The applicant has not established that the Tribunal's decision is affected by jurisdictional error.
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.
The application is dismissed.
[2]
The first respondent seeks costs fixed in the sum of $9,097.93. 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.
[3]
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.
Parties
Applicant/Plaintiff:
BRY20
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FedCFamC2G 1812
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Cases Cited (15)
At the hearing of this matter on 21 October 2025, the applicant was unrepresented. Mr Wang of Clayton Utz appeared for the first respondent.
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.
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.
Accordingly, I took the applicant through each of the two grounds of review and asked what was meant by each ground. The applicant made brief statements about how long he had been in Australia and criticised his agent for making the protection visa which he considers was the wrong visa to have been made. The also applicant said he wanted to make a working visa application.
Mr Wang made brief oral submissions summarising the first respondent's written submissions on the grounds. In relation to the matters which the applicant submitted orally at the hearing, Mr Wang submitted the matters raised were either not relevant to the application in this Court or went to the merit of the claims made in the Tribunal and could not be reviewed in this Court. I agree with Mr Wang's submission as to the matters referred to by the applicant orally at the hearing.
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; LPDTvMinister 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.
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).
Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, neither of the grounds identify the Tribunal committed jurisdictional error.
Ground 1 complains that the Tribunal failed to consider a claim, namely a claim that the applicant will face harm from his wife if he was forced to return to India, since his wife has "tweeted" the AFP and alleged that he is a criminal.
The law on the judicial review ground of a failure to consider a claim is well settled. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[2004] FCAFC 263; (2004) 144 FCR 1 (NABE No 2) at [58]-[60], [68] the Full Court held that The Tribunal was obliged to consider any claims made by the applicant which, although not expressly made, clearly arose and were raised "squarely" on the face of the material before it: see also CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124; (2022) 294 FCR 318 (CKT20) at [88]. A claim will be "squarely" raised where it is apparent on the face of the material before the Tribunal but "not [where it] depend[s] for its exposure on constructive or creative activity by the Tribunal". Whether a claim arises squarely on the material before it, will depend on the facts and circumstances of the case: NABE (No 2) at [58], [63]; CKT20 at [90].
At [23], after telling the Tribunal none of the claims made to the delegate were true, and that he was not attacked in India because of his religion, the Tribunal stated that:
The applicant told the Tribunal that he is Hindu and goes to temple to pray. He was not attacked because of religion in India. When asked if he feared anything happening to him on his return to India, he said nothing will happen to him, except his wife might divorce him because she is so angry. She tweeted the AFP and alleged the applicant is a criminal because she is so angry with him.
In the next paragraph, at [24], the Tribunal then states:
The applicant asked the Tribunal to let him stay in Australia for 2 or 3 years so he can earn some money to take back to India. He indicated if he could take some money back his family would be happy. He has just received work rights, and he has completed IT courses so has the skills to secure employment in Australia. The Tribunal explained its role and the purpose of the protection visa application and that it does not have the discretion to make a favourable decision merely because of his circumstances; he still must meet the requirement of the law.
As to Ground 2, the applicant claimed the Tribunal failed to consider that he was misled and wrongly advised by his migration agent when applying for a protection visa. This ground does not contain a reasonably arguable jurisdictional error.
I have read this ground to be an allegation of fraud by a migration agent as discussed by the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 (SZFDE). The issue in such cases is usually whether the conduct of the migration agent had the consequence of stultifying the operation of the legislative scheme to afford natural justice to the applicant.
In other words, while the Tribunal acted on the assumption of regularity, the question to be answered in such cases is: was the Tribunal disabled form the due discharge of its imperative statutory function with respect to the conduct of the review by reason of the fraud of the agent? If the answer to that question is yes, then the decision made by the Tribunal is properly regarded, in law, as no decision at all: SZFDE at [51]. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised: SZFDE at [52].
I agree with the first respondent that, relevant to the establishment of this ground of review, it is the role of the applicant and whether the applicant colluded in the fraud or was "indifferent as to whether the agent used unlawful or dishonest means to obtain a visa": see Gill v Minister for Immigration & Border Protection(2016) 248 FCR 398; [2016] FCAFC 142 at [50]; and Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554; [2016] FCAFC 141.
The applicant has the burden of proof in these types of cases. As well as having the onus of establishing that a process under the Act was stultified by fraud, the applicant also has the onus of proving he was the innocent victim of the fraud: Maharjan v Minister for Immigration and Border Protection(2017) 258 FCR 1; at . That burden is a heavy one: at [51].
(2022) 294 FCR 318
(2017) 258 FCR 1
(2007) 232 CLR 189
(2013) 216 FCR 445
(2022) 289 FCR 21
(2016) 248 FCR 398
(2024) 98 ALJR 610
(2004) 144 FCR 1
(2019) 264 CLR 421
(2003) 211 CLR 476
(2016) 247 FCR 554
No other evidence was given by the applicant about the alleged "tweet" by the applicant's wife. The statement "She tweeted the AFP and alleged the applicant is a criminal because she is so angry with him", immediately preceded the applicant telling the Tribunal that "nothing will happen to him, except his wife might divorce him because she is so angry". In that context, I do not consider that any claim (regarding fear of his wife) could be reasonably said to arise, or that such a claim could even possibly fall within one of the accepted categories of Convention based persecution under s 36(2)(a) of the Act.
For completeness, at [36], the Tribunal found that:
The Tribunal is not satisfied the applicant fears being persecuted in India for reasons of race, religion, nationality, membership of a particular social group or political opinion.
In the circumstances, in my view, the Tribunal has not constructively failed to exercise its jurisdiction by failing to consider a Convention based claim, either that was expressly raised, or that arose squarely on the material before the Tribunal. A NABE No 2 error was not committed. I there agree with the first respondent that the Tribunal did not commit any jurisdictional error by not making a finding on the applicant's fear of his wife in India.
In my view the evidence in the Court Book that was before the Tribunal does not establish fraud by a third party or migration agent for the following reasons.
First, the evidence in the Court Book does not establish that Mr Deshwal (the person the applicant alleges was his migration agent) was in fact the applicant's migration agent, or that he was somehow involved in the preparation of the protection visa application or the review process before the Tribunal. I note that in his visa protection application the applicant ticked "no" to question 6 of the visa application form which asked him "did you receive assistance completing this form". I also note he did not identify any migration agent that was acting on his behalf in his application to the Tribunal for review of the delegate's decision.
Second, from my review of the Court Book, it is apparent that the applicant took an active role in the protection visa application process before the delegate, then later disavowed his claims. It is apparent from the delegate's decision he gave extensive evidence at an interview before a delegate as to his claims to fear Refugee Convention based harm in India, evidence which he later told the Tribunal was not true.
In my view the applicant was not an innocent victim of any third-party fraud. Further, in my view the applicant cannot establish that any statutory process under the Act, in relation to the review of the applicant's claim, was stultified in some way by the conduct of any third party, such as Mr Deshwal.
Ground 2 does not disclose any jurisdictional error.