BRN18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 181
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 181
File number(s): MLG 861 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 1 March 2024 Catchwords: MIGRATION– application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant claims to fear farm due to religion, ethnicity and political involvement in Malaysia – consideration of whether Tribunal failed to consider applicant’s claims – further consideration of whether Tribunal failed to apply forward-looking test when assessing risk of harm – no jurisdictional error established – application dismissed with costs. Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 15 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 10 October 2023 Date of hearing: 10 October 2023 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms S Roeger of Australian Government Solicitor ORDERS
MLG 861 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.The applicant’s application filed on 4 April 2018 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $6,000.
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 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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 March 2018. By that decision, the Tribunal affirmed the decision of a delegate of the then Minister for Home Affairs (‘the Minister’) to refuse the applicant a subclass 866 (class XA) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is a citizen of Malaysia.[1] The applicant arrived in Australia on 3 December 2016 under an Electronic Travel Authority.[2]
[1] Court book at page 22.
[2] Court book at page 91.
Application for protection visa on 21 February 2017
On 21 February 2017, the applicant applied for a protection visa.[3]
[3] Court book at page 91.
Applicant’s claims for protection
The applicant’s claims for protection, as outlined in his protection visa application, can be summarised as follows:
(a)the applicant claims to be of Dusun ethnicity, native to North Borneo in Sabah;
(b)the Malaysian government had facilitated illegal immigration from the Philippines, Bangladesh and Indonesia into Sabah, and these immigrants were being given Malaysian citizenship if they converted to Islam and voted for the Malaysian government;
(c)the illegal immigrants placed the native people in danger and caused ‘criminal issues’;
(d)the applicant claims to be involved in the ‘Sabah Sarawak Union – United Kingdom’ (‘SSU‑UK’), a group opposed to the Malaysian government, including by volunteering to collect signatures for a petition to be sent to the British government to review the validity of the ‘Malaysia Agreement 1963’ and educating others about the cause on social media; and
(e)the SSU-UK had received threats from the Malaysian government and the applicant left Malaysia for his safety due to fearing harm from the Malaysian government due to his involvement with the group.[4]
[4] Court book at pages 46 to 49.
In support of his application, the applicant also provided articles published by the SSU-UK, a letter written on behalf of the SSU-UK addressed to the Secretary-General of the United Nations and a document entitled ‘Peoples’ Petitions to United Nations to seek self determination for Sabah and Sarawak’.[5]
[5] Court book at pages 50 to 61.
On 15 June 2017, the applicant was notified by letter that his application for a protection visa had been refused by a delegate of the Minister.[6]
[6] Court book at pages 87 to 104.
Application for review in the Tribunal on 16 July 2017
On 16 July 2017, the applicant lodged his review of the delegate’s decision in the Tribunal.[7]
[7] Court book at pages 112 to 113.
On 15 December 2017, the applicant was invited to a hearing before the Tribunal to be held on 7 February 2018.[8] The applicant attended the hearing on 7 February 2018, representing himself and assisted by a Malay interpreter.[9]
[8] Court book at pages 118 to 119.
[9] Court book at pages 124 to 126.
Following the hearing, on 1 March 2018, the applicant was invited by the Tribunal to comment on certain information which may be the reason or part of the reason for affirming the decision under review.[10] Relevantly, the Tribunal advised the applicant that it had received about 70 review applications (including the one filed by the applicant) containing protection visa claims that are very similar in key respects.[11]
[10] Court book at pages 131 to 132.
[11] Court book at page 131.
The Tribunal noted that the information was relevant as it might suggest that the applicant had not been truthful in respect of his claims regarding having volunteered with the SSU-UK, given the implausibility of 70 or so other protection visa claims having very similar claims. The applicant was invited to comment on this information within a certain timeframe, following which the Tribunal would make a decision on the review.
In response to the Tribunal’s invitation, on 5 March 2018, the applicant provided some post-hearing information, which consisted of articles and other country information.[12]
[12] Court book at pages 133 to 210.
