CBQ17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1288

1. In this matter the applicant seeks judicial review under s 476 of the Migration Act 1958 (Cth) (Act). In particular, the applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 25 June 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Protection (Subclass 866) visa (protection visa) under s 65 of the Act.

1. On 5 July 2012, the applicant, a citizen of Thailand, arrived in Australia.
2. On 8 August 2014, the applicant lodged an application for a protection visa. The applicant claimed fear of harm from loan sharks he had borrowed money from and failed to repay.
3. On 20 May 2015, a delegate of the first respondent refused to grant the applicant a protection visa because they were not satisfied the applicant met s 36(2) of the Act.
4. On 2 June 2015, the applicant lodged an application for review of the delegate's decision with the Tribunal.
5. On 18 April 2017, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa.
6. On 15 May 2017, the applicant applied to the (then) Federal Circuit Court for review of the Tribunal's decision and on 2 August 2018, the Court remitted the application by consent to the Tribunal for reconsideration
7. On 13 October 2020, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments.
8. On 24 November 2020, the applicant appeared before the Tribunal with the assistance of an interpreter in the Thai language.
9. On 25 June 2021, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.

1. The Tribunal identified the issue for determination was whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.
2. The Tribunal formed the view that the applicant was not a reliable witness stating at [39]:

... The Tribunal found aspects of his evidence to be vague, inconsistent, implausible and unconvincing. He was unable to provide a consistent and coherent account of events. He made new claims throughout the process. His conduct in Thailand and in Australia was not consistent with his claims.

1. Considering all of the applicant's claims, evidence and submissions, the Tribunal found the applicant was not a witness of truth and that the applicant had fabricated his material claims and exaggerated others for the purposes of obtaining a protection visa.
2. The Tribunal did not accept material claims pressed by the applicant, including that:

(a) the applicant had to pay 4 million baht for VAT after Mr Showbendiger left the business;

(b) in 1997 the applicant opened a wholesale and retail store selling groceries;

(c) the factory, that was set up on land owned by the applicant's family, was bombed or, alternatively, attacked or, alternatively, the left side of the factory building was damaged and the fence was "wrecked" by a gunshot or a bomb. The Tribunal was not satisfied that the photographs provided to the Department and the Tribunal are of the factory;

(d) the applicant's family have warned him not to return to Thailand as the "illegal loan sharks", especially K. Yai, have been making threats to harm him. The Tribunal is not satisfied, on the evidence before it, that K.Yai has ties to the military and that K.Suwit has political connections or, alternatively, is a politician and that the applicant is at risk of serious harm or significant harm for these reasons; and

(e) the applicant feared he will be killed if he returned to Thailand.

1. The Tribunal found that it was highly likely that his family, particularly the applicant's sister, had discharged his debts.
2. The Tribunal was not satisfied that the applicant was at risk of serious harm or significant harm from any of the money lenders from whom he borrowed money or anyone else for any of the reasons claimed if he returned to Thailand now or in the reasonably foreseeable future.
3. The Tribunal affirmed the decision under review not to grant the applicant a protection visa.

Judicial review application and procedural orders

1. On 5 August 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 25 June 2021. The application contains three grounds of review, both containing several particulars. They are (as written):

1. I made it myself (no Lawer, no Witness in could time)

2. Please make one compels set and copy to myself

3. I do not good English. I need translator

1. The applicant's application includes an application for an extension of time. The first respondent concedes the application was made in time so the application for an extension is not necessary. The Court agrees that the application was made in time, and the application should proceed to final hearing.
2. The applicant filed a supporting affidavit sworn on 30 July 2021 accompanying the application. Paragraphs 5 to 11 of his supporting affidavit allege that the Tribunal misunderstood the applicant's evidence in several paragraphs of the Tribunal decision. As the applicant is unrepresented, I have treated these paragraphs as further grounds of review in the application filed under s 476 of the Act.
3. On 1 April 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
4. On 25 June 2025, the proceedings were docketed to me and set down before me for final hearing on 6 August 2025.

