Federal Court of Australia

GMM18 v Minister for Immigration and Citizenship [2026] FCA 400

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent be amended to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The Appellants pay the costs of the First Respondent to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HESPE J:

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) dismissing each of the appellant’s application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal) which affirmed the decision of a delegate of the First Respondent (Minister) not to grant the appellants Protection (Class XA) (subclass 866) visas (protection visas).

2    The appellants are husband (GMN18) and wife (GMM18). GMM18 made a claim for protection. GMN18 is a dependent spouse on the same application.

3    The appellants are citizens of India. They were married on 24 December 2013. On 5 March 2014, GMM18 arrived in Australia as the holder of a Subclass 573 student visa (573 Student Visa) and her husband arrived as her dependent spouse.

4    The primary judge’s judgment records that the 573 Student Visa was cancelled on 10 November 2014. On 17 November 2014, the appellants sought review by the Tribunal (differently constituted) of the decision to cancel the 573 Student Visa. The Tribunal affirmed that cancellation on 12 February 2015. The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court. That application was dismissed on 10 June 2015. On 31 August 2015, the appellants applied for Ministerial intervention to review the cancellation decision. The Minister declined to consider the request for intervention.

5    On 12 May 2016, the appellants lodged the applications for protection visas. On 2 September 2016 a delegate of the Minister made a decision to refuse to grant the protection visas. The appellants then applied to the Tribunal for review of that refusal decision. On 21 November 2018, the Tribunal affirmed the refusal decision. On 13 December 2018, the appellants filed an application for judicial review of the Tribunal’s decision with the Federal Circuit Court.

6    The appellants appeared in this Court without legal representation and with the assistance of an interpreter. The appellants did not file any written submissions or make any oral submissions, but relied exclusively on their notice of appeal.

Tribunal decision

7    The Tribunal noted the criteria for a protection visa set out in s 36 of the Migration Act 1958 (Cth), observing that an applicant for a protection visa must satisfy one of the criteria provided for in ss 36(2)(a), (aa), (b) or (c):

(1)    Section 36(2)(a) requires that an applicant be a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the applicant is a refugee (as defined in s 5H of the Migration Act).

(2)    Section 36(2)(aa) requires that an applicant be a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

(3)    Sections 36(2)(b) and (c) relevantly require that an applicant be a non-citizen in Australia who is a member of the same family unit as a non-citizen who satisfies the requirements for a protection visa and that the applicant holds a protection visa of the same class as that non-citizen.

8    The Tribunal recognised that it was required to comply with Ministerial Direction No 56.

9    The Tribunal recorded (at TR [14]) GMM18’s claims in the following terms:

•    She always supported Shiromani Akali Dal (SAD), a powerful ruling party of Punjab. As [a non-resident Indian] she always helped the party in the form of money she donated.

•    When she returned to India recently she saw the leaders of the party taking bribes from the people, so she decided to quit donating money to the party. From that time they started bothering her and demanding that she pay a huge amount.

•    When it was her wedding she didn’t invite the party leaders so they started spreading rumours about her. She was very afraid of the corrupt leaders and very concerned about her family.

•    She tried to live in some other part of her country but as they have political links they tried to harm her and her family members.

•    As they are the dominant political leaders in Punjab if she tried to lodge a complaint against them her case will be easily manipulated and will fall to dumb ears.

•    She has no faith in the Indian police. She belongs to a very middle class family while they are rich people. If someone has money in India they can pay the police and the case can be manipulated.

10    The Tribunal did not accept the claims.

11    The Tribunal found that:

    GMM18 did not provide support to the SAD party in the form of monetary donations and did not cease to provide monetary donations either before or after she came to Australia (TR [43]).

    Neither GMM18 nor her family were threatened, harassed or harmed by SAD officials, members or supporters (TR [43]).

    GMM18 had not sought to relocate to another part of India to avoid harassment from SAD officials, members or supporters (TR [43]).

