DBV20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 388

1. On 19 April 2014, the applicants, citizens of China, first arrived in Australia. The first applicant is the primary applicant in these proceedings, and the second applicant is her husband. The second applicant relies upon the first applicant's claims, as part of the family unit, and does not make any separate claims himself.
2. On 12 July 2016, the applicants lodged an application for a protection visa. The first applicant claimed she was persecuted by the Chinese government after her land was acquired.
3. On 3 February 2017, a delegate of the First Respondent refused to grant the protection visa, and the applicants sought a review of that decision by the Administrative Appeals Tribunal, as it then was.
4. On 10 June 2020, the Tribunal affirmed the decision under review not to grant the applicants protection visas and affirmed an earlier decision of a delegate not to grant the first applicant a Protection (Class XA) (subclass 866) visa (protection visa) under s 65 of the of the Migration Act 1958 (Cth) (Act) (Tribunal decision).
5. In these proceedings the applicant seeks judicial review of the Tribunal decision.

1. The Tribunal first set out the claims made by the applicants, then set out the legal criteria for assessing whether the applicants to a protection visa under either ss 36(2)(a) (refugee criteria) or 36(2)(aa) (complementary protection criteria) of the Act, or was a member of the same family unit as such a person and that person holds a protection visa of the same class. The Tribunal also identified the relevant Ministerial Direction, Direction 84, for consideration in reviews relating to decisions such as the one under review.
2. The Tribunal identified the issue for review was whether the applicants had a well-founded fear of being persecuted in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of their being removed from Australia to China, there is a real risk that they would suffer significant harm.
3. The Tribunal noted that in the protection visa application and at the hearing before the Tribunal, the first applicant stated that she lived at one address in Dongfeng city in China.
4. The Tribunal found that the first applicant's answers in relation to where she lived in China had changed and that this was not insignificant given that the first applicant claimed that the government expropriated the house she lived in after 2011.
5. The Tribunal considered that the first applicant should have been able to provide consistency in relation to where she was living since the alleged existence of her own house after 2011 which was fundamental to her claim that that house was expropriated by the authorities in 2013. The Tribunal found that the first applicant's inconsistency was indicative of someone who was fabricating her claims and the Tribunal did not accept that she was a witness of truth.
6. The Tribunal did not accept the first applicant's claims and was not satisfied that the applicants had a well-founded fear of persecution under s 36(2)(a) of the Act. The Tribunal was also not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa), nor did they therefore satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
7. The Tribunal affirmed the delegate's decision not to grant the applicants protection visas.

1. On 2 July 2020, the applicant filed a show cause application with the Court. The application contains four grounds of review, as follows (as written):
   1. AAT didn't do the job properly and refused my visa application based on own prejudice.
   2. AAT was too demanding to ask me to be accurate about the specific date of one particular event.
   3. AAT didn't do research about the fact that we don't have the consistent living address as the same as on ID card as we moved very often and only keep on address in record.
   4. AAT asked me about the date of my house being demolished I said around August or September. There may be some differences, but this is understandable not acceptable.
2. On 18 November 2025, the proceedings were docketed to me and set down before me for final hearing on 20 January 2026.

1. At the hearing of this matter on 20 January 2026, only the first applicant appeared and was unrepresented. They were however assisted at the hearing by a Mandarin interpreter. Mr A Sharma of HWL Ebsworth appeared for the first respondent.
2. 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: 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.
3. Accordingly, I took the first applicant through each of the four grounds of review and asked what they meant by each ground. The first applicant did not make any submissions about ground 1. On ground 2 the first applicant submitted the Tribunal had required her to remember everything 100% accurately, which she submitted was not possible. On ground 3 the first applicant submitted that in China a person could live at a different address to the one on her ID Card, as the ID card did not list all the addresses she may have lived at. On ground 4, the first applicant submitted when she gave evidence about the date of demolition, she meant sometime in August or September 2013.
4. Mr Sharma made brief oral submissions summarising the first respondent's written submissions on the grounds. In relation to the matters which the applicants submitted orally at the hearing on grounds 2-4, Mr Sharma submitted those matters went to the merit of the claims made in the Tribunal by the applicants and could not be reviewed in this Court. I agree with Mr Sharma's submission as to the matters referred to by the applicant orally at the hearing.

