Federal Court of Australia

SZTVK v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 1163

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the Minister’s costs fixed in the sum of $4,500.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from Orders made by the Federal Circuit and Family Court of Australia (Div 2) (FCFCoA) dismissing an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority: see SZTVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 335 (Vasta J). The Authority had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a protection visa.

Background

2    The appellant is a citizen of India. He arrived in Australia on 19 July 2009 as the holder of a student visa.

3    On 13 May 2013 the appellant lodged his first application for a protection visa and on 18 September 2013 a delegate of the Minister refused to grant that visa.

4    The appellant applied for review of the delegate’s decision and on 16 January 2014 the then Refugee Review Tribunal (RRT) affirmed the decision under review.

5    On 27 February 2015 an application for judicial review of the decision of the RRT was dismissed by the then Federal Circuit Court of Australia (now the FCFCoA): see SZTVK v Minister for Immigration and Border Protection [2015] FCCA 424 (Manousaridis J).

6    On 5 June 2015 an appeal from the Orders made by the then Federal Circuit Court was dismissed by this Court: SZTVK v Minister for Immigration and Border Protection [2015] FCA 551 (Katzmann J).

7    On 5 September 2017 the Minister intervened under s 48B of the Migration Act 1958 (Cth), because of a data breach by the Minister’s Department and allowed the appellant to make his second application for a protection visa, which the appellant did on 20 September 2017.

8    On 10 November 2017 a delegate of the Minister refused to grant the appellant a protection visa and on 15 November 2017 the matter was referred to the Authority. This was because the appellant was specified as a fast-track applicant in accordance with s 5(1)(b) of the Migration Act and Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 (Cth).

9    The Authority summarised the appellant’s claims for protection at [5] of its decision record (AD) as follows:

•    The applicant is a Sikh from the Punjab region of India. He is claiming protection on the basis that he will be persecuted for reasons of his religion, ethnicity and actual or imputed political opinion.

•    The applicant claims he will suffer serious or significant harm from members of the Bharahtiya Janata Party [sic] (BJP) who have threatened him and harmed him in the past in an attempt to have him compel his father to reinstate a complaint made against the Indian National Congress Party (INC) which was withdrawn in 1985.

•    The applicant believes he cannot seek protection from the state authorities as when he previously lodged complaints to the police they took no action. He also believes that members of the BJP party would find him anywhere in India so he cannot safely relocate.

•    The applicant claims he will suffer serious or significant harm from the Indian authorities as a result of his poetry and songs which express anti-government opinions and are about the Punjab not being part of India. The songs have been put on Youtube and he also uploaded his poetry and song lyrics to Facebook under an assumed name.

•    He believes he cannot seek protection from the state authorities as they would be the ones harming him and for the same reasons he cannot relocate.

•    The applicant claims he is at risk of harm as his personal details were released in the Department’s data breach in February 2014 and these details may be linked to the publication of his Refugee Review Tribunal (RRT) decision on the RRT’s website at about the same time. This would bring him to the adverse attention of the Indian authorities.

10    On 19 December 2017 the Authority affirmed the delegate’s decision to refuse the appellant’s application for a protection visa.

The Authority’s decision

11    The Authority accepted that the appellant’s grandfather was killed in anti-Sikh riots in Delhi, that his father was later forced to withdraw a complaint he made about Indian National Congress Party (INC) members and that the appellant’s family relocated in late 1984 to early 1985 due to fear of further violence: AD at [13]-[14].

12    The Authority also accepted that the appellant’s mother was killed in a road accident but noted the inconsistency in the appellant’s evidence in relation to the circumstances pertaining to that accident. In particular, as to how his father came to be aware that the accident was deliberately caused by Sikh men who intended to kill him: AD at [18]. The Authority was not satisfied that the accident was intentional and caused by Bharatiya Janata Party (BJP) members or Sikh men: AD at [20].

13    The Authority accepted that the appellant had a motorcycle accident and that his injuries from it led to the amputation of a toe on his left foot. However, it did not accept that the accident was a deliberate attempt by Sikh men, or members of the BJP or INC to harm or kill him: AD at [23]-[24]. This was because during his protection visa interview in October 2017, in the hearing before the RRT and in post-hearing submissions, the appellant varied his claim and the RRT found aspects of his evidence to be highly implausible: AD at [25]-[26]. Similarly, the Authority did not find the appellant’s evidence that he was threatened and injured by Sikh men on several occasions between 2005 and 2008 and the reasons for these assaults to be credible. Accordingly, the Authority was not satisfied that the appellant was threatened and harmed by Sikh men or anyone else between 2005 and 2008: AD at [27]-[28].

