AVG24 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 373

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVG24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 373

File number: PEG 85 of 2024

Judgment of: JUDGE KENDALL

Date of judgment: 17 March 2025

Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to apply the statutory requirements for a protection visa – whether the Tribunal’s reasoning process is unreasonable or illogical – whether the Tribunal failed to address aspects of the applicants’ evidence – whether the Tribunal was biased – no jurisdictional error – Ministerial Intervention – application dismissed.

Legislation:
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16

Migration Act 1958 (Cth), ss 5, 5J, 36, 351 & 476

Cases cited:
AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616

Craig v State of South Australia (1995) 184 CLR 163

CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688

DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Jia Legeng (2001) 178 ALR 421

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZKRT [2013] FCA 317

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Border Protection v Pandey [2014] FCA 640

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Minister for Immigration & Border Protection v Singh [2014] FCAFC 1

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Division: Division 2 General Federal Law

Number of paragraphs: 152

Date of hearing: 5 November 2024

Place: Perth

Applicants: Applicants appeared in person

Counsel for the First Respondent: Ms T Jackson

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Minter Ellison
ORDERS

PEG 85 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AVG24

First Applicant

BCZ24

Second Applicant

BDB24 (and others named in the Schedule)

Third Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

17 MARCH 2025

THE COURT ORDERS THAT:
1.The application be dismissed.

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 KENDALL:
Recent amendments to the Migration Act 1958 (Cth)

