Federal Court of Australia

AFL20 v Minister for Immigration and Citizenship [2026] FCA 1067

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the first respondent’s costs, fixed in the sum of $4,500.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    This is an appeal from a judgment delivered in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 17 August 2023 (the primary judgment). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (then the Minister for Immigration and Border Protection) to refuse the appellant’s application for a Protection (Class XA) (Subclass 866) visa (protection visa).

Background

2    The appellant is a citizen of Lebanon. The appellant arrived in Australia on 30 October 2007 as the holder of a 679 Visitor visa, and departed on 28 January 2008. The appellant returned to Australia on 27 October 2015 as the holder of a Family Sponsored Visitor (subclass 600) visa, which was granted on 21 October 2015 and was in effect until 11 December 2015.

3    On 4 December 2015, the appellant lodged an application for a protection visa. The appellant claimed he feared harm and inhuman treatment in Lebanon because of his change of religion from Islam to Christianity. On 28 September 2016, the delegate refused the application on the basis that it was not satisfied that the appellant met the relevant criteria, including due to concerns about the credibility of the appellant and the veracity of his claims.

4    The appellant made an application to the Tribunal for review of the delegate’s decision, which the Tribunal received on 18 October 2016. The appellant appeared before the Tribunal on 15 August 2019. On 20 December 2019, the Tribunal affirmed the Delegate’s decision not to grant the appellant a protection visa.

5    On 16 January 2020, the appellant commenced proceedings in the FCFCOA seeking judicial review of the Tribunal’s decision. The appellant’s grounds of appeal in his application to the FCFCOA were as follows:

1.    The Member of the tribunal misunderstood my claim and conversion to Christianity and the fear of harm if I return overseas to Lebanon.

2.    The Member relied on my confusing and conflicting evidence in relation to what I had read and when. That should not lead him to attack my knowledge and my conversion to Christianity and my evidence to be neither reliable nor credible.

3.    The Member failed to understand that my admission that I did not reveal myself as a Christian in Lebanon to my Islamic family was because of the fear to be killed as Christianity is not accepted by my Islamic family.

4.    Whether my experience in Lebanon was inconsistent, unreliable or unconvincing it does not mean that my love Christianity can be denied and I adopted Christianity and I was converted to Christianity and I am fond of Christian beliefs and teachings and that would attract Muslim family to persecute me.

5.    The Tribunal's conclusion that I will not face serious harm and risk if I return to Lebanon is wrong.

6.    I do have substantial grounds for believing that there is a real risk that I will be subjected to harm if I return to Lebanon and my fondness of Christianity is discovered.

6    The matter came before the primary judge on 7 August 2023, and on 17 August 2023 the primary judge made orders dismissing the application and delivered reasons for judgment. Her Honour found that the Tribunal’s findings were not based upon a misunderstanding of the appellant’s claims but on a non-acceptance of those claims; that the inconsistencies in the appellant’s evidence provided an intelligible basis for the Tribunal’s non-acceptance of those claims; and that the Tribunal’s findings that the appellant would not face a real chance or risk of relevant harm in Lebanon were intelligible and open to it.

7    On 11 September 2023, the Registry accepted the appellant’s notice of appeal, lodged on 1 September 2023, for filing. The notice of appeal sought orders that the orders of the primary judge be set aside, the decision of the Tribunal be set aside and the matter be remitted to the Tribunal to be considered according to law. That notice, which is the subject of the present appeal, contains the following grounds of appeal:

1    I continue to rely on the grounds in my Application in the Federal Circuit and Family Court of Australia.

2    I have converted to Christianity and my evidence was given to the Tribunal with supporting information and I continue to believe that the Tribunal misunderstood my claim.

3    I am hoping that the Judge of the Federal Court of Australia will look at my case differently and positively.

Legislative framework

8    Under s 65 of the Migration Act 1958 (Cth), the Minister may grant or refuse to grant a visa to a non-citizen. The power conferred on the Minister may be delegated under s 496 of the Act.

9    Section 36 of the Act sets out the criteria relevant to applications for protection visas. In particular, s 36(2) provides as follows:

36 Protection visas—criteria provided for by this Act

…

(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

(b)    a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

10    A ‘refugee’, which is a term used in s 36(2)(a), is a person who (s 5H of the Act):

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.

