MJA25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 463

Dear Administrative Review Tribunal

I would like to request that a decision be made on just the information that the Administrative Review Tribunal holds.

I do not want to attend the hearing on 08/09/2025.

I have only receive the date and my name for the hearing from the person who was helping me. Please see attached the screenshot that I received.

Because I do not want to waste the Tribunal's time, please cancel the hearing for me.

Also, I would like to change my email address and contact information to this email, because the previous person no longer wants to help me.

Please see the change of contact form and my passport.

[...]

1. On 4 September 2025, the Tribunal wrote to the applicant (at his newly advised email address) to inform him that the scheduled hearing had been cancelled at his request and that the Tribunal would proceed to make a decision on the papers (CB 94).
2. On 10 September 2025, the Tribunal wrote to the applicant in relation to his request for a decision to be made on the papers. The Tribunal informed the applicant that it was presently unable to make a favourable decision on the information and evidence before it and again invited the applicant to provide any further information and evidence no later than 16 September 2025 (CB 95-97). The applicant did not respond to that invitation or otherwise make further contact with the Tribunal (CB 106 at [7]).
3. On 30 September 2025, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 99-116).
4. On 22 October 2025, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Act.

1. To obtain assistance in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is therefore necessary to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa decision under review and setting out the procedural history of the matter (at [1]-[7]).
3. The Tribunal observed that s 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) enables the Tribunal to make a decision without holding a hearing in circumstances where the applicant requests the Tribunal to do so and where the issues for determination can be adequately determined in the absence of the parties. The Tribunal indicated it was satisfied that the applicant had "requested, considered and consented" to the Tribunal making its decision on the papers without holding a hearing by virtue of his email to the Tribunal on 28 August 2025 (at [8]-[10]).
4. The Tribunal was further satisfied that the issues could be "adequately determined" in the absence of the parties in circumstances where the applicant had been afforded an opportunity to reconsider the request and otherwise provide further information and evidence, and that it was the applicant's responsibility to make out his claims for protection. The Tribunal was satisfied, having regard to the criteria for the grant a protection visa and all of the material before it, including the applicant's written request for such, that it was appropriate to make a decision on the papers without holding a hearing (at [10]-[15]).
5. The Tribunal set out the applicant's background relevant to his protection claims, namely, that he feared persecution by his neighbour and his neighbour's family in China arising from a property boundary dispute (at [16]-[17]). The Tribunal outlined the evidence which was before the delegate, including the claims in the applicant's visa application outlined above at [4] of these reasons (at [19]). The Tribunal noted that the applicant had not provided the Department or the Tribunal with any further information or evidence beyond what was included in his original visa application (at [20], [24]). The Tribunal also outlined the relevant criteria for the grant of a protection visa, namely, the refugee and complementary protection criteria in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). The Tribunal confirmed that it had had regard to the relevant departmental guidelines and country information assessments in accordance with Ministerial Direction No. 84 (at [25]-[30]).
6. In assessing the applicant's claims as set out in his visa application, the Tribunal noted that the applicant claimed to have "almost" broken his neighbour's leg but then later said he "did not mean to break his legs". The Tribunal found that this internal inconsistency gave rise to doubts concerning the credibility of the applicant's claims (at [36]).
7. The Tribunal further found that the applicant's claims lacked sufficient detail with respect to the boundaries of the properties that were said to be in dispute, where the boundaries and his neighbours were located, how the physical incident with the neighbour arose, and whether there were any witnesses or details of any medical treatment sought by anyone involved. The Tribunal noted there was no information or detail in the applicant's claims about the nature of the neighbour's family connection with the police or the applicant's claims that the neighbour and his family had assaulted him in his own home, nor was there any information or detail to support the applicant's claim that he could not report the matter to the police in China because he would otherwise be detained and charged with serious offences as a result of the dispute with his neighbour (at [37]).
8. The Tribunal found that the lack of details and information with respect to the applicant's claims raised concerns about the credibility of those claims. Accordingly, the Tribunal did not accept those claims and the basis on which the applicant sought protection "in light of the scant information provided by the applicant" (at [38]). The Tribunal did not accept that the applicant had a profile of adverse interest to his neighbour, his neighbour's family, the Chinese authorities or anyone else in China. The Tribunal further found that the applicant had not established any legitimate basis to fear harm in China arising from the dispute with his neighbour, or for any other reason (at [39]).
9. The Tribunal was therefore not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under either the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act (at [40]-[50]).
10. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa (at [51]).

