BKY24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 508
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKY24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 508
File number: PEG 109 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 11 April 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to give sufficient weight to the applicant’s circumstances – whether the Tribunal engaged in a process of reasoning that was illogical or irrational – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 36, 476, 477
Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
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 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
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 8 April 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms M Woollett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: The Australian Government Solicitor ORDERS
PEG 109 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKY24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 5 March 2024. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant raises two grounds in his application, which allege that the Tribunal failed to give sufficient weight to his circumstances in Malaysia and that the Tribunal engaged in a process of reasoning that was illogical or irrational.
For the reasons explained below, the applicant has not established that the Tribunal made any jurisdictional error in reaching its decision. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia in July 2017 as the holder of an Electronic Travel Authority visa. He applied for a student visa in Australia, but this application was refused in December 2017.
On 17 January 2018 the applicant applied for a protection visa. The applicant claimed that he borrowed money from a group of people in Malaysia and if he does not return this money, he will be abused, harmed and possibly killed.
On 20 June 2018 a delegate of the Minister refused to grant the applicant a protection visa.
On 9 July 2018 the applicant applied to the Tribunal for merits review of the delegate’s decision.
The applicant attended a hearing before the Tribunal on 5 February 2024 to give evidence and present arguments in relation to the issues arising in the review. The applicant was assisted by an interpreter at the hearing and his wife also gave oral evidence.
On 5 March 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal considered that the applicant was not a reliable or credible witness and that some of his claims were unreliable and lacking in credibility. This finding was based on inconsistencies in the applicant’s evidence relating to the payment of loan instalments, his intentions to repay the loan and reasons why he was not doing so, his mother’s ability to relocate within Malaysia and his mother’s last contact with the lender. It was also based on the absence of credible evidence to support the applicant’s assertions that the lender would not accept a repayment plan and that the lender intended to harm the applicant.
The Tribunal accepted the applicant borrowed money from a money lender. The Tribunal also gave the applicant the benefit of the doubt and accepted that he decided to breach his repayment obligations shortly after arriving in Australia. The Tribunal found that the applicant had no real intention to repay the loan and considered that the applicant would have made some effort to repay the loan if he in fact envisaged a real chance of serious harm would exist at the hands of the creditor.
The Tribunal accepted the applicant’s claim that he never experienced past harm in Malaysia, but did not accept that there was a real chance the applicant would face future harm if he were to return to Malaysia. The Tribunal found that the applicant’s mother continues to live in Malaysia without being harmed or threatened and, while it accepted the lender may have turned up to the applicant’s mother’s home asking for repayment of the loan, it was not persuaded the evidence of the conduct of the lender suggested anything more than an intention to pursue payment. In relation to a claim by the applicant that the lender threatened him during a telephone call in 2017 when the applicant was in Perth, the Tribunal noted that there was no persuasive evidence that such a threat was made with the intention that it be carried out and formed the view that the threat was for the purpose of motivating the applicant to pay the loan. The Tribunal accepted that there are reports of some loan sharks harassing and sometimes inflicting harm on defaulting borrowers, but it rejected the proposition that it follows that the applicant faces a real chance of serious harm from this particular lender.
The Tribunal considered the applicant’s claim that he fears returning to his home country because his immediate family reside in Australia. The Tribunal accepted the applicant’s spouse and child are present in Australia, but did not accept that the refusal of the applicant’s protection visa would result in a forced separation from either his child or his wife. The Tribunal found no credible evidence to suggest the applicant’s wife or child would be precluded from obtaining a visa to enter and reside in Malaysia and no credible evidence to suggest the family could not have a safe and full life together in Malaysia.
Based on these findings of fact, the Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 27 March 2024. The application was made within 35 days of the date of the Tribunal decision as required by s 477(1) of the Migration Act.
The applicant raises two grounds in his application:
1. The Tribunal failed to give sufficient weight to the Applicant’s circumstances in Malaysia. The Tribunal failed to engage in an active intellectual process of considering the Applicant's circumstances in Malaysia.
2. The Tribunal made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational, and not based upon findings of fact supported by logical grounds. Since the Tribunal failed to give sufficient weight to the Applicant’s circumstances in Malaysia, the decision made by the Tribunal was so unreasonable that no reasonable person in the position of the Tribunal would have made it. It is a decision that was illogical, irrational and lacking a basis in inferences of fact supported on logical grounds.
Pursuant to an Order made by a Registrar of this Court on 27 May 2024, the applicant was to file and serve 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence upon which the applicant seeks to rely. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions ahead of the hearing, as required by the Order.
The evidence before the Court comprises:
(a)an affidavit filed by the applicant with his judicial review application, annexing a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 10 June 2024; and
(c)an affidavit of service of Margarita Carmen Woollett filed on behalf of the Minister on 28 March 2025, confirming that the applicant had been served with relevant Court documents.
