AAH24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 281
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 281
File number: PEG 3 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 28 February 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal considered irrelevant information – whether the Tribunal’s decision is illogical, irrational or unreasonable – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 and Item 25
Migration Act 1958 (Cth), ss 5H, 5J, 36, 422B & 476 and Division 4 in Part 7
Cases cited: AKA24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1434
ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
DAO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 185
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 14 October 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Gutmann Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 3 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAH24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 11 December 2023 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time the application for judicial review was filed in this Court, the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything that the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter) substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
Applicant’s migration history
A detailed overview of the background for this matter was provided by the Minister in written submissions (filed in this Court on 30 September 2024). The Court has cross referenced the summary provided with the materials contained in the Court Book (“CB”). The summary provided is accurate and the Court adopts it as its own. Relevantly, with minor amendments and additions, it provides as follows.
The applicant is a citizen of Malaysia (CB 34 & 54). He arrived in Australia in August 2017 as the holder of an Electronic Travel Authority (Class UD) (subclass 601) visa (CB 40 & 71).
On 13 October 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 22-53 & 71).
The applicant claimed to fear harm in Malaysia on the bases that (CB 49-51):
(a)he had been involved in a gay relationship in Malaysia which contradicted Malaysian law so both he and his partner decided to move to Australia;
(b)in Malaysia, he and his boyfriend were teased, talked badly to, and bullied. This affected his mental health and his family did not accept the relationship;
(c)if he returned to Malaysia he would be jailed for continuing the relationship and could not obtain any help from the government; and
(d)being transgender is prohibited in Malaysia.
On 1 February 2018, a delegate (the “delegate”) of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 71-80). The delegate was not satisfied that the discrimination and harassment faced by the applicant in Malaysia amounted to serious harm for the purpose of s 5J of the Act (CB 74). On the same basis, the delegate was not satisfied that the applicant’s circumstances gave rise to a real risk that he would be subjected to any form of significant harm as per s 36(2)(aa) of the Act (CB 75).
On 25 February 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 81-82).
On 10 August 2023, the Tribunal asked the applicant to complete a pre-hearing information form and return it within seven days (CB 91). The completed form was returned by the applicant (via email) on 17 August 2023 (CB 92-97).
On 3 November 2023, the Tribunal invited the applicant to attend a hearing before it on 1 December 2023 to give evidence and present arguments in support of his application (CB 99-110).
On 4 November 2023, the applicant returned a further (completed) pre-hearing information form to the Tribunal (via email) (CB 111-116). In that form, he raised the following additional claims (CB 115):
(a)things did not go as planned and the applicant’s boyfriend never came to Australia, leaving him upset and heartbroken;
(b)he did not want to see his ex-partner who resides in the same hometown in Malaysia;
(c)he decided to start a new life in Australia as 99% of the population in his hometown are Muslim; and
(d)for the last four years he had been living and working in Australia.
On 1 December 2023, the applicant attended the Tribunal hearing (CB 145-148). He was assisted at that hearing by a Malay interpreter (CB 145).
The applicant amended his claims again during the course of the Tribunal hearing, as follows:
(a)he no longer identified as homosexual, was back to “normal” and was only a homosexual for two years in Malaysia. He had not engaged in any homosexual activities in Australia and would not engage in any homosexual activities if he returned to Malaysia (CB 160 at [32]; CB 161-162 at [38]);
(b)he met with his ex-partner in a car in secret for two years. They were then caught kissing by strangers and the news spread throughout the local community (CB 160 at [33]);
(c)his family were aware of the relationship, they were angry but did not speak of it and he had no concerns that his family would not accept him if he returned to Malaysia (CB 160-161 at [33]-[34]; CB 161 at [37]);
(d)he was never physically abused while in Malaysia and the only consequences he faced were to give up playing soccer and, on one occasion, he was not allowed to enter the local mosque (CB 161-162 at [38]);
(e)his family had never received any backlash from his actions and still attended the local mosque (CB 161-162 at [38]); and
(f)he did not want to return to Malaysia because he was comfortable living in Australia (CB 162 at [39]).
On 11 December 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 154-167).
By way of an application filed on 30 December 2023, the applicant now seeks judicial review of the Tribunal’s decision
THE TRIBUNAL’S DECISION
The application for judicial review was filed pursuant to section 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in detail.
