APT19 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 856

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

APT19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 856

File number(s):

SYG 191 of 2021

Judgment of:

JUDGE SKAROS

Date of judgment:

6 June 2025

Catchwords:

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection visa – Malaysia – Whether Tribunal failed to consider claims – Whether Tribunal failed to afford procedural fairness – Whether it is a jurisdictional error for the Tribunal to refer to the Refugee Convention rather than the codified definitions – Weight given to country information – No question of principle – Application dismissed

Legislation:

Administrative Appeal Tribunal Act 1975 (Cth) ss 43C, 44

Migration Act 1958 (Cth) ss 5H, 5J, 36, 424A, 424AA

Cases cited:

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

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

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

SZTAL v Ministerfor Immigration and Border Protection [2017] HCA 34; 262 CLR 362

Division:

Division 2 General Federal Law

Number of paragraphs:

96

Date of hearing:

21 May 2025

Place:

Parramatta

Solicitor for the Applicant:

In Person

Solicitor for the First Respondent:

Ms Schultz, Mills Oakley Lawyers

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 191 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

APT19

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	6 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration and Citizenship.

2.The application filed on 8 February 2021 is 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 SKAROS:

1. By application filed on 8 February 2021 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 3 February 2021. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the protection visa) under s 65 of the Migration Act 1958 (the Act).

   [1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.

   BACKGROUND

2. The applicant is a female citizen of Malaysia. She first arrived in Australia in October 2016 on an electronic travel authority visa. On 30 December 2016, the applicant applied for the visa.

3. In summary, the applicant claimed that she feared harm from a loan shark, whom she borrowed money from in Malaysia, and that she would be impoverished and would not be able to subsist if she returned.  On 6 March 2017 the delegate refused to grant the protection visa.

4. On 7 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision. On 22 January 2019, the applicant appeared before the Tribunal at a hearing. Following the hearing, the Tribunal made an oral decision affirming the delegate’s decision not to grant the protection visa.

5. The applicant applied for judicial review of that decision and, on 27 June 2019, the then Federal Circuit Court made orders by consent remitting the matter to the Tribunal for reconsideration.

6. On 24 November 2020, the applicant was invited to attend a hearing before the Tribunal (differently constituted) on 22 December 2020. On that date it appears that the applicant encountered difficulties in joining the hearing as it was being held by audio visual link due to COVID-19. The applicant requested an adjournment and an in-person hearing. The hearing was rescheduled to 27 January 2021 to take place in person.

7. On 18 January 2021, the applicant provided a statement to the Tribunal in support of her claims for protection.

8. On 27 January 2021, the applicant appeared before the Tribunal in person with the assistance of an interpreter in the Malay and English languages.

9. On 3 February 2021, the Tribunal affirmed the decision not to grant the applicant the visa.

   THE TRIBUNAL’S DECISION

10. The dispositive issue in the review was whether the applicant was a person in respect of whom Australia had protection obligations under s 36 of the Act.

11. The Tribunal identified the criteria for a protection visa; that the applicant must either satisfy the ‘refugee’ criterion or meet the ‘complementary protection’ grounds for protection. The relevant definition of ‘refugee’ and the provisions relevant to the complementary protection grounds under the Act were also set out.

12. The Tribunal identified that it must have regard to Ministerial Direction No. 84 made under s 499 of the Act, and that it must take into account the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’ and any relevant country information assessments.

13. The Tribunal noted that it may have regard to the recording of the proceedings before the Tribunal relating to the first Tribunal decision. The Tribunal then set out the material before it in detail. This included the Department file, the previous and current Tribunal files, identity documents, movement records, submissions, bank statements, letters of demand, counselling notes and court orders relating to the applicant’s alleged bankruptcy.

14. The Tribunal summarised the applicant’s claim as follows at [20]:

    In the application for protection lodged with the Department the applicant claims that she will be persecuted in Malaysia due to threats and persecution by a loan shark from whom she has borrowed 33,000 ringit.

15. It then went on to discuss her claims in further detail as initially made in the visa application form. The applicant had stated that she was a Malay Muslim and had never been married or in a relationship. Her father, mother, brother and sister reside in Malaysia, but she had no contact with them. She had been threated to death by someone from the ‘illegal money’. She borrowed RMB33,000 for a business investment and was unable to pay it back. She had been ‘interrupted physically and mentally’ by the loan shark and she received death threats when she filed a police report. The applicant did not seek help or attempt to relocate in Malaysia and came to Australia because she was depressed. The Malaysian authorities cannot protect her, and people are killed by loan sharks.

