Federal Court of Australia

BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The appeal is dismissed.

4.    The Appellant pay the First Respondent’s costs, fixed in the sum of $5,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): BSQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 508 (J). The primary judge dismissed an application for judicial review of a decision of the former Administrative Appeals Tribunal, which had affirmed a decision not to grant the Appellant a protection visa.

2    For the following reasons, the appeal must be dismissed with costs.

background

3    Arrival in Australia (Jan 2015): The Appellant is a citizen of India from the State of Gujarat (J [2]). He resided in New Zealand on a student visa after departing India on 27 May 2014, and arrived in Australia on a visitor visa on 20 January 2015.

4    Application for protection visa (Feb 2015): On 3 February 2015, the Appellant applied for a protection visa (J [3]). In this application, the Appellant stated that he had been threatened and beaten by people from whom he had borrowed money for his education (J [4]). He stated that he tried to move from Gujarat to Maharashtra but people “chased” him there (see J [5]). The Appellant’s accompanying statement referred to him joining the Akhil Bhartiya Vidhayarthi Paristad (ABVP) (which is part of the Bharitaya Janata Party (BJP)) as a junior student member, and being attacked by members of the opposing National Students Union of India (NSUI) (which is part of the Congress Party) (J [7]).

5    Delegate refuses visa (Apr 2015): On 17 April 2015, a delegate of the First Respondent (the Minister) refused the application for a protection visa, on the basis that the delegate was not satisfied that the Appellant’s claims were credible (J [9]).

6    AAT application (May 2015): On 14 May 2015, the Appellant applied to the Tribunal for merits review of the refusal decision (J [10]). The Appellant attended a Tribunal hearing on 10 March 2017, with the assistance of an interpreter (J [13]).

7    AAT affirms refusal (Mar 2017): On 17 March 2017, the Tribunal affirmed the decision not to grant the Appellant a protection visa (J [14]). The key parts of the Tribunal’s decision are as follows.

    The Tribunal considered that the Appellant had exhibited only an extremely limited understanding of the ABVP or BJP. Not only did the Appellant have difficulty in articulating an understanding of the aims or principles of these organisations, but his oral evidence as to his involvement in the ABVP was inconsistent with his written claims (Tribunal’s reasons for decision (AAT) [19]).

    The Tribunal found that the Appellant’s oral evidence was inconsistent with his written claims generally (AAT [22]). The Tribunal considered that these inconsistencies were due to the Appellant having fabricated his claims to the Department of Immigration (as it then was) and in the oral hearing (AAT [23]); see also AAT [15]).

    The Tribunal found that the Appellant’s claim that he had been attacked in New Zealand by members of the NSUI was not credible. The Tribunal found it difficult to understand why members of the NSUI would have an interest in harming the Appellant in New Zealand, given his very limited involvement in the ABVP, and considered that it was not credible that the Appellant would not report the assault to the New Zealand police (AAT [24]-[25]).

    The Tribunal did not accept any of the Appellant’s claims to fear harm, including claims to fear harm because of his criminal convictions and home detention in Australia, and claims to fear harm from persons who loaned him money for his studies. As to his other claims, the Tribunal did not accept that the Appellant had a political profile when he left India, and that he would have any political profile or any involvement in student politics on his return (AAT [26]).

    The Tribunal was not satisfied that the Appellant had a well-founded fear of persecution or that there was a real risk he would suffer significant harm on return to India (AAT [27]). On that basis, the Tribunal was not satisfied that the Appellant met the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) or the complementary protection criterion in s 36(2)(aa) (AAT [28]-[29]).

8    Application for judicial review (Apr 2017): On 21 April 2017, the Appellant applied to the FCFCOA for judicial review of the Tribunal’s decision (J [25]). That application contained the following grounds of review (without alteration):

1.     I applied for PROTECTION VISA to department of immigration which was refused.

2.     Then I apply to AAT for review of that decision. Which is affirms by tribunal.

3.     While taking the decision Tribunal only consider data collected from internet and Wikipedia which can be edited and entered by any one and that is not reliable source of evidence in the decision tribunal put name of website which is official ABVP’s website they will not put their negative details on their website which is not taken in to account by tribunal.

