GKA18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1078
•14 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GKA18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1078
File number: MLG 3741 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 14 July 2025 Catchwords: MIGRATION – protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal – judicial review – whether Tribunal denied the applicants procedural fairness by refusing an adjournment application – whether Tribunal decision was illogical or unreasonable – whether Tribunal failed to consider relevant material – whether Tribunal decision was affected by apprehended bias – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) div 4, pt 7, ss 5H, 5H(1)(a), 5H(1)(b), 5J(1), 5J(1)(a), 5J(2)-(6), 5K–LA, 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 422B, 427(1)(b), 476, 476(1), 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) sch 2
Cases cited: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41, 288 FCR 218
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21
Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, 240 FCR 158
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submission/s: 2 June 2025 Date of hearing: 4 June 2025 Place: Melbourne Counsel for the Applicants: The applicants appeared in person Counsel for the First Respondent: Mr M Daly Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3741 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GKA18
First Applicant
GKB18
Second Applicant
GKC18
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
14 JULY 2025
THE COURT ORDERS THAT:
1.The applicants’ application for judicial review filed on 10 December 2018 is dismissed.
2.The first applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
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 Gostencnik
INTRODUCTION
On 26 September 2016, a delegate of the (then) Minister for Immigration and Border Protection refused to grant the applicants Protection (Class XA) (Subclass 866) visas. The former Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 23 November 2018. Before the Court is an application made under s 476 of the Migration Act 1958 (Cth)[1] (Act) for judicial review of the Tribunal’s decision.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
For the reasons explained below, the application will be dismissed with costs.
BACKGROUND
The first applicant is a citizen of India who arrived in Australia on 31 December 2007 as the dependant holder of a Business (Subclass 456) visa held by her spouse. The second and third applicants are her sons, who arrived on 5 June 2008 as dependant holders of a (Subclass 163) visa. The first applicant applied for and was refused a Temporary Work (Skilled) (Subclass 457) dependant visa in 2013, in respect of which she and her husband unsuccessfully sought merits and judicial review. In June 2015, the first applicant and her husband sought Ministerial Intervention in relation to their unsuccessful visa application, which was denied. On 17 August 2015, the first applicant’s spouse departed Australia.
On 25 May 2016, the applicants lodged an application for protection visas with the (then) Department of Immigration and Border Protection. Being members of the same family unit to a person applying for a protection visa, the second and third applicants’ applications were dependent on the grant of a visa to the first applicant.
The first applicant claimed to fear harm because of an imputed political opinion, stemming from her association with her husband. The first applicant says that her husband is a well-known political figure in the Punjab province in India, and he was the vice-president of a political party prior to his arrival in Australia. The first applicant alleges that she fears harm because of statements made by her husband criticising government policies, which resulted in threats being made to his life and to their family. The first applicant further asserted that in their failure to secure residency in Australia, her husband returned to India alone to assess whether any threat toward him and his family persisted. The first applicant alleged that upon his return home, her husband received death threats, was attacked several times, and the police refused to provide him with protection. As a result, the first applicant’s husband is in hiding.
On 26 September 2016, the Department advised the applicants by letter transmitted by email that their application had been refused, and enclosed a copy of the delegate’s decision record.
The delegate was not satisfied that the first applicant was a person in respect of whom Australia had protection obligations as outlined in ss 36(2)(a) or (aa) of the Act and therefore did not satisfy the requirements for the grant of a protection visa. The second and third applicants were also refused visas as they were not members of the same family unit to a person who held a visa.
