FEB19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1367

1. The Applicant alleges that the Tribunal assumed that a person in the Applicant's situation "would have stayed in India and fought for his property". Read fairly, the Minister contends that the Tribunal's findings in relation to the Applicant's circumstances was focused on concerns held with the plausibility of the Applicants' narrative.
2. The Minister submits that it is well-established that credibility findings are the function of the decision-maker par excellence.[53] Acknowledging that credibility findings are not immune from review by the Court, the Minister submits that 'implausibility' is a sufficient basis on which to disbelieve a given narrative.
3. The Minister contends that a "logical or rational or reasonable mind" could reason that a person in the Applicant's circumstances and situation would have stayed in the area to fight for what rightfully belonged to him.
4. In any event, the Minister submits that the Applicant's complaints should be rejected. In circumstances where the Tribunal rejected the Applicant's narrative of dispossession, the Tribunal was not required to further consider the harm the Applicant might face if he sought to recover his home. The Minister submits that this ground fails to succeed.

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.[54]
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.[55] 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.[56]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[57] 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".[58] Different kinds of error may overlap.[59] The categories are not closed.[60]
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.[61] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[62] It has been described as an "undemanding" standard.[63]

1. 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.
2. 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"[64] as defined by s 5J.
3. 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.
4. Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
5. The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Regulations.

1. Following the sequence of the Applicant's oral submissions, I commence my analysis with Grounds 2 and 3.

The Tribunal failed to consider the applicant's clearly articulated claim or integer of his claim or critical and significant information that the police did not assist him because they had been bribed; and/or if it did consider and deal with the claim, its reasons for doing so were at [39] and [44] of the reasons for decision and affected by errors identified in ground 3.

The Tribunal rejected the applicant's claim of religious discrimination based on an irrational, illogical, or unreasonable assumptions and/or constructively failed to consider the claim of discrimination.

The applicant claimed the police would not provide protection because he was Muslim; and that the police may have not provided him protection because they had been bribed.

The Tribunal irrationally assumed that police could not have discriminated against the applicant because the assailants were also Muslim and/or that the police would not accept bribes from a minority group they discriminated against.

The Tribunal failed to consider that discrimination may be selective or take the form of indifference.

The Tribunal misconstrued or misunderstood the meaning of "discrimination" pursuant to s 5J(4)(c), and/or the meaning of "willing and able" to offer protection in s 5LA(2)(b).

1. Paragraph [39] of the Tribunal's Decision provides:[65]

Further, the applicant told the Tribunal that the people who moved into his house are Muslim themselves. It makes no sense that the police would not help him because he was Muslim, yet they would take bribes and act corrupt for another Muslim.

1. Paragraph [44] of the Tribunal's Decision provides:[66]

Given the above discussion around the timing and police reporting requirements and combined with the applicant's assertions that the applicant will not be afforded state protection as he is a Muslim, yet his alleged attacker is also Muslim the Tribunal finds that all four applicants would be afforded state protection upon return to India.

1. Paragraphs [39] and [44] of the Tribunal's Decision are deeply flawed.[67]
2. The flaw evidenced by these paragraphs[68] is best captured by particular (b): "The Tribunal irrationally assumed that police could not have discriminated against the Applicant because the assailants were also Muslim and/or that the police would not accept bribes from a minority group they discriminated against". The acceptance of bribes is not an instance of non-discrimination, and even if it were, it is fallacious to generalise from a single instance. There are other ways of characterising the error in [39],[69] but for present purposes it is sufficient to resolve the matter by reference to the false premise and fallacious reasoning.
3. The Minister does not dispute that [39] and [44] are flawed but contends that those paragraphs are effectively severable from the Tribunal's Decision, which it is contended, can be read without reliance on those paragraphs.[70]
4. In order to determine whether paragraphs [39] and [44] can be treated in the manner contended for by the Minister it is necessary to consider those paragraphs in their context.[71]
5. The Applicant's claims are set out in detail in the Tribunal's Decision.[72] The central events leading to the Applicant's claims begin with the neighbour's illegal occupation of the Applicant's house while he and his wife were in Australia. On the first occasion, the Applicant said that he was able to enter and stay at the property with the assistance of police and the authorities. On the second occasion, he and his wife were not able to stay at the property, but instead were pushed and the Applicant was injured when recovering personal items. A critical claim made by the Applicant was that the police did nothing on the second occasion because they were bribed.
6. The Tribunal rejected the Applicant's claims and made adverse findings about his credibility and the veracity of the documents that he relied upon, including the FIR.
7. A summary of some of the critical findings is found in the Tribunal's Decision:[73]

