BUJ20 v Minister for Immigration and Citizenship

Case •

[2025] FedCFamC2G 739

•

23 May 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BUJ20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 739  

File number(s): SYG 1027 of 2020
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 23 May 2025
Catchwords:  MIGRATION– Protection (class XA)(subclass 866) visa – whether the Administrative Appeals Tribunal (the Tribunal) considered whether there was a real chance of significant harm to the applicant on return to Greece where her resident permit had expired – whether the Tribunal’s decision was legally unreasonable – application dismissed   
Legislation:  Migration Act 1958 ss 5(1), 36(2), 36(2A), 36(3)
Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503

BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475

Boddington v British Transport Police [1999] 2 AC 143

BQG21 v Minister for Immigration [2023] FCA 865

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21

Markaj v Minister for Immigration [2020] FCA 1511

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration v Li (Li) (2013) 297 ALR 225; [2013] HCA 18

Minister for Immigration v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration v SZRKT [2013] FCA 317; 212 FCR 99

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 535

Selvaduri v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347; [1994] FCA 301

 SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403

Division: Division 2 General Federal Law
Number of paragraphs: 68
Date of hearing: 13 May 2025
Place: Parramatta
Counsel for the Applicant: Mr Jones
Solicitor for the Applicant: Mr Panwala (Unisaj Legal)
Solicitor for the First Respondent: Ms Lloyd (Minter Ellison)
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 1027 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BUJ20

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

23 MAY 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The application is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,900.00.

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 D HUMPHREYS

INTRODUCTION

  1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) dated 6 April 2020 to affirm the refusal made by a delegate of the Minister for Immigration and Border Protection (“the delegate”) to grant the applicant a Protection (class XA) (subclass 866) visa (“the visa”).

  2. For the reasons outlined below, the application should be refused.

    BACKGROUND

  3. The applicant is a 62-year-old female national of Iraq. She is of Christian and of Armenian ethnicity.

  4. In 1994, the applicant departed Iraq with her husband and their three children and, following a short stay in Jordan, moved to Greece.

  5. Following their daughter’s move to Australia, the applicant and her husband travelled to Australia in June 2014 on visitor visas. Subsequently, one of the applicant’s sons migrated to Australia, whilst the other has continued to reside in Greece.

  6. The applicant applied for the visa on 29 July 2014. Her husband was included in the application as a member of her family and did not make his own claims. Sadly, he has since passed away.

  7. In a statement attached to the visa application, the applicant made the following claims:

    ·The applicant’s husband was a motor mechanic in Baghdad, and in the course of an altercation with a customer, her husband was physically beaten, verbally abused, and detained. As a result of the physical torture the applicant’s husband endured, his hearing was affected, and subsequently, his business failed. The applicant also suffered a miscarriage due to extreme fear. The applicant and her husband later became aware that the customer was an associate of Saddam Hussein.

    ·On 15 April 1994, the applicant, her husband and their three children fled Iraq and stayed in Jordan for approximately two months.  On 23 June 1994, the applicant, her husband, and their children moved to Greece. The applicant and her husband did not apply for protection in Greece as they were afraid that the regime would find out and harm their relatives in Iraq, and they were concerned they would be deported back to Iraq.

    ·The applicant received bad treatment from the Greek authorities, and her children were deprived of their right to go to school.

    ·During the time the applicant resided in Greece, there was ‘a wave of hatred’ towards immigrants, foreigners and refugees, with all immigrants and refugees in Greece living in fear and insecurity.

    ·The applicant’s son was attacked in a park by a group of Black Shirts, an organisation affiliated with the extremist Golden Dawn Party.

    ·The applicant became afraid of walking in the streets in broad daylight and could not go to public places.

    ·The applicant and her family also encountered bad treatment at the hands of the Greek police.

    ·The applicant and her family were abused and physically searched in the streets.

    ·The applicant and her husband came to Australia to visit their daughter and were shocked to hear the news about Islamic State of Iraq and the Levant and the killings in Iraq on a daily basis.

    ·The applicant claimed that Armenians had been a target of these attacks in Iraq and Syria.

