CLG23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1735

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) ("the delegate"), to refuse to grant the applicant a Protection (Class XA)(subclass 866) visa.

Application for a visa and the delegate's decision

1. The applicant is a citizen of Fiji. The applicant arrived in Australia in December 2017 on a Visitor visa. On 8 April 2019, the applicant made an application for a Protection (Class XA) (subclass 866) visa ("the visa") (Court Book ("CB") 38-69). The applicant's claims for protection as set out in his visa application are summarised as follows (CB 38-69):

(a) he was facing insecurity in his job as a teacher, claiming that there was discrimination in the filling of vacancies for senior positions in schools around the country;

(b) 30% of the population was living in poverty;

(c) he was made a contractor in 2018, this led to a change in salary which the applicant claimed affected him psychologically, mentally and emotionally;

(d) he feared that he and his family would face victimisation, discrimination and unfair decisions by the authorities;

(e) he claimed that his psychological, mental, physical and emotional well-being would deteriorate;

(f) he would no longer have a job;

(g) he would lose assets, liabilities and properties;

(h) his whole community, village and extended family would attack and label him and his family which will have a negative impact;

(i) the authorities cannot and will never protect him if he were to go back, specifically, claiming that the government of Fiji is on the blacklist of the European Union and a lack of funding has affected the Ministry of Education's ability to pay teachers as promised;

(j) the government's decisions led to psychological, mental, emotional and physical harm for the applicant; and

(k) the government has been unable to help many groups that need assistance, therefore, the applicant did not feel that the government would be able to help him either.

1. On 21 October 2019, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined in s 5H of the Migration Act 1958 (Cth)("the Act") as they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) of the Act; and because the delegate was not satisfied that there was a real risk that the applicant would suffer significant harm as defined in s 36(2)(aa) of the Act should he be returned to Fiji (CB 84-88) ("delegate's decision").

Application for review to the Administrative Appeals Tribunal

1. On 28 October 2019, the applicant applied to the Tribunal for a review of the delegate's decision (CB 89-169). The applicant provided written submissions and documents in support of his application.
2. On 24 October 2022, the applicant sent a letter to the Tribunal providing further documents in support of his application, including: a certificate of his Queensland teachers registration; a letter from the Department enclosing a Nomination Approval Notice for a Temporary Skills Shortage (subclass 482) visa related to the applicant; an international second language proficiency rating certificate; a character reference from his employer; an academic transcript from the University of the South Pacific; and a certificate from the University of the South Pacific (CB 180-191).
3. On 23 August 2023, the Tribunal emailed the applicant inviting him to complete the pre-hearing information form (CB 195). The applicant completed this form and attached four documents that he had already provided to the Tribunal including: his written submissions; the character reference from his employer; his Queensland teachers registration certificate; and his international second language proficiency rating certificate. The applicant also provided a summary of his current situation; and three certificates of completion for workplace mandatory training (CB 196-214).
4. On 4 September 2023, the Tribunal invited the applicant to attend a hearing on 11 October 2023 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 216-226).
5. On 12 September 2023, the applicant emailed the Tribunal attaching a letter of support from the principal at the school he works at; a letter of support from the office of the Mayor the city where the applicant works as a teacher; and a letter of support from the office of the Federal Member for his electorate (CB 231-234).
6. On 9 October 2023, the Tribunal requested that the applicant provide any current statements or documents relevant to his protection claim (CB 235-236). The following day the applicant submitted a further submission, various media articles ranging from 4 December 2016 to 25 July 2023 (CB 237-266); a statement from the Fiji Teachers Union (CB 267-269); and academic reports and media articles ranging from 11 December 2000 to 25 July 2023 (CB 270-288).
7. On 11 October 2023, the applicant attended the hearing in person. The applicant was assisted by an interpreter by video in the Fijian and English languages (CB 21).
8. On 12 October 2023, the Tribunal affirmed the delegate's decision and gave written reasons for its decision ("Decision") (CB 19-24).