Given this country information and the timing of the applicant's claims the Tribunal does not accept that the applicant made these complaints to the police or any other authority. It follows that the Tribunal does not accept the documents provided by the applicant in relation to his claims. The applicant's claims that the first time they moved into his home the police assisted him do not add up when in the second and third incidences the police had no interest in the applicant or his complaints. Further, one would think if someone took over one's house and all possessions you would stay in the area and fight for what rightfully belongs to you, not simply leave and go to another country with the intent to stay permanently.

(Emphasis added)

1. The highlighted passage demonstrates the relevance of the Applicant's claims of bribery. That claim, albeit one largely based on supposition, was an explanation of the failure by police to investigate on the second occasion. If the Applicant's explanation (of bribery) were considered plausible, it had the potential to dislodge a central plank of the Tribunal's reasons for rejecting the Applicant's credibility and the documents relied upon by him.
2. Paragraph [39] appears under the heading "Muslims in India".[74] The paragraph in context reads:

The primary applicant and his representative alluded to the fact that as the applicants are Muslim this may give rise to discriminatory practices in the execution of state authority protection. The representative also provided DFAT information on Muslims which indicates that: 'DFAT assesses that Muslims face a low risk of societal discrimination and violence.

The DFAT report does not state that Muslims will not be afforded protection or that they are targeted for being Muslim. It states that they face a low risk of societal discrimination and violence. Further the Muslim community in Uttar Pradesh where the applicants are from forms the largest religious minority in the Indian state. They are 19.3% of the population.

There was nothing in the applicant's written evidence or oral testimony that indicated the applicants were targeted for being Muslim or that they could not receive adequate protection from the authorities based on religion. Therefore, the Tribunal does not accept the applicants claimed persecution based on being Muslim in India.

Further, the applicant told the Tribunal that the people who moved into his house are Muslim themselves. It makes no sense that the police would not help him because he was Muslim, yet they would take bribes and act corrupt for another Muslim.

(Footnotes omitted)

1. While paragraphs [36] to [38] were arguably sufficient to support the conclusion at the bottom of [38], the role that [39] may have had in that conclusion cannot be ignored.[75] There is a "realistic possibility" that the decision "could" have been different, but for the error.[76] In reaching this conclusion, I accept the Applicant's submission, that the Tribunal's Decision ought not to be construed in a strictly linear manner, such that the Tribunal's finding at [39] that commences "Further" can be ignored when considering the earlier reasoning.[77] As the Full Court held in EVA17 v Minister for Immigration and Border Protection,[78] "it is a path fraught with danger to attribute to a decision maker the linear reasoning process which emerges from the manner in which a decision is expressed on paper."
2. The question also arises as to whether the erroneous reasoning at [39] infects the Tribunal's earlier conclusion at [34] concerning the credibility of the Applicant and the veracity of the documents he relied upon.[79] The erroneous reasoning for rejecting the bribery claims, must call into question the earlier finding at [34] which was based on the fact that the police had "no interest" in investigating on the second occasion.[80] A possible answer to that observation was the explanation of bribery; an answer subsequently rejected on the basis of flawed reasoning at [39]. I am not satisfied that that reasoning was immaterial to the conclusions at [34].[81]
3. As Lee J held in SZTFQ v Minister for Immigration and Border Protection,[82] "the assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence." Save for "peripheral findings",[83] it is generally not possible to unscramble a credit finding based upon a number of matters, including an erroneous matter.
4. Paragraph [44] appears under the heading "State Protection".[84] The paragraph in context reads:[85]

The Tribunal finds that the applicants will be afforded state protection upon their return to India. The Tribunal finds that the Indian government has the willingness and ability to discharge its obligations to protect its citizens. According to the UK Home Office:

"Despite some failings, in general, the state appears both willing and able to offer effective protection'.