In short compass, the delegate was not satisfied that the first applicant faced a risk of harm as claimed and referred to the 2015 ‘Country Information Report’ for India prepared by the Department of Foreign Affairs and Trade (DFAT) in making its assessment. The delegate noted that when the first applicant and her husband decided in 2006 to move to Australia to escape threats, the couple left their children in India for a period of approximately eighteen months, which called into serious doubt the first applicant’s claim that she and her family faced a risk of harm in India. Further, the delegate noted that since her first arrival in Australia, the first applicant had returned to India on four separate occasions, which cast doubt on whether she feared harm upon return to her home country. The delegate was not satisfied that the first applicant’s husband was involved in politics to the degree alleged, and was not satisfied that he held a profile which was of adverse interest to anyone in India. The delegate observed that the first applicant’s husband chose to return to India after residing in Australia for almost ten years and never applied for a protection visa. Further, the first applicant only lodged a protection visa application nine months after her husband departed Australia and importantly, after she had exhausted all migration options to prolong her family’s stay in Australia. The delegate considered that the state of affairs was inconsistent with the first applicant’s claims that she and her husband feared harm.
The delegate therefore found that there was no credible information indicating that the first applicant had a genuine fear of returning to India and was not satisfied that there was a real chance of persecution for any of the reasons set out in s 5J(1)(a) of the Act. The delegate concluded that the first applicant thereby failed to satisfy the definition of ‘refugee’ in s 5H and could not satisfy s 36(2)(a). Accordingly, the applicants could not be granted protection visas.
TRIBUNAL PROCEEDING
On 13 October 2016, the applicants lodged an application to the Tribunal for review of the delegate’s decision. The Tribunal acknowledged receipt of that application by letter dated 19 October 2016, transmitted to the applicants by email. The Tribunal’s letter noted that the validity of the application had not yet been assessed, and informed the applicants that if they wished to provide any further information for the Tribunal to consider in determining the application for review, they should do so as soon as possible.
On 20 August 2018, the Tribunal again wrote to the applicants advising that a hearing may be scheduled in the coming months in relation to their application. The letter asked the applicants to provide the Tribunal with any additional and relevant evidence, to ensure that any representative assisting the applicants with their review had been appointed, and to confirm if they expected to be unavailable to attend a hearing at any time in the months following the letter.
On 28 August 2018, the first applicant provided the Tribunal with various documents and evidence in support of the review application. The documents were accompanied by a covering note, explaining that the first applicant was still attempting to gather further evidence to support the review application, but that she faced difficulties gathering such evidence because her husband was on the run, and she could not reach out to anyone to collect evidence without risking her husband’s life. In that note, the first applicant requested the Tribunal provide the applicants more time to collect evidence in support of the review application. The documents provided by the first applicant primarily consisted of newspaper articles, including accompanying translations of those articles into English and a series of photographs.
On 9 October 2018, the Tribunal wrote to the applicants, inviting them to attend a hearing scheduled for 22 November 2018 to give evidence and present arguments in relation to their review application. In that letter, the Tribunal noted that it had considered the evidence then before it, but was unable to make a favourable decision based on that information alone. The applicants were asked to complete and return the enclosed ‘Response to hearing invitation’ form and to use the form to attach any additional or new information or any requests the applicant might wish the Tribunal to consider. On 15 October 2018, the Tribunal received a completed ‘Response to hearing invitation’ form indicating the applicants would participate in the scheduled hearing and requesting an interpreter. No other information or request was included in the form nor attached to it.
On 22 November 2018, the applicants attended the hearing and were assisted by a Hindi interpreter. On 23 November 2018, the Tribunal affirmed the delegate’s decision to refuse the applicants’ visa applications. The applicants were notified of that decision by letter dated 26 November 2018, which enclosed a copy of the Tribunal’s Statement of Decision and Reasons (Decision).
TRIBUNAL’S DECISION
The Tribunal first summarised the delegate’s decision: Decision at [2], before outlining the relevant protection visa criteria by reference to ss 5H(1)(a), 5H(1)(b), 5J(1), 5J(2)–(6), 5K–LA, 36(2)(a), 36(2)(aa), 36(2A), 36(2B) of the Act and Sch 2 to the Migration Regulations 1994 (Cth): at [5]–[9]. It noted the requirement, pursuant to Ministerial Direction No.56 made under s 499, to consider policy guidelines prepared by the Department ‘PAM3 Refugee and humanitarian – Complementary Protection Guidelines’ and ‘PAM3 Refugee and humanitarian – Refugee law Guidelines’ (PAM3): at [10]. The Tribunal also noted that it had considered the relevant ‘Country Information Report’ prepared by DFAT for India: at [10].
