DGC24 v Minister for Immigration - Visa Cancellation Appeal Dismissed

Original Word Document (92.2 KB) Federal Court of Australia

DGC24 v Minister for Immigration and Multicultural Affairs [2026] FCA 406

| Appeal from: | DGC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1196 |
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| File number: | WAD 377 of 2024 |
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| Judgment of: | VANDONGEN J |
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| Date of judgment: | 9 April 2026 |
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| Catchwords: | MIGRATION - appeal from decision of primary judge affirming decision of Administrative Appeals Tribunal to affirm decision to cancel appellant's visa - leave refused to rely on grounds not raised before primary judge - no error found - appeal dismissed |
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| Legislation: | Migration Act 1958 (Cth) ss 5H, 5J, 36, 116, 423A, 424A |
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| Cases cited: | CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76

King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Pallas v Minister for Home Affairs [2019] FCAFC 149

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 |
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| Division: | General Division |
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| Registry: | Western Australia |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 74 |
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| Date of hearing: | 1 December 2025 |
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| Counsel for the Appellant: | The appellant appeared in person |
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| Counsel for the First Respondent: | Mr T Lettenmaier |
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| Solicitor for the First Respondent: | Sparke Helmore Lawyers |
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| Counsel for the Second Respondent: | The second respondent filed a submitting notice save as to costs |
ORDERS

| | | WAD 377 of 2024 |
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| BETWEEN: | DGC24

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | VANDONGEN J |
| DATE OF ORDER: | 9 April 2026 |
THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent's costs of the appeal.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1 The appellant is a citizen of India who entered Australia on 24 September 2015 as a dependent visa holder. On 29 June 2018, the appellant was granted a Subclass 485 visa on account of being in his wife's family unit, with his wife remaining the primary visa holder. That visa was granted for a period of two years.

2 In July 2021 the appellant was convicted of serious domestic violence-related offences that were committed against his wife and their child, and he was subsequently sentenced in the District Court of Western Australia (District Court) to 12 months' imprisonment. In March 2022, a delegate of the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), notified the appellant of the cancellation of his visa pursuant to s 116 of the Migration Act 1958 (Cth). The appellant then sought a review of the delegate's decision in the Administrative Appeals Tribunal (AAT). However, in August 2022 the AAT affirmed the delegate's decision to cancel the appellant's visa.

3 The appellant then applied for a protection visa. However, that application was refused in July 2023 by a delegate of the Minister (Delegate). The Delegate's decision was then affirmed by the AAT.

4 The appellant then made an application to the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the AAT's decision. The appellant relied on three grounds of review. However, the primary judge concluded that none of those grounds had merit and dismissed the appellant's application.

5 The appellant now appeals against the primary judge's decision, relying on several grounds of appeal. An order was made by a registrar of this Court that required the appellant to file and serve a written outline of submissions no later than 10 business days before the hearing of the appeal. However, no submissions were filed. The appellant is unrepresented and required the assistance of an interpreter to make oral submissions at the hearing of his appeal.

6 In October 2025, the appellant made a request that he be voluntarily removed from Australia, and he signed a Request for Removal from Australia form to that effect on 5 November 2025. Nevertheless, the appellant indicated that he wished to continue with his appeal, which he confirmed at the hearing of his appeal in December 2025.

7 For the following reasons I am of the view that the grounds of appeal on which the appellant relies are without merit and that the appeal must be dismissed. Before explaining why I have reached that conclusion, I will summarise the primary judge's reasons.

The primary judge's decision

8 The primary judge commenced with a summary of the background to the appellant's application for judicial review, noting that the application was concerned with a decision made by the AAT to affirm the Delegate's decision to refuse the appellant's application for a protection visa.

9 The primary judge observed that when the appellant first applied for a protection visa, he did not submit any documents to the Department of Home Affairs (Department) in support of his application other than some identity documents. The primary judge also observed that, although the appellant was asked to provide further information to the Department, he failed to respond to the Department. The Department also did not interview the appellant in relation to his application for a protection visa. Ultimately, the Delegate refused the appellant's application, as no criterion for a protection visa under paras (a) or (aa) of s 36(2) of the Migration Act had been satisfied.

10 As the primary judge observed, the appellant then applied to the AAT for a review of the Delegate's decision. The hearing before the AAT was adjourned on several occasions, including to allow the appellant time to obtain further evidence. The primary judge noted that there was a total of four hearings held before the AAT in October, November and December of 2023, and in January 2024.

