AVH24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 98
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98
File number: PEG 62 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 5 February 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether Tribunal failed to understand meaning and effect of s 36(2A) of the Migration Act 1958 (Cth) – whether Tribunal considered applicant’s protection claims erroneously and narrowly – whether Tribunal made an illogical, irrational or unreasonable decision – whether Tribunal failed to “investigate” the applicant’s claims for protection – whether Tribunal failed to comply with s 424A of the Act – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Ite 25
Migration Act 1958 (Cth), ss 5H, 5J, 5AAA, 36, 424AA, 424A & 476
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
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
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
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 and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 114 Date of hearing: 2 August 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 62 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVH24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.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 25 January 2024 and thus predates recent amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal is currently 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, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicant’s migration history
The applicant is a citizen of Malaysia (Court Book (“CB”) 21 & 41-43). He arrived in Australia in March 2018 as the holder of an Electronic Travel Authority visa (CB 60).
On 11 May 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 13-40).
In that visa application, the applicant made the following protection claims (CB 36-38):
(a)he is seeking protection in Australia on the basis of political and economic issues;
(b)he was actively involved in political activities, participating in many demonstrations against the Malaysian government;
(c)he disagreed with the current government, they found out putting him in danger and are trying to put him in prison;
(d)if he were to return to Malaysia, the government would still be looking for him, they will put him in prison and broadcast information about him through the media;
(e)he is under pressure, cannot sleep or work and cannot support himself as a result;
(f)he has a curfew at his house in Malaysia and there is a signal or time after which people are required to stay indoors; and
(g)he is seeking safety in Australia.
On 25 October 2018, the Minister’s delegate refused to grant the applicant the visa (CB 60-67). The delegate did not accept that the applicant faced a real chance of serious harm for one or more of the reasons referred to in s 5J(1)(a) of the Act. Further, the delegate did not accept that there was a real risk the applicant would face significant harm if he returned to Malaysia (CB 62-63).
On 27 October 2018, the applicant sought review of the delegate’s decision by the Tribunal (CB 68-69).
On 23 November 2023, the Tribunal invited the applicant to attend a hearing before it on 19 December 2023 (CB 75-78).
The applicant appeared at that hearing to give evidence and present arguments (CB 85-88). The applicant was assisted the hearing by a Malay interpreter.
During the Tribunal hearing, the applicant also claimed that he would face harm from the COVID-19 pandemic if he were returned to Malaysia (CB 95).
On 25 January 2024, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 91-105).
On 27 February 2024, the applicant filed an application for judicial review of the Tribunal’s decision in this Court (CB 1-7).
THE TRIBUNAL’S DECISION
The application for judicial review is filed 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 detail.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when (as was the case here) the grounds of review filed by the applicant lack particulars and when the applicant appeared before the Court without legal representation and struggled to articulate any concerns he might have about the Tribunal’s approach and findings.
The Tribunal’s decision in this matter is lengthy and detailed. It is 15 pages in length and comprises 74 paragraphs (CB 91-105). The final three pages include extracts of relevant legislative provisions (CB 103-105).
The Tribunal began by outlining the decision under review, noting the delegate’s decision (at [1]-[3]) and explaining that the applicant had indicated that he did not wish to call any witnesses (at [4]).
The Tribunal then outlined the criteria for a protection visa, highlighting that an applicant must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act – that is, that they are either a person in respect of whom Australia has protection obligations under the “refugee” criterion or on other “complementary protection” grounds or is a member of the same family unit as such a person and that person holds a protection visa of the same class (at [5]-[6]).
Relevantly, the Tribunal noted (at [7]) that a person is a refugee if:
(a)in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country (as per s 5H(1)(a) of the Act); and
(b)in the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country (as per s 5H(1)(b) of the Act).
The Tribunal noted further that, pursuant to s 5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country (at [8]).
The Tribunal then detailed the effect of the s 36(2)(aa) of the Act, noting as follows:
9.If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
The Tribunal then explained (at [11]) that it had taken into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for the purpose of protection status determinations.
The Tribunal accepted (at [13]) that the applicant is a Malaysian citizen and is a non-practicing Muslim (at [17]) who arrived in Australia in 2018 as the holder of a visitor visa (at [15]).
The Tribunal then detailed the applicant’s evidence presented by him at the hearing before the Tribunal. A summary of the Tribunal’s approach in this regard was provided to this Court by the Minister (at [11] in written submissions filed in this Court on 15 July 2024). The Court has cross-checked the contents of those submissions with the Tribunal decision. The summary provided by the Minister is accurate and the Court adopts it as its own (with minor additions and amendments).