1. The Tribunal identified that the determinative issue was whether the applicant satisfied the refugee criterion, and if not, whether he was entitled to complementary protection [30].
2. The Tribunal summarised the applicant's evidence as follows [14]:

(a) The applicant was a native Fijian in his early fifties who had lived all his life in Fiji before coming to Australia. He had a wife and four children who lived in Fiji. His wife was not in paid and employment and the applicant supported his family from his teacher's salary in Australia [14.1];

(b) The applicant was a teacher for 24 years in Fiji where he experienced many challenges because he could not adequately support his family on the wages he earned. He had eight transfers in 24 years. These transfers were disruptive to his family, especially when his children reached high school and needed to be in the city and close to facilities. These challenges were faced by all teachers [14.2];

(c) He had held positions as president of the Fijian Teachers Association in two different districts and often reported complaints by teachers about the late payment of wages in rural schools and the interpersonal conflict in village communities [14.3];

(d) He was demoted from senior positions due to jealousies and tribal rivalry in the Education Department. Further, that from 2017 up to the national election in 2020, teachers were converted from permanent to contract employees leading to fear as to whether teachers would hold their positions [14.5];

(e) The applicant first came to Australia at the end of 2017 for a month to spend Christmas with his cousin in Melbourne. He came again for over a month at the end of 2018. By that stage, he had lost his permanent teaching position, and was looking for other opportunities in Australia that would be more secure and better paid than his contract role in Fiji. He returned to Fiji in January 2019, tendered his resignation from his teaching contract, told his family he intended to go back to Australia and pursue opportunities that would allow him to better cater for the family's needs [14.6];

(f) The applicant said he faced great challenges and hardship as a teacher in Fiji: the low salary, being put onto contract by the regime and the associated fears and uncertainties, and the heightening cost of living. The applicant acknowledged that he may not have been physically harmed, but he faced difficult mental challenges until finally making the decision to come to Australia and was now living and working here, where he can support his family to a level of prosperity. If he were to go back to Fiji, where he would no longer be able to do that, he would have to start at the bottom again if he re-entered teaching and it would be very traumatic for him and his family [14.8].

1. The Tribunal stated that in considering the applicant's claims and evidence, it also considered, the Department of Home Affairs 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'; The Tribunal's Migration and Refugee Division Guidelines on the Assessment of Credibility; and the relevant country information [16].
2. The Tribunal considered that the applicant gave a truthful account of his time in Fiji, and his reasons for leaving Fiji and his wish to establish a life in Australia [17]. The Tribunal further acknowledged that the applicant was an experienced teacher, highly valued at his past schools in Fiji, and at his current school in Australia [18].
3. The Tribunal further accepted that the applicant faced considerable challenges in Fiji as a teacher, and as the family's sole earner, because he was unable to earn enough money to educate his children and support his family, and the lack of security of employment caused him to experience fear and anxiety [19].
4. The Tribunal considered that the primary reason for the applicant coming to Australia was to obtain secure employment as a teacher and earn sufficient money to support his family [21].
5. The Tribunal acknowledged that the country information highlighted a number of issues between the teacher organisations/unions and the previous Education Minister that were consistent with the applicant's evidence relating to salary levels, contracts, job insecurity and changes in leadership [22]. However, the Tribunal considered that there was insufficient evidence before it to conclude that the applicant was targeted or discriminated against on the basis that he was an indigenous Fijian teacher [23].
6. With regard to the country information, the Tribunal further noted that Fiji's political climate is currently in a state of flux but there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022 elections [24]. The Tribunal also noted that the country information reported that there was no official discrimination against Indigenous Fijians [25].
7. The Tribunal accepted that it would be difficult financially and emotionally for the applicant to return to Fiji and re-enter the teaching profession after occupying a secure, well-paid teaching position in Australia for four years, which had allowed him to support his family in Fiji to the level of prosperity he wishes for them [28]. However, it concluded that there was no evidence before it to support a conclusion that if the applicant returned to Fiji, he would be subjected to discrimination and harm in the pursuit of his teaching career or for any other reason such as to invoke Australia's protection obligations under the Act [29].
8. The Tribunal concluded that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act [32], nor was it satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act [33].
9. The Tribunal therefore affirmed the decision not to grant the applicant a protection visa [35].

1. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 26 October 2023. The applicant also filed an affidavit affirmed on 25 October 2023. The affidavit annexes a copy of the Tribunal's Decision.
2. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. The material before the Court was the application, the applicant's affidavit, the first respondent's response, the first respondent's written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents with him.
4. The applicant appeared by video. The applicant was unrepresented. The applicant had the assistance of an interpreter in the Fijian and English languages.