11 The appellant was assisted by an interpreter at each of the hearings that took place before the AAT.

12 Shortly before the final hearing took place in the AAT the appellant was invited, pursuant to the now-repealed s 424A of the Migration Act, to comment on or respond to information concerning his criminal record, his marriage and the fact that he had made late claims for protection. The appellant provided a response to that information at the hearing before the AAT in January 2024.

13 The primary judge recorded that the AAT decided to affirm the Delegate's decision to refuse the appellant's application for a protection visa, and that it was the AAT's decision that was the subject of the appellant's application for judicial review.

14 The primary judge then summarised the AAT's decision, noting that it was detailed and comprehensive, and that the AAT had taken considerable care to discuss all of the evidence as well as all of the appellant's claims.

15 At issue in the AAT was whether the criterion in s 36(2)(a) of the Migration Act was satisfied on the basis that the appellant was a non-citizen in respect of whom Australia has protection obligations because there was a real chance that, if he were to return to India, he would be persecuted for one or more of the five reasons set out in s 5J(1)(a) when read in conjunction with s 5H. In the alternative, the AAT had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there was a real risk that he would suffer significant harm for the purpose of s 36(2)(aa).

16 The primary judge reproduced the AAT summary of the appellant's claims as follows:

1)    The [appellant] raised the following reasons to the Department when submitting his protection application:

a)    The [appellant] left his country because his life was threatened by his in-laws and by his father.

b)    The [appellant] received threats from his in-laws because he married their daughter while being from a lower caste (Inter Caste marriage) and him being bisexual. He also fear for his father for being bisexual and seeing him parasite and blotch to society and culture.

c)    The [appellant] approached the local authorities for assistance; however, they did not help him, and instead they harassed and pressured him to divorce his wife of his reasons of being from lower caste.

d)    The [appellant] escaped to New Delhi to seek safety but the Indian police arrested, beat and tortured him. The [appellant's] friend bribed the police to secure his release while the [appellant's] wife sought refuge at her friend's house.

a)    If he returns to India, he will be harassed, tortured and killed by his wife's family and his father.

b)    The [appellant's] in-laws are well-connected, and will inflict harm on the [appellant] due to police involving.

2)    The [appellant] wishes to include new claims for his protection application, and he wants to discuss both the previous and new grounds together. The new grounds are related to his background and the journey to Australia.

a)    The person applying is a Sikh man who is also a bisexual. He was always afraid and embarrassed to tell anyone about his sexuality while he was in a detention cente r because he was concern about his safety and bullying. He only told two other detainees whom he trusted, and they supported him in bringing up this matter in front of the AAT (Administrative Appeals Tribunal).

b)    The [appellant] has made another new claim, stating that he is a strong political view and support of Khalistan which is separate country. He believes that if he returns to India, the government there will persecute him for his strong political opinion.

(errors and emphasis in original)

17 As the primary judge said, the emphasised portion of the above extract taken from the AAT's decision represented claims that were either not included in the claims made or reasons given for seeking protection in the appellant's original application for protection. Those claims were also found by the AAT not to have been given to the Department at any point prior to the Delegate's decision. In those circumstances, the AAT considered that the now-repealed s 423A of the Migration Act applied to those claims and to the claims referred to in the second paragraph of the above extract. Section 423A relevantly applied if a person in the appellant's position raised a new claim in the AAT, and provided in subs (2) that:

In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

18 The primary judge observed that the AAT had provided information and documents to the appellant, including copies of the transcript of his sentencing hearing in the District Court, his marriage certificate, wedding photographs, his own and his former wife's student visa applications, and the decision record for the appellant's visa cancellation review. At [19] to [23] of his reasons, the primary judge said:

The Tribunal indicated the information was relevant due to inconsistencies in the evidence the [appellant] had provided to the Tribunal and information in prior visa applications, previous Tribunal proceedings, and Court processes. The Tribunal stated that such inconsistencies may lead it to doubt the truthfulness of the [appellant's] evidence and claims of fear of harm due to having entered into an inter-caste marriage and being estranged from his parents on account of identifying as gay or bisexual at school. It also noted that the inconsistencies may lead the Tribunal to consider his claims lack credibility.

