Aiy23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 354
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 354
File number(s): MLG 209 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – where Applicant gave evidence before Tribunal that someone else wrote the visa application and the claims for protection were false – whether the Tribunal failed to consider applicant’s potential economic circumstances in home country – found no jurisdictional error on behalf of the Tribunal. Legislation: Migration Act 1958 (Cth) pt 7, div 4, ss 36(2), 425, 425A, 474, 476
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 sch 2, pt 2, div 1, it 3.
Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 2 April 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Slevison of Australian Government Solicitor The Second Respondent: Submitting appearance save as to costs ORDERS
MLG 209 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIY23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The Application filed 9 February 2023 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $5,100.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 9 February 2023, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 18 January 2023. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (Visa).
CONTEXT
The applicant is a citizen of Malaysia.
On 19 July 2016 the applicant entered into Australia on a UD-601 Electronic Travel Authority visitor visa.
On 19 May 2017 the applicant applied for the Visa. The applicant’s claims were set out in his Visa application. Relevantly, the applicant claimed that:
(1)he left Malaysia because he was not feeling secure anymore;
(2)there were many cases of racial conflict between the Malays and the Chinese and the “ruler party” kept playing with racial sentiments which created hatred between “major races” in Malaysia;
(3)people did not trust the Malaysian police due to corruption;
(4)there was a bad economy, an excessive abuse of power by the authorities, a lack of freedom of speech and increased crime in Malaysia, making it “not a good place to live anymore”;
(5)he has been harassed and arrested several times by authorities and if he returns to Malaysia, he may be harmed or arrested “without fair trial”;
(6)there is “no point” in relocating in Malaysia as the conditions are the same for the entire country and it would be “hard” for him to “rebuild” his career; and
(7)if he returned to Malaysia, he would be subjected to “financial hardship’ and “abuse of power by authorities”.
On 25 August 2017 the Delegate refused to grant the applicant the Visa. The Delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act).
On 15 September 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 21 September 2017, the Tribunal emailed the applicant confirmation of receipt of his application. On the same day, the email returned to sender. On 27 September 2017, the Tribunal posted the applicant confirmation of receipt of his application. The applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 28 August 2019 the Tribunal called the applicant on his mobile number and requested he provide his correct email address for correspondence. The applicant provided the Tribunal with the correct email address for correspondence and the Tribunal amended its records accordingly.
On 21 December 2022, the Tribunal emailed the applicant inviting the applicant to attend a video conference hearing on 9 January 2023 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 9 January 2023 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 18 January 2023 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On the same day, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 18 January 2023 (Tribunal Decision).
At paragraphs [9] – [12] of the Tribunal Decision, the Tribunal summarised the applicant’s claims.
At paragraph [13] of the Tribunal Decision, the Tribunal stated the following:
In the hearing, the applicant gave evidence that someone else wrote his protection application for him. He made admissions that he had no protection claims to make and that all the claims written in his protection application were false. He said that the only reason he came to Australia was to work.
Consequently, at paragraph [16] of the Tribunal Decision, the Tribunal found that the applicant’s protection claims in his Visa application were not credible and were false in their entirety.
At paragraph [14] of the Tribunal Decision, the Tribunal records that the applicant indicated that if he returned to Malaysia he would not be able to earn the same amount of money as he earnt in Australia but gave evidence that he had worked in Malaysia and Australia.
At paragraphs [17] – [20] of the Tribunal Decision, the Tribunal considered the applicant’s claim in respect of his employment prospects and earning potential in Malaysia. At paragraph [18] the Tribunal considered the Department of Foreign Affairs and Trade Country Information report for Malaysia dated 29 June 2021 (DFAT Report), including that Malaysia had an unemployment rate of 4.8 per cent and that prior to the COVID-19 pandemic had an unemployment rate of 3.3 per cent. At paragraph [19] of the Tribunal Decision, the Tribunal considered open source information that indicated that the International Monetary Fund had raised Malaysia’s growth for the year from 5.1 per cent to 5.4 per cent.
At paragraph [20] of the Tribunal Decision, taking into account the applicant’s work history and country information in respect of the Malaysian economy, whilst accepting that the applicant may incur some difficulty in earning the same amount in Malaysia as in Australia, the Tribunal was not satisfied that the applicant would face significant economic hardship such that would threaten his capacity to subsist.
Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm on return to Malaysia and found he did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 9 February 2023.
The Application contains the following grounds for judicial review (without amendment):
1.Quote No 17. In respect to the applicant’s claims in respect to his employment prospects and earnings potential in Malaysia, the Tribunal accepts that the applicant may face difficulties in earning the same amount of money in Malaysia as he is making in Australia. However, the Tribunal accepts that the applicant has worked in both Malaysia and in Australia”. The tribunal did not take into account my future which would be badly affected if I returned to Malaysia. This will indirectly result in my child’s opportunities and future will also be affected.
2.Quote No 20. “Accordingly, given the applicant’s work history and the information in respect to the Malaysian economy, the Tribunal accepts that the applicant may incur some difficulty in earning the same amount of money in Malaysia as he is making in Australia should he return to Malaysia in the foreseeable future. However, the Tribunal is not satisfied that the applicant would face significant economic hardship such that would threaten his capacity to subsist”. The Tribunal only made assumptions on what could happen if I returned but the Tribunal did not see the real state of the economy, improper state/country management procedures, rampant corruption, inadequate salary payment is a real threat to me and it will frustrate my future in Malaysia.
3.I am seeking review at FCC as I have intention to request Judge to look into this matter in order to give the natural justice.
4.Australia has obligation to protect people under refugee convention and I would like to use my right in Australia to be protected.
5.According to the protection claims, I believed I have met the criteria of 866 Subclass under Migration Act 1958.
The applicant also filed an affidavit on 9 February 2023 which annexed the Tribunal Decision.
The Minister filed a Response on 6 April 2023. The Response contained the ground that the Tribunal Decision is not affected by jurisdictional error.
The Minister also filed written submissions on 25 March 2024.
The hearing
The hearing took place on 2 April 2024.
The applicant is self-represented and was assisted by an interpreter in the Malay and English languages at the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
By Ground 1 the applicant submits that the Tribunal failed to take into account how the applicant’s future would be affected if he returned to Malaysia. The applicant further submits that this failure will “indirectly” affect the applicant’s child and their future.
The Minister submits that the Tribunal did not fail to consider the applicant’s future.
At the hearing the applicant said that if he were to return to Malaysia he could not register his marriage or the birth of his child and asked the Court what kind of life his wife and child would have.
At paragraph [17] of the Tribunal Decision, the Tribunal considered the applicant’s claims in respect of his employment prospects and stated the following:
In respect to the applicant’s claims in respect to his employment prospects and earnings potential in Malaysia, the Tribunal accepts that the applicant may face difficulties in earning the same amount of money in Malaysia as he is making in Australia. However, the Tribunal accepts that the applicant has worked in both Malaysia and in Australia.
At paragraphs [18] – [20] the Tribunal considered relevant country information about the economic circumstances in Malaysia.
Having considered the applicant’s evidence about his work history and relevant country information, the Tribunal found the following at paragraph [20]:
… the Tribunal accepts that the applicant may incur some difficulty in earning the same amount of money in Malaysia as he is making in Australia should he return to Malaysia in the foreseeable future. However, the Tribunal is not satisfied that the applicant would face significant economic hardship such that would threaten his capacity to subsist.
Accordingly, the Tribunal did consider the applicant’s future.
As to the assertion that the Tribunal’s failure will indirectly affect the applicant’s child and their future, there is nothing before the Court to indicate that this claim was ever made before the Tribunal and at the hearing the applicant conceded that it was not made. Further, there was no evidence before the Tribunal which indicated that the applicant has a child. The Tribunal is only required to consider claims or evidence which are either the subject of clearly articulated argument, relying on established facts or which clearly emerge from the materials: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18]. Therefore, no error arises by the Tribunal failing to consider how its decision would affect the applicant’s child.
Finally as to the assertion that if the applicant were to return to Malaysia he could not register his marriage or his child’s birth, there is also nothing before the Court to indicate that these claims were ever made before the Tribunal and at the hearing the applicant conceded that they were not. For the reasons set out above, no error on behalf of the Tribunal arises by failing to consider these matters.
Ground 1 therefore discloses no jurisdictional error by the Tribunal.
Ground 2
As to Ground 2, at the hearing the applicant could not articulate what “assumptions” he said the Tribunal made. However, he submitted that the Tribunal did not take into account his age (being nearly 40 years) and his limited education and the additional difficulty these matters created in finding employment in Malaysia. He submitted that he could not get a job that would enable him to support his wife and child and that he also supported his mother and a disabled sibling.
