AGO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 167
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 167
File number(s): SYG 144 of 2019 Judgment of: JUDGE MCCABE Date of judgment: 18 February 2025 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal (Tribunal) decision – protection visa – whether the Tribunal erred into taking account relevant considerations – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 54, 424A, 430 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6
Collector of Customs v Pozzolanic (1993) 43 FCR 280
DLF16 v Minister for Immigration and Border Protection [2017] FCA 1072
Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152
Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 17 December 2024 Place: Sydney Solicitor for the applicants: Mr R Chaudhry, Chaudhry Legal Solicitor for the first respondent: Mr J Fyfe, Minter Ellison Lawyers Second respondent: Submitting appearance, save as to costs ORDERS
SYG 144 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGO19
First Applicant
AGP19
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $5,600.
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 MCCABE:
The applicants in these proceedings, Mr AGO19, and his spouse, Ms AGP19, are both Fijian nationals. They have been in Australia since late 2015. They both applied for a Protection (Class XA) (subclass 866) visa (protection visa) in March 2016. They claimed they feared they would be harmed if they returned to Fiji because of political opinions they held (or were assumed to hold because of their associations). They were unsuccessful before the delegate (delegate) of the first respondent (minister) and sought review in the Administrative Appeals Tribunal (Tribunal).
The Tribunal affirmed the decision not to grant the protection visas, but the applicants say the Tribunal’s decision is affected by jurisdictional error. They argue the Tribunal failed to deal appropriately with a submission they made about the impact of reforms implemented by the former Fijian government. Those reforms were said to be contained in 17 decrees issued by the government that worked to the disadvantage of indigenous Fijians. The applicants point out arguments about the 17 decrees were at the heart of their submissions to the Tribunal. They now contend the Tribunal dealt with the material they provided in a perfunctory way. The applicants argue that, at a minimum, the Tribunal failed to explain why it preferred other evidence contained in Country Information Reports prepared by the Australia Department of Foreign Affairs and Trade (DFAT) in preference to the material the applicants provided.
I am not satisfied the Tribunal failed to properly exercise its jurisdiction. The application for judicial review must fail. I explain my reasons below.
BACKGROUND
The background to these proceedings was not in dispute, and what follows is uncontroversial as between the parties. The applicants are an older couple from Fiji. They raised their family in that country. They own property there, and their children continue to reside there.
The applicants arrived in Australia on visitor visas in late 2015. They lodged their protection visa application on 28 March 2016. In their protection visa application and at the interview with the delegate, they claimed they were supporters of the Pacific Indigenous Samaritan Association (the PISAI) which was critical of the Fijian government. They also said they had supported Christian indigenous causes and a controversial indigenous Fijian figure. (That person initially represented the applicants in the application process but the applicants say they are no longer involved with that individual.)
The applicants provided the delegate with an extensive submission that is reproduced in the court book (exhibit one) at pp 150. I understand the submission was authored by their representative at the time. The submission discusses the applicants’ civic involvement and offered a perspective on the political situation in Fiji at the time. It also purported to address the criterion governing the eligibility for a protection visa under s 36(2) of the Migration Act 1958 (Cth) (Act). The submissions included (court book at pp 167) a lengthy discussion of:
The 17 repugnant decrees… promulgated by the Bainimarama coup regime since coming into power in their 2006 December coup that expressly target the abolishment of indigenous rights from native Fijian people through non-negotiable, enforced and intensive mainstreaming laws, which breach United Nations and International Conventions…
The delegate refused to grant the visas on 16 August 2016.
The applicants sought review in the Tribunal. The material filed in support of that application included a two-page document (court book at pp 289ff) summarising the so-called ‘17 decrees’. The Tribunal wrote to the applicants on 16 October 2018 to raise concerns under s 424A of the Act about the fact the answers to questions in the protection visa applications appeared to be identical to those provided by other applicants before the Tribunal. The applicants were each asked to provide a statement and they were subsequently invited to a hearing. That hearing was held on 12 December 2018.
THE TRIBUNAL’S DECISION AND REASONS
On 21 December 2018, the Tribunal informed the applicants it had decided to affirm the delegate’s decision to refuse the protection visas. The reasons for decision are reproduced in the court book at pp 344ff.
