CJQ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1635

1. The legislative scheme in force at the time of the application provided pursuant to s 36(1A) of the Act, that an Applicant for a protection visa must satisfy both criteria in subsections (1B) and (1C) and at least one of the criteria in s 36(2).
2. Section 36(2) provided:

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

1. The meaning of significant harm and the circumstances in which a person will be taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B) of the Act as follows:

...

(2A) A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subjected to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

...

1. Section 5H defined the term 'refugee'. The definition in s 5H(1) was as follows:

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality - is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

1. Section 5J provided the definition for the phrase 'well-founded fear of persecution'. Pursuant to s 5J(1) of the Act, a person has a well-founded fear of persecution if: they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; there is a real chance they would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the relevant country. In ss 5J(2) to 5J(6) and ss 5K to 5LA, additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are specified.
2. If a person is found not to meet the criterion in s 36(2)(a) of the Act, they may still meet the criteria for a grant of a Protection visa if they satisfy the complementary protection criterion in s 36(2)(aa).
3. The Applicant's protection claims were outlined in his response to the Tribunal's letter sent pursuant to s 424A of the Act as follows:

(a) Applying for protection from one country to another is enough to be persecuted and suffer significant harm in South Africa.

(b) The President of South Africa accuses foreigners of criticism and has 'ramped up control and scrutiny'.

(c) As a foreigner he has spoken out about South Africa's behaviour towards other nationalities. He will be stopped at the airport, questioned, and may be assaulted or killed in prison.

(d) The Applicant's children suffered discrimination, persecution, and physical harm at school in South Africa.

(e) The Applicant wants to protect his son from ritual circumcision which is practiced by the tribe the child's mother belongs to.

(f) The Applicant's ex-wife has threatened to have him arrested by her Police captain brother and his government official friends if he returns to South Africa. He would be tortured in prison and sent to the Congo to die.

(g) The Police in South Africa are biased and never assisted him in the past. They will be against him because he is another nationality.

(h) The Applicant established a church in South Africa over seven years, but it was "destroyed" in one day.

(i) The Applicant was told to go back to the Congo to preach as foreign churches are associated with apartheid.

(j) He was locked out of his church, his musical instruments were stolen, and the building was burned down.

(k) News reports said the church was destroyed by robbers when it was community members, the Police failed to investigate the incident, and the Applicant had to move to the city while preparing to leave South Africa.

(l) The Applicant and his children feel at home in Australia and want to contribute to society.

(m) The Applicant is running a church on Sundays; he teaches music on Saturdays and works with disabled children during the week.

