BLO23 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1493
•15 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLO23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1493
File number(s): SYG 895 of 2023 Judgment of: JUDGE CLEARY Date of judgment: 15 September 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal misapplied s 36(2) of the Act - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 36(2) Cases cited: BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 2 September 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms Chandra of Hunt & Hunt Lawyers ORDERS
SYG 895 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLO23
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
15 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.
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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.
REASONS FOR JUDGMENT
JUDGE CLEARY
INTRODUCTION
In this matter the applicant is challenging a migration decision under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 10 May 2023 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the first applicant a Protection (subclass 866) visa (protection visa) under s 65 of the Act.
BACKGROUND
On 8 June 2017, the applicant, a citizen of Malaysia, first arrived in Australia as the holder of a tourist visa.
On 7 September 2017, the applicant lodged an application for a protection visa. The applicant claimed he had left Malaysia as there were people there who wanted to harm him because he could not afford to pay his debt.
On 8 November 2017, a delegate of the First Respondent refused to grant a protection visa on the basis that it was not satisfied that the applicant met the refugee criteria or the complementary protection criteria.
On 1 December 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 21 April 2023, the Tribunal invited the applicant to appear at a hearing on 9 May 2023.
On 9 May 2023, the applicant appeared before the Tribunal to give evidence and present arguments.
On 10 May 2023, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.
TRIBUNAL DECISION
The Tribunal identified the issue for review was whether the applicant has a well-founded fear of persecution for the reasons set out in s 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk that the applicant will suffer significant harm.
The Tribunal set out the applicant’s claims that he has a debt he cannot repay; he is being blackmailed and harassed at home and work; he will be harassed if he returns; he had asked friends and family for help but they were unable to; the authorities were unable to help due to a lack of evidence; and he cannot relocate as he does not feel safe in Malaysia.
At the Tribunal hearing, the applicant said that he saw advertising for jobs in Australia on his laptop. The applicant stated he came to Australia to work and that he was tricked into thinking he would get a work visa. However, after arriving to Australia he was not able to get a working visa, and, after researching visas, he discovered the protection visa.
The applicant told the Tribunal that he borrowed RM500 from Ah Long in his home area. The applicant claimed he paid the money back and with interest, and the total he paid them was RM700. The applicant said Ah Long kept calling him.
The applicant said he exaggerated his claims, and they did not come to his house or beat him, nor did he go to the authorities. He said his friend suggested to him to say something more impactful on his claims. He just wants to stay in Australia as his sister is here, and he does not have any immediate family left in Malaysia except Aunts and Uncles.
On the basis of the applicant's oral evidence the Tribunal found that the applicant was not harassed, beaten and blackmailed by the Ah Long. The Tribunal found he had paid them back what he owed them, with interest.
On this evidence, the Tribunal found that the applicant did not face a real chance of serious harm if he returned to Malaysia for owing money to the Ah Long and was not satisfied that the applicant had a well-founded fear of persecution per s 5J of the Act.
The Tribunal did not accept that there were grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there was a real risk that the applicant would suffer significant harm from the Malaysian authorities, the Ah Long or anyone associated with them.
The Tribunal affirmed the decision not to grant the applicant a protection visa.
APPLICATION FOR REVIEW
On 2 June 2023, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 10 May 2023. The application contains one (1) ground of review, containing particulars. The ground is as follows (as written):
1. SOLE GROUND:
The Administrative Appels Tribunal (MT) has misapplied s 36(2)(aa) of the Migration Act1958 (Cth) and therefore made a jurisdictional error.
Particulars
The tribunal has failed to articulate reason for its assertion that the applicant will not face 'significant harm' upon return to Malaysia:
i)The Tribunal is not satisfied that the applicant had a genuine fear of serious or significant harm at the time of lodgment of his protection application
ii)The Tribunal is not satisfied that the applicant has a genuine fear of serious or significant harm at the time of this decision.
On 10 January 2024, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
On 24 July 2025, the proceedings were docketed to me and set down before me for final hearing on 2 September 2025.