At [11]–[15] of the Decision, the Tribunal summarised the applicants’ claims made prior to the hearing. It considered their claims and oral submissions from [28]–[58], concluding at [59]–[60] that the Tribunal was not satisfied that the applicants are persons in respect of whom Australia has protection obligations, and then at [65] that the applicants do not satisfy the criterion set out in s 36(2)(aa) of the Act for the grant of a protection visa.
The Tribunal found at [27] of the Decision that the first applicant was not a credible witness, and that her evidence was vague, confusing and unconvincing, and that her oral evidence contradicted key elements of her written statement. The Tribunal did not accept that the first applicant provided a true account of her experiences and found that she had “concocted” her central claim – “that her husband is living in hiding in India due to fear of harm from Congress party leaders and supporters as well as from BJP leaders in Punjab”.
The Tribunal set out the first applicant’s claims and evidence at the hearing as follows:
(a)her husband had been involved in politics in India, and she feared harm from party leaders, members and supporters because of his past activities: Decision at [28];
(b)she accompanied her husband to Australia in 2007, and her sons did not travel with them because one of her sons required a new passport to travel, and her sons stayed with their grandparents: at [32]–[33];
(c)when asked about the delegate’s observation that leaving her sons in India tended to cast doubt over her claims to fear harm, she said that they left the children because “there were exams taking place” and that the initial threat was lesser, but subsequently increased. She also said that her husband’s business was doing well in India, and that they did not need to come to Australia: at [33];
(d)her husband had intended to establish a property development business in Australia but was unable to obtain the necessary funds in India: at [34];
(e)she had not worked in India, but was then employed in Australia, and that her eldest son was employed: at [35];
(f)the Congress government sought revenge against her husband: at [40];
(g)her husband decided to return to India because his father had been diagnosed with cancer, and that he had intended to assess the risk of harm in India, and if safe, to tell the applicants to return and join him in India: at [41];
(h)her husband had received death threats and been targeted when he was out driving, and that the threats had extended to his family: at [43]–[44];
(i)she had not spoken to her husband in the preceding five or six months when he was in Nepal, that he had been spending time in the south of India, and that he was unable to work in India. She and her husband’s parents support him financially: at [44];
(j)responding to the Tribunal’s question about whether anything else had happened since her husband’s return to India, the first applicant said that there had been a couple of these calls, but she did not know more than that. The Tribunal asked the first applicant why she had not mentioned in her oral evidence that her husband had been attacked on several occasions since returning to India as set out in her statement of 25 May 2016 and whether anything else had happened, and the first applicant replied that 5–6 months ago her husband told her that he had received threatening calls and constantly moves around as he had been followed or chased: at [45];
(k)she was unable to obtain more evidence on account of her husband constantly travelling: at [45]; and
(l)neither she nor her husband had raised the issue of fear of persecution in their prior request for Ministerial Intervention because they did not know this was an issue that they could raise: at [48].
The Tribunal records that it also spoke with the second and third applicants. The second applicant said that he had spoken with his father about a week prior to the hearing, but that he did not know his father’s location. He also said that he would face great difficulty speaking Punjabi or Hindi, and that Australia was his home: Decision at [49]–[50].
