AWI19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 859
•10 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWI19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 859
File number(s): MLG 589 of 2019 Judgment of: JUDGE FARY Date of judgment: 10 June 2025 Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicants were persons to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed. Legislation: Australian Constitution s75(v)
Federal Circuit and Family Court of Australia Act 2001 (Cth) s 136, s 232(1)
Migration Act 1958 (Cth) s 36(a), s 36(aa), s 416, s 424A, s 425, s 437, s 438, s 442B, s 476, s 477, Div 4 Pt 7
Migration Regulations 1994 (Cth) cll 866.1 to 866.6
Cases cited: AZAFX v Federal Circuit Court of Australia [2016] FCA 1139
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff B9/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCAFC 27
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of last submission/s: 4 June 2025 Date of hearing: 4 June 2025 Place: Melbourne Solicitor for the Applicants: In person Solicitor for the First Respondent: Mr Orchard, Sparke Helmore Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 589 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWI19
First Applicant
AWJ19
Second Applicant
AWK19
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
10 JUNE 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The first and second applicants pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $5,000.
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 Fary
INTRODUCTION
By an Application filed in this Court on 4 March 2019 (Application), the first, second and third applicant (Applicants) seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 8 February 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the first applicant (Applicant) a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant has not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s36(a) or s36(aa) of the Migration Act.
The hearing of the Application took place at the Melbourne Registry of the Court on 4 June 2025 (Hearing). The Minister was represented by a solicitor. The Applicants were self-represented with the assistance of an interpreter from Region A. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 4 June 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal erred in its decision that the Applicant has any basis for fear and persecution upon his return to Country A at the time of the Tribunal’s hearing on 23 November 2018 (Tribunal Hearing).
BACKGROUND
The Court has before it a Court Book with 262 pages filed by the Minister on 28 April 2021 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions filed 21 May 2025 (Minister’s Submissions) accurately summarise the background to this matter at [2] to [19]. The Court adopts those submissions with amendments as follows.
The Applicants are citizens of Country A.
On 1 April 2015, the Applicants arrived in Australia on Visitor (Subclass 600) (Sponsored Family) visas.
On 19 June 2015, the Applicant applied for the Visa, with the second and third applicant being joined as members of the same family unit. In the Application, the Applicant claimed to fear harm as he was a witness in a murder investigation and has been intimidated as well as threatened by the accused.[2]
[2] Court Book (CB) 19-116.
The second applicant is the wife of the Applicant.
The third applicant is the child of the Applicant and the second applicant. The Applicant has been appointed as the litigation guardian for the third applicant.
On 4 July 2016, a Delegate of the Minister refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate was satisfied that there were adequate protection measures available such that the Applicant’s fear of harm was not well-founded and there was no real risk that the Applicants would suffer significant harm.[3]
[3] CB 134-145.
On 12 July 2016, the Applicant sought review of the Delegate’s Decision, with the assistance of a migration agent (Migration Agent), before the Tribunal (Review Application), enclosing a copy of the Delegate’s Decision.[4]
[4] CB 151-157.
On 13 July 2016, the Tribunal wrote to the Applicant’s Migration Agent to confirm receipt of the Applications.[5]
[5] CB 158-160.
On 18 August 2016, the Applicant’s Migration Agent wrote to the Tribunal attaching the Appointment of Representation form.[6]
[6] CB 161-163.
On 20 August 2018, the Tribunal wrote to the Applicant’s Migration Agent seeking the Applicants’ availability for a hearing.[7]
[7] CB 164-168.
On 21 September 2018, the Tribunal wrote to the Applicants’ Migration Agent inviting the Applicants to attend a hearing before the Tribunal on 23 November 2018 (Hearing Invitation). The Applicants were also invited to provide written documents by the 16 November 2018.[8]
[8] CB 169-173.
On 1 October 2018, the Applicants’ Migration Agent submitted a response to the Tribunal’s Hearing Invitation that the Applicants would be in attendance and an interpreter was required.[9]
[9] CB 174-177.
