BLA19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1365
•28 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLA19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1365
File number(s): MLG 1001 of 2019 Judgment of: JUDGE FARY Date of judgment: 28 August 2025 Catchwords: MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s36(a) or (aa) –Delegate’s decision to refuse the grant of Protection (Class XA) (Subclass 866) affirmed – whether Tribunal failed to take into account relevant considerations – no jurisdictional error established – application dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) s 5J(1), s 5H, s 5L, s 36, s 47(1), s 65(1), s 474, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) Div 1 of Pt 3 of Sch 2
Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Regulations 1994 (Cth) cl 866.1 – 866.6 of Sch 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant S v MIMA (2004) 217 CLR 387
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALR 630
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
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
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1991) 52 FCR 437
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 21 August 2025 Date of hearing: 21 August 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr Hutton, Sparke Helmore Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 1001 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLA19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
28 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant 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 way of Application filed on 5 April 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 21 March 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 Applicant a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Migration Act.
The hearing of the Application took place at the Melbourne Registry of the Court on 21 August 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an interpreter. 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 21 August 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act or that that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
BACKGROUND
The Applicant is a citizen of Taiwan.
On 26 June 2013, the Applicant arrived in Australia as the holder of a Subclass 417 (Working Holiday) visa.[2]
[2] Court Book (CB) 80.
On 11 June 2015, the Applicant applied for the Visa, the subject of these proceedings.[3] The Applicant applied for the Visa on the basis that he feared harm from underworld gangs who pulled him into an alley and physically assaulted him because he knew the secrets of the gang. The Applicant claimed the gang would harm him on return and that police could not protect him.[4]
[3] CB 1-27.
[4] CB 19-22.
On 7 November 2016, a Delegate of the Minister refused to grant the Application for the Visa on the basis that they were not satisfied that the Applicant met s 36(2)(a) or s 36(2)(aa) of the Migration Act (Delegate’s Decision).[5]
[5] CB 77-90.
On 10 November 2016, the Applicant applied to the Tribunal for review (Review Application).[6]
[6] CB 91-92.
On 11 November 2016, the Tribunal acknowledged receipt of the Review Application.[7]
[7] CB 94-96.
On 17 January 2019, the Tribunal invited the Applicant to attend a hearing on 8 February 2019.[8]
[8] CB 97-99.
On 21 January 2019, the Applicant wrote to the Tribunal and enclosed a completed response to hearing invitation form.[9]
[9] CB 100-103.
On 8 February 2019, the Applicant attended the hearing with the assistance of an interpreter.[10] The hearing was adjourned to a future date.[11]
[10] CB 104-111.
[11] CB 108.
On 12 February 2019, the Tribunal wrote to the Applicant and confirmed that the hearing was rescheduled to 20 March 2019.[12]
[12] CB 109-111.
On 13 February 2019, the Applicant wrote to the Tribunal and advised that he required an interpreter present at the hearing.[13]
[13] CB 112-114.
On 20 March 2019, the Applicant attended the rescheduled hearing with the assistance of an interpreter.[14]
[14] CB 117-119.
On 25 March 2019, the Tribunal wrote to the Applicant and advised of the outcome of the hearing. The Tribunal enclosed written reasons for its decision dated 21 March 2019 which affirmed the Delegate’s Decision under review.[15]
[15] CB 120-130.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 122 to 127 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 [9].
The Tribunal summarised the Applicant’s evidence, and accepted the Applicant’s claims of past harm, namely from loan sharks pursuing him for debts owed.[16] The Tribunal accepted that they had assaulted him and when he moved, he was assaulted again and had his car broken into with a baseball bat.[17] However, the Tribunal weighed this against Country Information with respect to police forces and noted that he could seek protection.[18]
[16] CB 123-124.
[17] CB 123-124 [11]-[16], [19].
[18] CB 123-125 [18]-[22].
The Tribunal considered that the Applicant belonged to a group of “debtors”, that were “borrowers unable to make repayments threatened by debt collectors” and that this was not a social group outlined under s 5J(1)(a) of the Migration Act.[19] The Tribunal found that the ties binding this group breached the guidance provided for in Applicant S v MIMA[20] and s 5L(d) as the group is defined by a shared fear of persecution.
