CGN18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 482

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CGN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 482

File number(s):

SYG 1252 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

9 April 2025

Catchwords:

MIGRATION - Whether Tribunal erred by failing to take in account evidence and relevant considerations – proceedings twice adjourned because of adjournment of related case in circumstances where interpreter in Court was same as interpreter from Tribunal hearing and allegations made in those proceedings about adequacy of interpreter and bias

Cases cited:

BAX15 v Minister for Immigration and Border Protection [2016] FCA 491

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

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

WAHY v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 76

Division:

General Federal Law

Number of paragraphs:

47

Date of hearing:

11June 2024
19 August 2024
23 September 2024 

Place: 

Sydney

The Applicants: 

First applicant in person

Solicitor for the Respondents:

Ms Wilford, Sparke Helmore Lawyers

ORDERS

SYG 1252 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CGN18

First Applicant

CGO18

Second Applicant

CGP18 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MUTLICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	9 APRIL 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to read “Minister for Immigration and Multicultural Affairs”.

2.The application filed on 30 April 2018 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN:

1. By an application to show cause filed with this Court on 30 April 2018, the applicants seek review of a decision of the Tribunal (Tribunal) made on 28 March 2018, affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicants Protection (class XA) (subclass 866) visas (visas).

   BACKGROUND

2. These proceedings have been heard (as was also the case before the Tribunal), consecutive to the proceedings of another applicant who is the husband of the first applicant, and the father of the remaining applicants in these proceedings: see CFP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 483 (CFP18).  Where relevant, these reasons will cross-refer to the reasons in CFP18.  The background to the application is derived from the submissions of the first respondent, the Court Book and the Court file.  Unless otherwise indicated, it does not appear to be in dispute.

3. The applicants, who are citizens of Fiji, arrived in Australia on 25 December 2016 as the holders of visitor (subclass 600) visas (Court Book (CB) 21).  The first applicant (applicant) had previously travelled to Australia in 2012 (CB 24).  The second, third and fourth applicants are the applicant’s minor children.

4. On 27 February 2017, the applicants applied for the visas.  The applicant claimed to fear harm in Fiji from the military and police because of their interest in her husband, who separately applied for protection in Australia.  She claimed that the military attended her family home looking for her husband (CB 32 to 34).

5. On 15 June 2017, the delegate refused to grant the applicants the visas (CB 140 to 151).

6. On 29 June 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 153 to 159).  On 8 February 2018, the applicant attended a hearing before the Tribunal (CB 171 to 174).

7. On 28 March 2018, the Tribunal affirmed the delegate’s decision (CB 179 to 187).

   Tribunal decision

8. The Tribunal considered the applicant’s claims concerning an incident involving her husband and the military, in which she claimed her husband was beaten by the military after he parked a government vehicle at his home overnight (CB 182 at [26]).  On the basis of the applicant’s own evidence that she herself had never experienced harm in Fiji, and was able to depart Fiji without any problems, the Tribunal found the applicant was of no interest to the security authorities when she left Fiji (CB 182 at [27]).

9. The Tribunal did not accept that the applicant would face harm on return to Fiji arising from the circumstances of her husband.  It noted that while the applicant had expressed a fear that the military might press some kind of false charges against her husband, she had confirmed that this was only speculation and that she did not have any evidence to substantiate the fear (CB 183 at [28]).

10. As to the applicant’s “generalised fear of insecurity in Fiji”, the Tribunal recorded having discussed country information with her which indicated that there was no evidence that ordinary persons in Fiji were targeted.  The Tribunal found it unlikely that someone without a profile in Fiji (such as the applicant), would face harm from the Fijian military (CB 183 at [29]).

11. The Tribunal considered the applicant’s claimed fears about her ability to practise as a Christian, but found that Fiji’s Constitution guaranteed freedom of religious belief for all Fijians.  It did not attach weight to a video clip of the Fijian Prime Minister that the applicant showed at hearing because of a media report in the Fiji Sun newspaper suggested it was a “fake video” (CB 183 at [30]).