  8. On 9 December 2014, the delegate refused the visa application.

  9. On 25 July 2016, the applicant applied to the Federal Circuit Court of Australia for judicial review of the first Tribunal’s decision.

  10. On 17 July 2018, the Court remitted the matter, by consent, to the Tribunal to be reconsidered and determined according to law. This was on the basis of the Tribunal's failure to consider the integral claims raised by the applicants, namely the applicants' fear of harm in Greece due to their skin colour and ethnicity.

  11. On 28 October 2018, the applicant’s husband passed away.

  12. The applicant appeared before the Tribunal on 30 October 2019 and again on 20 March 2020 to give evidence and present arguments in support of her application.

  13. On 6 April 2020, the Tribunal affirmed the decision not to grant the applicant the visa. The Tribunal found that the applicant did not meet the criteria for the grant of the visa under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (“the Act”).

  14. The applicant now seeks judicial review of the second Tribunal’s decision of 6 April 2020.

    THE TRIBUNAL’S DECISION

  15. The applicant submitted at [34], that as a consequence of the COVID-19 pandemic, the applicant falls within a vulnerable group, being over the age of 60, with underlying physiological and mental health issues, and she would be unable to get the medical help that may otherwise be available to her in Australia.

  16. At [41], the Tribunal identified the task before them as determining whether the applicant was a person in respect of whom Australia has protection obligations and, if so, whether protection is available to her in another country, namely Greece.

  17. At [48], the Tribunal accepted that the applicant had a well-founded fear of persecution in Iraq and would face serious harm in Iraq due to her religious faith, as well as her status as a widow. Further, the Tribunal found that there would not be adequate or effective state protection available to the applicant, nor would she be able to relocate internally in Iraq to avoid this harm.

  18. At [49], the Tribunal outlined that the qualification in s 36(3) of the Act provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.

  19. At [58], the Tribunal found that the applicant had a right to enter and reside in Greece as she held a 10-Year-Residence-Permit (“residence permit”) that would expire in September 2022, and that she had not taken all possible steps to avail herself of this right [59].

  20. In relation to the applicant's claims regarding Greece, the Tribunal at [60], was prepared to accept that the applicant's younger son had been assaulted by individuals suspected of being part of an anti-immigrant group, that her older son's business had been damaged, that the family had suffered occasional verbal and physical harassment, and that the Greek police had physically harassed her son. The Tribunal found that these claims were consistent with country information in relation to the situation in Greece at that time.

  21. Further, at [71]–[72], the Tribunal found that the applicant did not fall into a category of an 'at risk' person in relation to COVID-19, nor would she be denied access to health or medical services in Greece.

  22. At [73], the Tribunal stated:

    There was no persuasive evidence before the Tribunal, and the Tribunal is not satisfied, that there is a real chance that the applicant will experience significant economic hardship, or will be denied access to basic services or will be denied the capacity to earn a livelihood, where such hardship or denial threatens her capacity to subsist. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Greece for reasons of her race, religion, nationality, membership of a particular social group or political opinion.

  23. Further, at [74], the Tribunal did not accept that there is a real risk that the applicant would face significant harm in Greece at the hands of the Black Shirts, members of the Golden Dawn Party, other groups or individuals, the police or other state officials. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right to enter and reside in Greece, there would be a real risk that she would suffer significant harm, as defined in ss 36(2A) and 5(1) of the Act, in relation to the country.

  24. At [75], the Tribunal stated that the applicant is a holder of a resident permit valid until September 2022, that the applicant did not claim, and there was no evidence before the Tribunal to indicate, that there was any likelihood, let alone a real chance or a real risk, that the Greek authorities will return her to Iraq. Further, the Tribunal took into account the country information before it, suggesting that the Greek Government provides protection against the expulsion of refugees where their lives or freedom would be threatened, and the law provides for the granting of asylum or refugee status.

  25. As such, the Tribunal found, at [76], that the applicant does not have a well-founded fear that Greece will return her to Iraq or any other country where she will be persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion; or where there are substantial grounds for believing that there would be a real risk that she will suffer significant harm.