9    Primary judge refuses application (Jun 2022): On 27 June 2022, the primary judge dismissed the application for review. The key parts of her Honour’s reasons are as follows.

    The Appellant represented himself at the hearing with the assistance of an interpreter (J [27]). The primary judge has explained the role of the court in a judicial review application and invited the Appellant to make submissions on why the Tribunal’s decision contained jurisdictional error. The Appellant indicated that he wished to rely on the grounds in his written application, and did not have anything further to add (J [28]).

    The primary judge observed that grounds 1 and 2 (set out above) did not identify any error in the Tribunal’s decision that could constitute a ground of review (J [32]).

    The primary judge stated that ground 3 appeared to question the Tribunal’s choice of country information, and whether country information from the internet and Wikipedia is reliable (J [33]). The primary judge held that the Tribunal’s source of country information is a factual matter for it (J [34], citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]). In any event, it was clear from a fair reading of the Tribunal’s reasons that its conclusions were based on inconsistencies between the Appellant’s oral and written evidence, and were open on the basis of those inconsistencies, in addition to the country information (J [34]).

    The primary judge held that it was irrelevant whether the ABVP would put negative information about itself on its website. First, the Appellant claimed to fear harm from the NSUI, not the ABVP (J [36]). Second, the Tribunal’s adverse credibility finding followed from the Appellant’s inability to articulate the ABVP’s aims or objectives with any precision (J [37]).

10    Appeal to this Court (Jul 2022): On 8 July 2022, the Appellant filed a notice of appeal in this Court, containing the following grounds of appeal (again without alteration):

1.     The Hon. Federal Circuit Court judge erred in dismissing an application for judicial review without giving consideration of fact presented at the AAT hearing.

2.     The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly Appling provision of s .36 of the Migration Act - 1958

3.     The Administrative Appeals Tribunal (AAT) erred in its judgment by not applying cl.s65 of the Migration Act - 1958

11    The Appellant also filed an affidavit affirmed on 8 July 2022, which attached the decision of the primary judge. That affidavit describes the background to the proceedings (at [1]-[8]), and then states (at [9]):

I request Honourable Federal Court of Australia to consider my circumstance and mistake made by the Honourable Federal Circuit Court judge and Administrative Appeals Tribunal and allow my appeal to be heard and make decision in my favour.

12    The Appellant represented himself at the hearing on 7 August 2025, with the assistance of an interpreter.

consideration

13    General principles: As the Appellant is legally unrepresented, it is convenient to begin with two general principles.

14    Court is not concerned with the merits of the Tribunal’s decision: First, it is worth emphasising the relatively confined functions of courts in judicial review proceedings. The issue before the primary judge was whether the Tribunal’s decision contained a “jurisdictional error”; that is, a serious legal error that results in an administrative decision lacking any legal force (or being “invalid”): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ). In this appeal, the issue is whether the primary judge was correct to find that the Tribunal’s decision did not contain jurisdictional error: see DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing); CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [3] (the Court). Crucially, the issue before the primary judge, and before me, is not whether the Tribunal’s decision is correct on its merits.

15    Duties to unrepresented litigants: Second, the Court has duties to take appropriate steps to ensure that the Appellant, as an unrepresented litigant, has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing); Von Risefer v Blue Cube Developments Pty Ltd [2024] FCAFC 12 at [48]-[50] (the Court). However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court); Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).

16    I will therefore consider whether any argument of substance arises squarely from the materials, and will not confine my attention strictly to the Appellant’s grounds of appeal: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]-[10] (Colvin J); BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 at [35], [38] (Wheelahan J).

17    At the hearing, the Appellant stated that he had submitted documents in support (being the notice of appeal, and his affidavit) and that he had nothing to add.