1. To succeed in this application the applicants have the onus of establishing the Tribunal's is infected by material jurisdictional error; that is, a serious legal error that results in an administrative decision lacking any legal force: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321.
2. If the Court finds the Tribunal committed material jurisdictional error, then the Court can make orders remitting the matter back to the Tribunal for re-determination according to law. In deciding this review, the Court does not consider the merits of the decision; nor does it have power to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
3. Below the Court sets out its consideration of the grounds of four judicial review in this matter. For the reasons given below, neither of the grounds identify the Tribunal committed jurisdictional error.

1. Ground 1 contains two unparticularised arguments that the Tribunal "didn't do the job properly" and it was a decision "based on its own prejudices".
2. Neither of these arguments raises an arguable jurisdictional error.
3. In relation to the first argument, at the hearing before me I asked the first applicant what she meant by the claim that the Tribunal "didn't do the job properly". She did not want to make any submission on what she meant by that argument. To the extent the first argument is challenging the merits of the Tribunal decision, applying Djokovic, this Court does not have jurisdiction to review the merits of the Tribunal decision. The first argument in ground 1 is rejected.
4. As the first applicant is unrepresented, I have taken the second argument in ground 2 to be an allegation of bias, both actual and apprehended.
5. In relation to the second argument, in so far as this argument raises an allegation of actual bias, the authorities require such allegations be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531 at [69]. At the hearing before me the first applicant was unable to articulate any arguable basis for a claim of actual bias. The applicants have not led any evidence (such as a transcript) that have been used to attempt to prove actual bias. I reject any claim of actual bias.
6. In so far as this argument raises an allegation of apprehended bias, the question in considering such a claim is whether or not the Tribunal has conducted itself in a way that displays apprehended bias. Apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer, and whether that observer might infer from the Tribunal's conduct of the review that the Tribunal might be predisposed against the applicants and not open to persuasion: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI) at [2].
7. In SZRUI, Allsop CJ at [3] (as part of the majority) held as to the test for apprehended bias:
   1. ...It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.
8. From my examination of the evidence of the Tribunal's conduct of the review, including its decision, and applying SZRUI, I cannot see any evidentiary basis to allege apprehended bias.
9. Ground 1 is rejected.

1. Grounds 2 and 4 raise issue with the Tribunal questioning the applicant about the date of her house being demolished and asking the applicant to be accurate about that event, claiming the Tribunal's questions were 'too demanding'.
2. As I explained at the hearing these grounds misunderstand the Tribunal decision. The Tribunal, in its decision, did not rely upon any inconsistencies in the first applicant's evidence about the date when the applicants' house was demolished in 2013. Rather, as set out below in ground 3, the Tribunal, found inconsistency in the first applicant's evidence about where she lived in China. The Tribunal found that the first applicant had only provided one address in her Protection visa application, however in her oral evidence to the Tribunal said that she had moved to a different house, with her husband, in 2011, and was this house which, in turn, was demolished in 2013. It was this inconsistency that led the Tribunal to conclude that the first applicant had fabricated her claims: see paragraph [22]. Paragraph [22] reads:
   1. If the applicant had moved into her own house in Dongshen village with her husband in 2011, then the Tribunal finds that is an address that she would have included in her protection visa application. She would have also identified that address when initially asked at hearing where she had lived in China. The Tribunal also considers that the applicant should be able to provide consistency in relation to where she was living since the alleged existence of her own house after 2011 is fundamental to her claim that that house was expropriated by authorities in 2013. In the Tribunal's view, her inconsistency is indicative of someone who is fabricating her claims and the Tribunal does not accept that she is a witness of truth. Neither does the Tribunal accept that she and husband relocated in 2011 to another address, even in Dongshen village or that the government expropriated their house or that the applicant protested or petitioned or was detained or told to report or that the house was demolished. Neither does the Tribunal accept that the authorities are searching for the applicant or that she or her family will be harassed in future or that the applicant has no-where to live.
3. It was open to the Tribunal to make its credit finding in paragraph [22].
4. It was also open to the Tribunal to ask questions about her evidence on the review, even if those questions were demanding. As Barker J held in SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] on the issue of robust questioning by the Tribunal in the context of an allegation of bias:

...Robust and forthright testing of the appellant's claims by the Tribunal does not sustain a finding of apprehended bias. Indeed, displays of robust individuality may at times be expected from persons charged with the difficult task of making decisions of this nature: Epeabaka at [90]; NADH at [19]. It is for the Tribunal to get to the truth of the matter, and it is proper for the Tribunal to focus an applicant's mind: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, at 435 [30]."

1. The same considerations apply here. The Tribunal did not fall into jurisdictional error if (or when) it asked demanding questions about either the date the first applicant's house was demolished, or what her address in China was when she lived there.
2. Grounds 2 and 4 are rejected.

1. Ground three alleges that the Tribunal did not research the fact that the applicants do not have a consistent living address "as the same as on ID card" and that the applicants moved around often but kept one address on the record.
2. As the applicants are unrepresented, and consistent with what the first applicant said in her oral submissions on this ground, I have read this ground as alleging that if the Tribunal had inquired about the ID card it would have found that Chinese citizens can move around and live at different addresses but are not required to update their ID cards with all of their residential addresses.
3. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 (SZIAI) at [25] the High Court held (omitting footnotes):

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

1. The Minister submits, and I accept, the Tribunal did not have any obligation to investigate the matter that the applicants allege ought to have been investigated or inquired into.
2. Further, I consider the argument in ground 3 misunderstands the Tribunal's reasoning. The Tribunal's decision was not concerned about an address that may or may not have appeared on the first applicant's ID card. Rather, the Tribunal was concerned about the fact that the address where the first applicant lived provided in her visa protection application was different to the address where the first applicant submitted that she lived at in oral evidence given at the Tribunal hearing: see paragraph [8] of the Tribunal decision. This was because, as the Tribunal noted, where she was living in and from 2011 was fundamental to her claim as that house was the one she claimed was expropriated by authorities in 2013.
3. At [20], the Tribunal made the following finding about the topic of the first applicant's evidence on where she lived:

In her application which she confirmed had been read back to her and was correct, the applicant stated that she lived at [address in Dongshen Village in Dongfeng City] from 1986 to April 2014 and at hearing, she initially stated that she had lived in Dongshen village, Sanhe town since childhood with her parents, elder sister and (when specifically asked) said she lived there all her life and with no one else. When it was put to her that she was married but had not said she lived with her husband, she stated she had lived with him in another house in the same village since 2011 and that house had been demolished in 2013.

1. Based on this inconsistency the Tribunal found the applicant was not a witness of truth: see [22] set out above. It found that if the first applicant had moved into her own house in Dongshen village with her husband in 2011, then that was the address the first applicant would have included in her protection visa application. The Tribunal found that she would have also identified that address when initially asked at hearing where she had lived in China.
2. This inconsistency finding led the Tribunal to find at [22] that the first applicant as not a witness of truth and that her claims should wholly rejected. In my view, these findings are factual findings that were open on the evidence.
3. Therefore, in my view, the Tribunal had no duty to inquire or to investigate the address on her ID card as it was not a matter relevant to the Tribunal's decision. Putting to one side whether such an inquiry would have been futile in any event, the applicant's ID address was not a "critical fact" relevant to the review and therefore no jurisdictional error of the kind identified by the High Court in SZIAI was committed by the Tribunal in the present case. That the applicant's ID address was not a "critical fact" in the review was succinctly put by the Tribunal at [8] when the Tribunal said:

...The Tribunal put to her it had not asked her for her ID address but for the addresses where she had lived.

1. The applicants have not established that the Tribunal's decision is affected by jurisdictional error.
2. As the applicants are 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]. 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 $5,600 against both applicants. The first applicant told the Court she did not want to make any submission on the question of costs. I consider the amount sought by the is reasonable for this type of matter. I note the amount sort is for an amount below the Court scale. I will make an order for costs for the amount sought by the first respondent against both applicants.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.