  26. At [77], the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations, and therefore, did not satisfy the criteria set out in s 36(2)(a) or (aa) of the Act for a protection visa.

  27. Accordingly, at [79], the Tribunal affirmed the delegate's decision not to grant the applicant the visa.

    GROUNDS OF JUDICIAL REVIEW

  28. The applicant advances one ground of judicial review contained in an Originating Application filed on 25 June 2020. It is as follows:

    The Tribunal made a jurisdictional error in relation to the circumstances of the Applicant following the lapse of her permission to remain in Greece.

    a. The Tribunal was required to give proper consideration to the statutory test: SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 at [69].

    b. The Applicant’s case, which is required to be considered properly by the Tribunal in order for it to perform its function of review, includes matters arising from the Tribunal’s own findings with respect to the Applicant’s case: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [26].

    c. Proper consideration required the Authority to engage in an active intellectual process directed towards the Applicant’s case: see Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165 at [53], [60].

    d. The Tribunal had to refrain from findings or reasoning en route to its conclusion which were legally unreasonable, including in the sense of lacking an intelligible justification, and were material to the result: BQG21 v Minister for Immigration [2023] FCA 865 at [29], [39]-[44]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47].

    e. The Tribunal found at paragraphs 58-59 of its decision that, as the holder of a valid Ten-Year Residence Permit for Greece, thereby exempted from travel restrictions to Greece, the Applicant had not taken all possible steps to avail herself of the right to enter Greece.

    f. The Tribunal found at paragraph 60 of its decision that the Applicant had witnessed in Greece “acts of discrimination, abuse and violence being directed at asylum seekers and migrants in Greece” and that the Applicant and her family had experienced abuse.

    g. The Tribunal found at paragraph 68 of its decision that it “appreciates that there are reported instances of Greek police perpetrating acts of discrimination, abuse and degrading treatment against migrants. These reports suggest that these acts were primarily directed at [relevantly] asylum seekers …”.

    h. The Tribunal found at paragraph 75 of its decision that the Applicant’s permission to remain in Greece would lapse in September 2022 and further noted that Greece would likely not expel the Applicant beyond this period because she would be a refugee or asylum seeker.

    i. The Tribunal did not consider or did not properly consider whether there was a real chance that the acts of discrimination, abuse and degrading treatment would thereafter be suffered by the Applicant as an asylum seeker.

    j. The Tribunal’s conclusion that the Applicant did not face harm was in the circumstances legally unreasonable as its findings or reasoning did not relevantly extend to the circumstances of the Applicant following the expiration of her permission to remain in Greece.

    In any event, the Tribunal did not grapple with the Applicant’s chance or risk of harm in circumstances where she was not the primary target of harm by the Greek police but may be a secondary object of such harm.

    THE APPLICANT’S SUBMISSIONS

  29. The applicant submitted that the Tribunal is required to actively engage with the applicable statutory test (SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 at [69] per Katzmann J). This included the real chance test, which requires a chance that may be substantial and is at least not remote or far-fetched, regardless of whether it is less or more than fifty percent (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ, 398 per Dawson J, 407 per Toohey J, 429 per McHugh J; Minister for Immigration v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] per Lander and Gordon JJ, [297] per Besanko and Jagot JJ, [342] per Flick J).

  30. It was submitted that the Tribunal must engage with the applicant’s case (Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165 at [53], [60] per Feutrill J), including matters arising from the Tribunal’s own findings of fact (AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [26] per Collier, McKerracher and Banks-Smith JJ).

  31. The applicant submitted that the Tribunal must not make findings of fact or engage in reasoning in determining a conclusion that is not reasonably open and, if it does so, its decision may be invalid for the jurisdictional error of legal unreasonableness (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47] per Griffiths, Perry and Bromwich JJ; see also, in particular, Minister for Immigration v SZRKT [2013] FCA 317; 212 FCR 99 at [148] per Robertson J).

  32. It was further submitted that another test is to ask whether there is no evident or intelligible justification for the Tribunal’s finding or reasoning (BQG21 v Minister for Immigration [2023] FCA 865 at [29], [39]-[44] per Mortimer CJ).