16. In a later statement dated 18 January 2021, provided to the Tribunal, the applicant made the following claims. She grew up in a poor family, married in 1999, separated from her husband in 2016 and in 2019 her husband applied for a divorce. She has two children. The applicant opened a shop in Malaysia to provide for her family, and meanwhile her husband lost his job and she had to borrow money to support her business. She could not make the repayments on the loan and her husband did not help her and in mid-2016 she borrowed money from an illegal lender. She stopped paying the bank and in 2018 she was declared bankrupt. She had struggled to make repayments to the illegal money lender, and they have threatened her and her family.  The applicant heard of people travelling to Australia to save money and so she sold her kiosk, left her children with her sister-in-law and came to Australia in October 2016. In Australia she has worked on various farms to provide for her children. She still owes money to the money lender and is bankrupt so she cannot get loans from banks. In August 2020, the sharia courts granted her husband’s divorce application and Malaysian women who are divorced are treated badly in society – no one would support her if she went home. She would also not be able to get a job or support herself or her children as a single, bankrupt, female divorcee. If she does not pay back to the money lender she could be killed or kidnapped or they could harm her children and even if she could repay the money, she would have to keep borrowing funds from illegal lenders to support herself as she is bankrupt and cannot access traditional loans.

17. The Tribunal then recounted the applicant’s evidence given at the hearing before it on 27 January 2021. The applicant gave oral evidence that she had a father, four brothers, a sister and two children in Malaysia. She spoke to her family often. Her son was 20 years old and her daughter was 16 years old, they were both studying and living with her ex-sister-in-law. She worked in Australia for a beef company and had met and married a Malaysian man in Australia in October 2020 who worked at the same company as her. She sent money to her children and her father and was paying off the loan shark – she still owed a small amount of RMB8000 but it was ‘no longer an issue.’ She is happy in her new marriage and if she returned to Malaysia her husband would go with her. As to her claims for protection, the applicant said she cannot return as she would not be able to obtain a job and she is bankrupt. She said she could not survive and that her children needed her. The applicant agreed that she could work despite being bankrupt in Malaysia. As to why the applicant applied for the protection visa, the applicant gave evidence that she needed money and wanted a work visa and that her friend told her to apply for a protection visa. Before coming to Australia, she took out loans from banks but was unable to pay them when her business declined. The applicant also stated that her father was happy she was remarried and that her husband would protect and help her.

18. As to the inconsistency about whether she was married and had children (which she answered in the negative in the application form), the applicant claimed that her English was not good and that her friend told her not to complete that section as ‘they’ will ask for evidence.

19. The applicant also gave evidence about her past and future migration plans. Her company would not sponsor her for a worker visa, her son recently visited Australia on a tourist visa, and she wants her children to come to Australia on student visas.

20. The Tribunal then quoted the available independent country information relating to loan sharks and bankruptcy in Malaysia from the DFAT Country Information Report – Malaysia dated 13 December 2019 (the DFAT Report). In summary, loan sharks operate publicly in Malaysia despite operating illegally. They charge high rates of interest but do not seek protection money. They sometimes require collateral, including homes. There have been instances of people accessing lawful credit to pay off loan sharks. Sources indicated that those unable to service a debt to a loan shark risk threats or actual physical violence against them or their family. There is also significant societal shame associated with being unable to repay a loan shark debt. Authorities may be unsympathetic to individuals who have accessed loan shark services, however, police do have considerable powers to investigate and prosecute loan shark activities. As to bankruptcy, an individual is automatically discharged from bankruptcy after three years if certain criteria is met.

21. After summarising the applicant’s claims, the material before it, the applicant’s oral evidence and quoting the country information, the Tribunal went on to make findings.

22. The Tribunal accepted the applicant’s identity and stated that it found the applicant to be overall be a truthful witness. It accepted her explanation as to the discrepancy in her claims as to her marital status and children. The Tribunal accepted that her main motivation for applying for protection was to work in Australia and accepted that she had taken out loans from banks and financial institution in Malaysia and was now a bankrupt. It accepted that the applicant had now almost paid off her debt to the loan shark and it found that she was no longer at risk of harm from money lenders.

