CDF22 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1326

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

  1. 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).

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AGLC
CDF22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1326
Case
[2025] FedCFamC2G 1326
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Malaysia, sought judicial review of a decision by the Administrative Appeals Tribunal affirming a delegate's decision to refuse her a protection visa. The applicant contended that the Tribunal did not consider her evidence, unfairly assessed her credibility, and that she was denied procedural fairness. The applicant claimed that she was in debt to an illegal money lender in Malaysia and would suffer significant harm if returned.

The legal issues in this case revolved around whether the Tribunal made a jurisdictional error in its decision. Jurisdictional error includes identifying a wrong issue, ignoring relevant material, making an erroneous finding, or failing to observe procedural fairness. The Court's role was limited to reviewing whether the Tribunal made a jurisdictional error, not to re-evaluate the merits of the decision.

The Court examined the Tribunal's decision and found that it had considered the applicant's claims and evidence. The Tribunal summarised the applicant's claims and evidence, noted inconsistencies, and considered that the available evidence did not support a finding of significant harm if the applicant returned to Malaysia. The Court held that the Tribunal had properly considered the evidence and did not make a jurisdictional error. Consequently, the Court dismissed the application for judicial review.

The Court did not find merit in the applicant's arguments that the Tribunal failed to consider her evidence or unfairly assessed her credibility. The Court concluded that the Tribunal's decision was based on a fair assessment of the evidence presented. As a result, the application was dismissed, and the Tribunal's decision affirming the delegate's refusal to grant the applicant a protection visa remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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]).