  33. The applicant submitted that the above errors do not travel in “watertight compartments” and may instead in their application overlap with one another (Boddington v British Transport Police [1999] 2 AC 143, 152 per the Lord Chancellor, Lords Browne-Wilkinson, Slynn and Hoffmann agreeing; Markaj v Minister for Immigration [2020] FCA 1511 at [27] per Kenny J).

  34. It was submitted that the Tribunal failed to observe the above structures in the applicant’s case.

  35. The applicant went on to summarise the Tribunal’s reasoning as follows:

    a.The Tribunal found that the Applicant had been harmed in the past by the Greek police (at [60]).

    b.The Tribunal found that the Applicant was entitled to return to and be lawfully present in Greece until September 2022 ([50], [51], [58]);

    c.The Tribunal found that there was no certainty that the Applicant’s permit would be renewed but Greece would not return her as a legitimate asylum seeker to harm in Iraq ([60]);

    d.The Tribunal accepted there had been credible reports of mistreatment of non-citizens by the Greek police but that they were “primarily directed at undocumented migrants, asylum seekers and Roma” ([68]);

    e.The Tribunal found that the Applicant did not face a relevant chance or risk of serious or significant harm from the Greek police (at [69], [74]).

  36. The applicant submitted that the flaw in this reasoning is readily apparent; it represents a want of logic or insufficient engagement with the statutory test and the Tribunal’s own findings of fact. The Tribunal bases its finding that the applicant does not face harm from the Greek police in substantial part on the fact that recent mistreatment by the Greek police has been “primarily directed at undocumented migrants, asylum seekers and Roma.” It draws a contrast between such persons and the applicant, who has lawful permission to remain in Greece.

  1. Whilst the applicant accepted the Tribunals finding at [68], that Greek authorities are investigating the misconduct by police, the applicant submits that this does not amount to a finding of effective protection or absence of harm.

  2. It was submitted that the Tribunal’s contrast between the applicant and the primary target of Greek police may be valid for so long as her lawful permission to remain in Greece lasts, yet the applicant’s permission expired in September 2022 and, as the Tribunal acknowledges at [51], its renewal was not a foregone conclusion.

  3. It was further submitted that it was not apparent that the applicant meets the conditions for renewal identified by the Tribunal at [50], given her absence for some years from Greece.

  4. The applicant submitted that there was no reason to doubt the Tribunal’s observation at [74] that the applicant would not be deported by the Greek authorities as a genuine refugee, however, it meant that the applicant would once again become, at least for a period, an asylum seeker. Accordingly, the applicant may not have fallen outside the primary targets for mistreatment by the Greek police.

  5. It was submitted that even if there were a distinction between the applicant and the primary targets for mistreatment by the Greek police, this would not necessarily exclude a real chance or risk of relevant harm. The Greek police might have secondary subjects of harm, perhaps indicated by the harm suffered by the applicant and her family in the past. The applicant submitted that this was an insufficient approach to the statutory test, as the fact that one is not a primary target of harm does not equate with the absence of a real chance or risk of such harm.

    THE FIRST RESPONDENT’S SUBMISSIONS

  6. The First Respondent submitted that the Tribunal plainly considered the applicant's claim, in circumstances where it:

    •accepted the applicant may not be successful in renewing her residence permit in accordance with the relevant statutory requirements, noting it would expire in September 2022 (CB 426–427 at [50]–[51]);

    •considered and accepted the applicant's claim that 'the Greek police had physically harassed her son on one occasion' and 'other members of her family, had experienced occasional abuse, as well as being 'poked' or pushed', which was consistent with country information regarding the situation in Greece 'at that time' (CB 467 at [60]);

    •considered country information that indicated a crackdown on extremist organisations including the Golden Dawn Party, that members of that party had been prosecuted for racially motivated violence against migrants and refugees, that there had been a decline in instances of violence perpetrated by the Golden Dawn party, that Greece had strengthened its anti-racism legislation, and that laws are generally enforced by the authorities in Greece (CB 468–469 at [63]–[67]).