The Tribunal also stated it may have concerns about the credibility of claims that were raised late which may lead to them not being accepted. The claims that the [appellant] had not raised included a fear of harm on the basis of an interfaith marriage, bisexuality, links to the Khalistan movement or being Sikh in the context of consideration of the cancellation of his visa or in the context of reports prepared during his trial and sentencing for his criminal offences.

The Tribunal also noted it may not accept that the [appellant] has a well-founded fear of persecution if he returns to India or that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia due to being in an inter-caste marriage, due to being a bisexual or for any other of the reasons claimed.

The Tribunal noted that if it accepted this information, this would be the reason or part of the reason for affirming the decision under review.

Pursuant to s 424A of the [Migration Act ], the [appellant] was invited to comment or respond to the abovementioned information which it considered would be the reason or part of the reason for affirming the decision under review.

19 The primary judge then summarised the findings made by the AAT in its review of the Delegate's decision to refuse the appellant's application for a protection visa. As the primary judge noted, although the AAT found that the appellant is a citizen of India and that India was the receiving country for the purposes of the refugee and complementary protection assessments, the AAT had several concerns with the appellant's application. Those concerns were:

(a) The appellant's claims that, he was bisexual, held political beliefs associated with the Khalistan separatist movement, had poor mental health and was a Sikh, were raised late.

(b) There were inconsistencies in the appellant's evidence and the evidence of Mr Gurwinder Pal Singh, a witness who was called by the appellant and gave evidence concerning his relationship with the appellant and their personal circumstances.

(c) There had been no mention of the relationship between the appellant and Mr Pal Singh, and their interactions with the appellant's parents-in-law, in the material relating to the appellant's conviction.

(d) The appellant's account of the events that led to his conviction and his personal background was inconsistent with the account and history documented in the material relating to the appellant's conviction, including in the District Court's sentencing remarks.

(e) The evidence about the background to the appellant's marriage was inconsistent and implausible, and the appellant's account was not supported in material relating to his and his wife's student visa application or in the material relating to the appellant's conviction.

(f) None of these claims, including those associated with inter-caste marriage, were raised in earlier proceedings considering non-refoulement issues in circumstances in which it was reasonable to expect such claims would have been raised by the appellant.

(g) The appellant had failed to provide any satisfactory explanation to address or allay these concerns when they were raised by the AAT.

20 The primary judge said that, based on these concerns and considered cumulatively, the AAT did not accept the appellant's core claims. Specifically, the primary judge noted:

(a) The AAT did not accept that the appellant and his wife were in an inter-caste marriage which they had entered without the consent of their parents or that this inter-caste marriage meant the appellant was now or in the reasonably foreseeable future at risk of serious or significant harm from his family, his parents-in-law or his wife's extended family on return to India.

(b) The AAT rejected the appellant's claim that he had been arrested in New Delhi and beaten by police as a result of having entered into an inter-caste marriage or for any other reason. Further, the Tribunal did not accept he was arrested in his village due to being in an inter-caste marriage, or that he had been arrested and beaten by police as a result of being in a bisexual relationship at school or due to concerns with his sexuality at school.

(c) The AAT did not accept that the appellant was at risk from his family or from his parents-in-law because he was in a same-sex relationship, noting that there was no credible evidence that corroborated a claim that either family was aware of the relationship.

(d) The AAT did not accept that the appellant was bisexual and found that there is no real chance of harm on this basis were he to return to India. In that regard, the AAT did not accept the appellant's evidence or the evidence of a witness who claimed to have been in a same-sex relationship with the appellant.

(e) The AAT drew an adverse inference from the late raising of the appellant's claim about his support of a Khalistan separatist movement, and found that the appellant did not have a genuine subjective fear of harm in India as an actual or imputed Khalistan separatist. The AAT also found that there was no real chance of harm to the appellant on return to India on this basis now or in the reasonably foreseeable future.

(f) The AAT accepted the appellant would be identified as a Sikh in India. However, the AAT noted that the appellant did not claim to have suffered harm in India based on his Sikh religion. Further, the AAT found that the appellant was not a high-profile supporter of Sikh political movements, in particular the Khalistan separatist movement, or that he would be imputed with such a profile were he to return to India, and that he would not thereby face an elevated risk of harm now or in the reasonably foreseeable future. The AAT also noted that this claim was not raised until the proceedings before the AAT and no explanation was provided for the late raising of the claim. Accordingly, the AAT drew an adverse inference and considered the appellant did not have a genuine subjective fear of harm in India as a Sikh. Further, based on the relevant country information, the AAT considered that the appellant did not face a real chance of serious harm in India because of his Sikh faith.

