ARB23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 218
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ARB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 218
File number(s): LNG 9 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 20 February 2025 Catchwords: MIGRATION – protection visa application – application for judicial review – whether Tribunal’s use and evaluation of country information unreasonable – whether delay between application to Tribunal and determination resulted in jurisdictional error in some way - whether the Tribunal improperly assessed the applicants’ “real chance” of harm – whether the Tribunal erroneously approached application of s5(J)(3) regarding modification of behaviour by the first applicant – jurisdictional error not established – application for review dismissed Legislation: Migration Act 1958 (Cth) ss 5J(3), 36, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200
Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 11 November 2024 Place: Hobart (by MS Teams) For the Applicants: The First Applicant in person Solicitor for the First Respondent: Ms Oppel, Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
LNG 9 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARB23
First Applicant
ARC23
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the Second Respondent be substituted to “Administrative Review Tribunal”.
3.The Application for Review filed 10 March 2023 is dismissed.
4.The First Respondent has liberty to apply by email to Chambers to seek a date for a costs hearing in the event that the parties cannot reach agreement as to costs.
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 TAGLIERI
On 10 March 2023, the Applicants filed an application in the Court for review of a decision of the Administrative Appeals Tribunal, now the Administrative Review Tribunal (“the Tribunal”), dated 17 February 2023. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
For the review application to succeed an applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
BACKGROUND
The Applicants are non-citizens who applied for a Protection Visa on 18 December 2015. The Second Applicant is the husband of the First Applicant, and he relies on her claims for protection. The Applicants are both Fijian and entered Australia in July 2014, at which point the First Applicant held a Student Visa.
The application for a Protection Visa was refused by a delegate of the First Respondent on 20 March 2017.
After the Applicants sought a review of the delegate’s decision, the Tribunal conducted a hearing on 19 August 2022 by telephone and further hearing on 26 October 2022 by video conference. The First Applicant appeared on behalf of the Applicants at both days of the Tribunal hearings and gave evidence on 26 October 2022. A Fijian interpreter was made available, but was not required.
On 16 February 2023, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection Visa.
The application for judicial review of the Tribunal’s decision came before me on 11 November 2024 for hearing after a determination made on 7 November 2024 that the adjournment sought by the First Applicant should be refused. At the hearing, the First Applicant appeared on behalf of both Applicants, and the First Respondent was legally represented.
The Applicants and the First Respondent both relied on written submissions, filed 11 November 2024 and 1 November 2024 respectively. The First Respondent relied on the Court Book filed 29 August 2023, which I received into evidence as Exhibit R1 after confirming with the First Applicant that she had received a copy, and a list of authorities filed 11 November 2024. The First Applicant relied on two media articles, which I received in evidence as Exhibit A1.
BASIS OF TRIBUNAL DECISION
The Tribunal identified the First Applicant’s claims of risk of harm if required to return to Fiji as being that:
(a)She will be “victimised and targeted” as a legal practitioner for voicing her opinion of the Fijian government and judiciary, and this places her at risk of mental harm from public humiliation and persecution;[1]
(b)Her political opinion and activities, and her past employment as a legal officer with an organisation that has openly criticised the government will limit her ability to practice as a lawyer in Fiji as it jeopardises the renewal of her practicing certificate;[2]
(c)She was denied government employment in Fiji due to interference from the Attorney General;[3]
(d)Her involvement in social media exposes her to significant harm mentally, emotionally, and physically in Fiji;[4] and
(e)She cannot seek protection from Fijian authorities as they are selected by the government. [5]
[1] Tribunal reasons at [19] and [21].
[2] Tribunal reasons at [19] and [20].
[3] Tribunal reasons at [19].
[4] Tribunal reasons at [
[5] Tribunal reasons at [20].
The Tribunal acknowledged the documents provided by the First Applicant in support of the claims referred to at [9] of these reasons.[6] It rejected the First Applicant’s claim, made in writing to the Tribunal on 19 January 2023, that the timing of her hearing before the Tribunal was linked to the change of regime in Fiji,[7] although it noted sympathy for her concern regarding the five year delay between lodgement of her review application and the hearing of it.[8]
[6] Tribunal reasons at [13], [20], and [22].
