CCE19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1941

1. By Application filed on 24 May 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 8 May 2019 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) (Application).
2. By the Tribunal's Decision, the Tribunal affirmed the decision of a delegate (Delegate) of the first respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Migration Act.
3. The hearing of the Application took place at the Melbourne Registry of the Court on 25 November 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The Applicant is a citizen of India.
2. On 18 May 2016, the Applicant applied for the Visa, the subject of these proceedings.[2]
3. On 9 August 2016, a Delegate of the Minister refused to grant the application for the Visa on the basis that they were not satisfied that the Applicant met s 36(2)(a) or s 36(2)(aa) of the Migration Act (Delegate's Decision).[3]
4. On 17 August 2016, the Applicant applied to the Tribunal for review (Review Application).[4]
5. On 23 August 2016, the Tribunal acknowledged receipt of the Review Application.[5]
6. On 1 February 2019, the Tribunal invited the Applicant to attend a hearing on 5 March 2019.[6]
7. On 5 March 2019, the Applicant attended the hearing on her own behalf and with the assistance of an interpreter.[7]
8. On 8 May 2019, the Tribunal affirmed the Delegate's Decision.[8]
9. On 9 May 2019, the Tribunal provided written reasons to the Applicant.[9]

1. The Tribunal's Decision is at pages 126 to 132 of the Court Book.
2. The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [5] to [10].
3. The Tribunal identified the dispositive issue before it as whether the Applicant was owed protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Migration Act.[10]
4. The Tribunal noted that the Applicant first arrived in Australia on 28 September 2012 as the holder of a Partner (Provisional) (Subclass 309) visa.[11] When asked why she remained in Australia upon the breakdown of the relationship and partner visa refusal, the Applicant indicated that her parent's told her to stay in Australia. She claimed that she would "be blamed" for the relationship breakdown and that "society would say bad things about her".[12]
5. The Tribunal accepted that the Applicant was married in 2011 in an arranged marriage, that her husband had divorced her and that she had subsequently re-married in Australia.[13] The Tribunal accepted the claim that a relative had sexually assaulted her.[14]
6. The Tribunal noted that the Applicant was in Australia from 2012 and only applied for protection in 2016. The Tribunal found that the considerable delay in lodging the Visa application was of "serious concern".[15] The Tribunal found that the delay indicated that the Applicant's claims were not "genuine or urgent".[16]
7. The Tribunal found that the Applicant did not face a real chance of suffering serious harm from her ex-husband or his family in India. The Tribunal did not accept that there was a real chance that the Applicant would be denied protection by authorities in India.[17] The Tribunal was not satisfied that the Applicant holds a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Migration Act.[18] The Tribunal was not satisfied that the Applicant was a person to whom Australia owes protection obligations under s 36(2) of the Migration Act.[19]

1. On 24 May 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 15 September 2021, Orders were made by Registrar Carney of this Court for the First Respondent's name be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs". That the application be listed for final hearing. That the First Respondent file and serve by 29 September 2021: a Court Book. That the Applicant file and serve 28 days before the final hearing: any amended application, any affidavits, supplementary court book and written submissions. That the First Respondent file and serve 14 days before the final hearing: written submissions and any affidavits.
3. On 12 October 2021, an amended application was filed in this Court (Amended Application).
4. On 12 December 2024, Orders were made by Registrar Foster of this Court for the First Respondent's name be amended to "Minister for Immigration and Multicultural Affairs". That the application for judicial review remain listed for final hearing before a judge on a date to be advised. The Court noted that the Applicant was uncertain as to whether she had retained a copy of the Court Book. The Court indicated that the First Respondent's law would service a soft copy of the Court Book within 7 days. That Orders 4 and 6 of the orders made by Registrar Carney on 15 September 2021 continued to apply as to the filing of documents.
5. This matter was heard on 25 November 2025 for a Hearing before me.
6. The Applicant relied upon the following documents:

(a) the Application filed 24 May 2019;

(b) the affidavit of the Applicant affirmed on 24 May 2019; and

(c) the Amended Application filed 12 October 2021.