(g) The AAT did accept that the appellant suffered from, or had suffered from depression, anxiety and an 'adjustment disorder'. Nevertheless, the AAT found that that the appellant would not be prejudicially denied access to mental health services in India and it did not accept that he faced a real chance of serious or significant harm for any of the reasons claimed associated with his mental health now or in the reasonably foreseeable future on return to India.

(h) The AAT did not accept that the appellant was a member of an 'otherwise backwards class', or that he would face a real chance of harm on this basis on return to India now or in the reasonably foreseeable future.

(i) The AAT was ultimately not satisfied that the appellant had a well-founded fear of persecution for any of the reasons set out in the Migration Act.

(j) The AAT also considered the application of s 36(2)(aa) to the appellant's circumstances but found that the appellant's return to India did not give rise to a necessary and foreseeable risk of significant harm. Further, the AAT noted there was no suggestion that the appellant satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfies ss 36(2)(a) or 36(2)(aa) and who holds a protection visa.

21 After summarising the AAT's decision, the primary judge identified the three grounds of review on which the appellant relied. Those grounds were in the following verbatim terms:

1.    Failure to consider evidence. The tribunal error is not accepting the appeal and claims of being khalistan supporter and facing threat from Indian government. The [appellant] provide substantial evidence to support this claim including documentation. The tribunal failure to consider the evidence

2.    Failure to consider risk of harm. The tribunal failed to properly consider the appealing claim or facing threat from their ex in laws in India due to an inter caste marriage. The appellant Provide compelling evidence of the risk they would face if I were to return to India including testimonies and real documentation. The tribunal dismissal Of this evidence has put appellant At risk of serious harm if they I'm deported back to India .

3.    Error in decision making process. The appellant is not satisfied with the decisionmaking process of the tribunal and believes that their case was not adequately considered. The tribunal decision did not sufficiently address the appellants Claims and failed to provide adequate Reasons for rejection the evidence presented.

22 The primary judge then recorded the parties' submissions before proceeding to consider the merits of the appellant's application for judicial review.

23 The primary judge noted that, by the first ground, the appellant complained that the AAT failed to consider evidence that he was a Khalistan supporter and that he therefore faced a threat from the Indian government. The primary judge observed that the appellant had made this claim in submissions before the AAT, but that it was not supported by any evidence. His Honour said that, although the AAT accepted that Sikhs that advocate for an independent Khalistan may be subjected to harassment by police and targeted by government authorities in India, it was not prepared to accept that the appellant would be at risk if he were to return to India.

24 The primary judge said that the appellant had failed to raise these claims until an initial hearing before the AAT and that the appellant had not given any satisfactory reason about why they had not been raised before that time. The primary judge said that he was satisfied that in those circumstances that it was open to the AAT to conclude that the appellant's credibility had been adversely affected in relation to these claims.

25 The primary judge ultimately concluded that, contrary to this ground of review, the AAT had not failed to consider the evidence. The primary judge found that the AAT had actually given detailed and careful consideration to the evidence and that, therefore, the first of the appellant's grounds of review had no merit.

26 In relation to the second ground of review, the primary judge said that he was satisfied that the AAT had read, identified, understood and evaluated the appellant's claim that he would face harm because of his inter-caste marriage if he were to return to India. The primary judge remarked that if anything, the ground of review merely amounted to 'vehement disagreement with the conclusions reached by the [AAT] and an invitation to the Court to engage in impermissible merits review'. On that basis, the primary judge concluded that the appellant's second ground of review also had no merit.

27 The primary judge then expressed the view that the third ground of review amounted to generalised complaints alleging error in the decision-making process, and a claim that the appellant's case had not been adequately considered. The primary judge said that the appellant also made a claim that the AAT had failed to provide adequate reasons for rejecting the evidence presented. However, his Honour observed that the appellant's complaint was concerned with the AAT's conclusions, that the AAT's reasons were more than adequate, and that the appellant had therefore failed to demonstrate that the AAT had fallen into jurisdictional error.

