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2412103 (Refugee) [2024] ARTA 151 (5 November 2024)

Last Updated: 3 February 2025

2412103 (Refugee) [2024] ARTA 151 (5 November 2024)

Decision and
Reasons for Decision

Statement made on 05 November 2024 at 1:00pm

CATCHWORDS
REFUGEE – protection visa – Morocco – Federal Circuit and Family Court remittal – fear of harm from father and cousins – lifestyle and refusal to marry relative – locked in room and beaten – father and cousins’ political connections – delay in applying for protection – period as unlawful non-citizen, escape from immigration detention, criminal conviction, request for voluntary removal withdrawn and attempted removal abandoned – vague and unconvincing claims and no supporting evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), r 1403(3)(d), Schedule 2
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Schedule 16, items 1, 24(4), (6), (7), (8)

CASES
ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
DQU16 v MHA  [2021] HCA 10 ; 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
Fox v Percy [2003] HCA 22; 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MIEA v Guo [1997] HCA 22; 1997 CLR 559
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v MIEA [1994] FCA 301; 34 ALR 347
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
W375/01A v MIMA [2002] FCAFC 89; 67 ALD 757
2300587 (Refugee) [2023] AATA 1557

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

Statement of reasons

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
2. The applicant is a Moroccan national who claims to fear harm from his father and family in Morocco. The delegate rejected his claims as lacking in credibility. The applicant seeks that the decision of the delegate be reviewed.
3. For the following reasons, I have determined that the decision under review should be affirmed.

BACKGROUND

4. The applicant is a [Age]-year-old Moroccan national who arrived in Australia [in] December 2015 and applied for a protection visa on 9 December 2022.
5. The application for a protection visa claimed to fear harm from his family and because he refused to marry his relative. He claimed that he had been held in a room for over a year and was beaten weekly with a belt and a knife, which left him with scars on his [body]. He claims that if he were returned to Morocco, he would be murdered by his father and cousins. He claimed he could not obtain protection because his family were connected to the police and local government.
6. The delegate invited the applicant to provide additional, specific information supporting his claims on 19 December 2022, including an explanation of the delay in applying for a protection visa.^[1] The information was to be provided within 3 days.^[2] The applicant did not respond to that invitation.
7. On 16 January 2023, the delegate determined the applicant's application for a protection visa. The delegate considered the application on the (incorrect) basis that the applicant was eligible for a Safe Haven Enterprise (Class XE) visa ('SHEV') and refused to grant a SHEV. In reaching that conclusion, the delegate found that the applicant's substantive claims for protection were not credible because of the lack of detail and supporting evidence.

Prior Tribunal proceedings and decision

8. The applicant sought review of that decision in the Administrative Appeals Tribunal ('AAT') and provided a copy of the delegate's decision in support of his application for review.
9. The applicant appeared before the AAT on 6 March 2024, giving evidence and presenting arguments supporting his application. The following day, the AAT affirmed the delegate's decision not to grant the applicant a protection visa.
10. The previous Tribunal found that the applicant's claims were not credible^[3] due to the delay in applying for protection and the lack of detail and plausibility of the claims. The Tribunal found that the applicant’s claims of past and future harm were not credible, resulting in a finding that he did not face a real chance of harm in Morocco.^[4]

Federal Circuit and Family Court of Australia

11. The applicant sought judicial review of that decision, which application was allowed by consent on the basis that the Tribunal had wrongly determined the applicant's application on the basis that it should have conducted the review on the basis that the applicant had applied for a permanent protection visa and not a SHEV.^[5] The review application was remitted to the AAT for further hearing and determination according to law.

Subsequent Tribunal proceedings and decision

12. On 25 September 2024, the applicant was invited to a hearing. That hearing was to be held on 1 November 2024.
13. On 14 October 2024, the AAT was abolished, and the Administrative Review Tribunal ('ART') was established. At the same time, Part 7 of the Act was repealed, and Part 5 of the Act was substantially amended.
14. The transitional provisions contained in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the 'Transitional Act') provide that review applications made to the AAT but not finalised before 14 October 2024 are taken to be applications for review to the ART.
15. The effect of the Transitional Act is that this review application must be continued, as far as possible, by applying the Act in its present form.^[6] Review applications previously dealt with under the former Part 7 of the Act are now dealt with under Part 5 of the Act as 'reviewable protection decisions'. The Transitional Act also expressly provides that:

(a) anything done in, or in relation to, the proceeding before the transition time continues to have effect for the purposes of, or in relation to, the proceeding (as the case requires) after the transition time;^[7]

(b) anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time;^[8]

(c) anything done in, or in relation to, the proceeding before the transition time by the AAT is taken, after that time, to have been done by the ART.^[9]

16. I am satisfied that the applicant was validly invited to a hearing under the 'old law'^[10] and that the invitation to the hearing is taken to have been done by the ART.^[11] I am satisfied that it was fair and efficient to proceed with the hearing on 1 November 2024.
17. The applicant appeared before the ART on 1 November 2024 to give evidence and make submissions. He was unrepresented in relation to the review application. I have listened to the prior hearing before the differently constituted Tribunal.
18. At the hearing on 1 November 2024, the applicant's evidence was that he is the [birth order] of [number] children. He explained that his father is elderly, and his mother is much younger than his father. He could not say how old his father was, but in response to my questions, he explained that his father retired before the applicant finished his schooling, in other words, more than a decade ago. Before his retirement, the applicant claims his father was [an occupation].
19. His evidence was that he finished school when he was around [age range] and left school after year number 10, which was two years short of being able to attend university. He explained that he finished school late because he had to repeat two years of schooling.
20. The applicant repeated his claim that from around late 2014 he was locked in his room by his father for around a year. He claims that this occurred because of the decisions he made to drink, smoke and be out late at night, as well as his ongoing refusal to marry a relative that his father had chosen for him. His father disagreed with those decisions and locked him in his room to punish him. He claims that his father also beat him and left him with scars. He explained that he eventually escaped when his mother arranged for him to travel to Australia on a student visa, let him out of the room and took him to an airport.
21. The applicant explained that he no longer maintained contact with his family in Morocco. Nevertheless, he fears that if he returns to Morocco, his family will become aware of it because of their links to, and employment with, the Moroccan government. If they do so, he fears that he will be harmed or even murdered. The applicant made clear that the only reason he could not return to Morocco was because of the harm he feared from his family. He did not raise any other claims for protection.

CRITERIA FOR THE GRANT OF A PROTECTION VISA

22. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, either they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as such a person who holds a protection visa of the same class.

Refugee criterion

23. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.^[12]
24. A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.^[13] Among other things, persecution must involve serious harm^[14] and systematic and discriminatory conduct.^[15]
25. A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.^[16] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.^[17]

Complementary protection criterion

26. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.^[18] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.^[19]

ANALYSIS, FINDINGS AND REASONS

27. An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.^[20] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.^[21] Rebutting evidence is not required before I can find a particular factual assertion is not made out.^[22]
28. In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs.^[23] There is no Department of Foreign Affairs and Trade Country Information Report regarding Morocco.

Visa application

29. The applicant applied for a permanent Protection (Class XA) (subclass 866) visa using a form specified for that purpose. Yet, the delegate considered his application to be for a SHEV. That was incorrect. The applicant's movement record indicates that he was immigration cleared into Australia and, as such, could validly apply for a permanent protection visa.
30. To avoid doubt, I proceed on the basis that the applicant applied for a permanent Protection (Class XA) (subclass 866) visa.

Country of nationality

31. The applicant claims to be a national of Morocco. The applicant travelled to Australia on a passport from that country and has previously been issued a laissez-passer by that country.^[24] I am satisfied that Morocco is the applicant’s country of nationality and the receiving country.

Does the applicant satisfy the refugee criterion?

32. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.^[25]

Credibility

33. As the applicant himself recognised at the hearing, his protection claims are based entirely on his evidence, and he has no objective or supporting evidence. He did not seek that I obtain evidence from any witnesses. Moreover, his claims are personal to him in that he claims to fear harm from his family members. In the circumstances, and for the following reasons, I consider his credibility important in resolving this review application.
34. Assessing credibility is a difficult task,^[26] which should be careful, thoughtful, and conducted fairly and reasonably.^[27] Inconsistencies may or may not be significant^[28] and allowances may be required where an account is given through an interpreter.^[29] Additionally, I recognise that applicants for protection are often unable to provide documentary or other supporting evidence of their claims. Indeed, that is why I should usually give the benefit of the doubt to those who are generally credible but cannot substantiate their claims.^[30]

Does the applicant have a well-founded fear of persecution?