Relevantly, the Minister’s summary of the applicant’s evidence provides as follows:
(a)the applicant filled out his protection visa application himself, with assistance from a friend. He confirmed the claims were his and that he was aware of the contents of his application (at [16]);
(b)the applicant came to Australia to seek better opportunities and has been employed for five years in the construction field (at [20]). He claimed that the economy was not good in Malaysia, he would not find employment and there are better opportunities in Australia (at [30]);
(c)the applicant became involved in politics in Malaysia, where his role was to put up flags and banners in the street and to hand out pamphlets. His evidence was that he supported the political party in the area that would give the best benefits, but could not recall the names of any candidates (at [21]);
(d)the applicant stated that he left Malaysia because people were looking for him. On one occasion, when he was putting up banners and flags, people got angry and there was a physical fight (involving around 20 people) where he received bruising (but did not need to go to hospital) (at [22]-[23]). The other political party started taking down his banners. The other party threatened to hurt him if they ever came across him and were looking for him. The Tribunal queried the time of this fight. The applicant initially said 2016/2017 and then 2017/2018 (at [22]);
(e)the people looking for the applicant do not know his name but they would recognise his face (at 24]). When asked how he knew that they were still looking for him, the applicant said was not sure if they were (at [27] & [29]) and he did not go to the police because “they will know who he is” (at [25]). The applicant also stated that his home area is “small” (at [26]);
(f)when asked why he could not relocate to another part of Malaysia, the applicant said it would be hard to get a job as he does not have any networks, he was concerned that the economy in Malaysia was not good and he would not find employment (at [24] & [30]);
(g)the authorities may charge the applicant for fighting and would put him in prison, however, he is not sure if a warrant has been issued (at [27]);
(h)the applicant participated in a demonstration in early 2018 (by marching), and cannot recall what happened, how many people marched or anything else as it was a long time ago (at [28]); and
(i)the applicant feared returning to Malaysia because of the COVID-19 pandemic (at [31]).
The Tribunal then explained that it had discussed the relevant country information with the applicant (at [33]-[36]) and outlined the applicant’s response, noting as follows:
37.The applicant told the Tribunal there is better opportunities for him in Australia and it will be stressful for him to return as he will have difficulty finding a job.
38.The Tribunal raised with the applicant that it appeared he had a low political profile, and he was not sure whether they were still looking for him.
The Tribunal then outlined the applicant’s claims for protection (at [39]) and noted that “no further information on the applicant’s claims was provided prior to the hearing” (at [40]).
The Tribunal continued:
41.The Tribunal discussed the applicant’s claims with him at hearing. The Tribunal asked for more information on his claim that there was a curfew at his house and was told he cannot recall that claim.
42.When asked to clarify his claim “First thing, they will be viral me into multimedia, electronic system (TV and Facebook) and newspaper” the applicant responded that the political people would post him on media, and they will find him.
43.The applicant’s claims at hearing centred around a group of people from the opposing political party threatening him after a physical altercation over the removal of political banners. He fears they will harm him if he returns to Malaysia. They do not know his identity or address, but he claims they will recognise his face.
44.He also claims to fear returning to Malaysia because of COVID and because of the economic situation.
The Tribunal then outlined its core findings in relation to the evidence before it, explaining that:
45.The applicant fears returning to Malaysia because he fears harm from members of the opposing political party in [city omitted] following an altercation where banners he was putting up for the political party he supports were taken down by members of the opposing political party. Further, the applicant claims to be involved with the Pakatan Harapan political party in Malaysia. The applicant claims the altercation involved a physical fight involving about 20 people and he received bruising as a result. He did not need to seek medical treatment and the incident was not reported to the authorities.
In written submissions (filed in this Court on 15 July 2024, at [14]), the Minister noted that the Tribunal did not accept much of the applicant’s evidence. The Minister also summarised the Tribunal’s core findings in that regard. Again, that Court finds that summary to be accurate and adopts it as its own.
Relevantly, the Minister’s submissions provide as follows (with some minor additions and amendments).