Given the above discussion around the timing and police reporting requirements and combined with the applicant's assertions that the applicant will not be afforded state protection as he is a Muslim, yet his alleged attacker is also Muslim the Tribunal finds that all four applicants would be afforded state protection upon return to India.

(Emphasis added)

1. The highlighted words are another instance of the flawed reasoning at [39].[86] The repetition of that flawed reasoning in this part of the Tribunal's Decision is consistent with and fortifies my conclusion of jurisdictional error.
2. I do not overlook the fact that the evidence in support of the claim of bribery was weak. The Applicant's evidence on the topic was little more than speculation. Further, the country information was addressing a different problem with bribery, namely police demanding of monies to register a FIR. Despite these matters I remain of the view that the errors in paragraphs [34] an [39] were material,[87] because it is plausible that notwithstanding the weakness in the evidence, the Tribunal might have accepted bribery as an explanation for what had occurred; noting that the alternative explanation that was found by the Tribunal was that the Applicant's evidence and the documents relied upon by him were made up.
3. I am satisfied that jurisdictional error is made out by reference to Grounds 2 and 3.

The Tribunal's rejection of the applicant's claims based on the timing of the First Information Report (FIR) is irrational, unreasonable, illogical, and/or a result of a failure to consider critical and significant country information before the Tribunal.

1. As I have explained above, the Tribunal's finding that the credibility of the Applicant's claims was central in determining the Review Application adversely to the Applicant:[88]

The claims that some people moved into their home whilst they were overseas and that then the police failed to intervene despite the applicant having a deed to the home and having lived there for many years is just not plausible.

1. The critical finding of the Tribunal is that it did not accept that the Applicant had made complaints to the police or any other authority, for four reasons:[89]

(a) Delay in lodgment (or non sequential lodgment) of a FIR on 1 August 2015, which the Tribunal regarded as a precondition to an investigation;

(b) The implausibility of the police assisting in 2014, but not in 2015;

(c) The implausibility of the police not assisting the applicant due to his religion (Muslim), when the squatters were also Muslim; and

(d) The implausibility of the Applicant returning to Australia and not staying in India to recover his property.

1. Ground 1 included a determination that the Applicant had not made complaints to the police, and that the "written and oral claims for protection" were "fabricated or embellished".
2. The issue of the FIR is addressed at [31] to [35] of the Tribunal's Decision:[90]

The applicant gave the Tribunal a copy of a translated First Information Report (FIR) taken at the Rail Bazar Police Station on 1 August 2015. It states the time of the offence over a period of 10 March 2015 until 29 June 2015. In the applicants representatives submission (no date) the applicant returned to his home and noticed the locks had been changed but no one was living in the home. He went to the police and the police assisted him and he stayed at the family home until 19 March 2015 when he came back to Australia.3

The applicant claims he made a complaint to the police via letter on 1 July 2015, the Senior Superintendent of Police Kanpur, the Director General of police Kanpur, the District Magistrate Kanpur, and Chief Minister Uttar Pradesh on 4 July 2015 and again to the Senior Superintendent of Police Kanpur 16 July 2015. However, the applicant did not put in a First Information Report (FIR) until 1 August 2015.