[19] CB 126 [23].
[20] (2004) 217 CLR 387 at [36].
The Tribunal accepted that the Applicant had genuine fears, and that the violence experienced by the Applicant constituted harm.[21] However, the Tribunal noted that the Applicant had not been harmed from in or around March to late June 2015, and that the seriousness by which the Applicant was being pursued was not of high intensity.[22]
[21] CB 126 [26].
[22] CB 126-127 [28].
The Tribunal found that the Applicant did not meet the refugee criterion in s 36(2)(a) and 36(2)(aa) of the Migration Act.
PROCEEDINGS IN THIS COURT
On 5 April 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 14 July 2021, Orders were made by Registrar Carney of this Court for the First Respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. For a hearing under Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with and the matter be listed for final hearing. For the First Respondent to file and serve by 28 July 2021: a copy of the Court Book. For the Applicant to file and serve 28 days before the final hearing: any amended application, any affidavits, supplementary court book (if any), and written submissions. For the First Respondent to file and serve 14 days before the final hearing: written submissions and any affidavits. That all evidence relied upon, other than the Court Book, be presented by way of affidavit. That the matter be listed for a final hearing.
On 6 March 2025, Orders were made by Registrar Munro of this Court for the First Respondent’s name be amended to Minister for Immigration and Multicultural Affairs. For the name of the Second Respondent be amended to Administrative Review Tribunal. The Court noted that the Applicant confirmed they have retained a copy of the Court Book, and that the Applicant’s contact details as set out in their Notice of Address for Service filed 7 July 2021 remained current. The Court’s function in relation to the Application was explained to the Applicant. The Court further summarised the concept of jurisdictional error to the Applicant.
This matter was heard on 21 August 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 5 April 2019; and
(b)The Affidavit of the Applicant sworn and filed 5 April 2019 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Response, filed 2 May 2019 and 11 June 2019;
(b)Affidavit of Service of Jeremy Hutton affirmed on 5 March 2025 and filed 6 March 2025;
(c)Affidavit of Service of Jeremy Hutton affirmed and filed 7 August 2025;
(d)The Minister’s Outline of Submissions filed 6 August 2025; and
(e)List of Authorities filed 15 August 2025.
Both parties relied on the Court Book.
The Application contains the following grounds of review (Grounds of Review):
1. AA T has prejudice against not be a real risk that am will suffer significant harm in my country. (Ground 1).
2. AAT was prejudiced and formed the view I should have reported the drug mule case to police. So it may reduce become a drug mule. (Ground 2).
3. AAT tried to discredit me with the fact I should went to report the police since first incident engaging (Ground 3).
4. AA T tried to discredit me by making unreasonable presumption that I will not face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia. (Ground 4).
(Words in bold added, otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant did not file written submissions.
In oral submissions, the Applicant repeated the background facts including key elements of the matters set out at [11] to [17] of the Tribunal’s Decision. He stated that gang members had sought to force him to work for them as a drug mule, in order to repay debts. The Applicant also referred to the death of his cousin, and the punishment given to the perpetrators of that crime. The Applicant expressed his concern regarding police enforcement of intervention orders and indicated that the police could not give effective protection.
As to Ground 1, the Applicant stated that the Tribunal told him they had checked the international news that Taiwan does not have a high incidence of criminals which meant that he could get protection in his country. The Applicant said that in his belief that lots of police filings were just paper and not put into action.
As to Grounds 2 and 3, the Applicant submitted that reporting to the police does not work.
As to Ground 4, the Applicant submitted because they (being the police) are not victims they cannot feel what a victim would feel.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Applicant’s Grounds of Review do not establish jurisdictional error and should be dismissed.
Grounds 1 and 2
The Applicant appears to assert that the Tribunal was prejudiced against him on account of its finding that he could access protection from Taiwanese authorities, and as such did not face a real risk of significant harm.