The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 8 February 2024 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
When the applicants filed their application with this Court (on 8 March 2024), the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter) substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
Applicants’ migration history
The applicants are citizens of Fiji (Court Book (“CB”) 24-29 & 117-122). The first and second applicants are husband and wife respectively (CB 24-26). The third, fourth and fifth applicants are their children (CB 27-29). The family arrived in Australia in February 2020 as the holders of Visitor (Class FA) (Subclass 600) visas (CB 384).
On 18 February 2020, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 24-84). His wife (the second applicant) and their three children (the third, fourth and fifth applicants) were included in that visa application as members of his family unit (CB 26-29). The second to fifth applicants did not make any protection of their own (CB 79-80).
The first applicant’s protection claims (as outlined in his visa application) were as follows:
(a)he left Figi because of his political opinion of the government and economic hardship;
(b)he was unable to voice his opinion for fear of losing his job or being hospitalised (CB 78);
(c)the minimum wage was $2.90 per hour and his family was unable to survive; and
(d)he could not relocate easily because Fiji is a small place which was governed by one dictator and military personnel must follow instructions or risk being Court marshalled (CB 79).
On 9 April 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 383-391). The delegate accepted that the first applicant may hold views opposed to the government and military in Fiji but was not satisfied that he had a political profile that would attract any adverse attention (CB 388). The delegate was also not satisfied that there was a real chance that the first applicant would be unable to work in Fiji or that he would be denied the opportunity to gain employment and not have the capacity to subsist (CB 389).
On 12 April 2021, the applicants lodged an application for review of the delegate’s decision with the Tribunal (CB 397-405 & CB 414).
On 21 December 2023, the Tribunal asked the first applicant to provide additional information in support of the applicants’ review application by completing a “pre-hearing information form” (CB 418).
The applicants completed and returned that form to the Tribunal (CB 419-423).
On 9 January 2024, the Tribunal invited the applicants to attend a hearing before it, scheduled to take place on 2 February 2024 (CB 437-444).
The applicants attended the Tribunal hearing (on 2 February 2024) to give evidence and present arguments (CB 478-481).
On 8 February 2024, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 489-507).
THE TRIBUNAL’S DECISION
The application before this Court was filed pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
As previously explained by this Court, it is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to reproduce substantial portions of the Tribunal’s reasons as this helps draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when the sole ground of review raised by the applicants lacks particulars and when the applicants appeared before the Court without legal representation and were generally unable to discuss any concerns they might have with the Tribunal’s decision (as was the case here).
The Tribunal’s decision in this matter is 19 pages long and spans 84 paragraphs (CB 489-507). The final three pages contain extracts of relevant legislative provisions (CB 505-507).
The Tribunal began by outlining the criterion for a protection visa – highlighting the scope and effect of the refugee criteria set out in s 36(2)(a) of the Act and s 5J(1) of the Act and the complementary protection criteria outlined in s 36(2)(aa) of the Act (and noting that all relevant legislative provisions were attached in full to its decision) (at [3]-[7]).
The Tribunal also explained that it had had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ (prepared by the Department of Home Affairs) and various country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) (as relevant to its decision) (at [8]).
The Tribunal noted that the visa application indicated that the first applicant’s wife and children had not made protection claims of their own – relying instead on their membership as part of the first applicant’s family unit (at [9]).
The Tribunal then detailed the first applicant’s claims for protection (summarised as follows) (at [10]):
•The first applicant left Fiji because of his political opinion of the government and the economic hardship that he and his family faced in Fiji.
•He was harmed emotionally and mentally because of the stress that he faced trying to find work to support his family.
•He was not able to seek help from those who he was trying to avoid. The Military ran the whole country. People did not say anything about the government to avoid drawing attention to themselves and those who did were taken to military barracks and beaten. Some people died and others found themselves in hospital.
•He could not voice his opinion about the Bainimarama government. He was fearful of putting his wife and children's lives in danger and risked losing his job.
•The minimum wage is ‘$2.90 per hour’. This is sad and needs intervention. There is no support and on social welfare, the poorest of the poor receives a ‘$50’ shopping voucher’ per family, per month.
•He fears being interrogated, assaulted, and abused. He will openly voice his opinion and freedom of expression.
•He does not want his children to be raised in a place where they live in fear. He wants them to grow up in a place where they can voice their opinion and everyone's opinion is respected.
•The authorities cannot protect the applicants because of limited resources. By protecting the first applicant means providing them with shelter and support.
•There is nowhere to relocate as the country is governed by a dictator who everyone obeys under duress.
The Tribunal then summarised the delegate’s decision noting that, while the delegate had accepted that the first applicant might have held views opposed to the then government and military in Fiji, the delegate was not satisfied that he had a political profile that would attract any adverse attention from the Fijian government or military. The delegate was also not satisfied that the first applicant was unable to work, would be denied the opportunity to seek or gain employment, and found that he had the capacity to subsist. The delegate further noted that health and mental health services were available to the first applicant on return to Fiji (at [12]).
The Tribunal explained that in response to a hearing invitation sent to the applicants, the first applicant advised the Tribunal that he would attend the hearing with his wife and sons and did not need the assistance of an interpreter (at [14]).
The Tribunal highlighted that at the hearing before it:
(a)the first applicant confirmed that he was the primary applicant, that his wife and children relied on their membership of his family unit and that they did not have claims of their own;
(b)he indicated that his wife and eldest son would be giving evidence in support of their review application;
(c)he, his wife and eldest son were fluent in English and gave evidence at the hearing; and
(d)in giving their evidence, the first applicant’s wife and son raised some claims based on their experiences in Fiji (which, the Tribunal noted, it would discuss further) (at [15]).
The Tribunal emphasised that the issue before it was whether there was a real chance that the applicants would suffer serious harm if returned to Fiji for reasons of their race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Fiji there was a real risk that the applicants would suffer significant harm (at [16]).
The Tribunal explained that, by way of background information, the first applicant and his wife gave consistent evidence about their ethnicity and religion. They confirmed that they were practising Christians, that the first applicant is a Rotuman Fijian and his wife is a part Indian Fijian (at [20]). The Tribunal also canvassed the first applicant’s relationship with his family background, living arrangements in Fiji and employment and financial history (at [20]-[26]).
The Tribunal further explained that the first applicant gave his evidence in this regard in a forthcoming manner and that the Tribunal accepted his evidence regarding his family, his education and employment in Fiji. The Tribunal also accepted that he travelled to Auckland with his wife on work visas and returned to Fiji to sell his house and organise his family’s travel to Australia at [27]).
The Tribunal then outlined the first applicant’s wife’s evidence (in relation to her education, her employment history and her relationship with her family) – all of which, the Tribunal noted, was consistent with the first applicant’s evidence (at [28]-[31]).
The Tribunal adopted a similar approach in relation to the first applicant’s eldest son – noting that it accepted that evidence (at [32]).
The Tribunal then summarised the first applicant’s evidence in relation to his protection claims.
In relation to claims about the “the economy”, the Tribunal explained that, when asked about his reasons for not wanting to return to Fiji, the first applicant responded “hardship” and made references to his wife’s family living in one small room (at [34]).
The Tribunal noted that the first applicant had confirmed to the Tribunal that he did not obtain any assistance in lodging his family’s visa application and that he had completed the application himself (at [34]).
Tribunal continued:
35.….When referred to his evidence in his protection visa application that he was stressed and trying to find work to support his family and asked to explain what he meant, the applicant said that he grew up poor, he was from a broken family, and that he did not have the support of his mother. He then referred to having lived on the streets for a while until his grandfather talked to him and that he then moved in with his father. As noted above, the applicant's employment history in Fiji indicates that he was employed in various roles, including having worked with Fiji Communications where he was promoted from a receptionist to a technician in various areas within the company. I also note the applicant’s wife’s evidence that she was working as a barrister since 2007 until their departure for work to Auckland.
The Tribunal then referenced the country information before it, highlighting that (at [36]):
(a)Fiji is one of the most developed and connected economies in the Pacific Islands region;
(b)Fiji is defined by the World Bank as an upper-middle income country;
(c)tourism dominates, representing 40 per cent of the pre-COVID economy;
(d)other key industries include agriculture and natural resources;
(e)the economy contracted significantly during the COVID-19 pandemic, shrinking 17 per cent in 2020, but it has started to recover;
(f)the World Bank’s lead economist for the Pacific estimates that GDP growth rates are expected to exceed pre-pandemic levels in 2024; and
(g)personal remittances from overseas Fijians represent a significant source of income, equalling 3.5 per cent of GDP (a 16.7 per cent increase year on year) in the first five months of 2022. In 2022, the inflation rate was 4.5 per cent (up from 0.2 per cent in 2021).
The Tribunal continued:
39.As discussed with the applicant at the hearing, in presence of his wife and children, given the applicant’s and his wife’s educational and employment history in Fiji and in Australia, and the country information regarding the economy and employment statistics in Fiji, it does not appear to me that the applicant or his wife will not be able to obtain any form of employment to support themselves and their family, or that they are at a real risk of facing financial hardship as claimed by the applicant. In response to my observation, the applicant and his wife stated that although they will be able to obtain jobs, they will not be able to earn as much as they do in Australia and that the applicant will not be able to have his own company as he has in Australia. They also referred to having built a life in Australia and that if they return, they will have to start all over again. As explained to the applicants at the hearing, the employment and economy in Fiji applies to the whole of the population. While the applicant and his wife may face some challenges in obtaining employment when they initially return, and that and resettling their family in Fiji may present them with some challenges, such issues do not support a finding that they will be faced with challenges that would amount to serious harm. Furthermore, issues such as an inability to earn as much as they do in Australia or to continue to run their business that they have established in Australia, do not engage Australia's protection obligations. The applicant and his wife agreed that they will be able to find a job and that they will not face economic hardship or that their capacity to subsist will be threatened if they returned to Fiji.
41.While the applicants’ protection visa application refers to the poorest of the poor getting very minimal assistance in Fiji, neither the applicant nor his wife referred to this at the hearing nor that they will have to rely on government or welfare assistance if returned to Fiji. Given the applicant's and his wife’s skills, employment history, and the applicant’s evidence that his job with Fiji Communications which enabled him to secure a loan and build a house for his family in 2018, I am not of the view that the applicant or his wife will be earning the minimum wage once they enter the employment market on their return to Fiji, or that they will be in a situation where they will have to rely on what the government of Fiji provides to the poorest of the poor as claimed in their protection visa application.
42.While the applicant’s wife referred to her inability to secure a scholarship to attend university and that she had to fund it herself, the applicant and his wife have not made any claims that they faced any form of discrimination based on their ethnicity or otherwise in obtaining employment or during their employment while in Fiji. Country information also indicates that the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.