As this Court has previously explained, it is generally reluctant to extract large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons as this helps draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when (as was the case here) the grounds of review filed by the applicant lack particulars, when the applicant appeared before the Court without legal representation and when the applicant was unable to articulate any concerns he might have had about the Tribunal’s decision.
The Tribunal’s decision in this matter is 14 pages long and spans 49 paragraphs (CB 154-167). The final three pages include extracts of relevant legislative provisions (CB 165-167).
The Tribunal began by outlining the criteria for a protection visa, highlighting the scope and effect of s 36 of the Act and s 5J of the Act and the distinction between the refugee criterion and the complementary protection criterion (at [4]-[8]).
The Tribunal then summarised the applicant’s protection claims as set out in his visa application, as follows (at [10]):
•The applicant was in a gay relationship with his boyfriend for a long time. They decided to leave Malaysia and come to Australia. His boyfriend will be coming to Australia soon.
•In Malaysia, they were teased, talked badly to, and bullied. This affected the applicant’s mental health. His family did not accept the relationship.
•The applicant could not get assistance from the government, as the government did not allow these types of relationship. They could not move to another area as they would be treated the same in all areas.
•If returned, the applicant will face the same treatment as he had in the past. He will go to jail if he continues with his relationship and the government will not assist him as his situation contradicts the country’s laws and rules. He cannot relocate as all states apply the same law.
•Transgender is prohibited in Malaysia.
The Tribunal explained that the applicant had been invited to attend a hearing before it on 3 November 2023 and that, in a pre-hearing information form (signed and dated on 4 November 2023), the applicant had provided the following additional information (at 15]):
•Things did not go as planned and the applicant’s boyfriend never showed up. The applicant was left upset and heartbroken.
•The applicant does not want to return home and face hard time, being bullied, ‘community harm and hate’. He does not want to see his ex-partner who resides in the same hometown.
•There are 285,065 people in the sate (Terengganu), 30,000 people in the applicant’s hometown, 99 per cent of whom are Muslims. That was the reason he decided to start a new life with his ex-partner in Australia five years ago.
•The applicant has been living at [place omitted] and working at [business name omitted] for the last four years.
The Tribunal continued:
16.On 26 November 2023, the applicant provided the Tribunal with reference letters from his employer and landlord. The letters attest to the applicant’s good character. The letters do not include any information regarding the applicant’s claims for protection. As discussed with the applicant at the hearing, given that the letters do not include any information, corroborative or otherwise, about his claims, they have no bearing on the assessment of the applicant’s claims.
The Tribunal then detailed and accepted the applicant’s evidence about his educational and employment history in Malaysia (at [23]).
The Tribunal outlined its approach when making credibility assessments, highlighting the need for sensitivity in relation to the difficulties faced by asylum seekers (including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, stress caused by separation from home and family, memory issues resulting from the lapse of time and cultural issues which affect how an applicant may answer questions) (at [26]).
The Tribunal then outlined the applicant’s claims for protection before it and the evidence given by him when questioned by the Tribunal, summarising that evidence as follows:
(a)in his protection visa application, the applicant claimed that he was in a homosexual relationship “for a long time” in Malaysia, that he and his boyfriend decided to leave the country and that the applicant’s boyfriend was to join the applicant in Australia. In his pre-hearing form (in November 2023), the applicant claimed that his boyfriend never showed up, leaving him heartbroken (at [29]);
(b)when asked by the Tribunal why he had departed Malaysia, the applicant stated that he was in a gay relationship and everyone was against them. The applicant came to Australia first and his partner was supposed to come later. The applicant claimed that he did not hear from his ex-partner after he came to Australia (at [30]);
(c)when asked about his partner in Malaysia, the applicant stated that his partner [name omitted] was younger than the applicant and they knew each other from playing soccer. When asked if there were any further details that he could provide, the applicant referred to his ex-partner being sporty (like him) and that his ex-partner had been working as an electrician. The applicant said that he did not know his ex-partner’s family very well and that his ex-partner only talked about his family “a little bit”, but he knew his brothers because they all played soccer together (at [31]);
