BEC24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 221
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEC24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 221
File number: PEG 89 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 20 February 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal considered irrelevant information – whether the Tribunal’s decision was affected by bias – whether there was “no evidence” to support the Tribunal’s findings – whether the Tribunal’s decision was “illogical” – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Item 25
Migration Act 1958 (Cth), ss 36 & 476
Migration Regulations 1994 (Cth), Schedule 2
Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616
Craig v State of South Australia (1995) 184 CLR 163
CSH Auto Services & Spares Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 755
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
Jia Legeng (2001) 178 ALR 421
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 Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
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
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 2 October 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondents: Ms M Woollett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 89 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEC24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
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 then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 14 February 2024 and thus predate those amendments. 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).
At the time the applicant filed his application in this Court, 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 proceeding 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 will make an order 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
The applicant is a citizen of Malaysia (Court Book (“CB”) 20 & 40-42). He arrived in Australia in February 2018 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (the “ETA”) (CB 26 & 58).
On 19 April 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 12-39 & 58). In his visa application, the applicant claimed to have left Malaysia due to an economic crisis, lack of jobs and low wages. The applicant explained that he was “supporting a family of [six]” and that he had “gained debt when entering the job market”. He stressed that he needed to be in a stronger financial position and could not afford to support his children’s education in Malaysia (CB 35). The applicant also provided various identity documents with his visa application (CB 40-42).
On 20 April 2018, the Department of Home Affairs (the “Department”) acknowledged receipt of the applicant’s visa application and notified him of an appointment to provide personal identifiers (scheduled to take place on 30 April 2018 at the Department’s Perth offices) (CB 43-53).
On 29 June 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 58-66). The delegate found that the applicant’s claimed fear of harm was not for one of the reasons set out in s 5J(1)(a) of the Act. Overall, the delegate was not satisfied that the applicant met the refugee or complementary protection criteria for the grant of the visa (CB 59-60).
On 11 July 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 68-69).
On 13 July 2018, the Tribunal confirmed receipt of the review application and advised the applicant that he could provide material or written arguments to the Tribunal for consideration (CB 70-72).
On 8 December 2023, the Tribunal advised the applicant that his matter was “being prepared to be given to a Tribunal member”. The applicant was asked to complete a “pre-hearing information form” and return it to the Tribunal within seven days (CB 73).
On 14 December 2023, the applicant returned the completed pre-hearing information form to the Tribunal. He did so via email (CB 74-78).
On 10 January 2024, the Tribunal invited the applicant to appear at a hearing before it on 2 February 2024 (CB 79-82). That invitation letter also asked the applicant to “provide all documents [he] intend[ed] to rely on to support [his] case by 26 January 2024” (CB 81).
On 24 January 2024, the applicant returned a completed “Response to hearing invitation” form to the Tribunal (via email) (CB 86-89).
On 2 February 2024, the applicant appeared before the Tribunal to give evidence and present arguments in support of his review application (CB 94-97). The applicant was assisted at that Tribunal hearing by a Malay interpreter (CB 94).
On 14 February 2024, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 100-110).
On 14 March 2024, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-7).
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Act. In order to be successful before this Court, the applicant must demonstrate that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is 11 pages long and spans 71 paragraphs (CB 100-110). The final three pages include extracts of relevant legislative provisions (CB 108-110).
The Tribunal began by explaining that the applicant had arrived in Australia in February 2018 as the holder of the ETA, that he had applied for the visa the subject of the review in April 2018 (summarising the protection claims raised in that visa application) and, further noted that the visa had been refused by a delegate of the Minister on 29 June 2018. The Tribunal confirmed that the applicant had lodged a review application with it on 11 July 2018 and that the applicant had appeared at a hearing before it on 2 February 2024 (conducted with the assistance of a Malay interpreter) (at [1]-[7]).
The Tribunal then outlined the criteria for the grant of a protection visa (contained in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth)), including the refugee criterion contained in s 36(2)(a) of the Act and the complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal also noted that it was required to have regard to the matters set out in Ministerial Direction No 84 (made under s 499 of the Act), including the “Refugee Law Guidelines” and the “Complementary Protection Guidelines” prepared by the Department and country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) (at [9]-[19]).
