CIM21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 651
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 651
File number(s): SYG 1375 of 2021 Judgment of: JUDGE DOUST Date of judgment: 7 May 2025 Catchwords: MIGRATION – protection visa - applicant citizen of Malaysia – applicant of Indian Malaysian ethnicity – applicant claimed discrimination in employment on basis of his religion – country information indicated risk of such treatment on basis of race – Tribunal erred in failing to consider whether applicant would face serious harm constituted by significant economic hardship for reasons of race – error material and therefore jurisdictional – writ of certiorari issued – writ of mandamus issued Legislation: Migration Act 1958 (Cth) ss 5J(5), 36, 36(2)(a), 36(2)(aa), 476(1) Cases cited: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707
Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza (2022) 291 FCR 568; [2022] FCAFC 89
Muin v Refugee Review Tribunal (2002) 68 ALD 257; [2002] HCA 30
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; [1998] FCA 1693
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 5 March 2025 Date of hearing: 11 December 2024 Place: Sydney The Applicant: In person, with the assistance of an Indian Tamil interpreter Solicitor for the First Respondent: Mr M Gao, HWL Ebsworth Lawyers The Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIM21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1. A writ of certiorari issue directed to the Administrative Review Tribunal quashing the decision of the Administrative Appeals Tribunal made on 30 June 2021 in Case number 1802614.
2. A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application, made on 1 February 2018, according to law.
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 DOUST:
INTRODUCTION
The applicant is a citizen of Malaysia who first arrived in Australia on 15 January 2017. On 9 December 2017, he lodged an application (the primary application) for a Subclass 866 Protection (Class XA) visa (protection visa) with the (then) Department of Immigration and Border Protection, now Department of Immigration and Multicultural Affairs (Department).
On 23 January 2018, the applicant’s application for a protection visa was refused (primary decision) by a delegate of the first respondent (delegate) on the basis that the applicant did not meet the criteria for the grant of that visa. On 1 February 2018, the applicant lodged an application seeking review of the delegate’s decision with the (then) Administrative Appeals Tribunal, now Administrative Review Tribunal (Tribunal). On 30 June 2021, the Tribunal affirmed the primary decision.
The applicant has applied to this Court for judicial review of the Tribunal’s decision pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act). This Court may only grant relief if the applicant can satisfy the Court that the Tribunal has fallen into jurisdictional error.
The issue that arises for determination in this case is whether the Tribunal fell into jurisdictional error by failing to determine the applicant’s claims about employment discrimination if he were returned to Malaysia. The applicant claimed he was at risk of such discrimination because of his religion, but the country information before the Tribunal indicated that the applicant’s race exposed him to a risk of that type. The Tribunal did not address that risk and consider whether it might constitute “serious harm” and “systematic and discriminatory conduct” for the purpose of considering whether Australia had protection obligations to the applicant. It erred in so failing, and that error was material to its decision. Accordingly, the Tribunal decision should be quashed and the matter remitted for reconsideration.
BACKGROUND AND RELEVANT FACTS
The applicant first arrived in Australia on 15 January 2017. On 13 April 2017, he applied for a student visa, which was granted in August 2017. On 9 December 2017, the applicant applied for the protection visa.
Applicant’s claims for protection
The applicant’s claims for protection as set out in his visa application are as follows (without alteration):
…I had a career as a football player in Malaysia. At that time, I had the opportunity to become a real athlete of the team. My career as an athlete is progressing because I get the real position of the team. But then it started getting worse because of the competition on that day, betting on a very high rate. On that day, my team was leading up to fraud by using money to buy athletes. At that time, I went to the bathroom to find the negotiation and I met the incident, both men were shocked but quiet and walked away. Then I went to tell the team leader to watch this athlete. Finally, the athlete was changed from this game. Make my team win. But the losing team has to pay big on this bet. I think it will end because then the athlete was fired from the team.
Two weeks later, a group of men came to me at the soccer field. They came up to me and attacked me until I got rid of them and my football team came to the event and took me to the hospital. I have a green bruise.
I was hit by a wooden stump that hit my body until my arm was fractured and I needed to stay home until the symptoms improved. However, they are still disturbing and will come to hurt me again, but my family has come before me. The group went out before they left. If they do not pay the damages they lost on this bet. I was going to die, so that's why I had to come to Australia to escape from danger. Because police or government officials can not protect me. Because they are very influential.
Thank you very much.
In the primary decision, the delegate concluded, when addressing the refugee criteria in s 36(2)(a) of the Act:
The applicant has not claimed to fear harm in Malaysia because of their race, religion, nationality, political opinion or as a member of a particular social group. There is no information before me to suggest the applicant will be targeted on their return to Malaysia for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act.
I am not satisfied that there is a real chance that, if the applicant was returned to Malaysia, they will be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s5H and the criterion in s36(2)(a) of the Act is not satisfied for this reason.