(d)when asked when he realised that he was homosexual, the applicant stated that he was no longer a homosexual, that he was back to “normal” and he was only a homosexual in Malaysia for two years when he was in a relationship with his ex-partner (at [31]);
(e)the applicant claimed that when he was about 24 years old, he broke up with his girlfriend and it was then that he met up with his ex-partner (who he knew from soccer). The applicant claimed that they became close and, about a month later, after confessing their feelings for one another at a party, they entered into a relationship and stayed together for two years (at [32]);
(f)the applicant told the Tribunal that they did not tell anyone about the relationship and kept it a secret from everyone because they were both from Muslim families and knew that everyone would be against them so they acted like normal in public. One month prior to his departure in 2017, they were caught by three or four strangers (men that they did not know), while they were kissing in a car. The strangers told them to stop, that they were Muslims and it was against their religion. The applicant and his ex-partner apologised to the men. The applicant claimed that after that incident, the strangers told the community and the news spread (at [33]);
(g)the applicant claimed that after that incident, he stopped being active in the community and that he was told by his soccer mates to go away and to stop playing. The applicant also mentioned an incident where he tried to enter a mosque for Friday prayers and a man told him to go away (with others joining in). The applicant also claimed that he overheard someone saying that they were going to kill him. The applicant returned home and did not tell his family because he did not want them to “feel threatened” and only his parents knew about the situation (at [34]);
(h)following those incidents, the applicant and his partner decided to leave the country but his partner never came and he never heard from him. The applicant claimed that he did try to contact his ex-partner (by calling and texting him) for a year but was unsuccessful. However, the applicant did not have any evidence of that attempted contact (at [35]);
(i)the applicant also had no evidence that his family members or others knew about the incidents in Malaysia and he had not gathered any such evidence in the six years since arriving in Australia (at [36]);
(j)despite the applicant’s assertion that his family did not say anything but were angry after he was caught by the strangers, the applicant confirmed that he is on good terms with his family in Malaysia (at [36]);
(k)the applicant did not indicate that he would try to get any supporting evidence, instead saying that he could have obtained evidence five or six years ago but could no longer do so as it had been a long time since he had spoken about those issues to anyone (at [36]);
(l)the applicant was referred to his evidence (in his protection visa application) that his friends teased him and his boyfriend, talked badly to them, bullied them and that his family did not accept him. The applicant claimed that because his family allowed him to leave for Australia, that made him think that they no longer wanted him to be with them. However, the applicant said that was not the case and he had no concerns that his family would not accept him if returned to Malaysia (at [37]);
(m)the applicant also confirmed that neither he nor his ex-partner were ever beaten while he was in Malaysia, although he did not know what has happened to his ex-partner since (at [37]);
(n)the applicant confirmed that he no longer identified as a homosexual and would not engage in any homosexual activities if returned to Malaysia. He also confirmed that he had not engaged in any homosexual activities in Australia and that, once he came to Australia, he “freed” himself from all that (at [38]);
(o)regarding his fears of returning to Malaysia, the applicant said that he thought that the community would not accept him because of what he did (at [38]);
(p)the applicant said that the community had not reported him to the police after he was caught, he was never physically abused and that the only consequences he faced were giving up playing soccer and being denied entry to the mosque on one occasion. However, his family and his brothers continue to attend the local mosque and have not faced any issues because of the applicant (at [38]);
(q)about a month after his departure, a man came to his family restaurant asking for him but his mother told the man that the applicant had gone to Australia. That man did not disclose his reason for seeking the applicant (at [38]);
(r)the applicant was given a break at the hearing to think about what he had discussed and to consider whether there was any further information that he wished to provide to the Tribunal. The applicant was also given several opportunities to provide information at the hearing relating to whether he feared returning to Malaysia for any reason (at [39]); and
(s)the applicant confirmed that he did not have any further evidence nor feared returning to Malaysia for any other reason. The applicant also stated that the reason he did not want to return to Malaysia was because he was comfortable living in Australia (at [39]).
