BAB24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 92
•30 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BAB24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 92
File number: PEG 79 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 30 January 2025 Catchwords: MIGRATION – Application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – where the applicant made a general and unparticularised assertion of jurisdictional error – where the applicant asserted that the Tribunal decision was based on personal opinion and not evidence – no jurisdictional error established – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 5J, 36, 476, 477
Cases cited: COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112
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 Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22
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
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 24 January 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 79 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAB24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
30 JANUARY 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 $5,900.
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. A delegate of the Minister refused to grant the applicant a protection visa and the applicant sought merits review by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the delegate’s decision on 28 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) (Migration Act).[1]
[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 two grounds in his application which amount to an unparticularised assertion of jurisdictional error in the Tribunal decision and an assertion that the Tribunal’s decision was based on the decision-maker’s opinion and not on fact.
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision. The application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 12 May 2017 the applicant applied for a protection visa. The applicant’s claims for protection were based on the past harm he had experienced at the hands of his father and his fear that he would face serious harm from his father if he returns to Malaysia.
The applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection on 16 November 2017.
On 22 December 2017 a delegate of the Minister refused to grant the applicant a protection visa.
On 1 January 2018 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 29 January 2024 the applicant was invited to attend a hearing before the Tribunal on 19 February 2024 to give evidence and present arguments in relation to the issues arising in the review. The applicant attended the hearing and was assisted by an interpreter.
On 28 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 there were significant inconsistencies and embellishment in some aspects of the applicant’s claims. However, the Tribunal gave the applicant the benefit of the doubt when it considered it would be reasonable to do so.
The Tribunal accepted that the applicant had suffered some physical and emotional abuse at the hands of his father over a period of years while living in Malaysia. The Tribunal accepted that the applicant’s parents are now divorced but the applicant’s father continues to have some contact with the applicant’s mother and the applicant’s younger siblings. The Tribunal was prepared to accept that the applicant’s father is a drug user who needs money to feed his habit and that the applicant may have given money to his father when he was asked for it. The Tribunal found the applicant had not remitted money to his father from Australia and has had no direct contact from his father since 2016.
The Tribunal considered that there were considerable changes in the applicant’s circumstances as they are now compared to his circumstances as they existed until he departed Malaysia. The Tribunal accepted that the applicant was far more vulnerable, less confident and less able to protect himself when he suffered mistreatment at the hands of his father as a child and as a teenager. However, the Tribunal noted that the applicant is now older and has had the benefit of living independently from his family for almost seven years, during which time he matured, has substantially more life experience, is more confident and is more able to be assertive and determine his priorities and best interests. The Tribunal found there was no evidence to suggest the applicant will have to return to live with his abusive father if he returns to Malaysia and there was no evidence to suggest the father could force the applicant to live with him and thereby create the environment or opportunity for the applicant’s mistreatment.
The Tribunal accepted that the applicant may, nevertheless, have to face his father if he returns to Malaysia and found that there was a real chance that the applicant would encounter or meet up with his father. The Tribunal accepted the applicant may feel some anxiety and trepidation faced with such a prospect, but did not accept that such an encounter would raise a real chance of the applicant suffering serious harm at the hands of his father. This finding was based on the long period during which the applicant has had no contact with his father, the lack of evidence to suggest the applicant’s father has any intention or motivation to inflict serious or significant harm on the applicant and the lack of reason why the applicant would have to face his father in a private place or location if the applicant chooses to initiate a meeting.
The Tribunal accepted that the applicant was beaten by his father at the age of 19 years when he tried to protect his mother. However, the Tribunal noted that the applicant’s parents have now divorced and the applicant did not advance any claim, or produce any evidence, to suggest that his mother is or will be the subject of ongoing domestic violence at the hands of his father now that she is divorced.
The Tribunal considered the applicant’s evidence that his older brother had also been the victim of mistreatment by his father and had moved to and worked in Singapore. However, the Tribunal also had regard to the applicant’s evidence that his brother has now returned to live in Malaysia. The Tribunal considered that the lack of evidence or claim that the applicant’s older brother continues to suffer attacks or harm at the hands of his father now that he has returned to Malaysia to be a further indicator that there is no real chance of the applicant’s father having an intention of inflicting serious harm on his now adult children, including the applicant.