On 20 March 2018, the applicant was notified by letter that the Tribunal had affirmed the decision of the delegate to refuse the applicant a protection visa.[13]
[13] Court book at page 213.
TRIBUNAL DECISION
The Tribunal’s reasons of 19 March 2018 are set out at pages 214 to 222 of the court book.
After setting out the relevant criteria for a protection visa under the Act, the Tribunal outlined its consideration of the applicant’s claims at paragraphs [11] to [41] of its decision record.
At paragraph [11], the Tribunal accepted the applicant’s stated identity and that the applicant is a Malaysian national.
At paragraph [12], the Tribunal summarised the applicant’s claims as follows:
•He is from the Dusun race and is one of the native people from North Borneo Sabah.
•The Malaysian government has allowed illegal immigrants from other countries to enter Sabah and they are being given citizenship if they convert to Islam and vote for the Malaysian Government.
•These illegal immigrants are exposing the native people to danger and criminality.
•He volunteers for the Sabah Sarawak Union – United Kingdom (SSU – UK) organisation to collect signatures to send to the United Nations to ask the British Government to review the validity of the ‘Malaysia Agreement 1963’.
•He and others are trying to educate their people about their situation from overseas using modern technology.
•He has been threatened by the Malaysian authorities for his activities and many north Borneo Sabah natives are being charged with sedition for trying to educate their community.
•His people have become a minority in their own State, are being discriminated against, have lost their customary rights and have been ‘kicked out’ from their land in favour of a ‘Malayan Business company’ to ‘build Islam in religion’.
•If he returns to Malaysia he may be jailed or ‘killed by nasty politics’.
•Due to his support for the separatist movement he was considered to be a criminal and ‘many of us get warning from some unknown parties’ that their families will be hurt if they continue to support their separatist movement.
•He cannot relocate within Malaysia because the system is worse in terms of racial discrimination as the ‘majority of the people are the extreme Muslims’.
•The Malaysian authorities will not protect him because there is ‘no such thing as free speech freedom’.
At paragraphs [13] to [19], the Tribunal considered the applicant’s oral evidence given at the hearing about the reasons he left Malaysia.
The Tribunal accepted that the SSU-UK is a movement ‘advocating for the secession of Sabah and Sarawak from Malaysia following the federation of Malaysia in 1963’, that its members are circulating a petition to the United Nations seeking self-determination for Sabah and Sarawak and that volunteers from the SSU-UK were charged under Malaysia’s Sedition Act in February 2015.[14]
[14] Tribunal decision record dated 19 March 2018 at paragraph [18].
At paragraph [19], the Tribunal noted that the applicant had confirmed that he had not been involved with the SSU-UK or any similar organisation whilst in Malaysia, and had only become active with the group whilst in Australia. On this basis, the Tribunal did not accept that the applicant had been threatened by the Malaysian authorities, was considered a criminal or had been warned due to his support for the separatist movement.
At paragraphs [20] to [27], the Tribunal made further findings on the credibility of the applicant’s evidence. Relevantly, the Tribunal noted that the applicant’s evidence about the separatist movement and its aims was ‘vague, and slightly incoherent’ and very general in its nature. Moreover, the Tribunal considered the applicant to have limited knowledge about the various articles and other materials he submitted to the Tribunal, leading the Tribunal to conclude that he ‘has not thought much about these matters’.[15]
[15] Tribunal decision record dated 19 March 2018 at paragraph [21].
The Tribunal was also concerned about the applicant’s inability to adequately explain why he joined the movement.[16]
[16] Tribunal decision record dated 19 March 2018 at paragraph [22].
The Tribunal then addressed its concerns about the fact that there were some 70 protection applications made in very similar terms to the applicant’s.[17] As noted earlier, the applicant had been provided an opportunity to comment on this following the hearing. However, the Tribunal considered that he had not specifically done so other than by providing more articles and country information. The Tribunal noted that these articles are readily available on the internet, and moreover, did not address the concern raised by the Tribunal, namely that about 70 applicants had raised very similar claims.
