KQW24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1235
•5 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
KQW24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1235
File number(s): PEG 477 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 August 2025 Catchwords: MIGRATION – decision of the Administrative Appeals Tribunal – application for an adjournment of the Tribunal hearing pending determination of the applicant’s husbands merits review application – where the applicants were allegedly determinant on husband’s claims – evidence of the applicant’s husband was not material to the conclusions reached by the Tribunal – grounds of judicial review have no merit – application dismissed Legislation: Migration Act 1058 (Cth) ss 5J(1), 36(2)(a)
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration v SZIAI (2009) 259 ALR
Nathanson v Minister for Home Affairs [2002] HCA 26
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 25 July 2025 Place: Perth Solicitor for the Applicants: Mr Savu (via AVL) Solicitor for the First Respondent: Ms Woollett, Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 477 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KQW24
First Applicant
KQX24
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First Applicant is to pay the First Respondent’s costs fixed in the sum of $5,400.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Review Tribunal (the Tribunal) dated 29 October 2024, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicants a Protection (Subclass 866) visa (the visa).
For the reasons set out below, the Application must be dismissed.
BACKGROUND
The first applicant (applicant) is a citizen of Fiji. The second named applicant is the applicant’s minor son. The applicants last arrived in Australia in September 2019.
On 11 November 2019, the applicant applied for the visa. On 19 June 2020, a delegate of the Minister refused the applicant’s application for the visa.
On 10 July 2020, the applicant sought review of the refusal decision in the Tribunal.
The applicant was invited to complete a pre-hearing invitation form, and the Tribunal later asked the applicant to complete a response to hearing invitation form.
On 29 July 2024, the applicant’s representative provided submissions to the Tribunal. A summary of those submissions is relevantly provided at [10] of the first respondent’s submissions and reproduced below.
10.1. The delegate made no mention of the applicant’s husband’s protection claims in its decision.
10.2. The applicant relied on her husband’s protection claims, together with her other grounds and the failure of the delegate to consider the husband’s claims was ‘erroneous’.
10.3The applicant’s husband’s review before the Tribunal remained pending, and as the applicant partly relied on those claims, ‘the proper course going forward would be for the Tribunal to defer’ the applicant’s review until the applicant’s husband’s matter was determined.
10.4. To proceed with the applicant’s matter, ‘notwithstanding her husband’s pending matter’ would ‘further exacerbate the situation’.
On 2 August 2024, the Tribunal decided not to postpone the hearing and invited the applicant to provide further information about her husband’s claims. On 6 August 2024, the applicant returned the ‘response to hearing invitation’ form and further stated that she relied on claims made by her husband, and that his matter remained pending before the Tribunal.
On 12 August 2024, despite the applicant appearing before the Tribunal for hearing, the hearing was adjourned as the applicant’s representative had to attend to a medical emergency.
On 13 August 2024, the Tribunal invited the applicant to attend a resumed hearing scheduled on 30 August 2024, and asked the applicant to complete a ‘response to resumption of adjourned hearing notice’ form. The applicant returned the form and reiterated the same statement about the claims she relied on.
On 30 August, the applicant and her legal representative, Mr Savu, attended the Tribunal. The applicant was assisted by a Fijian interpreter. The applicant’s husband gave oral evidence.
On 17 September 2024, the applicant provided post-hearing documentation to the Tribunal including submissions, the Fijian constitution and country information.
On 29 October 2024 the Tribunal affirmed the decision.
THE TRIBUNAL’S DECISION
At [1] – [16], the Tribunal set out the application for review and the background of the matter.
At [20], the Tribunal noted the delegate’s summary of the applicant’s claims for protection was as follows (errors as in original):
•The government can no longer protect or guarantee Fijians basic fairness and justice.
•The judiciary, police force and military forces are ignoring their criminal behaviour. They are beholden to the Prime Minister and the government.
•She will be victimised because her husband is in Australia and applied for protection. Due to jealousy from other Fijians, she fears for their lives.