[7] Tribunal reasons at [31].
[8] Tribunal reasons at [46].
The Tribunal considered the First Applicant to be a truthful witness overall, however it held concerns as to some aspects of her evidence and claims, which it considered were unsupported by evidence or exaggerated.[9] The Tribunal found that:
(a)The First Applicant exaggerated the impact on her of legal proceedings against the CEO of her then employer, the Citizens’ Constitutional Forum (“CCF”).[10] It found the First Applicant was not a respondent in any court proceedings following the CCF’s publication of an article that was critical of the government, nor did that article jeopardise her employment;[11]
(b)The evidence did not support a claim that the First Applicant’s former employment with the CCF had prevented or would prevent her from gaining further employment in Fiji,[12] or that the Attorney General had interfered or would interfere with her employment prospects in her chosen field;[13]
(c)The First Applicant’s activism and social media engagement on political and human rights issues was low level,[14] and the Tribunal did not accept that her profile was such as to draw adverse interest from the government or supporters of the former government;[15] and
(d)If the First Applicant gained employment in human rights law in Fiji, in view of the findings at [82] that her profile as a critic of the Fijian government is low to very low, and her participation in political activism in Australia being low level,[16] she would not in the foreseeable future become a political activist or involve herself in politics; and
(e)The First Applicant would not be at risk of serious harm due to her activities or her past employment with CCF.[17]
[9] Tribunal reasons at [44].
[10] Tribunal reasons at [51].
[11] Tribunal reasons at [51] and [79].
[12] Tribunal reasons at [57], [85] and [92].
[13] Tribunal reasons at [79] and [84]-[85].
[14] Tribunal reasons at [65]-[66].
[15] Tribunal reasons at [87], [92] and [95]-[97].
[16] Tribunal reasons at [98].
[17] Tribunal reasons at [91] and [98].
GROUNDS OF REVIEW
The application for review filed 10 March 2023 raises three grounds for review, being that:
1.The [Tribunal] misinterpreted the available country information, and in doing so acted in a legally unreasonable way.
2.The [Tribunal] failed to correctly apply the ‘real chance’ test and did not robustly assess the applicants [sic] ‘real chance’ of harm based on the materials provided to the Tribunal.
3.The [Tribunal] did not robustly apply the reasonable steps to modify behaviour test to avoid a real chance of persecution in the applicants [sic] home country.
Although the grounds of review were not particularised or readily understood, following receipt of the First Applicant’s written submissions filed 11 November 2024, these obstacles were overcome. The First Respondent did not take issue with the lack of particulars provided in the grounds of review.
APPLICANT’S CASE
The Applicants relied on their written submissions filed 11 November 2024 and, at the commencement of the hearing on 11 November 2024, the First Applicant informed that Court that she did not seek to make oral submissions. I reserved to her a right of reply once the solicitor for the First Respondent had made her submissions.
The written submissions of the Applicants were to the following effect.
Ground 1
In respect of this ground, the First Applicant submitted that because of the delay between filing the application in 2017 and the matter being heard before the Tribunal in 2023, the Tribunal considered country information which postdated the elections held in Fiji in 2022 and did not align with circumstances when she left Fiji. This was said to amount to legal unreasonableness and jurisdictional error.
The First Applicant submitted that the Tribunal had considered country information that would not have been available if the matter has been considered earlier.[18] She submitted that the delay was capable of amounting to jurisdictional error and referred to Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (“Nais”) in support of Ground 1.[19]
[18] First Applicant’s Written Submissions filed 11 November 2024 at [12].
[19] First Applicant’s Written Submissions filed 11 November 2024 at [11]-[17].
The Applicants submitted that the delay in the Tribunal deciding their review is similar to the delay in Nais and the reasoning of Gleeson CJ and Kirby J supported the conclusion that the delay of five years contributed to error and rendered the Tribunal’s decision unsafe.[20]
[20] First Applicant’s Written Submissions filed 11 November 2024 at [13]-[17].