[17] Tribunal decision record dated 19 March 2018 at paragraph [23].
The Tribunal also noted that the applicant’s evidence about his involvement with another similar organisation in Australia, ‘SSANZ’, was equally vague and lacked details.[18]
[18] Tribunal decision record dated 19 March 2018 at paragraph [24].
At paragraph [25], the Tribunal was prepared to accept that the applicant had some knowledge of these organisations and that he signed an online petition for the SSU-UK whilst in Australia. However, the Tribunal did not otherwise accept his claimed involvement and membership of either the SSU-UK or SSANZ, including as a volunteer or political activist. Moreover, the Tribunal did not accept that the applicant would seek to join a similar organisation in the future if he were to return to Malaysia.[19]
[19] Tribunal decision record dated 19 March 2018 at paragraph [25].
For each of these reasons, the Tribunal did not accept that there was a real chance of harm to the applicant from the Malaysian authorities or anyone else if he returned to Malaysia.[20]
[20] Tribunal decision record dated 19 March 2018 at paragraph [27].
At paragraphs [28] to [31], the Tribunal went on to consider whether the applicant faces a well-founded fear of persecution on religious grounds on return to Malaysia.
At paragraph [29], the Tribunal noted that the applicant confirmed that he is a Christian and he practices by praying, both in Australia and Malaysia, and that he rarely attends church. The Tribunal indicated that when asked whether he had experienced any problems as a Christian in the past in Malaysia, the applicant replied ‘yes’ and noted the ‘unfairness of the government giving priority to Muslims rather than Christians’.[21] The Tribunal ultimately concluded that the applicant did not experience such problems in the past in Malaysia.
[21] Tribunal decision record dated 19 March 2018 at paragraph [29].
At paragraph [30], the Tribunal recounted how it had put DFAT advice about Malaysian Christians to the applicant. Having regard to that country information, the Tribunal concluded that there was only a remote chance the applicant would face serious harm on religious grounds if he were to return to Malaysia and therefore his fear of harm on religious grounds were not well-founded.[22]
[22] Tribunal decision record dated 19 March 2018 at paragraph [31].
At paragraphs [32] to [34], the Tribunal further considered whether the applicant faces a well-founded fear on return to Malaysia on the grounds of his ethnicity, due to belonging to the Dusun race, considered broadly to be part of the bumiputera collective.
At paragraph [32], the Tribunal noted the applicant’s claims that indigenous people like himself are not given priority in Malaysia. The Tribunal accepted that the applicant belongs to the Dusun race and that indigenous people are underrepresented in the political and economic areas.[23] However, the Tribunal noted that there was nothing in the most recent DFAT report which suggests that people from the Dusun ethnicity face serious harm in Malaysia due to their ethnicity. The Tribunal therefore concluded that it was not satisfied that applicant would be denied employment or face discrimination amounting to serious harm on account of his ethnicity.[24]
[23] Tribunal decision record dated 19 March 2018 at paragraph [33].
[24] Tribunal decision record dated 19 March 2018 at paragraph [33].
The Tribunal therefore concluded that the applicant does not face a real chance of serious harm on return to Malaysia on the basis of his ethnicity, as a Dusun Christian or being a non-Muslim bumiputera, and found the chance the applicant would face serious harm on account of being denied employment and being unable to subsist to be remote.[25]
[25] Tribunal decision record dated 19 March 2018 at paragraphs [34] to [35].
At paragraph [36], the Tribunal considered the applicant’s claims that the native people of Sabah have lived in danger, being ‘exposed to criminality because of illegal immigrants’ and having their land taken by the government. When asked for more details, the applicant said that he had been bullied in Malaysia and robbed by Filipinos. Again, the Tribunal noted that the applicant’s evidence on this was vague, with him being unable to state when and where specifically this happened, leading to the Tribunal to not accept this claim.