On the basis of the above, the Tribunal determined that the applicants would not face discrimination in accessing the employment market due to their ethnicities or otherwise, or that the first applicant would not be able to obtain employment to support himself or his family (at [43]).
Overall, the Tribunal was not satisfied that there was a real chance that the first applicant would face serious harm, in that he would be denied the capacity to earn a livelihood of any kind, such that his capacity to subsist would be threatened or otherwise experience harm. The Tribunal was not satisfied that the first applicant faced a real chance of persecution for that reason, if returned to Fiji now or in the reasonably foreseeable future (at [43]).
The Tribunal then assessed the first applicant’s claims as they related to his “political opinion”.
The Tribunal noted that the first applicant had confirmed to the Tribunal that he was not involved with any political parties in Fiji. Nor were any members of his family. He also stated that he had not engaged in any political activities in Australia – all of which the Tribunal accepted as true (at [44]).
Noting the first applicant’s earlier evidence about his lack of any involvement with politics in Fiji, the Tribunal asked the first applicant to explain what he meant by departing the country for reasons of his political opinion. The first applicant responded that he was referring to the government at the time, that they put people through hardship, and that the first applicant understood that the former Prime Minister was facing justice (at [45]).
The Tribunal also explained that when asked if he had ever expressed his political views in Fiji, the first applicant stated that if someone put anything on social media, they would get a knock on their door and be taken, and that if they raised their voices, they would attract attention. Further, when asked by the Tribunal if he had ever attracted any attention, the first applicant responded in the negative and said that he did not take part in anything (at [46]).
The Tribunal further explained that the first applicant had referred to having worked at the military barracks and the former Prime Minister’s house to install a wireless network and that some information about the former Prime Minister’s son’s personal affairs was leaked by the media. When asked to explain the connection between him having worked on those projects and any issues that he thought he may face on return to Fiji, the first applicant responded that it was not linked back to him, it happened when he was away from the country in New Zealand, and that when he returned to Fiji nothing happened to him (at [46]).
On the basis of the above, the Tribunal accepted that the first applicant took part in installing the wireless network at the former Prime Minister’s premises while working with Fiji Communications but the leaked material was not connected to the first applicant’s work on the project. Nor did he face any issues as a result when he returned to Fiji from Auckland (at [46]).
The Tribunal continued:
47.On his evidence he did not post any material on social media about the former government and the leaked material on social media about the former Prime Minister’s personal affairs was not in any way linked to the applicant or his work installing the wireless system.
48.With reference to his evidence that he could not raise his voice against the former government, the applicant confirmed that he understood that the former government is no longer in power. When asked if he knew of anyone who expressed their views against the former government and came to the attention of the authorities, the applicant referred to a colleague that worked with him and that he was organising a ‘vote of no confidence’ and that he was fired from Fiji Communications but found another job and nothing further happened to him. While, this may have been the case, there is no indication that the applicant was in anyway connected to his colleague or faced any issues as a result of his colleague’s dismissal or otherwise.
49.On the applicant’s evidence, I find that the applicant was not of any concern to the former government due to his involvement with the projects involving installation of wireless network at the military barracks or at the former Prime Minister’s house while working with Fiji Communications, or in any way connected to material that was leaked on social media about the former Prime Minister’s son. I also find that the applicant was not of any concern to his employer or the authorities in connection with his colleagues’ dismissal. I find that the applicant was not of adverse interest to the Fijian authorities for any reason at the time of his departure from Fiji in 2020.
50.On the applicant’s evidence at the hearing, the applicant did not express any adverse views about the former government while in Fiji or in Australia.
The Tribunal then summarised the country information before, noting it as follows:
(a)the former Prime Minister of Fiji (Bainimarama), was a military commander at the time of the 2006 coup. Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s Fiji First Party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia (at [51]);
(b)when the Bainimarama government was in power, high-profile public figures, including the leaders of organisations seen to challenge the government’s authority or undermine its legitimacy, were at risk of negative attention, including arrest or detention. During 2022, repressive laws and defamation suits were used to silence political opponents and government critics. Under the Bainimarama government, opposition figures were targeted by corruption charges they claim were politically motivated (at [52]);
(c)in 2022, DFAT reported that politics in Fiji was no longer characterised by unrest. The 2018 election was calm and orderly, international observers found the conduct of the election to be credible and the outcome “broadly represented the will of Fijian voters” (at [53]);
(d)Transparency International reported (in November 2021) that only four per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters (at [53]);
(e)the DFAT report published following the 2022 general election in Fiji stated that the change of government ended the prime ministership of Bainimarama (at [54]);
(f)DFAT reported that, since the formation of the new government, there had been no significant political unrest or deterioration of government functions, and that the political situation in Fiji remained stable (at [55]);
(g)furthermore, there was no indication that the military was getting involved with reports, that the transition of power had been peaceful, with the military refusing to intervene and publicly declaring its intention to work with the government (at [55]);
(h)DFAT was not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022, or that the military forces were pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022 (at [55]); and
(i)in March 2023, the Australian Institute of International Affairs stated that people who were deported, threatened or forced to leave Fiji for speaking out against the former Fiji First government were being granted permission to return, and were doing so (at [56]).
The Tribunal explained that, when asked if he continued to fear the government of Fiji or had any concerns for his safety, the first applicant stated that he did not fear the government and that he was not sure if anything would happen to him if he voiced his opinion about the former government (at [57]).
The Tribunal explained further that when discussing the country information (cited above) with the applicants and the first applicant’s lack of any political profile in Fiji or any political engagement in Australia, the Tribunal made the observation that it did not appear that the first applicant would face any issues as a result of his views of the former government, which he did not openly express while in Fiji or in Australia. The first applicant made no comment (at [57]).
The Tribunal also noted that the first applicant’s wife, in discussing her lack of any political engagement in Fiji and in Australia, made a reference to her uncle having tried to run for politics in the past. She confirmed that she was not involved. Nor did she nor any members of her family face any issues as a result (at [58]).
On the basis of the above, the Tribunal determined as follows (at [59]):
(a)it accepted that the applicants were not involved in any political activities or parties while in Fiji or in Australia and that the first applicant had not expressed any negative views about the former government on social media or any other public forum;
(b)on the first applicant’s evidence, he had not come to the attention of the authorities for reasons of his views about the former government or otherwise; and
(c)while the applicants’ visa application made references to the first applicant expressing his views about the former government, given the lack of his past involvement in any political activities or expression of his views about the former government, and his own evidence at the hearing, the Tribunal did not consider that the first applicant had any intention or desire to express his views about the former government.
Furthermore, given the country information about the lack of any interest in people who held opposing views about the former government, the Tribunal was not satisfied that the first applicant faced a real chance of any harm due to political expression, including scrutiny of the former government (at [59]).