1. The application for judicial review filed by the applicant filed on 22 October 2025 contains eight grounds of review, which are reiterated in the applicant's affidavit of the same date, as follows:
   1. I was a farmer in China, and I had a property fencing dispute with my neighbour who was also farming. We always had lots of problems with each other. There was lots of problems and one day we had an argument. This became where he broke his leg. Because he said that it was my fault, then I had to pay for his medical expenses. But I could not afford these medical expenses.
   2. Because I could not pay for these expenses, the neighbour's family and his relatives all have come to me and harmed me. They have threatened me as well. They have done this many times at my home. But I am afraid of going to the police. The reason for that is because I do not want to be arrested. The neighbour has relatives who work with the police, and they could arrest me if I am in China again.
   3. The fear of being harmed and arrested if I were to return to China again is what I am afraid of. I do not want to be harmed further in China by my neighbour's relatives, or his family. I also do not want him to abuse the police powers to have me arrested so that I can pay for his medical bills.
   4. There were errors made by the Department of Home Affairs. Because the Department of Home Affairs did not engage with the claims that I had made. It is very difficult to bring out evidence from China, because there is not trail. The Department of Home Affairs did not discuss or look at the claim which I had made in the visa application. Without doing any analysis on the information and evidence that I had given, then they have not followed the law. The Migration Law, s 36(2)(a) requires the Department of Home Affairs to properly look at all the facts that I have made clear.
   5. The Department of Home Affairs also did not take into account the fact that I would not be able to receive any help from the authorities. In fact, I would even be harmed or arrested because my neighbours could use their relatives to call the police on me. Just because I was being harmed by individuals, rather than a group or a government, I still needed protection from the Chinese government or the police so that I will be safe. But that was not offered to me, and it was not available. Because the Chinese government was not able to provide me with protection against my neighbour's family, then there is persecution. The Migration Law s 5J(2) and s 5LA require that I have protection in this case, and there is the jurisdictional error that has been made.
   6. The Department of Home Affairs did not provide any evidence to show that the application, information and evidence that I had given to them was false. They also did not look at the country information to see that there are problems with individuals, or about land boundary problems. The Department of Home Affairs needs to make decisions based on evidence, not what they are thinking, under s 65 and this is another jurisdictional error.
   7. The Administrative Review Tribunal did not complete their legal task. When they did the two tests under s 36(2)(a) and s 36(2)(aa), the real chance and real risk protection tests, they did not do separate tests. They needed to assess both sides of it to understand the level of harm and risk that I would face if I was in China again. Because they relied on the same reasoning for both, they did not complete the test properly, and have made a jurisdictional error.
   8. The Administrative Review Tribunal also based their reasoning that because my explanation and evidence was not long enough, then it must not be true, but that seems to be unreasonable, and would be a jurisdictional error. The Administrative Review Tribunal should still conduct a proper analysis of the evidence and information that I had made, so that they are able to complete their legal task and duty. Because they did not conduct their own review on my application, that is where they have made a jurisdictional error.
2. The matter was initially listed for final hearing on 16 February 2026. The applicant did not appear on that occasion and the Minister sought for the application to be dismissed for non-appearance pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). The Court, however, declined to make such an order, noting that the Minister had not filed an affidavit of service to confirm that the applicant had been served with the Court Book and the Minister's written submissions or otherwise put on notice that the Minister would seek such an order if the applicant failed to appear at the hearing.
3. The matter was consequently re-listed for final hearing on 20 February 2026. On that occasion, the applicant appeared before the Court without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
4. The materials before the Court include the application for judicial review and supporting affidavit affirmed by the applicant on 22 October 2025 (the affidavit being taken as read and in evidence at the hearing on 20 February 2026), a Court Book numbering 116 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 3 February 2026.
5. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [25] 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 applicant was invited to tell the Court what he believed to be wrong with the Tribunal's decision and/or procedure.
6. 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 (SZMDS); 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 applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
2. When invited to address the Court as to what the Tribunal did wrong, the applicant stated that he had nothing to say. Following the submissions of the Minister, the applicant was again invited to make any submissions in response but indicated that he did not wish to do so. Nevertheless, the Court will consider the grounds advanced in his application.

1. As outlined above, the application for judicial review contains eight grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's grounds as broadly as possible (per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

1. By grounds one to three, the applicant sets out a narrative of the dispute which underlies his protection claims. The Minister submitted that these paragraphs are merely statements of fact or simply provide further background information to the applicant's protection claims, and therefore do not establish any jurisdictional error on the part of the Tribunal.
2. The Court accepts the Minister's submission and finds that these statements do not assert, let alone establish, any jurisdictional error. It is obvious that these are not intentional grounds but rather an example of the kind of rudimentary drafting styles often seen in this Court from self-represented applicants unfamiliar with the niceties of legal drafting. That is not a criticism. The Court well appreciates the difficulty which a self-represented applicant with limited English is faced with in preparing a formal legal document. As stated above, the Court will always endeavour to ascertain the gist of an applicant's ground where that is apparent. What is apparent here, however, is that no ground is actually pressed.
3. Accordingly, no jurisdictional error arises in relation to grounds one to three.