The Tribunal identified that the key issue in this case was whether the applicant met the visa criteria set out in s 36 of the Act and confirmed that it had considered the applicant’s protection visa application form, his Malaysian passport and the oral evidence given (by the applicant) at the Tribunal hearing on 2 February 2024. The Tribunal also confirmed it had taken into account the DFAT Country Information Report Malaysia (dated 29 June 2021) (the “DFAT Report”) (at [20]-[21]).
The Tribunal accepted that the applicant was a Malaysian citizen and that he was to be assessed against Malaysia as his country of nationality and receiving country. The Tribunal also accepted the applicant’s evidence about his personal, family and work background (being that he had a wife and four adult children in Malaysia, that he completed schooling in Kuala Lumpur and had engaged in various employment positions since graduating, including factory work, construction roles and truck driving jobs) (at [22]-[28]).
The Tribunal then considered the applicant’s decision to travel to Australia and noted that the applicant had initially told the Tribunal that he had applied for his passport to travel to Australia because his financial situation was not good, he was finding it difficult to pay all of the bills for his family and he planned to work in Australia to make his family more comfortable. However, the applicant later told the Tribunal that his intention was to come to Australia for a “holiday” only, he travelled to Australia with MYR 10,000 in cash (being savings from a superannuation payment received the preceding year) and initially undertook tourist activities in and around Perth. However, after two weeks in Australia, the applicant changed his mind and decided to “try his luck” at finding work to “earn money to improve his family’s finances” (at [29]-[32]).
The Tribunal accepted the applicant’s evidence that he was under financial duress from February 2018 and, for that reason, was not satisfied that the applicant’s sole reason for coming to Australia was to “visit as a tourist”.
The Tribunal instead found (at [33]) that:
(a)the applicant’s travel could be characterised as a holiday in the sense that he engaged in some tourist activities and was not working;
(b)the applicant came to Australia to personally investigate potential work opportunities to help alleviate his financial position in Malaysia; and
(c)within two weeks, the applicant was satisfied that he could secure employment and thus decided not to return to Malaysia.
The Tribunal then considered the lodgement of the applicant’s protection visa. The Tribunal:
(a)noted the applicant’s evidence that he knew he could not work in Australia while holding the ETA, was worried about his visa, did not seek any advice and had “no choice” but to apply for a protection visa (clarifying that, because his ETA would expire, he needed to lodge a protection visa application in order to stay in Australia longer) (at [34]-[35]);
(b)found that, based on that evidence, the applicant’s motivation for submitting the protection visa application was to remain lawful in Australia and have the ability to work (at [36]);
(c)outlined the applicant’s evidence about the preparation of his visa application, noting that the applicant and his nephew (who travelled to Perth at the same time as the applicant) completed their respective visa application forms together on a computer at the public library (at [37]);
(d)explained that the applicant had been shown his visa application at the Tribunal hearing and that he had confirmed that the information in that application was accurate (though his employment history was incomplete) (at [38]);
(e)found that the applicant was directly involved in the preparation of his visa application (at [39]);
(f)discussed the applicant’s protection claims with him (and he confirmed that the claims were correct), in particular, that he left Malaysia because his financial situation was poor, his wages were insufficient to cover living expenses and his children’s education and he had incurred a bank debt in relation to a house purchase in 2016 which he was worried about (at [40]-[41]);
(g)asked the applicant about his bank debt, which he explained was for at least MYR 40,000 with monthly repayments of MYR 500 (which the applicant could not meet). The applicant told the Tribunal that the house was a “different house to where his family lived” and “he did not own it anymore” (at [42]);
(h)drew the applicant’s attention to the question in the visa application regarding whether he thought he would be “harmed or mistreated” if he returned to his home country and his response of “no”. The applicant acknowledged that was his answer “at that time” (at [43]); and
(i)ultimately found that the applicant was experiencing financial difficulties when he left Malaysia (his earnings not covering his outgoings), the applicant wanted to improve his financial position by seeking employment in Australia, he had concerns about a bank debt relating to a house purchase in 2016 and did not fear any harm or mistreatment (as at the date of his visa application form) if he returned to Malaysia (at [44]).