The Tribunal was not satisfied that the first applicant would be deprived of freedom speech as claimed or that he had a profile that would be of any concern to the authorities (at [59]).
In relation to the first applicant’s claims as they related to his “ethnicity”, the Tribunal explained that, at the hearing, the first applicant stated that he is of Rotuman ethnicity, and referred to Rotumans not having the same entitlements as indigenous Fijians. The first applicant also referred to his family being poor and not owning land. However, the first applicant’s evidence was also that he was able to obtain an education, sustained employment, and that he was able to build a house for his family which he sold in 2020 prior to coming to Australia. The first applicant also referred to his grandfather being part of the Fijian military (at [60]).
The Tribunal continued:
61.Country information indicates that while Rotumans are ethnically different from ethnic Fijians (iTaukei), they are indigenous to the island of Rotuma, a Fijian dependency, and legally treated in a similar fashion to iTaukei Fijians. DFAT reports while the Constitution prohibits discrimination on the basis of race or ethnicity, it also protects the communal land rights of indigenous Fijians (iTaukei) and Rotumans. As noted at the hearing, there is no information before the Tribunal that indicates that Rotumans, who are accepted as an indigenous ethnic minority (which was also accepted by the applicant), face discrimination in Fiji on the basis of their ethnicity. The applicant agreed with my observation and did not provide any further comments.
The Tribunal determined that, given the first applicant’s experiences in Fiji, including his educational and employment history, his ability to travel to Auckland to work and return to Fiji, his ability to purchase and sell his family home, and the country information about the recognition of Rotumans which was referred to at the hearing, and the lack of any credible evidence that the first applicant faced any discriminatory conduct while in Fiji, the Tribunal was not satisfied that the first applicant faced a real chance of any harm for reasons of his ethnicity if returned to Fiji now or in the reasonably foreseeable future (at [62]).
The Tribunal then explained that, when asked if she had experienced any discrimination or issues given that she is part Indian Fijian, the first applicant’s wife referred to her inability to secure a scholarship to attend university and confirmed that she did not face any further issues due to her mixed ethnicity while in Fiji (at [63]).
The Tribunal noted that the first applicant’s wife was able to travel to Port Moresby as a child, she completed high school in Suva, and that she worked and also travelled for work in the years that she remained in Fiji (at [63]).
The Tribunal also explained that the first applicant’s son had given oral evidence to the Tribunal that while, at school in Fiji, he was “called names due to [his] part Indian background” and was “excluded by others from activities during the breaks”. The son confirmed, however, that he was not in any way excluded from official school activities due to his “part Indian ethnicity” (at [64]).
The Tribunal explained that the relevant country information before it indicated that, while the Constitution prohibits discrimination on the basis of race or ethnicity, some low-level societal discrimination does exist that affects most Fijians as some people among both major ethnic groups (indigenous and Indian) “perpetuate racist stereotypes against the other” (at [65]).
Given the low-level societal discrimination which can be experienced by both Indian and indigenous Fijians, the Tribunal accepted that the first applicant’s wife may have not been able to secure a scholarship which was only provided to indigenous Fijians (at [65]).
The Tribunal also accepted that the first applicant’s son may have experienced some name calling and exclusion from sporting activities out of school hours (at [65]).
The Tribunal then determined as follows:
65…. As discussed with the applicants at the hearing, while these experiences were unfortunate, and that it is possible that the applicant’s children may in the future experience some low-level discrimination, such as name calling, such treatment does not reach the threshold of serious harm. The applicants confirmed their understanding of this issue and did not provide any further comments.
66.Considering the applicant's wife’s and son’s past experiences in Fiji, and the country information about lack of any official discrimination against Indian Fijians, I am not satisfied that the applicant's wife or children face a real chance of any treatment that would amount to serious harm for reasons of their part Indian ethnicity if returned to Fiji now or in the reasonably foreseeable future.
In relation to the first applicant’s claims about “health care and education”, the Tribunal noted that the first applicant had confirmed to it that he had not been diagnosed with any medical conditions and was not receiving any medical treatment. He also confirmed that references to his mental health in his protection visa application related to “stressors of life”. The first applicant also gave evidence that his eldest son had had surgery due to a sporting injury in Australia and his wife has been diagnosed with diabetes (at [67]).
The Tribunal then summarised the first applicant’s wife’s evidence about her deceased daughter, noting that the daughter had a heart murmur which was not picked up by doctors in Fiji (at [68]).
The Tribunal explained that when asked if she had sought any assistance to cope with her inevitable grief, the first applicant’s wife said that she had not done so – either in Fiji or in Australia. She also stated that she had not been diagnosed with any mental health issues (at [68]).
The Tribunal then outlined the country information before it (as relevant to this issue), noting as follows (at [70]):
(a)Fiji inherited a subsidised health care system from its British colonial past. Health care is generally available to those who need it. The quality of health care is better in urban areas and may be basic in rural areas. Specialist health care is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals;
(b)medication availability varies and the range of medications available in Fiji is less than in Australia; and
(c)while health care is free to the patient, an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
The Tribunal continued:
71.As discussed with the applicants at the hearing, the country information before me indicates that health care is available to all Fijians, and that given that the applicants are from Suva where they resided in the past, they will have access to medical services should they require it and will not be facing accessibility issues due to geographical locations of some island communities. The applicant and his wife agreed with the observation and did not provide any further comments.
The Tribunal then addressed the first applicant’s concerns in relation to his children’s education.
The Tribunal explained that the country information indicated that education is compulsory and that the government provides free education. Further, tertiary education and vocational education is also available. This was discussed with the applicants and they agreed that education was available to their children in Fiji (at [72]).
The Tribunal determined as follows:
73.In light of the above, apart from the applicant’s wife having been diagnosed with diabetes and taking medication for her condition, the applicants do not suffer from any medical conditions that require ongoing treatment. The applicant’s wife stated that her mother was able to obtain medication for her diabetes and did not claim that she had any concerns or would not be able to access treatment or medication for her condition, if returned to Fiji. I accept that the applicant’s daughter’s death was very distressing for the family and that they are of the view that if their deceased daughter’s condition was diagnosed in time, their daughter would not have died from the condition. I accept that the applicant and his wife do not consider the quality of the health care and educational services in Fiji to be the same as what they have been able to access in Australia. However, there is health care and educational services available to all Fijians and there is no indication that the applicants will suffer a real risk of harm or be denied access to any health care or educational services, for reasons of their ethnicity or any other reason, if they returned to Fiji now or in the reasonably foreseeable future.
In light of all of the above, the Tribunal summarised its assessment of the first applicant’s refugee claims as follows:
74.Having regard to all the evidence before me and considering the applicants’ overall profile and the totality of the applicants’ circumstances, I am not satisfied that the applicants face a real chance of persecution in the reasonably foreseeable future if returned to Fiji. I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5(J) of the Act.
75.The applicants do not meet the requirements of the definition of refugee in s 5H(1). The applicants do not meet s 36(2)(a).

