Federal Court of Australia

AIH18 v Minister for Immigration and Citizenship [2026] FCA 993

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

YOUNAN J:

Introduction

Notice of appeal

1    By notice of appeal filed on 28 December 2023, the appellant appeals from the decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) on 16 November 2023, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was): AIH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1036 (primary judgment or PJ). On 5 January 2018, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a Protection (Subclass 866) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Tribunal decision).

2    The appellant is a citizen of Fiji, and arrived in Australia on 27 December 2014 on a Tourist (Subclass FA-600) visa. The appellant departed Australia on 13 March 2015, returned on 18 August 2015, and has not departed since. The appellant applied for a protection visa on 15 October 2015, which was refused by a delegate of the Minister on 12 January 2016.

Appearance

3    The appellant is a self-represented litigant. At the hearings before the Tribunal and the primary judge, the appellant appeared unrepresented and did not require the assistance of an interpreter. Before the Tribunal, the appellant had assistance from a representative in providing written submissions and a statutory declaration.

FACTUAL BACKGROUND

4    The factual background to this matter is summarised at paragraphs [1]-[5], [9]-[25] of the primary judgment and in the Tribunal’s decision at paragraphs [1]-[2], [9]-[37].

GROUNDS OF APPEAL

5    The grounds of appeal are stated as follows:

Grounds of appeal

1.    While I accept His Honour Judge Humphreys kindness I do believe that His Honour failed to consider the grounds of judicial review submitted with my Application under Migration Act.

2.    I am indeed a member of particular social group who was targeted and persecuted and also suffered significant harm in Fiji as provided and His Honour as well as the Tribunal Member failed to consider properly.

3.    I continue to believe that the decision of the Tribunal is not reasonable and not fair as well as the decision of the Federal Circuit Court and Family Court is also infected by error of law. It has not made a proper analysis and misunderstood the seriousness of the harm.

6    The Minister contends that the appeal should be dismissed on the basis that the appellant has failed to particularise his claims.

7    The Minister relies on written submissions filed on 26 June 2026. The appellant did not file written submissions, notwithstanding a direction of Registrar McCormick on 8 February 2024 that such submissions be filed and served before the hearing date. At the hearing of the appeal on 27 July 2026, the appellant was asked whether he wished to expand upon the grounds of appeal or otherwise respond to the Minister’s oral submissions. He declined to do so.

Ground 1 – failure to consider grounds of review

8    The first ground of the notice of appeal contends that the primary judge failed to consider the grounds of judicial review.

9    The Minister contends that this ground of appeal fails on the basis that the primary judge comprehensively considered each of the three grounds of review and found that jurisdictional error was not established.

10    I find that the primary judge addressed each of grounds one, two and three, which included complaints of bias, denial of procedural fairness and unreasonableness (PJ [41]-[44]), and concluded that none of the grounds had merit (at [39], [41] and [44]).

11    Further, the Minister submits that the appellant has failed to identify any element of the primary judgment that is affected by error (and that none is apparent), and as such the first ground of appeal fails.

12    To the extent that the Court is invited to provide – what would be – an advisory opinion on the merits of the decision sought to be reviewed, in circumstances where the appellant has not provided any particulars of claimed legal error, I decline the invitation. The absence of particularisation should not be viewed as impetus for a default wide-ranging search for error in the primary judgment: see Malielegaoi v Minister for Immigration and Citizenship [2026] FCA 171 at [35]-[44].

Ground 2 – failure to properly consider that the appellant was targeted and persecuted

13    The second ground of the notice of appeal contends that the primary judge (and the Tribunal) failed to properly consider that the appellant was a “member of a particular social group who was targeted and persecuted” and “suffered significant harm” in Fiji.

14    As the Minister contends, to the extent that ground two re-iterates the appellant’s claim for protection, it invites the Court to undertake impermissible merits review, and as such cannot succeed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

15    The allegation that the Tribunal and the primary judge “indeed … failed to consider [the appellant’s claim] properly” is a platform for contradiction; it does not raise any legal basis upon which it can be said that the claim was not (properly) considered.

Ground 3 – misunderstanding the seriousness of the harm and unreasonableness

16    The third ground of appeal contends that:

…the decision of the Tribunal is not reasonable and not fair as well as the decision of the Federal Circuit Court and Family Court is also infected by error of law. It has not made a proper analysis and misunderstood the seriousness of the harm.

17    The ground does not identify: (i) in what respect the decision of the Tribunal is unreasonable or “not fair” (nor the legal basis for the latter claim); (ii) the claimed legal error of the primary judge; or (iii) in what respect the primary judge or the Tribunal has not made a “proper analysis”. It is not evident whether these claims are different ways of describing the same essential complaint. To the extent that they can be addressed separately (and meaningfully), they are considered below. Concepts such as “error of law” and “proper analysis” are devoid of discernible meaning in the absence of particularisation. Once again, in those circumstances, it is not for the Court to embark on an investigation of possible (non-patent) error.

Seriousness of the harm

18    The appellant claims that the Tribunal or the primary judge “misunderstood the seriousness of the harm”. It is not evident on what basis that claim is made. In any event, the ground misconceives the findings of the Tribunal, based on the credibility of the appellant’s claims, that the appellant does not have a genuine fear of persecution (for the purposes of s 36(2)(a) of the Migration Act) and that there are not substantial grounds for believing that there is a real risk that the appellant will suffer significant harm as a consequence of being returned to Fiji (for the purpose of s 36(2)(aa) of the Migration Act). In light of those findings, there is no cause to assess the gravity or quality of the prospective harm claimed by the appellant. As such, this aspect of ground three fails.

Unreasonableness

19    Insofar as ground three takes issue with the conclusion of the Tribunal that the appellant did not satisfy the criteria for the grant of the protection visa (i.e., by failing to make “a proper analysis” and “[misunderstanding] the seriousness of the harm”), the Minister contends that ground three fails for the same reasons as articulated in respect of ground two.

20    The Minister disputes that the decision of the Tribunal is unreasonable. The Minister submits that the test of unreasonableness is stringent: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [58], [67], [74] and [85] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] (Kiefel CJ); [135] (Edelman J). So too is the test for irrationality or illogicality: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] (Crennan and Bell JJ).

21    The Minister submits that for the appellant to establish unreasonableness, he would need to satisfy the Court that the Tribunal’s decision lacked a “rational foundation, or an evident or intelligible justification”, or that it was “plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ).

22    As the primary judge found at [44], the Tribunal’s decision does not lack an evident or intelligible justification. The intermediate findings or conclusions have a rational foundation. Furthermore, in light of those findings, it cannot be said that the outcome is plainly unjust, arbitrary, capricious, or lacking common sense. As such, this aspect of ground three fails.

CONCLUSION

23    For the above reasons, as the grounds of appeal are without merit, the appeal should be dismissed, with costs.

Associate:

Dated:    31 July 2026