The Tribunal then considered the applicant’s “current situation” and his explanation as to why he did not wish to return to Malaysia, as follows:
(a)the applicant had lived in Australia since February 2018 and had been employed (initially doing farm and factory work and, for the past two years, by a pool manufacturer). The applicant has approximately AUD 30,000 in savings and, since he has been working, has regularly sent money to his family (but could not be sure of the total amount). The Tribunal accepted the applicant’s evidence relating to his current work and financial circumstances (at [45]-[47]);
(b)when asked if he was fearful of being harmed if he returned to Malaysia, the applicant said that he was “not sure” but that he remained worried about his bank debt and that was his primary concern regarding “consequences of going back”. The Tribunal attempted to obtain information about the debt (such as how much was left owing and if he had made repayments from Australia) and the applicant’s responses were that he was “not sure”, that he “could not remember” or “did not know” (at [48]-[49]). However, the applicant gave clear evidence that:
(i)he had not made any repayments towards the bank debt;
(ii)he had never received any letter of demand or similar from the bank;
(iii)the house the applicant purchased with the money from the bank had been auctioned (but the applicant could not be sure when that had happened); and
(iv)the auction may have occurred before the applicant left Malaysia;
(c)the Tribunal found that the applicant entered into a loan in 2016 to purchase a property, he agreed to make monthly repayments but had not made any and, at some later stage, the bank auctioned the property (at [51]);
(d)the Tribunal also found that, based on the information given by the applicant, he no longer owed a debt to the bank because the bank sold the property to satisfy the debt. The Tribunal also found that the bank would not take any action against the applicant if he returned to Malaysia (at [52]); and
(e)the Tribunal accepted that the applicant’s evidence that he missed his family and intended to return home in December 2024 (at [53]).
The Tribunal noted that the applicant had not provided (or sought to rely on) any country information in relation to his case. However, the Tribunal confirmed that it had had regard to the DFAT Report. The Tribunal found the information contained in that report was “not determinative” and was “neither supportive of, nor adverse to, the applicant’s case” (at [54]-[55]).
The Tribunal considered the visa criteria as they applied to the applicant’s case (at [56]) and, in relation to the refugee criterion set out in s 36(2)(a) of the Act, determined as follows:
(a)based on the evidence and the Tribunal’s findings, it was not satisfied that the applicant was a refugee because he did not have a “well-founded fear of persecution” (at [57]);
(b)when the applicant left Malaysia and when he lodged his visa application (soon thereafter) he was experiencing financial difficulties but was not fearful he would be harmed or mistreated if he went back home at that time (at [58]);
(c)the applicant’s financial position had improved since 2018 and he planned to return to Malaysia of his own volition later that year. The Tribunal also found that the applicant did not owe any bank debt in Malaysia as claimed (at [59]); and
(d)as a result, the Tribunal was not satisfied that there would be a real chance that the applicant would suffer serious harm if returned to Malaysia and determined that the applicant was not a person in respect of whom Australia had protection obligations (under s 36(2)(a) of the Act) (at [60]-[61]).
The Tribunal then summarised the complementary protection criterion set out in s 36(2)(aa) of the Act, explaining that there needed to be substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as defined in the Act (at [62]-[63]). In that regard, the Tribunal determined as follows:
(a)the Tribunal was not satisfied that there was a real risk the applicant would suffer any harm at all (much less significant harm) upon his return to Malaysia (at [64]);
(b)the applicant was not fearful of suffering any harm in Malaysia when he left and, instead, came to Australia for a “holiday” and to “try his luck” by seeking work to improve his family’s financial position (and succeeded in that regard, noting that if he returned to Malaysia, his circumstances were better than they had been previously) (at [65]);
(c)the Tribunal reiterated its finding that the applicant would not be pursued in relation to his bank debt (as it had determined that the debt no longer existed) and rejected the applicant’s claims that he might experience unspecified harm in that regard (at [66]); and
(d)the Tribunal determined that the applicant was not entitled to complementary protection under s 36(2)(aa) of the Act (at [67]).
