ITC24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1346
•20 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ITC24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1346
File number(s): BRG 681 of 2024 Judgment of: JUDGE EGAN Date of judgment: 20 August 2025 Catchwords: MIGRATION LAW – where the applicants’ ground of review was unparticularised – where the applicants’ failed to place evidence before the Court probative of the claim that the Tribunal member had denied them procedural fairness during the conduct of the Tribunal hearing – where it was open to the Tribunal to find that the applicants did not have a well-founded fear of persecution should they be returned to Papua New Guinea – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s. 65 Cases cited: DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240
Hamod v New South Wales [2011] NSWCA 375
SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760
BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 18 August 2025 Place: Brisbane Counsel for the Applicants: The applicants, appearing on their own behalf Solicitor for the Respondents: Ms X. Tran, Sparke Helmore Lawyers ORDERS
BRG 681 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ITC24
First Applicant
ITD24
Second Applicant
ITE24 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
20 AUGUST 2025
AMENDED ORDER 21 AUGUST 2025THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration and Citizenship”.
2.The name of the Second Respondent be changed to “Administrative Review Tribunal”.
3.The Originating Application for Review filed on 22 October 2024 be dismissed.
4.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of
$8,300$8,371.
THE COURT NOTES THAT:
A. These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 EGAN
The applicants are citizens of the Independent State of Papua New Guinea. They applied for protection visas on 24 March 2017.
On 19 February 2020, a delegate of the Minister refused to grant the visa applications under s. 65 of the Migration Act 1958 (Cth) (the Act) on the basis that the applicants were not owed any protection obligations by Australia. The applicants sought review of that decision by the then Administrative Appeals Tribunal (the Tribunal).
The applicants appeared before the Tribunal on 1 August 2024 to give evidence and present arguments.
On 18 September 2024, the Tribunal in its written reasons affirmed the decision of the delegate.
On 22 October 2024, the applicants filed an Originating Application for Review.
At the time of the hearing before the Court on 18 August 2025, the applicants relied upon an affidavit filed on 14 July 2025 which in part sought an adjournment of the hearing because the applicants had been unable to secure legal representation. When asked at the hearing whether they wished to make any submissions to the Court, no submission seeking an adjournment was made. Had any such submission been made, the Court would not have granted any adjournment application because the applicants had already been granted an earlier adjournment application on the same ground. The opportunity cost of granting any such adjournment application was clearly a matter of relevance tending against the granting of an adjournment on public policy grounds.
Ground of Review
The one Ground of Review relied upon at the hearing was as follows:
1. The Applicants were not afforded procedural fairness during the conduct of the AAT hearing when the member declined to permit the applicants to introduce evidence for the Tribunal’s consideration.
It is clear the Ground of Review is unparticularised and meaningless. Further, there was no evidence before the Court that in any way substantiated the claim that the Tribunal member had declined to allow the applicants to adduce evidence in support of their visa applications. No transcript of the Tribunal hearing was put before the Court, and no audio recording of the Tribunal hearing was before the Court. In such circumstances, the applicants have failed to clear the first hurdle before them. Their claim cannot succeed. The Ground of Review is without merit and is dismissed.
Further, the unparticularised Ground of Review prevented the Court from appropriately conducting a review hearing. In circumstances where the Court is unable to act as an advocate on behalf of the applicants for public policy reasons, and further where the Court should not be called upon to anticipate possible grounds of review in vacuo, the ground of review is without merit and incapable of demonstrating jurisdictional error on the part of the Tribunal. The following are judgments which reinforce the above principles: DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240 at [37] per Flick J; Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] per Beazley JA; SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389 at [22] per Farrel J; and WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmore J; BUP24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 785 at [9] – [19].
In any event, it could not be said that the Tribunal had failed to fairly and properly record all relevant aspects of what the Tribunal considered was a claim for protection based upon domestic/family violence in a PNG customary or cultural context. The Tribunal had due regard to the evidence placed before it on behalf of the applicants as set out in [73] of its reasons. As summarised at [74] – [96] of its reasons, the Tribunal was not satisfied that any of the applicants had a well-founded fear of persecution should they be returned to Papua New Guinea. Such finding was open to the Tribunal based upon the evidence before it.
The Tribunal had due regard to Department of Home Affairs country information which was before it, and it also, at [63] – [70] of its reasons, had regard to the relevant principles which ought to be applied when considering claims made before it. It found as follows:
63. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, fn as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically
any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191 , and Prasad v MIEA (1985) 6 FCR 155 at 169- 70).
64. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. ln Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
... care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
65. The Tribunal also accepts that 'if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt' (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
66. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true.
67. However, this should not lead to "an uncritical acceptance of any and all allegations made by" the applicant.
68. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
69.Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
70. The Tribunal has considered carefully all of the applicants' claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal was justified in having doubts as to the claims of “handed down” persecution advanced on behalf of all applicants by the first applicant. Her dissembling as to where she lived was telling. The Tribunal correctly identified inconsistencies in her evidence given at the time of the hearing. When asked by the Court which province the applicants came from, the first applicant answered “Oro Province”, which is on the north-east coast of PNG. However, before the Tribunal, the first applicant maintained that the applicants came from Chimbu Province, which is in the PNG Highlands. The Tribunal was justified in making adverse credibility findings against the first applicant.
Based upon the evidence before the Tribunal, the Tribunal was justified in finding that there was no protection obligation owed to the applicants under s. 36(2)(a) of the Act, or that there was any complimentary protection obligation owed to the applicants under s. 36(2)(aa) of the Act. It did not err in so finding.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Ground of Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 19 August 2024
SCHEDULE OF PARTIES
BRG 681 of 2024 Applicants
Fourth Applicant:
ITF24
Fifth Applicant:
ITG24
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