CBO19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 196

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

1. By an application filed on 23 May 2019, the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 18 April 2019, affirming a decision of a delegate of the first respondent (Minister) to refuse the applicant a Protection (Class XA) (Subclass 866) visa (visa).
2. Reference in these reasons to 'CB' pages are reference to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit 'R1'.

1. The applicant is a citizen of the People's Republic of China (CB 16), who arrived in Australia on 27 May 2007 as the holder of a Student Guardian (Subclass TU-580) visa (CB 17) that was granted on 1 May 2007 (CB 95) and expired on 5 April 2008.
2. On 20 September 2007, the applicant applied for a Protection visa. That application was refused by a delegate to the Minister on 18 November 2008. That decision was then affirmed by the then Refugee Review Tribunal (RRT) on 17 March 2009 (CB 1; 95). The applicant thereafter remained in Australia as an unlawful non-citizen (CB 2; 95).
3. On 17 August 2009, the applicant made a request for Ministerial Intervention under s 417 of the Migration Act 1958 (Cth) (Act) (CB 95). That application was declined. On about 7 May 2012, the applicant made a further request for Ministerial Intervention (CB 57-64). On 25 March 2014, the applicant was informed that the Minister would not intervene in her case on the basis of her second application (CB 65-7).
4. On 22 May 2014, the applicant with the assistance of a registered migration agent applied for the visa (CB 1-56). The applicant claimed that if she returned to China, she would face persecution for her religious beliefs and suffer harm due to her membership of an unauthorised church. The applicant also feared persecution and harm from the Chinese government because she breached China's family planning laws by having her first child (a daughter) while in an unauthorised defacto relationship and without the permission of the authorities. The applicant also claimed that she will face discrimination within her community because her second child (a son) is disabled (CB 22-4, 57-61).
5. Attached to the visa application were written submissions from the applicant's migration agent dated 21 May 2014 (CB 1-2), and the statement prepared by the applicant for the purpose of her second Ministerial Intervention request (CB 57-61).
6. On 26 July 2016, the applicant attended an interview with a delegate of the Minister (CB 81).
7. On 23 August 2016, the delegate of the Minister refused to grant the visa. The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 90-110).
8. On 11 September 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 111-2). The applicant was assisted by a registered migration agent (CB 115).
9. On 7 March 2019, the Tribunal invited the applicant to attend a hearing on 10 April 2019 to give evidence and present arguments (CB 124-8).
10. The applicant attended the hearing before the Tribunal on 10 April 2019 and was assisted by an accredited interpreter of the English and Mandarin languages. The applicant's migration agent did not attend (CB 137-8).
11. On 18 April 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa (CB 143-164) (Decision).