11    A person has a ‘well-founded fear of persecution’ if (s 5J of the Act):

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in the preceding paragraph; and

(c)    the real chance of persecution relates to all areas of a receiving country.

12    The reason the person fears being persecuted must be the “essential and significant reason”, and must involve serious harm to the person and systematic and discriminatory conduct (s 5J(4) of the Act).

13    For the purposes of s 36(2)(aa), s 36(2A) of the Act sets out the circumstances in which a non-citizen will suffer ‘significant harm’, being if:

(a)    the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)    the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non‑citizen will be subjected to degrading treatment or punishment.

Tribunal decision

14    On 20 December 2019, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a protection visa and issued a statement of decision and reasons.

15    In its decision, which is summarised at paragraphs [6] to [14] of the primary judgment, the Tribunal found the appellant’s evidence in relation to his claimed acceptance of or conversion to Christianity, as well his account of his experiences in Lebanon, to be “inconsistent, unreliable and unconvincing”. This conclusion was informed by inconsistencies and changes in the appellant’s evidence. The Tribunal considered that the appellant’s explanation for these inconsistencies – including that he suffered from depression, his memory was disturbed, and he has been under pressure and trauma and fear – did not overcome the Tribunal’s concerns in circumstances where the appellant did not provide any medical or psychological evidence. The Tribunal therefore did not accept that the appellant converted to Christianity, although did find the appellant was fond of Christianity and found its teachings appealing.

16    The Tribunal concluded that the appellant did not satisfy the refugee criterion in s 36(2)(a), nor the complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal found that the appellant did not have a well-founded fear of being persecuted, there was no real chance of him being harmed for the reasons listed in s 5J(1)(a) of the Act, and was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Lebanon, there was a real risk that he will suffer significant harm. In reaching this conclusion, the Tribunal considered country information sourced from the Department of Home Affairs and Trading which the Tribunal said revealed a “tolerant attitude towards conversions between faiths in Lebanon”. The Tribunal noted that there was no suggestion the appellant satisfied ss 36(2)(b) or (c) of the Act.

The primary judgment

17    As noted in paragraph [5] above, the appellant pleaded 6 grounds of review in his application for judicial review of the Tribunal’s decision. The primary judge dismissed each of the grounds, concluding that:

(a)    in relation to grounds 1 and 3, being that the Tribunal member misunderstood parts of the appellant’s claim, the Tribunal’s reasoning was not based upon a misunderstanding but on a non-acceptance of those claims;

(b)    in relation to grounds 2 and 4, which took issue with the Tribunal’s reliance on the appellant’s inconsistent and otherwise problematic evidence, there was nothing in the materials to indicate that any part of the Tribunal’s recitation of the appellant’s evidence was not factually open to the Tribunal and its reasoning was intelligible; and

(c)    in relation to grounds 5 and 6, which disagreed with the Tribunal’s findings that the appellant would not face a real chance or risk of relevant harm in Lebanon, the Tribunal’s findings were open to it and intelligible.

18    In addition to dismissing the application, the primary judge ordered that the appellant pay the Minister’s costs fixed in the amount of $5,000.

Appeal

19    The appellant’s first ground of appeal seeks to rely on the grounds of appeal before the Court below, and the second ground is in similar terms to grounds 1 and 3 before the Court below. The third ground of appeal asks me to look at the case “differently and positively”.

20    The appellant appeared before me at the hearing on 3 August 2026 with the assistance of an interpreter. Prior to the proceedings being called, the Minister’s submissions were interpreted to him. He confirmed, through the interpreter, that he had understood them.

21    The appellant was given the opportunity to address me further, but said that he relied on the grounds of appeal as they were set out in the Minister’s submissions. I asked him whether he wanted to point me to any further matters, including that he had not raised any errors in relation to the decision of the primary judge and had indicated that he wanted the Federal Court to look at the facts again. He confirmed that that was so, and that he did not wish to say anything in support of his appeal.

