CDF22 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1326
•18 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDF22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1326
File number(s): SYG 889 of 2022 Judgment of: JUDGE SKAROS Date of judgment: 18 August 2025 Catchwords: MIGRATION – whether the (then) Administrative Appeals Tribunal erred in not granting the applicant a protection visa – where the applicant claims the Tribunal did not consider their evidence, unfairly assessed their credibility, and that they were denied procedural fairness – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 422B, 425, 499 Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4
Applicant S v Minister of Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25
Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546
LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 7 August 2025 Place: Parramatta Solicitor for the Applicant: Self-represented Litigant Solicitor for the First Respondent: Mr Djasmeini, Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 889 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDF22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
18 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister of Immigration and Citizenship’.
2.The application filed on 21 June 2022 is dismissed.
3.The applicant pay the First Respondents costs fixed in the amount of $5, 900.
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 SKAROS
By application filed on 21 June 2022 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 7 June 2022. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) not to grant the applicant a protection visa (Subclass 866) (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The following background is derived from information in the Court Book and the Minister’s written submissions and is not in dispute.
The applicant is a citizen of Malaysia. She first arrived in Australia on 18 February 2017 as the holder of an Electronic Travel Authority (Class UD) (subclass 601) visa.
On 11 May 2018, the applicant applied for a protection visa.
On 30 November 2018, the delegate refused to grant the applicant the protection visa.
On 10 December 2018, the applicant sought review of the delegate's decision.
On 9 March 2022, the Tribunal invited the applicant to attend a hearing by telephone on 28 March 2022.
On 28 March 2022, the applicant attended the scheduled hearing before the Tribunal by telephone to give evidence and present arguments relating to her case with the assistance of a Malay interpreter.
On 7 June 2022, the Tribunal affirmed the delegate's decision, which was sent to the applicant by email on 20 June 2022.
THE TRIBUNAL’S DECISION
The dispositive issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) and 36(2)(aa) of the Act.
The Tribunal set out the refugee and complementary criteria. In accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal said it had taken into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they were relevant to the decision under consideration.
The Tribunal identified the country of reference and ‘receiving country’ of the applicant as Malaysia. The Tribunal also summarised the applicant’s migration history (at [14]), claims for protection (at [15]) and evidence at hearing ([16]–[23]).
The Tribunal outlined the claims for protection made by the applicant:
•She has accumulated a debt at the National Higher education Fund (PTPTN) with arrears of RM 20,649 (Malaysian Ringgits)
•She became guarantor for her partner’s loan RM 8,000 from a loan shark and she need to repay RM 17,880.
•She will be blacklisted, and she has got a debt with the PTPTN Government money and cannot borrow anymore.
•The loan shark will be looking for her because her partner did not pay his debt.
In considering the evidence provided at the hearing, the Tribunal also considered country information before it pertaining to Royal Malaysia Police and Loan Sharks in Malaysia.
The Tribunal expressed concerns about the applicant’s claims to have acted as a guarantor for a loan, however found that she did have debts in Malaysia that she found difficult to repay: at [25].
The Tribunal noted that while the applicant did not make any specific claims of fearing persecution due to race, religion, ethnicity, membership of a particular social group or political opinion, the Tribunal nevertheless considered her submissions that she experienced difficult financial circumstances as a debtor. In doing so, the Tribunal set out the meaning of the expression ‘for reasons of ... membership of a particular social group’ as considered by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Applicant S v Minister of Immigration and Multicultural Affairs (2004) 217 CLR 387. The Tribunal noted that it was not sufficient that a person be a member of a particular social group and have a well-founded fear of persecution; the persecution must be for reasons of the person’s membership of the particular social group. The Tribunal considered that the applicant was a person who owed debt to an illegal money lender in Malaysia.
The Tribunal subsequently noted that Malaysia has government services available to those in debt, including to illegal money lenders. The Tribunal found there was nothing to suggest the applicant would not be able to access these services and authorities. The applicant outlined concerns about possible harassment by a loan shark, however, the Tribunal considered that the apprehension she described did not amount to a fear of persecution and the Tribunal was not satisfied there was a real risk the applicant would be persecuted in Malaysia: [28]–[29].
The Tribunal considered, on the claims and evidence before it that the applicant would not suffer serious harm if she returned to her home country, and there were protections in place. The Tribunal considered whether the applicant would face significant economic hardship that would threaten her capacity to subsist. In this regard, the Tribunal noted the applicant had been working in Australia for several years and had been able to able to use her personal resources to live and work in a foreign country without being a native English speaker. While in Australia the applicant would have acquired skills that could be utilised in her home country, including a level of English language proficiency as demonstrated at the Tribunal hearing where she was able to participate without the assistance of an interpreter.