According to the Commonwealth Human Rights Initiative (CHRI) a First Information Report (FIR) is required before any investigation into alleged crimes can take place. Further, they report that there is nothing specific in the law which requires them to keep a person informed about the progress of a case. In addition, Section 157 of the Code of Criminal Procedure notes that a police officer can decide not to investigate even with an FIR when the police officer is of the view that the case is not of a serious

Given this country information and the timing of the applicant's claims the Tribunal does not accept that the applicant made these complaints to the police or any other authority. It follows that the Tribunal does not accept the documents provided by the applicant in relation to his claims.5 The applicant's claims that the first time they moved into his home the police assisted him do not add up when in the second and third incidences the police had no interest in the applicant or his complaints. Further, one would think if someone took over one's house and all possessions you would stay in the area and fight for what rightfully belongs to you, not simply leave and go to another country with the intent to stay permanently.

Overall, the Tribunal is not satisfied that the applicant's claims fall under the Refugees Convention in that the applicant has a well-funded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. There is no evidence before the Tribunal that the applicants were targeted for any of these reasons.

1. The country information[91] was the CHRI 23 October 2015 First Information report identified in footnote 4 (CHRI Report) which formed part of the Country of Origin Information which is annexure A to the Affidavit of Rachel Mason affirmed 22 July 2025 under the heading "Responses to Information Requests".
2. I shall start with the issue of the delay or non sequential lodgment of the FIR.
3. The translated FIR[92] relied upon by the Applicant records the following information:

(a) Dated: 01/08/2016

(b) Case Crime No: 0221

(c) Date from: 10/03/2015 Date To: 29/06/2015

(d) Information received at Police Station

(e) Type of information: written

(f) Complainant: [name of Applicant]

1. The Tribunal's findings with respect to timing were:[93]

The applicant claims he made a complaint to the police via letter on 1 July 2015, the Senior Superintendent of Police Kanpur, the Director General of police Kanpur, the District Magistrate Kanpur, and Chief Minister Uttar Pradesh on 4 July 2015 and again to the Senior Superintendent of Police Kanpur 16 July 2015. However, the applicant did not put in a First Information Report (FIR) until 1 August 2015.

1. The Tribunal's findings with respect to the country information were:[94]

According to the Commonwealth Human Rights Initiative (CHRI) a First Information Report (FIR) is required before any investigation into alleged crimes can take place. Further, they report that there is nothing specific in the law which requires them to keep a person informed about the progress of a case. In addition, Section 157 of the Code of Criminal Procedure notes that a police officer can decide not to investigate even with an FIR when the police officer is of the view that the case is not of a serious nature or there are not enough grounds to investigate.

1. The Minister's explanation for the Tribunal's conclusion was:

(a) The applicant claimed to have made written complaints to police on 1 July 2015, and to increasingly senior police on 4 and 16 July 2015, but complained that 'no action was taken from any of the authorities';[95]

(b) The applicant also claimed to have 'lodged' a FIR on 1 August 2015;[96] and

(c) That order of events was inconsistent with the information the Tribunal extracted from the IRB Report, namely that a FIR is required before any investigation into alleged crimes can take place.

1. The finding of delay by the Applicant in the filing of the FIR is supported by the submission made by the Applicant's Representative's to the Tribunal that he "subsequently lodged an FIR on 01 August 2015".[97] That conclusion is not undermined by country information that suggests that it is the police who register a FIR after a written or oral complaint is made to them, and potentially after a period of delay. The Applicant's claim can sensibly be understood as a reference to the date on which the Applicant made the complaint to the police. Accordingly, I reject the contention that "there is no basis in the reasons or country information for drawing an adverse inference against the applicant because the FIR was registered a month after his complaint."[98]
2. I also reject the Applicant's secondary submission that the Tribunal fell into jurisdictional error by the following reasoning: "because an FIR is required to initiate a police investigation, the applicant's failure to lodge one on 1 July 2015 undermined his claim of fearing harm". The Applicant relied on two matters for which it was contended that there was no evidence: "First, it assumes the timing of the FIR was within the applicant's control" As indicated above, the Applicant's Representative's submission was that he "subsequently lodged an FIR on 01 August 2015".[99] "Second, it assumes the Applicant understood that requesting an FIR was necessary to trigger an investigation." On this second point, as the Minister contends, the evidence before the Tribunal indicates that he "knew enough about police procedures to navigate the escalation of his complaints within the police hierarchy".
3. While there is some force in the observation that the serious finding that the FIR was fabricated was insufficiently explained,[100] having already found that the Tribunal's finding[101] was materially affected by the erroneous reasoning,[102] it would be artificial to attempt to determine whether the Tribunal's rejection of the Applicant's claims based on the FIR is a standalone basis for a finding of jurisdictional error, for example on the basis that the finding was unreasonable, illogical or irrational. As indicated earlier, generally speaking, it is not possible to unscramble a credit finding based upon a number of matters, including an erroneous matter.
4. The question of whether a jurisdictional error is established by reference to Ground 1 is subsumed within my conclusion of jurisdictional error in relation to Grounds 2 and 3.