The Tribunal did not accept that:
(a)the applicant was actively involved in politics or that he held a profile as an official or held a leadership position and found he was nothing more than an ordinary supporter of the political party. In making this finding, the Tribunal noted that the applicant’s own evidence was of a limited involvement, he could not identify candidates, he participated in one demonstration and his claimed support was not limited to one party (at [46]);
(b)there is a real chance that the applicant will face serious harm (should he return to Malaysia) from members of the opposition party with whom he was involved in an altercation over the removal of banners. The applicant’s evidence was that his identity was unknown and that they had no further interest in him between the altercation and his departure (at [47]);
(c)the applicant’s face would be broadcasted through the media on return to Malaysia and instead found that if the opposition party members had an interest in locating him, his photograph would already have been posted on media sites after the altercation (at [48]);
(d)the applicant would be put in prison or that a warrant would be issued for his arrest as his identity is not known (at [48]); and
(e)there is a real chance the applicant will be identified from his face by members of the opposition party as some time has passed since the altercation, he was not identified in the time he spent in Malaysia before coming to Australia and his own evidence was that he did not know if they are still looking for him (at [49]).
The Tribunal continued:
50.Considering the applicant’s personal circumstances and the relevant country information, the Tribunal finds there is not a real chance the applicant would suffer persecution involving serious harm from any person, including those involved in the altercation, due to an actual or imputed political opinion or for any other reason, should he return to Malaysia.
The Tribunal then assessed the applicant’s claim that he would face harm as a result of the COVID-19 pandemic, finding as follows:
51.The applicant fears returning to Malaysia because he fears catching COVID. He believes that he has less chance of catching COVID in Australia than in Malaysia. The Tribunal has considered whether the applicant’s fear of catching COVID is for one or more of the reasons of his race, nationality, religion, political / imputed political opinion or his membership of a particular social group. The Tribunal has considered whether the applicant is a member of a particular social group, people who fear catching COVID, but finds that the fear of catching COVID is not a characteristic that distinguishes the group from society as it is a fear that most of society holds. Should the applicant return to Malaysia and catch COVID, according to the country information, Malaysia has an effective health system of which he can avail himself. The Tribunal finds that the applicant’s fear of catching COVID on his return to Malaysia is not for one of the reasons mentioned in s5J(1)(a).
The Tribunal then assessed the applicant’s claim that he would face harm because of the economic situation in Malaysia, finding as follows:
52.The applicant also fears returning to Malaysia as the economic situation is not good and he will be unable to find employment and earn a living sufficient to support himself. The applicant indicated that the economy is better in Australia, and he needs a permanent visa to be able to obtain permanent fulltime work. He is unable to relocate elsewhere in Malaysia as he does not have the networks to assist him to establish himself.
53.The Tribunal notes the applicant has tertiary qualifications in that he completed his Diploma, he previously has been employed in Malaysia and is employed on a regular basis in farming and construction in Australia. He has skills from his employment, both in Malaysia and Australia as well as skills from moving to a different culturally and linguistic country.
54.The Tribunal accepts the applicant’s evidence with respect to his poor economic circumstances in Malaysia relative to Australia in that the cost of living is high and the wages low. The Tribunal also accepts that the applicant will experience some stress and difficulty in re-establishing himself if he is returned to Malaysia. However, as the applicant has indicated he has previously worked in Malaysia and has experience working in a variety of jobs in Australia. The Tribunal finds that he would likely be able to find employment in Malaysia and continue to have access to means of supporting himself.
55.While the Tribunal accepts that the applicant’s earnings would be lower than he might be able to earn in Australia, it is not satisfied that they would be so low as to threaten the applicant’s ability to subsist in Malaysia or otherwise amount to serious harm.
56.The Tribunal has considered the country information that states the Malaysian economy is growing and poverty rates decreasing. The Tribunal finds that any economic hardship the applicant will incur will not amount to serious harm in the sense that it would threaten his capacity to subsist. Further, the Tribunal finds that given the applicant’s qualifications, experience, and his motivation for work, he will not be denied the capacity to earn a living, nor would he be denied basic services, where such denials would threaten his capacity to subsist. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Malaysia by reason of his economic circumstances.
57.Further the country information does not reflect that there is a real chance the applicant will be denied employment, threatening his capacity to subsist for any refugee reason if he returns to Malaysia. The Tribunal finds that there is not a real chance of serious harm to the applicant for reason of his political or imputed political beliefs if he returns to Malaysia. On the evidence before it the Tribunal does not accept the applicant would be denied basic services or the capacity to earn a living of any kind or suffer economic hardship such as would threaten his capacity to subsist for reasons of his political or imputed political beliefs if he returns to Malaysia now or in the foreseeable future.