For each of these reasons, at paragraph [37], the Tribunal concluded that the applicant was not a refugee within the meaning of section 5H of the Act.
At paragraphs [38] to [41], the Tribunal further considered whether the applicant meets the complementary protection criterion under section 36(2)(aa) of the Act, again finding that the he did not.
At paragraphs [42] to [45], the Tribunal ultimately concluded that the applicant is not a person in respect of whom Australia has protection obligations and therefore affirmed the decision of the delegate not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
On 4 April 2018, the applicant filed his application for judicial review in this court, accompanied by an affidavit in support.
Notwithstanding orders made on 3 April 2019 permitting the applicant to file written submissions and an amended application,[26] the applicant did not file any further material.
[26] Orders of Registrar Luxton dated 3 April 2019.
Hearing on 10 October 2023
At the hearing before me on 10 October 2023, the applicant appeared in person and represented himself, with the assistance of an interpreter.
The applicant was invited to make submissions in relation to his application. The applicant said that when he filed the application, he had been assisted but did not understand the grounds himself.
GROUNDS OF REVIEW
The applicant’s stated grounds of review are in the following terms:
1.The Tribunal failed to consider a relevant consideration about the targeting of Dusun people generally by criminals in Sabah.
2.The AAT exercised improper power in that it failed to consider relevant considerations. Namely:
(A)the AAT failed to consider the risk of harm that I would face in the future given the widespread harm to native people such as myself
3.The AAT applied the wrong year in consider past harm that has occurred in relation to my persecution by immigrants in Sabah instead of applying the future test.
I will now deal with each of these grounds of review in turn.
Ground 1
By ground 1, the applicant asserts that the Tribunal failed to consider the targeting of Dusun people generally by criminals in Sabah.
The issue raised by ground 1 is therefore whether the Tribunal failed to consider a claim, or an integer of a claim, either expressly made by the applicant or which clearly emerges from the material before the Tribunal.[27]
[27] See Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42].
The applicant, in some detail, sets out his claims for protection in a handwritten document annexed to his protection visa application.[28] In answering question 89 of the protection visa application form, which asked for information as to why the applicant left his country, the applicant said:
89.The Malaysia government allowed the illegals people from Sulu Mindanao Philippines, Bangladesh and Indonesia to enter Sabah and they being given Malaysia Citizenship as long as they willing to convert to Islam and voting for the Malaysia government. The Barisan National Umno rule every election time, we the natives people of North Borneo Sabah lived in danger and exposed with various criminals issues caused by the illegals immigrants. …[29]
[28] Court book at pages 46 to 49.
[29] Court book at page 46.
Further, the applicant went on to say:
89.… And we the natives become minority in North Borneo caused by the illegals immigrants outnumbered the real citizens. We even lost our natives customary rights … The safety and security in North Borneo Sabah is no longer safe, due to the Government of Malaysia bring the illegals from Philippines, Bangladesh and Indonesia into Sabah, for the Malaysia’s government political benefits … [30]
[30] Court book at pages 46 to 47.
In setting out the evidence given by the applicant in its decision record, the Tribunal noted at paragraph [17]:
17.The applicant said that in Kota Kinabalu – the capital of Sabah State – there are more foreigners than locals and once he was robbed by some Filipinos there. The forgot when, but said it was a long time ago.
At paragraph [36], the Tribunal then went on to consider the applicant’s claim to fear harm of being exposed to criminality from illegal immigrants.
Furthermore, in dealing with the complementary protection provisions, at paragraph [39], the Tribunal summarised the findings it had made, including that there was no real chance that the applicant will suffer harm from the authorities ‘in relation to criminal issues (and other matters) linked to illegal immigration if he returns to Malaysia, now or in the reasonably foreseeable future …’.
It is submitted for the Minister that, to the extent that ground 1 asserts that the Tribunal failed to consider the targeting of Dusun people by criminals other than illegal immigrants, that this was not a claim made by the applicant, nor one which clearly arose from the material.[31] For the following reasons, I agree.