18    Whether primary judge failed to consider facts presented to Tribunal (ground 1): Appeal ground 1 contends that the primary judge erred by failing to consider the facts presented to the Tribunal. In its terms, this ground must fail: as just noted, the role of the primary judge was to determine whether the Tribunal’s decision contained any jurisdictional error, not to examine for herself the merits of the factual claims made in the Tribunal.

19    For completeness, I add that there is no apparent failure by the Tribunal to consider the Appellant’s claims and relevant supporting material. To the contrary, the Tribunal’s reasons indicate that it carefully considered the Appellant’s claims, and made factual findings that were open to it on the materials before the Tribunal.

20    Whether primary judge failed to properly apply Act s 36 (ground 2): Appeal ground 2 contends that the primary judge failed to properly apply s 36 of the Act (which set out the criteria for a protection visa in s 36(2)(a) and (aa)). Again, this ground, in its terms, must fail: the role of the primary judge was not to apply s 36, but to rule on whether the Tribunal had correctly applied the Act, including s 36.

21    For completeness, I should add that there is no apparent error in how the Tribunal interpreted and applied s 36 of the Act in its reasons (particularly AAT [27]-[29]). The reasoning in AAT [27] addresses the correct statutory questions on both the refugee criterion in s 36(2)(a) and the complementary protection criterion in s 36(2)(aa). And the conclusions reached on those matters were well open to the Tribunal, given it rejected the factual basis of the Appellant’s claims.

22    Whether Tribunal failed to apply Act s 65 (ground 3): Appeal ground 3 contends that the Tribunal erred by not applying s 65 of the Act.

23    Leave required to raise this argument: This argument was not raised before the primary judge, and the Appellant therefore requires leave to raise it. The issue is whether granting leave to raise the new point is in the interests of justice, having regard to matters such as whether there is an explanation for not raising the point at first instance, whether there is prejudice to any party, and whether the new point has any merit: DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 at [23]-[24] (the Court); see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]‑[48] (the Court). This assessment of merits may be undertaken at an impressionistic level: see NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31] (the Court); AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [58] (the Court).

24    Argument is without merit: Here, appeal ground 3 is without merit, and therefore leave should be refused: VUAX at [48].

25    Section 65(1) of the Act provided that the Minister (including the Tribunal on merits review) must grant a visa if satisfied that all the criteria for the grant of a visa were met (and that the grant is not prevented by another section of the Act); and, if the decision-maker was not so satisfied, must refuse to grant the visa.

26    Here, the Tribunal referred to the fact it was reviewing a decision to refuse to grant the Appellant a protection visa under s 65 of the Act (AAT [3]). The Tribunal found that it was not “satisfied” that the Appellant met the criteria for a protection visa in s 36(2)(a) and (aa) (AAT [28]-[29]), and affirmed the decision not to grant a protection visa (AAT [31]). The Tribunal therefore addressed the correct statutory question posed by s 65(1).

27    Other arguments? Finally, given that the Appellant is legally unrepresented, it is appropriate that I consider whether any other argument of substance arises squarely from the materials: see DQQ17 at [9]-[10]. I am satisfied that the decision of the primary judge (and of the Tribunal) does not contain any self-evident error: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); BNM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1433 at [23] (Colvin J). In particular, I consider that the primary judge was correct (with respect) to reject ground 3 in the court below, for the reasons her Honour gave.

conclusion

28    For these reasons, the appeal must be dismissed.

29    Costs: The Minister seeks costs fixed in the sum of $5,000. The Court has power to award costs in a fixed sum: see Federal Court of Australia Act 1976 (Cth), s 43(3)(d); Federal Court Rules 2011 (Cth), r 40.02(b). In the case of proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if an appeal or application is discontinued before hearing (currently $5,278), and a higher amount that may be claimed if an appeal or application is dismissed after hearing (currently $8,323): see Rules r 40.43, Sch 3 items 15.1 and 15.2. The amount sought by the Minister is lower than both of these amounts, and is reasonable.

Associate:

Dated:    14 August 2025