AXC20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1161

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant her a Protection (subclass 866) visa (the visa). As will be explained, for the applicant to succeed in this Court, she must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal's decision. On that basis, the application cannot succeed.

1. The applicant is a citizen of India (Court Book (CB) 21, 45). She first arrived in Australia on 8 May 2008 as the dependant of her spouse's Student (subclass 572) visa (CB 61).
2. On 10 May 2016, the applicant applied for a protection visa (CB 8-44). In her application, the applicant claimed that she came to Australia with her husband but will be harmed if she returns to India because she is a follower of Dera Sacha Sauda (DSS). She claimed that her husband and his family tried to get her to abandon DSS but she is now separated from her husband. She claimed that his family and many Hindu hardliners have threatened to harm her. She said that the authorities cannot protect her because many people in the government are against DSS, and she cannot relocate to another part of India because Hindu hardliners can find her anywhere and it would be impossible for her to safely move by herself (CB 39-41).
3. On 20 July 2016, a delegate of the Minister refused to grant the applicant the visa (CB 61-71). The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) (CB 70).
4. On 12 August 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 72-78).
5. On 5 December 2017, the applicant was invited to attend a hearing scheduled for 2 February 2018, which was later postponed and rescheduled for 21 August 2019 (CB 83-84, 89-92). The applicant attended that hearing and was assisted by a Hindi interpreter (CB 94).
6. On 3 February 2020, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa (CB 131-146).
7. On 28 February 2020, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Act.

1. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal began by outlining the applicant's visa history and by identifying the visa decision under review (at [1]-[5]).
3. The Tribunal set out the legislative criteria for the grant of a protection visa, namely, the refugee and complementary protection criteria (at [6]-[14]). The Tribunal confirmed that, in accordance with Ministerial Direction No. 84, made under s 499 of the Act, it also had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines', as well as a Department of Foreign Affairs and Trade (DFAT) country information report for India dated 17 October 2018 (at [15]-[16]).
4. The Tribunal set out the applicant's protection claims as made in her visa application (at [18]-[19]). The Tribunal noted that the applicant came to Australia on a student visa with her husband in 2008, but that she is now separated from him and provided a 2019 divorce order as evidence (at [22]-[24]). The Tribunal noted that since her arrival in 2008, the applicant has returned to India three times for a total of 15 to 16 weeks, her last visit being in 2014 (at [25]).
5. At the Tribunal hearing, the applicant made the following claims (at [26]):
   • When she visited India, she could not stay with her husband's family and instead stayed with a friend. Her husband would bring the children to visit her.
   • In 2014, she called her husband to arrange a meeting with the children and she was told to wait at the Rudra Theatre. The children did not come but two people on motorcycles came along and pushed her over and started hitting her. She did not recognise the assailants but she thought they were trying to kill her.
   • She did not report the incident to the police because she instead went to Nagpal Hospital to get treatment for injuries to her eye and elbow. She does not have a record of that treatment but said she could obtain it. Her friend advised her not to report the incident because the police do not support DSS.
   • She did not mention the incident earlier because her husband told her they were going back to Australia and not to worry about it. She did not make these claims before the hearing because she feels safe in Australia.
   • She became a DSS follower when she was 14 or 15 years old. She said people in India would know she is a DSS follower because "people who are Dera go to the Ashram". She said she had been to the ashram five times in five years before she was married but then did not go again. She did not attend the ashram more frequently because she was going to school and could only go during the school holidays, and because they teach meditation and ask followers to meditate at home, so there is no need to return to the ashram.
   • The applicant's mother is a follower of DSS but her father and siblings are not. The applicant does not recall when her mother began following DSS as she was very little. Her mother meditates for two and a half hours a day and talks about a "spiritual way". The applicant also now meditates for two and a half hours a day as a follower of DSS.
   • When asked to explain the "spiritual way", the applicant said the ashram tells people to remember God every day for two and a half hours, to help others always, to encourage people to do good things, and not to show off with prayer.
   • She identified her religion in the application in as "DSS Hindu" but said she does not believe in any religion because the DSS do not have a particular religion. When asked why she took an oath on the Gita, the applicant said that she was born Hindu but for her any religion is the same. She has not undertaken any DSS activities in Australia and does not attend the Hindu temple.
6. The Tribunal set out that the applicant provided a number of articles at the hearing regarding violence against DSS supporters and women in India (at [27]). Following the hearing, she provided a further article, contact details for the DSS in Haryana, and a letter dated 24 August 2019 from Nagpal Nursing and Maternity Home addressing the injuries and treatments arising from the 2014 incident (at [28]-[29]).
7. The Tribunal then considered her claims that she will be persecuted because of her political beliefs, and because of her membership of a particular social group, namely, divorced single women (at [30]).