14    At his protection interview in October 2017 the appellant claimed that his father was threatened on 15 August 2013 by Sikh men who wanted him to attend protests in Delhi against the INC leading up to the elections. The appellant informed the delegate that he only raised these matters four years later because he had received information about the incident in a document provided by his father for the first time a few days prior to the interview with the delegate. The appellant said that his father lives in hiding, does not go out in public very much and that the Punjab police do not consistently provide all relevant documents. It was only when the appellant told his father to attend the police station and retrieve all the documents related to his complaints that he received the two documents about the incidents in November 2012 and August 2013: AD at [32].

15    The Authority placed no weight on the documents allegedly related to the complaints to the Punjab police at Banur police station made in 2012 and 2013. It considered that if the appellant’s father genuinely believed that he had been threatened by members of the BJP or INC at those times, he would have informed his son with whom he has regular contact, given he was aware that he had lodged an application for protection on the basis of being threatened and assaulted in order to pressure him to convince his father to reinstate his complaints against the INC: AD at [35].

16    The appellant also claimed that the BJP would consider him, his brother and his father to be traitors for not attempting to assist in the conviction of INC members and fears future harm as a result. The Authority found that there was no independent country information report prepared by the Department of Foreign Affairs and Trade to support that claim and was otherwise not satisfied that the appellant’s father was threatened in relation to the withdrawal or reinstatement of his complaint: AD at [37]-[39].

17    The Authority accepted that the appellant was from Punjab and is a Sikh: AD at [42]. However, it observed that the appellant made no claims for protection based solely on his Punjabi ethnicity and found that there was no information before it to indicate that the appellant’s family had ever experienced harm due to their ethnicity. The Authority was thus satisfied that there was no real chance that the appellant would suffer serious harm by reason of his Punjabi ethnicity: AD at [44]-[45].

18    The Authority observed that the appellant had not claimed and there was no evidence to suggest that: he was an advocate for a separate Sikh state or Khalistan or that he was an activist, militant supporter or sympathiser; he was a member of a Sikh non-government organisation involved in advocacy for justice for anti-Sikh violence; or that he had been involved in any demonstrations or political activities either in India or Australia. The Authority was satisfied that neither the appellant nor any member of his family had been involved in any Sikh separatist political activities or demonstrations since 1984 when the appellant’s father lodged his complaint. Accordingly, the Authority was satisfied that there was no chance that the appellant would face serious harm by reason of his Sikh religion in India or, by reason of the combination of his Sikh religion and Punjabi ethnicity if he were to be returned to India, now or in the reasonably foreseeable future: AD at [49]-[52].

19    The Authority accepted that the appellant has posted anti-government poetry and songs on social media under an alias. However, given that the posts had not been taken down, the Authority did not accept that the appellant would be unable to provide evidence of threats. The Authority considered that it was extremely remote that anyone other than the appellant’s close friends would know that the appellant went by his chosen alias: AD at [55]-[56]. In addition, the Authority noted that country information indicated that people in Punjab could freely express political views including opposing the government: AD at [61].

20    Finally, the Authority was not satisfied that the Department’s data breach of itself or together with the publication of the RRT’s decision, even if somehow linked with the appellant’s poetry and songs on the internet, would give rise to a real chance of the appellant facing serious or significant harm in India now or in the reasonably foreseeable future: AD at [70].

21    The Authority considered the appellant’s claims cumulatively and concluded that there was no real chance that the appellant would face serious harm having regard to the extensive examples of serious harm set out in s 5J(5) of the Migration Act on his return to India now or in the reasonably foreseeable future: AD at [75].

22    Thus, the Authority was not satisfied that the appellant had a genuine fear of persecution or that there was a real chance that he would face serious harm for any reason if he were to be returned to India now or in the reasonably foreseeable future. It concluded that the appellant was not a “refugee” as set out in s 5H(1) of the Migration Act: AD at [76]-[77].

23    For those reasons the Authority was not satisfied that the appellant satisfied s 36(2)(a) or s 36(2)(aa) of the Migration Act: AD at [77], [88].

The proceeding before the primary judge

24    Before the FCFCoA the appellant relied on an amended application for judicial review in which he raised two grounds of review which are recorded by the primary judge as follows: (1) that the Authority failed to act reasonably and invite the appellant to comment on new findings as the appellant requested; and (2) that IMMI 17/015 was invalid insofar as it purported to apply to the appellant: SZTVK at [56], [64].

