AYC24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 533
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AYC24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 533
File number: PEG 74 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 17 April 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal misconstrued the applicant’s risk and fear of significant harm – whether the Tribunal erroneously and narrowly construed the existence of the risk to life and fear of significant harm – whether the Tribunal had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth) – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to comply with the mandatory requirement in s 424A of the Migration Act – no jurisdictional error established – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 5AAA, 5H, 5J, 36, 65, 415, 424, 424AA, 424A, 476, 477
Cases cited: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 10 April 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 74 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYC24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $6,500.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 8 February 2024. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant raises five grounds in his application which assert that the Tribunal made a jurisdictional error because it:
(a)misconstrued the risk and fear of significant harm as defined in s 36(2A) of the Migration Act;
(b)erroneously and narrowly construed the existence of the risk to life and fear of significant harm of the applicant upon his return to Malaysia as a Shia Muslim;
(c)had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Migration Act;
(d)failed to investigate the applicant’s claims, especially in relation to the grounds of persecution in Malaysia; and
(e)failed to comply with the mandatory requirement in s 424A of the Migration Act to give to the applicant clear particulars of information it considered would be the reason or part of the reason for affirming the decision under review, ensure the applicant understood why the information was relevant and invite the applicant to comment upon or respond to the information.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error in its decision. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 18 December 2017 the applicant applied for a protection visa. The applicant claimed he would face harm on account of his Shia Muslim religion, and that he would be identified as a Shia Muslim because of his name, which is the same as the name of an influential Shia Muslim.
On 6 February 2018 a delegate of the Minister refused to grant the applicant a protection visa and the applicant applied to the Tribunal for merits review of the delegate’s decision on 7 February 2018.
On 29 January 2024 the applicant attended a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in the review. The applicant was assisted by an interpreter at the hearing.
On 8 February 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal found that the applicant was not a credible or reliable witness and, other than in relation to matters immaterial to his substantive claims for protection, found it impossible to accept the applicant’s evidence. The Tribunal’s credibility concerns included:
(a)the applicant knowingly lied on his protection visa because he was concerned that an honest answer would result in the refusal of his protection visa application;
(b)the applicant’s evidence was often vague and lacking in detail;
(c)the applicant commonly claimed that he could ‘not remember’ when pressed for details, in a way that caused the Tribunal to believe that he did not genuinely suffer from any lack of recollection, but claimed to have a faulty memory as a convenient way to avoid providing further detail and potentially inconsistent and unhelpful evidence;
(d)there were inconsistencies in the applicant’s evidence between his protection visa application and at the hearing, and also internal inconsistencies in the applicant’s evidence at the hearing; and
(e)the applicant did not satisfactorily explain why he waited until shortly before his substantive visa expired before applying for a protection visa.
The Tribunal rejected the applicant’s claims to be a Shia Muslim. The Tribunal considered the manner in which the applicant talked about his Shia faith and answered questions about his belief lacked sufficient detail and persuasiveness and that, in combination with the Tribunal’s conclusion about the applicant’s credibility, led the Tribunal to not be satisfied the applicant is or was a Shia Muslim, or that he was ever harmed on that account by friends, family, colleagues, Malaysian authorities, persons in his village or members of society generally.
The Tribunal was not satisfied the applicant had been or would be imputed as a Shia Muslim because of his name being referrable to a prominent figure from a Middle Eastern, Shia majority country. The Tribunal also noted that this aspect of the applicant’s claims ignored the undeniably Sunni reference in his family name.
The Tribunal considered the possibility that it was wrong about whether the applicant is a Shia Muslim or would be imputed as such. Having regard to country information and the absence of any claim by the applicant to proselytise, the Tribunal was not satisfied that, even if the applicant were a Shia Muslim, he would face a real chance of serious harm on that basis.
The Tribunal considered the possibility that the applicant’s assertion that he was ‘not really religious’ may give rise to a claim on the material that the applicant would be imputed with apostacy. The Tribunal did not accept that the applicant was a non-practising Muslim or that he would be imputed with apostasy on return. The Tribunal found that the applicant was in fact a practising Sunni Muslim.
