KXF24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 319

1. The first applicant appeared before the Court on 3 October 2025 without legal representation but with the assistance of a Mandarin interpreter.
2. On that occasion, the Court had regard to a passage in the Minister's written submissions which submitted that this matter raised a similar issue as was determined by this Court in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227; [2025] 397 FLR 1 (LLR24). The Minister noted that it was currently appealing that decision to the Federal Court but submitted that, in any event, LLR24 is distinguishable from the present case.
3. In the circumstances, the hearing was adjourned to allow both parties to file further submissions regarding the relevance of LLR24 to these proceedings, and specifically, whether the Court should follow LLR24 in this matter.
4. The matter returned before the Court for hearing on 28 October 2025. The applicants were again unrepresented but were assisted by a Mandarin interpreter.
5. The materials before the Court include:

· the application for judicial review filed by the applicants on 12 December 2025;

· the affidavit of the first applicant affirmed on 9 December 2025 and filed on 12 December 2025 (taken as read and in evidence at the hearing on 28 October 2025;

· a Court Book numbering 124 pages (marked as Exhibit 1);

· written submissions filed on behalf of the Minister on 11 September 2025; and

· further written submissions filed on behalf of the Minister on 16 October 2025.

1. As the applicants were not represented at the hearing, the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicants were invited to tell the Court what they believed to be wrong with the Tribunal's decision and/or procedure.
2. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]);

(f) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(g) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicants that this was not an exhaustive list and they should attempt to tell the Court why they said the Tribunal had fallen into error.
2. Against this background, the applicants said they did not know "what the ministers have done wrong" and that they have nothing to say. The applicants were given another opportunity to address the Court in reply to the Minister's submissions. The applicants said they could not produce any evidence for what had been said but that they have lived here for a long time and paid taxes. The Court reminded the applicants that it cannot consider compassionate circumstances and it does not have the power to grant a protection visa. The Court asked the applicants if they had anything to say about whether there is a legal error in the Tribunal's decision. The applicants confirmed that they had nothing further to say. Accordingly, the Court will consider the grounds advanced in the application in order to determine whether or not the Tribunal's decision is affected by jurisdictional error.

1. As outlined above, the application for judicial review contains three grounds which broadly assert jurisdictional error. The applicants did not expand on those grounds at the hearing. Noting that the applicants were unrepresented in this matter, the Court has endeavoured to interpret the applicants' grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158).
2. In essence, the applicants' grounds allege that:

· the Tribunal failed to consider the applicants' claims;

· the Tribunal misconstrued the criteria for granting the visa; and

1. To the extent that the applicants' grounds express mere disagreement with the Tribunal's decision and seek the Court to reconsider their claims, the Court accepts the Minister's submission that it does not have jurisdiction to assess those claims or engage in merits review, as established by the longstanding principle set out in authorities such as Wu Shan Liang and as explained to the applicants at the hearing (see [29] of these reasons).

Did the Tribunal fail to consider the applicants' claims or an integer of those claims?

1. With respect to this aspect of the applicants' grounds, the Minister submitted that the Tribunal's reasons demonstrate that it had regard to the claims advanced by the applicants throughout the visa application process and on review before the Tribunal.
2. The Court accepts this submission. The Tribunal accurately summarised the applicants' claims (at [14] of its decision) regarding their fear of harm from the Chinese authorities because of the applicant's petition against the acquisition of her family's land. These were the only claims put before the Tribunal for consideration. The applicants had been invited to provide more information about their claims to both the Department and the Tribunal, on 13 November 2020 and 5 August 2024, respectively, however did not respond to either of those invitations. Furthermore, the applicants were invited to attend a hearing to give evidence and present arguments, but elected not to participate in that hearing and consented to the Tribunal making its decision on the papers despite being made aware in the hearing notification letter that "this does not guarantee you will receive a favourable decision".
3. It is clear to the Court that the Tribunal's reasons (at [37]-[45]) demonstrate an active and intellectual engagement with the limited material before it (as required by Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [43]- [46]). The Tribunal considered each aspect of the applicants' claims but found that they lacked sufficient evidence and substantiating details to meet the criteria for the grant of a protection visa. The applicants have not particularised, and it is not otherwise clear to the Court, what claims they say the Tribunal failed to consider.
4. No jurisdictional error arises in this respect.

Did the Tribunal misconstrue the criteria for granting a protection visa?

1. In this respect, the applicants allege that the Tribunal "failed to investigate the applicant's claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994".
2. The Court accepts the Minister's submission that the Tribunal's reasons demonstrate that it correctly applied the criteria for a protection visa. The Tribunal correctly set out that criteria at [5]-[10] of its reasons, including that the applicants must meet one of the alternative criteria in s 36(2) as a person who either meets the refugee criterion, the complementary protection criterion, or is a member of the same family unit as someone who does. The Tribunal also correctly set out the definitions of 'refugee' and 'well-founded fear of persecution' in accordance with ss 5H(1) and 5J(1), respectively. The Tribunal then considered the applicants' claims in applying those relevant sections of the Act, but found that the applicants did not face a real chance of harm now or in the reasonably foreseeable future for any of the reasons in s 5J(1), nor did they face a real risk of harm as a necessary and foreseeable consequence of being removed from Australia to China (at [45]). The Tribunal was therefore correct to conclude that the applicants did not satisfy any of the criteria in s 36(2) (at [46]-[47]).
3. Absent any particulars by the applicants, and notwithstanding the irrelevance of ss 36(2C) and 36(3) as exceptions that do not apply to the applicants in these circumstances, it is unclear on what basis the applicants allege the Tribunal misconstrued the legislative criteria for the grant of a protection visa. Accordingly, no jurisdictional error arises in that respect.