The Tribunal then detailed its assessment of the first applicant’s evidence in light of the Act’s complementary protection provisions in s 36(2)(aa) of the Act and s 36(2A) of the Act, as follows:
78.As indicated above, I accept that the applicant’s wife and children who identify as part Indian Fijians, may face some low-level discrimination, as they have suffered in the past. However, I consider the chances of them being subjected to any treatment beyond what the applicant’s wife and eldest son claim to have experienced in the past to be no more than remote. I am not satisfied that any such treatment, such as verbal name calling, would amount to a level of pain, suffering or humiliation required by the definition of torture in s 5(1) of the Act, nor cruel or inhuman or degrading treatment or punishment, such as to amount to significant harm as defined in s 36(2A) of the Act.
79.As indicated above, I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood, such that the applicant’s capacity to subsist would be threatened. Given my findings and reasons and country information cited above, I do not consider that any challenges or difficulties that the applicant may face in obtaining employment would constitute significant harm or that would otherwise involve an act or omission by any person or persons.
80.I have otherwise found that the applicants do not face a real chance of any harm for any of the other claimed reasons. The Federal Court has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. In light of my findings and reasons set out above, I am not satisfied that the applicants face a real risk of significant harm as defined.
The Tribunal then assessed the effect of s 36(2)(b) of the Act or s 36(2)(c) of the Act – ie, those sections of the Act which stipulate that an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who is mentioned in s 36(2)(a) or (aa) of the Act and holds a protection visa of the same class as that was applied for by the applicant.
The Tribunal determined as follows in this regard:
83.As none of the applicants meet the definition of refugee or the complementary protection criterion, and there is no suggestion that they are a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act who holds a protection visa, it follows that they also do not meet the family unit criterion in either s 36(2)(b) or s 36(2)(c).
Ultimately, on the basis of the above, the Tribunal affirmed the decision not to grant the applicants protection visas (at [84]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicants on 8 March 2024) contains one “ground of review” as follows (without alteration):
1.The delegate of the Minister for Home Affairs and the Administrative Appeals Tribunal made a jurisdictional error in that it unreasonably concluded and/or failed to consider that the Applicants did not satisfy the requirements for a Protection Visa (Class XA) (Subclass 866) under s65 of the Migration Act 1958.
On 22 May 2024, procedural orders were made by Registrar Downing of this Court giving the applicants an opportunity to file an amended application, additional evidence and written submissions.
The materials before the Court include the application for judicial review and supporting affidavit (affirmed by the first applicant) filed by the applicants on 8 March 2024 (the first applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 507 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 27 September 2024 and three affidavits filed on behalf of the Minister (all taken as read and in evidence at the hearing of this matter).
The first applicant appeared before the Court (on 5 November 2024, by video link). The remaining applicants (being the first applicant’s wife and children) appeared separately (also by video link). The applicants did not have legal representation at the hearing.
The Court confirmed with the first and second applicants that they had received copies of the Court Book and the Minister’s written submissions. Ms Tahlia Jackson from Minter Ellison appeared (by video link) on behalf of the Minister.
Adjournment request
The Court notes that this matter was initially listed for a final hearing on 11 October 2024. Unfortunately, that listing needed to be vacated and the Court notified the parties (on 5 October 2024) that the matter had been re-listed to 16 October 2024.
On 8 October 2024, the Minister’s representative emailed the Court to advise that they were unable to attend a hearing on 16 October 2024 and provided alternate available dates in October and November.
On 11 October 2024, the first applicant contacted the Court, via email, and requested “an extension of the hearing date”. The first applicant’s email stated (without alteration):
Dear Migrations Team and Associate Judge Kendall,
I hope this message finds you well. I am writing to request assistance regarding my upcoming court hearing. I have been actively seeking legal representation but have not yet secured a lawyer to represent me and my family.
Given the circumstances, I kindly request an extension of the hearing date to allow me additional time to find legal counsel. I believe that having proper representation is crucial for my case, and I want to ensure that my family and I are adequately supported during this process.
Thank you for your understanding and assistance. I look forward to your response.
Sincerely,
[first applicant’s name omitted]
[mobile number omitted]
That same day (also on 11 October 2024), the Minister’s representative replied to the first applicant as follows:
The Minister does not consent to your request to adjourn the hearing in circumstances where your application has been on foot for 7 months and you have had the opportunity to engage legal representation during that period. Further, the Court cannot be satisfied that there would be any utility in granting the adjournment request to allow you a further opportunity to obtain legal representation. You have provided no evidence that could satisfy the Court that you will engage legal representation to appear at any adjourned hearing. Particularly, there is no evidence as to what steps you have taken to engage such representation and certainly no evidence to suggest that any lawyer has agreed to represent you. In any event, there is no legal right to representation: ADG15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25].
Upon receipt of the correspondence from the first applicant (as outlined above), the Court wrote to the parties and, noting that the applicants were not legally represented, explained that it would accept the first applicant’s email correspondence as being a request for “an interlocutory application for an adjournment” and would hear that interlocutory application immediately prior to the substantive hearing. Noting that the Minister’s representative was not available on the listed hearing date (of 16 October 2024), the Court also notified the parties that the matter had been re-listed for a hearing of the interlocutory application for an adjournment on 5 November 2024 at 11.00am. The parties were further advised that, in the event that an adjournment was not granted, the substantive hearing would proceed immediately after the hearing of the adjournment request and, on that basis, the parties should be prepared to proceed to a substantive hearing on the newly listed hearing date (being 5 November 2024).
When the applicants appeared before the Court (on 5 November 2024), the Court asked the first and second applicants if they still sought to have the matter adjourned. The first applicant told the Court that he and his wife had sought legal advice and were informed that “the lawyer” would “wait for the outcome of this Court hearing to see whether they want to represent [the applicants] or not”. The Court asked the first applicant if, in the circumstances, the applicants wished to proceed to the substantive application. The first applicant indicated that they did.
The Court had the correspondence detailed above (in relation to the adjournment request) tendered and referenced as Exhibit 2 and proceeded with the substantive hearing.
Further application in a proceeding
The Court notes that (on 1 November 2024) prior to the scheduled substantive hearing, the applicants attempted to file “an application in a proceeding” form (attaching a word document containing that appeared to be written submissions). Those documents were not accepted for filing by the Court prior to the hearing. The application in a proceeding document read “I would like to apply for leave to amend the ground for judicial review in my application”.
The Court discussed the application in a proceeding with the applicants at the substantive hearing and noted, in particular, that the word document read like written submissions and seemed to indicate that the second applicant was wanting to amend or “add” her own protection claims.
The second applicant explained that she had spoken with a “Legal Aid advisor” who told her that, to give the applicants a better chance of a successful outcome, she should look at submissions that were given to the Tribunal “as the original submissions were really poorly written” by the people that were helping them. The second applicant also claimed that she did not know that she or her son could submit their own protection claims or submissions to the Tribunal.
The Court explained to the second applicant that it could not have regard to information or evidence that was not before the Tribunal. It is also the case that the Court cannot amend the original visa application to include new protection claims arguably raised by the second applicant and her son (in their own right). Despite this, the Court agreed to accept the application in a proceeding and supporting document as constituting written submissions to the Court. The applicants agreed with this approach and the Minister did not object.
Those documents were tendered (together) and referenced as Exhibit 3. They are accepted by the Court as written submissions and, to the extent that they point to any issue of jurisdictional error on the part of the Tribunal, will be discussed further below.
Substantive hearing
The Court noted that the third and fifth applicants in the proceeding were still minors. On that basis, the Court explained to the first and second applicants that, because two of their children were minors, it was appropriate for a litigation guardian to be appointed on their behalf. The first applicant agreed to act as the litigation guardian for the children and the Court made orders (pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”)) accordingly – including dispensing with the requirement to file any affidavit in that regard (pursuant to r 11.10(2) of the Rules).
Noting that the applicants were not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicants an opportunity to outline orally what they thought the Tribunal “did wrong” in relation to his matter.
The Court explained that it can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicants the visas that they now seek, even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the first applicant told the Court that he thought that his “past work in the Prime Minister’s residence in Fiji” and his work in the “military or army military barracks” and all of that intel was not taken into consideration by the Tribunal member.
The second applicant then explained that, by the time the Tribunal member got to her and her son, the questions were “very restricted” and “it seemed like the member had already made up their mind based on what they had heard” from the first applicant. By way of example, the second applicant explained that when she tried to raise her own concerns about the health care system, it seemed like her concerns were not validated. She also stressed that, when the member spoke to her oldest son, “the member simply asked whether he was bullied and that was all”.
Finally, the fourth applicant (the first and second applicants’ eldest child) told the Court that when he spoke at the Tribunal hearing he felt that “his things were brushed off”. He stressed that he had tried to explain to the Tribunal that he was bullied at school for being Indian and was “singled out” during sports but he “did not think that was considered”.
CONSIDERATION
Ground of review
As outlined above, the sole ground of review in the application for judicial review provides as follows:
1.The delegate of the Minister for Home Affairs and the Administrative Appeals Tribunal made a jurisdictional error in that it unreasonably concluded and/or failed to consider that the Applicants did not satisfy the requirements for a Protection Visa (Class XA) (Subclass 866) under s65 of the Migration Act 1958.
Unfortunately, the applicants’ sole ground of review is not particularised and, as will be discussed further below, the second applicant’s written submissions do not address the issue of jurisdictional error on the part of the Tribunal. This is not a criticism. The applicants were not represented and the Court recognises that legal proceedings can be challenging.
In the circumstances, the Court will interpret the applicants’ concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
To the extent that the applicants are raising concerns in relation to perceived unreasonableness in the delegate’s decision, this Court has no jurisdiction to review that decision: s 476(2) and s 476(4) of the Act.
To the extent that the applicants suggest that the Tribunal failed to understand the requirements for the grant of a protection visa, the Court disagrees.
In this matter, the Tribunal forensically outlined those sections of the Act relevant to the granting of a protection visa. The Court notes, for example, the Tribunal’s summary of the relevant statutory requirements as follows:
3.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
4.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
5.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
6.Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
7.If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
The Tribunal then assessed the evidence before and, in so doing, expressly identified and referred to the definition of “serious harm” in the context of refugee criterion and the definition “significant harm” in relation to the complementary protection criterion.
The Court notes, for example, the Tribunal’s conclusions in relation to the first applicant’s “economic claims”, as follows:
43.In considering the applicant’s and his wife’s circumstances in Fiji and their evidence in relation to their past employment while in Fiji, in the context of the country information cited above and discussed with them at the hearing, I am not of the view that the applicant or his wife will face discrimination in accessing the employment market due to their ethnicities or otherwise, or that the applicant will not be able to obtain employment to support himself or his family. I am not satisfied that there is a real chance that the applicant would face serious harm, in that he would be denied the capacity to earn a livelihood of any kind, such that his capacity to subsist would be threatened or otherwise experience harm. I am not satisfied that the applicant faces a real chance of persecution for this reason, if returned to Fiji now or in the reasonably foreseeable future.