HEARING ON 2 SEPTEMBER 2025
At the hearing of this matter on 2 September 2025, the applicant appeared unrepresented with the assistance of a Malaysian interpreter (if she was required). Ms Chandra of Hunt & Hunt appeared for the first respondent. At the commencement of the hearing the applicant said he did not need an interpreter. I allowed the interpreter to remain in Court (via the telephone) in case he needed her assistance during the hearing.
This Court has duties to take appropriate steps to ensure that unrepresented applicants have sufficient information about practice and procedure of the court they are appearing in, so far as is reasonably practicable, for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 Hill J.
I consider, in cases such as the present where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong.
Accordingly, I asked the applicant if he wanted to make submissions on the sole ground of review. He did not want to make any submissions on the sole ground other than to say he still feared harm if he was to return to Malaysia. I asked the applicant if he wanted to make any submissions more generally about his case. The applicant made some brief submissions about his past life in Malaysia, how he has no connection with Malaysia now, and that he lived currently with his sister in Australia.
Ms Chandra made brief oral submissions summarising the first respondent’s written submissions. She also submitted that the matters the applicant referred to orally did not identify any jurisdictional error in the Tribunal’s decision.
CONSIDERATION
The issue before this Court is whether the Tribunal’s decision contained a jurisdictional error as explained in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 and LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] (LPDT). Recently, the High Court held that in most cases to constitute jurisdictional error the error must be material in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32] and Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421.
In judicial reviews such as these the Court does not consider the merits of the decision, nor does it have power to remake it: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
For the reasons given below, the applicant has not established that the Tribunal committed jurisdictional error.
GROUND OF REVIEW
The Tribunal made its findings in relation to whether it was satisfied the applicant had a well-founded fear of persecution under the Act, and therefore whether he was a refugee within the meaning of the Act, in paragraphs [21]-[23];
21.The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as required by s 5J of the Act and therefore he is not a refugee within the meaning of s 5H.
22.At the hearing the applicant said he found a website that said come work in Australia and get a work visa. He wants to stay in Australia and live here as his sister is here. The Tribunal accepts that the applicant wishes to stay in Australia and that he came here to work, but this does not amount to serious harm or significant harm as defined in the relevant legislation as above.
23.For these reasons the Tribunal finds that the applicant does not face a real chance of persecution for any reason upon return to Malaysia.
These findings were made based on the evidence given to the Tribunal by the applicant: see paragraphs [15]-[20]. The finding that the applicant did not face a real chance of persecution for any reason upon return to Malayasia was reasonably open to the Tribunal on the evidence before it.
At paragraph [24] the Tribunal considered the complementary protection obligations owed to the applicant under s 36(2)(aa) of the Act. It found as follows:
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from the Malaysian authorities, the Ah Long or anyone associated with them. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa).
The Tribunal in paragraph [24] concluded that the applicant was not at a real risk of significant harm. That conclusion was based on the findings of fact made by the Tribunal in considering whether the applicant met the refugee criteria in s 36(2)(a) of the Act in paragraphs [21]-[23].
In MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] Marshall J held:
The Tribunal was entitled to rely on its finding that there was no real chance of the relevant harm alleged for Convention purposes in assessing whether there was a real chance of significant harm for complementary protection purposes, when the same essential claims and facts were being relied on in each aspect of the appellants case before the Tribunal
This is what the Tribunal did in this matter at paragraph [24]. There were no other claims made by the applicant under s 36(2)(aa) before the Tribunal that were separate or different form the claims made by the applicant under s 36(2)(a) of the Act.
For this reason, the applicant’s sole ground of review does not establish jurisdictional error.
CONCLUSION
The applicant has not established that the Tribunal’s decision is affected by jurisdictional error. I also agree with Ms Chandra that nothing said orally by the applicant at the hearing before me establishes the Tribunal has committed jurisdictional error.
As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
The application is dismissed.
COSTS
The first respondent seeks costs fixed in the sum of $5,000. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 15 September 2025
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