    •observed that 'there are reported instances of Greek police perpetrating acts of discrimination, abuse and degrading treatment against migrants. These reports suggest that these acts were primary directed at undocumented migrants, asylum seekers and Roma' with reference to country information, but noted that there are 'credible reports' that 'Hellenic Police Directorate for Internal Affairs and the ombudsman have been actively engaged in investigating numerous cases of police abusing their authority'(CB 469 at [68]; 470 at [74]);

    •having regard to the evidence before it, concluded the applicant did not face a real chance of serious harm in Greece at the hands of the police for reason of a membership of any particular social group including foreigners or 'strangers' in Greece, immigrants in Greece, female immigrants in Greece, immigrations of Iraqi background in Greece, immigrants of Armenian Christian background in Greece or any other subsets of these groups (CB 469 at [69]; 470 at [74]); and

    •noted that to the applicant did not claim, and there was no evidence before the Tribunal to indicate, the applicant was at a real chance or real risk of harm of being returned to Iraq by the Greek authorities (CB 470 at [75]).

  7. It was submitted that the Tribunal accepted the applicant's family was previously the subject of certain incidents committed by the Greek police, and that this was consistent with the country information before the Tribunal in relation to the situation in Greece at that time (CB 469 at [60]). Nevertheless, the Tribunal ultimately concluded there was no real chance of serious harm to the applicant, given the available evidence before it, which relevantly included credible reports that government authorities were actively engaged in addressing police abuse (CB 469 at [68]). The First Respondent submits that this analysis was a sufficient basis for the Tribunal's ultimate findings (CB 469 at [69]; 470 at [74]). Further, the weight attributed to country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ. It was further submitted that its decision was not one that no rational or logical decision maker could arrive at on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]–[131] per Crennan and Bell JJ.

  8. Further, the First Respondent submitted that at [69] the Tribunal concluded that there was not a real chance that the applicant would face serious harm in Greece for the reason of her membership of any particular social group including “foreigners or ‘strangers’ in Greece, immigrants in Greece, female immigrants in Greece, immigrants of Iraqi background in Greece, immigrants of Armenian Christian background in Greece or any other subsets of these groups”, with this language being clearly broad enough to encapsulate asylum seekers.

  9. It was submitted that there was nothing in the Tribunal's findings to indicate that its conclusions about the risks of the applicant facing harm in Greece were limited to the date of the expiry of the applicant's residence permit. To read in such a limitation to the Tribunal's reasoning is to read them with an eye too finely attuned to error.

  10. The First Respondent submitted that the applicant seeks impermissible merits review by contending that the Tribunal erred in failing to grapple with the applicant's 'chance or risk of harm in circumstances where she was not the primary target of harm by the Greek police but may be a secondary object of such harm'. It was submitted that the Tribunal considered harm faced by migrants more generally and the former harm faced by the applicant and her family, that the Tribunal did not distinguish between 'primary' and 'secondary' objects of harm; nor was it required to do so, and rather, the Tribunal accepted the evidence regarding harm faced by migrants and reports of harassment against the applicant's family members, and evaluated the applicant's claims in the context of this evidence and the available country information.

    CONSIDERATION

  11. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

  12. In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:

    It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].

  13. It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.

  14. Nor does the Tribunal Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvaduri v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348

  15. It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.

  16. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

  17. The sole ground of judicial review is that the Tribunal made a jurisdictional error in relation to her lapse of permission to remain in Greece. What follows is ten particulars as set out above.

  18. First, it is to be noted that, as at the date of the Tribunal decision, the applicant had a 10-year Greek resident permit. That permit expired in September 2022. It was on this basis that the Tribunal, which handed down its decision in in April 2020, found the applicant had not taken all possible steps to avail herself of this right, rather she had elected to travel from Greece to Australia, notwithstanding her Greek residence right and then claim protection in Australia.

  19. As noted by the First Respondent, particulars (a) – (d) set out legal principles and are not grounds of judicial review. The Court agrees with this submission.

  20. Again, as noted by the First Respondent, particulars (e) – (h) summarise the Tribunal’s findings and are not grounds of judicial review.  The Court also agrees with this submission. Grounds of judicial review and particulars should be just that, not in effect shorthand submissions.