The Minister notes that allegations of bias are serious and must be firmly and distinctly made and clearly proven.[23] The Applicant has failed to provide particulars as to the allegation that the Tribunal held a pre-existing state of mind in its reasons. The Minister submits that no inference of bias or prejudgment can be drawn from the mere fact that the Tribunal made adverse findings to the Applicant.[24]
[23] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) per Gleeson CJ and Gummow J at [69].
[24] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21].
The Minister submits that these grounds are without basis and cannot succeed.
Ground 3
Ground 3 appears to assert the Tribunal erred by “discrediting” the Applicant for failing to make a further police report regarding threats experienced since his first report. To the extent this ground is making an assertion of bias, the Minister relies on its submissions outlined in Grounds 1 and 2.
The Minister submits that the Tribunal’s Decision did in fact accept the Applicant’s claims of past harm during the first incident in 2013 which was reported to Taiwanese police.[25] The Minister submits that it was open for the Tribunal to find that the Applicant could receive adequate protection from authorities upon return.[26]
[25] CB 124 [12]-[13].
[26] CB 127 [31].
Ground 4
The Applicant asserts the Tribunal made an unreasonable presumption in finding that the Applicant would not face significant harm if returned.
The Minister submits that the Tribunal did not err in applying the relevant legislative criteria to determine whether the Applicant satisfied s 36(2)(a) and s 36(2)(aa) of the Migration Act. The Tribunal clearly considered the Applicant’s claim to fear harm from loan sharks in its decision. The Tribunal’s findings were based on rational grounds that were logically probative to the issue of whether the Applicant would face serious or significant harm.
The Minister contends that the Tribunal was not required to accept the Applicant’s claims uncritically.[27] The weight afforded to the Applicant’s claims and evidence was a matter for the Tribunal alone.[28] The Minister submits that Ground 4 rises no higher than a disagreement with the Tribunal’s Decision and otherwise seeks impermissible merits review.
[27] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 per Kirby J at [596]; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1991) 52 FCR 437 per Beaumont J at [451].
[28] Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 per Kiefel, RD Nicholson and Downes JJ at [5]–[7]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALR 630 per French, Sackville and Hely JJ at [46].
The Minister supplemented his written submissions with oral submissions at the hearing.
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.[29]
[29] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“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.[30] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[31]
[30] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O’Callaghan JJ at [17].
[31] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT) at [2].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[32] 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”.[33] Different kinds of error may overlap.[34] The categories are not closed.[35]
[32] Plaintiff S157/2002.
[33] LPDT at [3].
[34] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[35] 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.[36] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[37] It has been described as an “undemanding” standard.[38]
[36] LPDT at [7].
[37] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[38] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].
Protection Visas (Subclass 866)
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 Migration Regulations 1994 (Cth) (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”[39] as defined by s 5J.
[39] 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 visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Regulations.
CONSIDERATION
Grounds 1 and 4
Grounds 1 and 4 appear to be broadly similar.
Ground 1 is that:
AAT has prejudice against not be a real risk that am will suffer significant harm in my country.
Ground 4 is that:
AAT tried to discredit me by making unreasonable presumption that I will not face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia.
Grounds 1 and 4 could be construed in two ways: first, as a claim that the Tribunal’s Decision is affected by bias; and second, as a claim that the Tribunal’s Decision is unreasonable, illogical or irrational.
An allegation of bias must “be distinctly made and clearly proved”.[40] The test for actual bias is where a decision-maker has “a state of mind so committed to a conclusion already formed as incapable of alteration, whatever evidence or arguments may be presented.”[41] The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring a fair and impartial mind to the making of the decision.[42]
[40] Jia Legeng per Gleeson CJ and Gummow J at [69].
[41] Jia Legeng per Gleeson CJ and Gummow J at [72].
[42] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
I can see no basis in the material before the court for a conclusion that the Tribunal’s Decision is affected by actual or apprehended bias. It goes without saying that the Tribunal’s rejection of the Applicant’s claims is not itself a basis for a conclusion of bias.