Ground 2
The First Applicant’s submissions as to this ground largely set out the relevant law without reference to how the principles applied to her claims and the asserted jurisdictional error.[21] Her argument is founded on a submission that the delay in bringing the matter on for hearing resulted in the Tribunal not robustly applying the “real chance” test as set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
[21] First Applicant’s Written Submissions filed 11 November 2024 at [18]-[35].
It was submitted that the Tribunal’s finding that her profile was “very low”[22] was irrelevant to assessment of the whether there is a real chance that persecution will occur.[23]
[22] Tribunal reasons at [65] and [66].
[23] First Applicant’s Written Submissions filed 11 November 2024 at [18].
Ground 3
The First Applicant submitted that the Tribunal’s delay denied her procedural fairness and natural justice in that she lost the opportunity to have the application reviewed “on time”[24] and the Tribunal did not properly consider the contemporary country information on which she relied. Despite the heading given to Ground 3 in the written submissions, the submissions themselves did not appear to relate to the Tribunal’s reasoning about modification of behaviour and as the First Applicant advised me that there had been a formatting issue, I took them to refer to all grounds generally.
[24] First Applicant’s Written Submissions filed 11 November 2024 at [24].
FIRST RESPONDENT’S CASE
The solicitor for the First Respondent relied on her written submissions filed 1 November 2024 and a list of authorities filed on 11 November 2024 and made oral submissions.
Ground 1
The solicitor for the First Respondent submitted that the Applicants’ reliance on Nais for the purposes of Ground 1 was misplaced because the reasoning of that Court does not support a finding of jurisdictional error in this case.
It was emphasised that delay which grounds jurisdictional error is rare.[25] Further, that because there is no time stipulated within which the Tribunal must finalise a review, the delay must be linked to a consequence leading to jurisdictional error. In Nais, the error was identified as a denial of a fair hearing in circumstances where the delay was between 1998 and 2003, and the Tribunal then made adverse credit findings based on demeanour between hearings.
[25] Nais per Gleeson CJ at [5].
The First Respondent submitted that the reasoning in Nais does not apply as the period between the initial and final Tribunal hearings where the Applicants were given opportunity to address more recent country information was only two months. Further, the Tribunal’s decision was made only two months after the completion of the hearing.
It was submitted that the Tribunal did not make adverse credit findings based on the First Applicant’s demeanour, which was a salient element of the Court’s reasoning in Nais. Although the Applicants at [12] of their written submissions state that irrelevant information was considered because of the delay, the more recent country information had to be taken into account and the Applicants were afforded the opportunity to respond, which they did.
Accordingly, the First Respondent submits that there was no denial of procedural fairness. Alternatively, the solicitor for the First Respondent submitted that even if there was a denial of procedural fairness due to delay, this was not material. This is because the Tribunal also considered and assessed risk on the basis of the political circumstances prior to 2022 but was not satisfied that the threshold for protection was satisfied.[26]
[26] Tribunal reasons at [90] and [96].
The First Respondent also submitted that the Court ought to dismiss Ground 1 as it does not establish legal unreasonableness. It was argued that the Applicants had not specified which country information was misinterpreted or how such an alleged misinterpretation was legally unreasonable.[27]
[27] First Respondent’s Written Submissions filed 1 November 2024 at [31] and [35].
Further, the First Respondent contends that the Tribunal’s treatment of country information was demonstrated in its reasons to be reasonable and logical as follows:[28]
(a)The reasons note the country information provided by the First Applicant and the Tribunal’s reference to the content of those documents shows it engaged with them in its deliberations;
(b)The reasons show that the Tribunal considered country information from reputable sources such as the Australian Department of Foreign Affairs and used these as the basis for its conclusions about risk; and
(c)The reasons demonstrate that the updated country information sourced by the Tribunal was put to the First Applicant for comment, and the Tribunal considered her responses.
