BAD24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 445
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BAD24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 445
File number: PEG 87 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 28 March 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s credibility findings are legally unreasonable – whether the Tribunal’s decision demonstrates bias – whether the Tribunal failed to assess evidence of third-party involvement in the visa application process – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 5H, 5J, 36, 476 & 499
Moneylenders Act 1951 (Malaysia), s 5
Cases cited: ASG17 v Minister for Immigration & Anor [2019] FCCA 1492
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101
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
Fox v Percy [2003] HCA 22
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 Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089
Division: Division 2 General Federal Law Number of paragraphs: 115 Date of hearing: 28 October 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 87 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAD24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.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:
INTRODUCTION
Before this Court is an application for judicial review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) dated 21 February 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 for judicial review is, accordingly, dismissed.
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the Tribunal. That decision is dated 21 February 2024 and thus predates the recent amendments to the Act. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
When the judicial review application was filed in this Court (on 7 March 2024), the Tribunal was 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, the Court made an order (at the hearing of this matter) substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicant’s migration history
A summary of the procedural history and background for this matter was provided by the Minister in his written submissions (filed in this Court on 11 October 2024). The Court has cross referenced that summary with the materials contained in the Court Book (the “CB”). The Minister’s overview is accurate and the Court adopts it as its own (with some minor amendments and additions).
Relevantly, as detailed in the Minister’s summary, the applicant’s migration history is as follows.
The applicant is a citizen of Malaysia and arrived in Australia in August 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (the “ETA visa”) (CB 41).
On 28 September 2017, the applicant applied for the visa (CB 1-28). He claimed to have left Malaysia because he “feared harm from a loan shark”. In particular, the applicant claimed that (CB 24-26):
(a)he was the guarantor to his cousin’s loan of 90,000RM, his cousin ran away and he could not repay the debt because of the increasing interest being accrued;
(b)the loan shark had hit him, splashed red paint and put a pig’s head on his family’s house, wrote abusive words to the applicant, threatened to burn his mother’s house and forced his family to repay the debt. He then moved from his hometown to another city but the same things continued to occur; and
(c)if he returned to Malaysia, debt collectors and the loan shark would hunt him down and the authorities would not protect him.
On 16 November 2017, a delegate of the Minister refused to grant the applicant the visa (CB 41-49). The delegate was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(a) of the Act (the refugee criterion) or 36(2)(aa) of the Act (the complementary protection criterion) (CB 41-44).
On 27 November 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 50-51).
On 13 September 2023, the Tribunal wrote to the applicant (via email) asking him to complete a pre-hearing information form (the “questionnaire”) (CB 55).
On 20 September 2023, the applicant returned the completed questionnaire to the Tribunal (via email) (CB 56-61).
On 20 November 2023, the Tribunal invited the applicant (via email) to attend a hearing before it, scheduled to take place on 11 December 2023 (CB 62-65).
The applicant appeared at that Tribunal hearing (on 11 December 2023) to give evidence and present arguments in support of his application (CB 73-76). He was assisted at that hearing by a Malay interpreter (CB 73).
On 21 February 2024, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 79-95).
THE TRIBUNAL’S DECISION
The application for judicial review is filed pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in detail.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to reproduce substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning processes and the evidence assessed by the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when (as was the case here) the grounds of review filed by the applicant lack particulars and when the applicant appeared before the Court without legal representation and struggled to articulate any concerns he might have about the Tribunal’s approach and findings.
The Tribunal’s decision in this matter is 17 pages long and spans 96 paragraphs (CB 79-95). The final three pages include extracts of relevant legislative provisions (CB 93-95).
The Tribunal began by detailing the applicant’s citizenship and migration history, noting that the applicant is a citizen of Malaysia, held an ETA visa and applied for the visa the subject of the review on 29 September 2017 (at [1]-[3]).
The Tribunal explained that a Ministerial delegate had refused to grant the applicant the visa because the delegate determined that the applicant could obtain protection from the Royal Malaysian Police (the “RMP”) and other Malaysian authorities such that there would not be a real risk that he would suffer significant harm as a foreseeable consequence of returning to Malaysia (at [6]).
The Tribunal explained that the applicant appeared before the Tribunal on 11 December 2023 and did so with the assistance of an interpreter in the Malay and English languages (at [9]).
The Tribunal then outlined the applicant’s protection claims and evidence before the Department of Home Affairs (the “Department”).
The Tribunal detailed that the applicant identified as a Christian, was making his own claims for protection, had not used an interpreter in completing the visa application but had otherwise left blank the section asking if he had received assistance with the form (at [10]).
The Tribunal explained that, in relation to his claims for protection, the applicant claimed that he was a guarantor for a loan to his cousin for 90,000 ringgits (which his cousin had failed to repay) and he could not repay the loan because of the accruing interest.
In relation to the evidence given to the Department, the Tribunal stated as follows:
12.The applicant said their family home had been splashed with red paint by the loan sharks and a pig’s head delivered. The applicant had also been threatened in writing. The applicant said the loan sharks were still hunting them and they were afraid that the loan sharks would threaten their family. They did not want their family members to also be in danger. The applicant claimed they had been hit and threatened that, if the applicant did not pay, they would burn the applicant’s mother’s house down and force their family to pay.