[31] Minister’s Outline of Submissions filed on 15 September 2023 at paragraph [25].
As set out above, the claim expressly made by the applicant was that he was a ‘native’ person of North Borneo, Sabah and ‘lived in danger and exposed with various criminal issues caused by the illegals (sic) immigrants’ (emphasis added).[32] That claim was expressly addressed by the Tribunal at paragraph [36] of the Tribunal’s decision record. It was rejected by the Tribunal on the basis that the applicant’s evidence about this issue was vague. That finding was reasonably open on the material before the Tribunal. No jurisdictional error arises from the Tribunal’s treatment of this express claim.
[32] Court book at page 46.
To the extent that ground 1 is intended to be an assertion that the Tribunal failed to deal with a claim that the applicant feared harm as a Dusun person targeted by criminals generally (i.e. not criminals who were illegal immigrants), the issue arises as to whether such a claim, not expressly made, arises from the material before the Tribunal. For the following reasons, I find that it does not.
It is accepted that a failure to consider a claim which arises from the material or evidence before a decision maker would amount to a jurisdictional error, as it would constitute a failure to perform the statutory task.[33]
[33] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63].
The only reference to fearing harm from criminals in the applicant’s claim arises in the context of the claim that the said criminals are illegal immigrants who are allowed to remain in the country and who receive preferential treatment if they convert to Islam and support the government.[34] As outlined above, this claim was dealt with by the Tribunal.
[34] Court book at page 46.
No claim was made, nor, in my view, did a claim arise from the material before the Tribunal that the applicant feared harm from criminals generally.
Similarly, to the extent that in the Tribunal hearing, the applicant referred to being bullied and robbed by Filipinos, this too was said in the context of the capital of Sabah State having more foreigners than locals.[35] In any event, the Tribunal considered the applicant’s evidence in relation to these specific claims and rejected them on the basis of the applicant’s evidence.[36] In particular, the Tribunal considered that these incidents had not occurred.
[35] Tribunal decision record dated 19 March 2018 at paragraph [17].
[36] See, for example, Tribunal decision record dated 19 March 2018 at paragraph [36].
The Tribunal therefore dealt with the claims made and the findings made in relation to these claims were reasonably open to the Tribunal. There was otherwise no generalised claim to fear harm from criminals other than those referred to as ‘illegal immigrants’ brought into the country and permitted to stay as a means of assisting the Malay government.
For these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant claims that the Tribunal erred in that it failed to consider the risk of harm that the applicant would face in the future ‘given the widespread harm to native people such as myself’.
Contrary to the claim implicit in this ground, the Tribunal did in fact consider this claim.
At paragraph [32] of its reasons, the Tribunal expressly considered whether the applicant would face harm on the basis that he belonged to the Dusun race, as part of the bumiputera collective, and summarised the applicant’s claims in this regard. As noted, the Tribunal accepted that the applicant belongs to the Dusun race and accepted, having regard to country information, that benefits and programs that are intended to benefit indigenous groups, such as the one to which the applicant belongs, are mainly directed towards the now dominant groups of Malays and Muslims.[37]
[37] Tribunal decision record dated 19 March 2018 at paragraph [33].
However, the Tribunal then went on to consider the applicant’s own evidence that:
(a)he had not experienced problems in the past as a Dusun, other than that some employers prioritise foreign workers over bumiputeras;
(b)he had engaged in work in Malaysia; and
(c)he had also engaged in work whilst in Australia.[38]
[38] Tribunal decision record dated 19 March 2018 at paragraph [33].
Having regard to these factors, the Tribunal was not satisfied that the applicant’s ability to subsist if returned to Malaysia would be threatened, or that he would be discriminated against on the grounds of his ethnicity to a level which would amount to serious harm.[39] In coming to this view, the Tribunal also had regard to the most recent DFAT report.