The Tribunal assessed the claims as follows:
(a)it accepted that the first applicant’s husband was an active member of an Indian political party, acknowledging the photographs and newspaper extracts provided by the first applicant, and that he had made statements in support of various policies and activities critical of the then ruling party, which were reported in the local newspapers: Decision at [36]. It accepted the first applicant’s husband had been involved in politics and had given statements on state and national issues which were reported, and that this would have resulted in him being well-known in his local area: at [52];
(b)it put various country information to the first applicant for her comment, including reports that the risk of political violence was low, that elections were vigorously contested, but were generally free and fair, and that many organisations and academics criticise the government without fear of harassment or detention: at [38]–[39];
(c)it asked the first applicant why her husband continued to face a risk of harm when the party he had criticised no longer held power and he had been away for nine years: at [42];
(d)it asked the first applicant about the type of harm suffered by her husband since his return, noting that at the hearing, the applicant only spoke about the alleged threatening phone calls. The Tribunal noted that this is inconsistent with the details of her written statements, wherein the first applicant alleges that her husband had been subjected to false police reports, faced physical attacks and was sidelined by BJP leaders: at [45]–[47];
(e)it considered the first applicant’s claim that her husband had sought police protection, but had been unable to access that protection, to be illogical, in circumstances where he had been a loyal member to the party in power at the time: at [47];
(f)it noted that despite the first applicant foreshadowing she intended to provide further evidence, and having had ample opportunity to do so before the delegate, and in the approximately two years which had elapsed between the delegate’s decision and the Tribunal hearing, no further evidence was provided: at [51];
(g)while it accepted that from time to time before the first applicant’s husband came to Australia he may have received phone calls critical of his statements, the Tribunal did not accept the first applicant’s husband received death threats, nor did it accept that the incident involving the motor vehicle occurred: at [53];
(h)it did not accept that the first applicant’s husband left India because he feared persecution or harm, was sidelined by the party leadership, nor that false police reports had been made about him: at [54];
(i)it considered the first applicant’s responses to the Tribunal’s questions seeking an explanation why certain matters were not raised by her at the hearing to be vague and unconvincing, and that her oral evidence was inconsistent with some of the key issues and claims raised in her visa application: at [55];
(j)it was not satisfied that the first applicant’s husband had faced threats of serious harm or death, that he had been attacked, that he had false police reports made against him, nor that he had gone into hiding: at [57]; and
(k)it did not accept that the applicants faced a real chance of persecution or serious harm in India because of their imputed political opinion or opposition to a particular political party, arising from their association with the first applicant’s husband: at [59].
On that basis, the Tribunal was not satisfied that the applicants will face persecution involving serious harm from anyone either now or in the foreseeable future if returned to India and was not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act: Decision at [59]–[60]. The Tribunal turned to consider whether the applicants met the alternative criterion in s 36(2)(aa); however, the Tribunal found that no risk that the applicants would suffer significant harm subsists and therefore they do not meet s 36(2)(aa). As none of the applicants satisfied the criterion in s 36(2), the Tribunal affirmed the delegate’s decision: at [61]–[67].
The Decision records at [51] the first applicant’s request for more time to engage a lawyer and to obtain more evidence, which in substance, was a request for an adjournment. The Tribunal refused the request, reasoning that she had previously indicated she would shortly provide additional material (first before the delegate in May 2016) but that no further documents had been received. The Tribunal recounted the occasions on which the applicants had been put on notice that they were required to provide evidence or documents in support of their case, noting that the applicants:
·were advised on 30 June 2016 that the delegate may decide the visa applications without asking for further evidence or conducting an interview;
·provided no additional documents from the time at which they applied to the Tribunal to the time of the hearing (approximately two years); and
·were advised if they intended to appoint a representative they ought inform the Tribunal as soon as possible, and that the first applicant had advised on 28 August 2018 that she was in the process of obtaining further evidence but had provided none.
CONSIDERATION
By the earlier mentioned application, the applicants seek judicial review of the Tribunal’s decision and contend error as follows:
We strongly believe that their (sic) is (sic) a Jurisdictional error has been made in the Migration decision by Administrative Appeals tribunal.
There are Multiple grounds in the decision where we find that Jurisdictional error are (sic) Made.
These grounds contain bare, general and unparticularised allegations of jurisdictional error. Without particulars of the errors alleged, the grounds do not establish jurisdictional error. At the hearing of the application I permitted, without objection from the first respondent, the applicants to amend their application by relying on the review grounds set out below. And because the application only sought a writ of certiorari as relief, to avoid any suggestion that the applicants failed to properly invoke the Court’s jurisdiction under s 476(1) of the Act, I permitted the application to be amended so that the applicants also seek relief by way of a writ of mandamus directed to the second respondent.