13.The applicant said they had made a police report regarding the problem, and the police gave them safety for a few days, but the applicant said there had been no changes they accepted. The police requested that the applicant be patient until the case was settled. The applicant stated they had to define themselves not as a victim of debt collectors. They did move to Kuala Lumpur to start a new life but said the same thing happened. The applicant was concerned that the loan sharks would find them if they returned to Malaysia.
14.The applicant stated that they would not be able to relocate within Malaysia (with the Tribunal noting (at footnote 3) that the “applicant ticked ‘no’ when asked if they would be able to relocate within Malaysia, even though the first sentence in their reasons is missing a ‘not’”).
The Tribunal also noted that the Department had not invited the applicant to attend an interview before it (at [15]).
The Tribunal then outlined the material before it.
The Tribunal explained that it had sent a pre-hearing information form to the applicant which contained various questions for the applicant to complete. The applicant did not respond. Then, the Tribunal noted, the Tribunal sent the applicant an invitation to attend a hearing. The applicant responded via email stating that he did not intend to rely on any documents or witnesses at the Tribunal hearing (at [17]-[20]).
The Tribunal explained that, at the start of the Tribunal hearing, the applicant confirmed that all the documents which had been sent to the Tribunal as part of the review process constituted all the necessary documents before the Tribunal (at [21]).
The Tribunal then outlined the applicant’s oral evidence before it, as follows:
24.The applicant said their protection visa application was prepared by a middle person whose name the applicant could not remember. The applicant was introduced to the middle person through an agent in Malaysia, and the applicant met them in Shepparton in the State of Victoria. He asked brief details about the applicant’s case, and when the applicant said that they felt unsafe in Malaysia, the middleman said, ‘leave the rest to me’. The applicant confirmed that they can read in English, and that they read the application and were happy with the contents before they signed.
…
27.If they were to return to Malaysia, the applicant fears that the gangsters will search for them, and their safety will be threatened. This is because they became a guarantor for their female cousin in 2016/2017, after they had completed the automobile course. At the time they were living in [city and state omitted] with their parents, and not working. The applicant’s source of income was their mother, who was not working, and their brother, who was studying to be a medical assistant.
28.The applicant had not met their cousin before they became a guarantor, except perhaps as children. They only really met her on this occasion because she was asking for help in procuring an illegal loan. The applicant’s cousin was a nursing student in [city omitted]. At one point the applicant described her as a second or third cousin on their mother’s side, but at another described her as the daughter of their mother's sister. The applicant said they were not close. The applicant never asked their cousin if they had obtained an illegal loan before, even though their family regarded the cousin as a naughty person for doing things like this.
29.Prior to the applicant going guarantor, the cousin had no contact with the applicant’s family. The applicant said they would not really have been able to pick out their cousin on the street. The cousin contacted the applicant via their phone. The applicant did not ask the cousin what she was using the money for, and she did not tell them.
30.The applicant and their cousin spoke 3/4 times before the applicant agreed to be a guarantor. They were unsure how much the loan was for. They were not asked to sign anything. The loan shark just took their ID and stamped a copy. In 2016/2017 (date not remembered but when the applicant was 17/18/19 years of age), the applicant attended the loan shark’s office in [city and state omitted] with the cousin. The loan shark talked with the cousin. One of the office personnel explained to the applicant what it meant to be a guarantor, which was that if the cousin could not pay, they will refer it back to the applicant, which the applicant accepted. When asked how the applicant would have repaid the loan, the applicant was planning to get a job and intended to repay the loan if their cousin did not but did not know at the time the amount of the loan.
31.When asked by the Tribunal, why the applicant became a guarantor, they first said she was their cousin and then said because she was female, and the applicant knew how it felt for nobody to trust you.
32.After the loan was made, the applicant lost contact with the cousin. The applicant was threatened because the cousin was not repaying the loan. The cousin changed their number, and the applicant did not try to contact the cousin through their mother’s sister. The applicant only tried to contact her through her phone. The applicant did not travel to where she lived, because it was too far.
33.The loan sharks started to call the applicant to ask them about the cousin and about the money. The loan shark did not say how much the cousin owed in total but asked for 5,000 ringgits per month. The applicant made three of those monthly payments, which the applicant sourced from their friends. As interest kept compounding, the applicant stopped repaying the loan.
34.When the applicant stopped repaying the loan and started ignoring the calls from the loan sharks, the loan sharks threatened them by sending parts of dead animals to the house and they splashed paint on the house every time a call was ignored. The applicant thought paint was splashed about twelve times. The first time the paint was splashed was one or two months after the loan was made, with the last time being in early 2017. The applicant did not hear what was happening to the cousin’s family.
35.The applicant did not try to repay the loan in any way after that. The applicant said their obligation as a guarantor at that point was to ensure their cousin repaid and did not run away from the loan. The applicant said that at that time they did not understand that their obligation was to repay the loan if their cousin did not. The applicant says the loan shark were sending dead animal parts and splashing paint because they would do anything to get their money back.