    In any event, based on country information, the power of the SAD in the Punjab state has been greatly diminished since March 2017 when the SAD lost power in a landslide election result. Although GMM18’s local village council re-elected an SAD representative, the SAD are no longer the dominant political leaders in Punjab and the SAD did not have political links that enabled the party to target and harm opponents in Punjab, much less throughout India (TR [44]).

12    In coming to these findings, the Tribunal formed the view that GMM18’s evidence was vague and unconvincing having regard to the totality of the material before it, including the following matters:

    GMM18’s evidence about when and how much she donated to the SAD was evasive.

    GMM18’s evidence to the Tribunal was that she had never returned to India since arriving in Australia in March 2014 contrary to her written statement (TR [29]).

    Neither appellant was working in Australia nor earning an income (TR [31]).

    GMM18 gave evidence to the Tribunal that she had not supported the SAD party while she was in Australia and ceased supporting the SAD prior to her marriage in 2013 contrary to her written statement indicating that she supported the SAD in the form of money after arriving in Australia (TR [33] and [39]).

    GMM18 changed her claim during the course of the Tribunal hearing to a claim that her family in India were facing problems from the SAD party and that SAD people were compelling her family members to tell her to send money to the SAD (TR [32]).

    GMM18’s statement that the SAD people had started spreading rumours about her because she did not invite them to her wedding in December 2013 was not consistent with her statement that she started donating money to the party after she had come to Australia (TR [33]).

    GMM18 had referred the Tribunal to her and her husband being delayed at the airport when they had sought to depart India and claimed that was because there were party members at the airport telling lies. The Tribunal found this claim relating to the involvement of SAD members to be entirely speculative and attributed the delay to an issue with immigration officials at the Delhi airport (TR [41]).

    Although GMM18 had claimed to have moved to another part of India, her evidence before the Tribunal was that she had stayed with a friend in another part of India during school holidays (TR [42]).

    Although GMM18 had claimed that her brother had been threatened by SAD members or supporters, her brother continues to live with GMM18’s parents and helps on the family farm (TR [42]).

    When GMM18 had sought Ministerial intervention (in August 2015) she had not sought to raise with the Minister any concerns that she might suffer harm from SAD officials, members or supporters if she returned to India (TR [43]).

13    The Tribunal concluded that there was not a real chance that GMM18 would suffer persecution involving serious harm from SAD officials, members or supporters should she return to India, now or in the reasonably foreseeable future (TR [44]).

14    The Tribunal did not accept GMM18’s claim that GMM18 having a son born in and having spent his life in Australia increased the chance that she would be harmed by SAD officials, members and / or supporters should she return to India with her son (TR [45]).

15    The Tribunal was not satisfied that the appellants were persons in respect of whom Australia had protection obligations under s 36(2)(a) of the Migration Act (TR [48]).

16    The Tribunal found that there was not a real risk that the appellants would suffer significant harm as defined in s 36(2A) of the Migration Act should they return to India. The Tribunal did not accept that there is a real risk that either appellant would be arbitrarily deprived of life and / or have the death penalty carried out on them or be subjected to torture and / or be subjected to cruel or inhuman treatment or punishment and / or be subjected to degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to India. Accordingly, the Tribunal concluded that the appellants did not satisfy the complementary protection criteria set out in s 36(2)(aa) of the Migration Act (TR [52]).

17    The Tribunal concluded that neither appellant satisfied the criterion in ss 36(2)(b) or (c) as being a member of the same family unit of a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class (TR [53]).

primary judge’s Decision

18    The primary judge dismissed the appellants’ application for judicial review of the Tribunal’s decision. Before the primary judge, the appellants claimed that:

(1)    The Tribunal had not correctly assessed information relevant to the appellants’ circumstances.

(2)    The appellants had not been afforded natural justice.

(3)    The Tribunal had failed to provide “extra time without any basis in law and fact”.

19    The primary judge considered that the appellants’ real complaint was that GMM18 had not been believed by the Tribunal. There was no jurisdictional error in the Tribunal making the findings it did. The Tribunal gave clear and cogent reasons for its findings and those findings were open on the evidence.