(a) the response, filed 17 June 2019; and

(b) outline of submissions filed 11 November 2025.

1. Both parties relied on the Court Book.
2. The Amended Application contains the following grounds of review (Grounds of Review):
   1. I am the applicant in this proceeding.
   2. I applied for a protection visa on 18 May 2016 which was refused by the Department of Home Affairs on 9 August 2016.
   3. I further applied for a merit review with the Administrative Appeals of Tribunal and the Tribunal affirmed the decision on 09 May 2019.
   4. I applied for a judicial review with the Federal Circuit Court on 24 May 2019. The matter is listed for a hearing on 10 November 2019.

Ground of Appeal

1. The Second Respondent failed to take relevant consideration into account and for that reason fell into jurisdictional error. (Ground 1).

Particulars

1. The Member either failed or overlooked the Applicant's current circumstances.

2. The Member failed to consider the situation of women in the Applicant's home country and her own pending criminal matter in her home country.

3. The Member has ignored all the supporting evidence provided by the Applicant.

4. The Member has ignored the medical report of the Applicant.

5. The Member failed to consider the written and oral submission of the Applicant.

6. The Second Respondent failed to accord the Applicant with the procedure fairness, and for that reason fell into jurisdictional error. (Ground 2).

Particulars

1. The Tribunal failed to conduct a fair hearing by not considering sufficient support to the Applicant during the hearing.
2. The Tribunal failed to meet Section 425 of the Migration Act 1958 which states as follows:

   1. The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   2. Subsection (1) does not apply if:

      1. the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

      2. the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

      3. subsection 424C(1) or (2) applies to the applicant.

      4. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

c. The common law procedural fairness principle should be applied as notices in case of Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [37]- [39] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Li 249 CLR 332; [2013] HCA 18 at [18] per French CJ states that those principles, read with facultative provisions such as ss 353 and 357A(3) and general powers in (for example) s 363, combine to confer on the Tribunal the necessary degrees of flexibility to ensure it can fully perform its statutory task.

1. Failure to apply the right legal principles or visa criteria. (Ground 3)

Particulars

1. the Member ignored the Article 1A(2) of the Convention relating to the Status of Refugees 1951 (the Convention).
2. The Member failed to consider the term 'refugee' that should apply to the Applicant.

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality ... or country of former habitual residence".

1. As discussed in the High Court's decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2206) 231 ALR 592, the Tribunal have to identify the live issues in the matter and required the Tribunal to identify the relevant information with a degree of particularity.

2. The member failed to consider that each case has its own facts and merits and ought to consider on a case-by-case basis. (Ground 4).

3. The decision was unreasonable because it was irrational or illogical. (Ground 5).

4. The Tribunal decision should set aside, and the matter should be remitted to the Tribunal for determining according to law. (Ground 6).

1. The Applicant did not file any written submissions.
2. The Applicant made oral submissions supplementing her written submissions at the Hearing.
3. The Minister filed submissions dated 11 November 2025.
4. The Minister's solicitor made oral submissions supplementing his written submissions at the Hearing.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[20]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it". The court neither consider the merits of the decision nor remakes it.[21] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[22]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[23] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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".[24] Different kinds of error may overlap.[25] The categories are not closed.[26]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[27] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[28] It has been described as an "undemanding" standard.[29]

1. The Protection Visa (Subclass 866) allows a person who is at real risk of significant harm or persecution in their home country to live in Australia permanently.
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Migration Regulations 1994 (Cth) (Regulations)) have been satisfied, and to refuse to grant the visa, if not so satisfied.
3. Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term "refugee" is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a "well-founded fear of persecution"[30] as defined by s 5J.
4. Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
5. The criteria that the Applicant was required to satisfy for the grant of a Protection Visa (Subclass 866) are set out in Part 866 to Schedule 2 of the Regulations.

