Federal Court of Australia

ARB20 v Minister for Immigration and Citizenship [2026] FCA 671

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is to be amended to “Minister for Immigration and Citizenship”.

2.    The appellant is not granted leave to raise grounds 3 to 6 in the notice of appeal, and the notice of appeal is otherwise dismissed.

3.    The appellant is to pay the costs of the first respondent in the fixed sum of $4,500.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The appellant is a citizen of Nepal who arrived in Australia on 10 November 2015 on a tourist visa (Subclass FA 600).

2    On 12 January 2016, the appellant applied for a XA-866 Protection visa (protection visa).

3    On 12 August 2016, a delegate of the Minister (Delegate) refused the appellant’s application for the protection visa.

4    On 5 September 2016, the appellant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the decision of the Delegate. His claims for protection before the Delegate and the Tribunal were based on fear of harm if he were removed to Nepal because he is a devout Christian and is perceived by Maoists to be anti-Maoist.

5    On 15 January 2020, the appellant attended a hearing before the Tribunal and gave evidence and made submissions. The hearing was conducted with the assistance of a Nepali interpreter.

6    On 16 January 2020, the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa and provided written reasons in a decision record (Decision Record or DR).

7    On 13 February 2020, the appellant filed an application for judicial review to the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court).

8    On 26 May 2021, the appellant attended a hearing before the Federal Circuit Court and made oral submissions. The hearing was conducted with the assistance of a Nepali interpreter.

9    On 28 May 2021, the application for judicial review was dismissed by the primary judge: ARB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1149 (PJ).

10    By a notice of appeal filed on 15 June 2021, the appellant appealed the primary judge’s rejection of the judicial review application. The notice of appeal raises six grounds for appeal. Ground 1 is only an introductory statement and does not raise any alleged error by the primary judge. It does not require any further consideration. Ground 2 was raised before the primary judge. Grounds 3 to 6, however, are new grounds that were not raised before the primary judge and therefore the appellant requires leave to advance those grounds.

11    On 17 June 2021, the Tribunal filed a submitting notice, save as to costs.

12    The appellant appeared on the appeal as a litigant in person with the assistance of a Nepali interpreter. The appellant provided written submissions shortly prior to the hearing.

13    The appellant was asked to address the grounds of appeal that he had advanced in his notice of appeal and respond to the Minister’s submissions. The appellant’s oral submissions were limited and did not relevantly advance any of the grounds in the notice of appeal or the contentions advanced in his written submissions.

14    For the reasons that follow, I have concluded that leave should not be granted to raise grounds 3 to 6, the notice of appeal must otherwise be dismissed, and the appellant must pay the Minister’s costs.

b.    Legislative framework

15    As the Tribunal observed, the criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (Act) and Sch 2 to the Migration Regulations 1994 (Cth).

16    At the relevant time, s 36(1A) of the Act provided that an application for a protection visa must satisfy both of the criteria in s 36(1B) and s 36(1C), and at least one of the criteria in s 36(2). There was no issue concerning s 36(1B) and s 36(1C).

17    Section 36(2) was relevantly in the following terms:

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

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

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

c.    The reasoning of the Tribunal

18    The Tribunal addressed whether the appellant was entitled to protection in Australia both as a refugee pursuant to s 36(2)(a) of the Act and on complementary protection grounds pursuant to s 36(2)(b) of the Act.

19    After considering the criteria for the issue of a protection visa at DR [5]-[10], the appellant’s claims and evidence at DR [13]-[36], independent country information at DR [37] and the relevant principles at DR [38]-[39], the Tribunal provided the following dispositive reasoning with respect to the appellant’s claim that he was a refugee to whom Australia owed protection obligations pursuant to s 36(2)(a) of the Act:

40.    I accept that [the appellant] is a devout Christian and also a former pastor in Nepal. I accept that he belongs to the Birendranagar Church led by Krishna Gurung. I accept that [the appellant’s] wife and daughters continue to be members of that church. On the evidence before me, I find that [the appellant’s] church and other churches in Birendranagar operate openly and viably and that Christians do not have to modify their behaviour, such as by gathering, operating or praying in secret, to avoid being persecuted.