1. The Tribunal's decision record is at CB171-192.
2. The Tribunal outlined at [13] to [19] of its decision the evidence and information that was before it, which included evidence provided by the Applicant to the Tribunal and evidence that was before the Delegate. The Tribunal also had regard to the Applicant's record of interview before the Delegate.
3. Based on the documents provided by the Applicant and relevant country information, the Tribunal found at [15] that the Applicant is a citizen of South Africa and as such it was determined that his protection claim would be assessed against South Africa as the country of reference and 'receiving country'.
4. The Tribunal recorded at [16] of its decision, the Applicant's migration history including his entry and re-entry to Australia on four occasions including his last date of entry, being 5 March 2012.
5. The Tribunal listed at [18] and [19] of its decision record, the written evidence that was provided to the Tribunal by the Applicant and which it considered. It also considered the information provided to the Department at the time of the Protection visa application and the Applicant's record of interview with the Delegate on 2 June 2017.
6. At [21] to [41] of the decision, the Tribunal summarised the Applicant's evidence given at the hearing before it (CB175-179).
7. The Tribunal correctly identified at [4] of its decision that the issue on review was whether the Applicant met one of the criteria in ss 36(2)(a), (aa), (b) or (c) of the Act, in that he is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
8. At [5] to [7] of its decision, the Tribunal summarised the refugee criterion in s 36(2)(a) of the Act and the meaning of refugee and well-founded fear of persecution as defined in ss 5H and 5J of the Act. It also referred to the circumstances in which a person will be taken not to have such a fear as set out in ss 5J(2)-(6) and 5K-LA of the Act.
9. At [8], the Tribunal identified that if a person fears persecution for one or more of the reasons in s 5J(1)(a) of the Act, by s 5J(4)(a), that reason or reasons must be the essential and significant reasons for the persecution.
10. The Tribunal then went on to correctly identify at [8] the requirement in ss 5J(4)(b) and (c) that the persecution must involve serious harm to the person and systematic and discriminatory conduct and listed at [9], the non-exhaustive list of examples of serious harm in s 5J(5) of the Act.
11. Lastly, at [10] of its decision, the Tribunal summarised the complementary protection criteria in s 36(2)(aa) of the Act.
12. The Tribunal correctly stated in [12] of its decision that in considering whether the Applicant satisfies one of the criteria in s 36(2) of the Act it had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade as required by Direction Number 84 under s 499 of the Act.
13. The Tribunal considered at [45] to [52], the issue of xenophobia in South Africa by reference to various media articles and reports from the US Department of State. It accepted that hostility towards foreign nationals is still pervasive and results in violence and that it is motivated in part by concerns about the impact of foreign nationals on jobs and housing. It referenced that African and Asian migrants are often targeted.
14. At [53], the Tribunal considered that at times foreigners have been the target of political leaders and that political leadership in targeting xenophobia has been lacking. However, the Tribunal found at [55] that there is information that demonstrates authorities have been able to intervene to protect migrants and prevent or stop xenophobic violence.
15. At [56] to [61] of its decision, the Tribunal considered the availability of state protection and referenced a plan by South African authorities to combat xenophobia but noted that proper Police action and the holding of those responsible for xenophobic attacks to account was still needed.
16. At [63] the Tribunal acknowledged the crime statistics and that violent crime remains an ongoing threat in South Africa but found that such crimes were mostly opportunistic.
17. The Tribunal considered the Applicant's concerns about traditional circumcision at [64] to [68] and placed weight on the legislation that exists in South Africa requiring the consent of children over the age of 16 years or both parents if the child is under 16.
18. The Tribunal considered each of the Applicant's claims and evidence in support at [69] to [84] of its decision.
19. It accepted at [70] the Applicant was a South African citizen and had experienced incidences of harassment and discrimination due to his Congolese background (CB185). It also accepted at [76] that the Applicant may have been verbally harassed and threatened in South Africa and experienced discrimination. It also accepted that xenophobia is a persistent problem in South Africa.
20. The Tribunal correctly identified at [74] that the test for a well-rounded fear of persecution includes both subjective and objective elements.
21. Ultimately, the Tribunal was of the view that the Applicant was in a different position to other recent migrants in that he had lived in South Africa for fifteen years, had a congregation of community members at his church, had support from another church and a religious mentor. Additionally, the Applicant had been able to find work and accommodation and the children had attended school (CB187 at [77]).
22. Further, the Tribunal found that there was no verifiable evidence of physical violence against the Applicant because of his race or ethnicity and that the likelihood of the Applicant and his children being seriously harmed or killed due to xenophobia was remote.
23. At [78] of its decision, the Tribunal acknowledged that the Applicant may still experience verbal insults and ostracism arising from xenophobic beliefs but that this was not sufficiently serious to amount to serious harm.
24. At [80] of its decision, the Tribunal acknowledged the Applicant's wife may come from a tribe that practises ritual circumcision but referenced the legislation around this and that the Applicant's son's consent would be required to such a procedure. As such, the Tribunal did not consider the Applicant's son was at risk of serious harm.
25. At [81] and [82] of its decision, the Tribunal considered the Applicant's claim that he was at risk of serious harm from his wife's family. The Tribunal noted that the Applicant and his former wife had been separated for five years at that time, and there was no reason for him to associate with her family.
26. At [83] of its decision, the Tribunal dismissed the Applicant's claims that he had spoken out about the behaviour of South Africans towards other nationalities and found he had not explained how or when this had occurred. It found that the evidence did not establish the Applicant has a profile in South Africa such that it would lead to him being detained by authorities if he returns.
27. Ultimately, the Tribunal failed to accept that, based on the above reasoning, there is a real chance the Applicants will suffer serious physical or emotional harm if they return to South Africa now, or in the reasonably foreseeable future due to xenophobia or because they look and speak differently to native South Africans or have different surnames to South African born people. For those reasons, the Tribunal did not accept they would suffer significant harm.
28. After determining the Applicants did not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal then went on to consider at [85] whether they satisfied the complementary protection criterion in s 36(2)(aa). The Tribunal considered at [85] and [87] of its decision, the definition of 'significant harm'.
29. It was not satisfied that the Applicants would suffer significant harm as defined, due to the Applicant's Congolese ethnicity, his status as an immigrant in South Africa, or for any other reason. Further, the Tribunal did not accept the Applicant was at any greater risk of significant harm than any other South African. Therefore, the Tribunal determined at [89] of its decision that it was not satisfied the Applicants would suffer significant harm if they return to South Africa.
30. The Tribunal concluded that the Applicants did not meet the criterion in s 36(2)(a) or the complementary criterion in s 36(2)(aa) of the Act and affirmed the decision of the Delegate to refuse the grant of the Protection Visa.