  21. This leaves particular (i) and (j) for consideration. Particular (i) contends that the Tribunal did not properly consider whether there was a real chance of harm that would be suffered by the applicant should she return to Greece and once her permission lapsed. However, the Tribunal found at [77], and it is not contested by the applicant, that it was unlikely Greece would expel her after her resident permit expired.

  22. At [60], the Tribunal found it was prepared to accept that prior to the applicant’s departure for Australia, she had witnessed acts of discrimination, abuse and violence being directed at asylum seekers and migrants in Greece. The Tribunal accepted that on one occasion, the applicant’s youngest son was assaulted by unknown individuals suspected of being affiliated with extremist anti-immigrant groups and that her older son’s business was damaged.

  23. The Tribunal then surveyed relevant country information at [61] – [67]. While this information noted that there had been issues in 2012 and 2013, particularly relating to a political party known as “Golden Dawn”, members of this party had been prosecuted for racially motivated violence against migrants and refugees (at [64]). As a result, there had been a decline in instances of violence. Further, Greece had strengthened its antiracism legislation with penalties for racist crimes having been increased. Significantly at [67], according to the US State Department, these laws are generally enforced by authorities in Greece.

  24. The applicant takes issue with the wording in [68] where the Tribunal noted there were still reported instances of Greek police perpetrating acts of discrimination, abuse and degrading treatment against migrants. However, these reports suggested that the acts were primarily directed at undocumented migrants, asylum seekers and Roma. The Tribunal also noted credible reports that police internal affairs and the Greek ombudsman had been actively engaged in investigating numerous cases of police abusing their authority.

  25. The applicant contends that the Tribunal failed to adequately determine the risk that the applicant faced on the basis that while she may be a person with a residence permit up until 2022, it did not consider the risk she might face, if she was not granted a further residence permit and in fact became an asylum seeker at that point.

  26. The Court does not accept this submission. The decision must be read as a whole and not with an eye finally attuned to error. At [69], the Tribunal did not accept that the applicant would face a real risk of serious harm at the hands of black shirts, members of the Golden Dawn party, other groups or individuals, the police or other state officials for reasons of her race and other characteristics.

  27. In coming to this conclusion, the Tribunal properly set out the relevant country information and then assessed it in relation to the matters that were put forward by the applicant. The final conclusion is not one that no rational or logical decision maker could arrive at on the same evidence. It was a conclusion that was open to the Tribunal based on the evidence that was before it and for the reasons it gave. This particular has no merit.

  28. Particular (j) is simply a reframing of particular (i) by claiming that the conclusion arrived at is legally unreasonable. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (Li) (2013) 297 ALR 225 at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].

  29. The Court is not satisfied the ultimate conclusion arrived at lacked either “an evident and intelligible justification” or was one that no reasonable decision-maker could have come to, for the same reasons as set out above. Particular (j) has no merit.

  30. The last particular is not given a subparagraph number or letter but claims, however, that the Tribunal did not grapple with the applicant’s chance of a risk or harm in circumstances where she was not the primary target of harm by Greek police but maybe a secondary object of such harm. The Court accepts the submission of the First Respondent that the Tribunal considered harm faced by migrants more generally and the former harm that had been faced by the applicant and her family at the hands of police and others. The country information, which was accepted by the Tribunal, found evidence of harm faced by migrants and accepted her reports of harassment against the applicant’s family members. The Tribunal evaluated the applicant’s claims in the context of this evidence and the available country information and concluded, that there was not a real chance of serious harm.  This, by necessity, included the risk of harm as a secondary subject of harm. There is nothing in the legislation or case law which requires the Tribunal to consider primary and secondary objects of harm. All that is required is for the Tribunal to consider whether there was a real risk of harm to the applicant should they be returned. In this matter the Tribunal found there was not such a risk to this applicant.

  31. Again, this was a conclusion that was open to the Tribunal based on the evidence before it and for the reasons it gave. This particular, has no merit, and if anything, is simply an invitation for the court to engage in impermissible merits review.

    DETERMINATION

  32. As the sole ground of judicial review does not have any merit, the application must be dismissed with costs.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       23 May 2025

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