•Moving to another part of Fiji as a single mother will attract unwanted attention and locals will be suspicious that she is escaping the law.
•She fears for her personal safety as the people will know that she applied for protection if she has been in Australia for at least 12 months or more.
•There is fear throughout Fiji which started from the December 2006 coup. People are afraid to voice their opinions.
•If returned to Fiji, she will be subjected to serious harm as they have done to other citizens especially because of the time spent in Australia. It will be assumed that she has spoken against the government.
•Prime Minister Bainimarama won't hesitate to inflict serious harm on any citizen he believes has betrayed him or his government.
•She fears that there are people living in the Australian community that report back to Fiji government.
•The government is corrupt and will not protect her, especially if they assume she applied for protection in Australia. They will know she applied for protection in Australia because her passport will display a visitor visa for Australia that ceased prior to returning to Fiji.
•There is no rule of law as the OPP did not take criminal actions against the Prime Minister for assaulting Hon. Pio Tikoduadua.
•Mr. Cesar Lateef, a Lawyer and government supported continued to breech his bail conditions however is still allowed bail.
•It is difficult to relocate to another part of Fiji because if you are not from a particular confederacy, you will bring unwanted attention to yourself.
At [21], the Tribunal did not accept the submissions of the applicants’ representative filed after the hearing that:
[The applicant] was waiting for the interview with the Delegate of the department to clarify the claims but unfortunately wasn't afforded this opportunity, as the Delegate saw fit to determine her application on the Papers, which he's entitled to do in law. It is very clear that the Department stated that that a decision could be made without another opportunity for them to present any further information in the correspondence from the Department dated the 29 November 2019 to the applicants.
At [22] – [28], the Tribunal summarised the delegate’s decision.
On 10 July 2020, the applicant’s representative wrote to the Tribunal and informed it that the Tribunal had not correctly stated the first named applicant’s name [29]. The applicant’s representative did not inform the Tribunal that the applicant was married and that her husband had filed a sperate review application before the Tribunal [29].
The Tribunal explained to the applicant that it was important for her husband to give evidence and that the Tribunal needed to be aware of the matters raised in her husband's application if she was seeking to rely on her husband's application [35]. The Tribunal noted that it did not receive a copy of the husband's application prior to or after the Tribunal hearing [35].
On 30 August 2024, the applicant, her husband and her representative attended a Tribunal hearing [37].
At [41] – [44], when asked by the Tribunal whether she planned to remain in Australia, the applicant stated she was undecided about whether to go back to Fiji or not, however, it was her husband’s visa application that changed her mind about applying for the visa.
The applicant claimed that she had “a lot of threats in Fiji” due to her husband’s job as a law clerk, which required him to run errands and take messages from clients, and resulted in him being “questioned because of it” [44]. When asked by the Tribunal whether she saw or heard anyone making a threat against her husband, the applicant responded that she had not personally witnessed her husband receiving threats, but “he had told her about it” [44].
The applicant informed the Tribunal that her husband had received the threats prior to the commencement of their relationship, and that her husband had been “told by the military to stay away” [45]. The applicant also told the Tribunal that her husband had been working as a legal clerk since 2008, that he left the job in 2017, and that she was unsure as to when the threats started [45].
The Tribunal did not accept that the applicant’s husband feared for his safety as she indicated that the threats occurred before she started dating him which means they remained to live in Fiji for ten years and there was no evidence that they suffered serious harm during that time [45]. The Tribunal found the applicant’s evidence regarding the threats were ‘vague and unconvincing’. The Tribunal did not accept that the applicants feared for their safety whilst they lived in Fiji [45].
The Tribunal noted that the applicant stated that were no threats or any difficulties when she was living alone, after her husband had left for Australia, nor had anything happened to her parents [47].