On 16 November 2018, the Applicants’ Migration Agent filed detailed submissions and statements in support of the Applicants’ Application, including submissions on the whole of the Refugee criteria and claimed that the Applicants were owed protection as members of a particular social group.[10]
[10] CB 174-218 and 191-194.
On 23 November 2018, the Applicants attended the Tribunal Hearing with the assistance of their Migration Agent and an interpreter from Region A. The Tribunal also heard from two witnesses: Witness A and Witness B.[11]
[11] CB 223.
On 14 January 2019, the Tribunal wrote to the Applicants’ Migration Agent and invited them under s 424A to comment on the evidence provided by their witness, Witness A at the hearing. The Tribunal put to the Applicant, that as a result of this evidence it “may find that there is no real chance of serious harm or real risk of serious harm”.[12]
[12] CB 234-235.
On 25 January 2019, the Applicants’ Migration Agent wrote to the Tribunal providing a response.[13]
[13] CB 236-241.
On 8 February 2019, the Tribunal upheld the Delegate’s Decision.[14]
[14] CB 245-254.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 250 to 262 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [11].
Particular Social Group
Following consideration of the evidence provided by the Applicants and on the basis of country information, the Tribunal was satisfied on the basis of its factual findings that the Applicant’s claims did not meet the complementary protection criteria.[15]
[15] CB 250-253.
The Tribunal considered the threats that the Applicant claimed to have received were a direct result of the Applicant’s knowledge of the attempted murder in his local village.[16]
[16] CB 249.
The Tribunal did not accept that the Applicant would be imputed to be a member of a particular social group and found that the fear of harm was “clearly” because of his individual knowledge of the event involving Victim A.[17]
[17] CB 250.
Religion
The Tribunal noted that during the hearing, the Applicant raised a fear of harm due to religion, but noted that the Applicant had given evidence that he had not experienced harm in respect of this claim.
The Tribunal considered country information in relation to Sikhs and found that there was not a real chance that the Applicant would be persecuted upon his return to Country A.[18]
[18] CB 250.
Complementary protection
The Tribunal found the Applicant’s postulation that the deaths of the two other witnesses were linked to Perpetrator A to be speculative in nature, and no independent evidence was presented.
The Tribunal found that the Applicant’s fear of harm from Perpetrator B was speculative in nature and that no causal link between removal from Australia and an exposure to a real risk of significant harm had been demonstrated.
The Tribunal considered it “implausible” that if men working for Perpetrator A, Perpetrator B and Perpetrator A’s associates claimed criminal background held any intention to significantly harm the Applicant. The Applicant lived in close proximity to Perpetrator A for many years without suffering significant harm prior to his conviction.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 4 March 2019, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 14 April 2021, Orders were made by Registrar Carney of this Court for the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. That the First Respondent file: the Court Book, written submissions with proper particulars and any additional evidence. For the First Respondent’s name be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. For the Applicant to be appointed as litigation guardian on behalf of the third applicant.
On 18 December 2024, Orders were made by Registrar Lindsay of this Court for the First Respondent’s name be amended to Minister for Immigration and Multicultural Affairs. For the Applicants to file: written submissions, any Amended Application with proper particulars and any additional evidence. That the First Respondent file: written submissions with proper particulars and any additional evidence.
This matter was heard on 4 June 2025 for a Final Hearing before me. The Applicants appeared with the assistance of an interpreter.
The Applicants relied upon the following documents:
(a)The Application filed 4 March 2019; and
(b)The Affidavit of the Applicant sworn and filed 4 March 2019 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Response filed 20 March 2019;
(b)The Minister’s Submissions filed 21 May 2025; and
(c)List of Authorities filed 30 May 2025.
Both parties relied on the Court Book.