The Tribunal failed to complete its statutory task, failed to consider a clearly articulated claim, integers, or critical and significant material, and/or its decision was irrational, illogical or unreasonable; and/or took into account an irrelevant consideration as it found that if the applicants' property had been stolen as they claimed one would ordinarily have expected the applicants to stay in India and fight for it.

1. The focus of the complaint in relation to Ground 4 is the following sentence:[103]

Further, one would think if someone took over one's house and all possessions you would stay in the area and fight for what rightfully belongs to you, not simply leave and go to another country with the intent to stay permanently.

1. The Tribunal's finding, if understood to be a "universal proposition", is irrational. Plainly, what a person should do in the situation contemplated depends on their personal circumstances, as well as some assessment of the feared harm. The finding is also expressed at an unhelpful level of generality, begging the question as to what is meant by the word "fight".
2. While the Tribunal's language is open to more than one interpretation, I am inclined to view the statement at [34] was addressing the Applicant personally and the circumstances of his case. [104] With some hesitation, I accept the Minster's submission that the statement should be read in the context of the findings already made as meaning that in the circumstances as found, the Applicant would be expected to have done more by testing his capacity to enforce his rights in relation to the home.
3. I am not satisfied that jurisdictional error is made out by reference to Ground 4.

1. As jurisdictional error has been established, the Tribunal's Decision ought to be quashed and the matter should be remitted to the Tribunal for reconsideration according to law.

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 successful, the Applicant sought costs in the scale amount.[105] I am satisfied that the Applicants are entitled to their costs in the proceedings on the basis that costs ought to follow the event.[106] I am further satisfied that it is appropriate to make an order for payment of the amount sought by the Applicants in the amount of $8,371.30 having regard to the scale and the extent of work undertaken as evidenced by the Court file.[107]

I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

Associate: MC

Dated: 28 August 2025

SCHEDULE OF PARTIES

[1] Orders made by Judge Fary on 19 August 2025, Order 1.

[38] SZTFQ v Minister for Immigration & Border Protection [2017] FCA 562.

[39] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 per Gleeson CJ at [5].

[40] Affidavit of Rachel Mason affirmed on 22 July 2025 at pp 14, 21-22.

[41] cf Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at[33]-[34].

[44] Affidavit of Rachel Mason affirmed on 22 July 2025 at p 22.

[45] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 per Crennan and Bell JJ at [130].

[46] CB 252-256; Affidavit of Rachel Mason affirmed on 22 July 2025 at p 26.

[52] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [14]

[53] Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 per McHugh J at [67].

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

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

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

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

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

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

[69] For example, a potential misconstruction of the meaning of "discrimination" pursuant to s 5J(4)(c) of the Migration act.

[78] [2018] FCAFC 214; (2018) 262 FCR 304 at [45].

[82] [2017] FCA 562 per Lee J at [44].

[83] See BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40 at [89].

[98] Applicant's submissions at [22].

[100] Compare Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15, per Gordon J at [43].

[105] 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).

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

[107] See 25.14 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.