1. For the applicant to be successful the Court must be satisfied that the Tribunal's Decision is affected by material jurisdictional error.
2. The Court explained to the applicant that the role of the Court is limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
3. The grounds of review set out in the application are (without alteration):
   1. In relation to the Applicant's claims of feeling unsafe, human rights, being able to fight for their rights and criticise the government, the Tribunal failed to make basic enquiries regarding the particulars of each claim to ascertain whether the Applicant had true grounds for a protection.
   2. Failed to provide the Applicant with a fair process in making the decision that he was not a person to whom Australia has protection obligations.
   3. Failed to identify the correct issues in deciding that as an indigenous Fijian teacher, the Applicant would not be targeted or discriminated against or persecuted by the Fijian current government, or elements within that government, on the basis that Fijians are the majority ethnic group in Fiji and enjoy significant social, economic, and political capital.
   4. Ignored relevant facts and considerations relevant to the Applicant and his work history in Fiji which the decision maker was required to investigate.
   5. Failed to consider the current uncertain and unstable political climate in Fiji and the likelihood of persecution following on from the applicant's past work history within the Fijian education department.
   6. Decided that the Applicant had provided insufficient evidence in order to conclude that he would not be targeted or discriminated against or persecuted if he returned to Fiji.
   7. Reached a decision that the Applicant's primary fears and anxieties were based on lack security of employment when it was unreasonable to do so in the face of all the evidence available including the Applicant's own testimony.
   8. Failed to properly consider the Applicant's claims that it would be unsafe for him to return to Fiji and that his human rights were likely to be infringed upon and that the Applicant felt very fearful about being excluded from all positions of employment should he return to Fiji, given past existing jealousies and tribal rivalries within the Fijian government.
   9. Consequently, the Tribunal failed to conduct a review.
4. Despite the procedural order requiring him to do so, the applicant did not file any written submissions. The applicant was given the opportunity to make oral submissions in support of his application for judicial review and in reply to the first respondent's submissions.
5. Before addressing what errors he said the Tribunal had made, the applicant said that he wanted to tell the Court his reasons for applying for a protection visa. He said that because he was president of the Fijian Teachers Association, "they" were subject to searches, and many were arrested and taken into military camps to be interrogated. As noted, the applicant provided to the Tribunal a number of media articles ranging from 4 December 2016 to 25 July 2023 (CB 237-266) and 11 December 2000 to 25 July 2023 (CB 270-288). These articles are about a range of matters including the intimidation of journalists under the Bainimarama government, land disputes, freedom of the press and the police response to union action. One article dated 10 June 2019 did address officials of the Fijian Teachers Association being questioned by the police following a day of protests by Fijian unionists on 3 May 2019 (CB 251-257). The article states that the officials were questioned for four hours and then released.
6. The Court observes that at the Tribunal hearing, the applicant said that his cousin, a permanent resident living in Cairns, advised him to apply for a protection visa because it would allow him to pursue work rights and study. The Tribunal's reasons for Decision reflect that the Member asked the applicant if he understood that protection visas were not about work and study rights and observed to the applicant that it appeared he had applied for the wrong visa. The Tribunal said that the applicant acknowledged that he had come to realise the complexities associated with protection visas (at [14.7]).
7. The applicant did not make submissions addressing each of the nine grounds of review in his application for judicial review. Instead, the applicant submitted that the Tribunal did not look closely at his evidence about the Fijian Teachers Association and did not explore in detail, his position as the president of the Fijian Teachers Association and the risk to his life were he to return to Fiji.
8. The Court finds that the Tribunal did consider the applicant's position as president of the Fijian Teachers Association (at [14.3]). The Tribunal noted that the applicant had held positions as president of the Fijian Teachers Association in two different districts and that he often reported complaints by teachers about late payment of wages and interpersonal conflicts in village communities and that under the previous government, it took a long time to have issues addressed (at [14.3]).
9. At [31.4] of the Tribunal's Decision, the Tribunal stated that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant's removal to Fiji there was a real risk that the applicant would suffer significant harm. The applicant conceded in this hearing, that there was no evidence before the Tribunal that he had been subject to arrest or interrogation because of his role in the Fijian Teachers Association. The evidence before the Tribunal about the Fijian Teachers Association was, as noted, limited to one article dated 10 June 2019 about officers of the Fijian Teachers Association being detained for four hours after a day of protests by Fijian unionists.
10. The Court now turns to consider each of the grounds of review in the application for judicial review.