The Tribunal’s statement of reasons begins with an uncontroversial discussion of the criteria which govern eligibility for a protection visa. It then summarised (at [9]-[14]) the evidence before the delegate. The Tribunal noted at [15] the additional evidence which had been provided in the course of its review. That material was said to include (at [15(d)]):
A document titled ‘17 decrees promulgated by the Bainimarama military regime’ which asserts that these decrees remove Indigenous rights from native Fijian people and breach various international conventions.
The Tribunal also referred to DFAT’s Country Information Report in relation to Fiji. The report was dated 27 September 2017. The report discusses (amongst other things) constitutional guarantees of various human rights in Fiji. The report mentions the legislative basis for registering political parties but goes on to note “a range of decrees in place prior to the 2013 Constitution limits these rights in practice”: reproduced at [28] of the reasons for decision.
The Tribunal did not engage in a focused discussion of the 17 decrees and the submissions regarding their impact as it evaluated the claims and evidence. Counsel for the minister argued the Tribunal was nonetheless referring to that evidence and the submission when it found (at [39]):
The Tribunal accepts that the applicants may believe that the rights of Indigenous Fijians are being eroded and disagree with the government’s decision to disband the Great Council of Chiefs (GCC) in 2012 (as the delegate’s decision notes the GCC was first suspended in 2007). However, the applicants’ own evidence is that they were not politically active in Fiji and that they are not currently engaged in any political activity in Australia. The Tribunal does not accept that the applicants would be motivated to engage in any political activity in Fiji that would give rise to a real chance that they would attract the adverse attention of the Fijian military or authorities.
The Tribunal also made extensive references to the DFAT report in support of its conclusion that the applicants would be unlikely to experience any adverse treatment at the hands of the authorities notwithstanding the fact they were supporters of the parties that were in opposition at the time. The Tribunal also relied on DFAT’s conclusions that indigenous Fijians (a) were not subject to official discrimination and (b) experienced low levels of societal discrimination. The Tribunal explained why it gave credence to the DFAT report, observing (at [45]):
… as the Tribunal discussed with the applicants, DFAT’s report is based on a range of independent sources. The Tribunal considers the DFAT report to be a reliable picture of the situation on the ground in Fiji. Further, while the Tribunal accepts that the applicants believe the rights of Indigenous Fijians are being eroded by the current government, the Tribunal notes that the applicants own two properties in Fiji and have a long history of employment. The Tribunal is of the view that their primary concern is paying off the mortgage on the Nadi property so as not to impose a financial burden upon their adult children. Based on the applicants’ evidence about their circumstances and DFAT’s assessment of the situation of Indigenous Fijians the Tribunal is not satisfied that there is a real chance the applicants will suffer any serious harm or significant harm on return to Fiji for reasons of their race (Indigenous Fijian).
The Tribunal formally rejected the applicants’ claim, explaining (at [56]):
Having regard to its findings of fact about the applicants’ circumstances including their political opinions and associations, family networks in Fiji, medical conditions, property ownership, race and history of employment, the Tribunal is not satisfied that either applicant will be denied the ability to earn a livelihood or that they will suffer such significant economic hardship on return to Fiji such that their capacity to subsist will be threatened. Accordingly, the Tribunal rejects any implied claim that the applicants would experience severe economic hardship that threatens their capacity to subsist or be denied the capacity to earn a livelihood, where the denial threatens their capacity to subsist. Nor does the Tribunal accept that the applicants will be denied access to basic services, where the denial threatens their capacity to subsist. In sum, having regard to what it has accepted of the applicants’ claims and circumstances, the Tribunal is not satisfied that there is a real chance that they will be subject to any form of serious harm for any of the reasons claimed.
THE GROUNDS OF REVIEW AND THE APPLICANTS’ ARGUMENT
The applicants were represented at the hearing by their solicitor, Mr Chaudhry.
The applicants outlined two grounds of review in their application but the second was abandoned. The first ground was modified with leave. In the applicant’s written submissions lodged in advance of the hearing, that ground was articulated as follows:
The Tribunal failed to take into account relevant considerations and/or undertake a proper merits review and/or act fairly on the issue of discrimination raised by the Applicants by way of the 17 decrees and by its acts and/or omissions breached its statutory duty as it concerns merits review.