The Second Respondent failed to take relevant consideration into account and for that reason fell into jurisdictional error.

1. The particulars to Ground 1 are:
   1. The Member either failed or overlooked the Applicant's current circumstances.
   2. The Member failed to consider the situation of women in the Applicant's home country and her own pending criminal matter in her home country.
   3. The Member has ignored all the supporting evidence provided by the Applicant.
   4. The Member has ignored the medical report of the Applicant.
   5. The Member failed to consider the written and oral submission of the Applicant.
2. The Minister submits that the Tribunal considered the Applicant's circumstances, including her mental health status,[31] the fact that she was remarried,[32] that she had not heard from those she feared, being her in-laws and her ex-brother-in-law since 2012,[33] and that she considered her new in-laws would not accept her on account of the rape.[34] The Minister also submitted that the Tribunal did not fail to consider the situation of women in India, referencing a "UK Home Office Country Information and Guidance India: Women fearing gender-based harm/violence April 2015" report. Ultimately, the Tribunal found that the Applicant did not face a real chance of serious harm at the hands of her ex-husband's family or anyone else.
3. The Tribunal's Decision records that the Tribunal considered the Applicant's current circumstances in the form of her current living arrangements,[35] marital status,[36] and mental health status;[37] the situation of women in India;[38] police protection in India on her return;[39] the medical report relied upon by the Applicant[40] and her written and oral submissions.[41]
4. There is no reference in the Tribunal's Decision or the documents in the Court Book to a "pending criminal matter" in India. The Applicant informed me that there was no pending criminal matter at the time of the Tribunal's Decision. Accordingly, the Tribunal did not err by failing to consider this matter.
5. It is not otherwise apparent to me what "supporting evidence provided by the Applicant" was "ignored" by the Tribunal. While the Tribunal did not refer to the report from the social worker,[42] I accept that the Tribunal was not required to make findings on any and every matter of fact objectively material to the decision which it was required to make.[43] The social worker's report is not reproduced in the Court Book. I am not satisfied that the failure to refer to it constituted jurisdictional error.
6. I am not satisfied that the Tribunal failed to take into account the considerations that are identified in the particulars to Ground 1.
7. At the Hearing before me, the Applicant challenged the Tribunal's finding that she had remarried. The Applicant said that she had not remarried in Australia.
8. The Tribunal's Decision records that the Applicant remarried on a specific date in 2018 when she was living in a suburb of Melbourne. The decision records that her parents said that she could remarry "that man" as he came from an area close to her village.[44] In the absence of evidence, the court is "entitled to accept that [the Tribunal's] decision records as accurately reflecting the matters to which it refers as taking place at the hearing".[45] Without the transcript, I am unable to conclude that the Tribunal's finding that the Applicant had remarried involved jurisdictional error, for example on the basis of "no evidence".[46]
9. In any event, even if the Tribunal's finding concerning the Applicant's marital status in Australia involved an error, that finding had little bearing on the dispositive issues in the Tribunal's Decision. I am not satisfied that there is a "realistic possibility" that the decision that was made "could" have been different, but for the alleged error.[47]
10. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

The Second Respondent failed to accord the Applicant with the procedure fairness, and for that reason fell into jurisdictional error.