36.The applicant’s parents knew the applicant was helping their cousin after the first time the loan sharks threw the paint on the house, and they became mad. The parents told the applicant to settle the debt as soon as possible, and they were not going to get involved. The applicant’s mother was mad, asked them why they became a guarantor for an illegal loan and said that they were not supposed to do that. The applicant told her they were young and wanted to help.
37.The applicant does not know how much their cousin repaid.
38.The applicant says they will probably be dead because of the loan sharks if they return to Malaysia, because being sent dead animal parts by Malaysian gangsters is serious. The applicant said they last heard from the gangsters before they came to Australia. The applicant has not inquired after their cousin’s safety, because they had lost contact. The applicant said their mother has probably not lost contact with her sister, but they were not sure. The applicant has not checked in with their mother about their cousin’s safety, because their mother does not want to get involved. This is a matter between the applicant and their cousin.
39.The applicant said they did not have any conversations with the loan sharks. In 2017, the applicant made a report to the police, who did nothing. The applicant said sometimes they accidently met the gangsters outside and they said a bad word and threatened the applicant, which meant the applicant did not feel safe anywhere they went. The applicant said they met every day, and the gangsters knew what the applicant looked like. The applicant said they did not move to any other parts of Malaysia.
40.The applicant said they came to Australia because they wanted to ask for protection as they did not feel safe in Malaysia. After arriving in August 2017, the applicant said they needed to wait for their tourist visa to expire before they could make a protection visa application, at least that is what they were told by the middleman in Australia. They did not know anybody here when they arrived with four or five other people, and they were picked up by someone arranged by the agent in Malaysia. As the middleman said they could not stay for free, they undertook some part-time work orange picking. The applicant ran away from the middleman, as they kept about eighty percent of the applicant’s salary.
41.Then the applicant worked as a labourer on solar farm projects, for about two to three months each project in the states of Victoria and New South Wales. This ended about two years ago in 2021. The applicant still does not know how much must be repaid to the loan sharks and so has not repaid any money to the loan sharks since they have been earning money in Australia.
42.The applicant subsequently moved to Perth in the State of Western Australia and is currently a fly-in/fly-out trade assistant, although their last project finished in October 2023 and the applicant was waiting to be engaged in the next project.
The Tribunal then detailed its concerns in relation to some of the applicant’s oral evidence, noting that it had expressed concern that, “whilst the [visa]application stated a specific amount of the loan”, the applicant “was now saying that [he] never knew the amount of the loan” (at [43]).
The Tribunal then noted that the applicant’s response to this concern was that “[he] told [his] story to the middleman, and it was that person who wrote the application. The applicant only read it once before [he] signed it and did not think at that time it was important” (at [44]).
The Tribunal also noted a lack of concern for the applicant’s cousin. In response, the applicant said he understood that. As to why the applicant would go guarantor for someone he hardly knew and now expressed little concern about, the applicant said at the time he was young and tried to play the hero. He did not know that it was going to be this serious (at [45]).
The Tribunal explained that the applicant’s evidence was that he last spoke with his parents “a month ago”, and “they were good” (at [45]).
The Tribunal noted that the applicant also explained that “the loan sharks keep putting paint on [his] parent’s house in Malaysia. The last time was three months ago, when the loan sharks could not find the applicant” (at [46]).
The Tribunal then explained that it also expressed concern as to whether the loan shark’s actions had anything to do with the applicant’s race, religion, nationality, membership of a particular social group or political opinion, with the applicant responding that he “did not think that it was connected to any of those things” (at [47]).
The Tribunal then outlined the country information before it, highlighting as follows:
(a)local and international sources consider the RMP to be a professional and effective police force (at [48]);
(b)the Malaysian government has acted against illegal money lenders over several decades on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements and through publicity campaigns. Illegal money lending is an offence under the Moneylenders Act 1951 (the “Moneylenders Act”) and punishment includes fines and imprisonment (at [49]);
(c)the Moneylenders Act (amended in 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises (without a warrant), and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under s 5(2) of the Moneylenders Act, which carries a fine of between RM250,000 and RM1 million (AUD80,000-AUD320,000), or a jail term of up to five years (or both) (at [49]);
(d)according to the Department of Foreign Affairs and Trade (“DFAT”), sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened (at [50]); and
(e)DFAT assesses those who are unable to service debts to loan sharks (and their family members) can face societal discrimination due to familial shame and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies can consolidate loan shark debts and provide payment plans. On that basis, engaging such agencies is an option to mitigate against potential risks posed to those in debt (at [51]).
The Tribunal explained that, in response to a summary of the above country information, the applicant said he “did not know of such agencies before and the RMP were good, unless they saw ‘under the table’ money and there are several cases – not [his] case – in Malaysia of police corruption” (at [52]).
The Tribunal then noted that corruption in Malaysia can limit the effectiveness of police action against loan sharks but the applicant indicated that he “was not alleging corruption in this case” and agreed “that there are places in Malaysia where the police could protect [him]” (at [53]-[56]).