In her application for protection, the applicant claimed she would be financially blacklisted and unable to borrow in future. The Tribunal accepted that may be the case, but it considered this would be a possibility for anyone with unpaid loans and a poor credit history and would not amount to a real risk of significant harm to the applicant.
The Tribunal was not satisfied that there was a real chance that on return to Malaysia, now or in the reasonably foreseeable future, the applicant would face harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a).
The Tribunal then considered whether the applicant satisfied the complementary protection criteria. The Tribunal defined the term significant harm as the arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal noted the applicant’s claim that in Malaysia the loan shark would keep calling her, come to her house, blackmail her (though she did not indicate how or why), and threatened her: at [32]. The applicant claimed that she had not contacted Malaysian police in the past, as it was her fault for borrowing from illegal money lenders.
The Tribunal considered country information regarding illegal money lenders and their practices in Malaysia and accepted the applicant may face a level of threat and intimidation. The Tribunal noted however that there are protections available in her home country and services she could access to assist with outstanding debts. For these reasons, the Tribunal was not satisfied there is a real risk the applicant will suffer significant harm if she returns to her home country.
The Tribunal was also not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal ultimately affirmed the decision not to grant the applicant a protection visa.
APPLICATION TO THIS COURT
The applicant filed the originating application for judicial review, and accompanying affidavit, on 21 June 2022. As the Tribunal’s decision was already in the Court Book, filed by the Minister on 14 September 2022 and marked Exhibit CB, it was not necessary to take the affidavit into evidence.
The parties were notified of the hearing on 23 July 2025.
The Minister filed their written submissions on 29 May 2025. The applicant did not file any written submissions.
At the hearing on 7 August 2025, the applicant appeared in person. The Minister was represented by Mr Djasmeini of Minter Ellison.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
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: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].
Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
GROUNDS OF REVIEW
The application for judicial review advanced the following grounds (without alteration):
1. The Tribunal was made decision without looking at the evidence of the applicant
2. The decision under review was affirmed without giving me a considration or extention of time to come with more evidences to make strong my claims for a portecition visa.
3. The decision made is unfair to me and 'Im seeking for Judical review and set a side the decision made by tribunal.
4. Seeking for a consent order to hear my matter again for review.
In oral submissions the applicant raised an additional ground, that the Tribunal made an unfair assessment of her credibility due to inconsistencies in her claims which she asserts were due to stress; ‘I was stressed, scared and doing my best’.
Ground one
By ground one, the applicant contends that the Tribunal, in making its decision, failed to have regard to the evidence. When asked at the hearing which evidence she believed the Tribunal had failed to consider, the applicant said the documents she provided about the loan. The applicant said she informed the Tribunal about loan sharks in Malaysia, but it did not take her concerns seriously, it dealt with her claims as a money problem and did not consider that she belonged to a social group that needed protection.
A fair reading of the Tribunal’s reasons disclose that it had express regard to the claims made in the protection visa application as well as the evidence provided at the hearing in support of those claims. As set out in the Minister’s submissions, the Tribunal summarised the applicant's claims and evidence (at [15]–[23]), noted the inconsistencies in her evidence (at [25]) and considered that the evidence available did not support a finding that the applicant would suffer or that there was a real risk that she would suffer significant harm if she returned to Malaysia (at [28]–[29]; [32]).
In support of the claim that she had accumulated a debt with the National Higher Education Fund (PTPTN), the applicant provided to the Department a document, dated 14 November 2016, which was untranslated: CB 60–61. The Minister submitted that the applicant did not provide any other documentary evidence to the Tribunal and that in her response to the hearing invitation, dated 15 March 2022, she indicated that she did not intend to rely on any documents: CB 131.
The Minister submitted that there is no general duty upon the Tribunal to obtain translation of documents: Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [25] per Wilcox, Whitlam and Marshall JJ. This is particularly so, says the Minister, where:
(1)The applicant had a substantial amount of time to obtain translations, noting that the protection visa application was made 2018;
(2)In the protection visa application, the applicant was advised that 'if your documents are not in English, please also provide certified English translations…' (CB 56);
(3)The Tribunal informed the applicant in its hearing invitation that 'any documents or written submissions sent to us should be in English or translated by a qualified translator' (CB 119); and
(4)There is no evidence that the applicant explained the relevance of the documents to the Tribunal or sought additional time in which to obtain translations.
The Minister also submitted that it was not mandatory for the Tribunal to refer to every item of evidence in its reasons: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]–[47] per French, Sackville and Hely JJ. It was also submitted that the Tribunal had accepted the applicant’s claim that she owed debts.