The amended grounds advanced by the applicants may be summarised as follows. First, the applicants contend the Tribunal denied them procedural fairness by refusing their adjournment application made during the Tribunal hearing so they could retain a lawyer and gather further evidence. Second, they contend the Tribunal’s findings in respect of the following four matters were unreasonable or illogical:
·that the first applicant did not face a risk of harm on return to India despite accepting her husband was politically active;
·misunderstanding the first applicant’s reasons for leaving her children in India temporarily;
·misinterpreting the first applicant’s decision to not raise her protection claims in her prior request for Ministerial Intervention; and
·ignoring the risk of harm faced by a public political figure like her husband.
Third, they contend the Tribunal failed to consider important evidence, including: documents provided by the first applicant on 28 August 2018; evidence of the current political climate in India and Punjab, the treatment of political opponents, the change in political leadership; and the hardship her sons would face if returned to India.
Fourth, they contend the Tribunal acted unreasonably, including because the Tribunal had “already made up its mind”; that it did not engage with the evidence about threats to the applicants; that it ignored documents in support of their claim; and that it failed to properly and genuinely review the case. I deal with these grounds in turn below.
Ground 1
Here, the applicants argue that procedural fairness required the Tribunal to afford the applicants a genuine opportunity to present their case, and that is particularly so because their matter involved protection visa applications. They say this is so because the consequences which may result from an adverse decision are serious. The applicants say that the Tribunal’s denial of their request for adjournment denied them a fair hearing. The applicants contend that the Tribunal’s reasoning for denying the request at [51] failed to address or recognise the applicants’ reasons for requesting that adjournment – their inability to safely collect evidence because of the threat to the life of the first applicant’s husband.
As the first respondent correctly points out, the material in the Court Book and the background summary earlier set out discloses that the Tribunal complied with its procedural fairness obligations under Div 4 Pt 7 of the Act. Section 422B provides that Div 4 Pt 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters with which the provisions deal. Section 427(1)(b) gives the Tribunal a discretion to adjourn the review from time to time. A decision to exercise (or not exercise) that discretionary power must be undertaken reasonably.
The applicants’ complaint is twofold. First, the letter to the Tribunal of 28 August 2018 requesting more time to provide evidence. It may be accepted that the Tribunal did not respond to this letter. Neither did the letter specify how much more time the applicants wanted. In any event as the first respondent points out, the Tribunal’s hearing invitation of 9 October 2018 made clear that the applicants could provide any new information that they wanted the Tribunal to consider. The applicants were invited to appear and appeared before the Tribunal and they were on notice of a key issue in their case, namely the first applicant’s inability to make out her claims as a matter of fact. The hearing invitation told the applicants that the material the applicants had provided to the Tribunal with their application was insufficient for the Tribunal to make a favourable finding in their review application. The hearing was scheduled for 22 November 2018. In these circumstances, the applicants were aware that they had (and in practical terms were afforded) additional time (almost 3 months) to obtain and provide more information. Consequently, no material jurisdictional error is apparent.
Second, the applicants complain about the Tribunal’s refusal of their adjournment request made during the hearing on 22 November 2018. The circumstances in which the adjournment application is made and the reasons for its refusal are set out in the Decision as follows:
51. When asked if there was anything else that she wished to tell the Tribunal, [the first applicant] said she would like more time to engage a lawyer and to obtain more evidence. Noting that the statement included with her application for protection in May 2016 stated that further information/documents would be provided in due course, but nothing was provided before the delegate made a decision on the application in September 2016 (notwithstanding the delegate’s decision record indicates that [the first applicant] was advised in writing on 30 June 2016 that the application may be decided without requesting further information from them and that if they wished to arrange an interview to discuss their claims they should contact the Department within 7 days, but did not take advantage of this opportunity); and the review application, made over two years ago in October 2016, did not contain any additional supporting evidence or submissions addressing the delegate’s findings; and that [the first applicant] was advised on 20 August 2018 that if she was proposing to engage a representative she should advise the Tribunal of the details as soon as possible; and that [the first applicant] indicated on 28 August 2018 (nearly three months ago) that she was in the process of obtaining further evidence but this was extremely difficult, and had not provided any further evidence at the time of the hearing, the Tribunal did not agree to this request. As put to [the first applicant], the Tribunal considers that she has had an extended period of time and ample opportunity in which to engage a representative and to provide relevant documentary evidence to support her case.
