BRH20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2043

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 11 March 2020 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the first applicant a Protection (Class XA) (subclass 866) visa (protection visa) under s 65 of the Act.

1. On 20 February 2010, the applicant, a citizen of Lebanon, first arrived in Australia as the holder of a student visa.
2. On 11 December 2015, the applicant lodged an application for a protection visa.
3. On 24 January 2017, a delegate of the First Respondent refused to grant the visa and on 7 February 2017, the applicant lodged an application for review of the delegate's decision with the Tribunal.
4. On 11 March 2020, after an oral hearing on 27 February 2020, where the applicant gave evidence and presented arguments to the Tribunal, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. In its decision, the Tribunal did not find the applicant to be a credible and truthful witness. The Tribunal identified that the applicant's interfaith relationship with a Christian woman and her brothers' response to it was the "centre of the applicant's claims of fear of harm in Lebanon". However, the Tribunal found the applicant's account of his experiences appeared to have significantly changed over time.
2. The Tribunal noted in the applicant's application for protection he had stated that, when he returned to Lebanon for a holiday in April 2013, he renewed his relationship with his partner. However, he claimed that as he is Muslim and she was Christian, the relationship was not acceptable to his parents and her family. He claimed that when the applicant's partner's family found out, they threatened to kill the applicant and came to his house carrying guns. He claimed that during the two months that the applicant was in Lebanon, his life was 'threatened constantly' and 'wherever [he] went they would follow.' On 4 June 2013, the applicant claimed he was shot at by one of the partner's brothers. He claimed that the shot grazed his shoulder, and he left Lebanon two days later.
3. The Tribunal recorded its concerns about the changes in the applicant's evidence which had been put to him at the hearing and by way of a notice under s 424A. The changes in his evidence related to the nature of his relationship with the Christian woman, including the frequency of their contact, and the timing and nature of the attacks at his home by her brothers, such as whether the applicant was shot at and/or beaten by the brothers.
4. The Tribunal was not satisfied by the applicant's explanation for the inconsistencies it had identified, namely that his English was poor and he asked a friend to "write his story" in his visa application, which was inconsistent with his evidence at the hearing.
5. The Tribunal was not satisfied with the applicant's additional explanation that his memory recall was affected by the stress he was experiencing because there was no medical evidence about any illness affecting his ability to recall events.
6. The Tribunal also found it "highly problematic" that:

(a) the applicant relied on a medical report that indicated he was assaulted on 4 June 2013 despite his evidence that it had occurred on 3 June 2013;

(b) the medical report was dated 2016, two years after the incident occurred; and

(c) the doctor indicated in the report that the applicant "still suffer[ed] from the same disease [of severe spinal pains and abrasions with disc pains resulting from the fight]" despite the fact he had not examined the applicant since 2013. The Tribunal placed no weight on the medical report.

1. The Tribunal did not accept the applicant's evidence that the "significant" delay of 30 months in applying for a protection visa was because he did not know he could apply for such a visa in this country.
2. Having found that the applicant was not a credible witness, the Tribunal did not accept that: (i) he was in a romantic relation with a Christian woman in Lebanon; (ii) he was followed, threatened, attacked, assaulted, shot at and injured by anyone in Lebanon; his back injury was caused as a result of his being attacked in Lebanon; (iii) anyone in his family was threatened; and (iv) or anyone in Lebanon had any form of adverse interest in him.
3. The Tribunal concluded that there was no real chance that the applicant would face serious harm in Lebanon and he did not have a well-founded fear of persecution. Having rejected the applicant's factual claims, it was also not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer harm under the complementary grounds for protection under s 36(2)(aa) of the Act.

1. On 8 April 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 11 March 2020. The application contains three grounds of review. They are (as written):

1. The First and Second Respondents breached the rules of procedural fairness.

2. The First and Second Respondents denied the applicant natural justice.

3. The First and Second Respondents misconstrued and/or misapplied the law.

1. On 2 October 2025, the proceedings were docketed to me and set down before me for final hearing on 19 November 2025.

1. At the hearing of this matter on 19 November 2025, the applicant was not represented. He was assisted at the hearing by an Arabic interpreter. Ms E. Maker 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 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 decision is wrong.
4. Accordingly, I took the applicant through each of the three grounds of review and asked what was meant by each ground. The applicant made brief submissions on each ground. I deal with these below under consideration of the grounds.
5. Ms Maker made brief oral submissions summarising the first respondent's written submissions on the grounds. In relation to the matters which the applicant submitted orally, I deal with these below in respect of each ground.