23. The Tribunal did not accept that there was a real chance that the applicant or her family was at risk of harm from loan sharks or that local authorities would not offer assistance, indeed it was satisfied that they do have the capacity to assist. It remarked that the applicant had almost paid off the debt and noted the applicant’s oral evidence that her children had not been harmed.

24. The Tribunal considered that the applicant’s earlier claims of a risk of harm due to being a single divorcee had now fallen away because of the applicant’s evidence that she was married, that her husband was supportive, that her father accepted her husband and that her husband would return to Malaysia with her if required.

25. As to the applicant’s claims that she would not be able to obtain employment in Malaysia as a bankrupt, the Tribunal was satisfied that she would be able to find employment. It noted the applicant’s oral evidence that she could work, and also that she was educated and had a proficiency in the English language.

26. The Tribunal accepted there may be some difficulty in borrowing money and other restrictions as a bankrupt but that the applicant’s husband was not a bankrupt and could assist her. It also did not accept that she would continue to borrow money if in Malaysia.  It was satisfied that the applicant’s children were of an age where they could contribute to their own support and the applicant had a supportive family. It did not accept that she would suffer harm as a bankrupt woman and noted that the bankruptcy laws and restrictions were of general application and had not discriminated against the applicant for a Convention reason.

27. The Tribunal was satisfied that the applicant was not a refugee within the meaning of the Act. Equally, and for the same reasons, the Tribunal 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, there was a real risk she will suffer significant harm.  The Tribunal affirmed the decision under review.

    APPLICATION TO THIS COURT

28. On 8 August 2021, the applicant filed the originating application with this Court which advanced five ‘grounds’ of judicial review.

29. On 5 May 2021, the Minister filed the court book which was tendered at the hearing and marked Exhibit CB.

30. On 30 July 2024, orders were made by a Registrar of the Court providing for the applicant to file and serve any amended application, with proper particulars of the grounds of the application, written submissions and any additional evidence by 13 August 2024. It also provided for the Minister to file and serve written submissions and any additional evidence by 20 August 2024.

31. Nothing was filed by the applicant within the period provided for by the orders. On 20 August 2024, the Minister filed written submissions addressing the grounds in the originating application. The applicant confirmed at the hearing before the Court that she received a copy of those submissions and had read them.

32. The applicant filed an affidavit of herself annexing written submissions on 23 January 2025 which also contained additional grounds of judicial review. There being no objections by the Minister, leave was granted for the applicant to rely on these submissions and grounds.

33. At the hearing on 21 May 2025, the applicant appeared in person with the assistance of an interpreter in the English and Malay languages. The Minister was represented by Ms Schulz of Mills Oakley Lawyers.

34. I had some concerns that the written submissions relied upon by the applicant may have been generated by an online artificial intelligence program, as some of the details to the grounds did not appear to reflect (or engage meaningfully with) the actual decision made by the Tribunal. When asked about the submissions, the applicant said she prepared the document herself, but when asked for further details she explained that she had sought the assistance of a friend in Malaysia who was legally trained. When asked about her friend’s knowledge of Australia’s laws, she then said that she had undertaken the research herself, she discussed the case with her friend and her friend assisted her with drafting the legal submissions.

35. Given the complex legal issues that arise in immigration proceedings, it is not uncommon for unrepresented applicants to rely on informal sources of assistance, including friends who may have some legal knowledge and/or online research tools and accessible technology. Unfortunately, this can lead to submissions which have the appearance of legal sophistication, but on closer inspection they lack substance and fail to properly engage with the decision in fact made or identify accurate particulars to substantiate the allegations of legal error. These types of submissions can be time consuming, for both the opposing party (who must address each allegation or ground raised), and for the Court that has a duty to ensure an unrepresented party has had a fair opportunity to present their case, which would, in some cases, entail discussion and an explanation of applicable legal principles and clarification of each allegation/ground advanced to discern whether they raise an arguable ground of jurisdictional error.  

36. With the above in mind, I explained to the applicant the role and powers of the Court in judicial review proceedings, including the limitation on the Court when considering whether relief can be granted. The applicant was also guided through her application and written submissions and was invited to make oral submissions in support of the grounds of review advanced in those documents.

