AOR24 v Minister for Immigration and Citizenship - Protection Visa Appeal Dismissed

Original Word Document (82.4 KB) Federal Court of Australia

AOR24 v Minister for Immigration and Citizenship [2026] FCA 467

| Appeal from: | AOR24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 70 |

| File number(s): | SAD 24 of 2025 |

| Judgment of: | O'SULLIVAN J |

| Date of judgment: | 21 April 2026 |

| Catchwords: | MIGRATIO N — appeal from decision of the Federal Circuit and Family Court of Australia (Div 2) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal not to grant the appellant a protection visa — where appellant had failed to satisfy the criteria for a protection visa under s 36 of the Migration Act 1958 (Cth) — no error on the part of the primary judge in finding no jurisdictional error — appeal dismissed |

| Legislation: | Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(a), (aa)

Federal Court Rules 2011 (Cth), Schedule 3, item 15 |

| Cases cited: | BKT17 v Minister for I mmigration, C itizenship, M igrant S ervices and M ulticultural A ffairs [2023] FCA 384

DQQ17 v Minister for I mmigration and B order P rotection [2018] FCA 784

Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 |

| Division: | General Division |

| Registry: | South Australia |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 49 |

| Date of hearing: | 9 April 2026 |

| Counsel for the Appellant: | The appellant appearing in person |

| Counsel for the First Respondent: | Ms B Rayment |

| Solicitor for the First Respondent: | Sparke Helmore Lawyers |
ORDERS

| SAD 24 of 2025 |

| BETWEEN: | AOR24

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | O'SULLIVAN J |
| DATE OF ORDER: | 21 April 2026 |
THE COURT ORDERS THAT:

1. The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

2. The appeal is dismissed.

3. The appellant is to pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5,000).

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1 The appellant is a citizen of the Philippines who arrived in Australia on a visitor’s v isa on 4 September 2004. The visa was valid for one month, however the appellant has remained in Australia as an unlawful non-citizen since that time.

2 After being detained in September 2023, the appellant applied for a class XA subclass 866 protection visa as a consequence of his claim that in 1985 he witnessed a murder of a man in the Philippines and that the victim’s family wanted to kill him in revenge.

3 After seeking further information, a delegate of the Minister refused the application on the basis that the appellant did not satisfy the criteria in s 36(2)(a) or (aa) of the M igration A ct 1958 (Cth) for protection visas.

4 An application for review before the then Administrative Appeals Tribunal was dismissed on 9 January 2024, some four weeks after an oral hearing which had been held on 13 December 2023.

5 The appellant applied for judicial review to the F ederal C ircuit and F amily C ourt o f A ustralia (Div 2) which dismissed the application on 29 January 2025: AOR24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 70 (J).

The primary judge’s reasons

6 The primary judge was faced with a single ground of review which was that:

Rules were not properly applied as a decision made was unfairly quick and the applicant was not given enough time to be heard.

7 The appellant was not represented before the Tribunal or the primary judge.

8 Given the appellant was not represented, the primary judge adopted an approach mindful of the observations of Colvin J in DQQ17 v Minister for I mmigration and B order P rotection [2018] FCA 784 at [8]-[9] and Feutrill J in BKT17 v Minister for I mmigration, C itizenship, M igrant S ervices and M ulticultural A ffairs [2023] FCA 384 at [22] referring to Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 at [55]. Consequently, his Honour gave the appellant, as an unrepresented appellant, the opportunity to expand orally on the matters that are said to give rise to the application for review and, adopting that course, invited the appellant to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure: J [36].

9 The primary judge also explained to the appellant that the Court’s role was not to undertake a merits review of the Tribunal’s decision and instead it was required to consider whether the Tribunal made a jurisdictional error, giving the appellant examples of what comprised jurisdictional error.

10 It is clear that the primary judge went to some pains to explain the process to be undertaken by the Court and what comprised jurisdictional error.

11 The primary judge proceeded by considering the single ground of review in three broad components:

(1) The Tribunal did not properly apply “Rules”.

(2) The decision was made too quickly.

(3) The applicant was not given sufficient time to be heard: J [39].

The Tribunal applied the “Rules”

12 As to the first component within the single ground of review, the primary judge addressed the Tribunal’s consideration of the protection visa criteria. The primary judge found that the Tribunal considered carefully the appellant’s claim that he had witnessed a political killing in the Philippines, as well as a claim that he would be denied access to medical treatment in the Philippines for a heart condition and cholesterol.

13 The primary judge held that the Tribunal had engaged with the appellant and made a fulsome explanation for its finding that the appellant’s claim that he left the Philippines because he was a witness to a political killing and that if he returned he was at risk of being killed, was not credible: J [22]. The primary judge also noted the Tribunal took issue with other aspects of the appellant’s evidence: J [23] [24].

14 Insofar as the appellant contended that he would have no-one to support him in relation to his health, the primary judge noted that the Tribunal accepted that whereas there may be challenges for the appellant in accessing medical treatment and healthcare, country information for the Philippines and other material did not identify discrimination as an issue in relation to accessing the medical health services available for the purposes of s 5J(1)(a) of the Act: J [25].

15 The primary judge found that the Tribunal had not erred in concluding that the appellant did not meet the refugee criterion in s 36(2)(a) nor, the complementary protection criterion in s 36(2)(aa). To that extent, the Tribunal had complied with the “Rules”.

