BCO24 v Minister for Immigration and Multicultural Affairs

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BCO24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 478

File number: PEG 91 of 2024
Judgment of: JUDGE LADHAMS
Date of judgment: 7 April 2025
Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decisions not to grant the applicants protection visas – whether the Tribunal failed to take into account relevant information- whether the Tribunal failed to allow the applicants sufficient time to provide further evidence of their claims – whether the Tribunal made an error of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 – no jurisdictional error established – application dismissed.
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 36, 424, 424B, 441A, 476, 477

Migration Regulations 1994 (Cth) reg 4.35

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431; [2023] FCAFC 98

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449
Division: Division 2 General Federal Law
Number of paragraphs: 71
Date of hearing: 28 February 2025
Place: Perth
Applicants: The first applicant appeared in person
Counsel for the First Respondent: Ms V Long-Droppert
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

PEG 91 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BCO24

First Applicant

BCP24

Second Applicant

BCQ24

Third Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

7 APRIL 2025

THE COURT ORDERS THAT:

1.The…

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Details
Case
[2025] FedCFamC2G 478
Decision Date

CaseChat Overview and Summary

The applicants in this case, identified as BCO24, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) affirming the Minister for Immigration and Multicultural Affairs' decisions not to grant them protection visas. The dispute revolves around the applicants' claims that they would face persecution in Malaysia due to their religious beliefs and practices, specifically their conversion to Shia Islam and their intention to practice it openly. The applicants argued that the Tribunal failed to consider relevant information and did not allow them sufficient time to provide additional evidence to support their claims. Additionally, they contended that the Tribunal's decision contained errors similar to those identified in the case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.

The legal issues the court needed to decide were whether the Tribunal failed to take into account relevant information, whether it failed to allow the applicants sufficient time to provide further evidence, and whether the Tribunal made an error akin to that in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs. The court considered the nature of jurisdictional error as defined by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, which includes misunderstanding the applicable law, ignoring relevant material, or making erroneous findings. The court also noted that disagreement with a decision does not constitute jurisdictional error.

The court found that the applicants did not establish any jurisdictional error by the Tribunal. The Tribunal had considered the applicants' oral evidence and the country information provided. The court held that the Tribunal's decision was lawful and that the applicants' dissatisfaction with the outcome did not amount to a jurisdictional error. Consequently, the application for judicial review was dismissed, and no relief was granted to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 14 February 2024 the Tribunal affirmed the delegate’s decisions not to grant the applicants protection visas.SUMMARY OF THE TRIBUNAL DECISION Based on the first applicant’s oral evidence at the hearing, the Tribunal accepted that although raised in Sunni Islam, the first applicant converted to Shia Islam through being introduced by his friend at college. The Tribunal accepted that the first applicant wishes to practise Shia Islam because it brings him peace, that the practice of Islam feels incomplete without engaging in acts of worship the way he wishes and that the first applicant did not feel free to publicly practise Shia Islam in Malaysia although he did occasionally attend mosques. The Tribunal accepted that the first applicant and the friend were involved in a confrontation within the compound of a mosque after being asked why they had publicly prayed in a manner different to Sunni Islam and that resulted in the first applicant being punched in the face and losing a tooth. The Tribunal found that that one occasion of harm suffered did not individually of cumulatively rise to the level or serious harm, nor systematic and discriminatory conduct. Based on the second applicant’s oral evidence at the hearing, the Tribunal accepted that the second applicant is from a deeply religious Sunni Islam family, her father is a religious teacher both at home and at a religious school and he has now cut her off from her birth family. The Tribunal accepted in its entirety an incident in June 2017 described by the second applicant where the second applicant was scolded by her father for the first applicant’s religion and given an ultimatum. The Tribunal accepted that the second applicant, prior to coming to Australia in December 2017, saw a man following her and saw people around the house but did not know who he was. The Tribunal accepted that the second applicant received a phone call from a teacher at her daughter’s school claiming a person had sought to take the second applicant’s daughter out of school on false claims of knowing the second applicant. The Tribunal accepted that a person the second applicant had seen before came again to the house she was renting in Malaysia and stated that he was looking for her husband. The Tribunal also accepted that the person kept coming to the house and observed the second applicant’s movements. The Tribunal accepted the second applicant’s oral evidence that she is still a Sunni Muslim but expects to be guided by her husband into following Shia Islam. The Tribunal also accepted based on what the first applicant said that it was a matter between him and God, and that he was not trying to convert other people. The Tribunal found the husband has no intention to proselytise or attempt to convert anybody other than his wife and children into Shia Islam. The Tribunal accepted based on country information that Shia Muslims generally live free from societal discrimination on a day-to-day basis but face low levels of official discrimination. The Tribunal accepted that proselytising or promoting Shia Islam can result in higher risks of official discrimination. The Tribunal accepted that the country information it addressed in its reasons was consistent with that provided by the first applicant following the hearing.

Ratio Decidendi

Legal Principle Established

The evidence before the Court comprises: (a)a court book filed by the Minister; (b)an affidavit made by the first applicant, annexing a copy of the Tribunal decision and filed with his application on 12 March 2024;(c)an affidavit of Benjamin Mayne filed on behalf of the Minister on 17 July 2024 annexing a copy of a report published by the Department of Foreign Affairs and Trade (DFAT) titled ‘DFAT Country Information Report Malaysia’ dated 29 June 2021 (DFAT report); and (d)an affidavit of service of Benjamin Mayne filed on 24 February 2025, confirming that the Minister served relevant Court documents on the applicants. CONSIDERATION OF THE APPLICATIONThe 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 applicants’ 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 applicants if they establish 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]. Ground 1 By ground 1, the applicants assert that the Tribunal failed to take into account oral evidence provided by the first applicant in relation to the circumstances that would cause him harm in Malaysia. The ground as pleaded does not clearly indicate which aspect of the first applicant’s oral evidence the Tribunal failed to take into account.