That statutory analysis, repeated throughout the Tribunal’s decision in relation to all protection claims raised before it, is then followed by an overall conclusion that provides as follows in relation to the refugee criterion:
Refugee assessment
74.Having regard to all the evidence before me and considering the applicants’ overall profile and the totality of the applicants’ circumstances, I am not satisfied that the applicants face a real chance of persecution in the reasonably foreseeable future if returned to Fiji. I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5(J) of the Act.
75.The applicants do not meet the requirements of the definition of refugee in s 5H(1). The applicants do not meet s 36(2)(a).
The Tribunal then assesses the assesses the evidence before it in relation to any complementary protections as follows:
76.Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that the applicants would suffer significant harm.
77.Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
78.As indicated above, I accept that the applicant’s wife and children who identify as part Indian Fijians, may face some low-level discrimination, as they have suffered in the past. However, I consider the chances of them being subjected to any treatment beyond what the applicant’s wife and eldest son claim to have experienced in the past to be no more than remote. I am not satisfied that any such treatment, such as verbal name calling, would amount to a level of pain, suffering or humiliation required by the definition of torture in s 5(1) of the Act, nor cruel or inhuman or degrading treatment or punishment, such as to amount to significant harm as defined in s 36(2A) of the Act.
79.As indicated above, I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood, such that the applicant’s capacity to subsist would be threatened. Given my findings and reasons and country information cited above, I do not consider that any challenges or difficulties that the applicant may face in obtaining employment would constitute significant harm or that would otherwise involve an act or omission by any person or persons.
80.I have otherwise found that the applicants do not face a real chance of any harm for any of the other claimed reasons. The Federal Court has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. In light of my findings and reasons set out above, I am not satisfied that the applicants face a real risk of significant harm as defined.
Having reviewed the Tribunal’s decision in detail, it cannot be said here that the Tribunal failed to understand or properly apply the core statutory provisions relevant to the granting of a protection visa.
To the extent that the applicants are arguing that the Tribunal’s decision is illogical or unreasonable, the Court again disagrees for the reasons that follow.
As this Court has recently explained in AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98, it is useful to set out some of the relevant authorities in relation to illogicality, irrationality and legal unreasonableness.
As explained by the High Court of Australia in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were clearly summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Having reviewed the Tribunal’s decision in detail, there is nothing in the Tribunal’s reasoning or approach that suggests extreme illogicality or unreasonableness. Rather, the Tribunal’s conclusions were entirely open to it.
The Court notes in this regard the Tribunal’s forensic analysis and summary of the evidence provided by the applicants and the country information before it as that country information relates to each of the claims raised.
For example, as detailed above (and repeated here for ease of reference) in relation to the first and second applicant’s concerns about health care and education in Fiji, the Tribunal noted that the first applicant had confirmed to it that he had not been diagnosed with any medical conditions and was not receiving any medical treatment. He also confirmed that references to his mental health in his protection visa application related to “stressors of life”. The first applicant also gave evidence that his eldest son had had surgery due to a sporting injury in Australia and his wife has been diagnosed with diabetes (at [67]).
The Tribunal then summarised the first applicant’s wife’s evidence about her deceased daughter, noting that the daughter had a heart murmur which was not picked up by doctors in Fiji. The Tribunal explained that when asked if she had sought any assistance to cope with her inevitable grief, the applicant’s wife said that she had not done so – either in Fiji or in Australia. She also stated that she had not been diagnosed with any mental health issues (at [68]).
The Tribunal then outlined the country information before it (as relevant to this issue), noting as follows:
(a)Fiji inherited a subsidised health care system from its British colonial past. Health care is generally available to those who need it. The quality of health care is better in urban areas and may be basic in rural areas. Specialist health care is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals;
(b)medication availability varies and the range of medications available in Fiji is less than in Australia and
(c)while health care is free to the patient, an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
The Tribunal continued:
71.As discussed with the applicants at the hearing, the country information before me indicates that health care is available to all Fijians, and that given that the applicants are from Suva where they resided in the past, they will have access to medical services should they require it and will not be facing accessibility issues due to geographical locations of some island communities. The applicant and his wife agreed with the observation and did not provide any further comments.
The Tribunal then addressed the first applicant’s concerns in relation to his children’s education.
The Tribunal explained that the country information indicated that education is compulsory and that the government provides free education. Further, tertiary education and vocational education is also available. This was discussed with the applicants and they agreed that education was available to their children in Fiji (at [72]).
The Tribunal then determined as follows:
73.In light of the above, apart from the applicant’s wife having been diagnosed with diabetes and taking medication for her condition, the applicants do not suffer from any medical conditions that require ongoing treatment. The applicant’s wife stated that her mother was able to obtain medication for her diabetes and did not claim that she had any concerns or would not be able to access treatment or medication for her condition, if returned to Fiji. I accept that the applicant’s daughter’s death was very distressing for the family and that they are of the view that if their deceased daughter’s condition was diagnosed in time, their daughter would not have died from the condition. I accept that the applicant and his wife do not consider the quality of the health care and educational services in Fiji to be the same as what they have been able to access in Australia. However, there is health care and educational services available to all Fijians and there is no indication that the applicants will suffer a real risk of harm or be denied access to any health care or educational services, for reasons of their ethnicity or any other reason, if they returned to Fiji now or in the reasonably foreseeable future.
A similar clear and thorough approach (one that others would do well to emulate) can be seen throughout the entirety of the Tribunal’s decision when assessing the applicants’ claims – both in relation to the relevant refugee criterion and the complementary protection criterion.
The Court is satisfied that the findings made by the Tribunal in this matter and the approach adopted were not “perverse”, “capricious” or “extreme”. All findings were made after the Tribunal engaged in extensive questioning of the applicants and after a thorough assessment of the country material and the applicants’ own evidence.
No error arises in relation to the applicants’ sole ground of review.
Applicants’ Oral submissions
Did the Tribunal fail to assess the first applicant’s “past work in the Prime Minister’s residence in Fiji” and work in the “military or army military barracks”
In oral submissions before this Court, the first applicant contended that the Tribunal failed to consider his previous employment in the military barracks in Fiji (where he was employed by a telecommunications company).
The Court disagrees.
The Court notes the Tribunal’s findings as follows in this regard:
46.….. When asked if he ever attracted any attention, the applicant responded in the negative and said that he did not take part in anything. The applicant referred to having worked at the military barracks and the former Prime Minister’s house to install the wireless network and that some information about the former Prime Minister’s son’s personal affairs was leaked by the media. When asked to explain the connection between the applicant having worked on these projects and any issues that he thinks he may face on return, the applicant said that it was not linked back to him, it happened when he was away from the country in New Zealand, and that when he returned to Fiji nothing happened to him. It was established, and I accept, that the applicant took part in installing the wireless network at the former Prime Minister’s premises while working with Fiji Communications and that the leaked material was not in any way connected to the applicant’s work on the project nor did he face any issues as a result when he returned to Fiji from Auckland and organised his family’s travel to Australia.
47.On his evidence he did not post any material on social media about the former government and the leaked material on social media about the former Prime Minister’s personal affairs was not in any way linked to the applicant or his work installing the wireless system.
On the basis of the above, and having assessed the country information before it, the Tribunal determined as follows:
49.On the applicant’s evidence, I find that the applicant was not of any concern to the former government due to his involvement with the projects involving installation of wireless network at the military barracks or at the former Prime Minister’s house while working with Fiji Communications, or in any way connected to material that was leaked on social media about the former Prime Minister’s son. I also find that the applicant was not of any concern to his employer or the authorities in connection with his colleagues’ dismissal. I find that the applicant was not of adverse interest to the Fijian authorities for any reason at the time of his departure from Fiji in 2020.
It is clear from the above that the Tribunal has expressly accepted the first applicant’s evidence that he worked at the military barracks and the former Prime Minister’s house and that he helped to install a wireless network at the Prime Minister’s premises. However, the Tribunal did not accept that the first applicant’s work on this project was such that the first applicant was at risk of harm in relation to any alleged “political involvement”.
To the extent that the first applicant contends that his evidence in this regard was not taken into account by the Tribunal, that is factually incorrect. The Tribunal did assess that evidence and made a finding that was, on the first applicant’s evidence, open to it.
No error arises in this regard.
Bias Allegation
Both the second applicant and her son seemed to suggest (in oral submissions before this Court) that the Tribunal approached their evidence with a closed mind or without actively engaging with their evidence.
To the extent that the applicants suggest that the Tribunal’s decision was affected by bias, the Court disagrees.
As recently explained by this Court in CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616, it is well established that an allegation of bias is one that must be distinctly made and clearly proven.
To prove bias, it is for the applicants to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
The Court notes that the visa application form allows additional applicants to advance their own protection claims. Here, both the second applicant (at CB 79) and the fourth applicant (at CB 80) state that they did not want to make any protection claims of their own.
Further, the Tribunal confirmed with the second and fourth applicants at the beginning of the Tribunal hearing that they sought to rely on the claims of the first (and primary) applicant (at [15]).
Despite that, to the extent that the second applicant and her son gave evidence or made additional protection claims at the hearing, the Tribunal did give considerations to those claims within its decision-making process.