1. On 21 July 2022, the Applicant applied to this Court pursuant to s 476 of the Act for judicial for review of the Tribunal's decision ('the application'). The Applicant also filed an affidavit annexing the Tribunal's decision.
2. On 12 October 2022, a Registrar made procedural Orders in Chambers for the filing of further material and listed the proceedings for a final hearing on a date to be advised.
3. On 2 September 2025, the Applicant filed an Amended Application in which he amended his grounds and sought to remove his children, CJR22 and CJS22 as parties to the proceedings.
4. The First Respondent had no objection to the Applicant's request for CJR22 and CJS22 to be removed from the proceedings.
5. The matter was listed for a final hearing on 26 September 2025 and proceeded in respect of the Applicant only.

1. At the hearing, the material listed below was before the Court.
2. The Applicant relied on the following material:

(a) The Court Book which was tendered and marked as Exhibit C-1;

(b) The Supplementary Court Book which was tendered and marked as Exhibit C-2;

(c) Additional Outline of Submissions filed 1 October 2025;

(d) List of Authorities filed 24 September 2025;

(e) Amended Application for judicial review filed 2 September 2025;

(f) Outline of Submissions filed 2 September 2025;

(g) Affidavit of Dushan Nikolic filed 2 September 2025;

(h) Notice of Address for Service filed 17 October 2023; and

(i) Affidavit of CJQ22 filed 21 July 2022.

1. The First Respondent relied on the following material:

(a) The Court Book which was tendered and marked as Exhibit C-1;

(b) The Supplementary Court Book which was tendered and marked as Exhibit C-2;

(c) Outline of Submissions filed 12 September 2025;

(d) List of Authorities filed 12 September 2025;

(e) Response filed 7 December 2022; and

(f) Notice of Address for Service filed 3 October 2022.

1. The documents which were tendered during the course of the hearing and marked as Exhibits are as follows:

Transcript of record of the interview of Applicant with Department of Home Affairs

1. The Applicant was represented by counsel who made oral submissions in support of the application and in reply to the submissions made by the First Respondent.
2. I have had regard to the written material relied upon by both parties in determining this matter and the further oral submissions made at the hearing.

1. The Court may set aside the Tribunal's decision upon judicial review if it is affected by jurisdictional error: see Migration Act 1958 (Cth) ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
2. The High Court explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [2] as:

...breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".

1. For the reasons that follow, I find that jurisdictional error is established.

1. The Applicant's grounds of review are in the Amended Application filed on 2 September 2025 and are as follows:

*** The Administrative Appeals Tribunal (Tribunal) failed to afford the Applicant procedural fairness in respect his claim to face harm from xenophobia in South Africa.**

The Tribunal rejected the Applicant's claims arising from xenophobia in South Africa in part because the Applicant did not provide corroborative evidence about the attack on his church in Motherwell. However, the Tribunal did not ask for such evidence or raise this concern with the Applicant.

*** The Tribunal erred by failing to lawfully consider the Applicant's claims or failing to correctly apply statutory criteria in assessing the Applicant's claim to face harm from xenophobia in South Africa.**

The Tribunal accepted the Applicant's claims that he and his children had faced harms in South Africa including:

• The Applicant being threatened with a gun;

• The Applicant having his car destroyed;

• The Applicant's children being beaten;

• The Applicant's children being racially abused and socially ostracised;

• The Applicant being cheated and evicted by landlords.

However, the Tribunal did not accept that the Applicant faced a real chance or risk of serious or significant harm on any of these bases.

The Tribunal's assessment of these claims demonstrates that it must have either misconstrued them, and/or failed to apply the correct threshold for a 'real chance' or 'real risk' and/or the correct definition of 'serious harm' and 'significant harm'.