28 Finally, the primary judge dealt with an issue that was raised by the Minister about whether the AAT erred by taking into account the District Court's sentencing remarks. In CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 it was held that there was a reasonable apprehension of bias on the part of the Immigration Assessment Authority because the Secretary of the Department of Immigration and Border Protection gave to the Authority irrelevant and prejudicial material about pending charges and a conviction relating to the applicant in that case. The primary judge distinguished CNY17 and concluded that the AAT did not fall into error by taking the sentencing remarks into account.

29 The primary judge ultimately held that, after undertaking his own review of the record, he was unable to identify any other unarticulated jurisdictional error.

30 I will now identify the grounds of appeal upon which the appellant relies in this Court.

The grounds of appeal

31 The appellant relies on the following grounds of appeal, which I have set out verbatim as they appear in his notice of appeal:

1.    The Second respondent's decision on 29 April 2024 be quashed.

2.    The Second respondent decision was unreasonable, irrational, illogical.

3.    The respondent took into account irrelevant considerations.

4.    The respondent's decision involved an error of law.

5.    The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.

6.    The respondent failed to take into account relevant considerat i ons.

7.    The Decision was in breach of the as Australia's Non Refoulement International Obligations as it were not properly considered in making the decision.

8.    The decision was completely biased by overlooking the (Extent of Impediments if removed) by not giving the weight on consequences if repatriate the degree of physical and emotional hardship I face.

9.    The application should be remitted back to tribunal and reconsidered according to law.

10.    There was insufficient evidence or no evidence to support various findings made by the respondent.

(original emphasis)

32 The reference to the 'second respondent' in grounds 1 and 2 is a reference to the AAT.

33 In addition to those grounds of appeal, the notice of appeal includes the following 'particulars':

l) The court made a mistake by agreeing with [the AAT] and rejecting the [appellant's] claim about their bisexuality and identity as a member of the LGBTQ+ community. By not considering these important aspects, the court did not give proper attention to the [appellant's] rights and failed to treat them fairly based on their sexual orientation and identity.

2) The court made an error in agreeing with [the AAT's] decision that the [appellant] did not fear his in-laws. The [appellant] had clearly stated that he married an inter-caste woman, and despite providing evidence, all of his proof was rejected by [the AAT].

3) The court made an error by accepting [the AAT's] decision, which ignored the [appellant's] concerns about his health. The [appellant] had mentioned that his mental health was deteriorating, but both [the AAT] and the court failed to properly consider this important issue.

4) The court and [the AAT] both made an error by dismissing the [appellant's] claim of being a Khalistani supporter, which relates to his support for a separate Sikh state. The [appellant] provided all relevant evidence to support his claim and requested additional time from [the AAT] to present his case, but this request was denied. The [appellant] still has new evidence and is ready to provide it.

ALL THESE ABOVE MENTIONED FACTORS AND CRITIRIAS WERE NOT CONSIDERED WHEN MAKING UP THE DECISION. By taking in consideration all the grounds stated above and using the sole [appellant] self represented. I highly believe that these grounds are reasonable to believe that this migration litigation has reasonable prospect for success.

(original emphasis)

34 As I have already noted, the appellant did not file any written submissions in support of his appeal. Further, the appellant only made very brief oral submissions, with the assistance of an interpreter, in support of his grounds of appeal at the hearing of the appeal. Unfortunately, those submissions did not directly address any of the grounds of appeal. The appellant instead made a brief and generalised complaint that his grounds of review were not properly considered.

35 The respondent approached the grounds of appeal on the basis that the gravamen of the appeal was articulated in the particulars included in the notice of appeal. This was an understandable approach. As can be seen, the grounds of appeal themselves amount to little more than conclusionary statements that fail to reveal the true nature of the appellant's contentions that the primary judge erred in concluding that the AAT had not fallen into jurisdictional error. Grounds of appeal must identify some alleged error in the reasons of a primary decision-maker that has led to the orders made: Pallas v Minister for Home Affairs [2019] FCAFC 149 at 38.

36 I will adopt the approach taken by the respondent.

Grounds 1, 2, 4, 7 and 9

37 None of these grounds, or the very limited submissions made by the appellant in support of these grounds, identify any error in the primary judge's decision. Accordingly, they must all be dismissed.