58.The Tribunal does not accept that there is a real chance the applicant would be denied the capacity to earn a livelihood of any kind or subjected to significant economic hardship in Malaysia, such that his capacity to subsist would be threatened. It finds that he would not be at risk of serious harm or subjected to any kind of harm set out in s36(2A).
On the basis of the above, the Tribunal determined that there was no real chance that the applicant would suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion or any other reason if he returned to Malaysia (at [59]).
On that basis, the Tribunal concluded that the applicant did not have a well-founded fear of persecution if he were to return to Malaysia (at [60]).
The Tribunal then proceeded to consider (pursuant to s 36(2)(aa) of the Act, being the complementary protection criteria) whether 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 that the applicant would suffer significant harm (at [61]).
The Tribunal began by explaining the test to be applied, noting as follows:
62.In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia for the reason of his race, religion, political opinion or for reason of the security situation manifesting as riots, terrorism activity and serious crime or due to politics, the Tribunal notes that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.
The Tribunal continued:
63.Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s 36(2A), for the reason of the applicant’s race, nationality, religion, political/imputed political opinion or membership of a particular social group.
Assessing the applicant’s claim that he was at risk of his political activities, the Tribunal explained as follows:
64.Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s 36(2A), from those members of the opposition political party involved in the altercation with the applicant over the removal of banners.
The Tribunal then assessed the applicant’s claim to fear harm on the basis of the economic situation in Malaysia determining, overall, that there were not 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 that the applicant would face significant harm as a result of the economic situation in Malaysia (at [67]). The Tribunal relevantly determined as follows in this regard:
65.With respect to the applicant’s fear of harm in respect to the prevailing economic conditions in Malaysia, the Tribunal accepts that the applicant may face some degree of financial or economic hardship upon his return; however, the Tribunal finds that this hardship does not reach the level of significant harm, having had regard to the examples set out at s 36(2A).
66.That is, the applicant will not be intentionally subject to severe pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or extreme humiliation that is unreasonable due to economic deprivation, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia. In so finding, the Tribunal has also considered the applicant’s evidence that he has been gainfully employed in Malaysia in the past and has employment experience in Australia.
The Tribunal then assessed the applicant’s claim to fear harm because of the COVID-19 pandemic. The Tribunal determined as follows:
68.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
69.The applicant claims to fear harm on return to Malaysia because of COVID. After considering the applicant’s circumstances and as discussed with the applicant at hearing, the Tribunal finds that the risk of catching COVID is one faced by the population of the country generally and is not faced by the applicant personally.
On the basis of the above, the Tribunal concluded that, “having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing”, there were no substantial grounds for believing that was a real risk that the applicant would face significant harm for any reason if he were returned to Malaysia.
On the basis of the above, the Tribunal concluded that it was not satisfied that any protection obligations arose under s 36(2)(a) of the Act or s 36(2)(aa) of the Act (at [71] & [72]).
Accordingly, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [74]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 27 February 2024 (CB 1-7) contains five grounds of review. They provide as follows (without alteration) (CB 5):
1The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.
2.The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Malaysia for his political and economic issues.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
4.The Tribunal has failed to investigate applicant's claim, especially the grounds of persecution in Malaysia.
5.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
On 26 March 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The applicant appeared before the Court (on 2 August 2024) without legal representation. He was assisted at that hearing by a Malay interpreter.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 27 February 2024 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 107 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 15 July 2024 and an affidavit of service of Madisen Anne Scott affirmed and filed on 26 July 2024 (also taken as read and in evidence at the hearing of this matter).
Noting that the applicant was not represented (and noting the remarks of the Federal Court 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 an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court 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 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) 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 now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, 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 simply told the Court that he could not return to his home country at this point “because of the case he spoke about while he was at the Tribunal”.
CONSIDERATION
Unfortunately, the applicant’s grounds of review are not particularised, no written submissions were filed and the applicant’s oral submissions before this Court were, at best, skeletal and did not address the issue of jurisdictional error. This is not a criticism. The applicant was not represented and the Court recognises that legal proceedings can be intimidating and alienating.
In the circumstances, the Court will interpret the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
Ground one
As outlined above, ground one provides as follows:
1The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.
In assessing whether ground one points to a jurisdictional error on the part of the Tribunal it is useful to first outline those provisions of the Act relevant to the concern in question.
