AJJ19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 949
•19 June 2025
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 determine the applicant’s application for review according to law;
4.The amended application for review be dismissed; and
5.The applicant pay the first respondent’s costs and disbursements of and incidental to, the proceeding fixed in the sum of $ 8,371.30.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 8 January 2019 to affirm the decision of a delegate of the first respondent (Minister) made 3 July 2017 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa) (CB 209-31).
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.
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.
The Tribunal then considered the complementary protection criteria under s 36(2)(aa) of the Act and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, the applicant faced a real risk of suffering significant harm (CB 227 [77]–[80]). The Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act and affirmed the delegate’s decision not to grant the visa (CB 227-8 [81]–[84]).
PROCEEDINGS IN THIS COURT
On 1 February 2019, the applicant filed an application for judicial review of the Decision with this Court (CB 1–7). The application was supported by an affidavit affirmed by the applicant on 1 February 2019 (CB 8-11).
The application for judicial review contained 20 grounds of review (CB 5-6). The grounds included a narrative of complaints regarding the Tribunal hearings and a failure by the Tribunal to properly consider the applicant’s claims for protection.
The applicant explained at the hearing before this Court that he prepared the application for judicial review with the assistance of a friend. He was asked to put his signature on the application after it was prepared for him by his friend.
In the application for judicial review, the applicant only sought an order to quash the Tribunal’s decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal (CB 5). An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court’s jurisdiction pursuant to s 476(1) of the Act (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 [15] and [21]). Noting that the applicant was unrepresented, the applicant and his friend may not have appreciated the importance of this technicality and noting that solicitors for the Minister have not raised this technicality in the written submissions made on behalf of the Minister, the Court will order that the application dated 1 February 2019 is amended to seek a writ of mandamus. The Court has the power to do so, even on its own motion (see Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889 [44]–[51]). The Court finds that it is in the interests of justice and the overarching purpose of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) to dispense with non-compliance with the Rules, for the purpose of amending the originating process in this proceeding.
On 17 February 2021 and 5 September 2024, a Registrar of the Court made orders and gave directions that the applicant file and serve any amended application, further evidence in support of the application and an outline of written submission at least 28 days before the date fixed for final hearing. On 12 March 2025, the application for judicial review was listed for final hearing before this Court on 8 May 2025. The applicant did not file an amended application, any further evidence or an outline of submissions as ordered by the Registrar.
At the hearing before this Court on 8 May 2025, the applicant appeared in person, unrepresented. He was assisted by an interpreter fluent in the English and Malay languages, provided by the Court.
Ms Roeger, solicitor, appeared for the Minister.
At the commencement of the hearing, the Court confirmed that the applicant received a copy of the Court Book prepared on behalf of the Minister and the Minister’s outline of written submissions dated 24 April 2025. The applicant was invited to identify for the Court any material jurisdictional error or errors made by the Tribunal in reaching the Decision.
The applicant then sought to rely on a document titled ‘Legal Acts That the AAT Failed to Follow and Relevant Laws for [APPLICANT NAME] Case’. The document was marked for identification as ‘MFI A1’. This document had not been given to the solicitor for the Minister, so there was a short adjournment to allow the Court and the solicitor for the Minister to consider the document.
After the short adjournment, the solicitor for the Minister objected to receipt of the document on the grounds that it contained a significant number of new grounds for judicial review that were different to the grounds in the original application for judicial review. That was a reasonable objection in the circumstances. However, in the interests of avoiding a further adjournment and delay, the Court ruled that the document be received as a written submission and that the solicitor for the Minister be permitted to address the original grounds in the application for judicial review, and then file and serve a further written submission addressing the applicant’s new document within 21 days.
APPLICANT’S SUBMISSIONS
The applicant was asked to identify why the Tribunal erred in making the Decision.
The applicant explained that the Tribunal did not give him the opportunity to tell his story or explain his claim. He was simply asked questions by the Tribunal and required to respond. This meant that the Tribunal did not properly consider his claims for protection. The Court invited the applicant to explain what he wanted to explain to the Tribunal but was not permitted to explain. The applicant said that he needed more time and was unprepared for the hearing before the Tribunal. If he had been given more time, he would have been able to better prepare his case for the Tribunal and provide more information. The Tribunal did not understand his ‘whole story’. He was unable to prepare for the hearing because he did not have ‘work rights’ and was in a ‘terrible financial situation’. The applicant claimed that the Tribunal simply did not understand his financial position and the Tribunal did not understand the political movement that he was ‘involved in’. He claimed that he had no documents with which to prove his involvement but with more time, he would have provided some written proof.
MINISTER’S SUBMISSIONS
The Minister relied on a written outline of submissions dated 24 April 2025 that addressed all twenty grounds of review in the application for judicial review. In summary, none of the grounds demonstrated jurisdictional error and simply expressed disagreement with the findings of the Tribunal. Further, the grounds lacked particularity and were vague and unclear.
In relation to ground 20, which contained the broad allegation that the Tribunal failed to give the applicant an opportunity to explain his claims for protection, the Minister submitted that the Tribunal did give the applicant a meaningful opportunity to give evidence and present arguments (CB 6). The applicant was sent the usual invitation letter on two occasions (CB 100-1, 106-7) and did not respond or seek to provide further information or engage with the Tribunal before the hearings. In so far as it was submitted by the applicant that the Tribunal erroneously relied on country information prepared by DFAT, the Minister noted that the Tribunal did accept that some of the applicant’s claims were supported by country information (CB 219 [37]) but found there to be inconsistencies and implausible explanations in his oral evidence.
The Minister filed supplementary written submissions dated 29 May 2025 in which the Minister addressed the document marked ‘MFI-A1’. The Minister joined issue with the submissions that the Tribunal erred in applying the relevant legal tests in s 36(2)(a) and 36(2)(aa) of the Act or that the Tribunal failed to properly consider s 5J(1) of the Act. The Minister also joined issue with the broad allegation that the Tribunal failed to consider relevant evidence and erroneously considered irrelevant country information. The Minister referred to the paragraphs of the Decision that made plain that the further submissions of the applicant were misconceived.
REPLY
At the hearing before the Court on 8 May 2025, the applicant was given an opportunity to reply to the Minister’s oral and written submissions. The applicant said that the Tribunal did not understand the activities in which he was involved for the SSU-UK. He also said that after the Decision, the Tribunal ‘did not contact him or seek further evidence from him’. When asked if he asked the Tribunal for more time to submit further evidence, he said ‘no’.
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.
The issue to be determined by the Tribunal was whether the applicant was a refugee and entitled to a Protection visa under s 36(2)(a), and if not, whether the applicant satisfied the complementary protection criteria because there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (in this case, Malaysia), there is a real risk that the applicant will suffer significant harm (s 36(2)(aa)). That is what the Tribunal did in the Decision.
The role of this Court is not to undertake a review of the merits of the Decision (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] per Allsop CJ, Besanko and O’Callaghan JJ). The role of this Court is to review the Decision and determine if the Tribunal has fallen into error by failing to conduct the statutory task of determining the application for the visa in accordance with law.
In Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259, the High Court said at [272]:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality explained the concept of jurisdictional error at [3]. The Court said:
[3] Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Another consideration relevant to this application for judicial review is the fact that the applicant is not legally represented. In AYJ22 v Minister for Immigration and Multicultural Affairs [2025] FCA 510 at [23] and [24], Hill J recently observed:
[23] The duties that courts owe to unrepresented litigants have been discussed in cases such as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). The principles are conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs [2019] FCA 247 at [26] as follows (citations omitted):
Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case … However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law … In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be …
[24] The obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case. However, a judge is not required to give legal or tactical advice to a self-represented litigant that would compromise the judge’s impartiality and be unfair to the opposing party: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).
These obligations were also referred to by Justice Mortimer (as her Honour then was) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [112]–[114].
In this case, the applicant has endeavoured to identify numerous grounds of review and errors by the Tribunal in the Decision but has been unable to satisfy the requirement that he identify a material jurisdictional error that requires the Court to remit the Decision for re-consideration in accordance with law. Each of the grounds of review in the application for judicial review and subsequently raised in the document ‘MFI-A1’ are addressed as follows.
Ground 1,3,13,14,16 and 18
These grounds are simply a narrative of procedural events or misconceived. Grounds 1 and 3 explain the background to the application for judicial review but do not identify error. Ground 13 refers to an oral decision of the Tribunal when no oral decision was given. There were two hearings before the Tribunal. The first on 12 October 2017 and the second on 15 December 2017 (CB 102-4, 109-111). The Tribunal then reserved its decision until delivering written reasons on 8 January 2018 (CB 210-231). Ground 14 is a request the Court intervene and presumably reverse the Decision. As explained, the Court may only intervene if there is a material jurisdictional error identified by the applicant or an error clearly arising from the materials before the Court. No such error is identified or apparent. Ground 16 is simply a description of the steps taken by the applicant to make the application to the Court. So too is Ground 18, which is simply narrative and repetitive. The Court has undertaken the task of reviewing the Decision for error in accordance with the obligations to self-represented litigants and no error is apparent.
Grounds 2, 4-10, 12 and 17
Ground 2 claims that the applicant has been ‘tortured mentally by the Malaysian Government’. This claim was squarely considered by the Tribunal and dismissed as either unreliable or not of sufficient weight to amount to ‘serious harm’ or ‘significant harm’ within the meaning of the Act. There was no apparent error in the approach taken or reasoning of the Tribunal in reaching the conclusions reached in the Decision. Grounds 4 to 10 are an attempt by the applicant to revisit the merits of the Tribunal’s Decision. That is not permissible or the function of review by this Court. Further, the Decision reflects a rational and logical consideration of the limited evidence provided by the applicant to support his claims for protection. The Tribunal also applied the ‘what if I am wrong’ test to further assess the merit of the applicant’s claim but remained unsatisfied that the claims had merit. There was no apparent error in doing so.
Ground 12 refers to the Tribunal acting unfairly and unreasonable but does not identify how it did so, or why a reasonable and fair-minded decision-maker would have reached a different result based on the same evidence. In oral submissions and Ground 20, the applicant complains that he was not given an adequate opportunity to give evidence or present his claims to the Tribunal. No transcript or recording of the hearings before the Tribunal was produced and the applicant did not identify what further or other evidence he would have produced but was denied the opportunity to produce to the Tribunal at either of the two hearings. In Ground 17, the applicant refers to other evidence he would bring to the Court if required, but no further evidence was produced despite orders made by two Registrars of the Court. Clearly, the applicant did not understand the procedures of the Court or the role of the Court but the document produced marked ‘MFI-A1’ indicates that he was assisted in his application to the Court by someone with knowledge of judicial and administrative review procedure. Nevertheless, there was no attempt to identify any cogent evidence that was omitted from the consideration of the Tribunal that would result in a materially different outcome, or an error by failing to consider relevant materials or a clearly articulated claim.
Ground 11
This Ground appears to be central to the applicant’s complaints. Namely that the Tribunal did not consider the totality of the evidence and give weight to all of the applicant’s claims for protection. There is no further explanation or particularity given to this ground of review and none was apparent from the applicant’s oral submissions or in ‘MFI-A1’. The consequence of a failure to particularise a general claim of jurisdictional error has been explained on several occasions. A failure to particularise is a sufficient basis to dismiss the claim (see WZATH v Minister for Immigration and Border Protection [2014] FCA 969; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmore J; DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4] per Colvin J). However, the Decision reflects a thorough consideration of the claims for protection identified by the applicant in his application for the visa (CB 12–60) and the additional material supplied to the Tribunal in support of the application for review (CB 118–206). Most of the materials were third party reports and historical materials regarding the activities of the SKU-UK movement and separatist activity in North Borneo (Sabah). None of the materials were specific to the applicant’s claims for protection or his well-founded fear of persecution or risk of significant harm. The Tribunal also considered the available country information prepared by DFAT as at 19 April 2018 together with other available information that it clearly identified.
The applicant now complains in the document marked ‘MFI-A1’ that the Tribunal considered ‘outdated DFAT reports’ but does not identify any updated or otherwise available reports that would further substantiate any of the applicant’s claims and which were clearly available to the Tribunal at the time of making the Decision. It is also said that the Tribunal focused excessively on minor inconsistencies in the evidence rather than the assessing the core claims. However, there was no attempt to identify with any precision how this was a material jurisdictional error or why the findings at the credibility of the applicant’s evidence were unreasonable or not available from the evidence given by the applicant at the hearings before the Tribunal.
Ground 11 is a broad allegation that is not supported by any cogent evidence or supporting documents identified by the applicant as omitted from the Tribunal’s reasoning or otherwise overlooked by the Tribunal. It is not sufficient for the applicant to simply say that he did in fact fear persecution, therefore the reasoned findings of the Tribunal should be set aside. Simple disagreement is not enough to establish error.
Ground 15
In this ground, the applicant contends that the Tribunal did not ‘assess my case against the criteria’. However, the applicant does not identify how the Tribunal erred in this regard. The Decision reflects a clear articulation of the relevant criteria to be considered by the Tribunal and then the application of the established facts relevant to those criteria. This is reflected at paragraph [3] and paragraphs [61]–[80] of the Decision. The Decision reflects a reasoned and logical application of the evidence to the criteria and the consideration of the Ministerial Direction. In the absence of the clear identification of error in undertaking the statutory task, this ground also fails for want of particularity.
Grounds 19 and 20
Ground 19 identifies that the Tribunal acted unreasonably. However, no aspect of the Decision is identified as unavailable to a fair-minded decision-maker or that is arbitrary or capricious (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]-[136] per Crennan and Bell JJ). The applicant has been unable to identify any aspect of the hearings before the Tribunal that was unfair or lacked procedural fairness. When asked if he requested more time to present his claims to the Tribunal, the applicant answered ‘no’. The applicant could not identify any further evidence that he wanted to place before the Tribunal but was denied the opportunity. He claimed that had he been given more time, he would have produced more evidence and he was not asked by the Tribunal to do so after the hearings, but this is a misconception of the applicant’s onus of proof and the role of the Tribunal and the obligations of procedural fairness.