12. The Tribunal then considered the two-month delay between the family’s arrival in Australia and their application seeking protection.  The Tribunal was not persuaded by the applicant’s explanation that the delay was because she felt safe in Australia and did not feel the need to apply earlier.  In the Tribunal’s view, the applicant was driven by the fact her visitor visa was due to expire, rather than any genuine fear of serious or significant harm in Fiji (CB 183 at [31]).

13. In light of its concerns, the Tribunal was not satisfied that the applicant would be targeted, threatened or harmed by the Fiji security authorities including the military, in relation to her husband or for any of the other reasons claimed.  The Tribunal was not satisfied that she faced a real chance of serious harm or a real risk of significant harm in Fiji (CB 184 at [32] to [33]).  It followed that the second, third and fourth applicants also were not found to face the requisite level of harm and could not be granted protection visas as members of the same family unit (CB 184 at [34]).

    APPLICATION TO THIS COURT

14. As noted above, the applicants commenced the present proceedings by an application to show cause filed with the Court on 30 April 2018.  At the time the proceedings were commenced, the applicants were represented by a solicitor.  The matter was initially docketed to another Judge of the Court (first primary Judge).  On 18 May 2018, the first primary judge made orders by consent.  By those orders the applicant was appointed as the litigation guardian of the second to fourth applicants (inclusive), who are her children and were all minors at that time.[1]  The first primary Judge also made orders for the matter to be listed for hearing before him at a time to be notified to the parties administratively.  Orders were made for the preparation of the matter for hearing, including a grant of leave to the applicants to amend their application by 16 July 2018. 

    [1] The second applicant has since reached his majority, and was 21 years of age at the time of the hearing in this Court.  However, at the first hearing before me the first applicant confirmed she still wished to act as his litigation guardian. Absent the vacation of the initial orders, and in circumstances where the second applicant did not attend to any of the three hearings to contradict the first applicant’s position, I am satisfied that the first applicant was entitled to represent him.

15. Presumably because the applicants were initially represented, they did not avail themselves of the opportunity to file an amended application in accordance within that grant of leave.   On 5 May 2019, the applicants’ solicitor withdrew as their lawyer in the proceedings. 

16. The proceedings were later placed in the central migration docket and were next called over by a Registrar of the Court on 29 August 2023, on which occasion the applicant appeared by Microsoft Teams. 

17. On 28 March 2024, the proceedings were docketed to me, and I made orders listing them for hearing on 11 June 2024, and granting the applicant further leave to file any amended application by 14 May 2024.  The applicants and first respondent were also required to file and serve written submissions 14 and 7 days before the hearing (respectively). 

18. The applicant appeared before me for hearing on 11 June 2024.  The first respondent was represented by a solicitor.  These proceedings then thrice adjourned consequent upon an adjournment in the proceedings of the first applicant’s husband: see CFP18 at [19] to [22]. Those adjournments were consequential because the assertions made, and issues arising, in the husband’s case were such that if the allegations including in relation to the inadequate standard of interpretation and/or apprehended bias were made out, there was a real prospect that the instant applicants’ case would be affected, it having been heard and determined by the same Tribunal member as in the husband’s review proceedings, and using the same interpreter.

19. At the second hearing on 19 August 2024, the Court Book was tendered for the first respondent and marked Exhibit “1R”.  At the time the originating application was filed it was accompanied by an Affidavit in support made by the applicant which, other than annexing the Tribunal’s decision (a copy of which is in the Court Book), essentially made submissions in support of the grounds.  Accordingly, the Affidavit was received as a written submission. 

20. The first respondent filed written submissions in advance of the hearing, but outside of the time allowed by the Court.  Leave was sought and granted at hearing for the first respondent to rely on those submissions.  Other than their originating documents, the applicants have not filed any other documents since the commencement of these proceedings. 

    GROUNDS OF REVIEW

21. By the originating application the applicants raise 5 grounds of review as follows (errors in original):

    1.The tribunal failed to take into account a relevant consideration when it held that the February 2016 visit by the military to the Applicants’ home could not be taken as a threat to them.

    2.The Tribunal failed to take into account relevant considerations when it appeared to hold that only physical threats or the threat of physical threats against the Applicants could be taken seriously.

    3.The Tribunal erred in holding that only persons with a raised public profile would be targeted by the Fijian military when DFAT reports have also raised the issue of military police abuse post 2013 Constitution and 2014 elections.

    4.The Tribunal erred in holding that the Applicants would not come to harm by the Fijian authorities, when the first named Applicant’s husband was a person of interest to the Fijian authorities.

    5.The Tribunal erred in holding that the Applicants motivation for coming to Australia was to make abetter future for her family and in doing so failed to take into account the psychological fear of the military and the harm it could inflict on the applicants.

22. At the third hearing, which took place on 23 September 2024, the grounds were interpreted to the applicant who was invited to address them in turn. 

    Grounds 1 and 2

23. It is convenient to consider these grounds together because they make similar allegations, namely, that the Tribunal failed to take into account relevant considerations by its finding that:

    (a)the February 2016 visit by the military to the applicants’ home could not be taken as a threat to them (ground 1); and

    (b)only physical threats or the threat of physical threats against the applicants could be taken seriously (ground 2).

24. By the first ground, the applicants allege that the Tribunal failed to take into account a relevant consideration, by finding that the visit to their home by the military in February 2016 “could not be taken as a threat to them”.  When asked about ground 1, the applicant confirmed that this ground was an expression of disagreement with the Tribunal not having accepted the claim.  The applicant acknowledged that, in truth, the complaint was not that the claim wasn't considered, but rather that it wasn’t accepted.  When invited to make any additional submissions in respect of ground 1, the applicant said that she had nothing to add.

25. In respect of ground 2, the applicant alleges that the Tribunal failed to take into account what she faced had psychologically as a result of the military allegedly visiting the home.  When asked if this had been raised before the Tribunal, the applicant says she believed she had told the Tribunal “what I felt, what I went through, like, emotionally.”[2]

    [2] Transcript dated 23 September 2024 at T06.45 to T06.46

26. When asked if her allegation was that the claim was not taken into account, or that she was not believed, the applicant responded “Yes. Believed.”[3]

    [3] Transcript dated 23 September 2024 at T07.04

27. The first respondent says that these grounds proceed on a misunderstanding of the Tribunal’s findings.  Specifically, the first respondent says the Tribunal made no findings as alleged.  Otherwise, the first respondent says that Tribunal’s conclusions were open to it on the evidence and for the reasons it gave. I agree.

28. The applicants seek to impugn the Tribunal’s finding that the applicant would not face harm on return to Fiji in relation to her husband, this was based on the first applicant’s own evidence that:

    (a)she had never experienced harm;

    (b)she had departed Fiji without problems (CB 182 to 183 at [27]); and

    (c)her fear that the military may press false charges against her husband was acknowledged to be speculation and made without evidence (CB 183 at [28]).

29. In terms of the applicant’s claimed fear, a fair reading of the Tribunal’s decision clearly shows it was considered thoroughly (see in particular CB 183 at [28] to [30]).  The applicant was candid at the third hearing before the Court that, in actuality, her complaint was that the claim was not accepted as giving rise to protection obligations.  That is not an error.  The applicants’ challenge to the findings in question is an attempt to have the Court reach a different decision, which as explained to the applicant at hearing is not part of the Court’s task in judicial review.

30. Accordingly, grounds 1 and 2 are not made out.

    Ground 3

31. By this ground the applicants challenge the Tribunal’s rejection of the first applicant’s generalised fear of insecurity in Fiji on the basis that it was unlikely that someone without a profile in Fiji, like the applicant, would face harm from the Fijian military.

32. When asked at hearing what the applicant wished to say, she replied:[4]

    I would say it's not true.  The military didn't only went after high profile or public figures.  They went after anyone that they thought was a threat.

    in response to which the Court sought clarification as to whether the applicants’ essential complaint was that the Tribunal had not accepted the claim.  The applicant confirmed that the complaint of the applicants in respect of ground 3 was that the Tribunal erred by finding that they wouldn't come to harm because her husband was not a person of interest, which finding is said to be an error because the applicants maintain the truth of the claim.

    [4] Transcript dated 23 September 2024 at T7.17 to 20

33. The first respondent says the Tribunal’s reasons clearly discussed country information (also cited in the delegate’s decision) with the applicant and observed there was no evidence that ordinary persons in Fiji received negative attention or were targeted (CB 183 at [29]).  The first respondent contends that while the Tribunal considered the applicant’s suggestion that this was because there was no media coverage of military behaviour, the Tribunal gave more weight to the country information about the improving human rights situation in Fiji.  I agree with this characterisation of the Tribunal’s reasons. 