    RELEVANT LEGAL PRINCIPLES

37. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.

38. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

39. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32] (LPDT).

1. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

   GROUNDS OF REVIEW

2. The originating application for judicial review advanced the following ‘grounds’ (without alteration):

   1.    THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE

   2.      THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS

   3. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;

   4.  THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT IN MY CASE.

   5. ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.

3. As a model litigant, the Minister also raised (and addressed) a further ground in their written submissions; being the Tribunal’s reference to the ‘Convention reason’ and ‘Refugee Convention’ which was properly acknowledged as an incorrect reference to the test.

4. The written submissions annexed to the applicant’s affidavit filed on 23 January 2025 contained the following additional grounds (without alteration):

   1.The Tribunal Failed to Fully Consider My Psychological Impact

   Your Honour,
   The Tribunal failed to give due attention to the evidence of my mental health condition and the trauma I experienced in Malaysia.
   1.1 Evidence from the Counsellor's Letter

   •I submitted a letter from Donna Piromalli, a licensed counsellor, dated 20 January 2019. This letter confirms that I suffer from symptoms of depression and anxiety due to the trauma I experienced in Malaysia.

   •The letter highlights that I attended counselling sessions to cope with the stress caused by a toxic marriage, bankruptcy, and negative life experiences in Malaysia. The Tribunal failed to give adequate weight to this evidence.

   1.2 Impact of Trauma on My Abilities

   •The trauma I endured would prevent me from functioning normally if I were returned to Malaysia. This trauma affects not only my mental health but also my ability to find employment or protect myself from further threats.

   •Stress and anxiety significantly impact my resilience in managing daily life and sustaining an independent livelihood.

   References:

   •SZTAL v Minister for Immigration and Border Protection [2017] HCA 34: Risks to mental health must be considered in assessing real risk.

   2.The Tribunal Ignored the Impact of My Bankruptcy Status on My Risk

   Your Honour,
   The Tribunal failed to adequately assess how my bankruptcy status exacerbates the real risk I face in Malaysia.

   2.1 Evidence from Public Bank Berhad

   •I provided a letter from Public Bank Berhad dated 26 March 2018, confirming that my bank account was closed due to my bankruptcy status, declared by the Malaysian Department of Insolvency.

   •The Tribunal did not give sufficient consideration to this material evidence, which highlights my inability to access formal financial support.

   2.2 Dependence on Illegal Money Lenders

   •My bankruptcy status prevented me from obtaining legal loans to support my family, forcing me to rely on illegal money lenders.

   •The DFAT Country Information Report-Malaysia (2019) confirms that illegal money lenders in Malaysia often employ violent tactics, including threats and physical harm, exacerbating my vulnerability.

   •The Tribunal failed to consider that I lack access to official financial support, leaving me in an extremely precarious position.

   References:

   •Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323: Tribunals must give proper weight to material evidence.

   •DFAT Country Information Report - Malaysia (2019): Highlights ongoing threats from illegal money lenders and failures of state protection.

   3.The Tribunal Failed to Assess Cumulative Risks Holistically

   Your Honour,
   The Tribunal only evaluated each risk factor individually and failed to consider how the combination of risks creates a significant real threat if I am returned to Malaysia.

   3.1 Combination of Risk Factors

   •Threats from illegal money lenders:

   •The letter from Public Bank Berhad demonstrates how my bankruptcy status exposed me to persistent threats from illegal money lenders.

   •These threats include physical violence, intimidation, and psychological stress, as confirmed by the DFAT Country Information Report-Malaysia (2019).

   •Social stigma:

   •As a bankrupt and divorced woman, I face systemic discrimination in Malaysia.

   •This stigma significantly limits my opportunities for employment, social support, and economic stability.

   •Mental health challenges:

   •The trauma and negative experiences I faced in Malaysia have severely impacted my mental health.

   •I suffer from depression and anxiety, as confirmed by the counsellor's letter dated 20 January 2019.

   3.2Failure to Assess Risk Holistically

   The Tribunal failed to connect these factors to assess how they collectively create a significant real risk.

   References:

   •Minister for Immigration and Multicultural Affairs v Wl57/00A (2002) 125 FCR 433: Risk must be assessed holistically.