1. At the hearing of this matter on 6 August 2025, the applicant appeared unrepresented, assisted by a Thai interpreter. Mr A Sharma of HWL Ebsworth appeared for the first respondent.
2. At the commencement of the hearing, I allowed the Court Book, which contained the Tribunal's decision and other documents that were before the Tribunal, and the applicant's affidavit in support of his application, to be admitted as evidence. Mr Sharma told the Court he believed that not all the documents that were before both Tribunal hearings were in the Court Book. I asked both parties if there were any documents not included in the Court Book that they wanted to tender and include as part of the Court Book. Neither the applicant nor Mr Sharama had any other documents they wanted to tender or rely upon that were not already in the Court Book.
3. After admitting the Court Book as evidence, I invited the parties to make oral submissions. As the applicant was legally unrepresented, the Court has a duty to take appropriate steps to ensure that the applicant 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: SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing).
4. The Federal Court has held that the appropriate procedure in cases such as the present where the applicant seeks relief in respect of a decision concerning an application for a protection visa, and is appearing on his own behalf, is to give the applicant an opportunity to explain orally what he meant by each of their ground of review as they appear in their application to this Court: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [9].
5. Accordingly at the hearing, I took the applicant through each of the three grounds of review in his application and the matters contained in paragraphs 5 to 11 of his supporting affidavit and asked him if he wanted to make any submission about them, and to tell the Court why he considered the Tribunal's had made a mistake or got its decision wrong. He made some very general submissions. As to grounds 1 to 3, he told the Court he had difficulties preparing his case and needed assistance. As to paragraphs 5 to 11 of his supporting affidavit he re-iterated some of the evidence he gave to the Tribunal, and said he disagreed with the credit finding that he was not truthful.
6. Mr Sharma said he relied upon his written submissions and made no further submissions orally, other than to submit that he agreed the Tribunal had made a factual error in paragraph [112] about the date of the applicant's birth. He submitted the error was only a minor factual or typographical error and was not jurisdictional or material to the decision. I agree.

1. In reviewing the Tribunal's decision, the Court does not review the factual merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
2. To obtain the relief sought the applicant has the onus to prove that the Tribunal's decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [3] (LPDT) the High Court explained that:

... 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. To constitute jurisdictional error, in most cases, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32].

1. In the application the applicant has set out three unparticularised grounds of review. None of those grounds of review allege any arguable material jurisdictional error.
2. As I outlined above, at the hearing I asked the applicant to explain orally what he meant by grounds 1, 2 and 3. As I outlined above, he said of these grounds that he was referring to the difficulties he had when preparing the application and affidavit, because his English was not good.
3. Ultimately, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [44]- [45] and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67]. Despite being given the opportunity to tell the Court what he meant by the three grounds in the applicant he has not been able to identify any arguable jurisdictional error.
4. I accept the first respondent's submission that none of the three grounds in the application establish the Tribunal committed jurisdictional error.

Grounds of review in the applicant's affidavit in support of his application

1. I have read applicant's affidavit in support of his application.
2. Paragraph 3 is an introductory paragraph. It does not identify any error in the Tribunal decision.
3. Paragraph 4 merely asserts the Tribunal "misunderstood" the applicant's evidence. He does not point to any specific examples in paragraph 4. I find paragraph 4does not identify any jurisdictional error in the Tribunal decision.
4. Paragraph 5 and 6 contains a lengthy complaint about the factual findings made by the Tribunal in paragraphs [95]-[99] of its decision. The discussion by the Tribunal at this part of its decision is a discussion regarding the fifth reason (out of seven) why the Tribunal found that the applicant was not a reliable (or credible) witness. In these paragraphs the Tribunal is discussing the evidence about the applicant's travel to Malaysia, Singapore and back to Thailand shortly before traveling to Australia in July 2012. At paragraph [98] the Tribunal found that the applicant's voluntary return to Thailand was not consistent with his claims that he fears being killed if he returns to Thailand. In his oral submissions to this Court on these paragraphs, the applicant gave a summary the evidence he gave to the Tribunal, and expressed disagreement with the factual findings.
5. The findings in paragraphs [95]-[99] of the Tribunal decision contain factual findings open to the Tribunal on the evidence. In Djokovic at [17] the task of a court conducting judicial review was described in this manner by the Full Court:

... 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 the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