On the basis of the above, the Tribunal determined as follows:
40.While I am mindful that there is a diversity of experience in relation to sexuality, both in how a person may feel about it, and how they express it, and that claims of sexual orientation can be difficult to substantiate, I found that the applicant was not forthcoming and very reluctant to provide basic information about his claimed ex-partner, how they managed to keep their relationship a secret for a period of two years, and his claimed experiences with the community after he was caught. The applicant presented his evidence about his experiences in Malaysia in a vague manner, needed continued prompting to provided information and provided very little details to questions asked. In addition to the manner he presented his evidence, the applicant provided inconsistent evidence about whether he made any contact with his ex-partner after his ex-partner did not come to Australia as planned. Furthermore, the applicant stated that he could not provide any evidence to support his claims that he was in a two-year relationship with his ex-partner, or that he tried to reach his ex-partner from Australia. While the applicant asserted that he would have been able to obtain supporting evidence about his experiences in Malaysia five or six years ago, he did not explain the reason for his failure to obtain this information when he could. As put to the applicant at the hearing, given that he made an application claiming that he needs protection based on his experiences in Malaysia, I find it concerning that he did not and has not attempted to gather any evidence in support of his claims.
41.On the evidence before me, while I accept that the applicant knew [his ex-partner] in Malaysia because they played soccer together, and that he has also met [his ex-partner]’s brothers who also played soccer, I am not at all satisfied that the applicant was in a relationship with this person for a period of two years or that they were caught in a car kissing a month prior to the applicant’s departure from Malaysia. I do not accept that the applicant, as claimed at the hearing, ‘freed’ himself from homosexuality because of his experiences in Malaysia or because he was left heartbroken by his ex-partner who did not come to Australia. I am not satisfied that the applicant has ever identified as a homosexual or was imputed as being homosexual in Malaysia. He confirmed that he has not engaged in any homosexual activities while in Australia and will not on return to Malaysia. On the applicant’s evidence, I am not satisfied that the applicant is at a real chance of any harm if returned to Malaysia for this reason or otherwise.
The Tribunal then explained that, even if it accepted that the applicant was in a homosexual relationship in Malaysia as claimed (which the Tribunal did not):
42.….the only reason that the applicant does not want to return to Malaysia is because he believes that he will not be accepted by his community due to an incident that occurred over six years ago. The applicant was referred to his evidence that nothing serious happened to him then, in that he was not reported to the police or otherwise harmed. While he claims that he gave up playing soccer and on one occasion was stopped from entering the mosque, his evidence is that he continued to work at his family restaurant until his departure for Australia, that after his departure his family did not face any harassment nor were they prevented from going to the mosque. It was explained to the applicant that to engage Australia’s protection obligations, the Tribunal is to be satisfied that there is a real chance that he would face serious or significant harm, and that on his evidence, I did not consider that there was a real chance that he will face serious or significant harm if returned to Malaysia. The applicant was offered to provide a response or any further evidence that he wished to be considered in this regard. The applicant stated that he did not wish to say anything further and asked if the Tribunal received the letter from his employer. It was explained to the applicant that while the letters support a conclusion that he has been working in Australia and is of good character, they do not include any information in support of his claims for protection and bear no real relevance in assessment of his claims. The applicant indicated that he understood the issues.
43.At the hearing the applicant was also referred to his evidence in his protection visa application that being transgender is prohibited in Malaysia and asked whether he was or was claiming to be transgender. The applicant stated that the reason he put that in his protection visa application was because he was claiming to be homosexual and confirmed that he was not transgender nor claiming to fear harm on this basis.
The Tribunal then assessed whether the applicant was entitled to either refugee or complementary protection:
44.Considering the applicant’s circumstances as a whole and in light of what I have accepted of his claims, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act. He does not meet the requirements of the definition of refugee in s 5H(1) of the Act nor the criterion under s 36(2)(a) of the Act.
45.I have considered the alternative criterion in s 36(2)(aa) of the Act, which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk that he would suffer significant harm. The Federal Court has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. For the same reasons cited above, I am also not satisfied that the applicant faces a real risk of significant harm if returned to Malaysia.
On the basis of the above, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 30 December 2023) contains two grounds of review, as follows (without alteration):
1.The tribunal considered irrelevant information.
2.The tribunal did not afford me procedural fairness.
On 21 March 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The applicant appeared before the Court (on 14 October 2024) without legal representation but with the assistance of a Malay interpreter. The Court confirmed with him that he had received copies of the Court Book and the Minister’s written submissions. Ms Gabrielle Gutmann from Minter Ellison Lawyers appeared at the hearing on behalf of the Minister.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 30 December 2023 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 169 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 30 September 2024.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks, even if the Court disagrees with the Tribunal’s ultimate findings. Instead, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant told the Court that “in [his] opinion, the Tribunal did not make any mistake”. Instead, the applicant explained that he was concerned that he “did not provide enough evidence to the Tribunal” or properly explain his need for protection.