*** The Tribunal failed to afford procedural fairness to the Applicant in respect of his claim to face a real chance or risk of harm arising from the circumcision of his son.**

The Tribunal rejected the Applicant's claim that his son would be subject to ritual circumcision in part because his wife had provided statement indicating that she did not support her son taking part in this practice, contrary to the Applicant's claim.

The Tribunal did not ask the Applicant about this statement or present it to him.

*** The Tribunal erred in its assessment of the Applicant's claim to face harm arising from the circumcision of his son.**

The Tribunal relied on the fact that involuntary circumcision is unlawful in South Africa to conclude that there was no real chance it would occur.

However, the Tribunal was obliged to make a predictive factual assessment of the likelihood of this event taking place, not merely consider the lawfulness of its occurrence.

Its reasons in this respect were unreasonable.

*** The Tribunal erred in assessing whether the Applicant faced a real risk of significant harm on the basis of crime in South Africa.**

The Tribunal considered that South Africa had very high homicide rates and high crime rates, including for violent offences. However, it did not assess the implications of this finding in considering whether the Applicant faced a real risk of significant harm.

1. The Applicant alleges he was not afforded procedural fairness in respect of his claim he would suffer harm from xenophobia in South Africa. The Applicant refers to the Tribunal's rejection of his claim about the attack on his church in Motherwell because he did not provide corroborative evidence about the attack.
2. The Applicant claims he was denied procedural fairness by the Tribunal because it did not ask for such evidence or raise its concerns about the lack of evidence.
3. The relevant aspect of the Tribunal's decision is at [76] (CB187):

The applicant did not provide any evidence of property damage that he claimed had occurred, forcing him to move from Motherwell to the city of Port Elizabeth. This is despite claiming there were news report [sic] about the destruction of his church. The Tribunal was unable to find any such media reports from the period when the applicant was still in South Africa.

(Emphasis added)

1. It was submitted on behalf of the Applicant that a central aspect of the Applicant's claim to fear harm in South Africa is the prospect of xenophobic threats of harm faced by him and his family, based in part on past xenophobic violence alleged to have been suffered by them. The attack on the Applicant's church at Motherwell was cited as an example.
2. Counsel referred to the Tribunal's reasoning at (CB180), where it accepted that xenophobic violence is a perennial phenomenon in South Africa, that refugees, asylum seekers and all migrants may be more vulnerable than other foreigners and that xenophobic violence had at times been endorsed by political leaders. Further, the Tribunal accepted that State responses to such violence had been inadequate.
3. Counsel for the Applicant referred to the fact that the Tribunal accepted the Applicant may have been verbally harassed and threatened and faced discrimination but then stopped short of a finding that the Applicant (or secondary applicants) face a real chance of a physical attack based on xenophobia if they return to South Africa.
4. It was submitted on behalf of the Applicant that the Tribunal's reasoning as to why it was not satisfied the Applicant might suffer physical harm was based on the fact it considered the Applicant had not substantiated claims about the destruction of his church with corroborative evidence.
5. Counsel submitted that at this point, the Tribunal should have provided the Applicant with an opportunity either in writing or at the hearing to provide corroborative evidence to address its concerns about the attack on the church or, provided an independent basis for its finding that it did not give rise to a real chance of serious harm.
6. As such, it was submitted that the Applicant was not given a procedurally fair hearing because of the absence of any opportunity to address that concern.
7. Counsel for the First Respondent submitted in response that the Applicant failed to account for the procedural fairness regime of the Tribunal which is highly regulated and exhaustively codified.
8. It was submitted that s 422B of the Act which was in force at the time of the Tribunal's decision, makes it clear that Division 4, Part 7 of the Act is an exhaustive statement of what it calls the natural justice hearing rule.
9. It was submitted that the Tribunal had two obligations as to procedural fairness. The first was to invite comment on adverse information in accordance with s 424A of the Act and the second was to invite an applicant to appear at a hearing in accordance with s 425.
10. It was submitted that the keyword in this context is 'information' in s 424A(1) and that the Tribunal's procedural fairness obligations do not extend to doubts about the Applicant's evidence or require the Tribunal to give a running commentary or provide the Applicant with an opportunity to comment on gaps in the evidence. Counsel cited the High Court's decision in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 ('SZBYR') in support of this submission.
11. Counsel for the First Respondent further submitted that the Tribunal's obligation was to give the Applicant the opportunity to comment on positive information in its possession, but it was not required to share its doubts about the Applicant's church having been destroyed.
12. Following those submissions, counsel for the First Respondent in its duty to the Court and as model litigant submitted that it could be inferred from the Tribunal's reasons at [76] (CB186) that after the hearing, and on its own initiative it searched for news reports and could not find any.
13. Noting that its primary submission was that the absence of information does not attract the obligations under s 424A, counsel drew to the Court's attention a line of authority on the issue. In particular, the decision of NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174; (2006) 156 FCR 205 ('NBKS') in which the Court found that internet search results which form part of the reason for affirming a decision under review, constitute 'information' and thus 424A(1) of the Act applied.
14. NBKS was then followed by the High Court decision in SZBYR, which the First Respondent relied upon for its submission that absence of information was not information.
15. Counsel then referred to SZMKR v Minister for Immigration & Citizenship [2010] FCA 340 ('SZMKR') a single-judge decision in which Gray J stated at [37]:

... To the extent to which opinions have been expressed, they favour the proposition that NBKS remains good law. I share that view on the basis of my own reading of NBKS and SZBYR.

1. The final decision that counsel referred to was SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 ('SZTGV') in which the Full Court concluded at [18] of its decision that the reasoning of the High Court in SZBYR and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 is not readily reconcilable with SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 and NBKS.
2. Ultimately, counsel for the First Respondent submitted that SZBYR supports the proposition that information within the meaning of s 424A does not extend to the prospective reasoning process of the Tribunal. Further, it was submitted that the Tribunal was merely seeking to verify something the Applicant told the Tribunal by its internet search, so it was negative information and not 'information' for the purpose of s 424A(1).
3. In the alternative, it was submitted that the information the Tribunal obtained from the internet search was not information about the Applicant or another person but rather, information about the church. As such, it was contended that by virtue of s 424A(3) the Tribunal's procedural fairness obligation in sub-section (1) was not engaged because the information was not about the Applicant or another person.

1. It is clear from the Tribunal's reasons at [76] that it had doubts as to the veracity of the Applicant's claims as to the attack on his church in Motherwell, which he said led to him and his family having to move to Port Elizabeth.
2. I agree with the submission on behalf of the First Respondent that the Tribunal is not required to give notice pursuant to s 424A(1) of its prospective reasoning process or doubts about the Applicant's evidence in this regard. As the High Court stated in SZBYR at [18]:

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

1. In SZTGV, the Full Court of the Federal Court further considered the tension between NBKS and SZBYR and stated:

The reasoning of the High Court in SZBYR and SZLFX is not readily reconcilable with that in SZEEU and NBKS. What is clear from SZBYR and SZLFX is the High Court's endorsement of the proposition that "information" within the meaning of s 424A(1) of the Act does not extend to the "prospective reasoning process" of the Tribunal. Further, the information must be information that "would", not "could" or "might", be the reason or part of the reason for affirming the decision under review. Such information necessarily involves a rejection, denial or undermining of the applicant's claims.

1. It was submitted in reply submissions on behalf of the Applicant that as in NBKS, the Tribunal plainly regarded the fact that the search had been conducted, and had not yielded reports of the claimed incident, as one reason for rejecting the Applicant's claim that the incident had taken place, and for in turn rejecting the Applicant's claim to fear xenophobic harms. It was thus contended that this was information that 'would be' and was part of the reason for affirming the decision under review, because it involved a rejection, denial or undermining of the Applicant's claims.
2. In respect of the submission on behalf of the First Respondent that the Tribunal's procedural fairness obligation in sub-section (1) was not engaged because the information arising from the search was not about the Applicant or another person, the Court is unable to draw that inference.
3. The Tribunal's search was the Tribunal looking for information about a particular event namely, the attack on the Applicant's church. This related directly to the Applicant as he had founded and built the church and had been locked out of it. I therefore do not consider that the exemption in s 424A(3) is applicable.
4. It is apparent from the Tribunal's reasons that the absence of any news reports arising from its search increased its doubts as to the veracity of the Applicant's claims about the church attack.
5. I consider the Court's reasoning in NBKS does not conflict with High Court's reasoning in SZBYR, as the case is distinguishable on its particular facts in respect of the internet search undertaken.
6. On the same basis as outlined in NBKS, I consider the results of the Tribunal's search referred to at [76] of its decision, constitute 'information' that was a part of its reason for affirming the decision under review. Further, the absence of evidence was treated not merely as a gap, but as a positive indication that the claimed incident had not occurred.
7. I therefore consider that the Tribunal's procedural fairness obligation in s 424A(1) was engaged, and the Tribunal should have undertaken the steps required of it to ensure the Applicant had the opportunity to comment or respond in the appropriate manner.
8. For those reasons, I consider the Tribunal breached s 424A of the Act and jurisdictional error is established by Ground One.