25    In relation to the first ground, the primary judge noted that on 28 November 2017 the appellant, through his representative, requested the Authority to give him an opportunity to comment in an interview or in writing on new information if the Authority was to make findings that were different from those of the delegate. The Authority declined to interview the appellant. His Honour also referred to the appellant’s contention that the Authority did make new findings in relation to the effect of the data breach: SZTVK at [57]-[58].

26    The primary judge found that the Authority’s finding (at AD [70]) that the data breach and publication of the Tribunal decision (even if somehow linked to the publication of the appellant’s poetry and songs on the internet) did not give rise to a real chance of serious harm and was not a new finding. This was because the delegate had reached the same conclusion in its decision: SZTVK at [59]-[60].

27    The primary judge also considered the appellant’s contention that the Authority had made an error at AD [68] where it said that “at the time the data breach occurred, the [appellant] had not applied for protection”. His Honour found that there was no error as alleged and that, although the Authority’s reasoning was inelegantly worded, properly understood, it found that the information in the data breach would not have included details relating to any of the appellant’s claims for protection. His Honour considered that this was correct and that the decision not to invite the appellant to provide new information was within the Authority’s discretion: SZTVK at [61]-[62].

28    In relation to the second ground, the primary judge noted that the arguments advanced by the appellant in relation to the validity of IMMI 17/015 had been considered and rejected in SZTVU v Minister for Home Affairs (2009) 268 FCR 497; [2019] FCAFC 30 at [64] (Perry, Derrington and Wheelahan JJ) since the filing by the appellant of his application for judicial review.

29    The primary judge was otherwise satisfied, having regard to the totality of the appellant’s submissions and the Authority’s decision, that there was no jurisdictional error in the Authority’s decision. His Honour dismissed the application with costs.

The appeal

30    The appellant raises three grounds of appeal in his notice of appeal filed on 3 May 2023 (as written):

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

31    The appellant is self-represented. He did not file any submissions in support of his grounds of appeal in accordance with the Court’s Orders. He appeared at the hearing with the assistance of an interpreter and made oral submissions, after hearing the Minister’s oral submissions. Those submissions did not address the grounds of appeal. Rather, the appellant submitted: first, that he had a lawyer who had retired and was now self-represented; secondly, his whole case was about the data breach and in particular, raised concerns that the Minister’s Department had admitted its mistake and offered him compensation in relation to that breach but later asserted there was no mistake; thirdly, the primary judge made a mistake; and lastly, he has been in Australia for 18 years and has no family or friends in India.

32    It is appropriate to address these oral submissions first. To the extent the appellant refers to the data breach, it is because of that breach that the Minister intervened under s 48B of the Migration Act and permitted the appellant to make his second application for a protection visa. That the appellant may have been involved in other interactions with the Minister in relation to that breach is not relevant here. The Authority considered the effect of the data breach on the appellant’s claims in its reasons. The balance of the appellant’s oral submissions do not otherwise allege any error in the reasons of the primary judge or the Authority.

33    I turn to the grounds in the notice of appeal. Insofar as they allege errors on the part of the Authority that were not raised before the primary judge, the appellant requires the Court’s leave to rely upon them. As Goodman J relevantly observed in CVD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 747 at [11]:

… The exercise of the Court’s discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As the Full Court (Katzmann, Banks-Smith and Rofe JJ) explained in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34] to [37], the predominant consideration is the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] per Kiefel, Weinberg and Stone JJ, and Francuziak at 335 [11]. In considering the interests of justice, the merits of the proposed new grounds are an important consideration: Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ).

34    Having regard to those guiding principles, I turn to consider each of the proposed grounds.

Ground 1

35    By proposed ground 1 the appellant contends that the primary judge “erred in dismissing an application for judicial review without giving consideration of fact presented at the AAT hearing”.

36    While it is somewhat unclear, ground 1 is best understood as an allegation that the Authority failed to consider the evidence he had given at his RRT (rather than the Administrative Appeals Tribunal (AAT)) hearing. This is a new ground. There was no complaint before the primary judge about how the Authority considered the material before the RRT.