1. As a preliminary matter, the Tribunal determined that the applicant was entitled to apply for the visa despite the dismissal of her previous application for a Protection visa in 2007. This was because the applicant lodged her second visa application (dated 22 May 2014) prior to legislative amendments to s 48A of the Act that came into effect on 28 May 2014. Therefore, in light of this and the decision of Judge Cameron in SZRNJ v Minister for Immigration and Border Protection [2014] FCCA 782, s 48A did not apply to prevent the applicant from lodging a subsequent visa application on the basis of complementary protection claims pursuant to ss 36(2)(aa), 36(2)(b) and (c) of the Act (CB 144 [5]).
2. While the delegate considered the applicant's case according to both the refugee and complementary protection criteria, the Tribunal, by virtue of the Court's decision in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 per Markovic J, was required to consider the application only according to the criteria in ss 36(2)(aa), 36(2)(b) and (c) as the applicant had previously failed to meet the refugee criteria under s 36(2)(a) (CB 144 [5]).
3. In the Decision, the Tribunal recorded the reasons for the delegate of the Minister's decision to refuse the grant of the visa (CB 145 [8]). The Tribunal then outlined the applicant's claims for protection based on the visa application, the submission from her migration agent dated 21 May 2014 and a copy of a statement dated 5 May 2012 from when the applicant applied for Ministerial Intervention a second time (CB 145-8 [12]-[17]).
4. The Tribunal then identified the question to be determined by the Tribunal as whether there existed substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm for the purpose of s 36(2)(aa) of the Act (CB 148 [18]).
5. The Tribunal summarised the applicant's evidence at CB 149-155 [26]-[48]. The Tribunal did not accept the applicant's claim to have been arrested and detained in October 2003 and January 2007, and found her account of these and other events were 'implausible, inconsistent and contrary to available country information' (CB 157-8 [51]-[52]). The Tribunal concluded that neither the applicant and her husband have ever 'been harassed, arrested or detained because of their religious practices and are not of interest to the Chinese authorities in Fujian province because of their religious beliefs and practices' (CB 159 [56]).
6. The Tribunal similarly found that the applicant had failed to substantiate the claim that she would suffer significant harm on return to China, on account of her breaches of family planning laws. While the Tribunal accepted the veracity of her claims, it found that there was no real risk that the applicant would suffer treatment 'amounting to significant harm in the future as a consequence of her breaches of Chinese Family Planning regulations as a necessary and foreseeable consequence of her being removed from Australia to her receiving country China' (CB 159-160 [59]-[60]).
7. Furthermore, the Tribunal found that there was nothing to indicate that the Chinese authorities or members of the community have acted against the applicant in the past, or will take action in the future, that would amount to significant harm because of her son's disability (CB 160 [62]).
8. Considering each of these claims, both individually and cumulatively, the Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act. The Tribunal therefore affirmed the decision of the delegate to the Minister, not to grant the visa (CB 161 [63]-[65]).
9. In an annexure to the Decision, the Tribunal set out the statutory criteria required to be met to qualify for the visa in an attachment to the decision record, labelled 'Attachment A' (CB 162-4). In the attachment, the Tribunal referred to the guidelines for decision-makers in Ministerial Direction No. 56 made under s 499 of the Act (PAM3).

1. On 23 May 2019, the applicant applied for judicial review of the Decision. The applicant identified the following two grounds for judicial review:

(a) is affected by an error of law; and > > (b) denied the applicant procedural fairness. > > 1. I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

2. On the same day, the applicant affirmed an affidavit that simply annexed a copy of the Decision.
3. On 21 July 2021 and 24 March 2025, registrars of the Court ordered that the applicant file and serve any amended application for judicial review with proper particulars, any further affidavits, an outline of written submissions, and any additional documents on which the applicant seeks to rely, 28 days before the final hearing.
4. On 28 October 2025, the final hearing of the application for judicial review was listed to take place in person at Melbourne on 4 December 2025. The applicant did not file an amended application with further particulars or any further evidence or submissions.
5. On 16 November 2025, the applicant sent an email to the Court requesting an adjournment of the hearing to allow her to seek legal representation from Victoria Legal Aid. The request was not supported by any affidavit explaining why legal representation was not secured after filing the originating application in May 2019 (as the applicant indicated she was intending to do) nor did the applicant explain any previous attempts to secure legal representation. The request for an adjournment was opposed by the Minister. On 19 November 2025, the applicant then sought to submit documents to the registry, including a report from a treating psychologist. These were rejected by the registry as they were not annexed to an affidavit or in admissible form. The application for an adjournment was not pursued by the applicant.
6. At the hearing on 4 December 2025, the applicant appeared in person, self-represented and was assisted by an accredited interpreter in the English and Mandarin languages.
7. Mr Sathiendrakumar, solicitor, appeared for the Minister.
8. The Court confirmed that the applicant received a copy of the Court Book prepared by the solicitors for the Minister, together with the Minister's outline of written submissions.

1. As the applicant was self‑represented, the Court gave the applicant an opportunity to expand upon and more clearly express the grounds of review in the originating application, and to identify the basis on which it was said the Tribunal had fallen into jurisdictional error. The Court explained that it had no power to grant the applicant a visa or to reconsider the merits of the Decision. Rather, the Court's role was limited to determining whether the matter should be returned to the Tribunal for reconsideration, which could occur only if there were significant legal or factual errors, or a procedural failure by the Tribunal, amounting to a material jurisdictional error and rendering its decision unlawful.
2. In response, the applicant submitted that her memory is very poor and that her speaking is 'very bad'. The applicant sought to rely on a report from a consultant psychiatrist addressed to the Administrative Review Tribunal and dated 7 May 2025. The report identified that the applicant suffers from a major depressive disorder (severe) that was partially treated.
3. The applicant said that she is a Christian who belongs to a local church and faces persecution by the police in China.
4. The applicant was otherwise unable to make any submissions to support her application or expand on the grounds of review in the application for judicial review or further particularise any material jurisdictional errors by the Tribunal in the Decision.