1. The Tribunal failed to conduct a fair hearing by not considering sufficient support to the Applicant during the hearing. 2. The Tribunal failed to meet Section 425 of the Migration Act 1958 which states as follows: 1. The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 2. Subsection (1) does not apply if: 1. the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or 2. the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or 3. subsection 424C(1) or (2) applies to the applicant. 3. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. The common law procedural fairness principle should be applied as notices in case of Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [37]- [39] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Li 249 CLR 332; [2013] HCA 18 at [18] per French CJ states that those principles, read with facultative provisions such as ss 353 and 357A(3) and general powers in (for example) s 363, combine to confer on the Tribunal the necessary degrees of flexibility to ensure it can fully perform its statutory task.
2. In the context of judicial review of a decision made by the Tribunal under the Migration Act, relevant considerations include: first, the Tribunal's obligation to invite the applicant to give evidence and present arguments,[48] and second, the obligation of the Tribunal to give an applicant particulars of certain information that the Tribunal considers would be the reasons or part of the reasons for affirming the decision under review.
3. The Applicant was invited to attend a hearing before the Tribunal on 5 March 2019 in accordance with ss 425 and 425A of the Migration Act. The Applicant attended the hearing and gave evidence and made submissions. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages. The "issues arising in relation to the decision under review" were those identified in the Delegate's Decision.
4. Further, there was no "information" that the Tribunal was required to put to the Applicant pursuant to s 424A of Migration Act. In reaching its decision, the Tribunal had regard to country information; written information provided by the Applicant to the Department; information contained in the Delegate's Decision; written information provided by the Applicant to the Tribunal; and, the Applicant's oral evidence at the hearing, each of which was the subject of a statutory exception to the requirement in s 424A.[49]
5. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

Failure to apply the right legal principles or visa criteria.

1. The particulars to Ground 3 are:
   1. the Member ignored the Article 1A(2) of the Convention relating to the Status of Refugees 1951 (the Convention).
   2. The Member failed to consider the term 'refugee' that should apply to the Applicant.

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality ... or country of former habitual residence".

1. As discussed in the High Court's decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2206) 231 ALR 592, the Tribunal have to identify the live issues in the matter and required the Tribunal to identify the relevant information with a degree of particularity.

1. The Tribunal's Decision correctly summarises the relevant provisions and criteria, including the defined term "refugee".[50] The Tribunal proceeded to consider the Applicant's claims and the evidence before it.[51] The Tribunal identified the "live issues" and made findings about those issues[52] with a sufficient degree of particularity. I am satisfied that the Tribunal's findings were ones that were open to it on the evidence.
2. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

The member failed to consider that each case has its own facts and merits and ought to consider on a case-by-case basis.

1. The Tribunal's Decision plainly indicates that the Tribunal did consider the "facts and merits" of the Applicant's case and not some other case.
2. On one view, Ground 4 is an allegation of bias. I am not satisfied that the Tribunal's Decision is affected by actual bias, or that there is a reasonable apprehension of bias. No matters have been identified to substantiate either finding.
3. I am not satisfied that jurisdictional error is made out by reference to Ground 4.

The decision was unreasonable because it was irrational or illogical.

1. In Minister for Immigration and Citizenship v SZMDS,[53] Crennan and Bell JJ stated:[54]

In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(Emphasis added)

1. The allegation of "unreasonableness" or irrationality or illogicality is unparticularised. The Applicant was unable to identify any particular aspect of unreasonableness in her oral submissions. I have addressed the Applicant's specific complaints with the Tribunal's Decision, above. I am not satisfied that the Tribunal's Decision is legally unreasonable.
2. I am not satisfied that jurisdictional error is made out by reference to Ground 5.

The Tribunal decision should set aside, and the matter should be remitted to the Tribunal for determining according to law.

1. Ground 6 is a statement of conclusion that does not identify jurisdictional error.
2. I am not satisfied that jurisdictional error is made out by reference to Ground 6.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[55] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,000 being less than the scale amount.[56] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[57] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the Court file.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 25 November 2025, Order 1.

[15] CB 131 [33] citing Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) (1994) 34 ALR 347 (Heerey J).

[20] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[21] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O'Callaghan JJ).

[22] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[25] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].

[28] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[29] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[30] See s 5H(1)(a) of the Migration Act.

[41] CB 128-130 [14] and [16]-[28].

[45] Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALR 660.

[46] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [20],[21] and [27] (Keane, Gordon, Edelman, Steward and Gleeson JJ)

[48] Section 425 of the Migration Act.

[49] Sections 424A(3)(a), s 424A(3)(ba) and s 424A(3)(b) of the Migration Act.

[53] (2010) 240 CLR 611.

[55] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[56] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[57] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.