MAR24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 461

1. The applicants are a family from Bhutan who applied for protection visas in Australia. A delegate of the Minister refused to grant the applicants protection visas and that decision was affirmed by the Administrative Review Tribunal (Tribunal). The applicants seek judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error. Their application for judicial review is therefore dismissed.

1. The visa applicants are a family. The first applicant and second applicant are wife and husband respectively and the third, fourth and fifth applicants are their children.
2. The applicants applied for protection visas on 12 March 2021. Only the first applicant advanced claims for protection, with the second to fifth applicants applying for the protection visas as members of the same family unit as the first applicant.
3. On 1 June 2022 a delegate of the Minister refused to grant protection visas to the applicants.
4. On 14 June 2022 the applicants applied to the Administrative Appeals Tribunal for merits review of the delegate's decision.
5. The merits review application was still pending before the Administrative Appeals Tribunal when that Tribunal ceased and was replaced with the Administrative Review Tribunal. The review was continued by the Administrative Review Tribunal as required by the transitional provisions in Sch 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth).
6. The first and second applicants, together with their representative, appeared at a hearing convened by the Tribunal on 28 October 2024.
7. On 27 November 2024 the Tribunal affirmed the delegate's decision.

1. The Tribunal identified that the first applicant sought protection based on her fear of persecution on account of being a family member of a dissident, namely her mother, who she claims was granted a woman at risk visa in Australia. The Tribunal summarised at length the evidence that the applicants provided in support of their protection visa application.
2. The Tribunal accepted that the first applicant's mother left Bhutan for Nepal in around 1996 and was granted a woman at risk visa in or around 2017, while she was living in Nepal. However, the Tribunal otherwise had significant concerns about the credibility of the first applicant's claims and evidence, and did not consider the first applicant to be a credible or reliable witness. The Tribunal's credibility concerns were based on a number of matters, including:

(a) inconsistencies in the first applicant's evidence about her parents and family given at different times in the visa application and review process and new claims being raised at the hearing;

(b) the first applicant's previous return to Bhutan undermined her claim to fear harm and the authorities could have, and would have, questioned her about her mother at that time if they wished to do so;

(c) the first applicant focused at a protection visa interview with the delegate on her mother being of interest to the authorities due to an unpaid loan, whereas at the hearing before the Tribunal she focused on her mother being a 'political dissident';

(d) the speculative nature of some of the applicants' evidence and submissions, including in relation to being disqualified from being able to obtain a security clearance for some purposes while being able to obtain a general security clearance, where the applicants' evidence was not supported by country information; and

(e) the speculative nature of many of the first applicant's claims, especially in relation to her parents, and the Tribunal's lack of belief that the parents would be unwilling to discuss openly matters relating to the first applicant's claims for protection.

1. The Tribunal considered that the most important factual matter in the review application was whether the applicants had been able to, and would in the reasonably foreseeable future be able to, obtain police security clearances. The Tribunal rejected the applicants' claim that they would only be able to obtain limited police security clearances and rejected their claim that they would be refused security clearances for employment or education purposes, or for any other purposes including the ownership of property. In reaching this conclusion, the Tribunal rejected a submission that the security clearance the first applicant previously obtained to get a passport is different to the security clearance she would need for employment and education purposes and that the different requirements for the grant of a security clearance explain why the first applicant was able to obtain a security clearance to get a passport but would be disqualified from obtaining a security clearance for other reasons. The Tribunal considered this submission to be mere assertion or speculation, and noted that there was no country information cited to support the proposition that a person might be granted a 'general' security clearance but would be refused a security clearance for other purposes. The Tribunal did not accept that any of the applicants were previously refused a security clearance and did not accept that any of the applicants would face serious harm or would be denied access to, or discriminated in respect of, education, employment, property ownership or the ability to operate a business.
2. The Tribunal did not accept the first applicant's mother fled Bhutan because she was a political dissident or because she was unable to repay a government loan. The Tribunal was not satisfied that the first applicant was monitored or watched by Bhutanese authorities because of her mother or for any other reason. The Tribunal did not accept that any of the applicants have an adverse profile in Bhutan or would be of adverse interest to the Bhutanese authorities for any reason.
3. The Tribunal was not satisfied that the applicants had a well-founded fear of persecution within the meaning of s 5J(1) of the Migration Act and therefore found that they did not satisfy the refugee criterion in s 36(2)(a) of the Migration Act. Based on the same findings of fact, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bhutan, there was a real risk they would suffer significant harm. The Tribunal was therefore not satisfied that the applicants met the complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. In their judicial review application filed on 2 January 2025, the applicants raised the following grounds (reproduced without alteration):
   1. The Tribunal erred jurisdictionally in its assessment of the criterion (refugee criterion) for a protection visa in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act).
   2. The Tribunal erred jurisdictionally in its assessment of the criterion (complementary protection criterion) for a protection visa in s 36(2)(aa) of the Act, relevantly read with s 36(2B)(a).
   3. The Tribunal erred jurisdictionally in its consideration of the refugee criterion and/or the complimentary protection criterion for a protection visa in s 36(2)(a) and (aa) of the Act in that it failed to engage in a qualitative judgment as to whether the harm feared by the first applicant (for which there was a real chance/risk) amounted to 'serious' or 'significant' harm within the meaning of the Act.
   4. The Tribunal erred by failing to properly consider certain material provided by the applicants, namely the recording of the applicant's father.
   5. The Tribunal erred by making an incorrect finding of fact pertaining to whether the first applicant would be refused Bhutanese security clearances for employment/education purposes.
   6. The decision of the Tribunal was so unreasonable that no reasonable decision maker could have done so.
2. The evidence before the Court comprises:

(a) an affidavit of the first applicant filed on 2 January 2025 with the applicants' judicial review application, which annexes a copy of the decision made by the Minister and decision affirmed by the Tribunal;

(b) the court book filed on behalf of the Minister on 22 July 2025;

(c) an affidavit of Tessa Jule Sinclair Cornelius filed on behalf of the Minister on 13 January 2026; and

(d) an affidavit of service of Margarita Carmen Woollett filed on behalf of the Minister on 22 January 2026.

CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants' complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to 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 exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

Grounds 1, 2 and 3: Did the Tribunal misconstrue or misapply the relevant law?

1. By grounds 1, 2 and 3, the applicants assert that the Tribunal 'erred jurisdictionally' in its assessment of whether they met the refugee criterion in s 36(2)(a) of the Migration Act and the complementary protection criterion in s 36(2)(aa) of the Migration Act. This includes an assertion made in ground 3 that the Tribunal failed to engage in a qualitative judgment of whether the harm feared by the first applicant would amount to 'serious' or 'significant' harm.
2. I treat these grounds as amounting to assertions that the Tribunal misconstrued or misapplied the relevant law relating to s 36(2)(a) and (aa) of the Migration Act and it is convenient to address the grounds together.
3. The applicants did not make any submissions in relation to these three grounds.
4. At [6]-[8] of its reasons, the Tribunal accurately summarised the requirements of the refugee criterion in s 36(2)(a) of the Migration Act and the complementary protection criterion in s 36(2)(aa) of the Migration Act (footnotes omitted):

Refugee criterion

1. 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. Among other things, persecution must involve serious harm and systematic and discriminatory conduct.

2. A fear of persecution will be 'well-founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country. A 'real chance' is a prospect that is not 'remote' or 'far-fetched', it does not require a likelihood of persecution on the balance of probabilities.

Complementary protection criterion

1. If a person is found not to meet the 'refugee criterion' in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country. What amounts to 'significant harm' is exhaustively defined in s 36(2A) of the Act.

1. There is nothing in these paragraphs to suggest that the Tribunal misunderstood the relevant law. I accept the Minister's submission that the Tribunal used language that reflects the provisions of the Migration Act throughout its reasons.
2. As submitted by the Minister, the Tribunal made findings of fact and applied the relevant criteria to those findings. There is nothing in the Tribunal's reasons, read as a whole, to suggest that it misunderstood or misapplied the relevant criteria. Rather, the Tribunal rejected the underlying factual basis for the applicants' claims for protection.
3. Contrary to the assertion in ground 3, this is not a case where the Tribunal accepted that the applicants may face a real chance or a real risk of some form of harm, but failed to consider whether the harm would amount to 'serious' or 'significant' harm. Rather, the Tribunal did not find that there was a real chance the applicants would face any kind of harm. There is nothing to suggest that the Tribunal misunderstood the meaning of 'serious' or 'significant' harm in its reasons.
4. To the extent that the applicants assert, by ground 2, that the Tribunal misunderstood the complementary protection criterion by reference to s 36(2B)(a) of the Migration Act, the ground fails at a factual level. Section 36(2B)(a) provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Minister (or Tribunal on review) is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they would suffer significant harm. No part of the Tribunal decision was based on the applicants being reasonably able to relocate to another part of Bhutan where they would not face a real risk of significant harm. In the context of the findings made by the Tribunal, relocation did not arise as an issue that it was required to consider.
5. Grounds 1, 2 and 3 are not established.