The Tribunal then outlined the statutory criteria for a protection visa – highlighting that an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of that Act (that is, that he 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) (at [57]).
The Tribunal detailed the refugee criterion in s 5H(1)(a) of the Act and noted that under s 5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance that they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country (at [59]).
The Tribunal noted that all relevant statutory requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear were extracted in an attachment to the Tribunal’s decision (at [60]).
The Tribunal continued:
61.The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal then explained that, if a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if the Minister is satisfied that 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) of the Act (at [61]).
The Tribunal noted that 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) of the Act (at [62]).
The Tribunal then noted that, in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had taken into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department and country information assessments prepared by DFAT expressly for protection status determination purposes (to the extent that they are relevant to the decision under consideration) (at [63]).
The Tribunal then detailed its consideration of the applicant’s claims and evidence.
The Tribunal began by explaining its obligations when making credibility findings, noting as follows:
65.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal then assessed the applicant’s “refugee grounds”, explaining that the issue before the Tribunal in this regard was whether the Tribunal was satisfied that there is a real chance that if the applicant returned to Malaysia he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (at [67]).
The Tribunal continued:
68.The Tribunal did not find the applicant’s evidence credible. In reaching this view, it has had regard to the nature of the claim made, inconsistencies between the contents of the protection visa application and the evidence given by the applicant at the hearing, the different versions of events within the applicant’s evidence as the hearing progressed and the lack of any corroborating evidence as outlined below.
In relation to the applicant’s claims as they relate to him being a “guarantor for [an] illegal loan”, the Tribunal summarised the applicant’s evidence as follows.
69.The applicant claimed they became a guarantor for an illegal loan for a cousin they had not met, except perhaps as children, with whom there were not close, with whom they had had no contact, and who the applicant could not have picked out on the street. The applicant at one point described her as a second or third cousin on their mother’s side, but at another described her as the daughter of their mother’s sister. The applicant said that after the loan was made, they lost contact with the cousin, because the cousin changed the phone number, but the applicant did not try to contact the cousin through their mother, nor did they travel to where she lived. Despite the actions of the loan sharks described by the applicant, they said they had not enquired after the cousin’s safety because they had lost contact and had not checked in with the mother about the cousin’s safety, because the mother does not want to get involved. They also claim to have not heard of anything happening to the cousin’s family because of the unpaid loan and the loan sharks.
70.The applicant initially said that they had unsuccessfully tried to obtain work after obtaining a certificate on completing an automobile course and then the applicant did nothing. It was after undertaking the course that the applicant claimed they became a guarantor sometime in 2016/2017, whilst they were not working, and their source of income was the mother, who was also not working, and their brother, who was studying. Yet when asked how the applicant would have repaid the loan, the applicant said they were planning to get a job and intended to repay the loan if the cousin did not.
71.During the hearing, the applicant said that they did not know the amount of the loan for which they had agreed to be guarantor. Further, the applicant said he never asked their cousin if she had obtained an illegal loan before nor what she was planning to use the money for, nor did she tell them. This is despite the applicant saying they spoke with the cousin 3 to 4 times before agreeing to be a guarantor.
The Tribunal then determined as follows:
72.The Tribunal does not accept that the applicant agreed to become the guarantor for an illegal loan for an unknown amount for a person with whom they were not close at a time when they were not working, and their source of income was their mother and brother. The Tribunal finds this claim to be incredulous and does not accept that this occurred.
Inconsistency regarding amount of loan
73.The protection visa application specifically claimed that the applicant guaranteed a loan of 90,000 ringgits, yet during the hearing the applicant said they did not know the amount of the loan at the time of the loan nor when the loan sharks started to call did the loan sharks say how much the cousin owed. At the commencement of the hearing, the applicant said that they read the application prepared by a middle person and were happy with the contents before they signed, but towards the end of the hearing when the Tribunal expressed concern about this inconsistency, the applicant said that they had only read the application once before they signed it and they did not think at the time that it was important.
74.The Tribunal notes that in the protection visa application the applicant declared that the information they provided in the application was truthful and honest in every way, that the information that they had supplied or caused to be supplied on the form was complete, correct and up-to-date in every detail and that they understood that if they gave false or misleading information, the application could be refused and any visa granted may be cancelled.
75.The Tribunal also notes that the applicant claimed in the protection visa application that they said were making their own claims for protection, had not used an interpreter in completing the application but otherwise left blank the section asking if they had assistance with the form, and yet at the hearing referred to a middle person having written the application, with which the applicant was happy, after having been given details of the applicant’s case by the applicant.
On the basis of the above, the Tribunal determined as follows:
76.The Tribunal does not accept that the applicant guaranteed a loan, when they declared the loan, they guaranteed to be for a specified amount in the protection visa application, with which they were happy, but stated inconsistently at the hearing that they had never known the amount of the loan.