The Tribunal expressed understanding as to the reasons the applicant’s mother did not wish to report his father to the police, but also found the applicant’s mother’s failure to report the matter suggested that she did not perceive there to be any real chance of serious harm facing her at the hands of her ex-husband. Having regard to the relevant circumstances and the relevant country information, the Tribunal was satisfied that, in the remote and unlikely circumstance that the applicant required state protection in Malaysia, he would be able to avail himself of adequate police protection now and in the reasonably foreseeable future.
The Tribunal accepted that the applicant would be able to earn more money in Australia than Malaysia, but rejected the proposition that the applicant would face a real chance of serious harm in the form of:
(a)denial of access to basic services where the denial threatens the person’s capacity to subsist; or
(b)denial of capacity to earn a livelihood of any kind where the denial threatens the person’s capacity to subsist.
The Tribunal was not satisfied that the applicant faced a real chance of harm of the kind contemplated by s 5J(5) of the Migration Act now or in the reasonably foreseeable future if he returns to Malaysia. The Tribunal therefore found the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act.
Relying on the same findings of fact, the Tribunal found there was no real risk the applicant would suffer significant harm on any basis identified or cognisable if he is returned from Australia to Malaysia. The Tribunal therefore found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 7 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 two grounds in his application:
1.The decision made to refuse my Protection Visa application by the decision maker has a jurisdictional error.
2.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
On 22 May 2024 a Registrar of this Court made an Order requiring the parties to file certain documents ahead of the hearing. Pursuant to this Order, the applicant was required to file written submissions, any amended application with proper particulars of the grounds of application and any additional evidence on which he seeks to rely 28 days before the hearing. 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 Order of 22 May 2024.
CONSIDERATION OF THE JUDICIAL REVIEW 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 grounds raised in the application referred to the ‘decision-maker’. I have interpreted this to be the Tribunal, as the Court has jurisdiction to review the Tribunal decision but not the delegate’s decision. The delegate’s decision is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act and, pursuant to s 476(2)(a) of the Migration Act, the Court does not have jurisdiction to review primary decisions.
Ground 1
Ground 1 is a general assertion of jurisdictional error in the Tribunal decision that does not identify in any meaningful way any jurisdictional error that the applicant believes the Tribunal made.
At the hearing I explained to the applicant the need to establish jurisdictional error in the Tribunal decision and I gave him examples of types of jurisdictional error that may arise in migration matters. I explained to the applicant the need to provide more information about the type of jurisdictional error he believes the Tribunal made and why he believes the Tribunal made a jurisdictional error in order for the Court to properly understand his complaint about the Tribunal decision. I explained to the applicant that it is not enough that he disagrees with the Tribunal decision and that the Court could not consider for itself whether he meets the criteria for a protection visa. The applicant confirmed that he understood the explanations given by the Court and he was then invited to either proceed to make his oral submissions or to take a short break first to think about what he wanted to say in his submissions. The applicant opted to make his oral submissions without taking a break first.
The applicant’s oral submissions did not assert any jurisdictional error in the Tribunal decision. Rather, the applicant expressed his disagreement with the Tribunal decision and made submissions that address the factual merits. The applicant submitted that:
(a)he does not agree with the decision that was made that said he would not face harm or an adverse situation if he returned to Malaysia and, rather, he believes that he will have to face his father if he returns and he will face the same adverse action as before;
(b)he feels that he is the one who will have to face this and bear the consequences of the matter;
(c)he cannot again face the things that he faced before and he does not want to be affected mentally by his father but this will always be playing on his mind;
(d)he cannot accept the decision and cannot accept that he has to be subject to hardship and further abuse;
(e)he does not want to live in fear and wants to live like a normal person without being afraid to try anything; and
(f)because of what happened to him, he is afraid to try anything new because he keeps thinking about the bad things that happened to him.
The applicant’s disagreement with the Tribunal decision is not of itself enough to establish jurisdictional error. As can be seen from the summary of the Tribunal decision above, the Tribunal accepted that the applicant had faced harm in the past at the hands of his father. However, taking into account its factual findings about the changed circumstances of the applicant as well as the available country information, the Tribunal was not satisfied that the applicant would face the requisite risk of harm in the future to engage Australia’s protection obligations. It was appropriate for the Tribunal to assess the chance of the applicant facing harm in the reasonably foreseeable future, rather than simply confining itself to a consideration of the past harm faced by the applicant.
As submitted by Counsel for the Minister, to the extent that the applicant submitted that he is afraid to try new things, this was not addressed in the Tribunal’s reasons but did not need to be as there is no evidence before the Court to suggest that the applicant raised this issue before the Department or the Tribunal. The matters raised in the applicant’s oral submissions are insufficient to establish jurisdictional error.