While the Tribunal may not have referred specifically to the loan document provided with the application, it was apparent (even though the document was untranslated) that it related to the applicant’s claim that she had accumulated a debt with the PTPTN with arrears of RM 20,649: CB 53, 80. This is because there was sufficient information on the untranslated document, including in the document title indicating PTPTN and the amount of RM 20,649 which would have enabled the Tribunal to link the document to the applicant’s claim about the debt with PTPTN.
The applicant’s claim in respect of the debt with PTPTN, including the amount of RM 20,649, was referred to by the Tribunal at [15] of its decision. The Tribunal plainly considered the applicant’s claims to have debts in Malaysia and, notwithstanding its concerns regarding inconsistencies in her evidence, was prepared to accept at [24] that she had debts in Malaysia that she found difficult to repay.
There is no evidence before me, and the applicant has not contended, that a translated version of the document regarding the claimed debt with PTPTN would have advanced her claims before the Tribunal. In any case, the Tribunal was prepared to accept that the applicant had debts in Malaysia that she had difficulties repaying.
Ground one does not disclose any jurisdictional error.
Grounds two and three
By ground two, the applicant alleges that the Tribunal affirmed the decision under review without allowing her additional time to provide further evidence to strengthen her claims for protection. By ground three, the applicant alleges the decision was unfair.
The Minister addressed grounds two and three together in their written and oral submissions. Given both grounds appear to allege a denial of procedural fairness, it is appropriate to deal with the grounds together.
As submitted by the Minister, there is no evidence before the Court which indicates that the applicant sought an extension of time to provide further evidence or that the any such request had been denied by the Tribunal.
As to procedural fairness obligations, the Minister submitted that the Tribunal complied with its obligations under Division 4 of Part 7 of the Act, which includes an exhaustive statement of the natural justice hearing rule: s 422B of the Act.
As noted by the Minister, the applicant was invited to attend a hearing before the Tribunal to discuss the dispositive issues in the review, which were the same as those before the delegate: s 425 of the Act. The applicant attended the hearing with the assistance of an interpreter in the Malay language. There is no evidence before me which suggests that the applicant was not afforded the opportunity to give evidence and present arguments in relation to the determinative issues in the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The Minister also submitted that the Tribunal put to the applicant a number of issues, including that there were services in Malaysia that could assist people with debts (at [18]); that country information indicated that Malaysian police responded to threats and intimidation from loan sharks (at [21]); her claim in her protection visa application to have been a guarantor for her partner's loan (at [19]); and that she had first applied for a protection visa on 16 May 2017, but that application was invalid and she had remained in Australia unlawfully until she reapplied for a protection visa in May 2018 (at [23]).
I accept the Minister’s submission that this information did not enliven any obligation under ss 424A or 424AA of the Act, and did not in its terms contain a rejection, denial or undermining of the applicant's claims for protection: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17]–[18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
The applicant has not established any failure on the part of the Tribunal to comply with its procedural fairness obligations.
Grounds two and three have not been made out.
Ground four
Ground four seeks for a consent order to remit the matter for review.
As submitted by the Minister, this is not a proper ground of review as it does not articulate or establish any jurisdictional error by the Tribunal.
Ground four does not establish error.
Further ground
In oral submissions, the applicant contended that the Tribunal made an unfair assessment of her credibility due to inconsistencies in her claims which she asserts were due to stress.
The Minister correctly submitted that credibility is a matter for the Tribunal to determine and that the Tribunal’s findings were open for it to make. In any event, the Tribunal at [25] of its decision was prepared to accept, despite credibility concerns, that the applicant had debts in Malaysia that she found difficult to repay.
Accordingly, the applicant’s submissions amount to no more than disagreement with the Tribunal’s decision and invites the Court to engage in impermissible merits review.
Ground five does not disclose any jurisdictional error and is dismissed.
CONCLUSION
As the applicant has not established jurisdictional error on the part of the Tribunal. It follows, that the application for judicial review must be dismissed.
COSTS
The Minister sought an order for the award of costs in the fixed amount of $5,900 in the event the applicant was unsuccessful. When invited to make submissions on the Minister’s request for a costs order, including the amount sought, the applicant was unsure as to what to say on this issue.
I have considered the application, and I am satisfied that costs should follow the event and that the amount sought by the Minister is reasonable having regard to the work undertaken on the matter up to the final hearing. For these reasons, I will order that the applicant pay the first respondent’s costs fixed in the sum of $5,900.
The application is dismissed with costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 18 August 2025
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