1. In ground one, the applicant contends that the Tribunal erred by failing to make basic enquiries regarding the particulars of each claim to ascertain whether the applicant had grounds for a protection visa and in relation to his claims of feeling unsafe and being able to fight for rights and criticise the government.
2. This contention misconceives the role of the Tribunal. As the first respondent correctly submits, the Tribunal was not obliged to investigate or conduct an enquiry to determine whether an applicant's claim might be supported by other evidence and it is the applicant's obligation to specify all the particulars of his claim to be a person to whom Australia has protection obligations and to produce evidence and arguments in support of those claims (first respondent's submissions ("FRS") [20] referring to Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36]).
3. No jurisdictional error is established on ground one.

1. In ground two, the applicant contends that the Tribunal failed to provide him with a fair process in making its decision.
2. The Court finds that the Tribunal complied with its obligations to afford procedural fairness because it:

(a) Invited the applicant to provide information and documents in support of his application pursuant to s 424 of the Act (CB 195). The applicant availed himself of that opportunity by providing written submissions and supporting documents to the Tribunal on 13 November 2019 (CB 96-169); 8 May 2020 (CB 178-179); 24 October 2022 (CB 192); August 2023 (CB 196-214); 11 September 2023 (CB 227-230); 12 September 2023 (CB 213-234); and 10 October 2023 (CB 289-290).

(b) Invited the applicant to a hearing in accordance with s 425 of the Act (CB 215-223). The applicant attended the hearing on 11 October 2023 and presented his evidence and arguments with the assistance of an interpreter (CB 21).

1. No jurisdictional error is established on ground two.

1. In ground three, the applicant contends that the Tribunal failed to identify the correct issues in deciding that as an indigenous Fijian teacher, he would not be targeted or discriminated against by the current Fijian government on the basis that Fijians are the majority ethnic group in Fiji.
2. The Tribunal noted that the country information highlights a number of issues of contention between teacher organisations/unions and the Education Minister under the previous government relating to salary levels, the introduction of contracts, job insecurity and that 60% of the changes in school leadership positions showed displacement of Indigenous Fijian teacher leaders (at [22]). The Tribunal said (at [23]) that there was insufficient evidence before it to conclude that the applicant was targeted or discriminated against on the basis of being a Fijian teacher (at [23]). Further, (at [25]) the Tribunal noted that the country information reported that there was no official discrimination against Indigenous Fijians: they are they are the majority ethnic group in Fiji and as such enjoy significant social, economic and political capital. The Tribunal said that the Social Democratic Liberal Party, which was part of the coalition government, largely drew its support from Indigenous Fijians, and the Rabuka government had revived the Great Council of Chiefs, which in May 2023 reconvened for the first time in 16 years (at [25]). The Tribunal also noted (at [26]) that country information indicated a recognition by Prime Minister Rabuka of the importance of teachers and their log of complaints, and a willingness on the part of the Fiji Teachers Union to engage in dialogue with the government; and a commitment by the Education Minister to address areas of concern, including the status and work conditions of teachers. The Tribunal also noted the meeting of the Great Council of Chiefs affirmed a commitment to the economic advancement of Indigenous Fijians and alleviating the poverty levels of Indigenous Fijians (at [26]).
3. Having regard to that analysis by the Tribunal, the Court is not satisfied that the Tribunal failed to identify the correct issues or erred in reasoning on the evidence before it that the applicant would not be targeted or discriminated against by the current Fijian government as an Indigenous Fijian teacher.
4. No jurisdictional error is established on ground three.