38 To the extent that these grounds seek to raise new arguments that were not raised in the appellant's application for judicial review before the primary judge, specifically grounds 2 and 7, the appellant requires leave to rely on those grounds. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 the Full Court said at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

39 In this case, the appellant did not explain why he failed to raise the matters that are the subject of grounds 2 and 7 before the primary judge. Further, in the absence of any particulars or submissions in support of those grounds and based on my own assessment of the primary judge's reasons, neither of these grounds have merit. Leave to permit the appellant to rely on those grounds must be refused.

Grounds 3, 6, 8 and 10

40 These grounds also focus on the AAT's decision rather than on identifying errors said to have been made by the primary judge. However, as counsel confirmed at the hearing of the appeal, the respondent approached each of these grounds on the basis that the gravamen of the contentions the appellant sought to advance are set out in the 'particulars' to the notice of appeal. As the appellant did not suggest that this was the wrong approach to take, I will adopt the same course.

41 Nevertheless, the particulars misconceive the nature of the proceedings that were before the primary judge. In that regard, the particulars variously contend that the primary judge erred in agreeing with the AAT or by accepting the AAT's decision in relation to certain aspects of the appellant's claims in support of his application for a protection visa. By the fourth particular the appellant asserts that the primary judge (and the AAT) erred by dismissing his claim that he was a Khalistani supporter and a supporter of a separate Sikh state. Contrary to the underlying theme of all of the particulars on which the appellant relies, it was not the role of the primary judge to conduct a further merits review of his claims. Instead, the primary judge was required to determine whether the AAT had fallen into jurisdictional error by exceeding the limits of, or by failing to properly perform the statutory task of, carrying out a merits review of the Delegate's decision to refuse the appellant's application for a protection visa.

42 To the extent that the particulars might be read as raising contentions that the primary judge erred in failing to conclude that certain factual findings made by the AAT were affected by illogicality or irrationality, this was not a matter that was raised before the primary judge. Accordingly, the appellant would require leave to rely on the particulars in this way.

43 A decision will be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 135; see also King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at [55].

44 In relation to the first particular, the AAT found that there were important aspects of the evidence given by both the appellant and Mr Pal Singh regarding their relationship that were inconsistent with records of their personal circumstances and with records concerning the appellant's convictions, including the District Court's sentencing remarks. The AAT also had regard to evidence relating to the appellant's upbringing in India, his activities while in Australia and the fact that he had provided an unsatisfactory explanation for not having earlier raised his bisexuality.

45 The AAT ultimately concluded that both the appellant and Mr Pal Singh had not given truthful evidence about the nature of their relationship, and recorded that its:

overall concerns with the [appellant's] evidence and the credibility of [Mr Pal Singh's] evidence cause the [AAT] not to accept the [appellant's] claims of being bisexual to be credible. The Tribunal finds the applicant is not bisexual …

46 There is nothing whatsoever to suggest that this finding was not one that was open on the evidence, or that it was not possible for the AAT to make that finding logically or rationally on the available material.

47 The same conclusion must be reached in respect of the second particular. In that regard, the AAT did not accept that the appellant had been in an inter-caste marriage that was entered into without the consent of his or his wife's parents. or that he was at risk of serious or significant harm from his family, his parents-in-law or his wife's extended family on return to India on that basis. In reaching that conclusion the AAT found that the appellant's evidence with respect to his marriage was 'inconsistent and implausible' in several respects. It was well open to the AAT to come to the conclusion to which it came, and its reasons amply demonstrate the existence of a relevantly logical connection to the evidence.

48 Contrary to the contention made in the third particular, the AAT did not ignore the appellant's concerns about his mental health. In fact, the AAT accepted that the appellant suffered from, or has suffered from, depression, anxiety and 'adjustment disorder', and that his return to India may cause him anxiety and lead to depression. What the AAT found was that the appellant would not be denied access to mental health services in India because of any reason in s 5J(1)(a) of the Migration Act, but because of inadequate or less well-funded public resourcing of health care services in India. The AAT was also not satisfied that the appellant would be deterred from seeking treatment due to social stigma in India or that he would be denied the capacity to subsist in India on the basis of his mental health history. In a conclusion that was plainly open to the AAT to reach, it did not accept that the appellant faced a real chance of serious or significant harm for any of the reasons associated with his mental health on return to India.