CONSIDERATION
The applicant’s grounds of review are not particularised, no written submissions were filed by the applicant and the applicant’s oral submissions did not address the issue of jurisdictional error. Indeed, as noted above, the applicant’s only submission to this Court was that there was no error on the part of the Tribunal and that he should have presented other evidence to the Tribunal.
Noting that the applicant was unrepresented, the Court will interpret the applicant’s grounds of review as widely as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
Ground one
As outlined above, ground one provides as follows:
1.The tribunal considered irrelevant information.
As explained above, the applicant did not clarify to the Court what “irrelevant” information he thought was considered by the Tribunal.
Having reviewed the Tribunal’s decision in in detail, it is evident that the Tribunal considered the following information when assessing the applicant’s protection claims:
(a)the applicant’s oral evidence presented at the hearing on 11 December 2023 (at [22]-[24] & [30]-[39];
(b)the applicant’s protection visa application form (at [11]);
(c)the delegate’s decision (at [11]-[12];
(d)the applicant’s Malaysian passport (at [21]);
(e)“Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department of Home Affairs”;
(f)case law relevant to the issue of credibility assessments (at [25]-[28]);
(g)the applicant’s pre-hearing information form dated 4 November 2023 and the additional information contained therein (at [15]); and
(h)reference letters provided by the applicant from his employer and landlord (none of which, the Tribunal determined, address the applicant’s claims for protection and which, as such, bore no bearing on the Tribunal’s assessment of the applicant’s claims.
The Tribunal also confirmed that it had regard to the relevant DFAT Report (as it was required to do by the relevant Ministerial Direction) (at [9]).
The Court also notes that the Tribunal had regard to (and made findings in relation to):
(a)the applicant’s personal background, including his education and work history (at [21]-[24]);
(b)the applicant’s claimed (and conflicting) sexual identity as a gay male (at [32], [38] & [40]-[41]);
(c)any claimed incidents of harm (at [33]-[37] & [42]);
(d)the nature of his claimed relationship with his same-sex partner in Malaysia (at [31]-[33]);
(e)the applicant’s decision to travel to Australia (at [29]-[30] & [35]);
(f)the applicant’s decision to lodge a protection visa application (at [34]-[36]); and
(g)the applicant’s current situation and why he did not want to return to Malaysia (at [39]).
The Tribunal then made findings about the applicant’s claims to fear harm in light of the refugee criterion and the complementary protection criterion.
Ultimately, the Tribunal concluded as follows (at [41]-[42]):
(a)while it accepted that the applicant knew his claimed same sex partner in Malaysia (because they played soccer together), the Tribunal was not satisfied on the evidence that the applicant was in a relationship with this person for a period of two years or that they were caught kissing in a car;
(b)it did not accept, contrary to the applicant’s oral evidence that he had “freed” himself from homosexuality;
(c)it was not satisfied that the applicant had ever identified as a gay male or was imputed as being a gay male in Malaysia. Nor had he done so in Australia. Nor would he do so if he returned to Malaysia; and
(d)even if it accepted that the applicant had been in a homosexual relationship in Malaysia as claimed (which the Tribunal did not accept), the only reason that the applicant does not want to return to Malaysia is because he believes that he will not be accepted by his community due to a single incident that occurred over six years ago. The applicant’s oral evidence was that nothing serious happened to him before he left Malaysia (that is, he was not reported to the police or otherwise harmed), he continued to work at his family restaurant until his departure for Australia, after his departure his family did not face any harassment and they were not prevented from attending the local mosque.
Those findings (all of them derived from the applicant’s own evidence) ultimately led the Tribunal to determine that the applicant did not meet the criteria for the grant of the visa (at [69]-[71]).
The Court is satisfied that the information considered by the Tribunal was relevant.
Reading ground one as widely as possible and noting that the applicant was unrepresented before this Court, the Court has assessed for itself whether the Tribunal’s decision and approach in relation to the evidence before it is illogical, irrational or unreasonable.