In Ground 20, the applicant claims he was denied the opportunity to present his claims and was denied procedural fairness by the Tribunal. The Decision does not reflect either of these claims. The applicant’s evidence was recorded in detail in the Decision. There was no evidence of a refusal to hear the applicant or of actual or perceived bias by the Tribunal. An allegation of bias must be distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 [531]). The Tribunal considered the available country information prepared by DFAT and found that some of the applicant’s claims were supported by the country information. However, the Tribunal was not satisfied that the applicant’s evidence in support of his claims for persecution and the real chance of significant harm was credible. That was a matter for the Tribunal that was available to it as the decision-maker after hearing and assessing the applicant’s evidence. Critically, the Tribunal found that the applicant had not in fact ever volunteered or worked for the SSU-UK as he claimed (CB 224 [63]).
‘MFI-A1’
This document sought to summarise, on behalf of the applicant, the applicable law and identify further errors by the Tribunal. It was a broad and general summary of general principles of law and the application of the definition of a well-founded fear of persecution under s 5J(1) of the Act. It was a document clearly prepared on behalf of the applicant and he was unable to address it himself in oral submissions. It repeated the general submissions that the Tribunal failed to properly consider the criteria for a Protection visa but also sought to make a new claim that the Tribunal focused only on past harm, and not the future risk of harm. However, that contention was not reflected in the Decision. The Tribunal did consider future risk when considering s 5J(1) of the Act (see CB 224 [62], CB 225 [65],[67], CB 227 [73]-[75], [78]-[79]).
It is also submitted that the Tribunal misapplied the ‘real chance’ test. The Tribunal correctly noted in CB 226 [72] that a real chance is one that is not remote, or insubstantial or a far-fetched possibility. A real chance may also be less than a 50% chance of an event occurring (applying Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 at [12] per Mason CJ). The Tribunal was not satisfied that the applicant had a genuine subjective fear of persecution (CB 227 [73]). This was a finding based on an assessment of the applicant’s evidence. That was not a failure to apply the proper test by the Tribunal. It was submitted that ‘any chance of political imprisonment’ on return to Malaysia constitutes a real risk of persecution but that is not the test, and the Tribunal was not satisfied on the evidence that there was a ‘real chance’ of imprisonment because the applicant was not involved in the activities of the SSU-UK (CB 224 [60], [63]).
The document also identified other errors, including a failure to properly apply s 36(2)(aa) of the Act. These too did not take into account the actual findings and reasoning in the Decision. It was submitted that the Tribunal failed to apply the 1951 Refugee Convention but misunderstands the role of the Tribunal, which is to apply the Act, which adopts the principles of the Convention. The Decision reflects the correct application of s 36 of the Act as it applies to the Tribunal when assessing an application for review of the refusal of a Protection visa by the Minister.
Document ‘MFI-A1’ also refers to the application of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). This is also misconceived. The application for judicial review in this proceeding does not seek review under the ADJR Act and the Court has no jurisdiction under the ADJR Act to grant relief (ADJR Act Sch 1, Part (da) and ss 474 and 476 of the Act).
The author of the document also asserts that the Tribunal took into consideration outdated ‘country information’ prepared by DFAT. As has been previously observed, the correct country information has not been identified, nor has it been explained why the country information prepared as at 19 April 2018 was incorrect or contradicted by other information available to the Tribunal.
The further document attempts but fails to identify a material jurisdictional error sufficient to exercise the Court’s jurisdiction to remit the Decision to the Tribunal (now the Administrative Review Tribunal) for reconsideration in accordance with law. The Tribunal did not accept the applicant’s claims for protection as credible and there appears to be no basis to disturb those findings or the reasoning of the Tribunal in refusing to grant the applicant the visa. The amended application for judicial review is dismissed.
OTHER MATTERS
The name of the Minister’s portfolio was changed on 13 May 2025 to ‘Minister for Immigration and Citizenship’. The name of the first respondent and the title of the proceeding will be changed to refer to the first respondent as ‘Minister for Immigration and Citizenship’.
Following the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the ‘Administrative Review Tribunal’. An order will be made amending the name of the second respondent and the title to the proceeding.
COSTS
In the outline of written submissions filed 29 May 2025, the Minister seeks an order for costs if the application for judicial review is dismissed, fixed in the sum of $8,371.30 which is the scale figure for a contested application prescribed in Sch 2 Pt 2 of the Rules. That amount is fair and reasonable and should follow the event of this application. The applicant is ordered to pay the Minister’s costs and disbursements of, and incidental to, this proceeding fixed in the sum of $8,371.30.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The name of the second respondent is amended to ‘Administrative Review Tribunal’.
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 determine the applicant’s application for review according to law.
The amended application for review be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to, the proceeding fixed in the sum of $8,371.30.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 19 June 2025
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