37    In my view proposed ground 1 is unsubstantiated. That is because the appellant’s evidence before the RRT, as recorded in the Tribunal’s reasons, was before both the delegate and the Authority, and the Authority expressly noted that it had regard to the material given to it by the Secretary under s 473CB of the Migration Act which included the RRT decision: at AD [2]. That is apparent when one considers the aspects of the appellant’s evidence and submissions given to the RRT as recorded in the Authority’s decision. For example, the Authority:

(1)    noted what the appellant said to the RRT about the road accident involving his mother and father (AD at [18]);

(2)    recorded the appellant’s submission to the RRT and the RRT’s findings about whether the Sikh men were aware of his father’s whereabouts (AD at [26]);

(3)    referred to the questions posed by the RRT to the appellant about why his father had never been approached or threatened between 1999 and 2012 (AD at [30]); and

(4)    noted the appellant’s submissions to the RRT about his Facebook page (AD at [53], [55]).

38    I would not grant leave to the appellant to raise ground 1 for the first time on appeal.

Ground 2

39    By ground 2 the appellant alleges that the primary judge erred by not properly applying s 36 of the Migration Act. No particulars are provided.

40    As the Minister submits, if the appellant’s complaint is that the primary judge failed to consider his claims for protection under s 36 of the Migration Act, the ground is misconceived. The primary judge did not have jurisdiction to grant the appellant a visa or to consider whether he meets the criteria for a protection visa. The same is true for this Court: BXA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1513 at [26] (Perry J). Accordingly, I accept the Minister’s submission.

41    Alternatively, if the ground is directed to the Authority’s decision, it is, in the absence of further and better particulars, a bare assertion. In NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], a Full Court of this Court (Perram, Derrington and Stewart JJ) relevantly said:

This ground was an unparticularised assertion of error in the decision of the AAT. Due to the vagueness of the application for review and the applicant’s failure to file submissions, the Court is unable to ascertain what error was alleged to have been made by the AAT. The applicant was unable to articulate this ground any further during the course of the hearing. The failure to particularise a ground of review is itself a sufficient basis to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 [21]. …

42    The same can be said here. That is, ground 2 is an unparticularised assertion of error on the part of the Authority and I am unable to ascertain what error the appellant alleges the Authority made vis-a-vis its application of s 36 of the Migration Act. No further assistance or elucidation was given by the appellant in his oral submissions.

43    For those reasons, ground 2 cannot succeed.

Ground 3

44    By ground 3 the appellant contends that the AAT erred by not applying s 65 of the Migration Act. The appellant has a long immigration history, having been before both the RRT and the Authority, in relation to two different protection visa applications. However, I accept the Minister’s submission that, having regard to his affidavit filed at the time of the filing of the notice of appeal, the appellant’s reference to the “AAT” in ground 3 is to the RRT. The appellant refers to the AAT at several points in that affidavit.

45    The RRT’s decision was not the subject of judicial review before the primary judge. His Honour considered whether there was any jurisdictional error in the Authority’s decision. The task that I am faced with on an appeal by way of rehearing from the Orders made by the FCFCoA (and the reasons of the primary judge) is the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833 at [22] (Drummond, Mansfield and Allsop JJ). Questions about the hearing before the RRT are outside that task.

46    In any event, the RRT’s decision has been the subject of an unsuccessful application for judicial review before the Federal Circuit Court and an unsuccessful appeal from the Orders dismissing that application (see [5]-[6] above). Accordingly, as the Minister submits, any review of the RRT decision would face the hurdle of Anshun estoppel and abuse of process: Kong v Minister for Immigration and Citizenship [2011] FCA 1345 at [35]-[40] (Flick J). The appellant does not explain how these hurdles could be overcome in his case: Cayzer v Minister for Immigration and Border Protection [2017] FCA 1189 at [42] (Kerr J).

47    Even if that was not so, akin to my findings in relation to ground 2 above, the allegation is no more than a bare assertion unsupported by particulars. In those circumstances where I cannot discern what the alleged error is said to be, ground 3 cannot succeed.

Disposition

48    There is no merit in any of the grounds of appeal. It follows that the appeal should be dismissed.

49    As the appellant has been unsuccessful, he should pay the Minister’s costs. In his written submissions the Minister sought an order that his costs be fixed in the sum of $4,500. I note this sum is significantly less than the amount of $8,907 that could otherwise be claimed by filing a short form bill as permitted in item 15.2 of Sch 2 to the Federal Court Rules 2011 (Cth) for an appeal dismissed after hearing. The Minister submitted that the fixing of his costs would avoid the need for the parties to incur further costs, and for the Court to expend resources in undergoing a process for quantification. When invited to do so, the appellant made no submissions in response to the Minister’s application.

50    I am satisfied that the Minister’s costs should be fixed in the amount sought and I will make an order accordingly.

Associate:

Dated:    19 August 2026