Although, as already noted, the Tribunal had a discretionary power under s 427(1)(b) of the Act to adjourn the hearing, it declined to do so. The request for an adjournment was based in the applicants’ desire to obtain legal representation and to gather more evidence. Having regard to the Tribunal’s reasons for refusing the applicants’ request reproduced above, that decision was not unreasonable. The reasons included that the applicants had been provided sufficient time and had ample opportunity to obtain legal assistance and to provide evidence to the Tribunal considering the delegate’s decision was made in 2016 and the review application to the Tribunal had been made in October 2016, more than two years before the hearing. Moreover, the first applicant had indicated to the Tribunal nearly three months before the hearing that, she was in the process of obtaining further evidence, that this was proving difficult and since that time the applicants had not provided any further evidence. The Tribunal’s reasons disclose a clear and intelligible justification for the adjournment refusal.
Ground 1 of the applicants’ amended review grounds does not disclose jurisdictional error and so fails.
Ground 2
By ground 2 the applicants contend that some of the Tribunal’s findings, to which reference has earlier been made, were unreasonable or illogical.
Legal unreasonableness is concerned with the lawful exercise of power, and the absence of legal unreasonableness is an essential element of lawful decision-making by an administrative body: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, 240 FCR 158 at [58]. Evaluating whether an administrative decision is vitiated for legal unreasonableness is supervisory and does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or substituting its own view for that of the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [66]; Eden at [59]. Where, as here, reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision is affected by legal unreasonableness.
Legal unreasonableness may be identified in a review by concentrating on the outcome of the exercise of a power by the Tribunal, where one cannot identify how the decision was arrived at or where the exercise of power lacks an evident and intelligible justification. Legal unreasonableness may also be identified by examining the reasoning process by which the Tribunal arrived at the exercise of power and through which a recognised specie of jurisdictional error is shown: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437 at [44]–[47]; Eden at [64]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21 at [30]. As the Full Court in Eden at [65] observed:
. . . the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error. For example, jurisdictional error may arise if the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inference or conclusion drawn or factual finding made. Making a finding on a fact or issue by drawing an inference or a conclusion which lacks a logical connection with the evidence might also establish jurisdictional error. But a decision, conclusion or finding will not involve jurisdictional error if a reasonable decision-maker could make that decision or finding or reach that conclusion on the same material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. The question is whether a decision-maker could reasonably conclude as the decision maker did: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1 at [21]. And if the conclusion reached by a decision-maker is one on which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]. Moreover, not every lapse of logic will give rise to jurisdictional error and a court should be slow, although not unwilling, to interfere in an appropriate case: SZMDS at [130]. Characterising a decision or finding as legally unreasonable is one not easily made: Djokovic at [33]. And illogicality or irrationality as a foundation for such a characterisation will involve establishing that the decision or finding is so lacking a rational or logical foundation that the decision or finding was one that no rational or logical decision-maker could reach: Djokovic at [34].
Turning to the particulars of the applicants’ complaints under this ground, the applicants first say the Tribunal’s conclusion that the first applicant’s husband would not be at risk if he returned to India was illogical or unreasonable having regard to the Tribunal’s acceptance at [52] of the Decision that the first applicant’s husband was a vice president of the Panchayati Raj cell in 2004 as claimed. Before the Tribunal, the first applicant relied on press reports indicating that her husband gave statements on state and national issues which were reported in the local press and the Tribunal accepted this resulted in him being a well-known figure in the area of Punjab located around Chandigarh: at [52]. But as is clear from the Decision, the Tribunal also considered DFAT reports and assessments: at [53], and the nature and content of the press reports: at [52]. In evaluating and weighing this matter, the Tribunal did not accept that the husband’s activities for BJP and statements critical of Congress party figures and activities would have resulted in him being at risk of serious harm from those associated with the Congress party: at [53]. The Tribunal did not accept that the husband received death threats or that on one occasion someone deliberately tried to hit his car from behind: at [53]. The Tribunal considered, as did the delegate, that the first applicant leaving her children behind in India and returning to India on several occasions after she first arrived in Australia was inconsistent with her claim to have left because her husband’s activities put his and his family’s lives in danger and they wanted to escape to a safe environment: at [53]. I therefore agree with the first respondent’s contention that the Tribunal’s findings about which the applicants complain were plainly open to it on the material before it. And the Tribunal provided an evident and intelligible justification for the findings. There is no error disclosed.