The Tribunal also detailed its concerns about the applicant’s “changing understanding of being a guarantor”, explaining as follows:
77.The applicant claimed to attend a loan shark’s office in [city omitted], where one of the loan shark personnel explained to the applicant what it meant to be a guarantor, which was that if the cousin could not pay, they would refer it back to the applicant, which the applicant said they accepted. The applicant said they were not asked to sign anything. The applicant said at the time of the loan they had intended to repay the loan if the cousin did not, but at a different point in the hearing, after they said they had stopped making repayments, they said that their obligation as a guarantor was to ensure their cousin repaid and did not run away from the loan but they did not understand that their obligation was to repay the loan if the cousin did not.
78.The applicant’s said their parents told them to settle the debt as soon as possible, when they first became aware that the applicant had become a guarantor for an illegal loan, which was after the applicant had claimed he had made three repayments. The Tribunal notes that even though the applicant said their parents told them to settle the debt, the applicant claimed that at that time they did not understand that their obligation was to repay the loan if the cousin did not.
79.On the applicant’s own evidence, the applicant did not ensure the cousin repaid, nor did they seemingly try. In addition, although the applicant said that they had made three monthly payments of 5,000 ringgits, and that their parents had told them to settle the debt as soon as possible, the applicant says they have made no more payments, either whilst they were in Malaysia or in the intervening six years they have been in Australia.
On the basis of the above, the Tribunal determined as follows:
80.The Tribunal does not accept that the applicant agreed to be a guarantor, because during the hearing the applicant changed their version of what they had understood at the time being a guarantor meant and did not follow through on either version. At the time of the loan, the applicant said they had intended to repay the loan if their cousin did not, but even after their parents told them to settle the debt, the applicant said they did not understand their obligation was to repay the loan if the cousin did not.
The Tribunal then outlined its concerns about the applicant’s “multiple reasons for stopping payments”, explaining as follows:
81.The applicant first said they stopped repaying the loan as interest kept compounding. The Tribunal does not accept this, because this is after the applicant said the loan sharks did not tell them the amount of the loan but asked for 5,000 ringgits per month and the applicant later said that they had not repaid any further money to the loan sharks because they still do not know do not know how much was to be repaid.
The Tribunal then assessed the applicant’s evidence about the “claimed actions of the loan sharks”, explaining as follows:
82.The applicant said that when they stopped repaying the loan and started ignoring the calls from the loan sharks, the loan sharks sent parts of dead animals to their house and splashed paint on the house about twelve times (being every time a call was ignored). The applicant claimed that the first time the paint was splashed was one or two months after the loan was made, with the last time being in early 2017. The applicant had also said that they last heard from the loan sharks before they came to Australia. Towards the end of the hearing the applicant said that the last time red paint was put on their parent’s house in Malaysia was three months prior to the hearing, when the loan sharks could not find the applicant. The applicant said they had last spoken with their parents a month prior to the hearing, and they were good.
83.The protection visa application had claimed that the applicant had been threatened in writing, that the applicant had been hit, a threat had been made to burn the mother’s house down and to force their family to pay, and that the applicant had moved to [city omitted] to start a new life but the same thing happened to the applicant, which was not mentioned during the hearing. In fact, the applicant said during the hearing that they did not move to any other parts of Malaysia, and that their parents were well.
84.The applicant said that they did not have any conversations with the loan sharks but had previously said that the loan sharks had called the applicant to ask them about the cousin and about the money, asking for five thousand ringgits per month (which the applicant said they paid for three months). The applicant also later said that they sometimes accidentally met the loan shark gangsters outside and they threatened the applicant. Then the applicant said that they met the loan shark gangsters every day.
The Tribunal determined as follows:
85.The Tribunal does not accept that the loan sharks splashed red paint on the applicant’s parent’s house or sent dead animal parts to the house, or otherwise threatened the applicant or their parent’s, because of the inconsistency between the protection visa application which said the applicant had moved to [city omitted] and the applicant’s evidence at the hearing that they had not moved to any other part of Malaysia, and the changes in the applicant’s evidence during the hearing about whether they had spoken with the loan sharks and when the last time red paint was splashed on the house had occurred.
The Tribunal then detailed the applicant’s evidence about why he became a guarantor, explaining as follows:
86.When asked why the applicant had become a guarantor for an illegal loan for a cousin they had not met, except perhaps as children, with whom there were not close, with whom they had had no contact, and who the applicant could not have picked out on the street, the applicant gave a couple of answers. The applicant said they had told their mother that they were young and wanted to help. The applicant told the Tribunal that they were young and tried to play the hero, but they never knew that it was going to be this serious. The applicant also told the tribunal that it was their cousin, she was female, and the applicant knew how it felt for nobody to trust you.
The Tribunal determined as follows:
87.The Tribunal also finds it incredulous, and does not accept, that with the applicant expressing a desire to play the hero for a female cousin that the applicant would not have heard what happened to the cousin or that side of their mother’s family after the cousin did not repay the debt. Not does the Tribunal accept that the applicant did not take action to ensure they were safe or at least inquire as to their well-being.