I turn then to the question of whether the Tribunal’s Decision is unreasonable, illogical or irrational. The immediate difficulty with this characterisation, is that the complaint in respect of Grounds 1 and 4 is expressed at a high level of generality. If unreasonableness, illogicality or irrationality is alleged, it is not explained. Because the Applicant was self represented before me, I have considered the Tribunal’s Decision to see whether jurisdictional error is apparent,[43] and not identified any jurisdictional error or arguable jurisdictional error.
[43] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (MZAIB) at [113].
Finally, to the extent that what the Applicant seeks is merits review, the proper role of the court on a judicial review is not to review the merits of the administrative decision-maker’s decision.[44] Weighting of evidence is a matter for the decision maker.[45]
[44] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) per Brennan CJ, Toohey, McHugh and Gummow JJ at p 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at [53]–[54].
[45] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held at [33].
I am not satisfied that jurisdictional error is made out by reference to Grounds 1 and 4.
Grounds 2 and 3
Grounds 2 and 3 appear to be broadly similar.
Ground 2 is that:
AAT was prejudiced and formed the view I should have reported the drug mule case to police. So it may reduce become a drug mule.
Ground 3 is that:
AAT tried to discredit me with the fact I should went to report the police since first incident engaging.
The genesis of Grounds 2 and 3 is found at [11] of the Tribunal’s Decision:[46]
The applicant fears loan sharks. He claims to have been threatened as well as physically harmed. He claims that they threatened to break his limbs or force him into drug running until he paid off his debts. He claims that he was shown that he owed 1.7 million Taiwanese dollars despite first being told that he owed 800,000. He hasn't paid off any of the debt since he came to Australia because he doesn't think it's fair. He said that he didn't know that they would charge that much interest and they told him that if he was to pay back the loan every month they promised that they wouldn't increase the interest but they did.
[46] CB 124 [11].
The Tribunal recorded that the Applicant expressed concern that if he were to return to Taiwan, he would be forced to be a drug mule.[47]
[47] CB 127 [30].
Having considered these claims, the Tribunal concluded:[48]
I accept that was the applicant to be harmed he would face significant harm as defined in the Act. Due to the limited intensity level the gang has shown in pursuing the applicant while he was in Taiwan over five years ago I find that by engaging with the police again with the additional evidence of harm he has faced since his first police report including the additional threats he had received it would provide a higher level of deterrence or the police would provide better protection than previously and that this level would be such that the risk he faces would be less than a real risk. As such I find that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia.
[48] CB 127 [31].
Grounds 2 and 3 could construed in three ways: first, as a claim that the Tribunal’s Decision is affected by bias; and second, as a claim that the Tribunal’s Decision is unreasonable, illogical or irrational; third, as a request for merits review.
For the reasons given earlier, I do not consider that there is any basis to challenge the Tribunal’s Decision on the ground of actual or apprehended bias.
I turn then to the question of whether the Tribunal’s conclusion in relation to the Applicant’s failure to report the matter to the police (for a second time) and its conclusion that the Applicant “does not face a real risk of significant harm” are unreasonable,[49] irrational or illogical or otherwise flawed. The Tribunal’s conclusion was premised on a finding of “limited intensity” of gang pursuit over five years. The Tribunal found that further engagement with police, presenting the further evidence of threats since his first report, would provide a higher level of deterrence or the police would give better protection. These findings were ones that were open to the Tribunal and logically probative of the conclusion that it reached.
[49] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].
Finally, to the extent that what the Applicant seeks is merits review, the proper role of the court on a judicial review is not to review the merits of the administrative decision-maker’s decision.[50]
[50] Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at p 272; Abebe at [53]–[54].
I am not satisfied that jurisdictional error is made out by reference to Grounds 2 and 3.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[51] the Application for review must be dismissed.
[51] Noting the comments of Mortimer J (as her Honour was then) in MZAIB at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that that the application succeeded or was dismissed. In the event that the Application was dismissed, the Minster sought costs in the sum of $5,000 being less than the scale amount.[52] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[53] I am further satisfied that it is appropriate to make an order for payment of the amount sought by the having regard to the scale and the extent of work undertaken as evidenced by the court file.[54]
[52] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
[53] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[54] See 25.14 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 28 August 2025
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