Mr Chaudhry explained the alternative criticisms suggested in the single ground of review all pointed to the same conclusion: the Tribunal’s decision was tainted by material jurisdictional error. That error arose because the Tribunal failed to take proper account of the material and the submissions relating to the 17 decrees, and because it failed to make reasonable enquiries or delve into that material. Mr Chaudhry relied on what he suggested was a perfunctory reference to the applicants’ material in the reasons for decision which did not suggest a genuine consideration of that aspect of the claim. He added that, at a minimum, the Tribunal failed to explain why it preferred the evidence in the DFAT report over the material provided by the applicants to the extent of any inconsistency.
THE LAW
Section 54(1) of the Act says the minister (and therefore the Tribunal on review) “must…have regard to all of the information in the application” when deciding whether to grant or refuse to grant a visa. That provision requires the decisionmaker to engage in an “active intellectual process directed at the information”: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [59] per Sackville J, citing Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462 per Black CJ and 495 per Kiefel J; see also NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46] per Hill J and DLF16 v Minister for Immigration and Border Protection [2017] FCA 1072 (DLF16) at [45] per Murphy J. Sackville J went on in the same paragraph in Singh to point out “[t]he extent of the required intellectual process must depend on the nature of the information and its degree of relevance”. As his Honour explained (at [57]):
It could hardly have been contemplated by the drafters that every piece of information selected for mention by an applicant, no matter how marginal its relevance to the issues to be determined, must be treated by the decision-maker as a “fundamental element” in making the determination.
Strictly speaking, s 54 of the Act applies to the decisionmaker’s reasoning, not the statement of reasons as such. (The requirements for a valid statement of reasons are set out in s 430 of the Act.) The review process in a case like this begins with a fair reading of the Tribunal’s statement of reasons which record and expose the Tribunal’s reasoning. The statement of reasons should be read as a whole, and one should not approach those reasons with an overly critical eye that is quick to discern error: see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ, quoted with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 at [30] per Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ. Whether or not the statement of reasons reflects an appropriate level of engagement by the decisionmaker is a question of fact, and the party alleging the failure has the burden of establishing it on review: Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [67] per Gummow J and at [91]-[92] per Heydon and Crennan JJ; see also DLF16 at [46].
Where the Tribunal fails to refer at all to a particular submission or evidence in its statement of reasons, it may be easier to draw the inference the Tribunal did not have regard to the submission or evidence as it deliberated: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] per Katzmann, Griffiths and Wigney JJ. But in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (at [47]) French J warned against drawing such an inference too readily:
…where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected…
Murphy J made essentially the same point in DLF16 when his Honour observed (at [48]):
The fact that a decision makes no, or only a passing, reference to a relevant consideration does not necessarily mean that the decision-maker did not consider the matter at all. The Minister may give little or no weight to a relevant matter after having considered it, and this may explain a lack of reference to the matter rather than a failure of consideration…
A statement of reasons is certainly not required to slavishly reproduce and respond to every submission or recite every piece of evidence in the same form that it was put. As McHugh J explained in Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 at [65], the Tribunal was not inevitably required:
… to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.
More recently, in Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387, Murphy J explained what was expected as follows (at [74]):
In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.
The Full Court issued a similar cautionary note about the temptations of merits review in BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6 (BIL17). In that case, the Full Court discussed the statutory task of the Tribunal in dealing with a protection visa claim which requires the decisionmaker to be satisfied of the matters referred to in s 36 of the Act. (Section 36 sets out the criteria which govern the grant of a protection visa.) Griffiths, Gleeson and Colvin JJ explained (at [57]) “…the required state of satisfaction is formed by a consideration of the claims made by reference to the material advanced to support those claims.” The Full Court also referred to the nature of the Tribunal as a review body and said (at [58]):
… Having regard to the provisions of the AAT Act, the review to be undertaken by the Tribunal must have the quality and character generally to be expected of a decision by an independent statutory tribunal the members of which are appointed due to their legal or other relevant specialist expertise. A tribunal of that character is to be expected to reach the required state of satisfaction on the basis of an independent and reasoned consideration of the claims by reference to the material relied upon.