Section 36(2A) of the Act needs to be read in light of the s 5H and s 5J of the Act, which relevantly provide as follows:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
These sections, in turn, need to be read in light of s 36 of the Act, which provides as follows:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
…
Noting the language used by the applicant in ground one (“risk” and “significant harm”), the Court reads the applicant’s concerns as concerns relating to the Tribunal’s assessment of whether he was owed any complementary protections as per s 36(2)(aa) of the Act. The applicant seems to argue that the Tribunal applied the wrong test.
Having reviewed the Tribunal’s decision in detail, it cannot be said here that the Tribunal has failed to understand the meaning of “significant harm”.
The Tribunal attaches (as an appendix to its decision) relevant provisions of the Act and references those sections (or their contents) in detail throughout its decision.
In this regard, the Court notes the Tribunal’s overview of the tests articulated in both s 36(2)(a) of the Act and s 36(2)(aa) of the Act, as follows:
CRITERIA FOR A PROTECTION VISA
5.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds …
6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
7.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). …
8.Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
9.If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
….
Complementary Protection
61.Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether it has 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 the applicant will suffer significant harm.
62.In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia for the reason of his race, religion, political opinion or for reason of the security situation manifesting as riots, terrorism activity and serious crime or due to politics, the Tribunal notes that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.
63.Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s 36(2A), for the reason of the applicant’s race, nationality, religion, political/imputed political opinion or membership of a particular social group.
It is clear from the above that the Tribunal understood the meaning of “significant harm” as that term is used in relation to s 36(2)(aa) of the Act. The Tribunal carefully outlined the provisions relevant to both the refugee criterion and the complementary protection criterion and, as will be detailed further below in relation grounds two and three, did so in considerable detail and in a way that was logical, rational and reasonable on the evidence before it.
Relevantly, as stressed by the Minister, it is evident that the Tribunal here understood the difference between the terms “serious harm” and “significant harm”. This is most evident in the Tribunal’s assessment of the applicant’s economic hardship claims. Referencing the provisions in s 5J(5) of the Act, the Tribunal relevantly determined as follows:
56.The Tribunal has considered the country information that states the Malaysian economy is growing and poverty rates decreasing. The Tribunal finds that any economic hardship the applicant will incur will not amount to serious harm in the sense that it would threaten his capacity to subsist. Further, the Tribunal finds that given the applicant’s qualifications, experience, and his motivation for work, he will not be denied the capacity to earn a living, nor would he be denied basic services, where such denials would threaten his capacity to subsist. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Malaysia by reason of his economic circumstances.
57.Further the country information does not reflect that there is a real chance the applicant will be denied employment, threatening his capacity to subsist for any refugee reason if he returns to Malaysia. The Tribunal finds that there is not a real chance of serious harm to the applicant for reason of his political or imputed political beliefs if he returns to Malaysia. On the evidence before it the Tribunal does not accept the applicant would be denied basic services or the capacity to earn a living of any kind or suffer economic hardship such as would threaten his capacity to subsist for reasons of his political or imputed political beliefs if he returns to Malaysia now or in the foreseeable future.
Then, when refencing the applicant’s complementary protection claims, the Tribunal determined as follows:
65.With respect to the applicant’s fear of harm in respect to the prevailing economic conditions in Malaysia, the Tribunal accepts that the applicant may face some degree of financial or economic hardship upon his return; however, the Tribunal finds that this hardship does not reach the level of significant harm, having had regard to the examples set out at s 36(2A).
66.That is, the applicant will not be intentionally subject to severe pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or extreme humiliation that is unreasonable due to economic deprivation, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia. In so finding, the Tribunal has also considered the applicant’s evidence that he has been gainfully employed in Malaysia in the past and has employment experience in Australia.
67.The Tribunal does not accept there to be 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 the applicant will face significant harm for reason of the economic situation in Malaysia.
It is evident from the above that the definitional distinction (as it relates to two distinct tests) is clear and applied correctly by the Tribunal). The same distinction is applied in relation to the applicant’s claim to fear harm on the basis of his political activities (noting the Tribunal’s terminology at [47], [50] & [64]).
No jurisdictional error arises in relation to ground one.
Ground two
Ground two provides:
2.The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Malaysia for his political and economic issues.
In relation to ground two, the Court is greatly assisted by the Minister’s written submissions (filed in this Court on 15 July 2024). Those written submissions provide as follows:
27.By ground 2, the applicant claims error in the Tribunal’s finding that the political and economic issues would not present a real risk of harm. The applicant refers to the Tribunal construing and considering these matters ‘narrowly’.