This is best evidenced in the Tribunal’s assessment of the second applicant’s concerns about her health and the quality of the health care provided in Fiji (at [68]-[71]) and her concerns about her children’s education (at [72]-[73]). It is also evident in relation to Tribunal’s assessment of the second applicant’s concerns about the bullying experienced by her son and, indeed, in the Tribunal’s assessment of her son’s evidence (at [64]-[66] and [78]).
There is nothing in the Court Book or the materials before this Court to suggest that the Tribunal was not open to persuasion in this case or failed to actively engage with the evidence presented by the second applicant or her son.
The Tribunal actively engaged with the information before it (including the oral information provided by the second and fourth applicant). Ultimately, the Tribunal found that the applicants did not meet the criteria for the grant of the visa and affirmed the delegate’s decision refusing to grant the applicants the visas. As discussed above, those findings were open to it on the evidence before the Tribunal.
No jurisdictional error arises in this regard.
MINISTERIAL INTERVENTION
Before this Court the second applicant tendered a bundle of documents which the Court accepted as written submissions.
The Court notes the content of those submissions, as follows:
During the recent AAT Hearing, when the Honourable Member asked my son and me if we wanted to make claims of our own, we assumed that the hearing was about our family's experiences, not solely focused on my husband’s claims. As a person of Indian descent, it pains me that my children are seen as mere visitors in Fiji rather than being recognized as Fijians. This disparity is difficult for me as a mother to accept.
Our decision to leave Fiji was born from a need to protect our children from the violence and oppressive culture I experienced, which I believe is rooted in political instability, abuse of power, and corruption. It is alarming that the instigator of Fiji's first racial coup is still in power, promoting reconciliation while many in the indigenous community reject the presence of Indians.
I vividly recall incidents of racial violence, including my young son being targeted and insulted. The continuous threats and abuse we faced made it imperative for us to seek safety elsewhere. Returning to Fiji would subject my children to a society where violence against women and minorities is prevalent, and where drug abuse is rampant.
The situation in Fiji remains dire, with increasing drug issues, rising HIV cases, and rampant violence against women. I do not view Fiji as a safe home anymore. As a mother, my priority is to protect my children from the threats they would face if we were forced to return.
The trauma from my childhood has profoundly affected my life, both as a young person and as an adult. The situation in Fiji has deteriorated since we left, and I struggle to imagine how I could look my children in the eyes and tell them we must return. This is a reality we pray we will never have to face.
The situation described by the second applicant (who struck the Court as sincere and deeply concerned for the safety of her children) is worrying. Unfortunately, this Court’s powers are limited on review and the issues raised by the second applicant seek either impermissible merits or seek to introduce material that was not before the Tribunal.
While the Court cannot assist the applicants (as no issue of jurisdictional arises) the Court draws the applicants’ attention to the Minister’s discretionary powers. Where, as here, the Tribunal has affirmed a decision refusing to grant an applicant a visa because of a failure to meet a mandatory criterion for the grant of that visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
The Court encourages the applicants to seek Ministerial Intervention in relation to this matter.
CONCLUSION
The application for judicial review (filed by the applicants on 8 March 2024), the applicants’ oral submissions (made at the hearing before this Court) and the second applicant’s written submissions (contained in Exhibit 3) have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error. The application is, accordingly, dismissed.

