DOK25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 296

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application for a constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Act") in respect of a decision of the Administrative Review Tribunal ("the Tribunal") made on 28 February 2025, affirming a decision of the delegate not to grant the applicant a protection visa.
2. The applicant first arrived in Australia on 13 October 2014 and then departed on 17 November 2014. The applicant arrived again in Australia on 12 May 2019 and departed again on 11 July 2019. The applicant arrived for the last time in Australia on 29 February 2020.
3. The applicant had a return ticket to Fiji on 30 May 2020. The applicant applied for a protection visa on 13 April 2020. The applicant appeared before the Tribunal consistent with the obligations under the Administrative Review Tribunal Act 2024 (Cth) to give evidence and present arguments, and the hearing was conducted with the assistance of an interpreter.
4. The Tribunal identified the background to the applicant's claims and in particular his assertion that his protection visa was prepared by someone else and that he did not maintain any claim to fear harm because he was gay. The applicant before the Tribunal identified that there was content in the protection visa application that he did not know. The applicant identified that he is divorced.
5. The applicant was asked whether when he came out, he intended to return to Fiji pre-COVID, and he said yes. The Tribunal asked the applicant whether he was gay, and he said no. The Tribunal asked the applicant about whether he was caught by his wife having an affair, and he said no. The applicant identified that his wife he had found to be unbearable.
6. When the applicant was asked by the Tribunal what harm he feared if he returned to Fiji, he said he would go back to nothing. The applicant identified that he would have no home, no work and no family, and that it was his preference to stay in Australia. The Tribunal identified the applicant was expressing a preference to stay in Australia and there was no harm being expressed if he returned to Fiji.
7. The Tribunal identified its concern that the applicant had been willing to use the system to stay in Australia longer than he was entitled, and that the applicant had apologised for not telling the truth in the protection visa application. The Tribunal identified relevant country information, and identified that when the Tribunal said that he could earn more money in Australia than Fiji, and that the applicant could return to his family village or Suva, the applicant said he would face difficulty.
8. The applicant maintained that he would find it difficult to assimilate back into a work environment, and he had no home or place to live. The Tribunal identified the applicant had had a solid work history in Australia which the Tribunal found suggested the applicant would be able to find work. The Tribunal expressed concern that there was no real risk of harm and that any difficulties that the applicant may face on return to Fiji didn't arise to serious harm and applied to everyone in Fiji, with which the applicant agreed.
9. The Tribunal identified that what had been said by the applicant identified that he did not qualify for a protection visa. The Tribunal referred to s 5AAA of the Act, and found that the applicant has made a life for himself in regional Australia and successfully found work. While having sympathy for the circumstances of the applicant, the Tribunal turned to the question of whether the applicant was entitled to a protection visa.
10. The Tribunal summarised the applicant's background. The Tribunal identified the evidence the applicant had given to which the Court has referred. The Tribunal found the applicant's claims to the protection visa were not genuine. The Tribunal found that there is no real risk of harm to the applicant in the reasonably foreseeable future if he returns to Fiji, based on the claims to the protection visa because the Tribunal found those claims are not genuine.
11. The Tribunal found there is no real chance of harm to the applicant from his former wife in the reasonably foreseeable future if he returns to Fiji, because the applicant is not having ongoing contact with his wife. The Tribunal referred to the applicant's claimed fear of harm from economic circumstances and found that the economy in Fiji applies to everyone, and there is no relevant conduct as required by s 5J(4)(c) of the Act.
12. The Tribunal identified the applicant's work history and acknowledged the applicant's age and circumstances in not having a home. The Tribunal, however, found, given the applicant's solid work history, that he would be able to find work in Suva, Fiji. The Tribunal found that the economic difficulties the applicant may face on return to Fiji do not rise to the level of serious harm because of the finding that the applicant would be able to obtain work in Suva.
13. The Tribunal was not satisfied the applicant was a person in respect to whom Australia has protection obligations under s 36(2)(a) of the Act. The Tribunal turned to the issue of complementary protection and was not satisfied the applicant was a person in respect to whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review. The grounds in the protection visa are as follows:

Ground 1

1. As part of the reason for rejecting the claim, the Administrative Review Tribunal ('the tribunal') stated in paragraph 54, "The Tribunal accepts that the applicant was married in Fiji on 12 May 2005 but divorced in December 2015, has one son from that relationship who commences with the British Army on 28 February 2025 but prior to that had been living with his mother and maternal grandparents in Fiji, based on the applicant's evidence at the hearing". The tribunal Identifies a wrong assessment in its decision in assessing my situation and claims. The tribunal identify wrong issue they rejected my claim.