The Tribunal then explained its concerns as to the lack of any corroborating evidence, as follows:
88.The applicant did not provide any corroborating evidence in support of their claim, for example documentary evidence such as a written guarantee, loan document, bank statements or payment receipts, or independent evidence of having guaranteed a loan entered into by their cousin with the loan shark as claimed or the actions claimed to have been undertaken by the loan sharks since the loan has not been repaid, including evidence from their parents with whom the applicant said they remained in contact.
The Tribunal explained that it had considered the country information before it (and the applicant’s responses), and, overall, accepted (at [89]) that:
(a)illegal money lending is an issue in Malaysia and those who are unable to service debts to loan sharks may face a real or perceived risk of harassment and violence from loan sharks or gangsters, including having red paint thrown on the house;
(b)the Malaysian government has acted against illegal money lenders over several decades on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements, and through publicity campaigns; and
(c)Malaysian law enforcement in general is well equipped and the RMP are a professional and effective police force, which is tackling corruption.
On the basis of the material before it, the Tribunal concluded as follows in relation to the refugee criterion:
90.The Tribunal finds that there is no real chance of serious harm in the reasonably foreseeable future if the applicant returned to Malaysia, because it rejects that the applicant guaranteed a loan to their cousin as claimed as it does not find the claim made and the evidence presented by the applicant in this regard to be credible, given both individually and taken cumulatively:
(a)The Tribunal finds it incredulous, and does not accept it occurred, that the applicant agreed to become the guarantor for an illegal loan for an unknown amount for a person with whom they were not close at a time when they were not working, and their source of income was their mother and brother;
(b)The Tribunal finds it incredulous, and does not accept the cousin or her family were in danger due to an unpaid loan, that the applicant did not take action to ensure the cousin and that side of the family were safe from the loan sharks or at least inquire as to their well-being;
(c)Two details were alleged in the application were inconsistent with what the applicant said at the hearing, being whether the amount of the loan was known and whether the applicant had relocated within Malaysia;
(d)The applicant changed their evidence during the hearing as to what they understood it meant to be a guarantor at the time (to settle the debt themselves or ensure their cousin did), why they stopped repaying the loan (compounding interest or amount to be repaid unknown), the last time red paint was splashed on their parent's house (early 2017 as compared to September 2023) and whether or not, and further how regularly, they spoke with the loan sharks; and
(e)The lack of corroborating evidence as referred to above.
Overall, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) (at [91]).
The Tribunal then assessed the complementary protection criterion in s 36(2)(aa) of the Act, finding as follows:
93.The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
Overall, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [95]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 7 March 2024) contained two grounds of review as follows (without alteration):
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, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The applicant appeared before the Court (on 28 October 2024) without legal representation but with the assistance of a Malay interpreter. The Court confirmed with him that he had received copies of the Court Book and the Minister’s written submissions. The applicant confirmed that he had received the documents but had not brought them with him. The Court gave the applicant further copies of the documents to reference during the hearing. Mr Benjamin Mayne from Sparke Helmore appeared on behalf of the Minister.
The Court notes that the applicant indicated (prior to the hearing) that he sought an adjournment of the hearing because he had work commitments. The Court asked the applicant, at the commencement of the hearing, whether he still sought that adjournment. The applicant said that he no longer sought the adjournment as he had managed to take time off work to attend the hearing. On that basis, the Court proceeded to the substantive hearing.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 7 March 2024 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 96 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 11 October 2024 and the affidavit of service of Aatika Ismailjee affirmed and filed on 21 October 2024 (also taken as read and in evidence at the hearing of this matter).
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) 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 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Instead, 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 when his visa application was submitted, it was done by a third party and that person included an amount in currency and that amount was not accurate (but the applicant was not sure what the amount was that was included).
The applicant’s oral submissions, to the extent that they point to any issue of jurisdictional error on the part of the Tribunal, will be addressed by the Court below.
CONSIDERATION
Unfortunately, the applicant’s grounds of review are not particularised, no written submissions were filed by the applicant and his oral submissions before this Court were, regrettably, vague. This is not a criticism. The applicant was not represented and the Court recognises that legal proceedings can be intimidating and stressful.
In the circumstances, the Court will interpret the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
Grounds of review
Ground one
As outlined above, ground one provides as follows:
1.The decision made to refuse my Protection Visa application by the decision maker has a jurisdictional error.
As noted above, the applicant has not provided any particulars in relation to ground one. He simply asserts “jurisdictional error”.
Read broadly, to the extent that the applicant concerned about “unreasonableness” in relation to the delegate’s decision, this Court has no jurisdiction to review that decision: s 476(2) of the Act and s 476(4) of the Act.
To the extent that the applicant is concerned that the Tribunal’s credibility findings (and the Tribunal’s final decision in relation to those findings) was “unreasonable”, the Court disagrees for the reasons that follows.
The authorities are clear that the assessment of credibility is an inherently difficult task (as per Fox v Percy [2003] HCA 22) and any assessment of evidence given by an applicant (particularly an applicant who seeks protection) must be thoughtful and legally reasonable: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]-[34].