The Tribunal did not accept that the applicant has experienced stress, psychological harm or has felt mentally very down due to not being free in Malaysia because he is a Shia Muslim or for any other reason. The Tribunal did not accept that the applicant would experience any of those things on return now or in the reasonably foreseeable future.
The Tribunal did not accept that the applicant would be refused employment for any reason. The Tribunal also considered that the economic circumstances the applicant would experience if returned to Malaysia were circumstances that would apply to the population generally. The Tribunal was not satisfied the economic circumstances that would apply to the applicant would amount to serious harm, having regard to the examples in s 5J(5) of the Migration Act.
The Tribunal was not satisfied the applicant faced a real chance of persecution now or in the reasonably foreseeable future in Malaysia and found that the applicant did not meet the criterion in s 36(2)(a) of the Migration Act.
The Tribunal was also not satisfied there was a real risk the applicant would suffer significant harm if returned to Malaysia. The Tribunal found that any mental health problems confronting the applicant on his return to Malaysia would not meet the definition of significant harm and did not accept that any person would seek to intentionally inflict mental harm upon the applicant in Malaysia. The Tribunal also did not accept any economic harm would constitute significant harm. The Tribunal otherwise relied on its antecedent findings of fact and did not accept there was a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. The Tribunal found that the complementary protection criterion in s 36(2)(aa) of the Migration Act was not met.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 5 March 2024. The application was made within 35 days of the Tribunal decision as required by s 477(1) of the Migration Act.
The applicant raises five grounds in his application (reproduced without alteration):
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 as a Shia Muslim.
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.
Pursuant to an Order made by a Registrar of this Court on 29 May 2024, the applicant was required to file and serve 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of application and any additional evidence on which the applicant seeks to rely. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions 14 days before the hearing as required by the Registrar’s Order.
The evidence before the Court comprises:
(a)an affidavit of the applicant filed with his judicial review application annexing a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 29 May 2024; and
(c)an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 4 April 2025, confirming that relevant Court documents were served on the applicant.
CONSIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The applicant’s submissions at the hearing
At the hearing before the Court, the applicant was invited to make submissions about:
(a)why he believes the Tribunal made a jurisdictional error; and
(b)each of the five grounds of application.
To the extent that the applicant made submissions in relation to the specific grounds, I summarise those submissions below in the context of considering the grounds.
The more general submissions made by the applicant at the hearing include the following submissions:
(a)the Tribunal asked him too much about his religion;
(b)he was being teased by friends, relatives and people around him;
(c)his name is the same as a Shia leader in Arab, and he cannot do anything about his name as his parents gave it to him and he cannot change his name because it is already registered;
(d)he has a lot of stress and cannot work;
(e)the Tribunal did not believe him and this is not a question that they asked him;
(f)he might be killed just because of his name;
(g)he has been sacked or asked to leave his work because he is a Shia Muslim;
(h)he cannot live in such a situation and his family do not care about him anymore;
(i)he has no financial support and does not have enough money to live; and
(j)the Tribunal asked a lot of questions and at the end of hearing gave him two weeks to produce evidence, so he thinks they wanted a police report, but he could not get one.
These submissions largely invite the Court to engage in impermissible merits review of the Tribunal decision. As I explained to the applicant at the hearing, the Court cannot consider for itself whether he meets the criteria for a protection visa. To the extent that the applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal decision.
Insofar as the submissions may, interpreted generously, assert jurisdictional error in the Tribunal decision, I make the following observations.
In circumstances where the applicant claimed to fear harm on account of his Shia Islam religion, it was appropriate for the Tribunal to ask the applicant questions about his religion. The applicant did not elaborate on his assertion at the hearing that the Tribunal asked him too many questions about his religion, and there is no transcript of the Tribunal hearing in evidence before the Court, although the Tribunal did provide a detailed summary of the applicant’s evidence at the hearing.
In making findings on the applicant’s religion, and in addressing the applicant’s responses to questions about his religion, the Tribunal was mindful of the limitations on relying on the applicant’s level of knowledge about his religion. This can be seen most clearly from the Tribunal’s reasons at [78]-[81], where the Tribunal said (footnotes omitted):
78.I am conscious of the limitations of reasoning based on an applicant’s knowledge or lack of knowledge of religion. It is not for me to be the arbiter of the level of knowledge expected of a person claiming to be a Shia. Yet my task is to determine whether the applicant does, in fact, hold Shia beliefs and adheres to Shia Islam.
79.Even so, it is for the applicant to establish the claims that he makes. I am still required to reach an assessment of the overall credibility of the applicant's claim to be a Shia and to face harm on that account if he were returned to Malaysia.
80.The applicant claims to have been Shia since childhood. He claims to have been introduced to the faith by, and to follow, his father. He, implicitly if not expressly, claims that his father’s Shia beliefs influenced the name chosen for him.
81.In the circumstances, I consider that the way the applicant talked about his Shia faith and answered questions about his beliefs lacked sufficient detail and persuasiveness to satisfy me that he is, or was, Shia. That conclusion, in combination with my conclusion about the applicant’s credibility, lead me to reject the applicant’s claims to be a Shia.
This is a fair approach by the Tribunal and does not disclose jurisdictional error.
The applicant complains that the Tribunal did not believe him. The Tribunal identified at [18]-[20] of its reasons the approach that it took to the assessment of the applicant’s credibility (footnotes omitted):
18.In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility.
19.Any assessment of credibility I make must be legally reasonable. Assessing a person’s credibility and reliability is a difficult task. The assessment should be careful and thoughtful, and processes conducted fairly and reasonably. Inconsistencies in an applicant's account may or may not be significant. I must assess the significance of any inconsistency found to exist, the weight to be given to it, and carefully consider whether there is an acceptable explanation for the inconsistency such that it should attract little if any weight.
20.Caution is required when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution. I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims. However, I am not required to uncritically accept any or all of the allegations made by an applicant. I do not need rebutting evidence before I can find that a particular factual assertion is not made out.
The Tribunal summarised the evidence given by the applicant and then explained in detail its reasons for making adverse credibility findings in relation to the evidence given by the applicant. The basis of the Tribunal’s adverse credibility findings is summarised above. Having regard to the Tribunal’s findings on credibility and reasons for those findings, I am satisfied that the Tribunal’s approach to assessing the credibility of the applicant’s claims and evidence was consistent with the approach summarised at [18]-[20] of its reasons, which in turn is consistent with the requirements of case law. There is no jurisdictional error in the Tribunal’s approach to the applicant’s credibility.
The Tribunal considered and made findings on the factual matters that the applicant referred to in his oral submissions to the Court where those matters were raised before the Tribunal. I particularly note that:
(a)the Tribunal recorded the applicant’s claims to have been slapped by his friend and cousin because he was a Shia Muslim, that his friends insulted him at school and bullied and beat him, that he was threatened by others and that his friends and people in the villages would persecute him on return (see [5], [8], [36], [38], [39] and [50] of the Tribunal’s reasons) and the Tribunal rejected these claims at [83] of its reasons;
(b)the Tribunal recorded the applicant’s claim that his family members and relatives did not like him because of his religion (see [8] and [39] of the Tribunal’s reasons) and, while the Tribunal did not make a specific finding about whether the applicant’s family members like him, these matters ae subsumed by the Tribunal’s findings at [83] that the Tribunal did not accept the applicant is a Shia Muslim or that he had been harmed by friends, family, colleagues, authorities, people in his village or members of society generally;
(c)the Tribunal recorded the applicant’s claims based on his middle name and rejected that he would be imputed to be a Shia Muslim on this basis at [85]-[87] of its reasons;
(d)the Tribunal recorded at [41] of its reasons that the applicant gave evidence that his religion caused him stress and at [91] did not accept that the applicant had experienced stress, psychological harm or had felt mentally very down because he is not free in Malaysia and is a Shia Muslim or for any other reason, and did not accept that he would experience these things on return for any reason in s 5J(1) of the Migration Act; and
(e)the Tribunal noted that the applicant had not expressly claimed to fear harm because of economic circumstances in Malaysia, but did not accept that the applicant would be refused employment for any reason (see [93] of the Tribunal’s reasons) and considered that the economic circumstances the applicant would experience in Malaysia applied to the population generally (see [94] of the Tribunal’s reasons).
There is no evidence before the Court to demonstrate that the applicant claimed he had been sacked from his employment or asked to leave his work because of his religion, and such a claim did not clearly emerge from the materials before the Tribunal based on established facts. The Tribunal was therefore not required to consider this: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [60]-[61]. The Tribunal did, however, acknowledge at [37] of its reasons the applicant’s evidence that he was persecuted and bullied while in the military, but also recorded at [42] that he then returned to the military voluntarily and the Tribunal considered it somewhat implausible that if the applicant was harmed during his previous military service, he would return to military service.
I am unable to ascertain from the applicant’s oral submissions at the hearing that there was any claim or evidence that the Tribunal was required to, but did not, consider: see NABE at [63]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [113].
The final matter raised by the applicant in his oral submissions is that he was given two weeks to provide evidence after the hearing and could not obtain a police report. This assertion needs to be seen in context. The applicant had opportunities when he made his protection visa application, when he provided a completed pre-hearing information form to the Tribunal and when he attended the hearing before the Tribunal to give evidence to support his claims. The Tribunal recorded at [13] of its reasons that the applicant sought and was granted seven days to provide further comments, submissions and material to the Tribunal, but he did not request an extension of time and nothing was provided. The Tribunal hearing record indicates that the applicant was to provide information, comments or responses in writing by 5 February 2024. Based on the evidence before the Court, I accept that the applicant had seven days after the hearing to provide further information, rather than 14 days as he suggested in his oral submissions. However, I do not accept that there is any denial of procedural fairness or any other jurisdictional error based on the timeframe to provide evidence after the hearing. There is no indication that the applicant sought any additional time or that he explained to the Tribunal that seven days was not enough time. There is no evidence that there was any communication from the applicant to the Tribunal to suggest that the applicant still intended to provide evidence after the seven day time period had passed. No jurisdictional error arises from the further opportunity to provide evidence after the hearing.
The applicant has not established that the Tribunal decision is affected by jurisdictional error based on the general submissions he made at the hearing before the Court.
Grounds 1 and 2
It is convenient to address grounds 1 and 2 together. On their face, the language of these grounds directs attention to the Tribunal’s understanding and application of the complementary protection criterion in s 36(2)(aa) of the Migration Act. I note, however, that the Minister in his submissions interpreted the grounds as extending to the refugee criterion as well as the complementary protection criterion. I accept that on a beneficial interpretation of ground 2, the ground could be understood as extending to an allegation that the Tribunal misconstrued or misapplied the refugee criterion. I therefore consider ground 2 in the context of both the complementary protection and the refugee criteria.
When I invited the applicant to address these two grounds in his oral submissions, he indicated that the Tribunal only asked him questions and asked him for a police report or evidence. This submission appears more relevant to the consideration of ground 4, by which the applicant asserts that the Tribunal failed to investigate his claims, and I will consider the submission in the context of that ground.
The Minister submitted that these grounds fail because the Tribunal correctly identified and set out the relevant criteria and considerations for the grant of the visa and correctly reproduced the same in the annexure to its decision. The Minister submitted that the Tribunal consistently referred to the correct tests of ‘well-founded fear of persecution’ for the refugee criterion and ‘real risk of significant harm’ for the complementary protection criterion throughout its reasons. The Minister further submitted that the Tribunal expressly referred to the correct provisions, including s 36(2A) of the Migration Act.
The Tribunal set out, in an attachment to its decision, a comprehensive summary of the law that it was required to apply in assessing whether the applicant met the refugee criterion and the complementary protection criterion. The summary is accurate and indicates that the Tribunal correctly understood the law that it was required to apply.
There is nothing in the summary to indicate that the Tribunal misunderstood the definition of ‘significant harm’ in s 36(2A) of the Migration Act. The Tribunal accurately described the relevant definition at [122]-[124], where it said (footnote omitted):
122. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A). A person will suffer significant harm if they will:
(a) be arbitrarily deprived of their life;
(b) have the death penalty carried out on them;
(c) be subjected to torture;
(d)be subjected to cruel or inhuman treatment or punishment; or
(e)be subjected to degrading treatment or punishment.
123. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Act. Those definitions are set out in full in the attachment to this decision. Sections 36(2A)(d) and (e) deal with significant harm comprised of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”. In that regard “cruel or inhuman treatment or punishment” means:
(a)an act or omission by which, among other things, “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”; or
(b)“pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature”.
124. The remaining type of significant harm, “degrading treatment or punishment”, means “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”.
The Tribunal’s findings on the complementary protection criterion do not demonstrate that the Tribunal failed to correctly apply this definition. The Tribunal found at [102]-[106] of its reasons:
102.I have already found that the applicant does not face a real chance of serious harm if he were to be returned to Malaysia in respect of the harm feared by him because of his faith, or his imputed faith. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. I am not satisfied that there is a real risk that the applicant will suffer significant harm if returned to Malaysia.
103.Significant harm does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’. Any mental health problems confronting the applicant on his return to Malaysia would not meet the definition of significant harm. Further, I do not accept that any person would seek to intentionally inflict mental harm upon the applicant if he were returned to Malaysia.
104.No matter the reason for it, I do not accept that any economic harm to which the applicant may be subjected if returned to Malaysia would constitute ‘significant harm’, as that term is exclusively defined in s 36(2A) of the Act. For a type of harm to meet the definitions of either “cruel or inhuman treatment or punishment" or "degrading treatment or punishment”, it must involve the act or omission of a person in Malaysia, not arise from circumstances which apply to the population generally.
105.Otherwise, for reasons already given, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
106.The applicant is not owed complementary protection or otherwise meets the complementary protection criterion ins 36(2)(aa) of the Act.
These paragraphs clearly demonstrate a correct understanding of the law and it was open to the Tribunal in the circumstances of this case to rely on its earlier findings to the extent that it did so.
The Tribunal’s reasons also demonstrate that it understood and correctly applied the refugee criterion. The Tribunal correctly identified that in determining whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, it was required to apply the meanings of ‘refugee’ in s 5H and ‘well-founded fear of persecution’ in s 5J of the Migration Act. I accept the Minister’s submission that the Tribunal used language throughout its reasons that reflect these tests. There is nothing in the Tribunal’s reasons to indicate that it misunderstood the statutory tests.
I have carefully considered the Tribunal’s reasons and I am satisfied that the Tribunal’s conclusions that the applicant did not have a well-founded fear of persecution and did not face a real risk of significant harm were open to it on the evidence and do not disclose any illogicality or irrationality in the manner described by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135]. I have considered further whether the Tribunal’s findings of fact were unreasonable, illogical or irrational in the context of ground 3 below.
Grounds 1 and 2 do not establish jurisdictional error.
Ground 3
Ground 3 is an assertion that the Tribunal did not have the jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Migration Act. When the applicant was invited to explain at the hearing what he meant by this ground, he was unable to do so.
In his written submissions, the Minister treated this ground as an assertion that some unidentified findings were not reasonable. Understood in this way, the Minister submitted that the ground goes no higher than to express emphatic disagreement and dissatisfaction with, and seeks impermissible merits review of, the Tribunal’s decision. The Minister submitted that emphatic disagreement with the Tribunal’s finding that the applicant is, and was not, a Shia Muslim does not disclose any error on the part of the Tribunal. The Minister submitted that the Tribunal’s findings, including its adverse credibility findings, were open to it for the reasons it gave and could not be said that no other rational or logical decision-maker could have drawn the same conclusion.
I accept the Minister’s submissions. As noted above, this Court does not have jurisdiction to engage in merits review of the Tribunal decision and the applicant’s disagreement with the Tribunal decision does not, of itself, establish jurisdictional error.
The Tribunal was required to act reasonably in its fact-finding task, including in relation to its findings on the applicant’s credibility. Relevant principles were summarised by the Full Court of the Federal Court in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30], where the Court said:
(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) 253 FCR 496 (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) 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) 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) 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) 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) 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) 69 AAR 210 (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].
The Tribunal’s reasons were carefully considered and the findings made by the Tribunal were open to a logical and rational decision-maker based on the evidence before the Tribunal. The Tribunal provided a detailed explanation of its approach to the assessment of the applicant’s credibility and the principles that underpinned that credibility assessment. There was nothing illogical, irrational or unreasonable in the findings made by the Tribunal, including its adverse credibility findings, or the overall decision reached by the Tribunal.
Insofar as the error asserted by ground 3 has been correctly understood by the Minister, it does not establish jurisdictional error.
It is otherwise worth noting in the context of this ground, given the ambiguity in the ground and the apparent emphasis on the Tribunal’s ‘satisfaction’, that the Tribunal upon review was able to exercise all the powers and discretions conferred by the Migration Act on the person who made the decision: s 415(1) of the Migration Act. This includes s 65 of the Migration Act, which requires the Minister, after considering a valid application for a visa, to grant the visa if the Minister is ‘satisfied’ that, amongst other things, the relevant criteria for the visa have been satisfied and to refuse to grant a visa if the Minister is not so satisfied.
The Tribunal, having considered the applicant’s claims and evidence, was not satisfied that the applicant met the requirements for the grant of a protection visa and therefore affirmed the delegate’s decision. It was for the applicant to present sufficient evidence to establish his claims for protection: see s 5AAA of the Migration Act, discussed further in the context of ground 4 below. There is no jurisdictional error in the Tribunal reaching its decision on the basis that it was ‘not satisfied’ that the applicant met the relevant criteria for the grant of a protection visa.
Ground 4
By ground 4 the applicant asserts that the Tribunal failed to investigate his claims, especially the grounds of persecution in Malaysia.
When invited to address the grounds at the hearing, the applicant advanced submissions that are relevant to the consideration of ground 4. The applicant submitted that the Tribunal asked him questions and asked him for evidence, he believed the Tribunal wanted a police report so he went to the police station, but could not get a police report and could not produce evidence.
The Minister submitted that there is nothing on the material before the Court to suggest that the Tribunal ‘failed to investigate’ the applicant’s claims, particularly noting that there was no obligation for the Tribunal to make the applicant’s case for him. The Minister further submitted that there was no duty on the Tribunal to inquire into any obvious critical fact the existence of which could be easily ascertained.
In her oral submissions, Counsel for the Minister further noted that the Tribunal hearing record indicates that the applicant was afforded a further opportunity after the hearing, until 5 February 2024, to provide evidence, but none was provided. Counsel for the Minister submitted that there was no error in the Tribunal inviting a response and finding that the answers given by the applicant were vague, lacking in detail and inconsistent.
In considering this ground, it is worth noting that it was the responsibility of the applicant to specify all particulars of his claim to be owed protection obligations and to provide sufficient evidence to establish his claim. This responsibility is set out in s 5AAA of the Migration Act, which provides:
(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.
The Tribunal recognised that it did not have any obligation to establish, or assist the applicant establishing, his claims at [16] of its reasons, where it said (footnote omitted):
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal has no responsibility or obligation to specify, or assist an applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, their claims.
In conducting the review, the Tribunal was permitted to get any information that it considered to be relevant: s 424(1) of the Migration Act. One of the ways that it did this, as noted by Counsel for the Minister at the hearing before the Court, was to invite the applicant to attend a hearing and ask him questions about his claims for protection. There is no transcript of the Tribunal hearing in the evidence before the Court. However, the Tribunal in its reasons has provided a detailed summary of the evidence given by the applicant at the Tribunal hearing and, in the summary, has indicated some of the matters about which it questioned the applicant. It appears from the Tribunal’s reasons, that the Tribunal asked the applicant questions about his Shia Islam beliefs and practice and the differences between Sunni Islam and Shia Islam (for example, see [31]-[35] of the Tribunal’s reasons), his claims of past harm (see, for example, [38], [42] of the Tribunal’s reasons), his past travel and reasons for the delay in making his protection visa application in Australia and the information included in his protection visa application (see, for example [45]-[47], [52], [57]-[61] of the Tribunal’s reasons). The Tribunal also invited the applicant to comment on country information, including the absence of country information to suggest that people are identified as being Shia or persecuted because they share a name with a prominent Shia figure from another country (see [86] of the Tribunal’s reasons).
There is nothing inappropriate in the questions that appear to have been asked by the Tribunal.
Although s 424(1) and other provisions of the Migration Act allow the Tribunal ‘wide discretionary powers to investigate an applicant’s claims’, they ‘do not impose upon the Tribunal a general duty to make such inquiries’: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [20].
That does not, however, mean that a failure to inquire about a particular matter can never give rise to jurisdictional error. As the High Court explained in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] (emphasis added; footnote omitted):
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. …
The applicant in this case has not identified any obvious inquiry about a critical fact, the existence of which is easily ascertained that the Tribunal failed to make. The height of the applicant’s submission is that he was given an opportunity after the hearing to provide further information or evidence, he believed that the Tribunal wanted a police report, but he was unable to obtain further evidence.
The Tribunal explained the opportunity for the applicant to provide further evidence or information after the hearing [13] of its reasons where it said:
At the end of the hearing, the applicant sought and was granted seven days to provide further comments, submissions and material to the Tribunal. The applicant did not request an extension of time, and nothing was provided.
There is no jurisdictional error in the Tribunal affording the applicant a further opportunity to provide evidence after the hearing, and after the applicant had heard the questions that the Tribunal asked of him.
The fact that the applicant did not provide further evidence or information, or even the fact that the applicant was unable to obtain further information (which he does not appear to have communicated to the Tribunal in any event), does not mean that the Tribunal had any obligation to seek further evidence itself or to ‘investigate’ the applicant’s claims and it does not give rise to any inquiry that the Tribunal ought to have made about a critical fact the existence of which is easily ascertained.
Ground 4 is not established.
Ground 5
By ground 5, the applicant asserts that the Tribunal failed to comply with its mandatory requirement under s 424A of the Migration Act to give him clear particulars of information it considered would be the reason, or part of the reason, for affirming the decision under review, to ensure he understood why that information was relevant to the review and the consequences of it being relied on, and to invite him to comment upon or respond to the information.
A key difficulty that the applicant faces in advancing this ground is that he has not identified the information in relation to which he asserts the Tribunal was required to, but did not, follow the process in s 424A or s 424AA of the Migration Act. He did not do this in his application, and was unable to identify in his oral submissions the information that he believes the Tribunal was required to put to him pursuant to s 424A of the Migration Act.
Section 424A of the Migration Act, as it applied at the time of the Tribunal decision, provided:
(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 Migration Act allowed the Tribunal to orally give to an applicant, at a hearing, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review and to invite the applicant to respond to the information.
In the present case, the Tribunal decision was based on information provided by the applicant and country information. The information provided by the applicant to the Department and the Tribunal falls within the exceptions in s 424A(3)(b) and (ba) of the Migration Act and the country information is information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member and therefore falls within the exception in s 424A(3)(a) of the Migration Act.
The term ‘information’ in s 424A of the Migration Act does not include ‘the existence of doubts inconsistencies or the absence of evidence’: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]; SZGUR at [9]. Likewise, the Tribunal is not required to expose its thought processes or provisional views for comment prior to making the decision: SZGUR at [9]. Accordingly, the Tribunal in the present case was not required by s 424A of the Migration Act to adopt the process in s 424A or s 424AA to give clear particulars to the applicant of its credibility concerns and the basis of those concerns.
Having considered the information provided to the Tribunal and the reasons for the decision given by the Tribunal, I accept the Minister’s submission that there was no information that the Tribunal was required to put to the applicant pursuant to s 424A of the Migration Act.
Ground 5 is not established.
CONCLUSION
Given my findings above that the applicant has not established jurisdictional error in the Tribunal decision, it follows that the application for judicial review must be dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 April 2025
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