1. Mr Sathiendrakumar, on behalf of the Minister, noted the failure of the applicant to file any amended application for judicial review with proper particulars of the grounds of the application, nor had the applicant provided any further submissions or evidence, despite orders to that effect from a registrar of the Court dated 21 July 2021 and 24 March 2025. He otherwise relied on the written outline of submissions dated 20 November 2025.
2. In relation to the first claim that the Decision is 'affected by an error of law', it was submitted that such a ground is not sufficiently particularised so as to be meaningful. The failure to do so is a sufficient basis for dismissal (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] per Judge Lucev).
3. It was submitted that the second claim that the applicant was 'denied procedural fairness' was equally unfounded and unparticularised. Nevertheless, the Tribunal complied with its procedural fairness obligations under Div 4 of Pt 7 of the Act. In particular, s 425 of the Act. The applicant was invited to attend a hearing before the Tribunal on 10 April 2019, did so and an interpreter was provided. The applicant was on notice from the delegate's decision that the credibility of her claims would be a determinative issue in the hearing before the Tribunal, and she gave evidence, some of which was accepted by the Tribunal but many of her claims were found to be unsubstantiated or fabricated.
4. Furthermore, it was submitted that all information that was required to be put to the applicant for comment was done in compliance with s 424A of the Act. The Minister submitted that country information, information the applicant provided in writing to the Department and Tribunal and orally to the Tribunal, and evidence about the applicant's previous migration agent at the time of the original application, all fell into the exceptions to 'information' in ss 424A(3)(a), 424A(3)(b) and 424A(3)(ba) of the Act (CB 154 [47], 157-8 [52]).
5. It was finally submitted that ground two of the application for judicial review is also not a proper ground of review, as it fails to identify any jurisdictional error in the Decision and is not sufficiently particularised to be meaningful.
6. The Minister concluded that the Tribunal applied the correct law and made findings that were open to it for the reasons provided. No material jurisdictional error has been identified. As a result, the application for judicial review should be dismissed with costs.

1. In response to the Minister's submissions, the applicant explained that her failure to submit additional documentation and evidence was because she was being kept busy caring for her two grandchildren. She was equally unable to receive letters from the Court because she was living in a garage at the time. During the COVID-19 pandemic, her family ceased providing her with financial assistance and she has not been employed. Her ex-husband has also remarried, so she no longer has his support. The applicant said that she had no money to obtain legal representation and she now only has herself and the church.
2. The applicant claimed that the thought of returning to China causes her to suffer from nightmares and depression. She fears that she will be arrested or something will happen to her if she were to return to China. The applicant requested 'mercy' from the Court.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT), the plurality said at [3]:

[3]...Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, the High Court said:

...In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

1. The task of this Court is to review the Decision for material jurisdictional error. The onus is on the applicant to identify any error and why it is material (LPDT at [10]). However, here the applicant has been unable to do so. The grounds of review are general, vague and lack particulars. The Minister contends the Court should dismiss the application for review simply because of the absence of particulars or identified error.
2. In DQQ17 V Minister for Immigration and Border Protection [2018] FCA 784, Colvin J said at [4]-[9]:

[4] The consequence of a failure to particularise a general claim of jurisdictional error has been considered in a number of migration cases. In WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], Gilmour J refused an application for an extension of time to file a notice of appeal in respect of a decision of the Federal Circuit Court. The application was made by a litigant in person. One proposed ground that was sought to be raised was expressed as 'Federal Circuit Court judge erred, by failing to properly consider Refugee Review Tribunal ... fell into jurisdictional error'. His Honour found that failure to particularise a ground of review was sufficient basis for it to be dismissed, citing WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] which was said to be upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

[5] In WZATH v Minister for Immigration and Border Protection, Siopis J upheld the decision of the Federal Circuit Court in that case, but expressed no view about the statement made below that the failure to particularise a ground of review was a sufficient basis for it to be dismissed. Significantly, in that case the Federal Circuit Court judge, despite stating the general proposition that a failure to particularise a ground was sufficient for it to be dismissed, then went on to give consideration to the grounds for review 'as best [as the Court] can in the absence of particulars'.