41.     I find and give weight to the fact that the Nepal Constitution enshrines religious freedom. I find that Article 26(3) is a law of general application and that, though it has a differential impact on evangelical Christians, it is appropriate and adapted to achieving a legitimate state object, explicitly seeking to prevent disturbance of people's religious beliefs

42.     I accept that there are occasional localised instances in which the activities of Christians have been mistakenly or deliberately misconstrued and misrepresented and that Article 26(3) is invoked sometimes in bad or misguided faith, causing harm to the Christians concerned and to people close to them. However, I find that the existence of Article 26(3) has not prevented [the appellant’s] church from carrying out its mission openly in Nepal, let alone in Chitwan. I am not satisfied on the evidence before me that [the appellant] faces a real chance of being harmed due to selective exploitation of Article 26(3) and I find that he will not have to modify his behaviour to avoid facing a real chance of being persecuted in Nepal.

43.    Whereas I accept that some kind of damage was once done to the church edifice in Birendranagar, I am not satisfied on the evidence before me that this fact gives rise to a real chance of [the appellant] being persecuted in Nepal in the reasonably foreseeable future. I give much more weight to the viable operation of the church.

44.    Generally, I have found [the appellant] a candid and truthful witness. To the extent that some of the dates he cited do not accord with published history, I consider those inconsistencies insignificant. To the extent that he claims that Article 26(3) was introduced by extremists specifically to persecute Christians, he is entitled to this view, but as shown I give very little weight to it in the present matter. I accept that [the appellant’s] life as a Christian would have been particularly risky during the Maoist insurgency and that the experiences of those years have left unhappy memories. However, on the evidence before me, I find his claimed fears of being individually targeted and pursued by Hindu extremists in Birendranagar, or Kathmandu or anywhere else, are unfounded, notwithstanding evidence of localised and isolated instances of selective invocation and enforcement of Article 26(3) of the Constitution.

45.     I give very little weight in this matter to the existence of Maoist splinter groups like the "Biplab" group. I am not satisfied on the evidence before me that such groups are in any way disturbing the lives of Christians in Birendranagar.

46.     In this matter, I give much weight to the fact that [the appellant’s] family and his pastor Krishna Gurung continue to remain in and return to Birendranagar by choice. I give some weight to the fact that [the appellant’s] wife has had several years of experience in Birendranagar as a Sunday School teacher without suffering potentially relevant harm.

47.     I also give some weight in this matter to what [the appellant] described as the growing number of churches for Christians to choose from in Birendranagar.

48.     Although it is arguably unnecessary to add this, I find on the evidence before me that it would be reasonable, safe and practicable for [the appellant] to relocate to Kathmandu where he has relatives and Christian contacts if he prefers not to reside in Chitwan district for any reason.

49.     Having considered all of the evidence before me in its entirety, I am not satisfied that [the appellant] faces a real chance of being persecuted in Nepal in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.

50.    For the reasons given above, I am not satisfied that [the appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

20    The Tribunal then turned to consider complementary protection grounds.

21    After summarising the relevant principles governing claims for complementary protection under s 36(2)(aa) of the Act at DR [52]-[57], the Tribunal then reasoned:

58.    Accepting that [the appellant] is a citizen of Nepal, I find that Nepal is the "receiving country" in this case.

59.    I find that the harm [the appellant] identifies in his claims appears to include "arbitrary deprivation of life", "cruel or inhuman treatment or punishment'', "torture" and "degrading treatment or punishment''.

60.    [The appellant’s] claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to a failure to meet the "real chance" test. In the circumstances, his claims can no more succeed as complementary protection claims.

61.    Although I am very confident in the findings I have made, I find in the alternative that [the appellant’s] claims fail for reasons of the provision in s.36(2B)(a) due to the reasonableness of safe and practicable relocation to Kathmandu.

62.    On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that [the appellant] will suffer significant harm.

63.    Accordingly, I am not satisfied that [the appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

d.    The proceeding before the Federal Circuit Court

22    The appellant advanced the following grounds in his application for review before the primary judge:

1.    The Tribunal Member had sufficient evidence about the execution of my brother.

2.    While I appreciate that the Member made a finding that I am truthful witness I continue to believe that the Member failed to accept my fear of harm and the possible cruel or inhuman treatment and punishment I will be subjected to if I return to Nepal.

3.    I believe that the decision made by the Member of the Tribunal Luke Hardy is not reasonable because he did not provide a real explanation to justify his decision.