At [52], the Tribunal put to the applicant that she lived alone for a year in Fiji, whilst her husband was in Australia, and nothing happened to her, that she lived with her parents during the week for convenience and she went to the matrimonial home in the village during the weekend, that she had the same job for 12 years and it appeared to be a stable lifestyle. The Tribunal did not accept that the applicant will be fearful if she has to reside in Fiji as a single person.
When asked about her claim that she would be seen as a failed asylum seeker, the applicant responded that she would “feel unsafe as it is a lonely place to live in their matrimonial home” [53]. When asked if the applicant could get a job in central Fiji and live at her parent’s house, she said that it was an option, however the government had not fulfilled their promises, including a review of the population’s wages [54]. In response, at [55], the Tribunal asked the applicant if she was adding a new claim of economic issues, however, she informed the Tribunal that she did not intend to pursue an economic claim.
At the end of the hearing, the applicant said to the Tribunal: “To be honest I want to go home” [59].
At [60] – [66], the Tribunal outlined the evidence the applicant’s representative submitted post Tribunal hearing. Relevantly:
·Whilst it was submitted that the applicant did not consider the Department of Foreign Affairs and Trade (DFAT) report contained accurate information, and provided an example of a claimed inaccuracy, the Tribunal did not consider the example assisted the applicant’s case based on the oral evidence at the hearing [63].
·Whilst it was submitted that the applicant did not have an opportunity to explain her position in respect of internal relocation in Fiji, the Tribunal noted that this was not an issue it was required to consider as it was affirming the matter under review [64].
·It was submitted that the applicant relied on her husband’s claims for protection, however the Tribunal noted that it became aware that the husband had an application on foot in 2024 upon the filling of the applicant’s hearing response, and that it was not provided with any documents to consider relevant to the husband’s application. During the husband’s oral evidence at Tribunal hearing, ‘he did not point to any recent evidence regarding any threats to his safety’. The Tribunal acknowledged that it was not in a position to read the husband’s Tribunal file without the evidence being produced [65] – [66].
The Tribunal had regard to the criteria for a protection visa in s 36 of the Act, Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and the Ministerial Direction No 84 [67] – [71]. The Tribunal took into account ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the DFAT [72].
At [73] – [77], in respect of the applicant’s claim that there is corruption in Fiji, the Tribunal referred to and accepted the DFAT country information assessment which explained that the issue of corruption is not as widespread as the applicant believed.
At [78], the Tribunal was not satisfied that any harm to the applicants, whether physical or psychological would be for the reason of race, religion, nationality, membership of a particular group or political opinion now or in the future.
The Tribunal accepted the reports from the DFAT and was of the view that the applicants will be able to rely on state protection should the need arise [84]. However, the Tribunal noted that the applicant did not provide the Tribunal with any examples of any behaviour specific to them that would amount to a well-founded fear of serious harm in accordance with the provisions of the Act.
Additionally, based on country information, the Tribunal found that applicants were unlikely to face any recriminations because they applied for Protection in Australia [85]
Having considered the applicants’ claims both individually, and cumulatively, the Tribunal at [86], found that the applicants did not have a real chance of serious harm arising from being an orphan for reasons mentioned in s 5J (1) of the Act or any other claimed reasons if they were to return to Fuji now or in the reasonably foreseeable future. As such, the Tribunal found that the applicants did not satisfy the criterion in s 36(2)(a) of the Act.
The Tribunal went on to consider whether the applicants met the complimentary protection criterion under s 36 (2) (aa) of the Act. Given that the Tribunal found that there was no real chance that the applicants would be seriously harmed if returned to Fiji, and that the real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, it followed that the Tribunal found that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there was no real risk the applicants would suffer significant harm pursuant to s 36(2)(aa) of the Act [87] – [90].
Accordingly, at [92], the Tribunal affirmed the decision not the grant the applicants the visa.
GROUNDS OF JUDICIAL REVIEW
The applicants advance two grounds of judicial review contained in an Amended Application filed with the Court on 11 July 2025. They are as follows (reproduced verbatim):
1.Denial of procedural fairness, tantamount to jurisdictional error.