Ground 4: Did the Tribunal fail to consider evidence provided by the applicants?

1. By ground 4, the applicants assert that the Tribunal failed to properly consider an audio recording of the first applicant's father that they provided to the Tribunal.
2. The applicants' representative sent an email to the Tribunal on 9 October 2024, which attached a video which was described in the following way:

... Please see attached video provided by the Applicants which demonstrates a recording of a WeChat voice message. We note that the recording is not in English, but we are instructed that the message was sent from the Primary Applicant's father (still residing in Bhutan) on 9 April 2024 ...

1. An informal translation was provided in the email of 9 October 2024, and a certified translation was subsequently provided to the Tribunal on behalf of the applicants on 23 October 2024. The certified translation provides the following translation of the content of the recording:

Hey [name omitted], how's everyone doing? Hope all is well with you all!

I wanted to let you know that we've just completed our census enumeration.

While they were conducting the census enumeration, they census officers told us this.

"Where is your mother and her child?" The government is now concerned about where you guys are.

"How long have they been in Australia?"

"When are they coming back? Once they return, they will need to complete the biometric scanning."

Make sure to keep the mother's address where she's staying.

Please make sure to ask the mother where she is staying

I think your mom might cause a trouble for those staying back home.

You need to make sure to keep the address of where you guys are staying.

They told us to let you know that the mother and daughter should do this.

They told us to let you know you should do the biometric scanning.

I told them every time that you guys are there. In the end, I feel like the mother and daughter are planning to get me thrown in prison.

You need to find her correct address.

1. The Tribunal identified at [17] of its reasons that the applicants had provided a copy of the recording and its translation. At [34], the Tribunal summarised the first applicant's evidence about the timing of providing the recording:

[The first applicant] explained that the Recording was not referred to in her statutory declaration because 'she wasn't thinking' and considered she would 'just tell them casually when they interviewed me'. She volunteered that it came to her mind after her lawyer expressed a desire for evidence.

1. The Tribunal then said at [71] of its reasons:

I have considered the Recording. However, I am not prepared to place any weight on the Recording. The Recording is an account of a conversation between [the first applicant]'s father and others. [The first applicant] did not seek to have her father give evidence in this review application and, as such, I am not in a position to test his evidence. Moreover, in view of my conclusions about the credibility of the claims and evidence before the Tribunal, the very late concession of security clearances having been granted, albeit they say for a limited purpose, and the absence of the ability to test the evidence of [the first applicant]'s father, I am not prepared to attach any weight to the recording as evidence of the chance of future persecution.

1. This ground was the main focus of the first applicant's oral submissions at the hearing. The first applicant submitted that the Tribunal made a jurisdictional error in the way in which it treated the voice recording from her father. The first applicant submitted that the Tribunal did not deal with what the recording actually said and did not deal with whether she would face harm in Bhutan. Rather, it rejected the voice recording because it had already decided that the applicant was not credible and because her father was not at the hearing. In particular, the first applicant took issue with the Tribunal relying on its adverse findings at [61]-[66] in relation to whether the applicants could obtain police clearances in rejecting the recording. The first applicant submitted that the Tribunal did not properly consider the evidence.
2. The fact that the Tribunal did not refer to each line of the audio recording or set out its content in detail does not mean that it has not considered the recording or that it has not considered the recording 'properly'. It is apparent from the Tribunal's reasons that the Tribunal had regard to the recording (including its contents), but gave it no weight.
3. In my view, it was open to the Tribunal to not 'attach any weight to the recording as evidence of the chance of future persecution'. As the High Court explained in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59: [2003] HCA 30 at [49], there are some cases in which a party's credibility has been so weakened that 'the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption'. In this case, the Tribunal gave multiple coherent reasons for making adverse credibility findings against the first applicant, as well as for giving the recording of her father no weight as evidence of the chance of future persecution. As can be seen from the extract of [71] above, the Tribunal's reasons for placing no weight on the recording include the inability of the Tribunal to test the evidence, in circumstances where the first applicant's father was not called as a witness, the general adverse credibility findings made against the applicants, and the late acknowledgement that the applicants had been able to obtain some form of security clearance. The Tribunal's adverse credibility findings were open to the Tribunal on the evidence before it and do not amount to findings that are illogical or irrational. Further, it was open to the Tribunal to rely on its adverse credibility findings, together with the other reasons given, in placing no weight on the recording. To the extent that the applicants specifically refer to the Tribunal's findings in relation to the security clearances at [61]-[66] of its reasons, this overlaps with ground 5 and is addressed further below.
4. Ground 4 is not established.

