AFZ23 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 823

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AFZ23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 823

File number(s):

ADG 36 of 2023

Judgment of:

JUDGE EGAN

Date of judgment:

4 June 2025

Catchwords:

MIGRATION LAW – whether the Tribunal had taken into account irrelevant considerations when arriving at its decision – whether the Tribunal had properly failed to identify and consider a relevant claim – no jurisdictional error established – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s. 5H(1), s. 5J(1), s. 36(2)(a), s. 36(2)(aa), s. 477(2)

Cases cited:

DWH17 v Minister for Home Affairs [2019] FCA 985

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604

Division:

Division 2 General Federal Law

Number of paragraphs:

24

Date of hearing:

7 April 2025

Place:

Brisbane

Solicitor for the Applicant:

Mr S. Beer, Dentons

Solicitor for the Respondents:

Ms C. White, Sparke Helmore

ORDERS

ADG 36 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AFZ23

First Applicant

AGA23
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	4 JUNE 2025

IT IS ORDERED THAT:

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

2.The Amended Application for Review filed on 13 March 2025 be dismissed.

3.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $6,500.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

Introduction

1. The applicants are citizens of Fiji. The male first applicant arrived in Australia on 26 September 2017 as the holder of a Tourist (Subclass 600) Visa. The first applicant applied for a Protection Visa on 6 October 2017.

2. The female second applicant also arrived in Australia on 31 January 2018 as the holder of a Tourist Visa (Subclass 600). Though the second applicant lodged a separate Protection Visa application on 9 March 2018, she relied upon the first applicant’s Protection claims as his wife.

3. On 11 March 2019, a delegate of the Minister refused to grant the Protection Visa applications. The delegate was not satisfied that the first applicant was a refugee under s. 5H(1) of the Migration Act 1958 (Cth) (the Act), or that he was either owed protection obligations pursuant to the provisions of s. 36(2)(a) of the Act, or complimentary protection obligations under s. 36(2)(aa) of the Act.

4. The applicants sought review by the then Administrative Appeals Tribunal (the Tribunal) of the decision of the delegate.

5. At [12] of its reasons, the Tribunal set out the responses of the first applicant to questions asked of him when filling out his visa protection application. Those responses were as follows:

   Why did you leave your country?

   I can recall that Saturday afternoon on December 2nd, 2006, where l was taken by the police and military officers where allege for me a case. I’ve been threatened by gunpoint in front of my wife and children at our residential home in Kalekana settlement. I was mentally disturbed with our children when I see the military and police vehicle on patrol.

   What do you think would happen if you return to your country?

   As I said our life was in danger both myself and my children are in mental disturb when we see the police and military at our area

   Did you experience harm in that country?

   On that Saturday afternoon at 2pm I was taken by military officers and police on their joint operation, where I was ordered to do some military exercise for almost an hour.

   Did you seek help within that country?

   No Because all government authorities at that time was controlled by the military and the police.

   Did you try to move?

   After that incident I was moved to our village where we stayed there for almost 5 months.

   Do you think you will be harmed or mistreated if you return to that country?

   Because they have people who they know and also the current regime is not yet settled.

   Do you think the authorities of that country can protect you if you go back?

   Because the majority if the high positions on government was taken by military officers.

   Do you think you can relocate in that country?

   Fiji is a small country and its hard to hide from the authority and they been employed their informers around Fiji.

6. On 3 November 2022, the Tribunal affirmed the decision of the delegate.

7. On 24 February 2023, the applicants filed an Originating Application for Review of the decision of the Tribunal. Such Originating Application was filed some 78 days out of time. The applicants accordingly sought an extension of time for the commencement of the proceeding pursuant to the provisions s. 477(2) of the Act.

8. At the hearing of the application before the Court, the applicants relied upon an Amended Application for Review filed on 13 March 2025.

   Grounds of Review         

9. The Grounds of Review were as follows:

   a)Ground One: The AAT took into account an irrelevant consideration at [36] of the AAT Decision namely that after the First Applicant left Fiji there were no “repercussions or incidents”.

   b)Ground Two: The AAT took into account an irrelevant consideration at [37] of the AAT Decision that “many respect the military and there are no day-to-day issues with the military or police for most citizens of Fiji”.

   c)Ground Three: The AAT failed to apply the correct test for “political opinion” as a basis for persecution under s 5J(1)(a) and (b) and as such, misapplied the law and did not take into account a relevant consideration namely implied or imputed political affiliation.

10. As to the extension of time application, in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [11] – [16], Kiefel CJ, Gageler, Keane and Gleeson JJ held as follows:

    [11]At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced"[7]. However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).

    [12] On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice"[8]. Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act^[9]. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice[10]. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

    [13] In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977(Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[11]. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted"[12].

    [14] Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[13]. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction"[14]. The Court added that "the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power"[15].

    [15] The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection concerning s 477(2)[16],endorsed on appeal by a different Full Court[17]. In MZABP,Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review[18]. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'"[19]. Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)"^[20].

    [16] Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice"[21]. Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination"[22]. Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs,made in relation to s 11 of the Administrative Decisions (Judicial Review) Act,that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it"[23].

11. The application for extension of time and the hearing of the substantive application by way of review were both heard together. That necessarily involved a consideration of the merits of the substantive application for review.

12. Grounds 1 and 2 of the application for review respectively concerned [36] and [37] of the reasons of the Tribunal. Relevantly, [36] – [39] of the reasons of the Tribunal were as follows:

    36. However, I have considered that the applicant lived in Fiji from 2006-2017, was able to work and care for his family and apart from the two incidences nothing else happened to him for the remainder of his time in Fiji. He departed Fiji in 2017 and left his children behind and there has been no repercussions or incidents since he left.