1. The Applicant alleges jurisdictional error in the Tribunal's consideration of his claims to face harm from xenophobia in South Africa. Alternatively, it is alleged the Tribunal failed to correctly apply the statutory criteria by misconstruing what significant and serious harm amounted to, or what a real chance or real risk amounted to.
2. The Applicant alleged that the following experiences fall readily within the definition of significant and serious harm in s 36(2):

(1) The Applicant being threatened with a gun;

(2) The Applicant having his car destroyed;

(3) The Applicant's children being beaten;

(4) The Applicant's children being racially abused and socially ostracised; and

(5) The Applicant being cheated and evicted by landlords.

1. It was submitted that the Tribunal accepted that all of the above incidents occurred and despite those findings concluded that the Applicants did not face a real chance of serious or significant harm as they did not fall within the category of persons who are more likely to fall victim to xenophobic attacks.
2. It was submitted that the Tribunal's use of words such as 'not necessarily', 'is likely' or 'more likely' is the kind of language that the Court has previously found gives rise to an inference that the decision-maker has fallen into error. In this regard, it was submitted that the Tribunal gave no explanation as to why the threshold had not been met given what it had identified.
3. It was submitted on behalf of the First Respondent that the Tribunal accepted the Applicant was verbally harassed and threatened 'as described', except for the claim that his church was damaged.
4. The First Respondent disputed the Applicant's characterisation of the Tribunal's findings as provided in the particulars to this ground as the incident concerning the gun and the car were the same incident and the Tribunal also noted that the Applicant did not explain what he meant by the word "destroyed".
5. Further, it was disputed by the First Respondent that the Tribunal found the Applicant's children had been beaten, racially abused, or socially ostracised and that those claims were not advanced by the Applicant.
6. It was submitted by the First Respondent that the Tribunal's reasons provide a cogent explanation of why it did not accept the Applicant's claims. Although it accepted the Applicant had experienced discrimination, importantly, it took into account how long the Applicant had lived in South Africa, that he had obtained work and accommodation and had a wife from South Africa. It concluded that the Applicant had integrated into the community and was a longstanding migrant to South Africa. Thus, the Tribunal concluded at [77] that the possibility of the Applicants being seriously harmed and/or killed in a xenophobic attack in South Africa, and the children encountering hardship because of this, to be remote in the circumstances despite xenophobia remaining a problem in the country.

1. To satisfy the refugee criterion under s 36(2)(a) of the Act, the Applicant was required to show that he has a 'well-founded' fear of persecution for a Convention reason if he returns to South Africa.
2. In CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [22] ('CGA15'), the Court stated that:

A fear of persecution will be "well-founded" if there is a "real chance" that the applicant will suffer the claimed persecution in the reasonably foreseeable future. A "real chance" is a prospect that is not "remote" or "far-fetched": Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

1. The Court in CGA15 stated that ultimately, in determining whether a fear of persecution is well-founded, what matters is the actual level of risk in any particular place: see CGA15 at [35].
2. The Tribunal concluded that while the Applicant may have suffered some discrimination and could in the future experience verbal insults and ostracism, that did not amount to serious harm.
3. I consider the Tribunal adequately explained why it considered the actual level of risk of harm to the Applicant in South Africa did not amount to serious harm, and thus made it clear in its reasons why the threshold of serious harm had not been met.
4. I therefore find that no jurisdictional error is established by this ground.