34. It is well established that the choice of country information, and the weight to be afforded to it, is exclusively a matter for the Tribunal: see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] to [13] per Gray, Tamberlin and Lander JJ.

35. There is no error as alleged by ground 3.

    Ground 4

36. This ground alleges that the Tribunal erred in holding that the applicants would not be harmed by the Fijian authorities, despite the claim that the applicant’s husband was said to be a person of interest.  At hearing, the applicant said this ground makes the same allegation as ground 3. 

37. The first respondent says that the ground is misconceived because, prior to considering the applicant’s generalised fear of insecurity in Fiji, the Tribunal had considered the applicant’s claims in relation to her husband and found that she would not face harm on return to Fiji on that basis. The first respondent correctly identifies that the Tribunal went on to consider the applicant’s generalised fear of insecurity in Fiji and found it unlikely that someone like the applicant, who does not have any particular profile in Fiji, would face harm from the Fijian military on return (CB 183 at [29]). The applicant’s husband is not included in the present application.  As has been discussed above, and in CFP18, the applicant’s husband made a separate application for a protection visa.  Once the Tribunal had dealt with the applicant’s claims in relation to her husband, it was not required to further consider whether the husband had a profile such that he would face harm from the Fiji military because of the general human rights situation: see CFP18 at [51].

38. I agree with the first respondent’s submissions.  To the extent that the applicants concede that this ground also goes to their general dissatisfaction with the Tribunal’s findings, and constitutes an attempt at merits review, it must also fail.

    Ground 5

39. The final ground of review contends that the Tribunal erred by finding that the motivation for the applicants’ travel to Australia was to enable them to have a better future and, in so doing, did not take into account the “psychological fear of the military and the harm it could inflict on the applicants”.

40. At hearing, the applicant said that this ground was similar to her complaint in respect of ground 2 above.  To that extent, I repeat the findings at [25] to [29] above.  

41. The first respondent says by his written submissions (which were made before the concession referred to in the preceding paragraph), that the Tribunal’s finding about the applicant’s motivation for making an application for protection was open to it, in light of:

    (a)the first applicant’s evidence that neither she nor her husband wanted to go back to Fiji, because they saw no future there with its poor economy, unemployment and poverty (CB 182 at [23]); and

    (b)the applicants’ delay in seeking protection (CB 183 at [31]). 

1. The first respondent says that it was legitimate for the Tribunal to take delay into account as a relevant factor when assessing an applicant’s fear of persecution and credibility, citing BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 at [41] per Perry J. I accept that submission.

2. Further, and as the first respondent submits, it was open to the Tribunal to conclude there was not a real chance of serious harm or a real risk of significant harm to the applicants from the military, in relation to the husband/father or in the context of the human rights situation in Fiji.  It is well established that the Tribunal does not err simply by not being satisfied on the evidence before it that there was a real chance that the applicant would suffer persecution for a Convention reason: see WAHY v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 76 at [38] to [39] per French J.

3. The first respondent submitted, as a precaution, that if the applicants were seeking to raise a new claim based on psychological harm inflicted by the military, that no such claim was made before the Tribunal, nor did it squarely arise on the materials, and therefore was not a claim that the Tribunal was required to consider: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] per Black CJ, French and Selway JJ. I agree, however, by reason of the clarification at [40] above, the allegation does not appear to go so far.

4. Ground 5 does not establish error as alleged, or at all.

   CONCLUSION

5. The applicants have not established any jurisdictional error as alleged by their application for review.  Further, to the extent that there might have been any potential error arising from the standard of interpretation at the hearing and/or the Tribunal member’s interactions with the applicant’s husband at his hearing, which immediately preceded that of the instant applicants, I find no error in that regard either for the reasons given in CFP18 (supra).

6. The decision of the Tribunal being free from jurisdictional error, is a privative clause decision.  The application must be dismissed.  I will so order, and I will hear the parties as to costs. 

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       9 April 2025

SCHEDULE OF PARTIES

SYG 1252 of 2018
Applicants
Fourth Applicant:	CGQ18