I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 17 March 2025
SCHEDULE OF PARTIES

PEG 85 of 2024

Applicants

Fourth Applicant:

BDD24

Fifth Applicant:

BDE24

File number:	PEG 85 of 2024
Judgment of:	JUDGE KENDALL
Date of judgment:	17 March 2025
Catchwords:	MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to apply the statutory requirements for a protection visa – whether the Tribunal’s reasoning process is unreasonable or illogical – whether the Tribunal failed to address aspects of the applicants’ evidence – whether the Tribunal was biased – no jurisdictional error – Ministerial Intervention – application dismissed.
Legislation:	Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16 Migration Act 1958 (Cth), ss 5, 5J, 36, 351 & 476
Cases cited:	AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616 Craig v State of South Australia (1995) 184 CLR 163 CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688 DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Jia Legeng (2001) 178 ALR 421 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v Pandey [2014] FCA 640 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division:	Division 2 General Federal Law
Number of paragraphs:	152
Date of hearing:	5 November 2024
Place:	Perth
Applicants:	Applicants appeared in person
Counsel for the First Respondent:	Ms T Jackson
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Minter Ellison

PEG 85 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AVG24 First Applicant BCZ24 Second Applicant BDB24 (and others named in the Schedule) Third Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE REVIEW TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	17 MARCH 2025

PEG 85 of 2024
Applicants
Fourth Applicant:	BDD24
Fifth Applicant:	BDE24