28.There was no such error by the Tribunal
29.In relation to the applicant’s ‘political’ based claims, the Tribunal considered these in detail at [45]-[50]. Relevantly, the Tribunal rejected any assertion that the police of opposition party knew the applicant’s identity. Having found that the applicant was not known to these persons, the Tribunal concluded that there was no real chance of harm. The Tribunal’s findings in relation to the political claims in the context of the complementary protection criterion were against this backdrop. Where the factual premise of the claimed harm (i.e., that the applicant’s identity was known) had been rejected, there could be no error in finding the applicant was not at risk of significant harm.
30.In relation to the economic claims of the applicant, the Tribunal considered these in detail at [52]-[58], and [65]-[67]. The Tribunal considered the applicant’s personal circumstances against the country information, and whilst it accepted that there may be some difficulties, it concluded that those difficulties did not rise to the level of ‘significant harm’. The Tribunal did not view the claims ‘narrowly’. Rather, it applied the evidence and materials before it to the relevant question to ask, and was not satisfied that the claim met the relevant criteria.
The Court agrees with the Minister in this regard.
The Tribunal’s analysis of the applicant’s claims is statutorily accurate (see the Court’s analysis above in relation to ground one) and forensic.
In relation to the applicant’s political claims, as accurately summarised by Ms Scott for the Minister in oral submissions before this Court, “the Tribunal rejected the factual basis upon which this claim was based”, concluding that the applicant was not actively involved in any political organisation. On the basis of those findings, the Tribunal determined that there was no real chance of serious harm to the applicant should he be returned to Malaysia.
The Tribunal then used this analysis when assessing whether the applicant was owed complementary protection on the basis of his alleged political activity. The Tribunal’s analysis in this regard (determining, ultimately, that no risk of significant harm arose) is set out clearly at [65] and [66] of the Tribunal’s decision. A similar (and correct) approach is evident in relation to the applicant’s economic claims at [52]-[58] and [65]-[67] of the Tribunal’s reasons.
Nor can any error be found in relation to the Tribunal’s assessment of the applicant’s claim to fear harm because of the COVID-19 pandemic. Having concluded that the applicant’s fear of catching COVID-19 in Malaysia is not for one of the reasons set out in s 5J(a) of the Act (at [51]), the Tribunal then turned to assess whether the applicant was owed complementary protection on this basis. As noted above, the Tribunal concluded as follows:
68.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
69.The applicant claims to fear harm on return to Malaysia because of COVID. After considering the applicant’s circumstances and as discussed with the applicant at hearing, the Tribunal finds that the risk of catching COVID is one faced by the population of the country generally and is not faced by the applicant personally.
On the basis of the above, it cannot be said that the Tribunal’s analysis in this regard is lacking or construed narrowly or erroneously.
No jurisdictional error arises in relation to ground two.
Ground three
Ground three provides as follows:
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
Although not entirely clear the Court interprets the applicant’s concern to be that the Tribunal acted in a way that was “illogical, irrational or unreasonable”.
It is useful to first set out some of the relevant authorities in relation to illogicality, irrationality and legal unreasonableness.
As explained by the High Court of Australia in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were clearly 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].
In relation to ground three, the Minister argues as follows:
33.In order to succeed, the applicant must demonstrate the Tribunal’s fact finding and conclusions were ‘extreme’ and no reasonable person could have come to the same conclusions.
34.Here, there is nothing which suggests ‘extreme’ illogicality or unreasonableness, nor that the conclusions by the Tribunal were not open to make. In this regard, the Tribunal:
34.1.accurately summarised the relevant provisions,48 and demonstrated a correct understanding of those provisions throughout its ‘Findings and reasons’. For example, the Tribunal identifies that the applicant’s claims regarding COVID-19 does not fall within s 5J(1)(a),49 the Tribunal expressly refers to the applicant’s ‘capacity to subsist’ in discussing the economic claims (a direct referent to serious harm),50 and the Tribunal recognised that it still needed to consider the COVID-19 claim separately in the context of the complementary protection criterion and relied upon one of the exclusions in s 36(2B).51 The Tribunal was clearly aware of and correctly understood the statutory provisions it was required to apply and how to undertake its task;
34.2.correctly identified each of the applicant’s claims, including the additional claim that related to COVID-19 which arose at the hearing;
34.3.provided a detailed summary of the evidence provided by the applicant and the country information that was relevant to the circumstances which the applicant had raised; and
34.4.made logical and reasoned conclusions based upon the evidence provided by the applicant and the country information. For example, the applicant’s own evidence was that the opposition party did not know his identity. He speculated as to ways about how the opposition party would recognise him, but it was open to the Tribunal not to accept those assertions in light of the applicant remaining in his home district without issue, people not having sought him out since his departure and that he himself did not know they were looking for him. The Tribunal’s conclusions were both logical and rationally based upon the evidence before it.