49 In relation to the fourth and final particular, the AAT noted that the appellant claimed to be at risk of harm as a supporter of the Khalistan separatist movement. The AAT accepted country information that Sikhs who advocate for an independent Khalistan may be targeted by the authorities, harassed by police and implicated in criminal cases. Further, the AAT accepted that the appellant was a practising Sikh from Punjab. However, the AAT did not accept that the appellant had any association with groups associated with the Khalistan separatist movement in Australia, India or elsewhere, or that he held views or had engaged in any activities that would lead to him being perceived adversely by the government in India as a supporter of the Khalistan separatist movement. In reaching that conclusion, the AAT drew an adverse inference against the appellant because he had no satisfactory reason for failing to raise this claim prior to the initial hearing before the AAT. Further, the AAT noted that there was a lack of evidence to support the appellant's claims.

50 In my view, and as the primary judge said, the conclusions reached by the AAT to reject these claims were well open to it on the evidence that was before it.

51 There is no merit in any of the particulars. To the extent that they are to be treated as the appellant's grounds of appeal, each of those grounds of appeal must be dismissed.

52 To the extent that the grounds of appeal and the particulars may suggest that the primary judge erred in dismissing the articulated grounds of review that were the subject of the appellant's application for judicial review, I am of the view that no error is demonstrated.

53 In the context of the first ground of review, the primary judge was correct to conclude that the AAT did not fail to consider evidence relating to the appellant's claim that he was a Khalistan supporter and therefore faced a threat from the Indian government. As the primary judge said, the AAT gave detailed and careful consideration to the evidence which led to it rejecting the appellant's claim.

54 The primary judge was also correct to reject the appellant's contention made in his second ground of review that the AAT failed to consider his claim that his inter-caste marriage meant that he was at risk of harm from his former parents-in-law if he were to return to India. The AAT's reasons for decision make it plain that detailed consideration was given to that claim, contrary to the appellant's argument.

55 The primary judge described the final ground of review as a 'generalised complaint in the decision-making process and a claim that the [appellant's] case was not adequately considered'. The appellant also suggested that the AAT had not provided adequate reasons. Both of those contentions were appropriately rejected. As the primary judge correctly observed, the AAT's consideration of the appellant's claims was comprehensive and detailed and its reasons for decision were more than adequate. In my view, the AAT's reasons demonstrate that active and intellectual consideration was given to all of the appellant's claims. I agree with the primary judge's comment that the ground of review merely took issue with the AAT's conclusions and that the appellant did not establish that the AAT had fallen into jurisdictional error in any way.

56 Grounds 3, 6, 8 and 10, as well as the particulars, must be dismissed.

Ground 5 and particular 4

57 By ground 5 the appellant contends that the AAT failed to comply with the 'rules of natural justice' and that he was 'denied procedural fairness'. Particular 4 also suggests that the AAT failed to allow the appellant additional time to provide relevant evidence to support his claim of being a Khalistani supporter. However, both this ground of appeal and particular 4 fail to identify any error made by the primary judge.

58 Nevertheless, the appellant did submit before the primary judge that the AAT had not given him sufficient time and that as a result he did not have much of a chance. In that respect, the primary judge said that he did not accept that the appellant had not been given sufficient time to present his case. The primary judge particularly noted that the AAT gave the appellant the benefit of several adjournments to give him time to gather any evidence he wished to put before the AAT in support of his application for review of the Delegate's decision.

59 In its reasons for decision, the AAT summarised the procedural history of the appellant's application for review of the Delegate's decision. According to that summary, there were four hearings before the AAT. Those hearings took place on 18 October 2023, 29 November 2023, 15 December 2023 and 12 January 2024, respectively. At each of those hearings, the appellant was assisted by an interpreter.

60 The appellant was initially invited to appear at a hearing before the AAT on 20 September 2023. However, that hearing was adjourned to 18 October 2023 to give the appellant additional time to find a representative and obtain evidence to support his application. The appellant then sought an adjournment of that hearing date for a period of two to three months to enable him to prepare for a final hearing. However, that application was refused. Instead, the AAT conducted an 'initial hearing' on 18 October 2023, during which the AAT review process and the provision of evidence was discussed with the appellant. At that hearing, the appellant told the AAT that he was still trying to obtain evidence to support his claims.