If by Ground 2 the applicant is asserting that the Tribunal made assumptions about the circumstances in Malaysia and the effect that would have on the applicant if he returned to Malaysia, then Ground 2 must be rejected.
Pursuant to s 424(1) of the Act, in conducting a review, the Tribunal may get any information it considers relevant, on the condition that if the Tribunal obtains such information, it must have regard to that information in making the decision on the review.
The Tribunal had regard to country information relevant to considering the applicant’s claim to face economic hardship in Malaysia. At paragraph [18] of the Tribunal Decision, the Tribunal considered information about the economic circumstances of Malaysia obtained from the DFAT Report. At paragraph [19] of the Tribunal Decision, the Tribunal considered country information about Malaysia’s economic growth forecast from an article titled ‘IMF raises Malaysia’s growth forecast from 5.1% to 5.4%’ and obtained from the website At paragraph [20] of its decision the Tribunal said:
Accordingly, given the applicant’s work history and the information in respect to the Malaysian economy, the Tribunal accepts that the applicant may incur some difficulty in earning the same amount of money in Malaysia as he is making in Australia should he return to Malaysia in the foreseeable future. However, the Tribunal is not satisfied that the applicant would face significant economic hardship such that would threaten his capacity to subsist.
Accordingly, it is clear that the Tribunal did not make assumptions as asserted: rather, it relied on the country information contained in the DFAT Report, and open source information and the applicant’s evidence regarding his work history and earning capacity.
In so far as Ground 2 takes issues with relying on that information, its accuracy or the weight to be given to it, there can be no objection in principle to the Tribunal relying on country information. Further, the question of accuracy of the country information is a matter for the Tribunal. If the Court were to make its own assessment of the accuracy of country information it would be engaging in impermissible merits review; further, the weight to be given to country information is a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11].
As to the assertion that the Tribunal failed to take into account the applicant’s age and limited education and the additional difficulty he would consequently face obtaining employment in Malaysia, the applicant said that he could not remember if he raised these matters before the Tribunal. There is nothing before the Court to suggest that the applicant did raise these matters before the Tribunal and the applicant’s own evidence is that he does not remember if he did so. On the evidence before it, the Court cannot be satisfied that these matters were in fact raised before the Tribunal, such that a failure to consider them would amount to error. Further, as set out above, it is clear that the Tribunal did consider the difficulty that the applicant would face in obtaining employment in Malaysia.
As to the applicant’s submissions that he could not get a job that would enable him to support his wife and child and that he also supports his mother and a disabled sibling, he conceded at the hearing that these claims were not made before the Tribunal. Further, there was no evidence before the Tribunal as to the applicant’s child, wife, mother or sibling. As set out above, no error can arise in the Tribunal’s failure to consider claims which were not put to it or which do not arise clearly arise from the material before it.
Ground 2 therefore discloses no jurisdictional error on behalf of the Tribunal.
Ground 3
Ground 3 merely seeks the Court undertake judicial review and does not assert any jurisdictional error by the Tribunal. At the hearing the applicant was unable to further articulate this ground but said that by this ground he did not assert that the Tribunal had denied him natural justice and said that the Tribunal’s process had been fair.
For completeness, the Court has considered whether the applicant was accorded procedural fairness.
The Tribunal’s proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard. The applicant was validly invited to attend a hearing before the Tribunal in accordance with ss 425 and 425A of the Act. As stated above, the applicant attended the hearing on 9 January 2023 and gave evidence with the assistance of an interpreter in the Malay and English languages.
In making its decision, the Tribunal considered and relied on the applicant’s protection claims contained within his Visa application, his oral evidence provided at the Tribunal hearing and country information. Accordingly, there was no information the Tribunal was required to put to the applicant pursuant to s 424A of the Act.
Accordingly, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act. There was no failure to accord procedural fairness to the applicant.
Ground 3 therefore discloses no jurisdictional error on the Tribunal’s behalf.
Grounds 4 and 5
By Grounds 4 and 5 the applicant asserts that he meets the requirements for the Visa. Grounds 4 and 5 do not assert any jurisdictional error on behalf of the Tribunal.
To the extent that Grounds 4 and 5 express a belief that the applicant meets the Visa requirements, the applicant seeks impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
DISPOSITION
For the above reasons, the Application discloses no jurisdictional error on the Tribunal’s behalf.
The Application must therefore be dismissed.
The Minister seeks the applicant pay the Minister’s costs in the fixed amount of $5,100. I note that this is below the scale amount and shall order accordingly.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
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