35. The applicant has consistently claimed that his father locked him in a room for around one year. He has consistently claimed that his father disagreed with the applicant's lifestyle choices and refused to submit to an arranged marriage.
36. I am concerned about the credibility of the applicant's claims and evidence. For the following reasons, I conclude that the applicant’s claims and evidence regarding the harm he claimed to fear are not credible.
37. The applicant claims he fled to Australia on a student visa after being liberated by his mother. He claims he no longer had sufficient funds to continue his studies after a single term. However, he conceded that rather than apply for an alternative visa, he knowingly overstayed his existing visa and relocated interstate to [Town], WA, where he understood he would be paid cash.
38. The applicant concedes that he was detained as an unlawful non-citizen in 2018. He also conceded that after he was detained, he did not apply for a protection visa or any visa. Instead, following a transfer to Melbourne Immigration Transit Accommodation, he escaped from immigration detention and eventually returned to [Town].
    He concedes that notwithstanding his having already been detained once as an unlawful non-citizen, he did not then seek to apply for any visa, in particular, a protection visa application or seek any advice about his visa options.
39. The applicant was arrested by WA Police around July 2018 and charged with possession of cannabis with an intention to sell or supply. He was remanded in custody. Around eight months later, in 2019, the applicant was convicted of the offence and sentenced to the time he served. He again concedes that he did not apply for a protection visa whilst in custody. Rather, whilst he was in custody, the applicant claims – and I accept – that he was visited by Australian Border Force officers and signed a voluntary request to be removed from Australia. He claims that he signed the request because of his poor experiences whilst he was in custody.
40. The applicant further explained that the Department did not arrange his removal from Australia and that, eventually, he withdrew his request. He claimed that this was around the COVID-19 pandemic but also claimed that it may have been in 2021 or 2022.
41. In my view, nothing turns on when the removal request was withdrawn. If it were earlier than 2021, his delay in applying for protection would have been longer. If it had been later, say, in 2022, then the period he was prepared to return to Morocco voluntarily would have been longer. Both conclusions undermine the credibility of the applicant's claims to fear harm.
42. Nevertheless, the applicant explained that he withdrew his request because the Department had taken too long to return him to Morocco. He claims that the Department referred to COVID-19 as a reason he could not be removed for such a period. He also claimed that by the time he withdrew his request, his 'mind came back,' and he had put his time in prison behind him.
43. The applicant explained that the Department had attempted to remove him (and others) from Australia in August 2022 but that the chartered flight could not land in Morocco as the authorisation to land had previously been granted but was rescinded. This led to him spending considerable time on the plane and eventually returning to Australia five days after leaving.
44. Notwithstanding this failed attempt to return the applicant to Morocco in late August 2022, the applicant still did not apply for a protection visa until December 2022.
45. I raised my concern with the applicant that his evidence about what had occurred to him in Morocco seemed vague and lacking in detail. In response, the applicant said he had no evidence, which he attributed to his lack of contact with his family. He also referred to his lack of legal representation and knowledge.
46. Whilst I acknowledge that the applicant might have been unfamiliar with the visa process in Australia and did not have legal representation, that is not uncommon for persons in his situation. Nevertheless, the applicant gave no evidence that he made any real attempt to meaningfully explore his visa options, even after he had been detained once. Moreover, even if the applicant has no objective or corroborating evidence, it does not satisfactorily explain why the evidence of his past experiences was vague, lacking in detail and did not appear to involve the applicant recalling a past lived experience.
47. I also raised concern about the applicant's failure to apply for a protection visa for around seven years after he arrived in Australia, despite being in immigration detention on two separate occasions for a large part of that period. I raised my concern that a person who had a genuine fear of harm in Morocco might be expected to raise those claims promptly and that not only had the applicant not raised those claims promptly, but he had also requested to be returned to Morocco. I explained that these matters might undermine the credibility of his claims to genuinely fear harm in Morocco. The only response the applicant gave to these matters was that the concerns raised made 'good sense' adding that people wanted him to sign a removal request and that even though other detainees had offered to assist the applicant and just asked him what he wanted to do, the applicant claimed that he didn't know what he could apply for.
48. In considering the applicant's evidence, I place weight on what I find to be a significant and insufficiently explained delay in his application for a protection visa. The lack of legal representation and knowledge of the Australian migration system while offering some explanation is insufficient in the circumstances of this case. Even after the applicant escaped immigration detention, he did nothing to explore his visa options. That does not reflect well on him.
49. The delay in seeking protection is compounded by the applicant's having spent a not-insignificant period on a removal pathway back to Morocco that he had voluntarily requested. Indeed, despite the unsuccessful attempt to return the applicant to Morocco, there was still a nearly 3-month delay before the current protection visa application was made.
50. I also place weight on my conclusion that the applicant's evidence about the past harm he claims to have experienced is vague, unconvincing, and lacking in detail. It did not present as a narrative that involved a lived experience. I did not consider that the applicant was 'generally credible' when it came to his protection claims at all. I do not accept that the applicant is a credible witness or that his claims of past harm are credible or believable. I find that his claims of past harm are contrived, and I do not accept them.
51. I am not satisfied that the applicant was being forced to marry a relative or that his father was angry or disagreed with his refusal to do so. I am not satisfied the applicant was harmed by his father or any other family member in any way. I am not satisfied he was beaten or harmed with a knife or otherwise. I am not satisfied with the scars he claims to have from being beaten by his father and others. I am not satisfied that he was locked in a room for around a year or any period. I am not satisfied that if the applicant were to return to Morocco, his father or his family would become aware of that fact because of any association with the government.
52. In view of my findings above, I am not satisfied that if the applicant returned to Morocco, there is a real chance, now or in the reasonably foreseeable future, that he would be harmed in any way by his father, his father's family, or for any of the reasons claimed by him.
53. At the hearing, the applicant did not claim to fear or be at risk of harm for any reason other than in respect of his family. The applicant conceded that he could work in [work sector] if he returned to Morocco. That concession was consistent with his previously constituted concession before the Tribunal.
54. Whilst the applicant did not claim to fear harm because of his criminal convictions, I have nevertheless considered such a claim as the previous Tribunal considered it. Having done so and in the circumstances, I am not satisfied the applicant faces a real chance of harm, now or in the reasonably foreseeable future, on this basis if he were to return to Morocco.
55. I have also considered the applicant’s claims cumulatively. Having done so, I am not satisfied that the applicant faces a real chance of harm, now or in the reasonably foreseeable future, if he were to return to Morocco for any reason.
56. For the above reasons, I am not satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act or that the applicant is a refugee within the meaning of the Act.
57. The applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act.