The Application contains five (5) grounds of review (Grounds of Review):
1. Fail to consider claims. (Ground 1).
2. Breach of rules of natural justice. (Ground 2).
3. Fail to follow mandatory procedures. (Ground 3).
4. I believe that the decision been made was not in my favour because I think they did not consider I was the only witness who left in three. (Ground 4).
5. I [Applicant] claimed a fear of harm from [Perpetrator A] and his son [Perpetrator B]. The member of the council [Witness B] provided an Affidavit which was showing [Perpetrator B] is still in [Country A] and he saw him few months ago. (Ground 5).
(Words in bold added, otherwise as written subject to anonymisation).
APPLICANT’S SUBMISSIONS
The Applicants did not file written submissions ahead of the Hearing.
The Applicants made oral submissions at the Hearing with the assistance of an interpreter. The Applicants stated that during the Tribunal Hearing they explained that they have some fear over their circumstances.
The Applicant expressed that he feared certain criminals. He said that they were still outside in the world, had connections with drug dealers, and were involved in murder. The Applicant stated that the police in Country A had not taken any action.
The Applicant stated that in 1990, Perpetrator A was an accomplice with other people in a murder. No action was taken against him. The Applicant claimed that Perpetrator A gave money or bribes to witnesses. In Region A, the crime rate has risen since they have resided in Australia. The Applicant said that he was concerned that the perpetrators might attempt to frame him.
As to whether the Tribunal had made errors, the Applicant said he was not aware of the law and was not a lawyer. The Applicant expressed that he wanted help from the Court and could not afford to seek advice from a lawyer. When taken to each of the grounds of the Application, the Applicants repeated aspects of the factual narrative set out above. The Applicants expressed that they wanted the case to be remitted back to the Tribunal for a thorough investigation.
RESPONDENT’S SUBMISSIONS
The Minister seeks that the Application for judicial review be dismissed and the Applicants pay costs fixed in the amount of $5,000.
To the extent that the particulars contend the Tribunal did not consider the Applicant was the “only witness who left in three”, this ground, the Minister submits, fails as the Tribunal explicitly considered this claim. The Tribunal accepted that the other witnesses were deceased and noted that no independent evidence had been provided linking the deaths to Perpetrator A.[19]
[19] CB 248, 294, 252.
The Minister submits that the Tribunal explicitly referred to the affidavit and the relevant evidence of Witness B. The Tribunal found that the Applicant’s evidence was “speculative in nature” and was not satisfied that there was a real risk that the Applicant would suffer harm.[20]
[20] CB 252-253.
The Tribunal complied with its procedural fairness obligations outlined in Part 7 Division 4 of the Migration Act. The Tribunal validly invited the Applicants to attend a Hearing pursuant to s 425 and 425A which they attended. The Tribunal also took evidence from the Applicant’s witnesses as requested and no error was revealed.
The Minister submits that the Tribunal complied with its obligations under s 424A of the Migration Act as the Tribunal wrote to the Applicant on 14 January 2019 and requested a response in relation to information provided by the Applicants’ witness. This letter sent to the Applicants gave clear particulars, explained why the information was relevant and invited the Applicants to respond. The letter was sent to the Applicants’ representative by email and then a response was provided. The Tribunal discharged its obligations under s 424A with respect to this information.
The Tribunal’s Decision was otherwise based on the Applicant’s written evidence to the Department and both written and oral evidence presented to the Tribunal. The Minister submits that no breach of s 424A is revealed.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[21]
[21] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[22] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[23]
[22] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[23] Yusuf at [82].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[24] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[25] Different kinds of error may overlap.[26] The categories are not closed.[27]
[24] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[25] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[26] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
[27] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[28] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[29] It has been described as an “undemanding” standard.[30]
[28] LPDT at [7].
[29] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[30] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Protection Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term “refugee” is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a “well-founded fear of persecution”[31] as defined by s 5J.
[31] See s 5H(1)(a) of the Migration Act.
Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) 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 the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
The criteria that the Applicant was required to satisfy for the grant of a Protection (Class XA) (Subclass 866) visa (Visa) are set out in cll 866.1 to 866.6 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
CONSIDERATION
Grounds 1, 4 and 5
Ground 1 is:
Fail to consider claims.
Ground 4 is:
I believe that the decision been made was not in my favour because I think they did not consider I was the only witness who left in three.
Ground 5 is:
I [Applicant] claimed a fear of harm from [Perpetrator A] and his son [Perpetrator B]. The member of the council [Witness B] provided an Affidavit which was showing [Perpetrator B] is still in [Country A] and he saw him few months ago.
Grounds 4 and 5 would appear to give particulars of the allegation in Ground 1, which is otherwise unparticularised. Accordingly, I shall approach Grounds 1, 4 and 5 on that basis. I am not otherwise satisfied that there is any error or arguable error in the nature of Ground 1.
The first question that arises is whether the Tribunal failed to consider the Applicant’s claims as alleged in Grounds 1, 4 and 5:
(a)“because I think they did not consider I was the only witness who left in three”; and
(b)“[Witness B] provided an Affidavit which was showing [Perpetrator B] is still in [Country A] and he saw him few months ago.”
On the question of whether the Tribunal considered that Applicant’s claim that he was the only witness left out of the three witnesses, the relevant parts of the Tribunal’s Decision are:
“The first named applicant informed the Tribunal that he was one of three witnesses to an attempted murder in 2009 carried out in his local village. The perpetrators were local men named [Perpetrator A], [Perpetrator B], [Perpetrator C] and [Perpetrator D].” (at [16])
“He also stated that the two other witnesses to the crime by [Perpetrator A] had since become deceased and speculated that these deaths were linked to [Perpetrator A].” (at [23])
“The Tribunal accepted that the other two witnesses to [Perpetrator A’s] crime have become deceased.” (at [24])
On the question of whether the Tribunal considered that affidavit of [Witness A], the relevant parts of the Tribunal’s Decision are:
“The first named applicant also submitted that he continues to face a threat of harm from [Perpetrator A], and in particular his son [Perpetrator B]...However in evidence to the Tribunal [Witness A] stated that [Perpetrator B] has been residing in [Country B] for some three or four years now. The first named applicant stated that he had been unaware of [Perpetrator B’s] location. After the hearing the Tribunal wrote to the first named applicant, by cover of a letter dated 14 January 2019, and requested a response to the following particulars of the information:
That the applicant's witness [Witness A] gave evidence in the hearing that the man identified by the applicant as [Perpetrator B] was currently residing in [Country B] and had resided in [Country B] for the past three or four years.
The Tribunal informed the first named applicant that this information is relevant to the review because the applicant claimed a fear of harm from [Perpetrator B] due to his status as a known criminal and his alleged links to drug trafficking and other gang related criminal activities. The Tribunal noted that if it was to rely upon this information the Tribunal may find that there is no real chance of serious harm or real risk of significant harm to the first named applicant from [Perpetrator B] as he is not in [Country A]…
The first named applicant's representative responded to the Tribunal's letter, by cover of a letter dated 23 January 2019. The first named applicant's representative submitted that in the affidavit of [Witness B], sworn 28 November 2018 that he has seen [Perpetrator B] recently and that he is presently in [Region A]. Further that even if [Perpetrator B] is in [Country B] there is a significant risk that he could return to [Country A] at any time in the foreseeable future. The first named applicant's representative also reiterated the first named applicant feared significant harm from [Perpetrator A] himself and his associates as well as [Perpetrator B]” (at [33] - [35]).
It is clear from the passages extracted above, that the Tribunal did consider the matters that are identified in Grounds 4 and 5. In the case of the matter in Ground 5, the Tribunal went so far as to advise the Applicant of the adverse inferences it might draw from the evidence of Witness B concerning the location of Perpetrator B (at [33] and [34]). In response, the Applicant submitted the affidavit of Witness B, a matter recorded at [35].