Ground 2

2. As part of the reason for rejecting the claim, the tribunal stated in paragraph 55, "The In the protection visa application, the applicant claimed harm because they were gay, and that their wife had caught them having an affair with a man. At the hearing the applicant said they were not gay, that a third person had written the protection visa application, they had not read the protection visa application before it was submitted, they were shocked when they read the delegate's decision and they object to that being their claim, all of which the Tribunal accepts. The Tribunal finds that the only correct statements in the claims in the protection visa application are that the applicant and their wife were married, and the applicant felt loneliness after they divorced, based on the applicant's evidence at the hearing.". The tribunal shows Bias based on conscious or unconscious prejudice by ignoring relevant material in its decision and assessing my situation and claims. The tribunal shows prejudice when they rejected my claim.

Ground 3

3. As part of the reason for rejecting the claim, the tribunal stated in paragraph 62, "The For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a)". The Tribunal made jurisdictional error in this paragraph.

4. I kindly request the Honourable Court to kindly set aside the tribunal's decision of dated 28 February 2025.

1. At the commencement of the hearing, with the assistance of an interpreter, the Court explained to the applicant the process that the Court was going to adopt and the nature of the hearing, and the applicant confirmed he understood the explanation given by the Court. The applicant orally submitted that the Tribunal had suggested that his family was supporting him. There is no such suggestion in the reasons of the Tribunal, and the applicant's proposition does not give rise to any relevant error.
2. It is apparent that the Tribunal appreciated that the applicant was supporting his son. The applicant made reference to not filling in his protection visa application and wanted to remain in Australia. The applicant's oral submissions in this regard goes no higher than an invitation to an impermissible merits review. The applicant suggested that the Tribunal didn't properly assess his application and had already made its mind up. There is nothing before the Court to support the contention that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits.
3. The Tribunal's detailed reasons and summary of the hearing are inconsistent with any assertion that the Tribunal had predetermined the matter. There has been no conduct identified that supports a basis to find that the Tribunal did not approach the hearing with an open mind reasonably capable of persuasion as to the merits. The Court finds that there is no conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits.
4. The Tribunal's detailed reasons are entirely consistent with the Tribunal approaching the matter with such an open mind, and no jurisdictional error arises by reason of the applicant's submission in that regard.
5. The applicant's submissions in reply identified that he had been truthful and referred to his age and circumstances in not having a home and being concerned about work. Those were matters in relation to which the Tribunal identified for logical and rational reasons, given the applicant's work history, that he would be able to obtain work. No jurisdictional error arises by reason of the applicant's oral submissions, and they otherwise invite impermissible merits review.
6. Turning to ground 1 in the originating application, the paragraph referred to by the Tribunal was not the whole of its assessment. It was relevant background that the Tribunal was logically entitled to take into account in determining the matter. The Tribunal correctly identified the relevant law and the relevant issues before it in determining whether the applicant was entitled to a protection visa.
7. The applicant's disagreement with the decision reflects nothing more than impermissible merits review. The Tribunal's reasons were logical and rational, particularly given the immigration history of the applicant and the applicant's admissions made during the hearing, including abandoning the substance of the claims in his protection visa application. No jurisdictional error is made out by ground 1.
8. In relation to ground 2, the Tribunal summarised in relation to ground 2 the applicant refers to paragraph 55 of the Tribunal's reasons, suggesting that it showed bias. That paragraph is one that referred to what occurred during the hearing and the applicant's reaction to the content of the protection visa. The Tribunal also identified what was correct that the applicant accepted in the visa.
9. The content of paragraph 55 in no way identifies any proper basis to assert that the Tribunal did other than approach the determination of the review with an open mind reasonably capable of persuasion as to the merits. The applicant's assertion that the Tribunal ignored relevant material has not been supported by identifying any relevant material that the Tribunal ignored, nor is it capable of being said that the Tribunal ignored the applicant's situation and claims.
10. The Tribunal carefully dealt with the applicant's claims to fear harm in terms of not having a home and work, and made findings that were logical and rational for the reasons given by the Tribunal. The applicant's assertion that the Tribunal showed prejudice in rejecting his claim is nothing more than an impermissible merits review disagreeing with the outcome. There is no conduct that has been identified by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and partial mind to the determination of the matter on the merits. No jurisdictional error is made out by ground 2.
11. In relation to ground 3, the applicant makes a bold assertion of error in relation to the Tribunal finding that he is a person in respect of whom Australia does not have protection obligations under s 36(2)(a) of the Act. The Tribunal's reasons readily identify the absence of any proper basis upon which the applicant would be entitled to a protection visa, given his abandonment of the claims and the admissions he made during the hearing.
12. The Tribunal's conclusion was logical and rational and the applicant, given his migration history and the admissions he made to the Tribunal, readily supports logically the conclusions to which the Tribunal came in respect of the applicant not being a person to whom Australia owed a protection obligation. The Tribunal correctly identified the relevant law, and on the face of the Tribunal's reasons, correctly applied the relevant law. The applicant's disagreement with the conclusion by the Tribunal that he is not a person with respect to Australia's protection obligations does not identify any jurisdictional error. No jurisdictional error is made out by ground 3.
13. The applicant's submissions otherwise invited impermissible merits review.
14. It is for these reasons the Court makes the above orders.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.