61 It was at this hearing that the appellant first claimed that he was at risk because of his links with the Khalistan separatist movement. The AAT noted that the appellant did not appear to have raised this claim before the Delegate and indicated that it would discuss that claim at the next hearing, noting that s 423A of the Migration Act required the AAT to consider the reasons why that claim had not been raised earlier.

62 A further hearing was then listed for 23 November 2023. However, on 13 November 2023, the appellant requested a further 10 days' adjournment because he had 'been informed by someone that they [could] assist [him] but due to the shortage of time [he was] having trouble'. The AAT then rescheduled the hearing to 29 November 2023 to accommodate the appellant's request for additional time.

63 Before rescheduling the hearing, the AAT informed the appellant that it wished to take evidence from Mr Pal Singh, with whom the appellant claimed to have been in a same-sex relationship. However, the appellant advised the AAT that Mr Pal Singh would not be available to appear as he was overseas but that he would be available by telephone.

64 At the hearing on 29 November 2023, the appellant submitted several items of documentary evidence including a USB containing media files. The appellant also gave oral evidence. The hearing was then adjourned as there was insufficient time to complete Mr Pal Singh's evidence. The AAT had also been unable to review the media files on the USB. That further hearing was scheduled for 15 December 2023.

65 The appellant gave further evidence at the hearing on 15 December 2023. However, attempts to contact Mr Pal Singh were unsuccessful. Accordingly, the hearing was once again adjourned to allow Mr Pal Singh's evidence to be completed, and a further hearing was scheduled to take place on 12 January 2024.

66 On 2 January 2024 the AAT sent the appellant an invitation, pursuant to s 424A of the Migration Act, to comment or respond to information concerning his criminal record, marriage and the lateness of his claims for protection. The appellant was invited to respond either in writing by 12 January 2024 or at the next hearing on the same date. The appellant took the opportunity to respond to the information at the hearing on 12 January 2024.

67 The AAT also took evidence from Mr Pal Singh at that hearing. However, when certain matters were put to Mr Pal Singh regarding information before the AAT that raised concerns about the credibility of his evidence, he refused to answer any further questions and disconnected from the hearing. Further attempts made by the AAT to reconnect with Mr Pal Singh were unsuccessful.

68 On 8 March 2024 the appellant provided further written submissions to the AAT.

69 In my view, this summary of the procedural history taken from the AAT's reasons for decision amply demonstrates that the primary judge was correct to conclude that the AAT did not fail to afford procedural fairness to the appellant by failing to give him sufficient time to present his case. Contrary to the appellant's contention, the AAT went to great lengths to ensure that he was given every reasonable opportunity to present his case.

70 Ground 5 and particular 4 (to the extent it alleges that the appellant had been denied procedural fairness) must be dismissed.

One final issue

71 Before the primary judge, the respondent raised an issue about whether the AAT erred by taking into account the remarks made by the District Court when sentencing the appellant, having regard to what was said by the High Court in CNY17. As I have already said, the primary judge distinguished CNY17 and concluded at [61] to [62] that the AAT did not err in that respect:

As pointed out by the Minister, that case can be distinguished from the present case, as the Court is satisfied that the sentencing remarks of the Perth District Court were not relevant to the consideration of the matter in that they contain information that had apparently been put to the Court during [the] sentencing hearing that was inconsistent with the material put to the [AAT]. This material thus had direct relevance to the necessary task of the [AAT] in assessing the credibility of the applicant and thus the truthfulness of the claims he put forward in support of his claim for a protection visa[.]

The Court is not satisfied that there was any error of the CNY17 type in this case.

72 It may be noted that a literal reading of the primary judge's reasons may suggest that contrary to his conclusion that CNY17 was distinguishable, his Honour found that the sentencing remarks were not relevant to the AAT's review of the Delegate's decision to refuse to grant a protection visa to the appellant. However, when the reasons are read in context it is obvious the primary judge's reasons contain a grammatical error. In that regard, it is plain that his Honour concluded that the principles in CNY17 did not apply in the circumstances of this case because the sentencing remarks were relevant to the AAT's assessment of the appellant's credibility.

73 In my view, that conclusion is plainly correct. The sentencing remarks tended to establish that the information put to the District Court on the appellant's behalf was inconsistent with information that the appellant put to the AAT in support of his claim for a protection visa.

Conclusion

74 The appeal must be dismissed, with costs.

| I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen. |
Associate:

Dated: 9 April 2026

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