1. The applicants allege that the Tribunal made an unreasonable decision, particularly by failing to consider a claim or an integer of a claim.
2. The Minister submitted that there was nothing unreasonable in the Tribunal's line of reasoning in reaching the conclusion that the applicants did not satisfy the visa requirements, particularly in circumstances where the applicants requested the Tribunal to make a decision without participating in a hearing and despite being made aware in the hearing notification letter that this would not guarantee the applicants a favourable outcome.
3. The Court accepts the Minister's submissions as advanced at the hearing and as set out in their written submissions. There was nothing unreasonable about the Tribunal's conclusion that the applicants did not meet the criteria for the grant of a protection visa, primarily on the basis that the Tribunal found the applicants' claims to be unsubstantiated, non-specific and lacking in detail. The Court agrees with the Minister's submission that the Tribunal's decision is unsurprising given the brief nature of the claims in the visa application and the applicants' failure to expand on these claims despite being given opportunities to do so before both the delegate and the Tribunal. Furthermore, the applicants consented to the Tribunal making its decision on the papers without advancing any further information in support of their application. The Tribunal's affirmation of the delegate's decision was the inevitable consequence of the applicants' failure to provide any further information in support of their vague and limited claims (see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]). The Tribunal's conclusions were therefore open to it based on the evidence, or lack of evidence, before it. There is no claim, or integer of a claim, put to the Tribunal which it failed to consider.
4. The Minister further submitted, although not specifically put in these terms by the applicants, that there was nothing unreasonable about the Tribunal's approach where it complied with its exhaustive procedural fairness obligations under Division 4 of Part 5 of the Act, as well as those obligations prescribed by the ART Act.
5. The Court also accepts this submission. The Tribunal properly notified the applicants of the scheduled hearing in compliance with s 72(1) of the ART Act. The Tribunal was not required to invite the applicants to comment on any information pursuant to the requirements of s 359A of the Migration Act because all of the information before it (namely, the visa application itself, the delegate's decision record, and the relevant country information) fell within the exceptions provided for by s 359A(4). The applicants responded to the hearing notification letter by indicating that they did not wish to participate in a hearing and that they consented to a decision being made on the papers. The Tribunal was therefore entitled to proceed to determine the matter (as provided for by s 106(3) of the ART Act) in circumstances where the applicants had specifically requested it and where the Tribunal was satisfied that the matter could be adequately determined in the absence of the parties. The Tribunal's reasons (at [26]-[32]) demonstrate that the Tribunal appropriately grappled with the meaning of "adequately determined" and came to a reasonable conclusion that it could proceed to determine the review due to the simple and straightforward claims and issues before it. The Tribunal was therefore correct to conclude that it was "open, reasonable, and indeed preferable" for it to make its decision on the papers in accordance s 106(3) of the ART Act.
6. No jurisdictional error arises in that respect.

1. As adverted to above (at [24]-[25] of these reasons), the Minister observed similarities between this matter and the Court's recent decision in LLR24 in which his Honour Judge Johns found that the Tribunal had failed to afford the applicant procedural fairness when it failed to notify the applicant of the dispositive issues on review in circumstances where the applicant had elected to have a decision made on the papers without attending a hearing. Relevantly in LLR24, Judge Johns held that the applicant's election to not attend the hearing was not an informed decision because the hearing invitation did not put her on notice of the possibility that the Tribunal might affirm the delegate's decision for reasons other than those relied upon by the delegate.
2. The Minister submitted that Judge Johns' decision in LLR24 was plainly wrong and should not be followed. This Court notes that the Minister has appealed the decision of Judge Johns and that judgment is presently reserved on that matter in the Federal Court. The Court further notes the decision of Judge Marquard in BYI25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1671 and the decision of Judge Kaur-Bains in EES25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1797, both of which have chosen not to follow the decision in LLR24.
3. In the circumstances, it is not necessary for this Court to consider whether LLR24 was wrongly determined. The Court accepts the Minister's submission that this matter is distinguishable from LLR24 and therefore not affected by the same error.
4. In this matter, the dispositive issues before the delegate and the Tribunal were identical. The central issue for both the delegate and the Tribunal was whether the applicants could meet the requirements of s 36(2) for the grant of a protection visa in circumstances where they had only made vague and unsubstantiated claims to fear harm from the Chinese authorities. The applicants were invited by the Department to provide more detail and evidence in support of their claims but did not do so. The Tribunal's hearing invitation similarly invited the applicants to provide further documents in support of their case and noted that they should have regard to the reasons for the delegate's decision in doing so. However, the applicants did not provide any further details or evidence and instead elected for the Tribunal to make its decision without holding a hearing. In circumstances where the Tribunal affirmed the delegate's decision for the same reasons as the delegate, the Court accepts the Minister's submission that the error determined in LLR24 does not arise in this matter.
5. The Court asked counsel for the Minister whether there were any further matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention. There were none.
6. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal's decision. The Court is satisfied that, even adopting the broad approach referred to at [32] of these reasons, no jurisdictional error is apparent.

1. The application for judicial review made by the applicants has failed to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.