1. The Applicant alleges he was not afforded procedural fairness in respect of his claim that he faced a real risk of harm arising from the circumcision of his son.
2. It was submitted that the error arises from the Tribunal's conclusion that there was no real chance of harm to the Applicant arising from his son's ritual circumcision.
3. This complaint is centred on the Tribunal's failure to bring to the Applicant's attention a statement from the Applicant's wife and sent to the Department, stating that she did not support her son taking part in the practice of circumcision, contrary to the Applicant's claim that she did: see Supplementary Court Book ('SCB') at pages 53 to 54.
4. It was contended on behalf of the Applicant that the Tribunal based its conclusion that there was no real chance of harm on this statement and therefore, the Tribunal should have asked the Applicant about the statement or presented it to him, but it did not do so. As such, it was submitted on behalf of the Applicant that by not raising the statement with the Applicant the Tribunal did not afford the Applicant procedural fairness.
5. In addition, the Applicant submitted that the Tribunal drew a conclusion that the circumcision of the Applicant's son will not occur because of the wife's statement that she did not support her son taking part in the practice of circumcision. It was submitted that such a conclusion was not one that was obviously open to the Tribunal to reach on the material that was before it.
6. It was submitted on behalf of the First Respondent that the Applicant posted the letter from the Applicant's wife to the Department and as a consequence, pursuant to s 424A(3)(ba) of the Act, the Tribunal had no obligation to give the Applicant the opportunity to comment. A copy of the envelope which contained the letter is at SCB56.
7. Further, it was submitted that the Tribunal stated in its reasons what the letter said and that it was within the bounds of reasonableness for the Tribunal to interpret the statement made by the Applicant's wife in the way it did.

1. There was no submission made that the Applicant was unaware of the content of the letter from his wife. The Applicant's complaint is centred solely on the fact the Tribunal did not raise the content of the letter with him at the hearing before it and provide an opportunity for him to comment.
2. The letter was sent to the Department by the Applicant for the purpose of the visa application. As such, it was information the Applicant gave during the process that led to the decision under review.
3. Therefore, I find that s 424A(3)(ba) applied to the information and the Tribunal was not obliged to provide the Applicant with particulars of the information in the letter or invite the Applicant to comment.
4. In respect of the Tribunal's interpretation of the statement from the Applicant's wife that she did not support the practice of circumcision, it was open to the Tribunal and reasonable for it to conclude that this meant the circumcision of the Applicant's son would not occur. As was submitted by counsel for the First Respondent, a different interpretation of the statement does not amount to jurisdictional error.
5. For these reasons, this ground must fail, and no jurisdictional error is established.

1. The Applicant alleges that the Tribunal made an error in its consideration of whether the Applicant faced harm arising from the potential circumcision of his son. In this regard, it was submitted that the Tribunal reached its conclusion based only on the fact that there is a law in South Africa requiring the consent of a child to circumcision.
2. It was submitted on behalf of the Applicant that the essence of the 'real chance' test is that it is predictive and should be based on probative material. As such, the Tribunal was obliged to make a predictive factual assessment of the likelihood of this event taking place, not merely consider the lawfulness of its occurrence.
3. It was further submitted that the legal position itself is not probative without information about how well that law is enforced, particularly where the Tribunal accepted there was some evidence that the wife's ethnic and family background was that there was an expectation circumcision would occur.
4. It was submitted on behalf of the First Respondent that the Tribunal must make a predictive assessment of whether there is a real chance circumcision would occur. It has to look at the past and the facts and the circumstances to decide whether something may happen in the future.
5. It was further submitted that the Tribunal took into account that the law had been implemented and given effect to in the Courts and endorsed by political leaders. In this regard, counsel referred to [68] of the Tribunal's decision in which it referenced the Congress of Traditional Leaders of South Africa acceptance of the right of adult males to choose whether to attend traditional circumcision schools, and that Congress apologised for comments made by its former chairman, encouraging ostracism between teenagers who refused to undergo traditional circumcision, and noted that the South African judge stressed that consent was essential if the practise was to be both lawful and constitutional.

1. The Tribunal clearly identified at [80] of its decision that the Applicant's wife did not support the practice of circumcision and that the Applicant's son was 16 and was therefore required by law to consent to circumcision. It also took into consideration that the Courts in South Africa have enforced the law relating to consent.
2. Further, the Tribunal referenced at [68] of its decision that the Congress of Traditional Leaders had accepted such a ruling.
3. In those circumstances, I consider the Tribunal did make a predictive assessment of whether the Applicant's son was likely to face ritual circumcision and reached a logical conclusion on the facts that he would not be forced to do so.
4. I therefore find that no jurisdictional error is established by this ground.