   •Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379: Real risk does not require proof of definite harm but sufficient evidence of significant likelihood.

   4.The Tribunal Did Not Assess the Failure of Malaysian Authorities to Provide Protection

   Your Honour,
   The Tribunal concluded that Malaysian authorities could provide protection, despite clear evidence to the contrary.

   4.1 Failure of Malaysian Police

   •I filed a police report regarding threats from illegal money lenders, but no follow-up action was taken by the Malaysian authorities.

   •This demonstrates a systemic failure in Malaysia's legal protection framework, leaving victims like me in a vulnerable position.

   •The DFAT Country Information Report-Malaysia (2019) confirms that Malaysian authorities often fail to act on complaints from victims of illegal money lenders.

   4.2 Evidence of Ongoing Threats

   •Threats from illegal money lenders involve physical violence, intimidation, and ongoing social pressure. These are not isolated incidents but persistent risks.

   •The Tribunal failed to assess how these threats continue even when debts are nearly repaid, as highlighted in the DFAT Country Information Report- Malaysia (2019).

   References:

   •SZQRB v Minister for Immigration and Citizenship [2013} FCAFC 33: Ineffective protection from the country of origin is a strong basis for protection claims.

   5.The Tribunal Did Not Give Proper Weight to the DFAT Report

   Your Honour,
   The Tribunal referenced the DFAT Country Information Report - Malaysia (2019) but failed to fully assess its critical findings:

   5.1 Threats from Illegal Money Lenders

   •The DFAT report confirms that illegal money lenders in Malaysia often use violent tactics, including physical attacks and symbolic acts such as splashing red paint on victims' homes to humiliate them.

   •The Tribunal failed to give due weight to these findings, which align with the threats I have faced

   5.2 Failure of Protection by Malaysian Authorities

   •The DFAT report states that Malaysian authorities often fail to provide effective protection for victims of illegal money lenders.

   •The Tribunal did not adequately consider how these systemic failures directly endanger my safety.

   References:

   •SZQRB v Minister for Immigration and Citizenship [2013} FCAFC 33: The lack of effective state protection is a compelling ground for protection claims.

   CONSIDERATION

   Grounds in the originating application

   Ground one

5. By ground one, the applicant contends that the Tribunal failed to consider ‘vital integers’ of her claims. When asked at the hearing which aspect of her claim the Tribunal failed to consider, the applicant said her mental health and financial state. I observed that the Tribunal’s decision indicates that both these claims were considered. In relation to the claim about her mental health, I observed that the Tribunal recorded at [106] of its decision her oral evidence that she did not suffer from depression and that she received support from her second husband. The applicant said she was not prepared to give answers during the Tribunal hearing, she had just got married to her second husband and while ‘on the surface’ her mental health appeared ‘okay’, it was not.

6. The Tribunal’s decision sets out a detailed summary of the applicant’s claims for protection and the evidence provided to the Department and the Tribunal in support of those claims. The Tribunal’s decision demonstrates that it considered the applicant’s claims at the time of its decision based on the evidence before it.

7. In relation to her financial claims, the Tribunal found that the applicant would not face any risk of harm from loan sharks, noting her evidence at the hearing that she no longer feared money lenders harming her or her children. It also found that being bankrupt would not prohibit the applicant from earning a living in Malaysia. The Tribunal’s findings in that regard were open to it on the evidence before it which included the applicant’s own evidence about her financial circumstances at the time of the hearing.

8. As to the applicant’s mental health claims, at [79] of its decision, the Tribunal noted that the applicant said, ‘she was still feeling stressed, she said it was not depression’. At [106], the Tribunal considered the counsellor’s report provided by the applicant and her statements at the hearing where she said, ‘she did not receive any treatment’ and that ‘her current husband supports her when she feels down.’ Based on the evidence before it, the Tribunal was satisfied that if the applicant returned to Malaysia, she would continue to have the support of her second husband and her family and would not need to seek out further treatment to deal with any stress. No error is disclosed in the Tribunal’s consideration of the evidence before it or its conclusion regarding the applicant’s mental health claims.

9. I am satisfied that the Tribunal comprehensively considered the applicant’s claims, including those relating to her financial circumstances and mental health, and I have not been able to identify any integers of those claims which the Tribunal did not properly consider.