Claims with respect to the applicant's status as a follower of DSS

1. In assessing the applicant's claims to fear harm from Hindu hardliners, as well as from her ex-husband and his family, on the basis that she is a follower of DSS, the Tribunal had regard to DFAT country information as well as articles provided by the applicant (at [32]-[38]). The Tribunal noted that these articles do not refer to DSS supporters being specifically attacked or targeted (at [37]).
2. With respect to the 2014 incident, the Tribunal accepted that the applicant had attended at Nagpal Hospital, however it did not accept that the attack was by Hindu hardliners or was due to her being a follower of DSS (at [45]).
3. At the hearing, in accordance with s 424AA of the Act, the Tribunal put to the applicant information from her ex-husband's Tribunal decision, namely, that her ex-husband gave evidence that he did not know she was a follower of DSS from 2000 to 2008 (at [49]). The applicant told the Tribunal that she did not tell her husband or his family that she was a follower of DSS until after three or four years. She said her husband was angry and asked why he did not tell her earlier, but that he did not have a problem with it and rather that it was his family who did not approve of her following DSS (at [48], [50]). The Tribunal noted that this was inconsistent with the claims in her application (at [50]).
4. The Tribunal accepted that the applicant is a follower of DSS, but did not accept that she was at risk of harm or had a well-founded fear of serious harm from her ex-husband, his family or their neighbours on the basis that no harm befell her in the years after telling them she was a DSS supporter before coming to Australia (at [52]).
5. The Tribunal ultimately did not find there was a real chance she would be persecuted upon return to India on the basis that she is a follower of DSS (at [53]).

Claims with respect to the applicant's status as a single divorced woman

1. In assessing the applicant's claims to fear harm as a member of a particular social group, namely, single divorced women, the Tribunal had regard to DFAT and UK Home Office country information, as well as articles provided by the applicant.
2. The Tribunal accepted that women in India are at risk of sexual assault, but was not satisfied that the applicant would be targeted as a single or divorced woman (at [63]).
3. In accordance with s 424AA of the Act, the Tribunal put to the applicant information from her ex-husband's Tribunal decision, namely, that it was her decision to no longer live together. The Tribunal put to the applicant that this inconsistency, along with insufficient documentation at the time, may lead to a conclusion that they were not, in fact, separated. The applicant did not say anything in response (at [65]).
4. The Tribunal expressed doubts about the genuineness of their separation and found that it was more likely she had claimed to be separated because she had exhausted all other migration options in Australia. While the Tribunal continued to have concerns, it accepted that the applicant is divorced, following provision of the divorce order after the hearing, and that if she returned to India, it would be as a single divorcee (at [66]-[67]).
5. While the Tribunal accepted that life may be difficult for the applicant in India as a single woman and that she may suffer financial hardship, it did not accept that she would not be able to live with her mother or brother, or that any hardship she encounters would threaten her ability to subsist (at [70]-[72]).
6. The Tribunal found that the applicant's claims of being a follower of DSS and a single divorced woman, individually and cumulatively, did not give rise to a well-founded fear of persecution. Accordingly, she did not meet the refugee criterion in s 36(2)(a) to invoke Australia's protection obligations (at [73]-[75]).