4.    I do believe that I will personally face significant harm as defined by the law of the refugee and such was overlooked by the member of the Tribunal.

23    The primary judge concluded that many of the complaints advanced by the appellant invited him to undertake impermissible merits review of the decision of the Tribunal (PJ [26]).

24    The primary judge found that none of the grounds of review had any merit. His Honour found that grounds 1 and 2 simply expressed dissatisfaction with factual findings made by the Tribunal. Contrary to ground 3, the Tribunal provided comprehensive reasons for the conclusions that it reached, and ground 4 again simply expressed dissatisfaction with the Tribunal’s conclusion that the appellant did not satisfy the complementary protection requirements in s 36(2)(aa) of the Act (PJ [27]-[29]).

25    The primary judge also observed that as the appellant was unrepresented, his Honour had perused the Decision Record, but was not able to detect any unarticulated jurisdictional error (PJ [30]).

e.    Consideration

E.1.    The grounds advanced by the appellant

26    The following grounds of appeal are sought to be advanced by the appellant in his notice of appeal: [AB 149]

1.    His Honour Judge Humphreys dismissed my application on 28 May 2021 and the hearing took place on 26 May 2021.

2.    The Tribunal as well as His Honour accepted that I am a truthful witness and that my brother was executed in Nepal yet failed to accept my well subjective founded fear of harm if I return to Nepal.

3.    Even though my wife and daughters still remain devout Christians and still live in the same house in the same village the genuine fear is not faced by my wife and daughters rather I am the appropriate person who will be persecuted if I return to Nepal.

4.    The Tribunal as well as His Honour failed to accept that relocation to Kathmandu is not possible and reasonable.

5.    I am not an ordinary Christian but I am a committed Christian and should I return to Nepal my involvement will be different than my family and I continue to believe that I will face significant harm in the foreseeable future and such was not acted upon or considered by the Tribunal as well as by His Honour of the Federal Circuit Court.

6.    I do not agree with consideration appearing in the judgment on page 5. My review before the Federal Circuit Court was not to undertake merit review and impermissible merit review but my circumstances were not acted upon properly and I do believe that the Tribunal as well as His Honour had probative evidence about the fear of harm yet failed to positively accept me as a person who will face harm, serious harm and persecution in Nepal. There exists unfairness.

27    The only substantive submissions made by the appellant in support of these grounds of appeal were those advanced in his written submissions. In those submissions the appellant relevantly contended:

3.     The Tribunal's decision is affected by judicial error by engaging in illogical and irrational reasoning when assessing my fear of persecution.

4.     I have lived for many years in fear. The Tribunal finding is on speculation rather than probative evidence.

5.     The Tribunal relied on expressions such as "'it is curious that...", "it would be expected that ... ". These findings were not grounded in objective or probative material. The Tribunal reasoned that I was not credible. The claimed harm did not occur therefore there was no real chance of persecution. Credibility was rejected because my claim was rejected and my claim was rejected because credibility was rejected.

6.     The Tribunal failed to meaningfully engage with evidence information about MAOISTS and extortion and intimidation of civilians and relied heavily on the DFAT country information. The Tribunal relied heavily on inconsistencies arising from translation issues, Nepali calendar dates, forms completed with the assistance of an agent and events occurring many years earlier.

7.     I provided explanations but the Tribunal failed to genuinely engage with my explanations.

8.     The Tribunal required recent harm, ongoing political activity, continuing Maoist interest. I believe that these are not requirements of s36.

9.     I do not believe that the Tribunal reasoning was valid. The Tribunal reasoned that because I did not suffer harm after 2004-2005 and left Nepal in 2015, my fear of persecution was not genuine and well founded. The Tribunal reasoning is not logical because fear is assessed at the time of decision and not at the time of last harm.

10.     The reasoning of the Tribunal is not supported by probative reasoning.

11.    I also believe that a decision maker must assess credibility independently.

12.    I continue to believe that my refusal involves an error of law and I do hope that the honourable Court accepts my explanation because the tribunal decision is unfair and not logical and was made contrary to the law.

28    The appellant’s written submissions are expressed in terms that raise more recognisable grounds for jurisdictional error than the formulations used in his notice of appeal. In substance, they principally assert that the Tribunal failed to meaningfully engage with the claims advanced by the appellant and the reasoning of the Tribunal was illogical and irrational.