16 The primary judge considered that no jurisdictional error arose in respect of the first component of the appellant’s sole ground of review.

The decision was not made too quickly

17 The second component was that the Tribunal made its decision “unfairly quickly”. The primary judge accepted the Minister’s submission that the Tribunal made its decision within three months of the review application being made and that the hearing before the Tribunal occurred over three hours: J [47]-[49].

18 The primary judge concluded that the Tribunal’s decision was a careful, thorough and considered review of the entirety of the claims and evidence put forward by the appellant such that no jurisdictional error arose in respect of this component of the appellant’s sole ground of review.

The appellant was given sufficient time to be heard

19 The third component was that the Tribunal did not provide the appellant with enough time to be heard during the hearing.

20 The primary judge did not accept that contention noting that the appellant was provided with an opportunity to give evidence at the hearing in respect of his claims and did so. The primary judge also noted that the Tribunal took time to probe the appellant’s claims with him and gave the appellant an adequate opportunity to give evidence and present his claims: J [53]-[54].

21 The primary judge considered that no jurisdictional error arose in respect of this component of the appellant’s ground.

22 Having dealt with each of the three components, the primary judge found that all the matters considered by the Tribunal were clearly relevant, there was no evidence the Tribunal failed to consider relevant material or that its findings were based on irrational reasons, that the decision was arrived at on a consideration of matters that were logically probative and it could not be said that no other rational or logical decision-maker could have drawn the same conclusion or arrived at the same decision: J [56] and the cases cited therein.

23 The primary judge dismissed the application.

The appeal to this Court

24 The appellant raises two grounds of appeal:

(1) The decision was unfair as the Court and the Tribunal did not give the appellant a proper forum to address the issues he faces on going back to the country which he left 20 years ago.

(2) The Court “did not acquire full jurisdictional on my person because its failure to consider my human rights under both Australian and international laws”.

25 The appellant was also unrepresented before this Court and was assisted by the services of an interpreter.

26 During the course of the appeal, the Court explained to the appellant the concept of jurisdictional error and gave him the opportunity to make any submissions that he wished to make as to why he says the primary judge erred in not finding jurisdictional error.

27 The appellant explained the grounds of appeal in the following terms.

Ground one

28 The appellant explained that he is afraid to go back to the Philippines as he may be attacked or killed because the victim’s family is angry with him.

29 That is not contained within the grounds, strictly speaking, although on a broad reading of ground one, that submission may come within the ground.

30 Ultimately, the appellant’s submissions came down to the fact that he wanted to stay in Australia because he was afraid to go back to the Philippines and he also had health issues.

31 The Minister submits that the primary judge found that the findings made by the Tribunal in relation to the appellant’s return to the Philippines were open to it and that his Honour found no jurisdictional error arising out of the ground of review raised by the appellant.

32 The Minister submits further that the first ground misunderstands the role of this Court and the Court below.

33 It is evident from the explanation given by the appellant to the Court as to the meaning of ground one, that that is the case. This Court has no power to engage in a merits review, which is what the appellant is seeking.

34 During the appeal, the Court explained to the appellant the nature of the appeal and the fact that it was not a review of the merits of the Tribunal’s decision.

35 To the extent the applicant seeks a merits review, the Court does not have that power.

36 During the course of his submissions, the appellant also made a submission that he did not really understand the proceedings so he did not know what to do.

37 The Minister submits that the primary judge adopted a comprehensive and generous approach to an unrepresented appellant in the Court below.

38 In particular, the Minister observes that at J [36] the primary judge was mindful of the observations of Colvin and Feutrill JJ to which I have referred earlier in these reasons.

39 It is quite clear that the primary judge explained to the appellant clearly what was involved in the hearing and what the Court was able to do.

40 To the extent the appellant now complains of a lack of understanding, that is not a matter which impugns the primary judge’s decision in any way.

Ground two

41 The appellant could not recall what he meant by ground two but it seemed that he was referring to the refusal of the protection visa per se.

42 Once again, the Minister submits that it is not for this Court or the Court below to consider the merits of the appellant’s claim. That is clearly the case and given this Court has no power to engage in that process, ground two must fail.

43 Overall, the Minister submitted that no appellable error has been shown in the primary judge’s reasons and that the appellant’s oral submissions invite a merits review of a claim that had been rejected by the Tribunal.

44 I accept that submission. The appellant has not identified any basis upon which it can be shown the primary judge’s decision was in error.

Conclusion

45 It is for these reasons that the appeal must be dismissed and there will be an order accordingly.

46 The Minister seeks two further orders. The first is that the first respondent’s name be amended to ‘Minister for Immigration and Citizenship’. There will be an order to that effect.

47 The second is that in the event the appeal is dismissed, the appellant pay the first respondent’s costs fixed in the sum of $5,000.

48 The Minister notes, first, that the amount sought is less than the amount that can be claimed in a short form bill from appeal involving a migration decision that is dismissed after a hearing: Federal Court R ules 2011 (Cth), Schedule 3, item 15. Second, the Minister submits that the amount sought is both reasonable and proportionate to the nature including the complexity of the case.

49 I accept those submissions and there will be an order accordingly.

| I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. |
Associate:

Dated: 21 April 2026