Federal Court of Australia

EYK18 v Minister for Immigration and Citizenship [2026] FCA 1119

ORDERS

THE COURT ORDERS THAT:

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

2.    The time for the applicant to file a notice of appeal be extended to the date on which the application for an extension of time to appeal was filed.

3.    The draft notices of appeal and contention stand as the notices of appeal and contention.

4.    The appeal be dismissed.

5.    The parties bear their own costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant is a citizen of Egypt. After arriving in Australia on a student visa in 2007, he applied for a protection visa in 2016. A delegate of the Minister refused the application, whereafter the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision in November 2016.

2    In September 2017, the Minister exercised the power in s 417(1) of the Migration Act 1958 (Cth) (as it was at the time) to substitute for the Tribunal’s decision a more favourable decision, namely a decision to grant the applicant a Visitor (Subclass 600) visa with two conditions – a maximum of three months’ study and no further stay. The applicant’s visa was in effect from September 2017 to March 2018.

3    Six months after the applicant’s visa lapsed, and about 22 months after the Tribunal’s decision, the applicant applied to the then Federal Circuit Court of Australia for an extension of time within which to seek judicial review of the Tribunal’s decision. That application was eventually heard (by the Federal Circuit and Family Court of Australia (Division 2)) on dates in June and October 2023.

4    On 12 January 2024, the primary judge granted an extension of time but dismissed the application for judicial review: EYK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 8. The primary judge subsequently made a costs order in the Minister’s favour.

5    Relevantly for present purposes, the primary judge found jurisdictional error in the Tribunal’s reasons but nevertheless dismissed the application for judicial review. That was on the basis that the Minister’s decision under s 417 to grant the applicant a temporary visa substituted and superseded the Tribunal’s decision and was the operative decision (at [58]). Accepting the Minister’s submissions, the primary judge was not persuaded that judicial review relief should be granted where the Minister had substituted a decision under s 417 for the decision under review and the s 417 decision had not been challenged (at [59]).

6    On 9 April 2025, the High Court of Australia handed down its decision in FEL17 v Minister for Immigration and Multicultural Affairs [2025] HCA 13; 99 ALJR 775. It made clear that the Minister’s decision under s 417 does not have the effect of setting aside the Tribunal’s decision (at [30] and [33]). The latter merely becomes immaterial for the duration of the operation of the Minister’s decision (at [21]).

7    On 22 April 2025, which is to say some 13 days after the High Court’s decision, the applicant filed an application for an extension of time in this Court in which to appeal from the orders made by the primary judge. The principal proposed ground of appeal, in reliance on FEL17, is that the primary judge erred in denying the applicant relief because of the Minister’s decision under s 417.

8    The Minister accepts that the applicant should be granted an extension of time. The Minister also accepts that the primary judge was in error in denying the applicant relief notwithstanding having found that the decision of the Tribunal was affected by jurisdictional error. However, by way of draft notice of contention the Minister contends that the primary judge erred in finding that there was jurisdictional error. The Minister thus submits that the primary judge’s ultimate decision to refuse the applicant relief was correct and must stand.

9    Given the Minister’s consent and the now patent error in refusing relief because of the s 417 decision, I am satisfied that the applicant should be granted an extension of time in which to appeal from the orders of the primary judge. The applicant’s draft notice of appeal should therefore stand as the notice of appeal, as should the draft notice of contention stand as a notice of contention. It is convenient to hereinafter refer to the applicant as the appellant.

10    The result is that the only issue before me for decision on the appeal is the issue raised by the notice of contention. By that notice, the Minister says that the primary judge erred in finding that the Tribunal failed to consider the appellant’s claim to fear harm on the basis of his military service obligations or centrally relevant evidence in relation to that claim, or constructively failed to exercise its jurisdiction.

The statutory requirements for a protection visa

11    The appellant’s protection visa application fell to be considered, and was considered, with reference to whether he satisfied the criteria in s 36(2)(a) (refugee) or s 36(2)(aa) (complementary protection) of the Migration Act, namely:

(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; …

12    As will become apparent, it is common ground that insofar as the appellant made a claim for protection in relation to his outstanding military service obligations leading to imprisonment, it was a claim for complementary protection. It was accordingly necessary that the Tribunal had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Egypt, “there is a real risk that [he] will suffer significant harm”. Significant harm is given meaning in s 36(2A) as follows:

(2A)     A non‑citizen will suffer significant harm 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.