[28] First Respondent’s Written Submissions filed 1 November 2024 at [33]-[34].
Ground 2
As to Ground 2, the First Respondent submitted that the First Applicant had not established how the Tribunal failed to apply the “real chance” test or how it did not robustly assess her real chance of harm in reference to the materials provided.[29]
[29] First Respondent’s Written Submissions filed 1 November 2024 at [37].
Instead, the First Respondent submitted that the Tribunal had considered whether the First Applicant would face a real chance of serious harm upon return to Fiji in the context of her past experiences in Fiji as presented in her written and oral evidence. Further, that it was open for the Tribunal to find there had not been any government interference with her practicing certificate or job applications, and it was proper to then use those findings to assess the likelihood of serious harm.[30]
[30] First Respondent’s Written Submissions filed 1 November 2024 at [37]-[38].
Ground 3
The First Respondent submitted that Ground 3 could not succeed as the Tribunal did not assess the risk to the First Applicant based on her modifying her behaviour. Rather it found, based on its findings of fact, that she has a low profile as a human rights activist and lawyer and that no modification of her behaviour would be necessary for her to avoid risk in Fiji.[31]
[31] First Respondent’s Written Submissions filed 1 November 2024 at [41]-[42].
EVALUATION
Central to Ground 1 is the contention that the Tribunal misinterpreted country information and thereby acted in a legally unreasonable way in conducting the review. The basis for this contention appears to be that while the Tribunal ought to have relied on country information relating to the circumstances in Fiji at the time the Applicants applied for a Protection Visa, it failed to do so and thereby misinterpreted the evidence when it assessed if the statutory preconditions to grant of a Protection Visa were satisfied.
It is plain from the Tribunal’s reasons that it referred to and considered both country information relied upon by the First Applicant and more recent information proximate to the hearings, to which it referred of its own motion.[32]
[32] Tribunal reasons at [13], [20], [22], [45], [60], [73], [75] and [94].
The Applicants do not identify how the country information considered was misinterpreted or incorrectly understood. Instead, they appear to assert misrepresentation because the Tribunal considered the change in political and government circumstances between the time of their application and the hearings when reaching its determination.
It is well established that jurisdictional error grounded on legal unreasonableness, whether the unreasonableness relates to process or outcome, is not an abstract notion. Instead, it is to be assessed in the context of the statutory duties, functions and powers of the decision maker and whether there was evidence capable of underpinning the findings made.[33] If it were otherwise, jurisdictional error based on illogicality or unreasonableness descends into impermissible merit review.
[33] See, for example, ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [119]-[130; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [134]-[137]; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [33].
In my view, the Tribunal correctly identified and interpreted each source and content of country information it had before it. There is no apparent misinterpretation or error in the way the Tribunal construed it. Instead, the Tribunal placed greater weight on the more current country information when conducting the assessment of likely risk that would be suffered by the Applicants on a return to Fiji.
The Tribunal gave the Applicants notice that the more recent DFAT country information was relevant and afforded them an opportunity to make submissions about it, which they did. There was no denial of procedural fairness.
Further, I accept the submission by the First Respondent that the Tribunal also considered whether the Applicants claims would have met the statutory criteria for protection if there had not been a change in government in 2022, but it was not satisfied they would likely suffer serious harm.[34]
[34] Tribunal reasons at [90] and [96].
It was reasonably open to the Tribunal, on the basis of the country information which it gave more weight to because of its currency, for it to conclude that the statutory criteria for protection was not satisfied.
There is nothing unreasonable about either the process or outcome of the Tribunal’s decision.
I do not accept the apparent contention within Ground 1 that there was jurisdictional error based on delay leading to denial of procedural fairness or an unsafe or unjust outcome. The First Respondent’s submissions are correct, namely that the Applicants have not demonstrated how the delay either between filing of their application and the Tribunal hearing or between the conclusion of the Tribunal hearing and its decision, denied them procedural fairness or caused the process or outcome of the Tribunal decision to be unreasonable, illogical or unsafe.