1. By grounds four to six, the applicant takes issue with the Department of Home Affairs and with issues which he says arise from the delegate's decision. The Minister submitted that this Court has no jurisdiction in relation to the delegate's decision and therefore cannot engage with such complaints.
2. The Court accepts the Minister's submission. This Court does not have jurisdiction to review the delegate's decision, which is a primary decision, in accordance with s 476(2) of the Act. The applicant's complaints about the Department of Home Affairs and the delegate's decision, in reality, comprise an invitation for this Court to engage in impermissible merits review, which of course it cannot do as per the well-established principle in Wu Shan Liang.
3. No jurisdictional error arises in relation to grounds four to six.

1. By ground seven, the applicant alleges that the Tribunal did not complete its legal task because it did not conduct separate tests in considering ss 36(2)(a) and 36(2)(aa) of the Act. The Minister submitted that the Tribunal did consider each of the relevant tests but relied on its findings in relation s 36(2)(a) to inform its findings as to s 36(2)(aa), which it was open to the Tribunal to do.
2. As outlined above with respect to the Tribunal's decision, the Tribunal expressly set out the applicant's claims along with the relevant criteria for the grant of a protection visa under s 36(2)(a) and (aa) of the Act. The Tribunal was not satisfied with the credibility of the applicant's claims because of internal inconsistencies in the applicant's evidence and because of a lack of detail and information in support of those claims. This was the basis upon which the Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a).
3. In considering whether the applicant instead met the complementary protection criterion in s 36(2)(aa), the Tribunal relevantly stated at [48] of its reasons:

Having found that the applicant does not face a 'real chance' of serious harm, I find for the same reasons that the applicant does not face a 'real risk' of significant harm. Having found that the applicant does not satisfy the 'real risk' of significant harm criterion, I must find that the applicant does not satisfy the complementary protection criterion in section 36(2)(aa) of the Act.

1. The Minister submitted that where the issues which arise in making factual findings in relation to the applicant's claims have already been considered with respect to the refugee criterion, it is open to the Tribunal to rely on those earlier findings when considering the complementary protection criterion (citing SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276 at [45]- [47]) (SZSYI).
2. The Court accepts the Minister's submission. The Tribunal's factual findings with respect to the applicant's claims were relevant to both the refugee criterion and the complementary protection criterion. As such, there was "no need for any separate consideration of these same factual matters in relation to the complementary protection criterion" (SZSYI at [46]).
3. No jurisdictional error arises in relation to ground seven.

1. By ground eight, the applicant asserts that the Tribunal's decision was legally unreasonable and that the Tribunal's reasoning was that "because my explanation and evidence was not long enough, then it must not be true". The applicant appears to take particular issue with the Tribunal's finding that his claims lacked sufficient detail and therefore gave rise to the Tribunal ultimately not accepting those claims.
2. The Minister submitted that it was for the applicant to provide his evidence and arguments in sufficient detail for the Tribunal to reach the requisite level of satisfaction (citing Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 at [76]). The Tribunal was not required to uncritically accept the applicant's claims (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437) and the Minister submitted that the Tribunal's findings were open to it on the limited material available to it.
3. The Court accepts the Minister's submissions. The applicant was offered opportunities to provide more information or evidentiary material, at multiple stages before both the delegate and the Tribunal, but the applicant did not avail himself of those opportunities. As submitted by the Minister, it was for the applicant to present his case in sufficient detail and to put forward any information or evidence in support of that case. It is clear from the Tribunal's reasoning at [37]-[38] that it considered all of the claims advanced by the applicant but found that it did not accept those claims "in light of the scant information provided by the applicant". In the circumstances, this was a reasonable conclusion for the Tribunal to reach. The Tribunal's findings were therefore logical and rationally open to it on the limited material before it (as per SZMDS). While the applicant may categorise the Tribunal's decision as unreasonable, his complaint unfortunately does not rise above mere disagreement with the decision under review and therefore cannot establish jurisdictional error.
4. No jurisdictional error arises in relation to ground eight.

Was the Tribunal permitted to make a decision without holding a hearing?