20    The primary judge found that the Tribunal complied with its procedural fairness obligations as codified in former s 422B of the Migration Act.

21    The primary judge found that the appellants had never made a request to the Tribunal for any extra time to present any material or arguments.

22    The primary judge considered that the essence of the appellants’ submissions simply amounted to a disagreement with the Tribunal’s conclusions and really amounted to a request for merits review rather than identifying any jurisdictional error in the Tribunal’s reasons.

Grounds of appeal

23    By their amended notice of appeal, the appellants contend that:

(1)    The Federal Circuit Court “just brushed away” the appellants’ concerns and claims without considering them properly by stating that the claims simply amounted to a disagreement with the factual conclusions reached by the Tribunal. The appellants claim that the Federal Circuit Court did not assess the claims. If the Federal Circuit Court had assessed the claims, the Federal Circuit Court “would have seen that [the] Tribunal had no basis to reach the conclusions that it did.”

(2)    The Tribunal made a “procedural error” by not correctly assessing information relevant to the appellants’ particular circumstances. The appellants submitted that the Federal Circuit Court was also wrong in “not agreeing [with] the appellants”. The appellants submitted that the Tribunal not accepting the veracity of GMM18’s claims would not have been a conclusion open to the Tribunal if the Tribunal had considered the claims properly.

(3)    The Tribunal did not afford the appellants natural justice. The appellants submitted that the Federal Circuit Court was also wrong in not agreeing with the appellants. It was submitted that the Tribunal did not decide the appellants’ case “with compassion”.

(4)    Despite the Court noting that there was a delay of about four and a half years for the determination of the appellants’ application by the Federal Circuit Court, the Federal Circuit Court did not take into account the effect of delay on the lives of the appellants’ family. The Federal Circuit Court had “failed to appreciate that because of the delay, it makes it even harder for [the appellants’] family to return to India after establishing a life here and nothing to look forward to in India.”

(5)    The Tribunal was critical of the appellants not seeking a protection visa earlier or not mentioning the claim for protection in earlier applications. The appellants submitted that the Tribunal failed to appreciate the fact, or at least give the appellants the benefit of doubt, that they were not fully aware of the processes and procedures.

(6)    The Tribunal stated that GMM18’s response to its question about the appellants being able to live in some other part of India was somewhat difficult to understand. The appellants submitted that the Tribunal “put no effort to understand” the response or give GMM18 a chance to explain or clarify her response. The Federal Circuit Court also “failed to look into this or explore this”.

(7)    The appellants claimed that the Tribunal stated that the amounts donated by the appellants to the SAD were small, without considering that the appellants were reliant on others for financial help and even $80 or $90 was a big amount for the appellants, which the appellants “were in a way forced to donate to SAD because of the fear of persecution.”

(8)    In stating that the appellants were young and making small donations to the SAD, the Tribunal failed to appreciate the fact that political parties target even common persons and exploit them for money and votes as the political parties can exert more control over common persons than over well-to-do persons.

(9)    The Tribunal stated that, as the SAD was no longer a dominant political force in Punjab and was a spent political force, there would not be a real chance for the appellants to suffer persecution from any officials or members of the SAD. The Tribunal, however, failed to consider that the SAD was still in power in GMM18’s hometown in India and it still had a significant political hold in Punjab. The Federal Circuit Court was wrong in agreeing with the Tribunal on this point without considering all the facts.

Consideration

24    The first ground of appeal (and to a large extent the remaining grounds of appeal in so far as they refer to alleged failures of the Federal Circuit Court) misunderstands the role of the Federal Circuit Court in judicial review proceedings. It was not the role of the Federal Circuit Court, nor is it the role of this Court, to “assess” the appellants’ claims. The role of the Court was to review the Tribunal’s decision for jurisdictional error and not to engage in merits review of the appellants’ claims. As the primary judge found, the Tribunal gave clear reasons for not accepting the appellants’ claims. It was open to the Tribunal to reject the appellants’ claims based on the material before the Tribunal. Ground 1 of the appeal fails.