Importantly for present purposes, Griffiths, Gleeson and Colvin JJ went on to say (at [59]):
Some cases have referred to a failure by the Tribunal to give proper, genuine and realistic consideration to the evidence advanced to support a protection claim as constituting jurisdictional error. However, a formulation of that kind is best avoided because it tends to distract from the proper inquiry and invite a descent into merits review…
After noting (at [60]) that a Court would not lightly find a decisionmaker failed to engage in the active intellectual process required (and noting a Court would expect clear evidence pointing to such a conclusion), Griffiths, Gleeson and Colvin JJ proposed (at [61]):
… the question to be asked is whether, on the available materials and a proper consideration of the reasons (that is, with an eye that is not attuned to the discovery of error) there has been a performance of the statutory task of undertaking a review, by reference to the available evidence, of the merits of the claims made by the appellants before the Tribunal.
As it happens, the Full Court in BIL17 – a case not unlike the present in which Fijian citizens seeking protection from the Bainimarama government that was in office at the time – concluded the Tribunal review did miscarry. The obvious gaps in the reasoning of the Tribunal in that case were sufficiently serious to invalidate the decision which resulted.
I should note the applicants also contend the Tribunal’s reasons in this case reflect the Tribunal’s lack of curiosity about the implications of the 17 decrees. In making this criticism, Mr Chaudhry referred to the High Court’s decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (SZIAI) which acknowledged (at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):
… a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction …
While acknowledging that possibility, the Court emphasised the Tribunal was a body of review. The joint judgment pointed out (at [25]) references to a duty to inquire (and conceptualising the Tribunal as an ‘inquisitorial body’) tended “to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error.” The joint judgment added that, in any event, further inquiries by the Tribunal in that case were unlikely to have yielded any useful information. The same observation could be made in the case before me: even on the applicants’ case, the Tribunal had all the information it required in the form of the submissions and the material concerning the 17 decrees. The substance of the applicants’ criticism is not that the Tribunal should have sought extra information or made additional inquiries; is the applicant complains instead that the Tribunal failed to engage with the material that was already provided. I do not think the submissions based on the decision in SZIAI assist the applicants in any useful way.
DID THE TRIBUNAL HAVE REGARD TO THE SUBMISSIONS AND MATERIAL AS REQUIRED?
I have already outlined the content of the reasons for decision in this case. The statement of reasons does note the evidence regarding the 17 decrees (at [15(d)] and mentions decrees again at [28]. Even so, that evidence and the related submissions are not the subject of a focused discussion. There is however a discussion of the position of indigenous Fijians, the behaviour of the Bainimarama government and human rights concerns more generally, in the passages I have already quoted at [39] and [45]. That discussion appears to encompass the concerns raised by the applicants. It is apparent from those passages the Tribunal relied heavily on the contents of the DFAT Country Information Report which surveys the political, social and economic circumstances in Fiji at the time.
I am not satisfied the Tribunal skipped over or missed the evidence and submissions in relation to the 17 decrees; it is obvious the Tribunal dealt with the issues raised in a larger context. The fact the 17 decrees were the centrepiece of the applicants’ case at the Tribunal hearing does not mean the Tribunal was required to frame its reasons on that basis.
Mr Chaudhry says the Tribunal should have explained why it preferred the evidence contained in the DFAT report to the extent that it offered a more nuanced or benign assessment of the situation in Fiji at the time.
I am satisfied the Tribunal did adequately explain why it preferred that evidence: at [45], it noted the DFAT report was reliable because it was compiled from a range of independent sources whereas the applicants’ evidence was informed by a collateral objective of wanting to stay in Australia for economic reasons. While the Tribunal might have more squarely explained why it did not favour the applicants’ evidence and submissions, the Tribunal’s reasons for preferring the evidence contained in the country report are clear enough.
CONCLUSION
In all the circumstances, I am satisfied the Tribunal carried out the statutory review in accordance with the standard referred to in BIL17 at [61]. It did its job. There is no material jurisdictional error.
The application for judicial review is dismissed.
COSTS
That leaves only the question of costs. I discussed this with the parties at the conclusion of the hearing. Each party appeared to accept costs ought to follow the event. Mr Fyfe, who appeared for the minister, asked for costs to be ordered in the fixed amount of $5,600 in the event the application for judicial review was dismissed. Mr Fyfe pointed out that amount was less than the amount indicated in the Court’s scale.
I am satisfied it is appropriate to make a costs order in favour of the minister. There is no doubt costs have been incurred in defending the proceedings, and those costs – to the extent they are not met by the unsuccessful party – will otherwise be met out of public monies. I accept a fixed costs order in the amount of $5,600 is appropriate.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 18 February 2025
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