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] and, more recently, in CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101 at [95]-[110].
The Court relies upon and repeats the overview provided in those judgments, as follows.
There is no single test or formula for determining whether a decision that relies heavily on adverse credibility findings is unreasonable.
In DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 (“DAO16”), the Full Court of the Federal Court of Australia (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, the Tribunal outlined in detail why it found the applicant’s evidence to be lacking.
The Tribunal’s reasons demonstrate that it had serious concerns with the reliability of the applicant’s evidence. Relevantly, as correctly summarised by the Minister (at [10]-[18] in written submissions filed in this Court on 11 October 2024):
(a)the Tribunal found that the applicant’s evidence was not credible, having regard to the nature of his claims, inconsistencies between the contents of his visa application and his oral evidence at hearing and the lack of any corroborating evidence (at [68]);
(b)the Tribunal expressed concern that, whilst the applicant’s visa application stated the specific amount of 90,000RM for the loan, the applicant stated at the Tribunal hearing that he never knew the loan amount. In this regard, the Tribunal recorded the applicant’s evidence that he did not think it was important at the time he signed the visa application (at [42], [71] & [73]). The Tribunal also noted that the applicant’s evidence was that he “hardly knew” and “expressed little concern” about his cousin (the person he allegedly provided the loan to and for), yet still agreed to become a guarantor for her. The Tribunal also recorded the applicant’s explanation that he “was trying to play the hero” and that he never knew it would become this serious (at [44] & [71]);
(c)the Tribunal rejected and found it incredulous that the applicant had agreed to become the guarantor for an illegal loan for an unknown amount for a person with whom he was not close with, at a time when he was unemployed and where his only source of income was his mother and brother (at [72]);
(d)the Tribunal also recorded that the applicant’s visa application declared that the information he had provided on the application was truthful and that he understood that if false or misleading information was given, he could be refused the visa. The Tribunal also noted that the applicant had claimed in his application that he had made his own protection claims, had not used an interpreter in completing the form and had otherwise left blank the section confirming whether he had assistance in completing the form. Overall, the Tribunal did not accept that the applicant had guaranteed a loan which he declared as being for a specified amount in his application form but had then stated (at the hearing) that he wasn’t aware of the amount of said loan (at [74]-[76]);
(e)the Tribunal rejected the applicant’s evidence that he had agreed to become a guarantor because, during the hearing, he had changed his version of what he had understood a guarantor to be at the time and ultimately “did not follow through” on either version (at [77]-[80]). The Tribunal also rejected the applicant’s explanation that he had stopped paying the loan “due to the compounding interest”. The Tribunal noted that the applicant initially said that the loan shark did not tell him the amount of the loan but asked him to repay 5,000RM per month, but later stated that he had not repaid any further money to the loan shark because he still did not know how much needed to be repaid (at [81]);
(f)based on the inconsistencies between his visa application and his oral evidence, the Tribunal rejected the applicant’s evidence that the loan shark had splashed red paint on his family home or sent dead animal parts to the house (or otherwise threatened the applicant’s parents) (at [82]-[85]);
(g)the Tribunal also rejected the applicant’s evidence that he would not have heard what had happened to his cousin after she failed to pay the debt (in circumstances where he had expressed a desire to “play the hero” for his female cousin) (at [86]-[87]); and
(h)the Tribunal accepted, based on country information, that illegal money lending was an issue in Malaysia which was being addressed by the authorities and law enforcement. However, it observed that the applicant had not provided any corroborating evidence of having guaranteed a loan or about what had happened since the loan had not been repaid (including any evidence from his parents who, he said, he was in contact with) (at [88]-[89]).
Having reviewed the Tribunal’s decision in detail, it cannot be said that the Tribunal’s credibility findings were not open to. Nor can it be said that the Tribunal failed to “tread cautiously” in this regard given the nature of the visa category in question and the serious consequences for the applicant should an error be made. The Court notes, in particular, that the Tribunal’s concerns were put to the applicant and he was given ample opportunity to respond and provide evidence to support and corroborate his claims. Procedurally, the Tribunal did all that it could do to assist the applicant.
This is not a case where the applicant’s credibility was “damned by an objectively minor fact”. On the contrary, the Tribunal had significant concerns. Nor can it be said that there was any clearly identified “[u]nwarranted assumption” by the Tribunal that caused it to disregard the applicant’s evidence: DAO16 (at [30]), (citing SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at [22]).
Overall, there is an evident and intelligible justification for the Tribunal’s concerns in relation to the applicant’s credibility. These concerns formed the basis of the Tribunal’s eventual rejection of the applicant’s claim to fear harm in Malaysia. Overall, based on its credibility concerns, the Tribunal determined that there was no real chance of serious harm in the reasonably foreseeable future if the applicant was returned to Malaysia. The Tribunal was thus not satisfied that s 36(2)(a) of the Act was met (at [90]-[91]).
The Tribunal also found, based on the same findings (citing Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33), that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia, as per s 36(2)(aa) of the Act (at [92]-[94]).