22    In GBZ15 v Minister for Immigration and Border Protection [2017] FCA 1095, Flick J noted that five of the ten grounds raised by the appellant in that case “fail[ed] to identify any appellable error said to have been committed by the Federal Circuit Court Judge” (at [8]) and that, like grounds 1 and 2 of the notice of appeal before me, were directed to challenging the decision of the Tribunal. As Flick J said (at [8]):

To unquestionably endorse such an approach would be to impermissibly reduce the proceeding before the Federal Circuit Court to a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ[.] Such an approach is to be firmly rejected: SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [10] per Flick J. Such an approach also denies to this Court on appeal any real assistance as to why the primary Judge may have erred in her own resolution of the grounds of review advanced below.

23    Given that there are no errors of law identified which would assist in determining grounds 1 and 2 in favour of the appellant, ground 3 can only be read as an express appeal for merits review. There is no room for merits review on this appeal; as Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272:

… any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin [(1990) 170 CLR I at 35-36]:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

24    For these reasons, the appeal should be dismissed with costs. I will, however, deal briefly with the first respondent’s arguments on the appeal grounds. Ms Warren, who appeared for the Minister, submitted that none of the grounds advanced below revealed error by the primary judge or the Tribunal.

25    In relation to grounds 1 and 3 in the Court below, and ground 2 of the appeal, the Minister submitted that, as the primary judge found, the Tribunal’s reasoning was not based upon any misunderstanding of the appellant’s claims, but rather its non-acceptance of those claims. The primary judge summarised the approach of the Tribunal to the appellant’s claims that he faced harm on account of his involvement with Christianity. The Tribunal had taken into account country information about the general acceptance and processes for conversion from Islam to Christianity in Lebanon, and was not satisfied that general unrest or security issues in Lebanon would expose the appellant to a real chance of persecution, any more than the general population would face issues. The primary judge noted that the Tribunal did not accept the factual basis of the appellant’s claim for protection, and so was not based on any “misunderstanding”.

26    In relation to grounds 2 and 4 of the Court below, the Minister submitted that the primary judge was correct and there was nothing unreasonable, illogical or irrational in those credibility findings. The first respondent relied on the summary of the relevant principles when having regard to legal unreasonableness of credit findings set out by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 (Kenny, Kerr, and Perry JJ) at [30]. In this case, the appellant has not pointed to any specific grounds of legal unreasonableness. I have reviewed the primary judge’s findings and those of the Tribunal, and am unable, in the light of the material in the Appeal Book (exhibit AB), to see any factors which could ground an appeal, such as a finding on credit on an “objectively minor matter of fact” which constitutes “the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and … claims” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (Robertson J) at [78]). The Tribunal found that the appellant had been inconsistent and otherwise problematic in his evidence supporting his claims. There is no basis to reject that conclusion. Nor was any evidence brought in the Tribunal to substantiate his claims as to his medical state.

27    In relation grounds 5 and 6 below, the Minister submitted that these grounds of appeal raise no more than mere disagreements with the factual findings as to the appellant’s risk of harm, and an assertion that he had substantial grounds for believing he was at risk of harm. These two grounds of appeal are just that – disagreement with the factual findings. Again, while a court may err on facts in such a way to give rise to irrationality or legal unreasonableness, it is not enough to show that a conclusion is one “upon which reasonable minds may reasonably differ” – see SZVBT v Minister for Immigration and Border Protection [2017] FCA 355; 72 AAR 1 at [26] (Flick J), citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at 221 [52] (Wigney J). Here, the appellant has done no more than disagree with the facts, and looking, as I must, through the frame of whether there has been jurisdictional error, I can see no irrationality, illogicality, or legal unreasonableness.

Conclusion

28    The appeal should be dismissed, with costs.

29    The Minister seeks a fixed costs order for $4,500. The Minister submitted that amount is appropriate for the following reasons:

(a)    The amount sought is less than the amount that can be claimed in a Short Form Bill for an application for leave to appeal involving a migration decision (see Item 15 of Schedule 3 of the Federal Court Rules 2011 (Cth)); and

(b)    The amount sought is reasonable and proportionate to the nature, including the complexity, of the case (see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 (Kenny J) at [18]).

30    The Minister’s submissions were helpful and to the point, as was Ms Warren’s representation. I am satisfied that the costs are reasonable and proportionate. Accordingly, I am satisfied that such an order is appropriate and will order that the Minister’s costs, fixed in the amount of $4,500, be paid by the appellant.

Associate:

Dated:    6 August 2026