[6] Nevertheless, the proposition was applied by Gilmour J in CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [21] and was recently cited in MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25].

[7] It is a proposition that appears to be often applied in the Federal Circuit Court in the manner quoted by North J in Singh v Minister for Immigration and Border Protection [2016] FCA 156 at [11]. See, as recent examples: Sidhu v Minister for Immigration and Border Protection [2018] FCCA 1043; CXK17 v Minister for Immigration and Border Protection [2018] FCCA 1041; and AZX16 v Minister for Immigration and Border Protection [2017] FCCA 2494.

[8] The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.

[9] However, 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. Unfortunately in this case, despite the Court having given the applicant the opportunity to explain orally any matters that the applicant wished to raise about errors in the Decision, the applicant was unable to do so. The solicitor for the Minister, as a model litigant, has been unable to identify any matter that should be drawn to the attention of the Court. The Court has also scrutinised the materials before the Tribunal, in the Court Book and the Decision to identify if there is any material legal error apparent in the Decision, noting the Court's duty to unrepresented litigants stated in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], [100], [112]-[114] per Mortimer J.
2. Recently in BRN17 v Minister for Immigration and Citizenship [2025] FCA 1215 at [17], Hill J referred to the duty owed by the Court to unrepresented litigants. His Honour said:

[17] Duties to unrepresented litigants: Second, the Court's overriding duty to ensure a fair trial for all parties requires the Court to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court, 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 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court); see also Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).

1. The Court has explained to the applicant, with the assistance of the accredited interpreter, the role of the Court and the limitation upon the jurisdiction to review the merits of the Decision. The Court has also explained the need to identify error before relief may be granted. A registrar of the Court also explained the role of the Court and the concept of jurisdictional error to the applicant at a callover, held on 6 March 2025 and 24 March 2025, which is recorded in the notes to the orders made that day.
2. There is no error of law apparent from the decision record. The Tribunal correctly summarised the relevant statutory requirements and criteria for the visa, but was not satisfied on the evidence presented by the applicant that her claims for complementary protection under s 36(aa) of the Act were established. There was no real risk of significant harm (CB 148 [18]). The Tribunal addressed each of the claims identified by the applicant in her evidence and submissions and did not fail to consider any claim or integer of a claim. The weight to be given to the applicant's evidence and the credibility of her claims is a matter for the presiding member (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]).
3. There was also no denial of procedural fairness. The Tribunal gave the applicant a meaningful hearing and permitted her to give evidence and make arguments at the hearing. The applicant was also aware or ought to have been aware that the credibility of her claims for protection was in issue. The delegate's decision was based on the credibility of her claims. The Tribunal put to the applicant concerns regarding the previous migration agent retained by the applicant and the applicant was given an opportunity to, and did, comment and give evidence on those concerns (CB 159 [57]). There was no material denial of procedural fairness in that regard or in relation to any other adverse information held by the Tribunal. The applicant did not identify any further evidence available to her that was not considered by the Tribunal, or which she was denied an opportunity to present.
4. The inability to secure legal representation for the hearing before this Court or the Tribunal is not a ground upon which the Court may quash the Decision or remit the matter for reconsideration by the Tribunal.
5. The application for judicial review must be dismissed, as there is no material jurisdictional error apparent in the Decision.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title that changed on 13 May 2025.

1. At the conclusion of the Minister's submissions, the solicitor for the Minister informed the Court that if the originating application was dismissed, the Minister sought an order for legal costs and disbursements associated with the application for review fixed in the of $5,000.00, which is less than the scale figure for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 1, Item 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). This appears an appropriate sum for an application of this kind and is a sum that is fair and reasonable given the general preparation, professional skill and attendance for an appearance required for a hearing of this kind. An order to that effect will be made.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.