E.2.    Leave to raise new grounds should not be granted

29    Although the appellant did not make any formal application for leave to rely on grounds 3 to 6, given the appellant is a litigant in person I was prepared to proceed on the basis that such an application had been made and to otherwise dispense with any formal requirements for the making of such an application.

30    I am not satisfied, however, that leave should be given to the appellant to rely on grounds 3 to 6, none of which was advanced as grounds before the primary judge. Although grounds 4 to 6 purport to also be grounds of appeal from the primary judge, the use of the language of “[t]he Tribunal as well as His Honour” make plain that the ground is directed at the underlying reasoning of the Tribunal.

31    None of Grounds 3 to 6 has sufficient merit to make it expedient in the interests of the administration of justice to grant leave for them to be raised on appeal: see VUAX v Minister v Immigration & Multicultural Affairs (2004) 238 FCR 588; [2004] FCAFC 158, [48] (Kiefel, Weinberg and Stone JJ).

32    Grounds 3 and 4 do not raise any recognisable ground of judicial review and simply invite this Court on appeal to engage in merits review of the Tribunal’s decision.

33    Ground 5 is misconceived. As is evident from DR [40] – [50], [58] – [63] the Tribunal did consider and take into account the appellant’s contentions that he would face significant harm in the foreseeable future if he were removed to Nepal.

34    Ground 6 is also misconceived. In contending that the Tribunal, as well as the primary judge, failed to act upon the appellant’s circumstances properly and failed to accept him as a person who will face harm, serious harm and persecution in Nepal, the appellant was advancing an impermissible merit review before the primary judge and before me.

E.3.    The remaining ground advanced by the appellant

35    The only remaining ground to address is ground 2. Given the manner in which the equivalent formulation of ground 2 was advanced before the primary judge, it was open to his Honour to conclude that it simply expressed dissatisfaction with the Tribunal’s factual findings and invited him to undertake merits review of the Tribunal’s decision.

36    Although I accept that ground 2 is not clearly expressed in terms of a recognised ground of jurisdictional error, I consider that it is in the interests of justice that the written submissions of the appellant should in effect be treated as a further particularisation of ground 2 and it should be addressed on that basis. In any event, given the appellant is a litigant in person who could only make at least oral submissions through an interpreter, I consider it is necessary that, like the primary judge, I satisfy myself that the Decision Record does not give rise to any unarticulated ground of jurisdictional error.

37    Before addressing whether the Tribunal failed to engage with the claims advanced by the appellant in a meaningful manner or engaged in reasoning that was irrational or illogical, it is necessary to address some specific issues raised by the appellant in his written submissions.

38    First, the Tribunal did not use expression such as “it is curious that …” or “it would be expected that …” in the Decision Record.

39    Second, the Tribunal expressly found at DR [44] that the appellant was “a candid and truthful witness” and stated that it considered inconsistencies in dates cited by the appellant and the “published history” to be insignificant.

40    Third, the Tribunal had regard to whether (a) the appellant had suffered any recent harm, (b) there was ongoing political activity in Nepal, and (c) there was any continuing Maoist interference with in the lives of Christians in Birendranagar, but his Honour did not treat them as mandatory requirements that the appellant had to satisfy in order to make good his claims under s 36 of the Act.

41    Fourth, the Tribunal considered the appellant’s fears of persecution if he were removed to Nepal at the time it made its decision, not at the date of the last harm alleged to have been suffered by the appellant.

E.4.    The Tribunal did engage meaningfully with the appellant’s claims

42    The principles governing an administrative decision-maker’s obligation to engage with representations advanced by an applicant were restated by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]-[26] (Kiefel CJ, Keane, Gordon and Steward JJ). For present purposes, they can be distilled as follows:

(a)    a decision-maker must read, identify, understand and evaluate the representations;

(b)    the requisite level of engagement needed by the decision-maker will vary, among other things, according to the length, clarity and degree of relevance of the representations;

(c)    the weight to be afforded to the representations is a matter for the decision-maker;

(d)    expressions such as “active intellectual process“ and “proper, genuine and realistic consideration” must be understood in their proper context and their use has the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”, which is not the correct approach.

43    A finding that an administrative decision-maker had not engaged in an active intellectual process will not be made lightly and must be supported by clear evidence, always bearing in mind that the applicant for judicial review bears the onus of proof: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107, [48] (Griffiths, White and Bromwich JJ).

