AJJ19 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 949

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AJJ19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 949

File number(s): MLG 256 of 2019
Judgment of: JUDGE CORBETT
Date of judgment: 19 June 2025
Catchwords: MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether Administrative Appeals Tribunal failed to consider relevant evidence – Whether Administrative Appeals Tribunal failed to give the applicant opportunity to present evidence – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed.  
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) Sch 1, Part (da)

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K to 5LA, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2A), 36(2B), 474 and 476(1)

Migration Regulations 1994 (Cth), Sch 2

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01(1), Sch 2 Pt 2

Cases cited:

ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426

AYJ22 v Minister for Immigration and Multicultural Affairs [2025] FCA 510

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62

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

FRA18 v Minister for Home Affairs [2019] FCCA 2287

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division: Division 2 General Federal Law
Number of paragraphs: 70
Date of last submission/s: 29 May 2025
Date of hearing: 8 May 2025
Place: Melbourne
Solicitor for the Applicant: The applicant appeared in person, self-represented
Solicitors for the Respondents: Ms S Roeger, Australian Government Solicitor

ORDERS

MLG 256 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AJJ19

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

19 JUNE 2025

THE COURT ORDERS THAT:

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

2.The name of the second respondent is amended to ‘Administrative Review Tribunal’.

3.Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review dated 1 February 2019 is amended to seek a writ of mandamus directed to the second respondent, requiring it to…

Continue reading AJJ19 v Minister for Immigration and Citizenship

Sign in free to access the full text

Details
AGLC
AJJ19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 949
Case
[2025] FedCFamC2G 949
Decision Date

CaseChat Overview and Summary

The case of AJJ19 v Minister for Immigration and Citizenship involved an applicant from Malaysia who had applied for a Protection (Class XA) visa subclass 866. The applicant claimed to be a volunteer for the Sabah Sarawak Union - United Kingdom (SSU-UK) and feared persecution if returned to Malaysia due to his involvement in a secessionist movement. The application for the visa was refused, and the decision was reviewed by the Administrative Appeals Tribunal (AAT). The applicant sought judicial review of the AAT's decision. The primary legal issues were whether the AAT failed to consider relevant evidence, failed to give the applicant the opportunity to present evidence, and whether the applicant had a well-founded fear of persecution.

The court considered the evidence provided by the applicant, which included media articles and documents from the SSU-UK. The court noted that the AAT had considered the evidence provided by the applicant and found that the applicant's claims were not credible. The AAT found that the applicant's evidence was contradictory, vague, and evasive. The court found that the AAT had not erred in its consideration of the evidence and that there was no jurisdictional error in the AAT's decision. The court also found that the applicant did not have a well-founded fear of persecution as defined in the Migration Act 1958.

The court dismissed the applicant's application for judicial review. The court found that the AAT had considered all relevant evidence and had not failed to give the applicant an opportunity to present evidence. The court also found that the AAT's decision was not based on an error of law or jurisdiction. The court noted that the applicant's claims were not credible, and that there was no real chance of the applicant suffering persecution or significant harm if returned to Malaysia. The court found that the AAT's decision was reasonable and that there was no merit in the applicant's application for judicial review. The court dismissed the application with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

References in these reasons to ‘CB’ pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit ‘R1’.BACKGROUND The applicant is a citizen of Malaysia. The applicant arrived in Australia on 28 April 2016 on an Electronic Travel Authority (Subclass 601) visa (CB 32-4). On 18 January 2017, the applicant applied for the visa (CB 12-60). The applicant claimed he was a volunteer for the Sabah Sarawak Union - United Kingdom (SSU-UK), collecting signatures for a petition to the United Nations seeking that the British Government review the validation of the 1963 Malaysian Agreement (CB 43). The applicant claimed that volunteers for the SSU-UK and natives of North Borneo are oppressed and targeted for arrested for supporting a secessionist movement. He fears that should he return to Malaysia, he will be charged and prosecuted under the ‘Sedition Act 1948’ (Malaysia) (CB 43). Attached to the application was various media articles relating to the rights of Sabah and Sarawak natives (CB 50-60). On 3 July 2017, a delegate of the Minister refused to grant the applicant the visa (CB 74-93). On 24 July 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 94-5). On 19 September 2017, the Tribunal invited the applicant to attend a hearing on 12 October 2017 to give evidence and present arguments relating to his application (CB 99-101). The Tribunal requested that the applicant complete a ‘Response to hearing invitation’ form. The applicant did not provide a response. On 12 October 2017, the applicant appeared before the Tribunal at a hearing (CB 102-4). The Tribunal explained that, as the applicant had not informed the Tribunal that he would be attending the hearing by completing the ‘Response to hearing invitation’ form, it had a full list and would need to reschedule the hearing to a later date (CB 214 [18]). The hearing was adjourned to 15 December 2017 (CB 106-7). The applicant then responded to the invitation and confirmed his attendance for the adjourned hearing (CB 108). On 15 December 2017, the applicant appeared before the Tribunal to give evidence and present arguments (CB 109-11). The applicant was assisted by an interpreter fluent in the Malay and English languages (CB 109). At the hearing before the Tribunal, the applicant submitted further evidence in support of his application, namely media articles from the SSU-UK website, an undated letter from the SSU-UK to the United Nations, and an undated SSU-UK petition document titled ‘Sabah Sarawak Union (UK) Peoples’ Petitions to United Nations to seek self determination for Sabah and Sarawak’ from ‘New South Wales, Australia’ (CB 118-206). On 9 January 2019, the Tribunal notified the applicant it affirmed the decision of the delegate (CB 209). Written reasons dated 8 January 2018 were attached to the notification (Decision) (CB 210-231).TRIBUNAL DECISION In the Decision, the Tribunal succinctly identified the issue to be determined as follows (CB 211 [2]):[2] The issue in this case is whether [APPLICANT NAME]’s claims are credible and, if so, whether they raise a real chance of persecution or significant harm.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 9 January 2019, the Tribunal notified the applicant it affirmed the decision of the delegate (CB 209). Written reasons dated 8 January 2018 were attached to the notification (Decision) (CB 210-231).TRIBUNAL DECISION In the Decision, the Tribunal succinctly identified the issue to be determined as follows (CB 211 [2]):[2] The issue in this case is whether [APPLICANT NAME]’s claims are credible and, if so, whether they raise a real chance of persecution or significant harm. The Tribunal then identified the criteria for a Protection visa under ss 36(2)(a), (aa), (b) and (c) of the Migration Act 1958 (Cth) (Act) (CB 211 [3]). The Tribunal also identified the mandatory considerations identified in Ministerial Direction No 56 made under s 499 of the Act and the policy guidelines prepared by the Department of Immigration known as the Procedures Advice Manual 3 PAM3 (CB 211 [4]) The Tribunal listed the extensive third-party material provided by the applicant in support of his application for the visa. This included numerous articles regarding the secession movement in North Borneo (CB 212 [12]). The Tribunal then recorded the applicant’s evidence given at the hearings on 12 October 2017 and 15 December 2017 (CB 212 [10]-[12]). It also referred to country information regarding the Sabah Sarawak Keluar Malaysia (SSMK) movement and the activities of the SSU-UK in Sabah and abroad (CB 216 [26]-[30]). In the Decision, the Tribunal considered the applicant’s claims of ethnic cleansing and discrimination in particular it referred to the affirmative action policies that favour ethnic Malays (Bumiputera) over other ethnic minorities (CB 217-9 [31]-[36]). The Tribunal found (CB 219 [37]):[37] Although some of [APPLICANT NAME]’s claims are supported by the country information, the Tribunal has serious concerns about [APPLICANT NAME]’s truthfulness. [APPLICANT NAME]’s evidence was contradictory and his visa application contained significant omissions that he could not adequately explain. In general his evidence was vague, confused, and contradictory, and the Tribunal found him to be evasive or inconsistent about basic information like his residence and employment. He was unable to remember the timing or provide details of fundamental events in his life. Many of the explanations for the inconsistencies in his evidence were implausible or inconsistent themselves. [APPLICANT NAME] was not a persuasive witness and for that reason the Tribunal is not satisfied that his claims are true. The Tribunal then considered whether the claims made by the applicant might possibly be true. Also known as the ‘what if I am wrong’ counterfactual (CB 219 [38]). The Tribunal was not satisfied that the applicant could substantiate claims for protection with the evidence provided by the applicant (CB 224 [60]). The Tribunal found (CB 227 [74]–[76]):[74] On the basis of the findings of fact above, the Tribunal finds that [APPLICANT NAME] does not have a real chance of suffering any harm in the foreseeable future for reasons of an involvement with the SSU-UK or any belief he may have about the rights of the Sabahan or Sabah or for any reason relating to his claims about human rights violations by the Malaysian government in Sabah, including migration, or economic, social, and demographic factors. [APPLICANT NAME] does not meet the requirements of s.5J(1)(b) in relation to these claims.[75] Section 5J(4)(c) requires that for a fear to be well-founded the persecution must involve conduct which is systematic, in the sense of being deliberate and premeditated,38 and discriminatory, in the sense that the persecutor is motivated to harm [APPLICANT NAME] personally. Any future harm [APPLICANT NAME] may suffer as a result of crimes of opportunity committed by illegal immigrants or any other people would not be persecution that involves discriminatory conduct as required by s.5J(4)(c).[76] [APPLICANT NAME] does not have a well-founded fear of persecution as defined in s.5J of the Act. Therefore, she does not meet the meaning of ‘refugee’ set out in s.5H of the Act.

Ratio Decidendi

Legal Principle Established

The applicant did not seek to respond to the Minister’s supplementary outline of submissions.CONSIDERATION The criteria for a Protection visa are set out in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (the Regulations). An applicant for a Protection visa must satisfy one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or for other complementary protection grounds, or is a member of the same family unit of such a person. 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 themself of the protection of that country: s 5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b) of the Act. Under s 5J(1) of the Act, 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. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K to 5LA, of the Act. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act. The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and 36(2B) of the Act. In ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426 at [5]–[8] Justice Katzman described the eligibility criteria as follows:[5] Particular criteria for a protection visa are set out in s 36 of the Act. Section 36 provides that a non-citizen in Australia will be eligible for that visa if the Minister is satisfied that Australia has protection obligations to that person for one or other of the following reasons:(1) The person is a refugee (s 36(2)(a)). This is known as the “refugee criterion”.(2) The Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a “real risk” that the non-citizen will suffer significant harm (s 36(2)(aa)). This is known as the “complementary protection criterion”.(3) A person is a member of the same family unit as a non-citizen referred to in ss 36(2)(a) or (aa) (s 36(2)(b)–(c)).[6] The term “refugee” is relevantly defined in s 5H of the Act to mean a person who is outside his or her country of nationality and “owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”. A person has a “well‑founded fear of persecution” if the person “fears being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion”; there is a “real chance” that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the receiving country (s 5J(1)). For a person to have a “well-founded fear of persecution” under s 5J(1)(a), the reason for that fear must “be the essential and significant reason” for the persecution, the persecution must involve “serious harm” to the person, and it must also involve “systematic and discriminatory conduct” (s 5J(4)).[7] Without limiting what constitutes serious harm, the Act provides in s 5J(5) some “instances” of “serious harm”. (a) a threat to the person’s life or liberty;(b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.[8] In order to suffer “significant harm” for the purpose of satisfying the complementary protection criterion, s 36(2A) provides:A non-citizen will suffer significant harm if:(a) the non-citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non-citizen; or(c) the non-citizen will be subjected to torture; or(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non-citizen will be subjected to degrading treatment or punishment.