The Court agrees for the reasons that follow.
Here, it cannot be said that the Tribunal’s factual determinations are illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [52] per McKerracher J. Rather, as accurately summarised by the Minister (in written submissions filed in this Court on 15 July 2024 at [34]), the Tribunal:
(a)accurately summarised all relevant legislative provisions as they relate to protection claims (at [5]-[10]) and demonstrated a thorough understanding of those legislative provisions. In this regard, the Minister highlights the Tribunal’s analysis of the applicant’s COVID-related protection claim. Relevantly, the Tribunal identified (at [51]) that the applicant’s claims in this regard did not fall within s 5J(1)(a) of the Act and then considered the applicant’s COVID claim separately within the context of the complementary protection criterion – ultimately relying on one of the exclusions in s 36(2B) of the Act (at [69]) and
(b)relied on the country information before it, discussed that information with the applicant and raised any concerns with the applicant’s evidence with the applicant directly so that he might respond (at [32]-[36]). This was accompanied with a detailed summary of what was discussed and an analysis of why the country information referenced was relevant to anything the applicant raised with the Tribunal ([52]-[58] & [65]-[67]).
It cannot be said that the Tribunal acted in a way that was irrational, illogical or unreasonable. The Tribunal’s conclusions were based on the evidence presented by the applicant himself, relevant country information and after what is best described as a concerted effort by the Tribunal to allow the applicant to discuss all relevant issues before it.
The Court notes, in particular, the Tribunal’s assessment of the applicant’s claim to fear harm on the basis of his political activities. The Tribunal forensically analysed the applicant’s evidence and asked questions of the applicant when it determined that more was needed or that issues needed to be clarified (at [21]-[29]). It then took the applicant through the country information it deems relevant to the issues raised (at [33]-[34]), asks further questions of the applicant (at [41]-[43]) and, on the basis of the applicant’s responses to questions asked of him and the country information, determined that no harm will result should the applicant be returned to Malayasia.
Relevantly, the Tribunal explained as follows:
45.The applicant fears returning to Malaysia because he fears harm from members of the opposing political party in [city omitted] following an altercation where banners he was putting up for the political party he supports were taken down by members of the opposing political party. The applicant claims to be involved with the Pakatan Harapan political party in Malaysia. The applicant claims the altercation involved a physical fight involving about 20 people and he received bruising as a result. He did not need to seek medical treatment and the incident was not reported to the authorities.
46.The Tribunal does not accept that the applicant was actively involved in politics or held a profile as an official or held a leadership position with Pakatan Harapan or is an organiser of political rallies or participated in many political demonstrations or has any political profile, apart from as a supporter of the Pakatan Harapan. The applicant’s evidence was he did not hold any official or leadership positions and his participation in political activities was limited to attending meetings to find out where to go to place banners and flags, then placing those flags and banners where requested. He was unable to name any of the candidates. He claimed he participated in one demonstration in [city omitted] in early 2018 where he just marched and cannot recall what happened, how many people marched or anything else as it was a long time ago. While the applicant claimed to support Pakatan Harapan, he also claimed to support whichever party offered the best to his community, indicating to the Tribunal his allegiance was not necessarily to Pakatan Harapan, but to the party he felt offered the most to his community. The Tribunal finds, based on the applicant’s evidence, the applicant is nothing more than an ordinary supporter of the Pakatan Harapan political party or any other political party in Malaysia.
47.The Tribunal does not accept that there is a real chance the applicant will face serious harm should he return to Malaysia from members of the opposition party with whom he was involved in an altercation over the removal of banners. The applicant’s evidence is that they are unaware of his identity. Despite the applicant claiming that [city omitted] is a small place, and they can identify him from his face, in the time between the altercation and his departure from Malaysia, the applicant was not found by those involved in the altercation.