25    The second ground of appeal is really a disagreement with the Tribunal’s factual findings based on its rejection of the appellants’ claims. The Tribunal gave clear and cogent reasons for not accepting the claims. The appellants did not identify any information that was before the Tribunal that the Tribunal failed to consider. Ground 2 of the appeal fails.

26    The third ground of appeal is premised on a misunderstanding of the term “natural justice”. The term “natural justice” does not refer to some broad or loose notion of overall justice. It is a technical term referring to procedural fairness requirements. At the time of the Tribunal hearing, the requirements of natural justice in this sense were prescribed in s 422B of the Migration Act. The Tribunal was required to form a view about whether the requirements of s 36 of the Migration Act were satisfied based on the claims made by the appellants and the materials before it and do so in a way that complied with the requirements of procedural fairness provided for in the Migration Act. The Tribunal carried out its statutory task. Ground 3 of the appeal fails.

27    The fourth ground of appeal does not disclose a basis for judicial review of the decision of the Tribunal or appealable error on the part of the primary judge. The requirements for a protection visa are prescribed by s 36 of the Migration Act. Whilst the length of time that the appellants have been in Australia may make a return to India more difficult, that was not a basis on which the Tribunal could be satisfied that the requirements of s 36 of the Migration Act were satisfied.

28    The fifth ground of appeal relates to the Tribunal attaching weight to the fact that the appellants had not made a claim for protection in their earlier visa claims. The Tribunal specifically considered the appellants’ claims that the reason they did not make a protection claim earlier is that they were not aware of the importance of the claims (at TR [36]). Having regard to the totality of the material before it, the Tribunal did not accept that claim as the reason for the appellants’ failure to make the claim earlier (at TR [43]). It was open to the Tribunal to reach that conclusion. Ground 5 of the appeal fails.

29    The sixth ground misrepresents the Tribunal’s reasons. The Tribunal did not accept any part of GMM18’s claim that she would suffer persecution from the SAD officials, members or any of its supporters should she return to India. The Tribunal explained why it did not accept GMM18’s claim that she had sought to relocate in India and why the Tribunal did not accept that the SAD were able to target and harm opponents in Punjab, much less throughout India (at TR [44]). Ground 6 of the appeal fails.

30    The seventh and eighth grounds similarly misrepresent the Tribunal’s reasons. The Tribunal found (at TR [43]) that GMM18 had not made any donations to the SAD. The Tribunal gave cogent reasons for making this finding (at TR [39] and [40]). The Tribunal found that the SAD did not have power to target and harm opponents (at TR [44]) and gave cogent reasons for that finding. Grounds 7 and 8 do no more than express disagreement with the factual findings of the Tribunal and do not support a conclusion that the Tribunal committed jurisdictional error in arriving at its findings. Grounds 7 and 8 of the appeal fail.

31    The ninth ground also does not support a conclusion that the Tribunal fell into jurisdictional error. The Tribunal expressly accepted the appellants’ claim that the appellants’ local village may have re-elected an SAD representative (at TR [44]). The Tribunal, however, found that the SAD were no longer the dominant political leaders in Punjab and that the SAD did not have political links that enabled the party to target and harm opponents in Punjab (at TR [44]). The Tribunal gave cogent reasons for coming to this conclusion. Ground 9 is no more than an expression of disagreement with a factual finding of the Tribunal and therefore fails.

32    At the hearing the appellants submitted that the SAD still have power to “do anything” and that “[e]very day something happen[s]” in India and that the appellants were worried about their children should they return to India. That submission does not support a conclusion that the Tribunal made a jurisdictional error in concluding that the appellants did not satisfy the criteria in s 36(2) of the Migration Act.

33    There was no appealable error in the primary judge’s decision.

Disposition

34    The appeal is dismissed with the appellants to pay the costs of the Minister to be taxed if not agreed.

Associate:

Dated:    10 April 2026