AVS24 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVS24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 102

File number: PEG 64 of 2024

Judgment of: JUDGE KENDALL

Date of judgment: 11 February 2025

Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to understand the meaning and effect of s 36(2A) of the Act – whether the Tribunal considered the applicant’s protection claims “erroneously and narrowly” – whether the Tribunal’s decision and credibility findings were illogical, irrational or unreasonable – whether the Tribunal failed to “investigate” the applicant’s protection claims – whether the Tribunal failed to comply with s 424A of the Act – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal erred by failing to consider the “changed situation” in Malaysia – no jurisdictional error – application dismissed.

Legislation:
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 and Item 25

Migration Act 1958 (Cth), ss 5H, 5J, 5AAA, 36, 422B, 423A, 424A, 424AA & 476 and Division 4 of Part 7

Migration Regulations 1994 (Cth), Schedule 2

Cases cited:
ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67

ASG17 v Minister for Immigration & Anor [2019] FCCA 1492

AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616

Craig v State of South Australia (1995) 184 CLR 163

CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101

CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688

DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2

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

DVF18 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FedCFamC2G 135

GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9

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 Citizenship v SZGUR [2011] HCA 1

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

Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3

VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123

Division: Division 2 General Federal Law

Number of paragraphs: 155

Date of hearing: 20 September 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 64 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AVS24

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

11 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
Introduction

This is an application for judicial review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) on 25 January 2024. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the “visa”).
For the reasons that follow, this Court has determined that no jurisdictional error arises in the Tribunal’s decision. The application before this Court is, accordingly, dismissed.
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended significantly 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 Tribunal. That decision is dated 25 January 2024 and thus predates those 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 matter.
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 (Class UD) (Subclass 601) visa (CB 60).
On 11 May 2018, the applicant applied for the visa the subject of the application before this Court (CB 13-40 & 60).
As accurately outlined by the Minister (at [4] in written submissions filed in this Court on 23 August 2024), the applicant’s original protection claims can be summarised as follows:
(a)he was involved in a family business that had to close due to economic conditions;
(b)a stone was thrown into his shop and “forces in the business world … would love to put [the applicant] out of business”; and
(c)he does not think the authorities in Malaysia can assist him (CB 36).
On 25 October 2018, a delegate of the Minister 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 subsection 5J(1)(a) of the Act. Further, the delegate did not accept that there was a real risk the applicant would face significant harm for any reason on his return to Malaysia (as per s 36(2)(aa) of the Act) (CB 61-63).
On 27 October 2018, the applicant sought review of the delegate’s decision by the Tribunal (CB 68-69).
On 5 October 2023, the Tribunal advised the applicant that his matter had been assigned to a Tribunal Member. The applicant was asked to complete a pre-hearing form and return that form to the Tribunal (CB 75).
The applicant did so on 11 October 2023 (CB 76-81). He also provided further information regarding his protection claims. Relevantly, the applicant explained that he did not want to “see people who have hurt [him]” and “it feels much more safe to live in Australia” (CB 80).
On 15 November 2023, the applicant was invited to attend a hearing before the Tribunal scheduled for 5 December 2023 (CB 82-85).
On 23 November 2023, the Tribunal advised the applicant that the hearing had been rescheduled due to “circumstances beyond [their] control” and would instead take place on 19 December 2023 (CB 90-93).
The applicant appeared before the Tribunal (on 19 December 2023) without legal representation (CB 98-101). He was assisted by an interpreter in the Malay language (CB 98). Whilst the applicant indicated, in his hearing response, that he wished to call his brother as a witness, he told the Tribunal (at the hearing) that he no longer wished to do so (CB 105).
During the Tribunal hearing, the applicant raised a new protection claim. Relevantly, he claimed to fear harm on account of COVID-19 (CB 108 & 111).
On 25 January 2024, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 104-119).
On 28 February 2024, the applicant sought review of the Tribunal’s decision in this Court (CB 1-7).
THE TRIBUNAL’S DECISION
The applicant’s application for judicial review was filed pursuant to section 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.
As this Court has previously explained, it 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 as this helps 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 was unable to discuss any concerns he might have about the Tribunal’s decision.
The Tribunal’s decision in this matter is 16 pages long and spans 78 paragraphs (CB 104-119). The final three pages include extracts of relevant legislative provisions (CB 117-119).
The Tribunal began by explaining that, although the applicant had indicated in his hearing response that he intended for his brother to give evidence, the applicant indicated at the hearing that he no longer wished to call his brother as a witness (at [4]).
The Tribunal then outlined the criteria for a protection visa, detailing the legislative requirements set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”), (at [5]-[9]).
The Tribunal then explained that, as per s 5AAA of the Act, it is the applicant’s responsibility to specify all particulars of a claim and to provide sufficient evidence to establish the claim (at [10]).
The Tribunal then explained the meaning and effect of s 423A of the Act, noting that if an applicant raises a claim or presents evidence that was not raised before the delegate, the Tribunal must draw an inference unfavourable to the credibility of that claim or evidence if it is satisfied that the applicant does not have a reasonable explanation about why that claim was not initially articulated (at [11]).
Having determined that the applicant is a Malaysian citizen (at [13]), the Tribunal outlined the applicant’s claims and the evidence before the Tribunal.
The Tribunal noted as follows:
(a)the applicant filled out his application himself (with the assistance of a friend) and confirmed that he was aware of the contents of the application (at [17]);
(b)the applicant told the Tribunal that when he returned to his hometown in 2015, he provided money to a friend who said he needed money to start a new business;
(c)his friend wanted to buy a food truck selling Asian food at the night markets in [city omitted]. It was like a government venture for new and developing businesses in [city omitted]. No paperwork was prepared in relation to this transaction (at [21]);
(d)the applicant told the Tribunal that there was government corruption which affected the economy and this, in turn, affected the food truck business. The applicant’s friend told him that he could not pay him back because of the bad economy. The applicant asked to be repaid after two years (at [22]);
(e)the applicant told the Tribunal that the situation with the food truck vendors was very tense, there was almost a fight and he moved away and returned to his home. A few weeks later he went back to ask for the money and almost got into another fight. He did not want to get into a physical fight so decided he would not get his money back. He then came to Australia to seek new adventure and experience the culture (at [23]);
(f)the applicant did not go to the police and made no police report (at [24]);
(g)the applicant was involved in politics in Malaysia. His role was to support election candidates. The Chairman of the Committee would arrange for them to go to the venues to support the candidates and his role was to organise his friends to go with him (at [25]);
(h)the Tribunal told the applicant that what he said about him fearing his friend’s friend and the food truck vendors did not appear to be for one of the reasons of race, nationality, religion, political opinion, or membership of a particular social group. The applicant responded that his claim was “political” (at [26]); and
(i)the applicant explained that the food truck vendors were all supporters of the opposing party and the area in which they were set up was an area known for opposition supporters. He explained further that his friend’s friend is also a supporter of the opposing party. That, he explained, is why his claim is political. His biggest fear is the food truck vendors. The applicant claims that they “have the ability to curry favour with politicians as their party is in power” (at [27]).
Noting that the applicant’s protection claims appeared to have changed, the Tribunal continued:
28.The Tribunal discussed the provisions of s423A with the applicant and explained that it was required to draw an adverse inference to the credibility of that claim or evidence, unless it was satisfied that the applicant had a reasonable explanation why the claim was not made, or evidence not presented before the delegate’s decision was made. The Tribunal indicated that his claim at hearing was different to the claim made in his application form. The Tribunal also noted that his response to the s424(2) letter sent to him by the Tribunal, he made no reference to the claims he was raising today at hearing.
29.The applicant indicated that he was new in Australia and even wrote his name incorrectly on the form. The Tribunal referred to his earlier evidence that he completed the form himself and was aware of the contents and asked why he did not refer these claims at the time of lodging the application form? The applicant again indicated that the process was new, and his main issue was the food truck vendors.
The Tribunal then explained that the applicant had also indicated at the Tribunal hearing that he feared returning to Malaysia because of the COVID-19 pandemic. The Tribunal advised the applicant that he could catch COVID in Australia, that COVID existed throughout the world, that the risk he faced was the same as the risk to the general population and that Malaysia has a well-established health system (at [30]).
The Tribunal then explained that the applicant claimed to fear harm because of the economic situation as he would not be able to find employment in Malaysia. The applicant told the Tribunal that he could not relocate to Kuala Lumpur as the cost of living in Kula Lumpur was too high and he could not relocate anywhere as his accent was different and he would be identified as not being local and would be charged more for goods and services (at [31]).
The Tribunal put to the applicant country information which indicated that there was freedom of movement in Malaysia and that many people move to Kuala Lumpur for economic reasons. The Tribunal also referred to the fact that the applicant’s sister now lives in Borneo. The applicant told the Tribunal that the government had sent her there to teach “so it was different for her” (at [31]).
The Tribunal also referred to the applicant’s past employment in Malaysia, education level, skills he had developed from living in a different country (as well as skills from working in Australia doing farming and construction work) and told to him that these would be of assistance in finding employment if he returned to Malaysia (at [32]).
The applicant responded that he needed his money back as the economy was poor, he cannot relocate elsewhere as he will be charged more for not being a local and he sends money to his sister to help her (at [33]).
The Tribunal then discussed (with the applicant) the country information it relied on – as that information related to the political parties in Malaysia, political activism in Malaysia and the Malaysian economy (at [35]-[38]).
The Tribunal then explained as follows in relation to the applicant’s claims for protection:
39.The applicant’s claims in his protection visa application were confusing. The Tribunal has attempted to summarise his initial claims as contained in his protection visa application as follows:
•He was involved in a family business that had to close due to economic conditions despite him working hard. The poor economic conditions in Malaysia caused him to close his shop as his money was finished.
•A stone was hurled at him, bringing the enemy champion down.
•There are forces in the business work that would love to put them out of business. He is not ready to return to Malaysia. He has found something here to make him happy and calm down. He needs to rest in himself and not stress.
•He does not think the authorities can assist him.
•Nobody feels responsibility with him. He lost his money due to the poor economic conditions. He is happy in Australia and has work rights.
•There is no work, no money in his country.
40.In response to a s424(2) response letter sent to the applicant on or about 5 October 2023, the applicant provided additional information. The applicant indicated that he felt phobic about the incident that happened before. He did not want to see the people who hurt him. He feels safe in Australia.
41.At the Tribunal hearing, the applicant claimed he fears returning to Malaysia because:
•The food truck vendors including the friend’s friend to whom he gave money will harm him as he wants to get his money back and they all belong to the political party that he does not support.
•He was involved in politics supporting the Barisan National party.
•COVID.
•The economy in Malaysia is poor and he will not be able to find employment and support himself.

In relation to the fact that the applicant’s protection claims before the Tribunal differed from those in his protection visa application, the Tribunal explained as follows:
42.The Tribunal has considered the applicant’s comments that the reasons his claim is different is because he was new to Australia and did not complete the form correctly, including writing his name incorrectly. The Tribunal raised with the applicant his claim that a “stone was hurled at him, bringing the enemy champion down” and was told that during the heated discussion with his friend’s friend about being paid back, a stone was thrown. All the food truck vendors got together with his friend’s friend against him. That is why he fled, as he was fearful of what they might do.
43.Despite the claims in the protection visa application, the applicant did not further his claim that the family business had to close for economic conditions, even when it was raised with him that the claims at hearing differed from the claims before the delegate. The Tribunal, therefore, does not accept that the applicant faces any harm on his return to Malaysia because his family’s business closed for economic reasons.
44.The Tribunal has considered the applicant’s claim that, as he was new to Australia, he did not include his fear of facing harm for political reasons due to the food truck vendors supporting his friend's friend to whom he lent money. The applicant also did not refer to his fears concerning COVID on his return to Malaysia.
45.The Tribunal does not accept his explanation as a reasonable explanation as to why his claims were not presented prior to the delegate’s decision. The applicant was very clear in his statements that he provided the information to his friend in Australia to write down in the protection visa application. He was aware of the contents of his application which he signed himself. The application was lodged a few months after his arrival in Australia when the Tribunal would expect the circumstances that caused him to flee to Australia were fresh in his mind. While the Tribunal understands that form filling is difficult for those where English is not their first language and while errors may be made in how names are set out or spelt, the Tribunal is not satisfied that being new to Australia would cause the applicant to not refer to the circumstances that he claims cause him to fear returning to Malaysia.
The Tribunal then assessed the applicant’s claim that he feared harm because of a claimed “food truck incident”, as follows:
46.The applicant claims to fear returning to Malaysia because he lent a friend of a friend money to buy a food truck and that person now refuses to repay the funds. The applicant claims that it was due to the poor economic circumstances in Malaysia as to why he needed the money back and that this person was unable to pay him. He also claims that on the two occasions he went to ask for his money back, the food truck vendors gathered with this person to threaten him with harm for wanting his money back and on one occasion a stone was thrown. Each time he took himself away from the situation as he did not want to get involved in a fight and he did not like the type of person he was becoming in that he was loud and aggressive towards the food truck vendors and his fiend’s friend in trying to get his money back. He also told the Tribunal that after the tense situation on a subsequent occasion, he decided not to try to get his money back.
47.As discussed with the applicant at hearing, the Tribunal does not consider that his fear of being harmed by the food truck vendors is for one of the reasons of his race, nationality, religion, political or imputed political opinion or membership of a particular social group. The applicant claims that it is political, as the food truck vendors support the opposing party to the party he supports. They will use their contacts to obtain favours against him.
48.The applicant told the Tribunal that he was elected to a committee by his community to support BN candidates. His only role was to attend meetings at which he was told where to go to support a candidate and then gather his friends and travel to wherever they were to go to support the candidate. He had no other role apart from gathering his friends to support BN candidates in [city omitted].
49.After considering the applicant’s evidence, the Tribunal does not accept that the applicant faces any harm on his return to Malaysia from the food truck vendors or his friend’s friend to whom he claims he lent money, as the Tribunal does not accept that the applicant gave money to a friend’s friend to purchase a food truck. As discussed with the applicant, the Tribunal draws an inference unfavourable to the credibility of this claim as it is satisfied that the applicant does not have a reasonable explanation why the claim was not made before the primary decision was made. The Tribunal also does not accept as plausible that he would give money to a friend of a friend, despite it being a small community where people know each other, without any agreement, either formal or informal, on how the money was to be repaid, then wait for about two years before deciding to ask for the money to be repaid in full.
50.The Tribunal does not accept, based on the evidence before it, that the food truck vendors or the friend’s friend will seek to harm the applicant in any way should he return to [city omitted]. Despite knowing the identity of the applicant, neither the food truck vendors or his friend’s friend looked for the applicant at his home or sought to use their claimed political influence to target the applicant in any way prior to his departure from Malaysia. The applicant did not avail himself of the assistance of the authorities and the Tribunal acknowledges the applicant’s claims that the police are corrupt, and he would have to pay money for assistance. However, country information put to the applicant is that there is an effective police force in Malaysia and efforts have been made to fight corruption within the police force. The Tribunal would expect that if he was so fearful of harm from the food truck vendors or his friend’s friend, he would have reported the matter to the authorities.
51.While the Tribunal understands in a small community it is likely that others will become aware of one’s political leanings, the Tribunal does not accept that the applicant had anything other than a low profile as a member of a committee whose role was limited to gathering his friends to attend political meetings in support of BN candidates. The Tribunal does not accept based on the applicant's evidence that the applicant has any profile as an official or held a leadership position with BN or was an organiser of political rallies or had any political profile, apart from as a supporter of the BN party. The Tribunal finds the applicant is an ordinary supporter of the BN party in Malaysia. The Tribunal does not accept that the food truck vendors or his friend’s friend will target the applicant or seek to curry favours from their political friends to harm the applicant because of the applicant’s political beliefs as the Tribunal does not accept, they have any interest in the applicant for any reason.
52.Considering the applicant’s personal circumstances and the relevant country information, the Tribunal finds there is no real chance the applicant would suffer persecution involving serious harm from the food truck vendors or his friend’s friend or the Malaysian authorities, or any other person due to an actual or imputed political opinion or any other reason, should he return to Malaysia.
The Tribunal then assessed the applicant’s claim that he feared harm because of the COVID-19 pandemic, as follows:
53.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 explained that the common theme throughout the applicant’s claims is that he fears returning to Malaysia for economic reasons (at [54]), explaining as follows:
55.The applicant 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. He is unable to relocate elsewhere in Malaysia as he will be considered to not be local and charged extra to purchase goods and services.
56.The Tribunal accepts that the applicant would prefer to remain in Australia where he believes his life is less stressful, he believes he is happier and calmer, he has work rights and can earn a higher wage than in Malaysia.
57.The Tribunal notes that the applicant has tertiary qualifications in that he completed his Diploma and previously 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.
58.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 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.
59.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.
60.The applicant claims the economy in Malaysia is failing. In contrast, and as discussed with the applicant, DFAT reports, which the Tribunal accepts and prefers over the applicant’s unsubstantiated claims, that that 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. The Tribunal is not satisfied on the evidence that should the applicant relocate for employment, paying a non- local rate for good and services reaches the level of serious or significant harm. 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.
61.Further the country information does not reflect that there is a real chance that 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 the foreseeable future.
62.The Tribunal does not accept that there is a real chance that 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 ultimately 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, from the food truck vendors or his friend’s friend or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. As such, it could not be said that the applicant had a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if he returned to Malaysia (at [63]-[64]).
Having concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal then assessed the alternative criterion in s 36(2)(aa) of the Act and 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 [65]).
The Tribunal explained:
66.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.
67.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), for the reason of the applicant’s race, nationality, religion, political/imputed political opinion or membership of a particular social group.
68.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 the food truck vendors or his friend’s friend.
69.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).
70.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.
71.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.
The Tribunal then assessed the applicant’s claim to fear harm from COVID, as follows:
72.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.
73.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. Therefore, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm if he returns to Malaysia because of COVID.
On the basis of the above, the Tribunal determined there were no substantial grounds for believing that there was a real risk that the applicant would face significant harm for any reason if he returned to Malaysia (at [74]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [78]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 28 February 2024 contains five grounds of review as follows (without alteration) (CB 5):
1.The 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 issues and economic conditions.
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.
Adjournment request

On 17 September 2024, the applicant sent an email to the Court which stated (without alteration):
To whom who may I concern,
I sincerely apologise I cannot attend the hearing on 20/09/2024 (this coming Friday). I try to organise my schedule but still cannot make it.
At the moment I’m not in Perth. I will be back on 04/10/2024. I wish to extended the date for my hearing.
Once again I really sorry for the late responded the email from your side.
Regards,
[The applicant]
Upon receipt of this correspondence, the Court replied (via email and copying in the Minister’s legal representative). Noting that the applicant was not legally represented, the Court explained that it would accept the applicant’s email correspondence as an interlocutory application for an adjournment and would hear that application immediately prior to the substantive hearing in this matter. The applicant was further advised that, in the event that an adjournment was not granted, the substantive hearing would proceed immediately after the hearing of the adjournment request and, on that basis, he should be prepared to proceed to a substantive hearing on the listed hearing date (being 20 September 2024).
The applicant was also provided with a link to enable him to appear at the hearing by video link and instructions to enable him to do so.
The applicant appeared at the hearing before this Court (on 20 September 2024) by video link. He did so without legal representation. He was assisted by a Malay interpreter. Ms Madisen Scott from the Australian Government Solicitor appeared (in person) on behalf of the Minister.
The Court confirmed that it had before it correspondence from the applicant to the Court regarding his adjournment request (dated 17 September 2024 and detailed above). That correspondence was tendered and referenced as Exhibit 1. The Court asked the applicant if he still sought to have the matter adjourned. The applicant told the Court that he had asked for the adjournment because he was “away from Perth” but confirmed that he could (and would) now appear via video link. The Court made a procedural order granting the applicant leave to enable him to do so and, on that basis, proceeded with the substantive hearing.
Substantive hearing
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 include the application for judicial review and supporting affidavit filed by the applicant on 28 February 2024 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 119 pages (marked as Exhibit 2 at the hearing of this matter) and written submissions filed on behalf of the Minister on 23 August 2024.
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 it can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 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 told the applicant that it cannot undertake merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Noting, importantly, that 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 told the Court that he was not aware of what the Tribunal needed and was worried he might have said the wrong thing or had not been able to properly explain himself. The applicant also told the Court that he “received financial harm because [he] did not have work rights”. The applicant also explained to the Court that the economic situation in his home country “may have changed now” (particularly following the COVID-19 pandemic)
The applicant’s oral submissions, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below after the Court addresses the applicant’s grounds of review.
CONSIDERATION
Grounds of Review
The applicant’s grounds of review are not particularised, no written submissions were filed by the applicant and his oral submissions to this Court did not really address any of the grounds of review in his application for judicial review.
The Court also notes that the applicant’s grounds of review are what might best be referred to as “templates”. That is, they are grounds of review that copy, verbatim, the same grounds of review filed by other applicants in this Court (and most recently assessed by this Court in AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 (“AVH24”)) and which may have been prepared by a migration agent or representative.
This is not a criticism. What has occurred here is common in this Court – where, regrettably, many applicants appear without legal representation, with grounds of review that appear to have been prepared by someone else and which, not surprisingly, mean very little to the applicant.
In relation to whether the grounds of review were prepared by someone else, the Court is concerned that the applicant here has not been well served by those claiming to be assisting him. Should that person be a migration agent, the Court draws to the applicant’s attention to the powers of the Office of Migration Agent’s Registration Authority – the administrative body charged with overseeing the conduct of registered migration agents.
In the circumstances, in order to assist the applicant, the Court will interpret the applicant’s concerns as widely 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:
1.The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.
In written submission prepared on behalf of the Minister (and filed in this Court on 23 August 2024), the Minister contended as follows in relation to ground one:
23.By ground 1, the applicant alleges an error in relation to the Tribunal’s application of s 36(2A) of the Act.
24.There was no error by the Tribunal in relation to its understanding and application of s 36(2A). The Tribunal expressly identified and referred to the definition of ‘significant harm’ in the context of complementary protection. The Tribunal was clearly aware that the definition of ‘serious harm’ differed from the definition of ‘significant harm’.
25.Furthermore, where the Tribunal was required to individually consider the risk of significant harm (because it had found the claimed harm was not for a ‘Convention’ reason or there was no real chance), it expressly did so. This was in the context of the applicant’s fear of harm from economic conditions. The Tribunal considered whether the financial hardship the applicant would face would amount to significant harm, and was not satisfied that the applicant’s circumstances would give rise to such harm. There was no error in the Tribunal’s approach.
The Court agrees with the Minister for the reasons that follow.
As this Court has most recently explained in AVH24 (when reviewing similar grounds of review), when assessing whether ground one indicates jurisdictional error on the part of the Tribunal, it is useful to first outline those provisions of the Act relevant to the apparent concerns 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.
The Tribunal in this matter attached (as an appendix to its decision) relevant provisions of the Act and referenced those sections (or their contents) in detail throughout its decision.
The Court notes the Tribunal’s overview of the test articulated in ss 5H, 5J and 36(2)(a) of the Act, as follows:
5.….. 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, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
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.
The Tribunal then summarises the alternative criterion in s 36(2)(aa) of the Act, 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.
….
66.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 then clearly distinguished between the two “tests” when making conclusions in relation to the evidence before it.
Relevantly, in relation to the applicant’s claim to face harm on the basis of his political opinion, the Tribunal found as follows:
52.Considering the applicant’s personal circumstances and the relevant country information, the Tribunal finds there is no real chance the applicant would suffer persecution involving serious harm from the food truck vendors or his friend's friend or the Malaysian authorities, or any other person due to an actual or imputed political opinion or any other reason, should he return to Malaysia.
The Tribunal then summarised its findings about the applicant’s claim that he fears “serious harm” because of the COVID-19 pandemic, as follows:
53.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).
Then, in relation to the applicant’s claim to face economic persecution, the Tribunal concluded as follows:
61.Further the country information does not reflect that there is a real chance that 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 the foreseeable future.
62.The Tribunal does not accept that there is a real chance that 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).

The Tribunal then turned its attention to whether the alternative criterion in s 36(2)(aa) of the Act, ultimately determining as follows:
67.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), for the reason of the applicant’s race, nationality, religion, political/imputed political opinion or membership of a particular social group.
68.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 the food truck vendors or his friend’s friend.
69.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).
70.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.
71.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.
The Tribunal then assessed the applicant’s claim to fear ‘significant harm’ from COVID, ultimately determining as follows:
72.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.
73.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. Therefore, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm if he returns to Malaysia because of COVID.
On the basis of the above, the Tribunal ultimately determined that there were not substantial grounds for believing that there is a real risk that the applicant would face “significant harm” if he returned to Malaysia (at [74]).
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 (as opposed to the risk of “serious harm” as required by s 36(2)(a) of the Act). The Tribunal 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 a way that was reasonable and entirely logical.
No 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 issues and economic conditions.
In written submissions prepared on behalf of the Minister (and filed in this Court on 23 August 2024), the Minister contended as follows in relation to ground two:
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.The applicant’s ‘political’ claims related to the person he lent money to being a supporter of the opposing political party and that the applicant fears ‘what they might do to him’. The Tribunal considered this in its reasons at [50]-[52]. Relevantly, the Tribunal rejected any assertion that the friend’s friend or food truck vendors would seek to harm the applicant in any way should he return to Malaysia. The Tribunal reasoned that despite being aware of the applicant’s identity, the food truck vendors or the friend’s friend did not seek out the applicant at his home or use their claimed political influence to target the applicant in any way prior to his departure from Malaysia.
30.In relation to the economic claims of the applicant, the Tribunal considered these in detail at [55]-[62]. 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 claims met the relevant criteria.
The Court again agrees with the Minister for the reasons that follow.
In relation to the applicant’s political claims, as in AVH24, the Tribunal rejected the factual basis upon which this claim was based. Relevantly, the Tribunal determined as follows:
50.The Tribunal does not accept, based on the evidence before it, that the food truck vendors or the friend’s friend will seek to harm the applicant in any way should he return to [city omitted]. Despite knowing the identity of the applicant, neither the food truck vendors or his friend’s friend looked for the applicant at his home or sought to use their claimed political influence to target the applicant in any way prior to his departure from Malaysia. The applicant did not avail himself of the assistance of the authorities and the Tribunal acknowledges the applicant’s claims that the police are corrupt, and he would have to pay money for assistance. However, country information put to the applicant is that there is an effective police force in Malaysia and efforts have been made to fight corruption within the police force. The Tribunal would expect that if he was so fearful of harm from the food truck vendors or his friend’s friend, he would have reported the matter to the authorities.
51.While the Tribunal understands in a small community it is likely that others will become aware of one’s political leanings, the Tribunal does not accept that the applicant had anything other than a low profile as a member of a committee whose role was limited to gathering his friends to attend political meetings in support of BN candidates. The Tribunal does not accept based on the applicant's evidence that the applicant has any profile as an official or held a leadership position with BN or was an organiser of political rallies or had any political profile, apart from as a supporter of the BN party. The Tribunal finds the applicant is an ordinary supporter of the BN party in Malaysia. The Tribunal does not accept that the food truck vendors or his friend’s friend will target the applicant or seek to curry favours from their political friends to harm the applicant because of the applicant’s political beliefs as the Tribunal does not accept, they have any interest in the applicant for any reason.
On the basis of the above, the Tribunal concluded (having considered the applicant’s personal circumstances and the relevant country information) that there was no real chance that the applicant would suffer persecution involving serious harm from the food truck vendors, his friend’s friend, the Malaysian authorities, or any other person due to an actual or imputed political opinion (or for any other reason), should he return to Malaysia (at [52]).
The Tribunal then applied those findings 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 as follows:
67.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), for the reason of the applicant’s race, nationality, religion, political/imputed political opinion or membership of a particular social group.
68.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 the food truck vendors or his friend’s friend.
A similar approach is evident in relation to the applicant’s economic claims. Relevantly, the Tribunal determined as follows in assessing whether the applicant would face serious harm because of his economic circumstances:
57.The Tribunal notes that the applicant has tertiary qualifications in that he completed his Diploma and previously 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.
58.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 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.
59.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.
60.The applicant claims the economy in Malaysia is failing. In contrast, and as discussed with the applicant, DFAT reports, which the Tribunal accepts and prefers over the applicant’s unsubstantiated claims, that that 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. The Tribunal is not satisfied on the evidence that should the applicant relocate for employment, paying a non- local rate for good and services reaches the level of serious or significant harm. 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.
61.Further the country information does not reflect that there is a real chance that 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 the foreseeable future.
62.The Tribunal does not accept that there is a real chance that 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 if he returned to Malaysia now or in the reasonably foreseeable future (at [63]-[64]).
The Tribunal then applied those findings when assessing the alternative criterion in s 36(2)(aa) of the Act, determining as follows:
69.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).
70.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.
71.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 cannot be said here that the Tribunal’s analysis in this regard is lacking or construed narrowly or erroneously.
Nor, as was the case in AVH24, 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 [53] of the Tribunal’s reasons), the Tribunal analysed whether the applicant was owed complementary protection on that basis.
The Tribunal concluded as follows:
72.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.
73.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. Therefore, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm if he returns to Malaysia because of COVID.
Again, it cannot be said here that the Tribunal’s analysis in this regard is lacking or construed narrowly or erroneously.
To the extent that the applicant suggests (via ground two) that the Tribunal’s reasoning processes and findings are “unreasonable”, this will be addressed below in relation to ground three.
No error arises in relation to ground two.
Ground three
Ground three states:
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.
By ground three, the applicant appears to argue that the Tribunal’s approach and reasons were “illogical, irrational or unreasonable”.
As this Court most recently did in AVH24, 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].
It is noted that the Tribunal in this matter makes adverse credibility findings. This Court has previously summarised the principles of legal unreasonableness in relation to credibility findings in its decision in ASG17 v Minister for Immigration & Anor [2019] FCCA 1492 (at [129]-[130]).
The Court relies upon and repeats the overview provided in that judgment below, as follows.
In DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2, the Full Court of the Federal Court of Australia (the “Full Court”) (Kenny, Kerr and Perry JJ) summarised the principles of legal unreasonableness in relation to credibility findings, providing as follows:
3. RELEVANT PRINCIPLES: LEGAL UNREASONABLENESS
30. The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
In this matter, it cannot be said that the Tribunal’s findings fall afoul of the jurisprudence outlined above.
In relation to the Tribunal’s credibility findings, the Court notes as follows:
(a)the Tribunal discussed the effect of s 423A of the Act, explaining that it was required to draw an adverse inference to the credibility of that claim or evidence, unless it was satisfied that the applicant had a reasonable explanation as to why the claim was not made, or evidence not presented, before the delegate’s decision was made;
(b)the Tribunal further explained to the applicant that this was an issue in his matter because his claims at the hearing were different to the claims made in his visa application form; and
(c)the Tribunal also explained that in his response to the s 424(2) letter sent to him by the Tribunal, the applicant made no reference to the claims he was raised at the hearing (at [28]).
The Tribunal then assessed the applicant’s explanation about why his claims had changed, noting as follows:
29.The applicant indicated that he was new in Australia and even wrote his name incorrectly on the form. The Tribunal referred to his earlier evidence that he completed the form himself and was aware of the contents and asked why he did not refer these claims at the time of lodging the application form? The applicant again indicated that the process was new, and his main issue was the food truck vendors
The Tribunal continued:
42.The Tribunal has considered the applicant’s comments that the reasons his claim is different is because he was new to Australia and did not complete the form correctly, including writing his name incorrectly. The Tribunal raised with the applicant his claim that a “stone was hurled at him, bringing the enemy champion down” and was told that during the heated discussion with his friend’s friend about being paid back, a stone was thrown. All the food truck vendors got together with his friend’s friend against him. That is why he fled, as he was fearful of what they might do.
43.Despite the claims in the protection visa application, the applicant did not further his claim that the family business had to close for economic conditions, even when it was raised with him that the claims at hearing differed from the claims before the delegate. The Tribunal, therefore, does not accept that the applicant faces any harm on his return to Malaysia because his family’s business closed for economic reasons.
44.The Tribunal has considered the applicant’s claim that, as he was new to Australia, he did not include his fear of facing harm for political reasons due to the food truck vendors supporting his friend's friend to whom he lent money. The applicant also did not refer to his fears concerning COVID on his return to Malaysia.
45.The Tribunal does not accept his explanation as a reasonable explanation as to why his claims were not presented prior to the delegate's decision. The applicant was very clear in his statements that he provided the information to his friend in Australia to write down in the protection visa application. He was aware of the contents of his application which he signed himself. The application was lodged a few months after his arrival in Australia when the Tribunal would expect the circumstances that caused him to flee to Australia were fresh in his mind. While the Tribunal understands that form filling is difficult for those where English is not their first language and while errors may be made in how names are set out or spelt, the Tribunal is not satisfied that being new to Australia would cause the applicant to not refer to the circumstances that he claims cause him to fear returning to Malaysia.
It cannot be said here that the approach taken by the Tribunal in this regard is “extreme”, “arbitrary”, “perverse” or “capricious”. Any adverse credibility concerns were put to the applicant for a response and otherwise related to evidence that the applicant himself had put before the Tribunal.
Further, in relation to the applicant’s additional (and new) claims for protection, it cannot be said that the determinations made by the Tribunal 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 (at [34] in written submissions filed in this Court on 23 August 2024), the Tribunal:
(a)accurately summarised the relevant legislative provisions (at [5]-[11]) and demonstrated a correct understanding of those provisions throughout its reasons;
(b)identified that the applicant’s claim regarding the COVID-19 pandemic did not fall within s 5J(1)(a) of the Act (at [53]), the Tribunal expressly referred to the applicant’s “capacity to subsist” in discussing the economic claims (a direct reference to serious harm) (at [60]-[62]) 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) of the Act (at [73]). The Tribunal was clearly aware of and correctly understood the statutory provisions it was required to apply and how to undertake its task;
(c)correctly identified each of the applicant’s claims, including the additional claim that related to the COVID-19 pandemic, which arose at the hearing;
(d)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
(e)made logical and reasoned conclusions based upon the evidence provided by the applicant and the relevant country information.
The Court notes, in particular, the Tribunal’s analysis of the evidence before it in relation to the “food truck incident” and the applicant’s political activities:
49.After considering the applicant’s evidence, the Tribunal does not accept that the applicant faces any harm on his return to Malaysia from the food truck vendors or his friend’s friend to whom he claims he lent money, as the Tribunal does not accept that the applicant gave money to a friend’s friend to purchase a food truck. As discussed with the applicant, the Tribunal draws an inference unfavourable to the credibility of this claim as it is satisfied that the applicant does not have a reasonable explanation why the claim was not made before the primary decision was made. The Tribunal also does not accept as plausible that he would give money to a friend of a friend, despite it being a small community where people know each other, without any agreement, either formal or informal, on how the money was to be repaid, then wait for about two years before deciding to ask for the money to be repaid in full.
50.The Tribunal does not accept, based on the evidence before it, that the food truck vendors or the friend’s friend will seek to harm the applicant in any way should he return to [city omitted]. Despite knowing the identity of the applicant, neither the food truck vendors or his friend’s friend looked for the applicant at his home or sought to use their claimed political influence to target the applicant in any way prior to his departure from Malaysia. The applicant did not avail himself of the assistance of the authorities and the Tribunal acknowledges the applicant’s claims that the police are corrupt, and he would have to pay money for assistance. However, country information put to the applicant is that there is an effective police force in Malaysia and efforts have been made to fight corruption within the police force. The Tribunal would expect that if he was so fearful of harm from the food truck vendors or his friend’s friend, he would have reported the matter to the authorities.
51.While the Tribunal understands in a small community it is likely that others will become aware of one’s political leanings, the Tribunal does not accept that the applicant had anything other than a low profile as a member of a committee whose role was limited to gathering his friends to attend political meetings in support of BN candidates. The Tribunal does not accept based on the applicant's evidence that the applicant has any profile as an official or held a leadership position with BN or was an organiser of political rallies or had any political profile, apart from as a supporter of the BN party. The Tribunal finds the applicant is an ordinary supporter of the BN party in Malaysia. The Tribunal does not accept that the food truck vendors or his friend’s friend will target the applicant or seek to curry favours from their political friends to harm the applicant because of the applicant’s political beliefs as the Tribunal does not accept, they have any interest in the applicant for any reason.
52.Considering the applicant’s personal circumstances and the relevant country information, the Tribunal finds there is no real chance the applicant would suffer persecution involving serious harm from the food truck vendors or his friend's friend or the Malaysian authorities, or any other person due to an actual or imputed political opinion or any other reason, should he return to Malaysia.
It cannot be said that the Tribunal’s findings in relation to the applicant’s claim to fear harm on the basis of his political links and the “truck driving incident” are irrational or illogical. The Tribunal’s conclusions were based on the evidence presented by the applicant himself at the Tribunal hearing, an extensive review of the country information and were arrived at after a transparent effort by the Tribunal to question the applicant and allow him to explain and clarify what had happened and why he feared harm.
No error arises in relation to ground three.
Ground four
Ground four provides as follows:
4.The Tribunal has failed to investigate applicant’s claim, especially the grounds of persecution in Malaysia.
By ground four, the applicant suggests that the Tribunal has a responsibility to investigate for itself the protection claims advanced by the applicant.
The Court disagrees for the reasons that follow.
As recently discussed by this Court in CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101 (“CUB23”), s 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.

As explained in both CUB23 and AVH24, the Tribunal is not required to investigate an applicant’s claims or to seek further evidence by itself in relation to what may or not be a protection claim: 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, however, that the Tribunal should not have helped the applicant (particularly an applicant who appears without legal assistance, who is not fluent in the English language and who speaks through or with the assistance of an interpreter) better articulate his concerns and the evidence he sought to present and rely on.
That approach was adopted here.
Relevantly, as noted above, the Tribunal raised any concerns it had with the applicant’s evidence with the applicant himself and gave the applicant an opportunity to respond. The Tribunal also assessed both previous and new protection claims raised by the applicant and, again, gave him an opportunity to address any concerns raised by the Tribunal.
Overall, the Tribunal here actively sought to elicit as much information as it could from the applicant in relation to any claims raised (or implied). Nothing more was required of the Tribunal.
No error arises in relation to ground four.
Ground five
Ground five states:
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.
As in CUB23, it is not clear what the applicant is suggesting in relation to ground five. If the applicant is suggesting that the Tribunal failed to comply with the mandatory requirement under s 424A of the Act (read with s 424AA of the Act) to give him particulars of information it considered would be part of the reason for affirming the decision under review, to ensure that the applicant understood why that information was relevant to the review and the consequence of it being relied upon, and to invite the applicant to comment upon or respond to that information, the Court disagrees for the reasons that follow.
As detailed in CUB23, this Court has previously outlined the requirements of s 424A of the Act and s 424AA of the Act in its decision in CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616 (“CCU23”) (at [49]-[54] & [57]-[58]). The Court repeats and adopts the analysis provided in that judgment as follows.
Section 424A of the Act requires that the Tribunal put certain adverse information to an applicant for comment or response (subject to the Tribunal’s power to use, in the alternative, s 424AA of the Act) and relevantly states:
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).
Section 424AA of the Act relevantly provides as follows:
424AAInformation 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).
As is evident, the Tribunal is required to comply with s 424AA of the Act (or s 424A of the Act) in respect 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”.
Information is not defined under the Act or the Regulations. However, in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) the High Court defined “information” as meaning the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies, or the absence of evidence” or the Tribunal’s disbelief.
Essentially, as summarised by this Court in CCU23, for the purpose of s 424A of the Act and s 424AA of the Act, “information” does not include the following:
(a)information referenced in s 424A(3) of the Act, being information:
(i)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: s 424A(3)(a) of the Act;
(ii)that the applicant gave for the purpose of the application for review: s 424A(3)(b) of the Act;
(iii)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: s 424A(3)(ba) of the Act; and
(iv)that is non‑disclosable information: s 424A(3)(c) of the Act;
(b)“the Tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (“VAF”) at [24] per Finn and Stone JJ; SZYBR at [18]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 (“SZGUR”) at [9];
(c)“identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc”: VAF at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9]; and
(d)doubts, inconsistencies or the absence of evidence: SZYBR at [18].
Further, the Full Court has determined that information “does not extend to the ‘prospective reasoning process’ of the Tribunal” and any such information must be information that “would” be the reason, or part of the reasons for affirming the decision (rather than information that “could” or “might” be such a reason): SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3 at [18] per Perram, Jagot and Griffiths JJ.
The Court has assessed (above, in relation to ground three) the approach taken by the Tribunal in this matter in relation to the issue of credibility. Having assessed the Tribunal’s findings in that regard and noting the materials before the Tribunal, there is nothing to suggest that there was any ‘information’ which the Tribunal was required to put to the applicant under s 424A. The Tribunal relied upon information provided by the applicant himself. Further, as set out above, the Tribunal’s thought processes or determinations are not “information” which the Tribunal was required to put to the applicant for the purposes of s 424A of the Act or s 424AA of the Act: VAF at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9].
No error arises in relation to ground four.
Oral submissions
As outlined by the Court above, in oral submissions before this Court, the applicant appeared to suggest that he was not afforded procedural fairness. He also took issue with not having work rights in Australia and suggested that the economic situation in his home country may have changed (particularly following the COVID-19 pandemic). These issues will be addressed in turn below.
Whether the Tribunal failed to afford the applicant procedural fairness
The applicant arguably suggests that the Tribunal failed to comply with its obligations under s 422B of the Act – that is, the Tribunal failed to afford him procedural fairness or failed to comply with the natural justice hearing rule.
As previously explained by this Court in ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
Overall, the Court is satisfied that the applicant was afforded natural justice. He was given ample opportunity to provide evidence to the Tribunal and present arguments in support of his case.
Relevantly, the Court notes that:
(a)the applicant was advised by the Tribunal on 30 October 2018 that his application to the Tribunal had been received and that he was entitled to provide material or written arguments to the Tribunal (CB 71);
(b)on 10 December 2021, the applicant advised the Tribunal that he had changed his address (CB 73);
(c)on 5 October 2023, the Tribunal advised the applicant that his matter had been assigned to a Tribunal Member. The applicant was asked to complete a pre-hearing form and return that form to the Tribunal (CB 75);
(d)the applicant did so on 11 October 2023. He also provided further information regarding his protection claims (CB 76-81);
(e)on 15 November 2023, the applicant was invited to attend a Tribunal hearing scheduled for 5 December 2023. That letter advised that the applicant could provide documents to the Tribunal that he intended to rely on (CB 82-85);
(f)on 21 November 2023, the applicant advised the Tribunal that he would attend the hearing and that he would call his brother as a witness (CB 86-89);
(g)on 23 November 2023, the applicant was advised that the hearing had been rescheduled to 19 December 2023 (CB 90-93);
(h)the applicant advised the Tribunal (on 28 November 2023) that he would attend the hearing and again completed a response to hearing invitation form (CB 94-97);
(i)the applicant attended the hearing on 19 December 2023 (CB 98-101). At that hearing, the applicant was asked about his protection claims and given an opportunity to amended or clarify those claims;
(j)the applicant was advised by the Tribunal at the hearing about the effect of s 423A of the Act and made aware that the credibility of his protection claims was in issue (at [28]); and
(k)at that hearing, as discussed above in relation to ground three, where the Tribunal had concerns about the applicant’s claims or evidence, those concerns were put to the applicant and the applicant was given an opportunity to respond or to clarify;
(l)in addition to the amended claims raised by the applicant at the hearing, the Tribunal assessed the claims initially raised in the applicant’s original visa application (even though the applicant appeared to change his claims before the Tribunal; and
(m)the Tribunal put all relevant country information to the applicant and, again, the applicant was invited to comment.
On the basis of the above, the Court is satisfied that the Tribunal gave the applicant ample opportunity to clarify his protection claims and to provide evidence in support of those claims.
The Court is also satisfied that the applicant was afforded natural justice in this matter.
No error arises in this regard.
Whether the Tribunal erred by failing to consider the “changed situation” in Malaysia
The applicant further stated in oral submissions that the economic situation in Malaysia “may have changed” (particularly following the COVID-19 pandemic).
As this Court has preciously outlined in its decision in GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9, in DVF18 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FedCFamC2G 135 (“DVF18”), Judge Egan of this Court outlined the scope of the Court’s function in a judicial review application as follows (emphasis added):
25Second, as to the Court’s function on judicial review, it has been held that the Court has to look at the legality of the exercise of a power, or the performance of a duty, rather than events which have occurred subsequent to the exercise of such power, or the performance of such duty, when determining the issue before it. In Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118, Steward J said as follows:
“In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made. Ruddock v Taylor is an example of this principle. In that case, a visa had been twice cancelled pursuant to s 501(2) of the Migration Act on the basis that the defendant visa holder had failed the character test in s 501(6). Mr Taylor was detained pursuant to s 189 following each decision to cancel his visa. Section 189 relevantly empowers an officer to detain a person where the officer knows or reasonably suspects that the person is an “unlawful non-citizen”. Both decisions to cancel these visas were quashed by orders of this Court. Mr Taylor made a claim for damages for false imprisonment. This was based on the proposition that the quashing of each cancellation decision demonstrated that each decision was “legally infirm”. That proposition was rejected by this Court. Gleeson CJ, Gummow, Hayne and Heydon JJ said:
“The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time. ... what were reasonable grounds for effecting the respondent’s detention did not retrospectively cease to be reasonable upon the Court making its orders in [the earlier quashing decision] or upon the Court later publishing its reasons in that case.”
Here, the plaintiff candidly conceded that when the Minister decided to cancel his visa, that decision was, at that time, entirely valid. He did not dispute that, at that time, each of the matters upon which a lawful exercise of the power conferred by s 501(3A) of the Migration Act depended were then in existence. That being so, that is the end of the matter. The legal efficacy of a decision cannot be undone by events which did not exist when the decision was made.”
(footnotes omitted)
As outlined by Judge Egan (in DVF18) and Justice Steward (in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118), events which take place after the Tribunal has validly exercised its power cannot play any part in assessing whether the Tribunal’s decision contained any instance of jurisdictional error.
In this matter, whether the economic situation in Malaysia has changed since the Tribunal handed down its decision is irrelevant to the Court’s task on review. Evidence to this effect, to the extent that it does indeed exist, was not before the Tribunal at the relevant time. It cannot be said that the Tribunal erred by failing to consider evidence that existed at a future date.
No error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 28 February 2024 and the applicant’s oral submissions (made at the hearing before this Court) have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error. The application is, accordingly, dismissed.

I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 11 February 2025

File number:	PEG 64 of 2024
Judgment of:	JUDGE KENDALL
Date of judgment:	11 February 2025
Catchwords:	MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to understand the meaning and effect of s 36(2A) of the Act – whether the Tribunal considered the applicant’s protection claims “erroneously and narrowly” – whether the Tribunal’s decision and credibility findings were illogical, irrational or unreasonable – whether the Tribunal failed to “investigate” the applicant’s protection claims – whether the Tribunal failed to comply with s 424A of the Act – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal erred by failing to consider the “changed situation” in Malaysia – no jurisdictional error – application dismissed.
Legislation:	Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 and Item 25 Migration Act 1958 (Cth), ss 5H, 5J, 5AAA, 36, 422B, 423A, 424A, 424AA & 476 and Division 4 of Part 7 Migration Regulations 1994 (Cth), Schedule 2
Cases cited:	ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67 ASG17 v Minister for Immigration & Anor [2019] FCCA 1492 AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616 Craig v State of South Australia (1995) 184 CLR 163 CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101 CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688 DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 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 DVF18 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FedCFamC2G 135 GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9 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 Citizenship v SZGUR [2011] HCA 1 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 Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA Trans 118 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 SZTGV v Minister for Immigration, and Border Protection [2015] FCAFC 3 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Division:	Division 2 General Federal Law
Number of paragraphs:	155
Date of hearing:	20 September 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

PEG 64 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AVS24 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	11 FEBRUARY 2025