Second, the applicants claim that at [33]–[34] of its reasons, the Tribunal misunderstood the first applicant’s reasons for leaving her children temporarily in India and for her visits there and say this was despite the first applicant explaining “these were for their exams and passport renewals”. The Decision records at [33]–[34] the following:
33. When queried why her sons did not travel with her and her husband when she first came to Australia [the first applicant] said that the passport of one of her sons needed to be renewed. She said the children (who were nine and ten years of age at the time) stayed with their grandparents in Kharar at that time. When queried regarding the delegate’s observation that her leaving her children behind in India and returning to India herself on four occasions casts doubt on her claim to have left India because they feared harm, [the first applicant] said they left the children because there were exams taking place. She added that initially there was less threat but later on the threat increased, commenting that her husband's business was doing very well in India and they didn’t need to come to Australia.
34. [The first applicant] indicated that her husband sought to establish a property development business in Australia (similar to work he had done in India) but was not able to get the necessary funds in India. She said there was a problem with their visa which was not extended because the rules changed.
It is evident from the passages above that the Tribunal made no findings in these paragraphs. Instead, it is recounting the first applicant’s oral evidence given during the hearing. In any event the evidence recalled notes the exaptation about both passport renewal and exams. The criticism is misconceived and discloses no error.
Third, the applicants contend that at [56] of the Decision the Tribunal misinterpreted the first applicant’s omission of protection claims in her Ministerial Intervention request. The applicants claim that the Tribunal should have considered that such applications are based on compassionate rather than protection grounds. The applicants led no evidence that they put such a proposition to the Tribunal, but in any event, the Tribunal’s observation about ascribing weight to the fact of the omission of protection claims from the Ministerial Intervention request was plainly relevant as some corroboration of her claims, the Tribunal was entitled to consider the omission and to weigh it against the applicant. No error is disclosed.
Fourth, the applicants contend unreasonableness or illogicality by reason of the Tribunal ignoring the risks to someone like the first applicant’s husband who had a public political profile particularly in the context of rivalries and changing political dynamics in Punjab. No unreasonableness or illogicality is shown here. The applicants merely quarrel with the outcome. For the reasons the Tribunal explained at [52]–[53] of the Decision, the Tribunal assessed the evidence about the husband’s political activity in the context of the evidence provided by the applicants and the DFAT reports and assessments. The Tribunal’s reasons provide an evident and intelligible justification for its finding about the level of risk faced by the first applicant’s husband. The Tribunal did not ignore the risk, it assessed the risk by reference to the available evidence and reached a conclusion which upon that evidence was reasonably open. No error is disclosed.
For these reasons, the applicants’ contention that the Tribunal’s findings about which complaint is made were not rational or supported by evidence and wrongly led to the rejection of the applicants’ protection claims is not made out. Ground 2 does not disclose jurisdictional error and fails.
Ground 3
By ground 3, the applicants assert that the Tribunal failed to consider ‘important evidence’, specifically the current political climate in India and Punjab and how political opponents are treated; the fact that the BJP leadership had changed leaving the first applicant’s husband exposed; and the situation that her sons would face if sent back to India having grown up in Australia. The applicants contended the Tribunal did not properly review this evidence and, in the result, the Tribunal failed in its legal duty to genuinely consider their case. The applicants contended that key evidence, including country information and personal documents, were either “inadequately analysed or entirely overlooked”.
