DXR19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 706

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. By application filed on 1 October 2019 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 4 September 2019. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (Subclass 866) visas (the visa) under s 65 of the Migration Act 1958 (the Act).

1. The applicant is a male citizen of China. He arrived in Australia in June 2014 on a student visa which was valid to August 2016. The applicant lodged the visa application on 16 July 2015.
2. The applicant sought protection on the basis of claims that he was involved in encouraging the villagers of his hometown to petition the government in Beijing, that in June 2015 his wife informed him that authorities were looking for him due to his involvement in this illegal petition and that the villagers who were involved had been detained and tortured in custody. He claimed to fear that if he returns to China he will also be detained and tortured.
3. Save for a copy of his passport and his statement of claims, no further material was provided by the applicant to the delegate or the Tribunal.
4. The applicant failed to attend a scheduled interview with the delegate. The delegate refused the applicant the visa on 11 October 2016.
5. The applicant applied to the Tribunal for a review of the delegate's decision on 3 November 2016. On 5 August 2019, the applicant was invited to attend a hearing before the Tribunal scheduled for 3 September 2019. The applicant did not attend the hearing. On 3 September 2019, the Tribunal affirmed the delegate's decision not to grant the applicant the visa.

1. The Tribunal first identified that the applicant had not attended the hearing before it and that it was satisfied that the applicant had been properly invited to attend and that pursuant to s 426A of the Act, the Tribunal decided to proceed to a decision on the review without taking any further action to enable the applicant to appear before it.
2. The dispositive issue on review was whether the applicant was a person in respect of whom Australia had protection obligations under s 36 of the Act. The Tribunal identified the criteria for a protection visa; that the applicant must either satisfy the 'refugee' criterion or meet the 'complementary protection' grounds for protection. The relevant definition of 'refugee' and the provisions relevant to the complementary protection grounds under the Act were also set out.
3. The Tribunal identified that it must have regard to Ministerial Direction No. 56 made under s 499 of the Act, and that it must take into account the policy guidelines titled PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any relevant country information assessments.
4. The Tribunal noted that it was for the applicant to satisfy it that he met all the statutory requirements of the visa and for him to establish his claims for protection and that the Tribunal did not have any responsibility or obligation to assist him in specifying or particularising his claims. The Tribunal also identified that it was not required to accept uncritically the applicant's claims
5. The Tribunal at [13] set out the applicant's claims for protection:

In this case, the applicant who purportedly relocated to Beijing from his home village some time before coming to Australia, purportedly advised some family members who were disaffected by land seizure and a development project in the village, to petition relevant authorities in Beijing after their attempts to protest to local authorities met with some hostility. He claims he helped them to draft their petition. He claims that he left China legally, coming to Australia for reasons that appear not to be relevant to this protection visa application. He claims that after he arrived here he was informed by a family member that the authorities in China are seeking to question and possibly arrest him for participating in an "illegal" petition.

1. The Tribunal described the applicant's claims as 'bald, fairly threadbare and unsupported' and noted that it could not test the claims with the applicant at the hearing.
2. The Tribunal concluded that without further information from the applicant it was not satisfied that he was a refugee or that he satisfied the complementary protection criterion. It affirmed the decision under review.

1. On 1 October 2019, the applicant filed the originating application with this Court which advanced one ground of judicial review. Also filed on the same day was an affidavit of the applicant which annexed the Tribunal's decision. It was not necessary for the Court to take this affidavit into evidence as the Tribunal's decision was included in the Court Book filed by the Minister which was tendered at the hearing and marked Exhibit CB.
2. On 23 April 2025, the Minister filed written submissions. The applicant has not filed any written submissions despite being given an opportunity to do so.
3. The matter was listed for final hearing on 7 May 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 13 March 2025
4. At the hearing on 7 May 2025 the applicant appeared in person before the Court with the assistance of an interpreter in the English and Mandarin languages. The Minister was represented by Mr Jason Law of the Australian Government Solicitor.
5. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
6. The applicant was guided through his application and was invited to make oral submissions in support of the ground of review raised in his application.

1. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.
2. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

1. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [32].
2. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

1. The application for judicial review raised the following ground (without alteration):

1. The Tribunal failed to consider all my claims in my protection visa application,

Particulars

The Tribunal did not make any findings whether it was true that the villagers who submitted the petition had all been detained and could face imprisonment. The Chinese police knew I was deeply involved in the production of the petition letter. The police viewed the petition as illegal. The fact that the villagers have been detained would put me in a similar situation if I was to return to China.

1. By this ground the applicant contends that the Tribunal failed to consider all his claims for protection. The applicant refers to the Tribunal not making a finding as to whether the detained villagers could face imprisonment and stated that he would face a similar situation should he return. At the hearing, when invited to provide further details about this ground, the applicant said the Tribunal failed to consider the petition in China, and that from the time he lodged his documents the Tribunal did not consider them.
2. I observed that the evidence before the Court (CB 94-104) indicated that he had been invited to attend a hearing before the Tribunal to give evidence in support of his claims, but that he had not attended that hearing. The applicant said he may have received an email inviting him to the Tribunal hearing, but he had forgotten about the matter and the date of the hearing.
3. In respect of the applicant's complaint that the Tribunal did not consider all his protection claims, this is not made out. The reasons plainly demonstrate that the Tribunal accurately identified the claims made by the applicant in his application for protection, including his claim to fear harm in China.
4. It is, as contended by the Minister, a matter for the Tribunal to make findings of fact and to be satisfied or otherwise of the applicant's claims on the evidence before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 281-282.
5. It is also well established that the Tribunal has no obligation to conduct an inquiry to discover whether the applicant's case might be better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; neither is it under any duty to make any further inquiries or obtain information beyond that which is provided by the applicant: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [25].
6. I accept the Miniter's contention that the Tribunal's finding at [13]-[14] that it was not in a position to test 'bald, fairly threadbare and unsupported' claims was open to it based on the lack of any evidence to corroborate the written claims made by the applicant in his visa application.
7. The Tribunal was not required to make a positive finding on the truthfulness of the applicant's claims and it was open to it to conclude that it could not be satisfied, given the limited evidence before it, that the applicant was a person in respect of whom Australia had protection obligations under s 36(2) of the Act.
8. For these reasons, the ground raised by the applicant does not establish jurisdictional error on the part of the Tribunal.

1. The Tribunal in this case, following the applicant's non-appearance at the hearing, decided (pursuant to s 426A of the Act) to proceed to a decision on the review without taking any further steps to enable the applicant to appear before it: see [3]-[4] of the Tribunal's reasons.
2. As a model litigant, the Minister raised the issue of whether it was legally unreasonable for the Tribunal to exercise its discretion to proceed to a decision on the review under s 426A(1A)(a) rather than exercising its discretion to dismiss the review application under s 426A(1A)(b).
3. At the hearing, at my direction, the solicitor for the Minister explained in plain English this ground of review and the Minister's position on the issue. Other than indicating that he may have received the invitation to attend the hearing, but had forgotten about the hearing date, the applicant could not otherwise assist the Court.
4. The evidence before the Court indicates that the applicant was properly notified of the Tribunal hearing as it issued a valid invitation under s 425 of the Act. The Tribunal's invitation specified the date, time and place of the hearing: s 425A(1); was sent to the applicant's representative by email (as nominated in his application): ss 441A(5), 441C(5); was sent more than 4 weeks prior to the scheduled hearing which was more than the prescribed period of 14 days under reg 4.35D(3): s 425A(4); and contained a statement to the effect of s 426A and attached the 'information about hearings' factsheet: s 426A.
5. In the circumstances, the applicant's non-appearance enlivened the Tribunal's discretionary power under s 426A(1A). Section 426A of the Act (as then in force) provided the following:

a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

1. The Minister referred to the decision of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17) wherein Horan J held that it was legally unreasonable for the Tribunal to exercise its discretion to make a decision on the review under s 426A(1A)(a) of the Act, as opposed to exercising its discretion to dismiss the application under s 426A(1A)(b), in circumstances where it had not provided reasons for why it chose to exercise the power in s 426A(1A)(a) over s 426A(1A)(b).
2. If the Tribunal had decided to exercise its power under s 426A(1A)(b) to dismiss the application for non-appearance, the applicant would have had the opportunity to seek reinstatement within 14 days: s 426A(1B). If such an application is made, the Tribunal would then have the power to reinstate the review application or confirm the decision to dismiss the review application: s 426A(1C). However, by choosing to proceed to a decision on the review under s 426A(1A)(a), which involved providing a written statement of decision, the Tribunal brought the applicant's review application to finality.
3. In its reasons, the Tribunal provided a detailed explanation as to why it chose to proceed to a decision on the review under s 426A(1A)(a), but did not expressly state why it chose to exercise this power rather than dismiss the review application under s 426A(1A)(b).
4. The Minister advanced two arguments: First, that the facts of this matter are distinguishable from those in DNK17. Second, even if the Court did not consider DNK17 to be relevantly distinguishable from the present matter, DNK17 was inconsistent with the Act, as the obligation in s 430 did not extend to a requirement to give reasons for an antecedent procedural decision to exercise the power under s 426(1A)(a) as opposed to s 426A(1A)(b), and on this basis DNK17 was inconsistent with the High Court's decision in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [39]-[40].
5. If the facts of the present matter were not relevantly distinguishable from those in DNK17, then I would be bound by the reasoning in that judgment and must follow it. The Minister properly acknowledged this in their written submission. I am satisfied, however, that the present case is factually distinguishable from DNK17. As contended by the Minister, the determination of whether the Tribunal's decision to exercise a statutory power was legally unreasonable is 'invariably fact dependent': Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 574 [84].
6. In DNK17, the applicant did not appear at the scheduled hearing before the Tribunal, however prior to the hearing, the applicant made two requests for an adjournment, both of which had been granted. The applicant made a third request for an adjournment which was denied, and the applicant was notified of the outcome on the morning of the hearing. There was a clear attempt by the applicant in DNK17 to engage with the Tribunal and a clearly expressed desire to be heard. In the present case, the applicant did not engage with the Tribunal at all and did not respond to the invitation to attend the hearing or complete the 'Response to hearing invitation' form.
7. I accept the Minister's submission that this matter is factually similar to EEF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 335 and DDF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 38. As protection matters, these cases had the same concern of 'the seriousness of the possible consequences of refusal': DNK17 at [78]; similarly, the applicant in the present matter failed to engage in the delegate's processes, including non-attendance at the departmental interview, and failed to engage with the Tribunal review process and did not seek to explain his non-attendance or request an adjournment; the Tribunal's hearing invitation put the applicant on notice that it was unable to make a favourable decision based on the information alone and advised the applicant of the consequences of non-appearance.
8. It can be reasonably inferred from the decision, that the Tribunal, having regard to the procedural history of the matter and the applicant's lack of engagement, did not consider there would be any utility in dismissing the matter under s 426A(1A)(b) and that it was justified in proceeding to finalise the review under s 426A(1A)(a).
9. I am satisfied (in the particular circumstances of this case) that the Tribunal, in deciding to make its decision on the review without taking any further action to enable the applicant to appear before it, provided an evident and intelligible basis for doing so and that it was not unreasonable for it to proceed as it did: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [76].
10. For these reasons, the ground raised by the Minister does not disclose jurisdictional error on the part of the Tribunal.

1. As none of the grounds raised disclose jurisdictional error on the part of the Tribunal, the application for judicial review must be dismissed.

1. The Minister sought an order for the award of costs in the fixed amount of $5,400 in the event the applicant was unsuccessful. When invited to make submissions on the Minister's request for a costs order, including the amount sought, the applicant indicated that he did not have any submission to make on that issue. I have considered the application and am satisfied that costs should follow the event and that the amount sought by the Minister is reasonable having regard to the work undertaken on the matter up to the date of the final hearing. For these reasons, I will order that the applicant pay the first respondent's costs fixed in the sum of $5,400.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.