1. Having considered the applicant's claims against the refugee criterion, the Tribunal also considered the complementary protection criterion in s 36(2)(aa) of the Act.
2. For the same reasons outlined above, the Tribunal found that, as a necessary and foreseeable consequence of being removed from Australia, the applicant does not face a real risk of significant harm from Hindu hardliners or from her ex-husband and his family because she is a DSS follower, or a real risk of significant harm as a single divorced woman. Accordingly, the Tribunal found she did not meet the complementary protection criterion in s 36(2)(aa) to invoke Australia's protection obligations (at [78]-[81]).
3. The Tribunal affirmed the decision not to grant the applicant a protection visa (at [83]).

1. The application for judicial review filed by the applicant on 28 February 2020 contains two grounds of review as follows:
   1. The Administrative Appeals Tribunal has fallen into jurisdictional error by failing to engage with my fears as a single, divorced woman.
   2. At para [45] the AAT accepted that I attended at Nagpal Hospital, but it did not accept that I was injured as a result of the incident I described, or that I had been attacked by Hindu hardliners because I was a DSS adherent. The AAT had no evidence for its assertion as to the injuries not being caused by Hindu hardliners.
2. The applicant appeared before the Court on 13 June 2025 without legal representation but with the assistance of a Hindi interpreter. The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister's written submissions.
3. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 28 February 2020 (the affidavit being taken as read and in evidence at the hearing on 13 June 2025), a Court Book numbering 149 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 30 May 2025, and the affidavit of Dorsa Salehi affirmed and filed on 30 May 2025 (the affidavit being taken as read and in evidence at the hearing on 13 June 2025).
4. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal's decision and/or procedure.
5. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]);

(f) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(g) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 (SZMDS); Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and she should attempt to tell the Court what she said the Tribunal did wrong.

1. As outlined above, the application for judicial review contains two grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158).

1. Ground one contends that the Tribunal failed to engage with the applicant's claims as a single divorced woman.
2. When invited to address the Court about this ground, the applicant said that she feels safe in Australia and is too scared to go back to India as a single woman. She said that the Tribunal did not understand her fear and that they did not understand she would be at risk by going back to India. She said that she thought the Court would understand her perspective and claim better than the Tribunal.
3. The Minister submitted that the Tribunal did, in fact, consider and engage with these claims at length (at [54]-[72]). The Tribunal considered DFAT country information regarding divorced women, and violence and discrimination against women in India, as well as considering the applicant's own submissions and evidence. In particular, the Tribunal referred explicitly to the applicant's fears about where she will live, what she will do, and what risks she might be exposed to if she returned to India as a single divorced woman (at [68]).
4. In considering the applicant's claims, the Tribunal was ultimately not satisfied that her fears as a single divorced woman amounted to a well-founded fear of persecution. The Tribunal found that the country information did not suggest she would be targeted because she is single or divorced. The Tribunal was also not satisfied that the applicant could not, or would not, live with her brother or mother if she returned to India, or that any hardship or lack of opportunity she might experience as a single divorced woman would threaten her capacity to subsist.
5. The Tribunal also considered other decisions of the Tribunal where it was found that a single woman in India would have a well-founded fear of persecution, however those cases involved women who had been victims of domestic violence and who would have had to relocate if returned to India due to the risk in their local area. The Tribunal found that this matter distinguished from the applicant's circumstances (at [71]). The applicant did not face such a risk, nor did she make any such claim that she would suffer domestic violence if she were to be returned to India.
6. It appears to the Court that the country information referred to by the Tribunal appears to be capable of establishing that the applicant, as a single and divorced woman in India, may have a well-founded fear of persecution. In particular, on the face of the country information cited by the Tribunal, there would seem to be a rational basis to find that single women in India are at risk of sexual assault and gender-based violence. Notably, the DFAT Country Information Report on India dated 17 October 2018, which was before the Tribunal, observed that:

3.33 Traditional social practices and the low status of women in many parts of India result in domestic and gender-based violence. Child marriage and sati (widowed women committing suicide on their husband's funeral pyre) are illegal, but both practices continue in rural areas. The tradition of the bride's family paying a dowry leads to female infanticide, sex-selective abortions and dowry deaths (women murdered or driven to suicide in the attempt to extort a higher dowry). Over 90 per cent of domestic violence incidents are not reported to any formal agency such as police, social workers or lawyers.

3.34 The gang rape and homicide of a young medical student in December 2012 in New Delhi triggered demonstrations across India. Since then, the issue of violence against women has attracted increased attention among the population. Reports of rape, in Delhi in particular, have sharply increased since 2013, although the conviction rate has declined. In 2015, the Ministry of Home Affairs registered over 34,600 cases of rape and over 4,400 cases of attempted rape. The number of cases that go unreported is likely to be much higher. Some women complain that police refuse to file reports of sexual violence. Marital rape continues to be legal.

3.35 According to Human Rights Watch, many women fail to report violence for fear of retribution. Witness protection programmes are not available to victims outside of the state of Delhi. Women who are victims of assaults by men who are well-connected in politics or who have significant wealth, or in cases where the woman is from a lower socio-economic class or caste, may have particular difficulties in having file or investigate reports of sexual assault (see Police).

3.36 In traditional rural areas, senior community members or village committees have reportedly arranged gang rapes of women as punishment for their families' perceived misconduct in a number of incidents, according to human rights NGOs. According to the Asia Foundation, almost 400,000 women and girls have been abducted in the past decade. Rates are reportedly much higher in northern states with highly unbalanced child sex ratios, and involve women and girls of low castes, especially Dalits. The offenders (sometimes from higher dominant castes) abduct the women and girls for rape, sexual trafficking and forced marriage. Victims and their families generally remain silent due to shame and fear of reprisal. Sources reported a low incidence of police action in these cases, attributed to police bias towards higher castes and a tendency to dismiss the victims due to their lower caste.

3.37 The Protection of Women from Domestic Violence Act (2005) requires the states to provide shelters, counselling services and legal aid to survivors. Local sources claim that women's shelters in India are run very strictly and do not always provide a safe environment. Shelters were first established to 'protect' vulnerable women from prostitution and trafficking rackets; therefore, women who attend shelters (nari gruh, meaning women's homes) are seen as 'immoral' or 'deviants' who deserve to be punished. The quality of counselling services is poor and not always available. Sources report a shortage of data on the facilities available across states, and on the experiences of women in state and NGO-run shelters.

3.38 Women from higher socio-economic backgrounds, particularly urban women, are more likely to use the courts as a means of redress and protection from violence related to dowries, though social stigma can be a deterrent. Women in smaller, rural communities are deterred from such action due to the cost and social stigma. Women with higher standards of education have a better awareness of available services and are better placed to access these services. If working, these women are also more likely to be employed in the formal sector with higher legal protections.

3.39 Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may be pressured by their families to hide family violence against them for fear of maligning their family's honour and reputation.

3.40 Other factors which may affect the situation for women experience violence include the state in which she lives, her class, caste, ethnicity, religion, education and age. Access to services is typically better in urban areas than in rural regions. In addition to the geographic advantages of urban-based communities, education and the standard of literacy has a significant impact on access to services.

3.41 DFAT assesses that women face a low risk of official discrimination. DFAT assesses that women, particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence.

1. Nevertheless, the fact that the country information might ground one rational outcome does not inexorably mean that other conclusions were not open upon the same material. The Court is acutely aware that it must not intervene in a matter where reasonable minds may differ. In this matter (SZMDS at [111]), the Court accepts that the Tribunal did consider and engage with the applicant's claims and placed those claims in the context of authoritative and credible country information. Further, the Court accepts the Minister's submission that the Tribunal was entitled to reject or place weight on such evidence as it considered appropriate in reaching its findings (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] (NAHI)). The Court may have reached different conclusions on the country information but that alone does not amount to jurisdictional error. The Court is also of the view that the Tribunal carefully considered the material before it in this matter and notes that the Tribunal specifically acknowledged that there were other Tribunal decisions which did find that a single woman in India held a well-founded fear of persecution before distinguishing those decisions for rational reasons.
2. The Court held some concerns that the Tribunal may not have properly dealt with the material in respect of the applicant's claim that she was a divorced woman as opposed to being a single woman. The Tribunal's reasons address the evidence relating to the status of single women in some detail, but little is said in respect of the specific situation of divorced women. However, the Court has reviewed the country information which was before the Tribunal and is satisfied that, unlike more recent reports, there is no specific information in respect of the situation of divorced women as distinct from single women. In short, there is no error in the manner in which the Tribunal understood or applied the material before it.
3. It cannot be said that the Tribunal failed to engage with the information before it or that its conclusions were not supported by probative material. The Tribunal's findings were open to it and its conclusions were not irrational, illogical or legally unreasonable (as required by the authorities cited at paragraph [35(g)] of these reasons).
4. No jurisdictional error arises in respect of ground one.

1. Ground two specifically refers to paragraph [45] of the Tribunal's reasons, which is set out as follows:

While the Tribunal accepts [the applicant] may have attended Nagpal Hospital it does not accept this was because she had been attacked in the manner she describes, or that this attack was by Hindu hardliners, or that the attack occurred because she is a DSS supporter. The absence of her claiming this occurred on her return to Australia or in her application for the visa, and this claim being raised in her application for review for the first time, results in the Tribunal finding her claim that she was attacked because she is a follower of DSS is a recent invention to bolster her claims.

1. The applicant contends that the Tribunal erred in making such a finding. The applicant alleges that these findings were not open to the Tribunal and there was no evidence contrary to her claims.
2. When invited to address the Court, the applicant acknowledged that the Tribunal accepted she had been injured and that she had been treated for those injuries at Nagpal Hospital, but she said that the Tribunal did not understand the after-effects of the incident. The applicant did not have anything further to say with respect to this ground.
3. As outlined earlier, the applicant's claims in oral submissions at the Tribunal hearing were that she was attacked in 2014 by two people on motorcycles. She said they beat her and tried to kill her but she did not recognise the assailants, who she assumed were anti-DSS and strict Hindu followers, because she did not fear harm from anyone besides this group. She did not report the incident to the police because her friend told her not to as the police did not support DSS followers. The Tribunal enquired why she had not raised this claim in her visa application, in her Tribunal application or in the Response to Hearing Invitation, to which the applicant responded that her ex-husband had told her not to worry about it as they were returning to Australia and she did not fear living in Australia (at [38]-[42]).
4. Counsel for the Minister drew the Court's attention to the key findings in the Tribunal decision with respect to this claim, namely, that it was mere speculation the applicant was attacked by anti-DSS or strict Hindu followers (at [40]), that the hospital record did not indicate the cause of her injuries (at [43]), and that the applicant had failed to claim this occurred on her return to Australia or in her visa application (at [45]).
5. In light of those findings, the Minister submitted it is evident that the Tribunal considered and engaged with the applicant's claims in relation to the 2014 attack, along with the evidence of her hospital records and her reasons for not raising the claim sooner. The Minister submitted that the Tribunal's decision not to accept the applicant's claims was rational and open to it on the basis of those findings.
6. The Court agrees that the Tribunal did actively consider and intellectually engage with the applicant's claims. As with ground one, the Court also accepts that the Tribunal was entitled to reject or place weight on such evidence as it considered appropriate in reaching its findings (NAHI at [11]). The Court accepts the Minister's submission that the Tribunal's findings in this respect were open to it, and its conclusions were not irrational, illogical or legally unreasonable.
7. To the extent that the applicant, by this ground, asks the Court to reconsider the claims themselves, the Court agrees with the Minister's submission that this would be an invitation to engage in impermissible merits review and the Court cannot consider such a request (Wu Shan Liang at 272).
8. No jurisdictional error arises in respect of ground two.
9. The Court asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention. There were none.
10. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Court is satisfied that, even adopting the broad approach referred to in [37] of these reasons, no jurisdictional error is apparent.

1. As observed above, the Court is aware that more recent country information, particularly from DFAT, addresses with greater particularity the specific risks which may be faced by divorced women in India. It is, of course, deeply impermissible for this Court to make any comment on whether this has particular relevance for the applicant in this matter. Nevertheless, the Court draws attention to the Minister's discretionary powers under the Act. The applicant is encouraged to seek advice in potentially making an application for Ministerial intervention, noting the outcome of such an application is entirely a matter for the Minister.
2. The application for judicial review, supporting affidavit and any additional submissions advanced by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
3. Accordingly, the application is dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.