1. The Applicant's complaint arising from this ground is that the Tribunal accepted there were high crime rates in South Africa but then failed to assess the implications of it for the Applicant, and in particular, did not assess it under the rubric of the complementary protection criteria, namely, whether there was a real risk the Applicant will suffer significant harm.
2. It was submitted that in assessing whether the Applicant faced a real risk of harm, if that harm was unable to be linked to a characteristic that was relevant to persecutory harm in s 5J of the Act, it was still relevant to the consideration of whether the complementary protection criterion had been met.
3. It was submitted that the Tribunal simply concluded that violent crime in South Africa was opportunistic and not tied to xenophobia without assessing the relevance of such crime and the risk of harm to the Applicant and his family from it.
4. It was submitted on behalf of the First Respondent that the Tribunal accepted that there is widespread violence in South Africa but that it is an excluded factor under s 36(2B)(c) of the Act.
5. It was further submitted on behalf of the First Respondent that the Tribunal's reasons make clear that it considered the Applicant would not be distinguished from other members of society and thus was not at any greater risk than any other South African.

1. The Tribunal considered at [85] to [89] of its decision (CB188-189) whether the Applicant and his family satisfied the complementary protection criterion in s 36(2)(aa) of the Act and in particular, whether there were substantial grounds for believing there is a real risk the Applicants will suffer significant harm if they are removed from Australia to their home country, either from society at large, or any individual person now or in the reasonably foreseeable future.
2. The Tribunal considered the meaning of 'real risk' and that it imposes the same standard as the 'real chance' test in the Refugee Convention definition. The Tribunal then considered the definition of 'significant harm' at [87] of its decision and found that there was no evidence the death penalty will be carried out on the Applicant, or that he would be subjected to torture. The Tribunal did not accept the Applicant has a profile in South Africa that would lead to him being arrested or detained by authorities or that the Applicants were at risk of being subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment.
3. At [88] of its decision, the Tribunal accepted that the Applicants may face a level of discrimination in South African society but that it would not amount to significant harm as defined in the Act.
4. At [87] of its decision, the Tribunal considered whether the Applicant would suffer significant harm due to his ethnicity, status as an immigrant, or for any other reason and concluded he would not. Ultimately, the Tribunal concluded the Applicant was not at any greater risk of being arbitrarily deprived of his life than any other South African.
5. It is clear from the Tribunal's reasoning that it assessed the risks of the Applicant and his family suffering significant harm from a number of types of violence as set out in s 36(2A) of the Act, but was not satisfied that the risk was anything other than that which any other South African might face from the generalised violent crime in the country.
6. As such, this type of risk is an excluded factor under s 36(2B)(c) of the Act and the Tribunal was entitled to conclude that the complementary protection criterion had not been met.
7. I therefore find that no jurisdictional error is established by this ground.

1. In the First Respondent's written submissions it was contended that even if the Court finds jurisdictional error in respect of Ground One, the Applicant had not made any assertion he could have provided corroborative material to the Tribunal in respect of the attack on his church, or that the Tribunal would have reached a different conclusion.
2. As such, the First Respondent submitted that the Court should exercise its discretion and decline relief.
3. At the final hearing, counsel for the First Respondent did not press this issue and submitted that Ground one had not been made out.
4. For completeness, it is appropriate that I briefly address the issue.
5. Both counsel referred the Court to the High Court decision of Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 ('Nathanson'). At [33] of Nathanson, the Court said per Kiefel CJ, Keane and Gleeson JJ:

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 submissions 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 that 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.

1. I consider that it can reasonably be inferred in this case, that if the Applicant had been given the opportunity to provide further evidence as to the attacks on his church he would have taken that opportunity.
2. In terms of the materiality of the error I have found in respect of Ground One, in the decision of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, the Court stated at [15] and [16]:

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision (36). Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind (37). In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome (38). Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker (39): the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

1. I am satisfied that there is a realistic possibility that the Tribunal might have reached a different conclusion had the Applicant been afforded the opportunity to comment or respond to the information the Tribunal had as to the absence of media reports on the attack on the Applicant's church, arising from the search it had undertaken. Accordingly, I intend to grant relief to the Applicant in respect of the jurisdictional error established in ground one.

1. For the reasons given above, I find jurisdictional error is established and the decision of the Administrative Appeals Tribunal will accordingly be set aside and remitted to the Administrative Review Tribunal for reconsideration and determination according to law.

I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman.