ALU24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 444
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALU24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 444
File number: PEG 36 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 28 March 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the conduct of the applicant’s migration agent or a third party amounted to a fraud on the Tribunal – whether the Tribunal was required to “investigate” the applicant’s claims – whether the Tribunal failed to consider a claim or an integer of the applicant’s protection claims – whether the Tribunal failed to consider relevant material – whether the Tribunal’s decision was unreasonable – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Evidence Act 1995 (Cth), s 140
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 414, 424 & 427
Cases cited: AMO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 326
AUV15 v Minister for Immigration & Anor [2017] FCCA 1951
Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353
BDE23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 372
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
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
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
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 & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
MZABA v Minister for Immigration and Border Protection [2015] FCA 711
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40
Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828
Division: Division 2 General Federal Law Number of paragraphs: 142 Date of hearing: 8 November 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 36 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALU24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 MARCH 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 24 January 2024 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 that the applicant filed his judicial review application 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 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 second hearing in this matter on 8 November 2024) substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
Applicant’s migration history
The applicant is a citizen of Malaysia (Court Book (“CB”) 1-3 & 6). He arrived in Australia in September 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 31).
On 24 December 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-19 & 31). In his visa application, the applicant answered “no” when asked if he “authorise[d] another person to receive communication about [his] application on [his] behalf” (CB 5). The applicant also agreed to the then Department of Immigration and Border Protection (the “Department”) communicating with him by email and provided the Department with an email address (the “first nominated email address”) so that it could do so (CB 5).
In his visa application, the applicant claimed to fear harm on the basis of his sexuality. The applicant claimed that he “sufferer[ed] a lot from discrimination because [he is] gay” and “people in [his] country are not open minded enough” and are “too conservative” to accept that. The applicant also claimed to have suffered “physical injuries and mental illness” as a result of the discrimination (CB 13).
On 2 May 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 31-41). The delegate was not satisfied that the applicant was a refugee (as defined by s 5H(1) of the Act) or that the applicant was a person in respect of whom Australia had protection obligations (CB 35-36).
On 24 May 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 42-43). In that review application, the applicant indicated that all correspondence should be directed to him as the “review applicant” and provided the Tribunal with the first nominated email address so that it could do so (CB 43).
The applicant gave the Tribunal a completed “Change of Contact Details” form (CB 47-48). That form provided an updated mobile phone number and updated residential and email addresses (the “new nominated email address”) for the applicant (CB 47). It also indicated that the applicant “withdrew” previous authorisation for any person to act on his behalf or to receive any correspondence on his behalf (CB 48).
On 8 December 2023, the Tribunal wrote to the applicant (by email sent to the new nominated email address) inviting him to complete a “pre-hearing information form” (the “questionnaire”) (CB 49).
On 10 December 2023, the applicant returned the completed questionnaire to the Tribunal by email (sent from the new nominated email address”) (CB 50-55). In that completed questionnaire, the applicant indicated that he “[did] not want to have a hearing” and “consent[ed] to the Tribunal making a decision on the papers” (CB 52). The completed questionnaire also reiterated the applicant’s protection claims, as outlined in his visa application (being that he was gay and feared harm if he were to return to Malaysia) (CB 54).
On 24 January 2024, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 60-66).
The applicant was notified of that decision by letter (sent via email to the new nominated email address) on 25 January 2024 (CB 58-59).
On 6 February 2024, the applicant applied to this Court for judicial review of the Tribunal’s decision. The applicant included the new nominated email address in that application.
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 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 some detail.
The Tribunal’s decision is seven pages long and spans 23 paragraphs (CB 60-66). The final three pages contain extracts of relevant legislative provisions (CB 64-66).
The Tribunal explained that the applicant had applied for the visa on 24 December 2017 and that, in his visa application, the applicant claimed that “he was a gay man and would be discriminated against in Malaysia”. The Tribunal noted that the applicant also claimed to have suffered “physical injuries and mental illness” as a result of that discrimination. The Tribunal outlined that a delegate of the Minister had refused to grant the applicant the visa on 2 May 2018 and that the applicant had subsequently sought review of that decision by the Tribunal (at [1]-[5]).
The Tribunal explained that the applicant had advised that he “did not want to have a hearing” and had “consented to the Tribunal making a decision on the papers” (at [6]).
The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also explained that, in assessing the applicant’s protection claims, and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department and country information assessment reports prepared by the Department of Foreign Affairs and Trade (at [7]-[12]).
The Tribunal identified that the issue it needed to consider was whether there was a real chance that the applicant would suffer persecution if returned to Malaysia and, if not, whether there was a real risk that the applicant would suffer significant harm if removed to Malaysia. The Tribunal explained that the applicant had claimed to fear persecution because he is a gay man and experienced harm in Malaysia. He also claimed that “many people”, including colleagues and relatives in Malaysia had harmed him (though none were identified). The Tribunal found that the applicant’s evidence (in his visa application) “lacked specificity” and provided no detail, explanation or elaboration to enable the claims to be considered or tested. Similarly, the information provided in his questionnaire was “lacking in detail and specificity”, despite also consenting to the matter being determined without a hearing. The Tribunal thus found that there was insufficient detail in the applicant’s written evidence of his sexual orientation, the exact nature of the harm feared and whether that harm amounted to serious or significant harm (at [13]-[17]).
The Tribunal noted that, had the applicant appeared at a hearing before it, it could have explored the applicant’s experiences (and the discrimination and harm he claimed to have suffered) with him in more detail. The Tribunal also noted that it could have “raised [its] concerns about the lack of detail and specificity in his evidence and [that] the applicant could have assuaged those concerns”. The Tribunal found that there was “insufficient detail in the very limited evidence … before [it]” to be satisfied that the applicant was a gay man (as he claimed) or that there was a real chance he would suffer persecution if he were to return to Malaysia (for that or any other reasons) (at [18]-[19]).
In those circumstances, the Tribunal was not satisfied (on the very limited evidence before it), that the applicant had a well-founded fear of persecution in Malaysia. Nor was the Tribunal satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk that he would suffer significant harm. The Tribunal also found that the applicant was not a person in respect of whom Australia had protection obligations under the refugee criterion (set out in s 36(2)(a) of the Act) or the complementary protection criterion (set out in s 36(2)(aa) of the Act) (at [20]-[21]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicant the visa (at [23]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 6 February 2024) contains three “grounds of review”, as follows (without alteration):
1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm and harassed by homesexual, causing depression. If I return to Malaysia, I will facing mental street and depression because of homesexual discrimination. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia.
However, the case officer failed to investigate the applicant's claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.
2.I believe that the AAT case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision.
3.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but not just to concern.
The applicant also filed an affidavit in support of that judicial review application (deposed by the applicant on 2 February 2024 and filed on 6 February 2024). That affidavit repeated the “grounds of review” (set out above) and annexed a copy of the Tribunal’s decision (dated 24 January 2024).
On 27 March 2024, procedural orders were made by Registrar Downing of this Court, giving the applicant an opportunity to file an amended application, written submissions and any additional evidence. Unfortunately, no additional materials were filed by or on behalf of the applicant.
Written submissions were filed on behalf of the Minister on 4 October 2024 and an affidavit of service of Mr Benjamin Mayne (“Mr Mayne”) (affirmed on 14 October 2024 (the “Mayne affidavit”)) was filed on behalf of the Minister on 15 October 2024.
First hearing before this Court
The applicant first appeared before this Court on 18 October 2024. He did so without legal representation. The applicant was assisted at that hearing by an interpreter in the Mandarin language. Ms Aatika Ismailjee (“Ms Ismailjee”) from Sparke Helmore appeared at that hearing on behalf of the Minister.
Prior to the commencement of the hearing, Ms Ismailjee informed the Court that the applicant had (in conversation with the interpreter) raised concerns with the conduct of his migration agent or representative, articulating what appeared to be an allegation of fraud by an agent or third party.
In light of the decision made by the Full Court of the Federal Court of Australia (the “Full Court”) in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 (“SZRUR”) (which will be discussed further below), and as explained by this Court recently in BDE23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 372 (“BDE23”), the Court considered it beneficial to adjourn the matter to allow the applicant time to provide additional evidence in relation to what appeared to be alleged fraudulent conduct on the part of his migration agent or a third party.
The Court explained to the applicant that, where an unrepresented applicant raises a claim about “fraud”, the decision of SZRUR requires that the applicant be given an opportunity to file any evidence (by way of affidavit annexing evidence supporting those claims) and be put on notice that, in order for the Court to properly consider any allegations of fraud, he might be required to give evidence (from the witness box) about those allegations and be available for cross-examination in that regard.
The Court also explained to the applicant that he needed to provide (preferably in writing by way of affidavit) evidence about “what happened with [his] agent” and what he thinks his agent “did” that disadvantaged him. He was also advised that he needed to give the Court details of any concerns he might otherwise have in relation to his agent’s conduct (including any information about what appeared to be an allegation that the agent told him not to attend the Tribunal hearing). The Court noted that, given that the applicant was not legally represented before the Court, the evidence did not need to be formal and that the applicant simply needed to explain what happened and to identify his agent (if he was capable of doing so).
The Court further explained that, if the applicant wanted someone to appear at the hearing to “help him with that evidence” (explaining, for example, that there might be someone who overheard a conversation with his agent who could present that evidence to the Court), then he needed to let the Court and the Minister know who that person is and how they might be contacted. Similarly, it was explained to the applicant that he needed to identify his migration agent (if he could) or any other person who assisted him or was involved with the alleged fraud. The Court further explained that, once he had provided that information to the Court (by way of affidavit or written submissions), the Minister’s representatives would then decide if they wanted to ask any questions of the applicant or any other persons he identified as having knowledge about alleged fraudulent conduct.
On the basis of that discussion with the applicant (as outlined above), the Court made the following orders:
1. The hearing be adjourned to 8 November 2024 at 1.00pm.
2.The applicant have leave to file further evidence, including affidavit evidence, and written submissions in relation to the alleged conduct of his migration agent (or any other person) by 25 October 2024.
3.The first respondent have leave to file any evidence in reply and any further written submissions by 1 November 2024.
4. The parties have leave to apply to vary the contents of these orders.
As set out in those orders, the matter was adjourned to 8 November 2024.
Unfortunately, no evidence was filed by or on behalf of the applicant in accordance with the orders made by this Court (on 18 October 2024 and outlined above). This is most unfortunate.
As a result, no further materials were filed on behalf of the Minister.
Second hearing before this Court
The applicant appeared again before this Court (at the second hearing in this matter) on 8 November 2024. He was again assisted by a Mandarin interpreter. Mr Mayne from Sparke Helmore appeared on behalf of the Minister.
The Court asked the applicant if he had received copies of the Court Book and the Minister’s written submissions. The applicant confirmed that he had received both.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 6 February 2024 (the affidavit being taken as read and in evidence at the second hearing of this matter), a Court Book numbering 66 pages (marked as Exhibit 1 at the second hearing of this matter), written submissions filed on behalf of the Minister on 4 October 2024 and the Mayne affidavit (also taken as read and in evidence at the second hearing of this matter).
CONSIDERATION
As outlined above, the core concern raised by the applicant at the first hearing of this matter (on 18 October 2024) alleged fraudulent conduct on the part of his migration agent or a third party. Essentially, the applicant stated that he had not attended the Tribunal hearing because his agent “told him not to” do so.
Noting that the applicant was not represented, however, and noting the remarks of the Federal Court of Australia 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 a further opportunity to outline any other concerns he might have in relation to the Tribunal’s decision.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court also 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 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 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 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 he didn’t have any further concerns and there was nothing else that he wished to say to the Court. The Court notes that it also gave the applicant a further opportunity at the end of the hearing (before adjourning the Court) to raise any further issues with the Court. The applicant again declined to do so.
The applicant’s comments and evidence before this Court (at both the first and second hearings) thus centre on alleged fraudulent conduct by his agent or a third party.
Allegations of fraudulent conduct
What is fraud?
This Court recently outlined what amounts to fraud in its decision in BDE23. That overview applies equally in this case and is repeated below (with minor amendments and additions).
It is well accepted that fraud “can come in various guises” and is “infinite in variety”. As such, the Courts “have always declined to define it … reserving to themselves the liberty to deal with it under whatever form it may present itself”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”) at [8].
Having said that, there are two different types of fraud cases which often arise before the Courts. The first relates to matters in which there has been a fraud “on” the Tribunal (or decision maker). The second relates to a situation where there has been a fraud “in” the visa application process.
In matters where an applicant alleges that there has been a fraud in the visa application process, applicants usually seek declaratory relief or raise concerns about the validity of their visa application as a result of the fraud.
That is not the case in this matter.
Once fraud has been proven, the consequences are significant. In Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (“Lazarus”), Denning LJ (as Lord Denning then was) stated (emphasis added):
No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever: see as to deeds, Collins v Blantern; as to judgments, Duchess of Kingston’s case; and as to contracts, Master v Miller.
In SZFDE, the Full Court of the Federal Court explained that fraud in a public law context could be “set apart” from fraud in relation to civil suits. The Court explained as follows:
22.… It is that often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted. … In the present case, the only remedy that would be of real utility to the appellants is an order that provides them with the opportunity to press their claims to a protection visa in a fair hearing conducted according to law.
Fraud of the sort identified in SZFDE was of concern to the Court because it “stultified” the operation of the relevant legislative scheme, resulting in the appellants being denied procedural fairness. The Full Court noted that, as a result of the fraud by the agent in that matter, the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” and the conduct “merited” the “description of the practice of fraud “on” the Tribunal”: SZFDE at [51].
It is also now well established that fraud is a serious allegation which must be “distinctly pleaded and proved”: SZFDE at [15] (citing Lazarus at 712‑713).
Further, the alleged fraudulent action must be proven to the requisite standard as set out in s 140 of the Evidence Act 1995 (Cth), which relevantly provides as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Identifying the type of acts that will constitute a fraud “on” the Tribunal is not always an easy task. As explained by the Full Court in Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 (“SZLIX”), a “failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal”: SZLIX at [33].
The Full Court identified in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 at [74] that, in order for this Court to make a finding of fraud, it must specify (and the applicant must at least identify) the following matters:
(a)“what” was fraudulent (for example, advice from the agent, information that had been provided) (the “alleged fraudulent action”);
(b)“how” it was fraudulent (for example, because no consent had been given for the agent to do what they did, because the agent did it for an improper purpose and/or because it was done when it was known to be incorrect/untruthful); and
(c)how it was acted upon (for example, what the alleged fraudulent action led the Tribunal to do).
If an alleged fraud can be proven, an applicant must also satisfy this Court that they were “neither complicit in the fraud nor ‘indifferent’ to it”: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 (“Maharjan”) at [102]. As was observed in SZRUR by then Chief Justice Allsop, that is a heavy burden: Maharjan at [102] (citing SZRUR at [51]).
When an allegation of fraud is raised before this Court, the High Court has stressed that, when hearing an application for judicial review, this Court may “take account of any relevant material placed before it”: SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40 (citing Craig at 175-176).
When an unrepresented applicant raises an allegation of fraud, “special care” must be given to ensure that the applicant is afforded procedural fairness.
SZRUR was an appeal from a decision of a judge of the then Federal Circuit Court (the “FCCA”). The issue for consideration by the Full Court was whether the FCCA had denied the appellant procedural fairness. The Full Court found that it had and that the denial of procedural fairness in that case arose for the following reasons:
(a)the appellant had raised (in their grounds of review) a claim that his migration agent did not inform him of the date of the Tribunal hearing and, as a result, the appellant was denied “natural justice” by the Tribunal having made a decision without the appellant appearing. The appellant provided no affidavit evidence to support that claim;
(b)when the matter came before the FCCA, the appellant (who was unrepresented and assisted by an interpreter) told the FCCA, from the bar table, that he had expected to hear from his migration agent about the Tribunal hearing date, but he did not. Further, the signature on the form responding to the hearing invitation (before the Tribunal) was not his and he gave no authority to the migration agent to sign anything on his behalf;
(c)during the hearing, it had not been explained to the appellant that if he wanted the FCCA to rely on his statements made from the bar table (as outlined above), it was necessary for him to go into the witness box and make those statements after being duly sworn or affirmed. The appellant also did not have it explained to him what issues he was required to address in relation to an allegation of fraud;
(d)because the matters (set out at (c) above) were not explained to the appellant, he had been denied procedural fairness.
At the second hearing of this matter, this Court confirmed that it had discussed the applicant’s concerns about the alleged fraudulent action of his agent with him at the first hearing of this matter and noted that, whilst the Court had given the applicant an opportunity to provide documentary evidence in that regard (and had explained to him the importance of providing that evidence to the Court at the first hearing), no such evidence had been forthcoming. On that basis, the Court asked the applicant if he still wished to press his concerns about the conduct of his migration agent or a third party.
The Court explained to the applicant that it could allow the applicant to explain to the Court what happened with his agent (orally) but, in order to do so, the applicant would need to take an oath or an affirmation. The Court also explained to the applicant that if he chose to give evidence, Mr Mayne (who was appearing on behalf of the Minister) might have some questions for him – questions that would allow the Minister to better understand what had happened. The Court explained that this was what the Court refers to as cross-examination.
The applicant indicated that he wished to give evidence and took an affirmation so that he could do so. The evidence given by the applicant (including questions answered by him in cross-examination) was done with the assistance of the interpreter.
The applicant’s oral evidence
The Court noted that, at the first hearing in this matter, the applicant raised some concerns about the conduct of his migration agent. The Court highlighted that, in effect, what the applicant had said was that he did not attend the Tribunal hearing because his agent told him not to. The Court then asked the applicant to explain to the Court and to Mr Mayne (on behalf of the Minister) what happened with his agent and what his concerns were in that regard.
The applicant responded as follows (through the interpreter and extracted from a transcript of the second hearing before this Court (the “transcript”) at p 4, without alteration):
Okay. Because always leave my issue to my agent to handle. And December last year, I got the letter from the Department of Immigration to refuse my application. And then I asked my agent, what should I do? The agent said, you don’t need to do anything, just leave the court to handle it, to deal with it.
The Court asked the applicant if there was anything else he wished to say about the conduct of the agent and the applicant responded as follows (through the interpreter and extracted from the transcript at p 6, without alteration):
And later on, he applied on my behalf for automatic sentencing or decision.
The Court again asked the applicant if there were any further concerns he had with his agent. The applicant said that there were not.
Cross-examination of the applicant
The Court explained to the applicant that Mr Mayne would ask him some questions. The Court also explained to the applicant that he needed to listen carefully to what Mr Mayne was saying and respond to his questions to the best of his abilities (with the assistance of the Mandarin interpreter).
Mr Mayne began by asking the applicant some questions about his agent, as follows.
Mr Mayne: Mr Applicant, what was the name of your agent? Applicant: [First name only provided by the applicant but omitted and referenced only as “S”]. I just know he’s [“S”]. Mr Mayne: “S”. What was the name – did the agent have a business? Applicant: I’m not sure, because previously I got his name from online. And since then, I always trusted my migration issue to him. Mr Mayne: When did you find the agent online? Applicant: Maybe in 2019. Mr Mayne: So, you found your agent at the – when you had your Tribunal review? Applicant: Yes. Mr Mayne: And what was the reason for – sorry, I will start again. What was the nature of your inquiries or questions to the agent? Applicant: I just told him to deal with my visa issue.
Mr Mayne took the applicant to various pages of the CB, starting with page 47 – which contained the completed (and undated) “Change of Contact Details” form – and asked the applicant if the email address on that page (being the new nominated email address) was his email address. The applicant answered “yes”.
Mr Mayne then took the applicant to page 52 of the CB (being page two of the questionnaire which was provided to the Tribunal on 10 December 2023). Mr Mayne asked the applicant if he had completed that form. The applicant said that the “agent did it”.
Mr Mayne then questioned the applicant about that questionnaire form and its contents, as follows.
Mr Mayne: Before you completed the form, did you read it? Sorry. I will start again. Sorry. Before this form was sent to the Tribunal, did you read this form? Applicant: No. Mr Mayne: So, this form, if I can take you to page 56 of the court book. So, this form shows that – sorry, this page of the court book shows that the form was sent to the Tribunal from your email address? Applicant: The agent send me this application, and then I just forward it to AAT. Mr Mayne: Yes. So, you forwarded to the Tribunal; correct? Applicant: Yes. Mr Mayne: Okay. And I am correct to say that you did not understand, because you didn’t read the form, you did not understand the contents of the form? Applicant: Correct. Mr Mayne: Is there a reason why you did not seek to clarify your understanding, or to read the form? Applicant: Because my agent always handle my issue, so I didn’t really pay attention to what I need to do. I didn’t understand the law either, the immigration issue. Mr Mayne: So, if you didn’t understand this form, why did you think it was a good idea to send it to the Tribunal? Applicant: Because the agent told me that he will do it for me. And then – so he asked me to send it – forward it to the Tribunal directly. Mr Mayne: If you relied on your agent like you say you did, why did you not disclose that you had an agent in your Tribunal documents? Applicant: What documents to the Tribunal? Mr Mayne: For example, if you go to court book 47 again. And your evidence was that in 2019, you found this agent. This form was provided to the Tribunal in October 2020. Applicant: This year or last year? Mr Mayne: 2020. Applicant: 2020. Mr Mayne: And if you turn the page to page 48, to the next page. You expressly indicated that you were cancelling your representation. Applicant: Which – which question? Mr Mayne: That is “E”, cancellation of representative. Applicant: I don’t know, because all those questions were filled out by my agent. Mr Mayne: So, your agent provided this form? Applicant: Yes. I’m not sure whether it was the time when the Department of Immigration came to my house, and asking me to change my address.
Mr Mayne then asked the applicant some general questions about his agent and why he had not notified the Tribunal that he was being assisted by or represented by an agent or third party, as follows:
Mr Mayne: Okay. If I could take you, please, to page 49 of the court book. This email was sent from the Tribunal to your email address. Do you agree with that? Applicant: Yes. Mr Mayne: Do you remember receiving this email? Applicant: I do. Mr Mayne: And am I correct in saying that you – all email correspondence from 2020 that you received from the Tribunal, you just gave it straight to your agent? Applicant: Yes. Mr Mayne: So, why did you not disclose that you had a representative or agent to the Tribunal? Applicant: How do I disclose to the Tribunal? Mr Mayne: If I could turn to the Tribunal application, so that is on page 42. So, in this form, you said – sorry, in this form, you did not have an agent at this time in 2018. Applicant: 2018? … Mr Mayne: Yes. Applicant: That is the year? Mr Mayne: Yes. He applied for a review at the Tribunal in 2018, is that correct? Applicant: Which part of the page? Mr Mayne: Just the whole document. Applicant: Also, this was done by the agent. Mr Mayne: Okay. Applicant: And this was done by the first agent. I’ve got two agents. Mr Mayne: So, if you turn to the next page, the – sorry. Yes. So, page 45, the email address recorded there. Was that your email address at the time of your Tribunal application in 2018? Applicant: Where is the email address? Okay. This email address was put in, but – by the first agent, and – but this is not my email address, not my personal email address. Mr Mayne: Okay. So, did you have access to that email at all? Applicant: No. Mr Mayne: Okay. Just one last question. Going back to page 49, it’s court book page 49. Yes. So, the email address on this document at the top, you confirmed before that was your email address; correct? That’s your email – yes. Why didn’t you tell the Tribunal that you had an agent by replying to this email from the Tribunal? Applicant: I don’t know how to tell the Tribunal. Mr Mayne: You didn’t know how to reply to an email? Applicant: Well, I’ve already changed my email address, so I can always get all the information from this email address. Mr Mayne: Yes. I understand that you said this was your email address. Why didn’t you reply to the Tribunal, to this email, saying that you had an agent? Applicant: But I don’t know I need to – I need to inform the Tribunal. Mr Mayne: You didn’t know? Applicant: No. I didn’t.
At the conclusion of Mr Mayne’s cross-examination, the Court asked the applicant if there were any other concerns he wished to raise or anything further that he wanted to say to the Court. The applicant responded by saying that there was nothing further.
Whether the alleged fraudulent action has been proven
As outlined above, the applicant claims that he did not attend the Tribunal hearing because his agent told him not to do so. The applicant also claims that his agent took care of all of his immigration issues, he was not aware of what the agent had told the Tribunal (on his behalf) and there were two agents who had assisted him (although it is not clear which agent is the agent the applicant referenced as “S”).
Before this Court, the applicant gave oral evidence that the agent was a man named “S” but was unable to provide any further information about the agent (other than to tell the Court that he found him online). Unfortunately, the applicant did not provide any documentary evidence to the Court in that regard, despite being given the opportunity to do so.
The evidence contained in the CB indicates that the applicant:
(a)answered “no” to the question of whether he “authorise[d] another person to receive communication about [his visa] application on [his] behalf” (CB 5);
(b)agreed to the Department communicating with him by email and provided the first nominated email address to enable the Department to do so (CB 5);
(c)did not include details of a representative or authorised recipient in his review application filed with the Tribunal and asked that all correspondence be sent to him (as the review applicant) directly at the first nominated email address (CB 43);
(d)provided a completed “Change of Contact Details” form to the Tribunal (CB 47-48). That form provided the Tribunal with the new nominated email address (CB 47). It also indicated that the applicant “withdrew” previous authorisation for any person to act on his behalf or to receive any correspondence on his behalf (CB 48);
(e)sent the completed questionnaire back to the Tribunal using the new nominated email address (CB 50) and the completed form contained the new nominated email address in the section requesting the applicant’s contact information (CB 52); and
(f)used the same email address (being the new nominated email address) and other contact details (being his residential address and mobile phone number) as were provided to the Tribunal in the completed questionnaire in his judicial review application filed in this Court.
As can be seen from the information outlined above, there is simply no documentary evidence before this Court to suggest that there was any agent or third party appointed by the applicant to assist him with his visa application or the Tribunal review.
Even if this Court were to accept that the applicant had been assisted by an agent (despite the lack of evidence to suggest that any such agent existed or provided any assistance to the applicant) and that the applicant was unable to recall (from memory) specific details about that agent or the agent’s business, the Court would expect (as previously stressed by this Court in BDE23) there to be some documentary evidence that demonstrates some interaction between the applicant and his purported agent or agents. There might, for example, be evidence of some payment to the agent in the form of bank statements or receipts, some correspondence between the applicant and that agent about his Tribunal review application or the Tribunal process more generally (noting that the applicant gave evidence to the Court that the agent had “sent him” the completed questionnaire and told him to forward it to the Tribunal himself) and/or previous contact details or other information about the agent (including a surname and/or business name and any business or agency through which the agent conducted business).
Unfortunately, the applicant did not provide any such evidence. Nor did he provide any details about his interaction with his agent, where his offices were, where the applicant met the agent to discuss the applicant’s Tribunal review application or how much contact he had with that agent. Unfortunately, the applicant was also not able to supply a surname or contact number for the agent – simply referring to him as “S” and noting that he had found the agent “online”.
While the Court has considerable sympathy for all applicants who appear before this Court without legal representation and with limited or no English-speaking skills, there is only so much that the Court can do to assist applicants.
Further, the Court can only base its decision on the materials before it.
Unfortunately, in this matter, the Court is not satisfied, based on the limited oral evidence (and noting the distinct lack of documentary evidence) before it, that the applicant has demonstrated that the alleged fraudulent action took place. The applicant’s evidence was limited and vague. He offered almost no information about what happened, when he had stopped being assisted by the agent or agents and why and responded to questions asked of him in a way that offered no evidence of a sort that might assist him. Indeed, without more, there is simply no evidence that the applicant was represented by any agent or agents or that he was assisted by any third party at any point (either before the Department or the Tribunal).
The applicant has not discharged the burden of proof required in cases of this sort.
As outlined above, to establish fraud, the applicant would also need to explain how the alleged fraudulent action prevented the Tribunal from complying with its statutory obligations in conducting its review. The applicant has not done so (although he did seem to suggest that the Tribunal was not able to properly conduct its review because his agent told him that there was no need to attend the Tribunal hearing).
As explained above, even if the Court were to find that the alleged fraud had been proven (which it has not been in this case), the applicant would also need to satisfy the Court that he was “neither complicit in the fraud nor ‘indifferent’ to it”: Maharjan at [102]. As was observed in SZRUR by then Chief Justice Allsop, that is a heavy burden: Maharjan at [102] (citing SZRUR at [51]).
The Court considers that the applicant’s conduct in this matter was at best indifferent.
The applicant claims that he did not read or attempt to understand the information contained in the completed questionnaire before providing it to the Tribunal (allegedly on instructions from his purported agent).
The Court notes that the applicant had access to the email account attached to the new nominated email address and told the Court that he received all communications from the Tribunal himself.
The Court notes that, despite the applicant sending completed forms to the Tribunal and updating his email address and other contact details, he did not, at any point, attempt to inform the Tribunal that he had an agent acting on his behalf.
The applicant has not discharged the burden of proof required in cases of this sort. However, even if the Court is wrong and the applicant has done so, the Court considers that the any complaint of fraud could not be established because the Court is not satisfied that the applicant’s conduct in relation to his merits review application before the Tribunal was not “indifferent”: Maharjan at [102].
The Court is satisfied that no fraudulent conduct occurred that prevented the Tribunal from properly conducting its review.
No jurisdictional error arises in relation to the alleged fraud.
Grounds of review
As outlined above, the application for judicial review (filed by the applicant) contains three “grounds of review”, as follows (without alteration):
1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm and harassed by homesexual, causing depression. If I return to Malaysia, I will facing mental street and depression because of homesexual discrimination. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia.
However, the case officer failed to investigate the applicant’s claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.
2.I believe that the AAT case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision.
3.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but not just to concern.
Noting that the applicant was unrepresented in this matter, the Court has reviewed the applicant’s grounds of review (as articulated in his judicial review application) and interpreted them as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicant’s “grounds of review” to raise the following concerns:
(a)whether the Tribunal was required to “investigate” the applicant’s claims;
(b)whether the Tribunal failed to consider a claim or an integer of the applicant’s claims;
(c)whether the Tribunal failed to consider relevant material; and
(d)whether the Tribunal’s decision was unreasonable.
These issues will be addressed below.
Whether the Tribunal was required to “investigate” the applicant’s claims
The applicant claims that the Tribunal failed to “investigate” his claims for protection.
As this Court has explained in BBG23, s 5AAA of the Act states that it is an applicant’s responsibility to “specify all particulars of his or her [protection] claim” and “to provide sufficient evidence to establish the claim”: s 5AAA(2) of the Act. Further, the Minister (or the Tribunal) does not have any responsibility or obligation to “assist in specifying any particulars of the [applicant’s] claim” or to “establish, or assist in establishing the claim”: s 5AAA(4) of the Act.
As also explained by this Court in Thummala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 828, the duty imposed on the Tribunal is to conduct a review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. While the Tribunal has some powers to obtain information (for example, pursuant to s 424 and s 427 of the Act, as were in force at the time of the Tribunal’s decision in this matter), it does not have a general duty to make its own enquiries in order to make an applicant’s case or investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (“SGLB”) at [43].
It is also well established that the Tribunal is under no obligation to investigate or conduct an inquiry to determine whether an applicant’s case might be “better put” or supported by additional evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; SGLB at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
Further, in order for an error to arise of the sort the applicant alleges, three conditions must be established. There must be a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable and it must supply a sufficient link to the outcome as to constitute a failure to review: SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 at [21] (cited in MZABA v Minister for Immigration and Border Protection [2015] FCA 711 at [61]).
That was not the case in this matter.
Here, the applicant did not provide any evidence or supporting documents with his visa application.
The Tribunal invited the applicant to provide additional information in support of his review application by completing the questionnaire (CB 49). That questionnaire asked the applicant if he wanted to “give any more information about [his] claims for protection” (CB 54). In response, the applicant simply stated as follows:
•The applicant claims to be homosexual.
•The applicant fears harm if he returns to Malaysia.
The questionnaire also informed the applicant that, if he wanted to “submit any further evidence to the Tribunal”, he should do so “in writing” as soon as possible (CB 54). The applicant did not provide any further evidence to the Tribunal.
Based on the limited information before it (being the applicant’s visa application and the “information” provided by the applicant in the completed questionnaire only), the Court is satisfied that there were no obvious inquiries that the Tribunal ought to have made about any critical fact in this case.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to consider a claim or an integer of the applicant’s claims
The applicant also claims that the Tribunal failed to consider his protection claims or an integer of one of his claims.
As this Court explained in AMO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 326, a Tribunal will err if it excludes from its consideration some factor which should affect its determination: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360.
Establishing exactly what should have been considered by the Tribunal in any given matter is often a difficult task. As Judge Wilson explained in AUV15 v Minister for Immigration & Anor [2017] FCCA 1951 (footnotes omitted):
19.A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether, by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).