Having determined that the applicant did not meet the criteria for the grant of the visa, the Tribunal affirmed the delegate’s decision refusing to grant him the visa (at [69]-[71]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 14 March 2024) contains two grounds of review, as follows (without alteration):
1. The tribunal considered irrelevant information
2.The tribunal decision about I am no facing harm when returned to Malaysia is purely based on 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 (with proper particulars of the grounds of the application), any evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 14 March 2024 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 112 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 18 September 2024.
The applicant appeared before the Court (on 2 October 2024) without legal representation. He was assisted by a Malay interpreter. Ms Maggie Woollett from the Australian Government Solicitor appeared at the hearing on behalf of the Minister.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
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 what he thought the Tribunal “did wrong” in relation to his matter.
As is the expected practice in this Court, the Court explained to the applicant 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 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained (to the applicant) that it cannot undertake merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks (even if the Court disagrees with the Tribunal’s ultimate findings). Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant told the Court that the Tribunal had asked him what his reasons were for applying for a protection visa and he had explained that his reason was “the economic situation of [his] family. However, the Tribunal said that his reason was “not encompassed by a protection visa”.
CONSIDERATION
Unfortunately, despite the Court’s best efforts, the applicant did not address his grounds of review or address the issue of jurisdictional error more broadly in his oral submissions to the Court. Further, the applicant’s grounds of review are not particularised and are, at best, vague.
Noting that the applicant was unrepresented, the Court will interpret the applicant’s grounds of review as widely as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
Ground one
As outlined above, ground one provides as follows:
1. The tribunal considered irrelevant information
The applicant was not able to articulate to this Court the information that he considered to be “irrelevant” that the Tribunal considered.
The Court has reviewed the Tribunal’s decision in detail and notes that, in considering the applicant’s claims, the Tribunal expressly stated that it had “considered the following information provided by the applicant” (at [20]):
•his oral evidence at the hearing on 2 February 2024;
•the protection visa application form; and
•his Malaysian passport.
The Tribunal also confirmed that it had regard to the relevant DFAT Report (as it was required to do by the relevant Ministerial Direction) (at [21]).
The Court also notes that the Tribunal had regard to (and made findings in relation to) the following:
(a)the applicant’s personal background (at [24]-[28]);
(b)the applicant’s decision to travel to Australia (at [29]-[33]);
(c)the applicant’s decision to lodge a protection visa application (at [34]-[36]);
(d)the preparation of the protection visa application (at [37]-[39]);
(e)the applicant’s protection claims (at [40]-[44]);
(f)the applicant’s current situation and why the applicant did not want to return to Malaysia (at [45]-[53]); and
(g)country information (at [54]-[55]).
Based on the evidence (outlined above) and the Tribunal’s findings in relation to that evidence, the Tribunal then considered the visa criteria as it applied to the applicant’s case. Relevantly, the Tribunal considered the:
(a)refugee criterion (at [57]-[61]); and
(b)complementary protection criterion (at [62]-[67]).
Ultimately, the Tribunal found that the applicant had not been fearful that he would be harmed or mistreated when he left Malaysia and was not satisfied that there was a real chance that the applicant would suffer serious harm if returned to Malaysia (at [58]-[60]).
Further, the Tribunal was not satisfied that there was a real risk that the applicant would suffer any harm at all upon his return to Malaysia (at [64]).
Based on those findings, the Tribunal determined that the applicant did not meet the criteria for the grant of the visa and ultimately affirmed the delegate’s decision refusing to grant him the visa (at [69]-[71]).
The Court is satisfied that the information considered by the Tribunal was relevant that the Tribunal’s assessment of that information (most of which was provided by the applicant and was otherwise country information) was entirely orthodox.