It is uncontroversial that the Tribunal is not required to refer to every piece of evidence before it. But the Tribunal is required to consider and engage with the claims and evidence advanced by the applicants which could have some bearing on its decision. It is required to engage in an active intellectual consideration which requires a real consideration of the evidence, and a mere recitation of parts of the evidence without considering its significance and the weight that should be attached to the evidence is not sufficient: Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [74]. In any event as the first respondent correctly points out, the Tribunal considered the evidence which the applicants say it did not. The documents the applicants provided on 28 August 2018 were identified by the Tribunal at [17] of the Decision and considered at [52]. At [38]–[39], the Tribunal recounts its discussion with the first applicant during the hearing about politics in India, including in Punjab state. At [42], it recounts its discussion with the first applicant about the relevant country information, the SAD-BJP and the BJP leadership. At [49]–[50], the Tribunal considered the evidence provided by the first applicant’s sons about their struggle in returning to India. At [52]–[54], the Tribunal assessed these matters in the context of the other evidence. There is thus no evident failure by the Tribunal to consider the matters about which the applicants complain.
It is also evident that the Tribunal engaged with the applicants’ protection claims, the evidence they had provided along with other materials such as DFAT assessments, and it considered those claims. The Tribunal found that the first applicant did not meet the criterion in ss 36(2)(a) and (aa) of the Act, findings which were reasonably open to the Tribunal. No error is disclosed and ground 3 fails.
Ground 4
By ground 4, the applicants contend that when looking at the Tribunal’s decision as a whole, the Tribunal acted unreasonably in that it seemed to have already made up its mind by dismissing the applicant’s evidence unfairly, failed to meaningfully engage with the first applicant’s statements about threats to her family, ignored documents and failed to give the applicants’ case a proper and genuine review.
In many respects this is a restatement of complaints made in several of the earlier grounds, and for the reasons earlier given, those complaints are not made out. The exception is the apparent allegation of actual or apprehended bias contained in the first particular. The applicants provide no evidentiary or other basis upon which it might be said the Tribunal had already made up its mind. Rather it merely complains that the evidence was not accepted. As is evident from the discussion earlier, the Tribunal provided evident and intelligible reasons for the conclusions it had reached and set out the assessment of the evidence for it and the reasons for accepting or rejecting that evidence as well as the weight that it attached to the evidence. An allegation of actual bias is a serious allegation that must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at [69] per Gleeson CJ and Gummow J. The bare allegation made by the applicants falls well short of that threshold.
To make good a contention of apprehended bias against an administrative decision-maker, more must be shown than a mere predisposition of the Tribunal to a particular view and it is necessary to show that the decision-maker’s mind was not open to persuasion: Jia Legeng [68] and [71]–[72] per Gleeson CJ and Gummow J; Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41, 288 FCR 218 at [40] per Bromberg, Murphy and Markovic JJ. But here, there is nothing advanced by the applicants by reference to the decision or the materials that would show or provide a basis for concluding apprehended bias on the part of the Tribunal. That is, there is nothing advanced from which the reasonable observer might conclude based on the particular identified conduct that the Tribunal might not bring an impartial mind to deciding the applicants review application before it according to law. There is nothing in the Tribunal’s reasons which might suggest some support for an allegation of apprehended bias. And as I have already observed, the applicants have adduced no evidence to support the contention of apprehended much less actual bias. Ground 4 does not disclose jurisdictional error and fails.
DISPOSITION
The application for judicial review is dismissed.
The first respondent sought an award of costs fixed in the sum of $8,371.30 in the event the applicants were unsuccessful. The applicants did not advance any cogent reason why, in that event, an order for the costs sought should not be made. Considering the nature of the proceeding and the work undertaken by the first respondent’s lawyers, I consider the amount sought to be reasonable and appropriate. It is consistent with the amount provided for by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), however I do not consider that the second and third applicants should bear any cost burden and so the order will be confined to the first applicant.
The first applicant will be required to pay the first respondent’s costs fixed in the sum of $8,371.30.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 14 July 2025
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