10. As to the applicant’s submission that her mental health, when she appeared before the Tribunal, was not ‘okay’ despite seeming to be so, there is no evidence before the court which suggests that the applicant had a condition which may have affected her capacity to participate effectively in the hearing.  As submitted by the Minister, the counsellor’s report merely stated that the applicant had been referred for symptoms of depression and anxiety and was not evidence of a formal diagnosis.

11. I also note that the counsellor’s report was dated some two years prior to the Tribunal’s hearing and when the content of that report was discussed with the applicant at the hearing, she gave evidence at [106] that she had seen the counsellor on two occasions, had not received any further treatment and that her ‘husband supports her when she feels down’. In the circumstances, it cannot be said that the Tribunal failed to consider the applicant’s mental health condition or that there was any evidence before it which suggested the applicant did not have the capacity to participate in the hearing.

12. None of the matters raised by this ground establish jurisdictional error on the part of the Tribunal.

    Ground two

13. By ground two the applicant alleges that the Tribunal deprived her of procedural fairness. When asked which aspect of the review process she felt was unfair or which procedure she believes the Tribunal failed to follow, the applicant said she provided documents and evidence to the Tribunal, but they were taken ‘lightly’.

14. As submitted by the Minister, the Tribunal’s obligations regarding procedural fairness were set out in Division 4 Part 7 of the Migration Act, as it then applied. The evidence before me indicates that the Tribunal invited the applicant to appear before it at a hearing, which had been rescheduled to an in-person hearing at the request of the applicant. A fair reading of the Tribunal’s reasons discloses that the applicant was given a real and meaningful opportunity at the hearing to give evidence and present arguments in support of her claims for protection. I accept that the material relied upon by the Tribunal in its reasons was based on the applicant’s own evidence and country information, which was discussed with the applicant at the hearing, and which was not information that was required to be put to the applicant under ss 424A/424AA of the Act. I am unable to identify any procedural obligation which the Tribunal failed to comply with when conducting the review.

15. As to the applicant’s complaint that the Tribunal took her evidence ‘lightly’, it is well established that the weight attributed to evidence is a matter for the Tribunal. A fair reading of the Tribunal’s reasons demonstrates that it had regard to the information contained in the documents and the evidence provided by the applicant in support of her claims. I have not been able to identify any error in the Tribunal’s consideration of the supporting material and evidence provided by the applicant. Nor have I been able to identify any error in the Tribunal’s findings or the conclusions it arrived at based on the evidence before it.

16. None of the matters raised by this ground establish jurisdictional error on the part of the Tribunal.

    Ground three

17. By ground three, the applicant alleges that the Tribunal relied on incorrect information and determined her case based on facts from other cases. When asked to provide particulars to this ground, the applicant said there were many cases before the Tribunal by Malaysian nationals which involved claims about fear from loan sharks and that the Tribunal was affected by those cases and this made it seem like her case was not real, despite her provision of corroborative evidence from Malaysian authorities.

18. There is no evidence before the court which suggests that the Tribunal relied on any incorrect information or that it had considered facts of other cases with similar claims when considering her claims for protection. I accept the Minister’s submission that the applicant has failed to identify any facts relied on by the Tribunal in its reasons which were either incorrect or related to another review application.

19. The Tribunal’s decision plainly demonstrates that the evidence to which it had regard was that which had been provided by the applicant to the Department and the Tribunal in support of her claims. The Tribunal’s decision record does not disclose any facts or information relied upon by the Tribunal which was not relevant to the applicant or appeared to be relevant to another case.

20. Ground three does not establish jurisdictional error.

    Ground four

21. By ground four the applicant alleges that the Tribunal did not ask her questions about the types of harm she would experience. In oral submissions, the applicant said the Tribunal made an assumption that her case was not true.

22. The Tribunal’s reasons plainly demonstrate that the applicant was asked about her claim to fear of harm in Malaysia: see [52], [63]. The applicant was also given the opportunity by the Tribunal to provide anything further she wished: see [79].