No jurisdictional error arises in relation to ground one.
Ground two
Ground two states:
2.The tribunal decision about I am no facing harm when returned to Malaysia is purely based on her personal opinion and not on any facts.
Read broadly, it is arguable that ground two is advancing the following concerns:
(a)the Tribunal’s decision was affected by bias;
(b)there was “no evidence” to support the Tribunal’s findings; and
(c)the Tribunal’s decision was “illogical”.
The Court will consider these issues in turn below.
Whether the Tribunal’s decision was affected by bias
To the extent that the applicant suggests that the Tribunal’s decision was affected by bias, the Court disagrees for the reasons that follow.
As explained by this Court recently in CCU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 616, it is well established that an 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 nothing in the Court Book or the materials before this Court to suggest that the Tribunal was not open to persuasion in this case.
The Tribunal invited the applicant to attend a hearing, gave the applicant an opportunity to provide additional documents before the hearing, asked him to complete a “pre-hearing information form” (which the applicant completed and returned to the Tribunal) and asked questions of the applicant and assessed his responses when considering his protection claims.
The Tribunal assessed the information before it (including the information provided by the applicant in his visa application and the applicant’s oral evidence at the Tribunal hearing).
Ultimately, the Tribunal found that the applicant was did not meet the criteria for the grant of the visa and affirmed the delegate’s decision refusing to grant him the visa.
The Court is satisfied that the Tribunal was not biased in its review.
No jurisdictional error arises in this regard.
Whether there was “no evidence” to support the Tribunal’s findings
Insofar as the applicant suggests that there was “no evidence” to support the Tribunal’s findings, the Court also disagrees.
As this Court has previously outlined in CSH Auto Services & Spares Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 755, in order for an applicant to succeed on a “no evidence” ground, the applicant must establish that there was no evidence at all upon which the relevant findings could have been based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Even a “skerrick” of evidence will mean that an allegation of jurisdictional error premised on that basis will fail (MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]). Further, evidence to support a finding is not required to be direct but may be found in material that permitted the Tribunal to reasonably infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [39]-[41].
As outlined above, other than country information, the information before the Tribunal was information that had been provided by the applicant in his visa application. The Tribunal then questioned the applicant about his protection claims and the information he had provided in his visa application and sought clarification and additional information where necessary.
The Court is satisfied that the Tribunal had an evidentiary basis for the findings it made.
No jurisdictional error arises in this regard.
Whether the Tribunal’s decision was “illogical”
To the extent that the applicant suggests that the Tribunal’s decision is “illogical”, the Court disagrees for the reasons that follow.
As explained by the High Court in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
As previously explained by this Court, SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Here, it cannot be said that the Tribunal’s ultimate findings (that the applicant was not fearful, at the time of his application, that he would be harmed or mistreated if he returned to Malaysia or that there was a real chance the applicant would suffer serious harm or real risk he would suffer significant – or in fact any – harm upon his return to Malaysia) were not open to it on the evidence before it. Further, that evidence was given by the applicant himself.
A considered reading of the Tribunal’s decision and reasons shows that the Tribunal assessed all of the evidence before it (including the information provided by the applicant in his visa application and the oral evidence provided by the applicant at the hearing before it).
The Tribunal ultimately determined that the applicant came to Australia on a “holiday” and to “try his luck” seeking work opportunities that would better his family’s financial position and, ultimately, had some success in that regard. However, that did not mean that the applicant was a person in respect of whom Australia had protection obligations or that the applicant was entitled to complementary protection.
The Court is satisfied that the Tribunal’s conclusion were open to it on the evidence before it. While the applicant may disagree with the Tribunal’s findings, and while another decision-maker may have decided this matter differently, that is not the test upon review. The Court is satisfied that the Tribunal’s findings were legally sound.
No jurisdictional error arises in relation to ground two.
CONCLUSION
The application for judicial review (filed by the applicant on 14 March 2024) has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 February 2025
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