48.The Tribunal does not accept that the applicant’s face will be posted over the internet, TV or any other media as the Tribunal would expect that if the opposition party members were interested in locating him and had access to his photograph, it would have been posted on such media sites shortly after the altercation. The Tribunal does not accept that the applicant will be put into prison, or a warrant will be issued for his arrest on his return to Malaysia, as based on the applicant’s own evidence, his identity is not known.
49.The Tribunal does not accept that there is a real chance the applicant will be identified from his face by members of the opposition party involved in the altercation should he return to Malaysia. Some time has passed since the altercation, he was not identified in the period he remained in [city omitted] following the altercation, no-one had gone to his home looking for him since his departure from Malaysia and his own evidence is that he does not know if they are still looking for him.
50.Considering the applicant’s personal circumstances and the relevant country information, the Tribunal finds there is not a real chance the applicant would suffer persecution involving serious harm from any person, including those involved in the altercation, due to an actual or imputed political opinion or for any other reason, should he return to Malaysia.
…
Complementary protection
64.Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s 36(2A), from those members of the opposition political party involved in the altercation with the applicant over the removal of banners.
It is clear from the above that the Tribunal drew conclusions that were entirely open to it on the evidence. As stressed by the Minister (at [34] in written submissions filed in this Court on 15 July 2024):
…the applicant’s own evidence was that the opposition party did not know his identity. He speculated as to ways about how the opposition party would recognise him, but it was open to the Tribunal not to accept those assertions in light of the applicant remaining in his home district without issue, people not having sought him out since his departure and that he himself did not know they were looking for him.
These findings were entirely open to the Tribunal on the material before it, as were the Tribunal’s findings in relation to the applicant’s claim to require protection on the basis of economic hardship (noting the Tribunal’s analysis of the country information evidence at [36] and the Tribunal’s assessment of that evidence at [52]-[58] and [65]-[67]).
It cannot be said here that the Tribunal’s decision demonstrates a failure to attend “conscientiously and appropriately to its statutory obligations”: SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 at [10] per Allsop J (as His Honour then was). Nor can it be said that the Tribunal made findings or employed a process of reasoning that no logical or rational decision-maker could have made on the facts of this case.
No error arises in relation to ground three.
Ground four
Ground four states:
4.The Tribunal has failed to investigate applicant's claim, especially the grounds of persecution in Malaysia.
It is not entirely clear what the applicant is referring to in relation ground four.
If the applicant is suggesting that the Tribunal failed to address a particular protection claim, that concerns fails on a factual level. The Tribunal outlined the core claims before it (at [39]) and then (as discussed in detail above) assessed all of the applicant’s claims in detail.
If the applicant is suggesting that the Tribunal should have undertaken further “investigation” of the applicant’s claims (regardless of how those claims were presented by the applicant), the Court disagrees.
Section 5AAA of the Act provides as follows:
5AAA Non‑citizen’s responsibility in relation to protection claims
(1)This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a)the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4)To remove doubt, the Minister does not have any responsibility or obligation to:
(a)specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
It is not the Tribunal’s responsibility to investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. That responsibility falls on the applicant.
This does not mean, of course, that the Tribunal should avoid assisting applicants (particularly those who appear without legal assistance) better articulate their concerns and the evidence they rely on.
That approach was adopted here. As stressed by the Minister (at [38]-[39] in written submissions filed in this Court on 15 July 2024) and as detailed by this Court above, “where the Tribunal required clarification or had concerns with the applicant’s evidence, it invited the applicant to comment or provide evidence and arguments in response”. Overall, “the Tribunal took an active role in seeking to elicit further information from the applicant in relation to his claims and giving him the opportunity to fully participate”.
The Court is satisfied that the Tribunal here did what was required of it.
No error arises in relation to ground four.
Ground five
Ground five provides as follows:
5.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
At the time of the Tribunal’s decision (being on 24 January 2024), s 424A and s 424AA of the Act provided as follows:
424AA Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
These sections required the Tribunal to put certain adverse information to the applicant which the Tribunal might rely upon when making its decision.
As correctly submitted by the Minister, there is nothing before this Court to suggest that there was any “information” which the Tribunal was required to put to the applicant under s 424A of the Act. The only information which the Tribunal relied upon was information provided by the applicant himself or country information. That information is not information of the sort covered by s 424A of the Act.
No jurisdictional error arises in relation to ground five.
CONCLUSION
The application for judicial review filed by the applicant on 27 February 2024 has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 February 2025
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Judicial Review
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Protection Visa
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Refugee Status
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Well-Founded Fear of Persecution
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