13    The concepts of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are defined in s 5, but the definitions are not presently relevant. “Arbitrarily deprived of his or her life” and “the death penalty” are not defined.

14    There is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally (s 36(2B)(c)).

15    Section 5AAA provides that “it is the responsibility of the non‑citizen [who claims to be a person in respect of whom Australia has protection obligations (however arising)] to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim”.

The Tribunal’s reasons

16    The Tribunal described the appellant’s ethnic group as Coptic Orthodox and his religion as Christianity. The Tribunal identified the principal component of the appellant’s protection claim to be his fear of persecution by what he described as a fanatical Muslim family, referred to as Family A, which considers that he defamed Islam and is required by Sharia law to be killed. The Tribunal did not accept that the appellant’s claims for protection because of his fear of Family A are credible. That was mostly based on what the Tribunal perceived to be inconsistencies in the appellant’s evidence. The Tribunal rejected what it characterised as the appellant’s claim that Family A would know he had returned to Egypt as soon as he got to the airport because they have connections all over Egypt in the police, military and in Parliament and are well-known in Egypt (at [60]).

17    In relation to the point concerning military service, which is the point relevant to the appeal, it is worth setting out the Tribunal’s reasons in full:

72.     The applicant told the Tribunal that he still has military service obligations in Egypt which end when he turns 30 and he asked that this claim be considered. He said that he would have to pay a fine or spend time in gaol.

73.     The Tribunal accepts that the applicant has military obligations. He may fulfil them. He will only be liable to a fine and/or imprisonment of a minimum of one year if he does not fulfil the obligation. Exemptions and deferments are also possible.5 He said that he would be taken into police custody at the airport and handed over to the military. There is no country information to support that claim.

    [Fn 5: Country Report at [3.94] and Thematic Report at [3.33].]

74.     The Tribunal has taken into account the information about military service in the Country Report at [3.94] to [3.96] and in the Thematic Report at [3.33] and [3.34]. It has also taken into account the information in the Country Report about deaths in custody at [4.3] to [4.5] which does not indicate whether or why individuals were targeted.

75.     Taking into account all those circumstances, the Tribunal does not accept on the information before it that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm because of his military service obligations if he returns to Egypt.

76.     Taking into account the applicant’s claims for protection singly and cumulatively, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm, or a real risk that he will suffer significant harm, if he returns to Egypt.

18    In the result, the Tribunal was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The Tribunal was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk that the appellant will suffer significant harm and he is thus not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

The primary judge’s reasons

19    The primary judge noted that the appellant contended under review ground 2 that the Tribunal failed to consider whether conditions in prison for the period that it was contemplated he might be imprisoned could be so bad as to amount to significant harm intentionally inflicted by the authorities (at [30]). The primary judge accepted that the appellant claimed to face relevant harm through imprisonment, even though the claim was not made by the appellant in significant detail (at [31]). The primary judge identified that at the hearing before the Tribunal the appellant claimed that his outstanding military service obligations would result in him having “to pay a fine or do time in [gaol]” and held that that required the Tribunal to consider whether the contended harm would occur and whether it amounted to significant harm as defined in s 36(2A) of the Act (at [31]).

20    The primary judge noted the Tribunal’s conclusion that it did not accept that the appellant faced a real risk of significant harm because of his military service obligations if he returned to Egypt, but held that it is not clear from the Tribunal’s reasoning how it reached that conclusion (at [32]-[33]).

21    The primary judge recorded that the Tribunal appeared to have accepted (at [73] of its Decision Record) that the appellant may face imprisonment for at least a term of one year if he returns to Egypt (at [34]). The primary judge held, however, that the Tribunal did not explain why it had found that there was not a real chance of the appellant suffering the requisite harm; the Tribunal did not say, for example, that it was not satisfied that the nature of the prison conditions to which the appellant may be subjected may amount to degrading treatment or punishment; the Tribunal also did not find that the appellant would avoid imprisonment through completion of military service, deferment or exemption (at [35]).