That is because the enquiry the Tribunal was required to make pursuant to s 36 of the Act, is a wholistic and forward-looking assessment of the chance and nature of risk of harm upon return to Fiji in the reasonably foreseeable future.[35] Accordingly, the Tribunal was obliged to consider the more recent country information available to it. Had it confined itself to the past country information this would have involved jurisdictional error.
[35] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [33].
In any event, the Tribunal conducted its assessment on an alternate basis and was still not satisfied that the statutory criteria for protection were met, as is apparent from [90] and [96] of its reasons.
While I have a degree of sympathy for the Applicants, the Tribunal’s approach was according to law and did not involve jurisdictional error. Ground 1 fails.
Ground 2
The Applicants’ submissions about Ground 2 assert that the Tribunal did not correctly apply the “real chance” test,[36] but little detail is given about why that is said to be the case. In particular:
(a)The Applicants do not identify what part of the Tribunal’s reasons show either misunderstanding of or incorrect application of the “real chance” test; and
(b)The First Applicant’s submissions at [19] to [35] identify relevant legal principles applicable to the issue of whether a person is likely to suffer persecution, but do not state how the Tribunal failed to apply or misapplied the principles, except to place reliance on general delay.
[36] Citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Border Protection v WZAPN [2015] HCA 22.
I accept the submissions by the First Respondent that the First Applicant’s contentions overall are an attempt to reargue the merits of her claims for protection and do not demonstrate jurisdictional error.
The Tribunal’s reasons demonstrate that it engaged in active consideration of the evidence given by the First Applicant about her past, present and future intended political activities, including working in the area of human rights as a lawyer, but factually rejected that she faced a real chance of risk of serious harm in Fiji.[37]
[37] See, for example, the Tribunal reasons at [65]-[66], [69], [74]-[75], [87] and [81].
Regarding Ground 2, I do not accept that the Tribunal approached the application of the “real chance” test based on an assumption that the First Applicant would or should modify her behaviours and political activism or advocacy.[38] This is self-evident from [92] and [98] of the Tribunal’s reasons which preferred the more recent country information, something it was entitled and required to do.
[38] As submitted by the Applicants at [31] and ground 3.
Ground 2 fails for the reasons given at [46] to [50] of these reasons.
Ground 3
Based on its heading, this ground appears to relate to error on the part of the Tribunal in its application of s5J(3) of the Act.[39] Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour to avoid a real chance of persecution in a receiving country, and the modification does not require the person to alter his or her political beliefs or conceal their true political beliefs. The very brief oral submissions in reply by the First Applicant were consistent with this.
[39] Noting that the heading to the ground is ‘The Tribunal’s decision, was not robust in applying modification of behaviour’
At [24] and [29] (second occurring) on page13 of the written submissions, the Applicants seem to raise a failure to consider relevant evidence or risk.
The Tribunal’s reasons demonstrate that it proceeded to assess the risk of harm on return to Fiji on the basis that the First Applicant would not modify or change her political beliefs and would continue to advocate as a lawyer in human rights. Accordingly, it is self-evident that the Tribunal did consider the First Applicant’s claim based on harm attaching to her continuing to advocate for human rights upon return to Fiji.
There is also no basis for accepting the submissions by the Applicants about risk modification. The submissions simply represent a challenge to the Tribunal’s fact finding and assessment about the nature and extent of risk. They do not demonstrate jurisdictional error.
During the hearing before the Court, the First Applicant said in oral submissions that there was a numbering/formatting issue on page 5 of her written submissions.[40] Some of the submissions are more relevant to Grounds 1 or 2 given the submissions she made about Nais. They are dealt with at [33] to [45] of these reasons and are therefore rejected.
[40] First Applicant’s Written Submissions filed 11 November 2024 at [22] to [24] (second occurring).
CONCLUSION
I am not persuaded that the Tribunal fell into jurisdictional error in any of the ways asserted in grounds 1 to 3 inclusive. The application for review is dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate: T Sherwood
Dated: 20 February 2025
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