23. In determining whether there was a real chance (or real risk) that the applicant would suffer serious or significant harm if she returned to Malaysia, the Tribunal considered the evidence provided by the applicant in support of her claims as well as the country information before it relevant to those claims. The Tribunal’s reasons do not disclose any assumptions made about the applicant’s claims not being true. On the contrary, notwithstanding the discrepancies it identified in the applicant’s evidence (at [92]–[93]), the Tribunal expressly stated at [92] that it found most aspects of the applicant’s evidence to be truthful.

24. None of the matters raised by ground four establish jurisdictional error on the part of the Tribunal.

    Ground five

25. Ground five is not a proper ground of judicial review. In oral submissions, the applicant said she was not entirely sure how s 44 of the Administrative Appeal Tribunal Act 1975 (the AAT Act) assisted her case and that it reflected her efforts to advocate for herself.

26. The applicant’s reliance on this provision is misconceived, as migration decisions are excluded from s 44 appeals under part IVA of the AAT Act: s 43C of the AAT Act.

27. Ground five does not establish jurisdictional error.

    Ground raised by the Minister

28. The Minister submitted that, notwithstanding the Tribunal’s references to ‘Convention reason’ and ‘Refugee convention’ at [107]–[108] and [112] of its reasons, it otherwise correctly referenced the codified definition of ‘refugee’ and ‘well-founded fear of persecution’ in ss 5H and 5J(1) of the Act.

29. I accept the Minister’s submission that the reference to ‘convention reason’ or ‘refugee convention’ was not an error and should be understood as referring to the principles codified in the Act, extracts of which were annexed to the Tribunal’s decision and to which the Tribunal referred at [6]-[10] of its reasons.

30. The applicant in this case lodged her protection visa application after 16 December 2014. The Tribunal was therefore required to assess whether the applicant had a well-founded fear of persecution for reason of ‘race, religion, nationality, particular social group or political opinion’: s 5J(1)(a) and whether there was a ‘real chance’ that if she returned to Malaysia that she would be persecuted for one of those specified reasons: s 5J(1)(b).

31. Applications lodged prior to 16 December 2014 required persecution to be for one of the reasons set out in Article 1A(2) of the Convention relating to the Status of Refugees (the Refugee Convention). The reasons set out in the convention are ‘race, religion, nationality, particular social group or political opinion’.

32. As to the assessment of the ‘real chance’ requirement in s 5J(1)(b), the Minister is correct that it is the same as the ‘real chance’ threshold for the assessment of well-founded fear that was identified in respect of the Refugee Convention in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 (Chan).

33. I accept the Minister’s submission that it was not entirely, or perhaps technically, correct to refer to ‘Convention reasons’ or the ‘Refugee convention’ for reviews post December 2014. Notwithstanding, there was no material difference between the codified definitions and what was set out in the Refugee Convention. The Tribunal’s reasons do not disclose that it asked itself the wrong question or applied the wrong tests when assessing whether the applicant had a well-founded fear of persecution as required by s 5J(1) of the Act.

34. Even if the Tribunal’s reference to the ‘Convention reasons’ or the ‘Refugee Convention’ was an error, it was not jurisdictional. The tests were the same, and the decision that was in fact made could not realistically have been any different: LPDT at [14].

35. The ground raised by the Minister does not establish jurisdictional error.   

    Further grounds in written submission

    Ground one

36. The allegations raised by this ground overlap with those raised by ground one in the originating application. It alleges that the Tribunal did not fully consider the applicant’s psychological impact, the impact of trauma on her abilities, and failed to consider the counsellor’s letter provided. This ground is not made out for the reasons discussed above at [44] and [51].

1. The applicant also referenced SZTAL v Ministerfor Immigration and Border Protection [2017] HCA 34; 262 CLR 362, where she stated ‘the applicant similarly had depression’ but made no further submissions as to the relevance of this case to the ground advanced.

2. This ground does not establish jurisdictional error.

   Ground two

3. This ground alleges that the Tribunal did not consider the applicant’s bankruptcy status and how it would exacerbate the risk she would face in Malaysia. In oral submissions, the applicant stated that the Tribunal did not consider how she would be able to support herself or her children if she returned to Malaysia. The applicant also claimed she had borrowed money from other agencies and loan sharks, but the Tribunal did not consider this evidence.

