Two Federal Court decisions from the same judge, on the same day, reveal what a judicial review really examines, and the mistakes that keep sinking these cases.
Judicial review at the Federal Court is, for many refused claimants, the last hope. It is also one of the most misunderstood remedies in immigration law, and that misunderstanding is why so many applications fail. Two decisions released by Justice Go on the same day, 24 August 2026, illustrate the point with unusual clarity. Read together, they show what a judicial review actually examines, and the recurring mistakes that sink these cases.
The following is a commentary on public decisions of the Federal Court, provided for education. These were not our files.
The applicant, a national of Nigeria, claimed to fear persecution because of her family’s political profile. The Refugee Protection Division rejected the claim and went further, finding under subsection 107(2) of the Immigration and Refugee Protection Act that there was no credible basis for it. On judicial review she argued the tribunal had misapplied that test and ignored her trauma. The Court dismissed the application. Three lessons stand out.
The applicant tried to file a psychologist’s report and an uncle’s affidavit, both obtained after the hearing. The Court refused to admit them. Judicial review tests the legality of the decision on the record that was before the decision-maker; it is not a fresh hearing. Evidence that, by the applicant’s own admission, did not exist until after the hearing fit none of the narrow exceptions. As the Court noted, arguments of this kind belong in an appeal to the Refugee Appeal Division, not in a judicial review.
The tribunal had identified numerous inconsistencies between the written Basis of Claim, the narrative, and the oral testimony, including a striking contradiction over whether the applicant’s father was alive or dead. It then assessed the corroborating documents and found they could not establish persecution: photographs did not show how or when injuries occurred; a hospital letter confirmed treatment but not what had happened or who was responsible; an affidavit and a police report did not identify the persecutors. The message is blunt but important. Corroborating evidence must establish who did what, and why. Documents proving employment, or that a person was treated in hospital, do not prove persecution.
Counsel argued that trauma had impaired the applicant’s memory and explained the inconsistencies. The tribunal had in fact considered this, and applied the gender guideline, but found no medical evidence of memory impairment and noted that the events were recent. Its conclusion was that the credibility concerns were too severe to be explained by the passage of time or by alleged trauma. A psychological report produced only after the decision could not cure that gap. If anything, it confirmed there had been no such evidence at the hearing.
The applicant, a national of Kenya, feared her estranged husband, said to be a local county assembly member connected to a criminal gang, and feared persecution as a bisexual woman. A senior officer refused her Pre-Removal Risk Assessment. The Court dismissed the review. Two further lessons.
The officer accepted that the applicant is bisexual, but found the objective country evidence did not establish that LGBTQI+ individuals in Kenya face treatment amounting to persecution, whether from the state or from society. On the domestic-violence risk, beyond her own narrative the applicant had produced no evidence that the gang was looking for her, or that her husband had the power or resources to locate her. The onus was hers to prove the claim. Disagreeing with how the officer weighed the evidence is not, in itself, a reviewable error.
This distinction is decisive in many claims. Stigma, social disapproval and even discrimination do not, on their own, meet the legal threshold of persecution or serious harm. Whether the treatment crosses that line is decided on the objective country-condition evidence. A claimant who does not engage with that evidence directly, or who simply asserts that the officer “ignored the totality of the evidence” without pointing to specifics, will not succeed.
Generally no. The Court reviews the decision on the record that was before the tribunal. New evidence usually belongs in an appeal, not a judicial review.
A finding under subsection 107(2) that there was no credible or trustworthy evidence supporting the claim. It also removes the right of appeal to the Refugee Appeal Division.
The applicant. The onus is on you to lead the evidence, and disagreement with the officer’s weighing of it is not a reviewable error.
No. It must reach the threshold of persecution or serious harm, assessed on objective country evidence.
Book a consultation See our refusals and judicial review service →
Immigration, family, corporate or cross-border. We will tell you honestly what can be done, and what cannot.
Book a Consultation对许多被拒的申请人而言，向联邦法院申请司法复议，是最后的希望。它也是移民法中最被误解的救济之一，而这份误解，正是许多案件败诉的原因。Go 法官在同一天（2026年8月24日）作出的两则判决，把这一点展现得格外清楚。两案合读，可以看清司法复议究竟审查什么，以及申请人反复踩中的坑。
以下是对联邦法院公开判决的评析，仅供普及之用；这两个案件并非本所代理。
申请人是尼日利亚公民，称因家庭的政治背景而担心受迫害。移民及难民局难民保护处(RPD)驳回了申请，并进一步依《移民和难民保护法》第107(2)条认定其无可信基础(no credible basis)。在司法复议中，她主张RPD误用了该标准，并忽略了她的创伤。法院驳回了申请。有三点教训尤为突出。
申请人试图提交一份心理师报告和一份叔叔的宣誓书，两者都是在听证之后才取得的。法院拒绝接纳。司法复议审查的是决定在“决策者当时所掌握的记录”之上是否合法，而不是重新开庭。按申请人自己的承认，这些证据在听证之后才存在，不符合任何狭窄的例外。正如法院所指出的，这类主张应当在向难民上诉处(RAD)上诉时提出，而不是在司法复议中。
RPD 认定了书面申请依据(BOC)、叙述与口头证词之间的多处不一致，其中包括“父亲是死是活”这一惊人矛盾。随后它评估了佐证文件，认定这些材料无法确立迫害：照片无法显示伤害如何、何时发生；医院信证明父亲接受过治疗，却无法证明发生了什么、由谁所为；宣誓书与警察报告都没有指明迫害者。这个信息虽然直白，却很重要：佐证证据必须能确立谁做了什么、为什么。证明“受雇于政府”或“在医院接受过治疗”的文件，并不能证明迫害。
律师主张创伤损害了申请人的记忆，可以解释那些不一致。RPD 其实已经考虑了这一点，并适用了性别指引，但认定没有医疗证据显示记忆受损，且相关事件发生不久。它的结论是：可信性问题“严重到无法仅用时间流逝或所称创伤来解释”。一份在决定作出之后才出具的心理报告，无法弥补这一缺口；如果说有什么作用，反而印证了听证时并不存在此类证据。
申请人是肯尼亚公民，担心其分居丈夫（据称是当地县议会议员、与某犯罪团伙有关联），也担心作为双性恋女性在肯尼亚受迫害。高级移民官驳回了她的遣返前风险评估(PRRA)。法院驳回了复议。这里再有两点教训。
移民官接受申请人是双性恋，但依客观国别证据认定：在肯尼亚，LGBTQI+ 群体所面临的对待，无论来自国家还是社会，尚未达到迫害的程度。关于家暴风险，除了自身叙述之外，申请人并未提供证据证明该团伙在找她，或其丈夫有能力、有资源定位她。证明该申请应获批的举证责任在她一方。仅仅不同意移民官对证据的权衡，本身并不构成可复议的错误。
这一区分在许多案件中是决定性的。污名、社会不认同，乃至歧视，本身并不满足“迫害或严重伤害”的法律门槛。是否越过这条线，取决于客观的国别状况证据。一个不去正面回应这些证据、或只是笼统断言移民官“忽视了证据全貌”却不指出具体之处的申请人，不会成功。
一般不能。法院基于“当时在决策者面前的记录”进行审查。新证据通常应走上诉，而非司法复议。
依第107(2)条作出的、认定申请缺乏可信或可靠证据的结论。它同时会取消向难民上诉处(RAD)上诉的权利。
申请人。举证责任在你一方，仅仅不同意移民官的权衡不构成可复议错误。
不等于。必须达到迫害或严重伤害的门槛，并依客观国别证据判断。