1. In ground four, the applicant contends that the Tribunal ignored relevant facts regarding his work history in Fiji which he says the Tribunal was required to investigate. The applicant does not particularise the relevant facts as to his work history, which he says the Tribunal was required to but did not consider. As already noted, the Tribunal was not obliged to investigate. It is for the applicant to particularise his claims and present evidence and arguments in support of the claims.
2. In any event, the Tribunal accepted that the applicant gave a truthful account of his time in Fiji (which included evidence about his work history) (at [17]) and did consider the applicant's work history as a teacher (at [19]). The Tribunal acknowledged that the applicant was an experienced teacher and accepted that he would face considerable challenges regarding his finances and job security should he return to Fiji. Further, the Tribunal again acknowledged that it would be difficult for the applicant to return to Fiji after occupying a secure, well paid teaching position in Australia for four years (at [28]). The Tribunal concluded that there was no evidence before it to support a conclusion that if the applicant returned to Fiji, he would be subjected to discrimination and harm in the pursuit of his teaching career or for any other reason such as to invoke Australia's protection obligations under the Act (at [29]).
3. The Court is satisfied that the Tribunal did not ignore relevant facts regarding the applicant's work history in Fiji.
4. No jurisdictional error is established on ground four.

1. In grounds five and eight, the applicant contends that the Tribunal failed to consider the unstable political climate in Fiji, the likelihood of persecution because of his work history and that it would be unsafe for him to return to Fiji because he was fearful about being excluded from positions of employment should he return to Fiji, given past existing jealousies and tribal rivalries within the Fijian government.
2. The Tribunal assessed the current political climate in Fiji using the country information and concluded that there had been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022 elections, ending Bainimarama's 16 years in power (at [24]).
3. Further, the Tribunal did consider the applicant's claims about losing his permanent status due to jealousies and tribal rivalry (at [14.5]) and found no evidence to support the claim that the applicant would face discrimination in pursuit of his teaching career (at [29]). The Tribunal concluded that these circumstances did not amount to a 'well-founded fear of persecution' as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act (at [31.3]).
4. No jurisdictional error is established on ground five or ground eight.

1. In ground six, the applicant contends that it was unreasonable for the Tribunal to conclude that he had provided insufficient evidence to support his position that he would be targeted or discriminated against should he return to Fiji.
2. In ground seven, the applicant contends that it was unreasonable for the Tribunal to conclude that the applicant's primary fears and anxieties were based on a lack of secure employment prospects in Fiji.
3. As the first respondent submits the test for unreasonableness is whether the conclusion drawn lacked an evident and intelligible justification (FRS [34] citing Minister for Immigration & Citizenship v Li [2013] HCA 18 at [76]). The first respondent also submitted that a decision cannot be said to be unreasonable, simply because one conclusion has been preferred to another (FRS [34] citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131]).
4. The applicant provided various documents to the Tribunal including his education and training certificates; media articles; and supporting letters. The Tribunal considered the evidence and was not satisfied that it, along with the relevant country information, supported a finding that the applicant would face discrimination or harm in pursuing a teaching career, or for any other reason that would invoke Australia's protection obligations under the Act (at [23]; [29]).
5. At the hearing before the Tribunal, the Tribunal invited the applicant to explain his claims for protection. The applicant's evidence was in large part about the lack of security of employment for teachers in Fiji and the challenges he would face as a teacher were he return to Fiji (at [14]). The applicant's evidence was that he faced great challenges and hardship as a teacher in Fiji: the low salary, being put onto contract by the regime and the associated fears and uncertainties, and the heightening cost of living. He stated that he may not have been physically harmed, but he faced difficult mental challenges until finally making the decision to come to Australia. Now that he was living and working here, he could support his family to a level of prosperity. He claimed that, if he were to go back to Fiji, he would no longer be able to do that, he would have to start at the bottom again if he re-entered teaching; it would be very traumatic for him and his family (at [14.8]).
6. The Court considers that the Tribunal's decision was rational, logical and open to it on the evidence. On the evidence before it and based on the applicant's own evidence at the Tribunal hearing, the Tribunal's finding as to the applicant's primary fears and anxieties was not unreasonable.
7. No jurisdictional error is established on ground six or ground seven.

1. In ground nine, the applicant contends that the Tribunal failed to conduct a review. This is without basis because the Tribunal:

(a) set out the applicant's claims (at [14.8]);

(b) set out the applicant's evidence (at [3]-[12]);

(c) assessed the evidence in accordance with the legislation, guidelines and country information (at [15]-[31]);

(d) made its findings (at [31]-[34]) and those findings were open to it.

1. No jurisdictional error is established on ground nine.

1. For the reasons given above, no jurisdictional error is established. Accordingly, the application is dismissed.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.