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. As I explained to the parties at the hearing, the Court does not consider the merits of the decision; nor does it have the statutory power remake the decision to grant a protection visa: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).

Grounds 1, 2 and 3 of review in the application

1. All three grounds of review as pleaded in the application are merely unparticularised assertions of general legal errors alleged to have been committed by the Tribunal. They do not contain proper or arguable grounds of judicial review.
2. Unparticularised grounds of judicial review are liable to be dismissed: see WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]. However, as Colvin J held in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [9]:

...it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

1. At the hearing I followed the procedure which Colvin J held in DQQ17 ought to be followed in protection visa cases where the applicant is not represented. The applicant made submissions before me about all three grounds. I will deal with each ground below on the basis of what was submitted by the applicant (and in reply by the first respondent) at the hearing.

1. At the hearing before me I asked the applicant what he meant by ground 1 of his application. He referred me to paragraph [32] of the Tribunal decision and submitted he disagreed with the Tribunal's finding that he had delayed in making his protection visa application after arriving in Australia. He submitted that the reason he delayed making the application after he arrived in Australia in 2013 until 2015 was because no one advised him, he could make such an application.
2. In reply to this argument, Ms Maker submitted the factual finding in paragraph [32] of the Tribunal decision was open to the Tribunal given the evidence before it. It was submitted it is not open to the applicant to challenge the merits of the Tribunal decision.
3. Paragraph [32] of the Tribunal decision reads as follows:
   1. The Tribunal has also taken into account the applicant's significant delay in lodging his application for a protection visa. The applicant returned to Australia from Lebanon on 6 June 2013. However, he did not apply for a protection visa until 10 December 2015 - a significant delay of approximately 30 months. He told the Tribunal that he did not know he could apply for a protection visa until a colleague informed him of this option. As already noted, the applicant came to Australia in 2010 in order to study accounting. He is educated and, as he told the Tribunal, he has numerous uncles, aunts and cousins in Australia, who could have provided him with some information or assistance, even if he had been reluctant to share his claimed story with them. The Tribunal does not accept that his explanations satisfactorily address a delay of two and half years in applying for a protection visa. The applicant's significant delay in applying for a protection visa raises further doubts in relation to the truth of his claims and the credibility of his evidence.
4. The finding that the 30-month delay in applying for a protection visa raised doubts about the truthfulness of the claims and credibility of the applicant's evidence was open on the evidence (i.e. it was a credit finding based on the evidence he returned from Lebanon on 6 June 2013 and did not apply for a protection visa until 10 December 2015). In my view such a finding was legally reasonable as it was a logical and rational finding based on the evidence: applying BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [50] per Yates, Wheelahan and O'Bryan JJ.
5. I also agree with Ms Maker that the factual finding underlying the credit finding (that there was a 30-month delay in applying for a protection visa) is not capable of being challenged in this Court in a judicial review application. This is because merits review is impermissible: see Djokovic.
6. I do not accept the applicant's argument. His challenge to paragraph [32] of the Tribunal decision is rejected.

1. At the hearing before me I asked the applicant what he meant by ground 2 of his application. The applicant submitted that he disagreed with the finding in paragraph [31] of the Tribunal decision where the Tribunal decided not to place any weight on the medical report dated 4 August 2016, provided to the Tribunal by the applicant in support of his claims. In reply, Ms Maker submitted this argument should be rejected on the basis that the question of weight is an issue for the Tribunal to decide as part of its fact-finding function, and such a finding is not amenable to judicial review.
2. Paragraph [31] of the Tribunal decision reads as follows:
   1. The Tribunal does not accept the applicant's contention that what he told the Tribunal 'was the truth'. The applicant did not satisfactorily address why his evidence to the Tribunal was different to the claims he had articulated in his application for a protection visa and at his protection interview. Moreover, the applicant appeared adamant at the hearing that he was attacked and assaulted by Jacqueline's brothers on 3 March 2013. He stressed that he had visited a doctor two hours after being assaulted and had left El Minieh for Beirut later that night. As it was put to him at the hearing, the medical report issued by Dr Mohamed Mahmoud Haj Ahmed stated that he had treated the applicant on 4 June 2013. The applicant responded that perhaps Dr Haj Ahmed had made a mistake. The Tribunal is not persuaded by this explanation. Moreover, when asked why the medical report had been issued on 4 August 2016, two years after the alleged incident, he stated that his father had obtained the medical report on his behalf. When asked, if he was not in Lebanon at that time, why Dr Haj Ahmed had stated that he (the applicant) 'still suffers from the same disease' without having had the opportunity to examine him, he said Dr Haj Ahmed had treated him when he was in Lebanon. He also saw a doctor in Australia who prescribed the same medication prescribed by Dr Haj Ahmed. The Tribunal finds these explanations highly unsatisfactory and considers the purported medical report to be highly problematic. The Tribunal does not place any weight on the medical report dated 4 August 2016.

1. I agree with the first respondent's submission on paragraph [31] of the Tribunal decision. It is now well accepted that a Tribunal's fact-finding is not reviewable in this Court if the findings of fact were reasonably open to the Tribunal: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 (Wu Shan Liang) at [272] and [281]-[282] per Brennan CJ, Toohey, McHugh and Gummow JJ. This also extends to the issue of what weight (if any) the Tribunal gives to evidence adduced before it: see Wu Shan Liang, CLR at [281]-[282] per Brennan CJ, Toohey, McHugh and Gummow JJ and see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (Tran) at [5]-[7]. This would include evidence such as medical reports tendered to the Tribunal.
2. It was a matter for the Tribunal what weight (if any) it gave to the medical report dated 4 August 2016. That it did not place "any weight" on the report was a conclusion that was reasonably open to it on the evidence before it.
3. I reject the applicant's challenge to paragraph [31] of the Tribunal decision.

1. At the hearing before me I asked the applicant what he meant by ground 3 of his application. The applicant submitted that he was not given enough time to prepare his case before the Tribunal.
2. In reply, Ms Maker submitted that this argument should be rejected for three reasons. First, the proceedings in the Tribunal had been on-foot before a decision was made for 3 years. Second, there is no evidence the applicant sought any adjournment of the Tribunal hearing because he needed more time to prepare. Third, there was no evidence the applicant sought further time to respond to a s 424A notice which the Tribunal sent to the applicant after the hearing.
3. I accept the first respondent's submissions on this argument, and for the reasons given by Ms Maker. Further, there was nothing said by the applicant on this argument about what he would have done differently, or what evidence he would have adduced, if he had been given further time to prepare his case in the Tribunal in any event.
4. I reject the argument that the applicant was not given enough time to prepare his case before the Tribunal.

All three grounds as written in the application

1. For completeness, I will also deal with the grounds as they are written in the application filed in these proceedings.
2. As to grounds 1 and 2 as written in the application, the Minister submitted that it is clear from the Tribunal's decision record that it complied with its obligations under Division 4 of Part 7 of the Act, which is an exhaustive statement of the requirements of the natural justice hearing rule for matters of this kind: see s 422B of the Act. The Minister submitted that it is clear from the decision and the Court Book, the Tribunal complied with all the relevant provisions of the Act. The Tribunal decided the review essentially based on the credibility findings it made about the applicant. These findings were open to it on the evidence and material before it. While it was not strictly obliged to do so, in a letter dated 28 February 2020 it notified the applicant of its concerns with his evidence and provided him with a further opportunity to address this issue after the hearing on 27 February 2020. It told the applicant that on the basis of inconsistencies between his oral and written evidence to the Minister's department and his evidence to the Tribunal, it may find that his claims were not truthful or disbelieve his claims and find that he was not a credible witness. There was no jurisdictional error committed by the Tribunal in taking this approach.
3. As to ground 3 as written in the application, a bare assertion that the Tribunal misapplied the law is meaningless unless the law said to have been misapplied is identified by the applicant. The applicant has not done this. In my view, there is nothing in the Tribunal's reasons that reveals any misunderstanding, misconstruction or misapplication of any relevant law in the matter.
4. I reject all three grounds of review relied upon by the applicant as they do not disclose any jurisdictional error.

1. 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 $6,500. 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 forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.