    37. The applicant does not have a political profile that would cause him issues upon return to Fiji. Country information suggests that while some people are sceptical about the military given the coup in 2006 many respect the military and there are no day-to-day issues with the military or police for most citizens of Fiji.

    38. For these reasons, while I accept his claims about past events, it was a long time ago, and the applicant continued to live in Fiji unencumbered for many years. I do not accept that if the applicant returns to Fiji, he faces a real chance of persecution from the military or the police or anyone associated with them. I find that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).

    39. Nor do I accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Fiji, there is a real risk that the applicant will suffer significant harm from the Military, the police or their associates. I am therefore not satisfied that the applicant meets the alternative provisions in s. 36(2).

13. Whether or not the Tribunal took into account an irrelevant consideration depended upon a consideration of the factual matrix before it. As has been held by Mortimer J (as Her Honour then was) in DWH17 v Minister for Home Affairs [2019] FCA 985 at [21]:

    [21]  In performing a review function of this kind, the usual principle is that the decision-maker should consider current information or material most likely to give the decision-maker an indication of what the situation is likely to be in the country to which a visa applicant may be forced to return: see Minister for Immigration & Border Protection v MZYTS[2013] FCAFC 114; 230 FCR 431 at [38] and [45]. Consideration of up-to-date material is a core aspect of the review function where the task is to determine whether a person has a well-founded fear of persecution on return (in the foreseeable future) to a country, or faces a real risk of significant harm (in the foreseeable future) in that country. The task is predictive, and while each case will turn on its facts, in general terms it can be said that a decision-maker should, in order to perform her or his task, base that prediction on the most recent and reasonably available information about the situation in a particular country.

14. The Court finds that it was relevant and reasonable for the Tribunal to look at whether there had been any repercussions or incidents involving the applicants before they left Fiji, and whether there had been any repercussions or incidents involving members of the family after the first applicant and second applicant had moved to Australia. The Tribunal was entitled to look at past events for the purpose of considering whether there was a real chance that the applicants would suffer harm if they were returned to Fiji in the foreseeable future. The Court further finds, for the same reasons, that it was relevant and reasonable for the Tribunal to look at whether, in the light of the applicants not having any adverse political profile, country information before the Tribunal was suggestive of the Fiji military constituting a dangerous armed force likely to cause harm to the applicants.

15. The Tribunal duly had regard to country information going to the question as to how the Fiji military responded to those people in the community who were not supporters of the government of the day. At [30] of its reasons, the Tribunal specifically referred to a DFAT Country Information Report on Fiji dated 20 May 2022 relating to the military, and to policing throughout Fiji. That report was relevantly recorded by the Tribunal as follows:

    30.      I read the following country information to the applicant:

    Military 5.1

    The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji's recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup. 5.2 The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.

    5.3 Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’etat (see Recent history) are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.

    5.6 The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as 'professional' and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that 'victims of crime can expect fair treatment with dignity'. DFAT Country Information Report FIJI May 2022 23

    5.7 Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below) Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.

    5.8 Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti- Discrimination Commission.

    5.9 Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.

    5.10 The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.

1. There is no merit to the applicants’ claims that the Tribunal erred by making the findings it did at [36] – [37] of its reasons. It carefully considered the evidence before it and made findings which were open to it based upon such evidence. It did not err.

2. As to Ground 3 of the Application for Review, it was submitted on behalf of the applicants that the Tribunal had failed to accept, or consider, that because the first applicant acted as the driver for a Barrister of some prominence who had represented the former Fiji Prime Minister, that necessarily meant that the first applicant was a political supporter of the Prime Minister. There was no evidence to that effect. Nor would such a tenuous connection give rise to any reasonable inference that there might be any such connection, or that what connection there was would give rise to some imputed or perceived political affiliation warranting the first applicant being considered as having an adverse political profile of note. 

3. Further, it was pointed out by the Tribunal in its reasons that though the first applicant was accused of having committed a crime of sexual assault in 2006, he was nonetheless acquitted of that charge in 2009 when he had been represented by the Barrister in question. [1] At [28] of its reasons, the Tribunal found as follows:

   28. I asked him if after 2009 he had any more trouble with the police or the military and he said no but that he lived in fear. I asked him why it took him so long to leave and he said he was struggling financially. He said he knew he wanted protection when he came to Australia and his wife came four months later.

   [1] [24] and [27] of the reasons of the Tribunal.

4. The Tribunal in its reasons appropriately dealt with the question as to whether the applicant had a well-founded fear of persecution under s. 5J(1) of the Act, and whether the first applicant was a refugee under s. 5H(1) of the Act.

5. The Tribunal did not err when it found that the first applicant did not have an adverse political profile that would cause him to reasonably have a well-founded fear of persecution if returned to Fiji. It was open for the Tribunal to make such finding based upon the evidence before it. Accordingly, the Tribunal did not err when it found that the first applicant was not owed protection obligations pursuant to the provisions of s. 36(2)(a) of the Act, or that he was not owed complementary protection obligations pursuant to the provisions of s. 36(2)(aa) of the Act. Ground 3 is without merit.

6. The applicants have failed to establish jurisdictional error on the part of the Tribunal.

7. The second applicant’s Application for Review could not succeed unless the first applicant’s Application for Review was successful.

8. The Grounds of Review are without merit and are dismissed.

9. The Court will hear the parties as to costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       4 June 2025