In circumstances where an applicant is self-represented, it is usually appropriate for the Court to consider for itself whether there is any obvious jurisdictional error evident from the materials before it, even if it has not been raised by the applicant: see, for example, COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20]. In the present case, there is nothing in the materials before the Court to suggest that the Tribunal made a jurisdictional error. In particular, I observe that:
(a)the Tribunal accurately identified the applicant’s claims in its reasons for decision and considered each of the claims raised by the applicant;
(b)the matters taken into account by the Tribunal were all matters that it was permitted to take into account and there is nothing to suggest that the Tribunal had regard to any irrelevant considerations;
(c)I have not identified any relevant considerations that the Tribunal was required to, but did not, take into account;
(d)having regard to the procedures adopted by the Tribunal, as evidenced by the communications between the Tribunal and the applicant in the court book and the Tribunal’s statement of reasons, there is nothing to suggest that the Tribunal failed to follow the procedures set out in Part 7 Division 4 of the Migration Act or that it otherwise failed to afford the applicant procedural fairness;
(e)the factual findings made by the Tribunal were all supported by evidence and there is a logical and probative basis for the findings and decision made by the Tribunal;
(f)the Tribunal correctly identified the issues for its determination and the law that it was required to apply and there is nothing unorthodox in the Tribunal’s application of that law; and
(g)there is nothing in the materials before the Court to suggest that the Tribunal acted unreasonably in the exercise of its discretionary powers.
The applicant has not established, and I have not otherwise identified, any jurisdictional error in the Tribunal decision. Counsel for the Minister confirmed at the hearing that the Minister’s lawyers had also independently reviewed the decision and did not identify any jurisdictional error. Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Tribunal’s finding that he would not face harm in Malaysia was based on personal opinion and not fact.
As can be seen from the summary of the Tribunal decision above, while the Tribunal accepted that the applicant had faced harm from his father in the past, it considered that the applicant’s circumstances had now changed and therefore was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future if he returns to Malaysia.
It is unclear from the applicant’s ground the precise nature of the error he is asserting in the Tribunal decision. Based on his oral submissions to the Court, it appears that he is simply expressing his disagreement with the decision reached by the Tribunal which, as indicated above, is not of itself sufficient to establish jurisdictional error.
To the extent that the applicant’s ground might be understood as a complaint that the Tribunal did not accept the applicant’s own belief as to the risk of future harm, it cannot succeed. As submitted by the Minister, it is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant and the Tribunal does not have to possess rebutting evidence before finding that a particular assertion was not made out: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 596. Further, the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Migration Act both turn on the Minister’s (or, on review, the Tribunal’s) ‘satisfaction’ that an applicant engages Australia’s protection obligations. This satisfaction cannot be based solely on an applicant’s subjective fear, but requires consideration of, in the case of the refugee criterion in s 36(2)(a), whether the applicant’s fear of serious hard is well-founded and, in the case of the complementary protection criterion in s 36(2)(aa), whether the real risk of significant harm is a ‘necessary and foreseeable consequence’ of the applicant’s return to Malaysia.
To the extent that the assertion in the ground that the decision was not based on ‘fact’ might be understood as an assertion that the decision was made without evidence or was otherwise illogical or irrational, it also cannot succeed.
In this regard, I accept the Minister’s submission that the Tribunal’s findings were based on its assessment of the applicant’s claims and evidence as well as country information. There was evidence to support each of the findings made by the Tribunal, with much of that evidence having been provided by the applicant himself. I accept the Minister’s submission that it was for the Tribunal, as part of its fact-finding function, to identify the evidence that it found relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5].
I also accept the Minister’s submission that the Tribunal’s findings were open to it on the evidence before it and that its reasoning disclosed a proper evaluation of the applicant’s claims and evidence that was logical, rational and had a probative basis.
Ground 2 is not established.
CONCLUSION
In circumstances where I have found that the Tribunal did not make a jurisdictional error, the application for judicial review must be dismissed.
I heard submissions on costs from the parties at the hearing. The Minister has been successful in this proceeding and seeks an order that the applicant pay his costs fixed in the amount of $5,900. It is appropriate that costs follow the event in this matter and the quantum of costs sought by the Minister is reasonable and below the scale amount of $8,371.30. I therefore make an order that the applicant is to pay the Minister’s costs fixed in the amount of $5,900.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 January 2025
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