2.Ignoring relevant material and/or duty to inquire, tantamount to a jurisdictional error.
THE APPLICANT’S SUBMISSIONS
The Court notes that the applicant’s legal representative, Ms Savu, also appeared for them at the Tribunal. Mr Savu also confirmed to the Court that he was also acting for the applicant’s husband and as a result he had access to the husband’s file and papers regarding his protection visa application. Mr Savu further confirmed that the husband’s application for a protection visa had been unsuccessful before the Tribunal.
By Ground One, the applicant alleges that the Tribunal failed to afford the applicant procedural fairness by refusing the applicants request to defer the hearing and the decision of the merits review application pending the determination of the applicant’s husband’s case at the Tribunal. It is argued that a different outcome could have been reached by the Tribunal, however the applicants were denied an opportunity to present evidence or make submissions on an issue that required consideration.
The applicant placed reliance on the decision of the plurality Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs [2002] HCA 26 (Nathanson) at [33]:
“There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submission on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how a party might have taken advantage of that lost opportunity, Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.”
It was submitted that that the applicant’s claims were intertwined with her husband’s and in this respect the Tribunal denied the applicants a reasonable opportunity to present the case. The applicant refers to annexures A, B and C which are attached to the Affidavit of KQW, sworn on 29 November 2024, which comprise of the applicant’s submissions to the Tribunal requesting the Tribunal hearing to be deferred to another date after a differently constituted Tribunal delivered its decision on the husband’s application and the Tribunal’s response to that postponement request.
There existed a “realistic possibility” that a different outcome could have resulted from the Tribunal awaiting the decision of the husband’s review application as it
“almost certainly” meant that a successful outcome in the husband’s application would naturally result in success for the applicant as well. It is alleged that, although the Tribunal Member confirmed in Annexure D, being the Tribunal’s decision and reasons for decision, that the husband had attended to give evidence at the hearing, the Tribunal did not detail any of the oral evidence given, implying that the husband never gave evidence. The applicant’s representative concludes that this effectively denied the applicants their right to present their arguments and evidence.
Whilst the standard of “reasonable conjecture” held by the plurality in Nathanson meant that the applicants did not need to demonstrate to the Tribunal how they would benefit from the deferment, the applicants nevertheless did demonstrate how the applicant’s husband’s application had a direct bearing on their protection claims as well.
By Ground Two the applicant alleges that the Tribunal ignored relevant information and had a duty to inquire further into the applicant’s claims. The duty to inquire was explained by Wilxoc J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 as follows:
“Where it is obvious that material is readily available which is centrally relevant to the decision to be made…to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.”
The applicant’s representative reiterates that the applicant had already communicated to the Tribunal Member that her and her husband’s claims were intertwined, and the applicant’s claims were dependent on her husbands. At page three of the applicant’s submissions, the applicant puts forward that the following aspects “should have been obvious” to the Tribunal Member:
(i) since the applicants claimed their protection claims were interwoven and dependent on the first applicant’s husband’s protection claims;
(ii) they had already asked for the deferral of their hearing (see annexure marked “A”), which she refused because she had already determined she was going to proceed with the hearing; (see annexure marked “B”)
(iii) ask him questions relating to his protection claims, whilst he was in attendance and readily available to answer;
(iv) before proceeding with the applicants’ hearing, since the Member would then have the benefit of hearing from the first applicant’s husband himself and was in a much better position to seek clarification, etc from the applicants.
Whilst the Tribunal Member confirmed that the applicant’s husband had given evidence at the hearing on 30 August 2025, at no time was this recorded in the decision record.
The failure of the Tribunal to make an “obvious enquiry” about the applicant’s husbands protection claims or to detail the husband’s oral evidence in its decision could give rise to jurisdictional error through a constructive failure to exercise jurisdiction as highlighted by the High Court in Minister for Immigration v SZIAI (2009) 259 ALR 429:
Although decision in the Federal Court concerned with a failure to make obvious inquiries led to the references to a ‘duty to inquire’, that term is appt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error…It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
The applicant in this matter had made it “abundantly clear” of the alleged interwovenness of their claims to the husband’s whose decision was pending before the Tribunal.
