of s 2A (or any equivalent section of the Administrative Review Tribunal Act 2024 (Cth)), and allowing applications to be resolved efficiently, without the need for undue legal technicality and excess requirements for reasons.
2. In this matter, the reasons for proceeding under s 426A(1A)(a) of the Act may be readily inferred from the history of the matter, including the lack of any real engagement by the applicant with the Tribunal.
3. In the circumstances of this case, no error arises from the Tribunal not expressly articulating its reasoning for proceeding under s 426A(1A)(a) or the alternative courses open to it. To require such a process, in my view, would place an unreasonable and unnecessary burden on the Tribunal.
4. As the applicant is unrepresented, the Court has perused the Court Book tendered and other relevant material. The Court is unable to detect any unarticulated jurisdictional error.

1. As none of the grounds of judicial review have merit, the Application must be dismissed with costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.