When the matter came before me for hearing, the applicant confirmed that he had received the court book and had read the Minister’s written submissions. I made explanations to the applicant about the role of the Court and I referred the applicant to the grounds in his application, acknowledging that both grounds of application raised allegations of jurisdictional error which would be considered by the Court. I indicated to the applicant that he would have an opportunity to make submissions to the Court and that, as a self-represented applicant, I would allow him to raise assertions of jurisdictional error beyond those set out in his grounds. I offered to provide examples of other types of jurisdictional error that often arise in migration cases, but the applicant declined that offer and was content to rely on the grounds in his application. When the applicant was invited to make oral submissions, he declined to do so. Ms Woollett on behalf of the Minister made oral submissions that summarised, in clear and concise sentences, those parts of the Minister’s written submissions that addressed the grounds in the application. These were interpreted for the applicant by the interpreter engaged by the Court to assist the applicant at the hearing. At the conclusion of Ms Woollett’s oral submissions, the applicant was again invited to make submissions and again declined to do so. I am satisfied that the applicant has been afforded opportunities to present his case to the Court and has declined the opportunity to provide any submissions or evidence beyond that filed with his application for judicial review.
CONSIDERATION OF THE GROUNDS OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Ground 1
By ground 1, the applicant asserts that the Tribunal failed to give sufficient weight to his circumstances in Malaysia and failed to engage in an active intellectual process in considering his circumstances in Malaysia.
Relevant principles
In relation to the weight to be given to evidence before a Tribunal, in Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 RD Nicholson J (with whom Kiefel and Downes JJ agreed) said at [5]:
There was no error in the primary judge’s conclusion that the weight to be accorded to factors to be considered by the Tribunal was a matter for it. It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight.
A similar view was expressed by French J in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27], where his Honour said that the ‘Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances’.
The obligation on the Tribunal to engage in an active intellectual process of considering the applicant’s claims has been addressed in many cases, including Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 (Carrascalao), in which the Full Court considered a number of authorities that ‘endorsed the principle that when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria’: Carrascalao at [45].
This should be read in conjunction with the High Court’s judgment in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, in which the High Court cautioned at [26] that labels such as ‘active intellectual process’ must be understood in their proper context. The Court explained at [24]-[25] (footnotes omitted):
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25.It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Consideration of the Tribunal’s reasoning in the present case
I accept the Minister’s submission that, in the present case, the Tribunal had regard to the applicant’s claims and evidence, the evidence of his wife and country information and clearly had regard to the applicant’s circumstances in Malaysia in making its decision.
The Tribunal identified in its reasons the claims advanced by the applicant in his protection visa application, his prehearing information form submitted to the Tribunal and in the oral evidence given by him and his wife at the hearing. The Tribunal considered the claims advanced by the applicant and the evidence provided in support of those claims and made findings of fact in relation to his claims. As noted in the summary of principles above, the weight to be given to the evidence was a matter for the Tribunal as part of its fact-finding function. There is nothing in the Tribunal’s reasons to suggest that it did not properly understand the claims and evidence advanced by the applicant. The Tribunal concluded that the applicant did not meet the refugee criterion or the complementary protection criterion. As submitted by the Minister, this conclusion was based on:
(a)the Tribunal’s finding that the applicant was not a reliable or credible witness, for the reasons outlined in the summary of the Tribunal decision above;
(b)the Tribunal’s finding that the applicant did not have a subjective fear of harm, even accepting that he did borrow the money as claimed, based on inconsistent evidence and responses to questions;
(c)even accepting some aspects of the applicant’s evidence, the Tribunal not being satisfied that there was credible evidence that the lender intended to harm the applicant; and
(d)the lack of evidence to suggest that the applicant’s family would be prevented from residing in Malaysia with him.
There is no basis for finding that the Tribunal failed to consider the applicant’s claims and evidence, including in relation to his circumstances in Malaysia, in the manner required having regard to the authorities referred to above. There is also no basis for finding that there is any jurisdictional error based on the weight allocated to the evidence by the Tribunal.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Tribunal made a decision that was illogical, irrational or unreasonable.
Relevant principles
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135], Crennan and Bell JJ said in relation to illogicality and irrationality:
131.…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.
…
135.…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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…
In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2, the Full Court summarised principles relating to illogicality, irrationality and unreasonableness in fact-finding, including adverse credibility findings at [30], where the Court said:
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added.)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(Citations omitted.)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
Consideration of the Tribunal’s reasoning in the present case
I accept the Minister’s submission that the Tribunal’s decision was based on:
(a)an assessment of the credibility of the applicant’s evidence, much of which was accepted despite the Tribunal’s concerns with the applicant’s credibility; and
(b)logical conclusions based on the evidence assessed as a whole, by reference to gaps in the evidence, a lack of persuasiveness in the evidence and the country information.
I accept the Minister’s submission that the Tribunal’s decision was open on the evidence before it. There was room for a rational and logical decision-maker to make the decision that was made by the Tribunal, based on the evidence before it. The applicant has not established that the Tribunal decision was illogical or irrational or that there was anything unreasonable in the weight given to the applicant’s evidence of his circumstances in Malaysia.
Ground 2 is not established.
CONCLUSION
I have found above that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 April 2025
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