44    The Decision Record makes plain that the Tribunal comprehensively identified, understood and considered the representations made by the appellant that he faced a real risk that he would suffer significant harm if he were removed to Nepal.

45    The Decision Record demonstrates that not only did the Tribunal identify the representations made by the appellant in his original application for a protection visa and before the Tribunal, the Tribunal also expressly raised the representations with the appellant. The significant extent to which the Tribunal engaged with the appellant’s claims is illustrated in the following extract from the Decision Record:

31.    I put to [the appellant] that notwithstanding some negative individual and institutional discrimination towards Christians in Nepal, sometimes leading to arguably isolated intimidation and harm, all of his evidence to me indicated that his church and his family as members of the same still worship and operate viably in Nepal. In reply, he said, "Not everybody gets into trouble." He said that it was people like him who are targeted. I asked him about Krishna Gurung, who had been the church's pastor for around twelve years: he did not appear to be facing threats of potentially relevant harm. In response, [the appellant] said that Krishna Gurung is currently in South Korea visiting his daughter for her wedding. I put to him that this did not help to explain how he had been able to lead the church without evident relevant problems for the last twelve years. He then said that Krishna Gurung sometimes spends time in Kathmandu where he has a second house. [the appellant] said that Kathmandu is safer than rural Nepal.

32.    I put to [the appellant] that, if he preferred not to live in Chitwan, it appeared reasonable for him to relocate to Kathmandu: his wife and at least one daughter had spent considerable time there; he has relatives residing there at present. In response, [the appellant] said he could relocate to Kathmandu but not for long. VI/hen I asked him why he would not be able to stay long in Kathmandu he said it is not safe. Here his evidence struck me as confused because he had just said it is safe to reside in Kathmandu. I reminded him of his wife's habit of visiting her sisters who reside in Kathmandu and of his elder daughter's productive time there.

33.    [The appellant] then said, "They might find me there." I asked him for more detail and he said that extreme Hindus from Birendranagar would find him in Kathmandu and harm him for being a Christian and for being actively involved in the gospel. I put to him once more that his pastor and his church community are doing all this in Birendranagar unharmed and continuing, evidently, to operate viably. [The appellant] then referred to the church building having been "attacked once"; he did not say when, but he said that the building has been renovated in concrete and also put behind a fence, and is much safer now.

46    There is no merit in any contention that the has Tribunal failed to meaningfully engage with the claims advanced by the appellant.

E.5.    The Tribunal’s reasoning was not irrational or illogical

47    A finding that an administrative decision-maker has engaged in jurisdictional error on the ground of illogical or irrational reasoning will not be made lightly. As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]–[131]:

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

48    The dispositive reasoning in the Decision Record makes plain that the Tribunal rejected the claims advanced by the appellant that he faced a real risk that he would suffer significant harm if he were removed to Nepal for coherent and explicable reasons. The conclusions reached by the Tribunal were conclusions that a logical, rational and reasonable mind could readily have reached on the same evidence.

49    The Tribunal did not ignore, but rather weighed, the significance of the claims advanced by the appellant against other objective evidence. By way of example, the Tribunal gave little weight to the existence of Maoist splinter groups, given it was not satisfied on the evidence before the Tribunal that such groups were “in any way disturbing the lives of Christians in Birendranagar”. On the other hand, the Tribunal gave much weight to its findings that the appellant’s family and his pastor Krishna Gurung continue “to remain in and return to Birendranagar by choice”, and gave some weight to its findings that the appellant’s wife had “several years of experience in Birendranagar as a Sunday School teacher without suffering potentially relevant harm”, and that the number of churches for Christians to choose from in Birendranagar has increased (at DR [45]-[47]).

F.    Disposition

50    Leave is not granted to raise grounds 3 to 6 and the appeal is otherwise dismissed.

51    The first respondent sought its costs in a fixed amount of $4,500 on the basis that it is (a) less than the amount that can be claimed in a Short Form Bill for an application for leave to appeal involving a migration decision, and (b) reasonable and proportionate to the nature and complexity of this matter. I agree that this amount is appropriate in the circumstances, and an order will be made that the appellant pay the costs of the first respondent fixed in that amount.

Associate:

Dated:    1 June 2026