22    The primary judge noted that the reports referred to by the Tribunal referred to deaths in custody occurring as a result of torture, physical abuse, overcrowding and/or inadequate medical care; the number of deaths at the hands of police including in custody; few police or prison officers being investigated or prosecuted; human rights bodies generally not being allowed to visit prisons; and, investigations within the context of complaints being generally considered to be not credible (at [36]). The primary judge did not accept the Minister’s submission that it should be inferred from the Tribunal’s reasoning, specifically its reference to the country information not indicating “whether or why individuals were targeted” for deaths in custody, that the Tribunal found that the requisite “intention” on the part of the authorities was generally lacking (at [37]). The primary judge reasoned that the lack of “target[ing]” was not determinative of the question whether the appellant may face a real chance of significant harm (at [37]).

23    The primary judge reasoned that “the difficulty in this case is that the Tribunal did not set out its reasons for reaching the conclusion that the appellant did not face a real risk of significant harm because of his military service obligations, nor the facts that it considered material to that conclusion” (at [39]).

24    The Minister, with reference to s 36(2B)(c) of the Act, submitted that the country information before the Tribunal supported the relevant law in Egypt being of general application with the result that there was taken not to have been a real risk of significant harm. However, the primary judge held that even if that was a potential manner in which the Tribunal could have reasoned, it did not reason in that fashion and that complex questions arising under s 36(2B)(c) in the context of compulsory military service were questions for the Tribunal to resolve (at [40]).

25    The primary judge accordingly held (at [41]) that there was jurisdictional error in the decision of the Tribunal, whether the error is characterised as a failure to consider a claim or centrally relevant evidence, or as a constructive failure to exercise jurisdiction in the manner considered in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431.

The appellant’s claims about military service

26    On any view, what the appellant said about military service in relation to his protection claims is very limited.

27    In his standard form application for a protection visa, he answered “no” to the question whether he had undertaken any military service and “yes” to the question whether he still has military service obligations in his home country. He did not provide details of those obligations where the form invited him to do so. In his statement supporting his protection visa application, the appellant said nothing about military service. His claims for protection centred on claims that he would be persecuted by Muslims in Egypt, in particular by Family A. The supporting documents that he submitted also said nothing about military service.

28    There is nothing in the delegate’s Protection Visa Assessment that suggests that the appellant said anything about military service in his protection visa interview, or that he made any claim for protection in relation to military service to the delegate.

29    The appellant was represented by a solicitor and migration agent at Gateway Law and Migration Australia (GLMA) in the proceeding before the Tribunal. GLMA was invited to provide a written submission setting out all claims made and maintained by the appellant accompanied by a signed declaration from the appellant confirming the submission. GLMA provided a letter of support from the appellant’s church and two medical reports. Those documents did not mention military service.

30    The appellant attended a hearing before the Tribunal on 24 October 2016 which lasted two and a half hours. The appellant’s solicitor accepted before me that up until that point, the appellant had made no claim based on his outstanding military service. In the hearing, the Tribunal raised with the appellant his answer to the question in the standard form protection visa application in relation to outstanding military service obligations in his home country. Insofar as is possibly relevant to the military service claim, the following was said (as transcribed):

Member: In your application you claim that you still have military service obligations in Egypt is that correct

Applicant [In English] Yes

Member: And is there a time when those obligations no longer or when that finishes up?

[Applicant:] At the age of thirty but I have to pay a fine or do time in goal.

Member: So how old are you now

Applicant: I am twenty seven

…

Member: So you’d better tell me about your claims. What, now you can read English, Are there any changes you want to make to your or amendments you want to make to the claims in your application which I note has been lodged a few years ago now or not whenever it was not long ago, 2016,

Applicant: Yes that’s right

Member: So is there anything you want to add to it or correct in the documents that I’ve got, documents I’ve got?

Applicant: No like one more thing I already mentioned that I’m I’m wanted in Egypt for the military as well so, there is no chance I can go back there.