THE FIRST RESPONDENT’S SUBMISSIONS
As to Ground One, the first respondent submits that the Tribunal proceeding to determine the matter without waiting for the applicant’s husbands matter to be determined was entirely reasonable in circumstances where [RS 33]:
33.1. First, the applicant requested the proceedings be delayed for an unknown period. The Tribunal has statutory objectives to provide a mechanism of review which is fair and just, ensures applications are resolved as quickly, and improves the transparency of decision-making.44 To delay a decision for an extended period would conflict with these objectives and would be ‘unduly protracted’.45
33.2. Second, it would be inappropriate for the Tribunal to defer making its decision where the Tribunal had sufficient evidence before it to make its decision, and where the applicant had every reasonable opportunity to provide further evidence.
33.3. Third, it is not the case that there was a ‘good reason’ to expect the outcome of the husband’s application would be positive, and that the outcome of the husband’s application was ‘essential’ to the success of the application before the Tribunal. If the husband’s decision was positive the Tribunal was not bound to find that the applicant met the protection criteria.
This is where the Tribunal had already stated in its refusal to postpone the hearing date:
The Tribunal notes that you have your own claims and did not identify that your claim is related to your husband’s claim until now. You are invited to provide further information and submissions regarding the matters that you wish the Tribunal to consider at the hearing that relate to your husband’s claim.
Further, where the Tribunal had also stated in reply to the applicant’s representatives’ submissions requesting the Tribunal to defer its decision until the applicant’s husband’s determination:
He said that in her evidence she stated that her protection application also relies on her husband’s protection claims which she alludes to in her application. The Tribunal became aware that her husband had made an Application for Review upon the filing of the Hearing Response in 2024 and the Tribunal was not provided with any documents to consider relevant to her husband’s Application for protection. The husband did not point to any recent evidence regarding any threats to his safety when he gave oral evidence at the hearing. The Tribunal is not in a position to read the husband’s file without the evidence being produced.
The applicant’s further claims that she was not given a reasonable opportunity to present her case, however it is submitted that the applicant provided pre and post hearing submissions and evidence, and even though the applicant was invited to provide evidence regarding her husband’s claims before, during and after the hearing, the applicant did not provide any evidence. Further, the applicant and her husband attended the Tribunal hearing where they were given a chance to give evidence.
Where the applicant claims that the Tribunal did not detail any of the husband’s oral evidence in its decision, implying that the applicant’s husband never gave evidence, this is plainly incorrect. The Tribunal noted that evidence was given by the applicant’s husband, however it did not point to any recent evidence regarding any threats to his safety. The lack of reference to the evidence of the husband is explicable as it was not material referable to the conclusions reached by the Tribunal. The reasoning of the Tribunal was logical where the husband’s evidence did not point to any threat.
As to Ground Two, the applicants allege the Tribunal failed to make inquiries about the applicant’s husbands protection claims. It is well established that this does not constitute one of the roles for the Tribunal, to ask questions which might elicit information that better supports an applicant’s case; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]. It was a matter for the applicant to advance her own case.
The applicant did not avail herself of the opportunity to file further submissions and evidence in regard to her husband’s claims, between her application for the protection visa in November 2019 and August 2024. The evidence that was submitted to the Tribunal consisted of bare assertions that the applicant relied on her husband’s claims but did not go into detail.
The Tribunal did attempt to elicit further information from the applicant and explained it would need to be aware of the husband’s protection claims raised in his application however it did not receive such a copy. The Tribunal regarded the applicant’s evidence regarding the threats her husband allegedly faced as “vague and unconvincing”. The Tribunal did not accept the applicant’s claims having had regard to all the information and evidence submitted.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It was for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [82].