Does the applicant satisfy the complementary protection criterion?

58. To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Morocco, there is a real risk that they will suffer significant harm.^[31]
59. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.^[32] Where claims overlap, I am permitted to refer to and rely on my relevant findings when considering the refugee criterion under s 36(2)(a) when assessing whether the applicant satisfied s 36(2)(aa) of the Act.^[33]
60. For the same reasons that I have found that the applicant does not face a real chance of harm above, I find the applicant does not face a real risk of harm if he were to be returned to Morocco. On that basis, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Morocco, there is a real risk that they will suffer significant harm. I am not satisfied that the applicant will be exposed to significant harm for any other reason, including on a cumulative consideration of their claims.
61. For the above reasons, the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

CONCLUSION

62. The applicant is not a person for whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa) and find that the applicant is not a person for whom Australia has protection obligations under s 36(2)(aa).
63. There is no suggestion that the applicant satisfies s 36(2) by being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

64. The Tribunal affirms the decision under review.

^[1] Delegate's decision, p 2-3; correspondence form the Department dated 19 December 2022.
^[2] Correspondence form the Department dated 19 December 2022.
^[3] 2300587 (Refugee) [2023] AATA 1557 [21]-[23].
^[4] 2300587 (Refugee) [2023] AATA 1557 [30].
^[5] See Migration Regulations 1994 (Cth), r 1403(3)(d).
^[6] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(4).
^[7] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(6).
^[8] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(7).
^[9] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(8).
^[10] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 1.
^[11] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(8).
^[12] Migration Act 1958 (Cth), s 5H(1)(a).
^[13] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
^[14] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
^[15] Migration Act 1958 (Cth), s 5J(4)(c).
^[16] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
^[17] DQU16 v Minister for Home Affairs [ 2021] HCA 10 ; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
^[18] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
^[19] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
^[20] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).
^[21] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
^[22] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).
^[23] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
^[24] Delegate's decision, p 1.
^[25] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
^[26] See Fox v Percy [2003] HCA 22; 214 CLR 118 [31] citing Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348.
^[27] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [22]–[28] (Kenny, Griffiths and Mortimer JJ).
^[28] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
^[29] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
^[30] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 [203]-[204].
^[31] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
^[32] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).
^[33] DQU16 v Minister for Home Affairs [ 2021] HCA 10 ; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.