Member: Ok well why is that a problem for you

Applicant: Because I’ll, I’ll get approached because I have … . as soon as I get to the airport I’ll be in police custody, or to go to military and that they’ll [indistinct] approach me in the police custody.

Member: Who will approach you in police custody.

Applicant: [Family A] they are after me.

Member: How are [Family A] going to know that you are in police custody in Cairo.

Applicant: Yeah because they have got connections all over Egypt

…

Member: As I understand I’ll just confirm that my understanding is correct, you are saying that if you return to Egypt, you will be arrested at the airport because of your outstanding military obligations and [Family A] will somehow immediately know and get hold of you and harm you is that what you are saying

Applicant: Yeah that’s correct.

31    In summary, the appellant said that because of his outstanding military service obligations in Egypt, if he were to return, he would be arrested which would in turn lead to Family A learning of his whereabouts and thus enable them to harm him. He said nothing about the possibility or fear of death as a consequence of the conditions in Egyptian prisons.

32    A few days after the hearing, GLMA provided 52 pages of further written submissions and supporting documents to the Tribunal. Nothing was said in those documents in support of or relevant to a protection claim relating to outstanding military service obligations or imprisonment.

33    As mentioned, the Tribunal referred to a Country Information Report and a Thematic Report. The portions of those reports specifically referred to by the Tribunal (at [74] of the Decision Record) contain the information in the following three paragraphs.

34    Military service, which is usually for two years, is compulsory for all Egyptian males from the age of 18. However, exemptions and deferments are possible for family, education, health and other reasons. Certain exemptions are renewed every three years for reassessment until the age of 30 years, at which time a permanent exemption applies. If an individual is not able to renew his military service exemption and does not complete military service, he is liable to pay a fine of up to EGP1,000 ($170) and/or face a prison sentence of a minimum of one year.

35    There is no policy in the military that differentiates between serving officers on the basis of religion, and there are no regulations specific to Copts that would enable them to avoid military service or make military service more onerous. Copts make up only around 3% of the average intake at officer training schools, and there are few high-profile or high-ranking Copts within the armed forces. Reliable data on the total number of Copts in the military, including in comparison with followers of other religions, is not available. There are anecdotal accounts that some Copts have reported facing societal discrimination whilst undertaking this service, such as being given more menial tasks or fewer privileges such as leave.

36    A Human Rights Watch (HRW) report published in January 2015 independently documented nine deaths in custody since mid-2013. The report stated that while some detainees appeared to have died after being tortured or physically abused, other deaths occurred due to prisoners being held in severely overcrowded cells or not receiving adequate medical care for serious ailments. The HRW report also referred to an investigation by Al Watan newspaper that suggested that at least 90 detainees had died in police custody in the governates of Cairo and Giza alone in 2014. A reputable Egyptian NGO separately reported that there had been 272 deaths at the hands of police, including in custody, between June 2014 and June 2015. Although few police or prison officers have been investigated or prosecuted in relation to deaths in custody, on 1 March 2015 Egypt’s prosecution service ordered the arrest of two police officers accused of torturing and beating to death a lawyer jailed after a protest in Cairo.

37    In addition to that information, the appellant also refers to the Country Information Report where it states that Egypt generally does not allow human rights bodies to visit prisons, violence against prisoners is widespread, internal complaints are likely to lead to punishment and investigations relying on evidence gathered by police in prison are generally considered not credible.

Consideration

38    The appellant accepts that the issue raised by the notice of contention is narrow, namely whether the Tribunal’s reasons disclose that it failed to consider (or constructively failed to exercise jurisdiction in respect of) the appellant’s claim that, if returned to Egypt, he faces a real risk of significant harm (complementary protection) arising from imprisonment consequent upon non-completion of military service obligations. In that regard, the appellant submits that:

(1)    the Tribunal accepted the existence of military service obligations and treated imprisonment as a live possibility;

(2)    the Tribunal then purported to “take into account” the DFAT reports about military service and deaths in custody; but

(3)    the Tribunal did not expose a rational path of reasoning from the DFAT material to its conclusion by reference to the statutory definitions of “significant harm”; and

(4)    in that context, the Tribunal’s reasons disclose a failure to perform the statutory task, amounting to jurisdictional error.