The Court notes that, given the alleged interwovenness of the applicant’s and her husband’s claims for protection, rather than asking for an adjournment until her husband’s claims were determined, the applicant did not request that both her and her husband’s claims be heard together.
Further, although in the possession of Mr Savu, the applicant’s legal representative, the Tribunal was not provided with a copy of the husband’s application and other documentation as to his protection claims, either before or after the Tribunal hearing. No proper reason has been advanced in relation to this failure.
The Court also notes that the applicant has not provided the Court with a copy of the transcript of the Tribunal hearing. Given that, it is difficult to understand what evidence given by the husband should have been referred to by the Tribunal and was not referred to in the decision record.
Ground One
Ground One is a claim of a denial of procedural fairness by not deferring the hearing of the applicant’s matter until after her husband’s matter had been determined by the Tribunal. The Court does not accept the assertion by the applicant that there was a realistic possibility of a different outcome had the matter been deferred.
The applicant’s claims appeared to a large extent to be based on corruption in Fiji, and that she would be victimised due to ‘envy and jealousy’ of other Fijians, due to her husband being in Australia. Further the applicant would not be safe as it would be assumed, given she would return to Fiji, after more than 12 months in Australia, that she had spoken out against the Fijian government.
These claims were not interdependent upon her husband’s claims. They stood on their own and did not require a determination of the husband’s claims in order for her claims to be fairly determined.
The Court is further satisfied that the applicant had every opportunity to provide the Tribunal with any evidence that she wished to in relation to her husband’s claims. The applicant’s husband appeared before the Tribunal and gave evidence. No reason has been put forward as to why the applicant’s legal representative did not provide the material to the Tribunal as regards precisely what the husband was claiming in his protection visa application and how it was interwoven with the applicant’s claims.
A decision to either adjourn or not adjourn a matter involves an exercise of discretion by the Tribunal. Like all discretions, it must be exercised reasonably.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Li at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
At [66], the Tribunal noted that the applicant’s husband did not point to any recent evidence regarding any threats to his safety when he gave oral evidence of the hearing. Given the particular circumstances of this case and noting that there was nothing to stop the husband’s application being provided to the Tribunal, and that the husband gave evidence, the Court is not satisfied that it was legally unreasonable for the Tribunal to defer the hearing of the wife’s application until after the husband’s application had been determined. The Court agrees with the first respondent’s submission that the Tribunal had more than sufficient evidence before to make its decision. Further, the Court is satisfied that the applicant had every opportunity to reasonably present her case including via the provision of pre-and post-hearing submissions and evidence.
Finally, the Court rejects the assertion by the applicant that because the Tribunal did not detail any of the husband’s oral evidence to the decision, this implied he never gave evidence. The Court is satisfied that the absence of the further references to the evidence of the husband is explicable on the basis that it was not material to the conclusions reached by the Tribunal and therefore it was not necessary for that evidence to be detailed. Ground One has no merit.
Ground Two
Ground two is an allegation the Tribunal ignored relevant information and/or the duty to inquire. As set out above, it is for the applicant to provide the evidence such as to satisfy the decision-maker, in this case being the Tribunal, that they were entitled to the visa sought.
As noted by the first respondent, the Tribunal actively sought to engage with the claims that were before it, including, explaining that it needed to be aware of the matters raised in the husband’s application if the applicant seeks to rely on that evidence. The Tribunal also noted that the applicant’s evidence of the threats her husband allegedly faced was “vague and unconvincing”. The Court accepts the first respondent’s submission that this is evidence the Tribunal sought to engage with and inquire with the applicant about those claims.
Given that the applicant was represented, by the same legal representative as her husband, in the Court’s view there was nothing to stop the husband’s evidence and claims being put in detail to the Tribunal. The failure to do so speaks of a forensic decision by the legal representative. In the Court’s view, no jurisdictional error arises. Ground Two has no merit.
DETERMINATION
As neither of the grounds of judicial review have any merit, the Application must be dismissed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 August 2025
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