4. The Tribunal expressly considered the issue of the applicant’s bankruptcy at [82]–[87] of its decision, wherein it referenced independent country information regarding money lenders and bankruptcy. The Tribunal concluded at [103]–[107] that the applicant would not suffer harm due to being a bankrupt woman. Further, as the Minister submitted, this issue was considered by the Tribunal in the context of the applicant’s evidence that the money lender was no longer an issue as she had almost repaid the loan: see [90]–[91].

5. The Minister also submitted that, to the extent the applicant claims the Tribunal failed to consider that she was an entrepreneur and cannot work in Malaysia as a bankrupt, this is not made out. I accept that the Tribunal expressly dealt with these claims at [103] wherein it found that being a bankrupt did not prevent the applicant from being in paid employment in Malaysia.

6. In connection with this ground, the applicant referenced Minister for Immigration Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, stating that the Tribunal must give proper weight to material evidence. The principle, as stated, is not in dispute, however, it is unclear how this is relevant to the ground advanced by the applicant.

7. This ground does not establish jurisdictional error.

   Ground three

8. By this ground the applicant alleges that the Tribunal failed to consider the risks holistically, including the threats from illegal money lenders, social stigma and system discrimination for being a bankrupt and divorced woman and her mental health challenges.

9. The Tribunal’s reasons plainly demonstrate that it considered the applicant’s claims individually and cumulatively. Each claim raised by the applicant was considered by the Tribunal. The Tribunal’s findings in respect of each claim were open to it on the evidence before it, including that which had been provided by the applicant at the hearing and the country information before the Tribunal. Before concluding that the applicant was not a person in respect of whom Australia had protection obligations, the Tribunal expressly stated at [108] that it had considered the applicant’s claims individually and on a cumulative basis.

10. This ground does not establish jurisdictional error.

    Ground four

11. By this ground the applicant contends the Tribunal failed to assess the failure of Malaysian authorities to provide protection. The applicant claimed that she filed a police report with Malaysian authorities regarding the money lenders but there was no follow-up by the authorities. In oral submissions, the applicant further contended that the Tribunal considered country information relating to Malaysia as a whole and did not consider her specific region.

12. The Tribunal’s reasons demonstrate that it had regard to the applicant’s claims regarding money lenders. The applicant gave evidence that the police report was no longer in issue because she had almost paid out the money lender: see [98]. Further, having regard to the country information before it, the Tribunal found at [99] that if the applicant was to be threatened by money lenders, that the authorities had shown they could protect their citizens.

13. As to the applicant’s complaint that the Tribunal did not consider country information relevant to her specific region, I accept the Minister’s submission that the DFAT country report, quoted at [82] of the Tribunal decision, refers to the Malaysian Money Lenders Act 1951, and the protections provided to Malaysian citizens against loan sharks. As the Minister submitted, there is nothing to suggest that this legislation would not extend to the region of Sarawat where the applicant is from. Relevantly, however, the applicant’s claim before the Tribunal was that she was no longer in fear of money lenders.

14. This ground does not establish jurisdictional error.

    Ground five

15. By this ground, the applicant alleges that the Tribunal did not give proper weight to the DFAT report about the tactics of money lenders in Malaysia and the failure of Malaysian authorities to provide effective protection.

16. It is well-established that the selection of, and weight given to, country information is a matter for the Tribunal as part of its fact-finding function. Mere disagreement with the Tribunal’s consideration of country information does not establish jurisdictional error. In the present case, the Tribunal, having considered the country information before it (as extracted at [82] of its decision), concluded that it was satisfied that if the applicant was threatened by illegal money lenders, that the authorities in Malaysia had shown they were able to protect their citizens: see [99]. This finding was plainly open to it on the country information that was before it.

17. There was no error in the Tribunal’s consideration of the country information. This ground does not establish jurisdictional error.

    Further matters raised in reply to the Minister’s oral submissions

18. At the hearing, the applicant said she did not have the support of her husband and would still have to financially support her children. The applicant said the loan shark had increased the interest on the payment and that she currently had depression and required treatment.  

19. As explained to the applicant, in judicial review proceedings, the court is unable to consider her current circumstances or have regard to information that was not before the Tribunal. The court’s role is limited to considering whether the Tribunal’s decision (or the decision-making process) was affected by jurisdictional error.

20. None of the grounds raised in this matter establish jurisdictional error.

    CONCLUSION

21. For these reasons, the application for judicial review must be dismissed.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate:

Dated:       6 June 2025