39    In conducting a review of the delegate’s decision, the Tribunal was obliged “to reconsider the merits of the decision under review ‘in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself’”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13] per Bell, Gageler and Keane JJ quoting from Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [44]. Also in SZMTA, at [105], Nettle and Gordon JJ observed that “the Tribunal in the conduct of the review must take account of any substantial, clearly articulated argument advanced by an applicant in support of their case”, citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25] per Gummow and Callinan JJ. See also Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [27].

40    A decision-maker must read, identify, understand and evaluate the representations that are made to it; they must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them: Plaintiff M1/2021 at [24]. Also in Plaintiff M1/2021, at [25], it was said (omitting footnotes) that:

The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

41    It is for the applicant before the Tribunal to advance whatever evidence or argument they wish to advance in support of their contention that they are a refugee (s 36(2)(a) read with s 5H) or that they qualify for complementary protection: Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [187] per Gummow and Hayne JJ. That position is now given statutory expression in s 5AAA of the Act which is quoted above (at [15]).

42    “Assessing the risk that a non-citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk”: DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [19] (emphasis altered).

43    In that legal context, just how the appellant put his claim in relation to military service is important. It is significant that he made no protection claim in relation to military service until his outstanding military service obligations were raised with him by the Tribunal. It is submitted on behalf of the appellant that he then made two claims, and that that is how he was understood by the Tribunal. It is said that he made the claim that he would be fined or imprisoned, being the one claim, and that Family A would come to know of his whereabouts and pursue their vendetta against him, being the other. The ground of review before the primary judge and the issue raised by the notice of contention go to the former claim, rather than the latter.

44    I do not accept that the former claim was in fact made by the appellant. A fair and careful reading of the appellant’s evidence before the Tribunal leads to the conclusion that the only claim that he made in relation to military service was that because of his outstanding obligations he would be arrested on returning to Egypt which would in turn lead to Family A being notified of his return which would then put him in danger in relation to Family A. That arises from his answer to the very direct question “Why is that a problem for you?” with reference him saying that he is wanted in Egypt for military service and that there is no chance that he can go back to Egypt. The answer that he gave referred only to the threat from Family A.

45    That claim for protection is entirely consistent with the principal claim for protection that he advanced, namely a fear of harm at the hands of Family A. He made no independent claim that he would suffer relevant harm by virtue of being imprisoned, simpliciter, in Egypt. I accept the Minister’s submission in that regard, and that it was accordingly unnecessary for the Tribunal to consider such a claim. That is all the more so in circumstances where the hypothesis underlying the claim is that the appellant would not fulfil his outstanding military service obligations if he was returned to Egypt, yet he never said that he would not do so: see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; 141 FCR 586 at [46]-[47] per Weinberg, Jacobson and Lander JJ.

46    Notwithstanding that the claim was not squarely made and the hypothesis underlying it was not established, the Tribunal proceeded – in the appellant’s favour – on the basis that he might be imprisoned in Egypt if he were to return there. That arises from the Tribunal’s statement that the appellant asked that his claim in relation to outstanding military service obligations be considered, and that he said that he would have to pay a fine or go to gaol. It is also the only way of explaining the Tribunal’s consideration of country information about conditions in prisons. By that part of the Tribunal’s reasons, it had already rejected the claim for fear of harm at the hands of Family A, including insofar as that claim relied on Family A coming to know of his whereabouts as a result of any arrest because of his outstanding military service obligations (at [60] of the Decision Record).

47    The appellant said to the Tribunal that he would have to pay a fine or be imprisoned. That was confirmed by the country information that a person failing to fulfil their military service obligations might be subjected to a fine “and/or” imprisonment – the “or” still being applicable. The country information was also that various grounds for deferment and exemption were generally available. Those were not shown to be unavailable to the appellant. Also, the appellant failed to explain why he would not fulfil his obligations (other than in relation to his fear of Family A, a claim that was rejected). Taking those matters into account, there is no error in the Tribunal failing to conclude that there is a “real risk” of the appellant being imprisoned if he were returned to Egypt. In the absence of such a conclusion, there could be no finding that there was a real risk that the appellant would face significant harm as a consequence of being imprisoned.

48    The appellant’s solicitor submits that once having accepted that the appellant might be imprisoned, and having referenced the country information which indicted that deaths in prison in Egypt are commonplace, the Tribunal was obliged to consider whether there was a real risk that the appellant would suffer significant harm in the form of being arbitrarily deprived of his life, and that it failed to do so. In particular, the appellant’s solicitor submits that that is demonstrated by the Tribunal’s reference to the country information not indicating whether or why individuals were targeted – “targeting” being a matter going to intention which is a component of the forms of significant harm identified at s 36(2A)(b)-(e) but not arbitrary deprivation of life in paragraph (b). In that regard, paragraphs (c) to (e) were held in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 to require intention and paragraph (b), the imposition of the death penalty, obviously does.

49    If by its references to country information about prison conditions the Tribunal is to be taken as having accepted that there is a real risk that the appellant would be imprisoned so as to require the consequences of such imprisonment to be considered, its further reasoning comes into focus. It is in that context that attention is drawn to its statement that the country information about deaths in custody does not indicate whether or why individuals were targeted (at [70] of the Decision Record). Given the failure of the appellant to identify before the Tribunal the basis on which imprisonment would give rise to a real risk of arbitrary deprivation of life, I do not accept that it was necessary for the Tribunal to specifically consider such a complementary protection claim: DQU16 at [19] quoted above (at [42]).

50    But in any event, I do not accept that it is established that the Tribunal failed to consider such a claim. As mentioned, s 36(2B)(c) provides that there is taken not to be a real risk of significant harm if the decision-maker is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. It is quite plausible that it is “targeting” in that sense that the Tribunal had in mind. That is to say, it is not established, and I am not satisfied, that that is not what the Tribunal had in mind.

51    The Tribunal’s level of engagement with the country information, brief as it was, was commensurate with the way in which the claim was put, including its brevity and lack of detail (as per Plaintiff M1/2021 at [25]). Nothing in the Country Information Report and the Thematic Report considered by the Tribunal, including the additional paragraphs now relied on by the appellant, say anything about whether or why individuals who do not fulfil their military service obligations would be subjected to the relevant harm.

52    Insofar as the appellant relies on the failure by the Tribunal to reference particular parts of the reports, such a failure does not establish that those parts were not considered by the Tribunal: Plaintiff M98/2025 v Minister for Immigration and Citizenship [2026] HCA 26 at [40]; Plaintiff S32/2026 v Minister for Immigration and Citizenship [2026] HCA 27 at [24]. Moreover, what weight to give information in such reports, including whether to give it any weight at all, is a matter for the Tribunal itself as part of its fact-finding function and is not a matter for the Court in judicial review proceedings such as the present: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.

53    Thus, it cannot be concluded that the Tribunal failed to consider whether, if the appellant were imprisoned, there is a real risk that he would suffer significant harm in the form of arbitrary deprivation of life.

54    In the circumstances, I am satisfied that the Tribunal did not err in its reasoning and conclusions in relation to the appellant’s protection claims based on his outstanding military service obligations. The primary judge erred in concluding the contrary: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] per Kiefel CJ, [20] per Gageler J, [117] per Nettle and Gordon JJ and [154] per Edelman J.

Disposition

55    In the result, as explained above, the curious outcome is that because the primary judge was in error the appeal must be dismissed.

56    In respect of costs, the Minister submits that given the appellant’s success on the s 417 issue, even if the appeal fails each party should bear their own costs.

57    The appellant submits in contrast that even if the appeal fails on the strength of the notice of contention, the costs order below should be varied because of his ultimate success on the s 417 point which occupied much of the effort below and on which the Minister has ultimately been found to be wrong.

58    To my mind, to the extent to which the appellant’s point about the costs below carries weight, it is adequately taken care of by the Minister’s proposal, or concession, that each party bear their own costs on the appeal. There should be such a costs order.

Associate:

Dated:    13 August 2026