Ground 5: Did the Tribunal make an incorrect finding of fact?

1. By ground 5, the applicants assert that the Tribunal made an incorrect finding of fact relating to whether the first applicant would be refused Bhutanese security clearances for employment or educational purposes.
2. In her oral submissions, the first applicant submitted that she was not asking the Court to change the Tribunal's findings at [61]-[66] of its reasons, in relation to whether the applicants could obtain security clearances. Rather, she disputed the Tribunal relying on these findings to reject the recording from her father.
3. I accept the Minister's submission that it was open to the Tribunal, on the evidence before it, to not accept that the applicants would be refused security clearances for employment, education or any other purpose. As identified by the Minister, this finding was made following careful consideration of the evidence, including country information, the fact that the applicants had previously obtained general security clearances which they used to obtain passports, the lack of probative evidence to indicate a distinction between general purpose and employment or educational security clearances, the first applicant's failure to disclose the existence of her previous security clearances until after the Tribunal hearing and the lack of any evidence showing refusal of an employment or educational security clearance.
4. Insofar as the applicants' assertion is understood as an assertion that it was not open to the Tribunal to rely on its findings in relation to whether they could obtain security clearances for the purposes of placing no weight on the recording, the findings in relation to the security clearances were relevant in two interrelated ways. First, the Tribunal relied on its conclusions about the credibility of the claims and evidence before the Tribunal generally in placing no weight on the recording. Second, the Tribunal referred to the 'very late concession of security clearances having been granted' as a reason to place no weight on the recording. However, when the Tribunal's reasons are read in context, the significance of late concession that security clearances were previously granted is that it impacted on its assessment of the first applicant's credibility. This can be seen from [64] of the Tribunal's reasons, where the Tribunal said:

I do not accept that [the first applicant] was a credible and reliable witness. [The first applicant] applied for and obtained a security clearance both prior to, and after, the delegate's decision. That was a fact that was not disclosed to the Tribunal when it ought to be, particularly after it was clearly raised as an issue by the delegate. I do not accept that [the first applicant] was unaware of her having obtained a security clearance for this purpose. I find that [the first applicant] sought to withhold this information from the Tribunal.

1. This formed part of the Tribunal's overall concerns about the first applicant's credibility, and contributed to the Tribunal finding at [70]:

In view of the shifting nature of [the first applicant]'s claims over time, delay in applying for protection generally, my concerns about her overall credibility and the inconsistency between her claims and the available country information, I am satisfied that her claims are contrived or fabricated for the purposes of obtaining a migration outcome. I am satisfied that [the first applicant] wants to remain in Australia and wants her children to remain in Australia. After apparently exhausting her visa options to legitimately remain in Australia, I find that the applicants have presented contrived claims for the purposes of obtaining a migration outcome desired by them, not because of any genuine fear of persecution or any real risk of harm that they might face.

1. As discussed above in the context of ground 4 above, it was open to the Tribunal to place no weight on the recording, for the reasons it gave. This includes the adverse credibility findings it made, including in relation to the late provision of information about the security clearances granted in the past.
2. Ground 5, as set out in the application and as explained in the first applicant's oral submissions, does not establish jurisdictional error.

Ground 6: Was the Tribunal decision illogical, irrational or unreasonable?

1. By ground 6, the applicants assert that the Tribunal decision was so unreasonable that no reasonable decision-maker could have reached that decision.
2. The applicants did not make submissions in relation to this ground. The Minister addressed this ground as an illogicality or irrationality ground, relying on the principles set out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [128]- [130]. I am satisfied that this is the appropriate way to view the ground.
3. I accept the Minister's submission that the Tribunal's reasoning is orthodox, diligent and well-explained, and the reasons demonstrate a careful consideration of the applicants' claims and evidence. The Tribunal made findings that were open to a logical and rational decision-maker on the evidence before it. I accept the Minister's submission that it cannot be said that no rational or logical decision-maker could have reached the findings made by the Tribunal on the evidence before it.
4. The applicants have not established that the Tribunal decision was illogical or irrational.

1. The applicants have not established that the Tribunal made a jurisdictional error. Their application to this Court for judicial review of the Tribunal decision is therefore dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.