An overview of the relevant jurisprudence in relation to illogicality and unreasonableness was most recently canvassed by this Court in DAO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 185. The Court repeats the overview provided in that judgment below.
As explained by the High Court of Australia in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Further, legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were also summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Having reviewed the Tribunal’s decision in this matter, it cannot be said that it is illogical, irrational or unreasonable.
Findings in relation to sexual identity are notoriously complex and decision makers asked to do so should tread cautiously – something the Tribunal in this matter emphasises (at [25]-[28] in relation to credibility findings generally and at [40] in relation to sexuality specifically).
Recently, this Court again cautioned the Tribunal in relation to findings that, in essence, deny protection because of an incorrect assumption that a lesbian or gay male has the “option” of hiding their sexuality should they be denied a protection visa and be returned to a country like Malaysia: AKA24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1434.
These concerns do not arise here. On the evidence before it, and after questioning the applicant, the Tribunal simply determined that the applicant was not a gay male, had never identified as such and would not do so in the future. Further, having assessed the applicant’s one claimed incident of alleged harm, the Tribunal determined that there was simply insufficient evidence to find that there was a real chance that the applicant would face serious or significant harm in the future.
Ultimately, the Tribunal simply did not accept that the applicant was at risk of harm should he return to Malaysia.
Having reviewed the Tribunal’s decision in detail, it is evident that the Tribunal drew conclusions that were open to it on the evidence before it. While this Court might have determined differently, that is not the test on review. Rather, the Court must ask whether it can be said that the Tribunal’s decision demonstrates a failure to attend “conscientiously and appropriately to its statutory obligations” (SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 at [10] per Allsop J (as His Honour then was)) or whether the Tribunal has made findings that no logical or rational decision-maker could have made.
Having assessed the Tribunal’s decision in detail, it cannot be said here that the Tribunal failed to do that which it was required to do.
No jurisdictional error arises in relation to ground one.
Ground two
Ground two states:
2.The tribunal did not afford me procedural fairness.
Arguably, by ground two, the applicant suggests that that the Tribunal failed to comply with its obligations under s 422B of the Act. That is, the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule.
As previously explained by this Court in ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67, Division 4 of Part 7 of the Act (as was in force at the time of the Tribunal’s decision) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
Having assessed the Tribunal’s approach to this matter, the Court agrees with the Minister that the Tribunal did all that it was required to do in this regard.
By way of background, the Court notes the following procedural history:
(a)on 27 February 2018, the applicant was advised that his application for review had been received by the Tribunal (CB 83-85);
(b)with that email correspondence, the applicant was also given a copy of the Tribunal’s information package, detailing what would occur prior to any hearing (CB 86-90). Relevantly, the applicant was advised again that he could provide written submissions and any other relevant material to the Tribunal for consideration (CB 89);
(c)on 10 August 2023, the applicant was asked to complete a pre-hearing information form (CB 91);
(d)on 3 November 2023, the applicant was invited to a hearing before the Tribunal to give evidence and present arguments (CB 99-110). The applicant was again advised that he could provide any relevant documentation to the Tribunal via an Information Fact Sheet (CB 103-107); and
(e)the applicant completed a pre-hearing information form (CB 112-116) and, relevantly, on that form amended his protection claims (CB 115).
Further, as emphasised by the Minister (at [22] in written submissions filed in this Court on 30 September 2024):
(a)the applicant attended a hearing before the Tribunal which ran for nearly two hours (CB 145-148);
(b)the applicant was on notice of the dispositive issue in the review by virtue of both the delegate’s decision and the Tribunal’s comments at the hearing (CB 157 at [18]): SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(c)the Tribunal identified specific credibility concerns and put those concerns to the applicant at the hearing (CB 157 at [16]; CB 161 at [36]; CB 163 at [42]); and
(d)the applicant was given a break at the hearing in order to think about the issues discussed and to consider whether there was any further information that he wished to be considered or discussed (CB 162 at [39]).
In light of the above, the Court is satisfied that the Tribunal gave the applicant ample opportunity to provide evidence in support of his case. The Court is also satisfied that the applicant was afforded natural justice in this matter.
No jurisdictional error arises in relation to ground two.
CONCLUSION
The application for judicial review (filed by the applicant on 30 December 2023) has failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 February 2025
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