GKA18 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1078

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)…

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AGLC
GKA18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1078
Case
[2025] FedCFamC2G 1078
Decision Date

CaseChat Overview and Summary

The applicants, who are citizens of India, sought judicial review of the Administrative Appeals Tribunal's (AAT) decision to affirm the delegate's refusal of their applications for protection visas. The Tribunal found that the applicants were not credible and did not face a risk of harm on return to India. The applicants argued that the Tribunal erred in refusing their adjournment request, in making certain findings, and in failing to consider relevant material. The court held that the Tribunal's decision was not attended by jurisdictional error and dismissed the application with costs.

The court considered whether the Tribunal had denied the applicants procedural fairness by refusing their adjournment request, which was made so they could retain a lawyer and gather further evidence. The court noted that the Tribunal had given the applicants ample opportunities to provide evidence and had refused the adjournment request because the applicants had previously indicated they would shortly provide additional material but had not done so. The court held that the Tribunal's decision was not attended by procedural unfairness.

The court also considered whether the Tribunal's findings in respect of the applicants' risk of harm, reasons for leaving their children in India, decision not to raise their protection claims in their prior request for Ministerial Intervention, and the risk of harm faced by the first applicant's husband were unreasonable or illogical. The court held that the Tribunal's findings were open on the material before it and that the applicants had not established that the Tribunal's decision was illogical or unreasonable.

The applicants also contended that the Tribunal failed to consider relevant material and was affected by apprehended bias. The court held that the Tribunal had considered the relevant material and that there was no apprehended bias. The court held that the Tribunal's decision was not affected by any error and dismissed the application with costs.

The court dismissed the applicants' application for judicial review and ordered that the applicants pay the Minister's costs of the application, to be taxed on an indemnity basis if not agreed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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.