1. Although not explicitly pleaded by the applicant, it was submitted by counsel for the Minister (in their capacity as a model litigant) that the Tribunal was permitted under s 106(3) of the ART Act to proceed to determine the application without holding a hearing and there was accordingly no error in the Tribunal's approach.
2. The Court accepts this submission, and it is clear from the Tribunal's reasons that it understood the nature of that power and that it was appropriately satisfied of the necessary preconditions to exercising that power (at [8]-[15]).
3. Section 106(1) provides that the Tribunal "may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding" if any of the subsequent subsections apply. Relevantly in this matter, subsection (3) provides:

(3) This subsection applies if:

(a) the only parties to the proceeding are the applicant and a non‑participating party to the proceeding or the hearing of the proceeding; and

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

1. The Minister submitted that the Tribunal was correct to exercise its discretion under s 106(1) because each of the preconditions in subsection (3) were satisfied. Subsection (a) was met because the Minister was a non-participating party and the only other party to the proceeding was the applicant himself; subsection (b) was met because the applicant specifically requested for the Tribunal to make its decision without holding a hearing (see [10] of these reasons); and subsection (c) was met because the Tribunal was satisfied that the issues for determination could be adequately determined in the absence of the parties.
2. The Tribunal properly considered the requirements of s 106(3)(c) at [11]-[13] of its reasons. Firstly, the Tribunal noted that it was for the applicant to make out his own case but that the Tribunal could only proceed to determine the application in the absence of the parties if it was satisfied that the issues for determination can be identified from the documents or things lodged with the Tribunal in relation to the application. As such, the Tribunal was satisfied that the material before it, in both the Tribunal and Departmental files, was sufficient for the Tribunal to determine issues of the applicant's identity, receiving country and the nature of his claims for the purpose of making findings as to whether the applicant was a person in respect of whom Australia owed protection obligations.
3. The Court notes that the Tribunal paid due regard (at [11] of its decision) to the meaning of "adequately determined" in the context of the Tribunal's statutory requirements to:

(a) conduct its reviews in a "fair and just manner" (s 9(a) of the ART Act);

(b) give "proper consideration of the matters before the Tribunal" (s 9(b) of the ART Act); and

(c) make the "correct or preferable decision" in relation to the proceeding (ss 56(1)(a) and 63(2) of the ART Act).

1. The Court is satisfied that the Tribunal gave proper consideration to all of the factors in s 106(3)(c) before exercising its discretion to determine the application without holding a hearing. It is clear that the Tribunal understood the nature of its task and exercised that discretion appropriately.
2. For completeness, the Minister submitted that the issue of the Tribunal's power under s 106(3) in this matter is distinguishable from the error identified by Judge Johns in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227.
3. The Court observes that the approach taken by Judge Johns was endorsed by the Full Federal Court in Minister for Immigration and Citizenship v LLR24 [2026] FCAFC 26 (LLR24). Following LLR24, it is clear that the requirement to put an applicant on notice of any new issues arising in the review is not removed when an applicant advises that they wish their matter to be determined without a hearing (LLR24 at [52]). As explained by the Full Court:

There is a substantive unfairness to the review applicant if they are not informed of any new dispositive issue: their request that there not be a hearing will have been made on the basis of the issues known to the review applicant at the time of making the request. If the Tribunal identifies a new issue, then the review applicant may wish to provide further information (see [primary judgment] [74]-[77]). As explained below, the terms of ss 55 and 106 (interpreted in the light of SZBEL) require that the review applicant be given this opportunity.

1. The Minister submitted that this matter was distinguishable from the circumstances of LLR24 because the Tribunal's findings and reasons in this case did not turn on a dispositive issue different to that which was before the delegate, namely, whether the Tribunal was satisfied as to the credibility of the applicant's claims given the lack of detail and absence of substantiation.
2. The Court accepts this submission. In this sense, the Court has had regard to the following guidance in LLR24 (at [60]):

This is not to say that the Tribunal must always invite a review applicant to attend a hearing, or that the Tribunal is prevented from deciding a matter if the review applicant declines to attend a hearing, having been notified of the new issue. Whether the review applicant has had a "reasonable opportunity" to present their case within s 55, and whether a matter can be "adequately determined" without a hearing under s 106(3)(c), will depend on all the facts and circumstances of the matter. However, when the Tribunal identifies a new issue on the review (here, whether LLR24 is actually a Shi'a Muslim), it is necessary for the Tribunal at least to notify the review applicant of this new issue, and invite them to respond. The form of the response, and whether a hearing is required to afford procedural fairness, will depend on all the circumstances.

1. Unlike in LLR24, there was no new issue identified, or resolved differently, by the Tribunal in this matter. Consequently, the applicant had a reasonable opportunity to present their case and there was nothing to suggest to the Tribunal that the matter could not be adequately determined in his absence.
2. The Court is otherwise satisfied that no error arises from the Tribunal's approach to proceed to a decision without holding a hearing pursuant to s 106(3) of the ART Act.
3. The Court also asked counsel for the Minister at the hearing if there were any other matters which, as model litigant, her client wished to draw to the Court's attention. There were none.
4. It is also not evident to the Court that any other potential error arises in respect of the Tribunal decision. The Court is satisfied that, even adopting the broad approach referred to at [33] of these reasons, no jurisdictional error is apparent.

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

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.