It cannot be said that the analysis undertaken, the approach adopted and the reasons provided by the Tribunal in this matter were unreasonable or demonstrative of a failure to adequately assess the applicant’s claims for protection.
No error arises in relation to ground one.
Ground two
Ground two states:
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.
Arguably, ground two alleges bias on the part of the Tribunal.
It is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is no evidence before the Court to suggest bias on the part of the Tribunal. As detailed above in relation to ground one, the Tribunal in this matter took considerable care to engage with the applicant and ensure that he understood any concerns it had with the written and oral evidence before it. As stressed by the Minister (at [25] in written submissions filed in this Court on 11 October 2024), the Tribunal invited the applicant to attend a hearing and gave him ample opportunity to provide documents or information prior to the Tribunal hearing. The Tribunal carefully assessed the information before it that was included in the visa application, the applicant’s oral evidence at hearing and the country information before it and determined that the delegate’s decision should be upheld.
No error arises in this regard.
The applicant’s oral submissions to this Court
As outlined by the Court above, when the applicant appeared at the hearing of this matter, the applicant told the Court that when his visa application was submitted, “it was done by a third party and that person included an amount in currency and that amount was not accurate”.
It is not entirely clear to the Court what “error” the applicant is suggesting occurred here.
To the extent that the applicant is suggesting that there is “new evidence” that demonstrates a loan or some sort of guarantor relationship, this Court cannot now canvass material that was not before the Tribunal in so far as that that material seeks an impermissible merits review.
If the applicant is concerned that the Tribunal did not assess what he now says was third party involvement in the preparation of his visa application and/or any concerns he might have in that regard, that is factually incorrect.
As discussed above, the Tribunal specifically recorded that the applicant’s visa application declared that the information on his visa application was truthful and that he understood that if false or misleading information was given, he could be refused the visa. The Tribunal also noted that the applicant had claimed in his application that he had made his own protection claims, had not used an interpreter in completing the form and had otherwise left blank the section confirming whether he had assistance in completing the form (at [10]).
The Tribunal then explained as follows:
22.At the start of the hearing, the applicant confirmed that all the documents which had been sent to the Tribunal as part of the review process constituted all the necessary documents before the Tribunal.
23.During the hearing, the applicant gave the following oral evidence.
24.The applicant said their protection visa application was prepared by a middle person whose name the applicant could not remember. The applicant was introduced to the middle person through an agent in Malaysia, and the applicant met them in Shepparton in the State of Victoria. He asked brief details about the applicant’s case, and when the applicant said that they felt unsafe in Malaysia, the middleman said, ‘leave the rest to me’. The applicant confirmed that they can read in English, and that they read the application and were happy with the contents before they signed.
Having assessed this oral evidence, which contradicted the contents of the applicant’s visa application, the Tribunal continued:
43.The Tribunal expressed concern that whilst the application stated a specific amount of the loan to the stated, the applicant was now saying that they never knew the amount of the loan. The applicant said they told their story to the middleman, and it was that person who wrote the application. The applicant only read it once before they signed it and did not think at that time it was important.
71.During the hearing, the applicant said that they did not know the amount of the loan for which they had agreed to be guarantor. At the commencement of the hearing, the applicant said that they read the application prepared by a middle person and were happy with the contents before they signed, but towards the end of the hearing when the Tribunal expressed concern about this inconsistency, the applicant said that they had only read the application once before they signed it and they did not think at the time that it was important.
74.The Tribunal notes that in the protection visa application the applicant declared that the information they provided in the application was truthful and honest in every way, that the information that they had supplied or caused to be supplied on the form was complete, correct and up-to-date in every detail and that they understood that if they gave false or misleading information, the application could be refused and any visa granted may be cancelled.
75.The Tribunal also notes that the applicant claimed in the protection visa application that they said were making their own claims for protection, had not used an interpreter in completing the application but otherwise left blank the section asking if they had assistance with the form, and yet at the hearing referred to a middle person having written the application, with which the applicant was happy, after having been given details of the applicant's case by the applicant.
Having assessed all of the above, the Tribunal finally determined as follows:
76.The Tribunal does not accept that the applicant guaranteed a loan, when they declared the loan, they guaranteed to be for a specified amount in the protection visa application, with which they were happy, but stated inconsistently at the hearing that they had never known the amount of the loan.
88.The applicant did not provide any corroborating evidence in support of their claim, for example documentary evidence such as a written guarantee, loan document, bank statements or payment receipts, or independent evidence of having guaranteed a loan entered into by their cousin with the loan shark as claimed or the actions claimed to have been undertaken by the loan sharks since the loan has not been repaid, including evidence from their parents with whom the applicant said they remained in contact.
It cannot be said here that the Tribunal failed to address any suggestion that a third person was responsible for the provision of incorrect information to the Tribunal. The Tribunal assessed that submission in detail. Ultimately, the Tribunal rejected the evidence provided as implausible – a finding that was, for the reasons articulated above in relation to ground one, entirely open to it and, contextually, reasonable.
CONCLUSION
The application for judicial review filed by the applicant on 7 March 2024 has 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 fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 March 2025
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