[39] Tribunal decision record dated 19 March 2018 at paragraph [33].
At paragraph [34], the Tribunal therefore concluded that the applicant did not face a real chance of serious harm on the basis of his ethnicity if he were to return to Malaysia.
The Tribunal also considered the applicant’s claim that native people of Subah have been ‘kicked out of their own land by the government’ and concluded that the applicant did not face a real chance of harm as a result of an increased number of immigrants.[40]
[40] Tribunal decision record dated 19 March 2018 at paragraph [36].
The conclusions reached by the Tribunal were reasonably open to the Tribunal, including the applicant’s own evidence that he himself had not made any claims to have been removed from his land.[41]
[41] See Tribunal decision record dated 19 March 2018 at paragraph [36].
The Tribunal’s reasons are clear. It based its conclusions on the applicant’s own evidence, including the fact that his evidence was vague at times, as well as on the DFAT report referenced at paragraph [33]. The Tribunal discussed the DFAT report with the applicant at the hearing and was entitled to rely on that report which did not indicate that ‘people from the Dusun ethnicity face serious harm in Malaysia’ on the grounds of their ethnicity.[42]
[42] Tribunal decision record dated 19 March 2018 at paragraph [33].
For each of these reasons, ground 2 is not made out.
Ground 3
By ground 3, the applicant claims that the Tribunal applied the wrong test, namely, that it considered past harm but did not apply a forward-looking test when assessing the risk that the applicant might face if he were to return to Malaysia.
This ground is not made out on a fair reading of the Tribunal’s reasons. The Tribunal assessed the applicant’s claims by reference to what happened in the past. Indeed, in some instances, the Tribunal did not accept things that the applicant claimed in fact occurred. For example, as outlined above, the Tribunal did not accept that the applicant had been robbed and bullied by Filipinos as claimed.
However, it is also evident that the Tribunal quite properly turned its mind to consider whether the applicant would face a future risk of harm if he were to return to Malaysia.
At paragraph [7], the Tribunal sets out the relevant statutory test that it must apply in determining whether the applicant has a well-founded fear of persecution. It, with respect, correctly notes that a person will have a well-founded fear of persecution if ‘there is a real chance they would be persecuted for one of those reasons’ (emphasis added).
Similarly, at paragraph [8], the Tribunal set out the relevant statutory criteria in relation to the complementary protection provisions. Again, the Tribunal properly identified the forward-looking assessment required.
Throughout the Tribunal’s decision record, after assessing the applicant’s evidence regarding what he said occurred in Malaysia, the Tribunal then undertook a forward-looking assessment of the risks, if any, that the applicant would face if he were to return to Malaysia. See, for example:
(a)paragraphs [25] to [27], where the Tribunal assessed the risk of harm to the applicant from his claimed involvement with SSU-UK and SSANZ;
(b)paragraph [31], where the Tribunal considered the risk of harm arising from the applicant’s religion;
(c)paragraphs [34] and [35], where the Tribunal referred to the risk of harm that the applicant would face if he were to return to Malaysia on the basis of his ethnicity and on the basis of potentially being denied employment; and
(d)paragraph [39], where the Tribunal considered the test to be applied under the complementary protection provisions.
When read in this context and read fairly,[43] the Tribunal’s conclusions at paragraph [36] is an assessment of the harm that the applicant would face as a result of increased immigrants, increased crime or in relation to land issues if the applicant were to return to Malaysia.
[43] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 15 CLR 259, 291.
For each of these reasons, ground 3 is not made out.
CONCLUSION
As none of the grounds of review have been made out, I propose dismissing the applicant’s application.
The first respondent further seeks an order for costs.[44] As the applicant’s application was unsuccessful, I am satisfied that costs should follow the event. The first respondent seeks costs fixed in the sum of $6,000, which is below scale. I therefore find that it is appropriate to fix the costs to be paid by the applicant in the sum of $6,000.
[44] See Response filed on 24 April 2018.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 1 March 2024
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