1. Applying Djokovic, it is not open to this Court to review the factual finding of the Tribunal in paragraphs [95]-[98] under s 476 of the Act. Mere disagreement with factual findings is not a recognised ground of jurisdictional error. Paragraphs 5 and 6 of the applicant's supporting affidavit do not identify any arguable jurisdictional error.
2. Paragraph 7 of the applicant's supporting affidavit identifies that the Tribunal made an error when stating the applicant was born on 6 May 1968. He was born on 10 May 1968, according to his protection visa application. That type of error identified is a factual or typographical error. It is an error which is neither material to the decision made, nor is it jurisdictional. For example, it makes no difference to any of the findings in paragraphs [112] and following. Such an error of fact does not establish jurisdictional error. In the balance of paragraph 7, the applicant is critical of the factual findings made about his mother paying $20,000 for the applicant to study in Australia. When I asked the applicant about paragraph 7, the applicant again gave a summary the evidence he gave to the Tribunal, and expressed disagreement with the findings in that paragraph.
3. As I have said above, applying Djokovic, it is not open to this Court to review the factual finding of the Tribunal under s 476 of the Act. Paragraphs 7 of the applicant's supporting affidavit does not identify any arguable jurisdictional error.
4. In paragraphs 8 to 11 the applicant's supporting affidavit, the applicant makes individual complaints or challenges about particular factual findings made by the Tribunal in paragraphs [47], [53], [73], [76] and [79]. Each of the factual findings in those paragraphs relate to findings and reasoning undertaken by the Tribunal regarding the applicant's credit.
5. This Court does not have jurisdiction to undertake merits review of the Tribunal's decision. None of the maters raised in paragraphs 8 to 11 of the of the applicant's supporting affidavit does not identify any arguable jurisdictional error.
6. As the applicant is unrepresented, I have considered whether there is any jurisdictional error in the credit findings made by the Tribunal. For the following brief reasons, I have not identified any error in the credit findings.
7. Courts have held that adverse credibility findings are amenable to judicial review where the findings can be shown to be legally unreasonable, such as by being based on illogical or irrational findings or inferences of fact: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [50] per Yates, Wheelahan and O'Bryan JJ.
8. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: see most recently CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97. See also for discussion of principles relating to the assessment of credibility findings by the Tribunal in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [36] per Stewart J; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175, [30], and the cases cited at [30(3)]; and SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J.
9. In summary, in the present case, the Tribunal found aspects of the applicant's evidence to be vague, inconsistent, implausible and unconvincing. It found he was unable to provide a consistent and coherent account of events. It found he made new claims throughout the process. It found his conduct in Thailand and in Australia was not consistent with his claims. The Tribunal found the applicant was not a truthful witness.
10. The Tribunal came to this conclusion by setting out seven reasons why the applicant was not a reliable witness. Those seven reasons are dealt with in detail in paragraphs [40]-[106] of the Tribunal decision. They are in support of the finding in paragraph [39] and [111] that the applicant was not a truthful witness. Those seven reasons were as follows, in summary:

(a) Inconsistencies in his evidence about the ownership and management of the "Sitti Garments" and the grocery business in Thailand ([45]);

(b) Inconsistences in the evidence about the involvement, and the timing of the involvement, of named individuals said to be owners of the businesses ([49]);

(c) Inconsistencies about who the loans for the business from "illegal loan sharks" were taken out by, whether by the applicant or his various family members ([69]);

(d) Lack of veracity in the evidence in relation to the claim the factory was bombed, and his sister's car was damaged, and other family cars being damaged after he left Thailand ([93]);

(e) That his voluntary return trip to Thailand in 2017 (he had arrived in Australia on 5 July 2012) was inconsistent with his claimed fears of being killed if he returned to Thailand ([98]);

(f) Inconsistency in the applicant's evidence about why he came to Australia ([101]); and

(g) His delay in making his application for a protection visa for 2 years after he arrived in Australia, after being unsuccessful in his application for a student visa ([102]).

1. Applying the legal principles discussed above, I consider the Tribunal's finding regarding the applicant's credibility at paragraph [39] and [111] were rationally made and based upon seven carefully considered reasons why the applicant was not a credible witness. None of them were legally unreasonable, or based on factual findings that were irrational or illogical. They were all based on factual findings that were reasonably open to the Tribunal given the evidence before it.
2. No error of the kind identified in the authorities outlined above, regarding judicial review of credit findings, was made by the Tribunal in the present case.
3. None of the matter raised by the applicant in his supporting affidavit establish the Tribunal committed jurisdictional error.

1. For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision, noting the Court's obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114].
2. The application is dismissed.

1. The first respondent has sought an order that the applicant pay the first respondent's costs in the amount of $5,600. The amount sought is below the scale amount under Item 3 in Schedule 2, Part 2, of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I consider the amount sought is fair and reasonable given the nature of these types of matters. I will order that the applicant pay the first respondent's costs in the amount of $5,600.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.