An applicant’s protection claims and their component integers are, however, considerations that are mandatorily relevant under the Act. Justice Allsop (as he then was) considered the nature of the Tribunal’s review function in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, stating (at [42]):
... The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
The Tribunal is not, however, required to give consideration to a claim that is not expressly made or that does not arise clearly on the materials before it. As explained in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 (“NABE”) at [61]-[62]:
…the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
Whatever the scope of the tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [31]–[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 203 ALR 112; [2003] HCA 71 at [1]:
... Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
It follows that, if a Tribunal fails to consider a claim, or misunderstands or misconstrues a claim which is raised on the evidence before it, the failure to do so may constitute jurisdictional error. In this regard, it is noted that the Full Court of the Federal Court in NABE stressed as follows (at [63]):
It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. But as the Full Court said in WAEE (at [45]):
...If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
As outlined above, the applicant did not provide any supporting materials or additional evidence to the Department or to the Tribunal. The only evidence before the Tribunal was the applicant’s visa application and the information contained therein and the (limited) additional information included in the completed questionnaire.
In the applicant’s visa application, the applicant claimed that (CB 13-14):
(a)he suffered from a lot of discrimination because he was gay and the people in his home country are not open minded or are too conservative to accept that;
(b)he suffered physical injuries and mental illness as a result of that discrimination;
(c)people in his home country are upset about and are not ready to accept gays;
(d)people around him (for example, neighbours, villagers, colleagues and relatives) had harmed him; and
(e)if he returned to Malaysia, he would suffer the same harm he had previously faced.
The Tribunal set out those protection claims in its written reasons (at [3]).
The Tribunal also set out the (limited) “additional information” provided by the applicant in the completed questionnaire in full in its written reasons (at [16]).
The Tribunal considered the applicants protection claims in detail based on the limited evidence before it (being the information set out in the applicant’s visa application and the completed questionnaire).
The Tribunal ultimately found as follows:
17.In the circumstances, there is insufficient detail in the applicant’s written evidence of his sexual orientation, the exact nature of the harm feared, whether the harm he fears amounts to serious harm and if there is a real chance or a real risk that he will experience serious harm or significant harm if removed to Malaysia now or in the reasonably foreseeable future.
18.Had the applicant appeared before the Tribunal, I could have explored his experiences as a gay man in Malaysia. I could have sought to explore, in more detail, the discrimination and harm that claims to have suffered in Malaysia and fears that he will suffer if he is to return to Malaysia. I could have explored with the applicant why he considered that he could not obtain protection or why he could not relocate to an area in Malaysia where he might be safe. I could have raised my concerns about the lack of detail and specificity in his evidence to date and the applicant could have assuaged those concerns.
19.However, there is insufficient detail in the very limited evidence presently before the Tribunal to satisfy me that, among other things the applicant is, as he claims, a gay man or that there is a real chance that he will suffer persecution if he were to return to Malaysia for that reason or for any other reason at all. It is also insufficient to satisfy me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
20.In the circumstances, I am not satisfied, on the very limited evidence before me, that the applicant has a well-founded fear of persecution in Malaysia. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
As can be seen from the Tribunal passages above, the Tribunal essentially rejected all of the applicant’s claims in their entirety.
The Court is satisfied that the Tribunal considered all of the applicant’s protection claims. The Tribunal then made findings in relation to those claims based on the very limited evidence before it.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to consider relevant material
Insofar as the applicant claims that the Tribunal failed to consider a relevant document, the Court notes that, as outlined above, the applicant did not provide any additional information or documents to the Department after the filing of his visa application.
Further, despite the Tribunal giving the applicant an opportunity to do so, the applicant also failed to provide any further materials or information to the Tribunal in support of his review application.
The relevant material before the Tribunal was thus limited to the applicant’s visa application and the completed questionnaire (containing very limited information).
As outlined above, the Tribunal considered the applicant’s protection claims in detail (as raised by the applicant in his visa application). The Tribunal also confirmed that it had received the completed questionnaire from the applicant and repeated and had regard to the limited information included in that document.
The Court is satisfied that the Tribunal considered all relevant (albeit limited) information before it.
No jurisdictional error arises in this regard.
Whether the Tribunal’s decision was unreasonable
The applicant also claims that the Tribunal “made an unreasonable decision”.
As this Court explained in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673, legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4].
The principles concerning legal unreasonableness were 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].
As outlined above, the applicant declined to attend a Tribunal hearing and, instead, consented (in the completed questionnaire) to the Tribunal making a decision “on the papers” (CB 52).
The Tribunal identified the applicant’s claims (as set out in the applicant’s visa application and the completed questionnaire) and had regard to the material and evidence before it.
The Tribunal considered that limited information in detail and, as set out above, rejected the applicant’s protection claims in their entirety.
The Court considers the Tribunal’s findings in this matter to be logical and reasonable. Further, the Court is not satisfied that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 6 February 2024) and the applicant’s oral evidence before this Court have 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 one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 March 2025
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