I do not consider that there is any merit to the contention that the Tribunal failed to consider the Applicant’s claims, in particular those relating to being the only witness left of three, and evidence that Perpetrator B was in Country A.
I am not satisfied that jurisdictional error is made out by reference to Grounds 1, 4 or 5.
Grounds 2 and 3
Ground 2 is:
Breach of rules of natural justice.
Ground 3 is:
Fail to follow mandatory procedures.
Because Grounds 2 and 3 are lacking in particularity, it is impossible for me to analyse them at anything other than a general level.
The requirement of procedural fairness is a fair hearing and not a fair outcome.[32] Hence, the enquiry is directed to the Tribunal’s processes and not its decision.[33] The test is essentially practical; the law’s concern being to avoid practical injustice.[34]
[32] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [25].
[33] SZBEL at [25].
[34] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37].
In determining the requirements of procedural fairness, it is of “critical importance” to consider the statutory framework within which the decision-maker exercises power.[35]
[35] SZBEL at [26].
In the context of judicial review of a decision made by the Tribunal under the Migration Act, relevant considerations include: first, the Tribunal’s obligation to invite the Applicant to give evidence and present arguments,[36] and second, the obligation of the Tribunal to give an applicant particulars of certain information that the Tribunal considered would be the reasons or part of the reasons for affirming the decision under review.[37]
[36] Section 425 of the Migration Act.
[37] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (SAAP).
The requirements of natural justice in relation to the Applicants’ hearing before the Tribunal were codified by Division 4 of Part 7 of the Migration Act in relation to the matters dealt with in that Division.
Section 442B of the Migration Act provided (at the date of the Tribunal’s Decision):
1. This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
2. Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
3. In apply this Division, the Tribunal must act in a way that is fair and just.
The Tribunal’s Decision revealed that it complied with its procedural fairness obligations set out in Part 7 of Division 4 of the Migration Act:
(a)The Tribunal invited the Applicants to attend a hearing pursuant to s 425 and 425A and they attended that hearing on 23 November 2018;
(b)The Tribunal also took evidence from the Applicants’ witnesses as requested;
(c)The Applicant was on notice from the Delegate’s reasons that the veracity of his claims were in question, and requested that the Applicant address the question of whether he was a member of particular social group;
(d)The Tribunal complied with its obligations under s 424A of the Act by writing to the Applicant on 14 January 2019 and requested a response in relation to information provided by the Applicants’ witness, [Witness B], that [Perpetrator B] had been residing in [Country B]; and
(e)The Tribunal’s Decision was otherwise based on the Applicant’s written evidence to the Department and written and oral evidence provided to the Tribunal which plainly fell within the exceptions in s 424A(3)(ba) and s 424A(3)(b) of the Migration Act.
I have identified no evidence of a failure to follow “mandatory procedures”.
I have considered the Tribunal’s Decision separately and not identified any other jurisdictional error or arguable jurisdictional error.
I am not satisfied that jurisdictional error is made out by reference to Grounds 2 or 3.
Anonymisation of Sensitive Information
In order to protect the identity of the Applicants consistently with the intent of s 91X of the Migration Act, I have anonymised the names of the alleged perpetrators (Perpetrator A etc.), the victim (Victim A), witnesses (Witness A and B) and places (Country A, Region A etc.) and have otherwise sought to “avoid referring to their personal circumstances in such a way that would tend to identify them”.[38]
[38] AZAFX v Federal Circuit Court of Australia [2016] FCA 1139 at [5]; MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [5].
CONCLUSION
As the Applicants have not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[39] the Application for review must be dismissed.
[39] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,000; an amount less than the scale amount.[40] I am satisfied that costs ought to follow the event,[41] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[42]
[40] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[41] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[42] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
Because the third applicant is the subject of a litigation guardian order in favour of the Applicant, it is appropriate that my costs order be limited to the first and second applicants.[43]
[43] Plaintiff B9/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCAFC 27 at [10].
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 10 June 2025
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