When addressing the complementary protection criteria in s 36(2)(aa) of the Act, the delegate set out, under the heading “Country Information”, some information concerning the Malaysian justice system. The information was attributed to a range of sources, including the Department of Foreign Affairs and Trade, the United States Department of State, and newspaper reports. That part of the primary decision included the following (footnotes omitted):
The Royal Malaysian Police (RMP) are a generally professional and effective force, but are prone to corruption. The RMP is responsible for law enforcement nationwide, and has demonstrated a willingness and capacity to tackle crime and enforce the law. In recent years, the RMP has launched crackdowns on criminal gangs, crime syndicates and loan sharks, while in July 2017 a human trafficking hotline was set up through which reports will be submitted to police. Credible sources say the RMP is a generally professional and effective force and is well-trained and equipped; however, it can be limited in its effectiveness in investigations, and officers receive limited training in areas like human rights. Malaysian law permits police to arrest and detain individuals for some offences without a warrant. A 2017 Transparency International survey found that 57 per cent of Malaysian respondents thought that corruption was a problem within the RMP – a result that was significantly above the regional average.
Government favouritism and blurred distinctions between public and private enterprises create conditions conducive to corruption. Officials regularly move back and forth between the private and public sectors, fostering opportunities for collusion and graft, while political parties are allowed to own or have financial holdings in corporate enterprises. A 2013 survey of executives from 100 listed companies found that 71 per cent of respondents believed that bribery and corruption are an inevitable cost of doing business in Malaysia. Transparency International’s 2016 corruption index showed Malaysia slipping slightly to 55th globally, while surveys show that Malaysians are sceptical of the government’s anti-corruption efforts. Journalists, activists and politicians who have reported or criticised high-level corruption have been harassed or prosecuted. In July 2017, a coalition of civil society organisations called for the formation of an independent body to tackle corruption in the country.
Malaysian law provides criminal penalties for corruption, but enforcement is typically focused on low level crime. Authorities do arrest and prosecute bribe-taking officials and individuals paying bribes, but corrupt senior officials or members of the governing coalition largely escape sanction. In August 2016, the top three officials at the Malaysian Anti-Corruption Commission (MACC) retired or transferred to other ministries in a move that was interpreted by opposition leaders and civil society organisations as a blow for transparency in the country. The MACC’s new leadership, however, has since conducted several high-profile cases and arrested senior officials from both the public and private sectors, including recovering RM114 million (AUD 33.6 million) from two top Sabah Water Department officials suspected of giving contracts to relatives and charging Abdul Aziz Zainal, the chair of Bank Rakyat, for abetting the theft of almost RM15 million (AUD 3.37 million). In July 2017, the Royal Malaysia Police (RMP) signed an anti-graft pledge which anti-corruption bodies and civil society organisations said was a significant step towards accountability. Rates of corruption in Malaysia remain relatively low in comparison to other countries in the region.
The majority of cases in Malaysian courts are processed in accordance with the rule of law. The Malaysian Constitution states all people are equal before the law and are entitled to equal protection, and defendants are presumed innocent until proven guilty. Trials are public and strict rules of evidence apply in court; however, the government does not consistently make evidence available to defence counsel. Defendants generally have adequate time to prepare a defence if they have the means to engage private counsel, although government legal aid resources are limited and often of poor quality. Defendants have the right to counsel at public expense if facing charges that carry the death penalty and may apply for a public defender in certain other cases. Authorities provide defendants free interpretation in Malay, Mandarin, Tamil and some other commonly used dialects from the moment they are charged. Credible sources say that Malaysian courts are relatively efficient in settling disputes.
Judicial independence can be compromised by extensive and increasing executive interference. Malaysia’s highest courts are influenced by political or religious affiliation. Politically-motivated verdicts do occur, and members of the bar, NGO representatives and other observers have cited a number of high-profile instances of arbitrary verdicts, selective prosecution and preferential treatment of some litigants and lawyers, such as the conviction of former deputy prime minister and opposition leader Anwar Ibrahim on charges of corruption and sodomy in 1999, 2000 and 2014. The Prime Minister plays a key role in the appointment of members of the Judicial Appointments Commission – the body which selects judges. Judges receive relatively low salaries, limited training, and appointments are often made directly from university. Defendants may appeal courts decisions to higher courts, but only if the appeal raises a question of law or if material circumstances raise a reasonable doubt regarding conviction or sentencing – restrictions that the country’s bar council has claimed are excessive.
Tribunal’s decision
The Tribunal concluded that the decision under review (that is, the primary decision) should be affirmed.
The Tribunal set out in its reasons (at [18]) that at the hearing the applicant claimed that there were some Muslim people who did not like him because he was a Hindu. They had gambled on him losing the soccer game, and he referred to them as a “mafia gang”. After he lost the game, the gang had followed him and demanded he pay them under threat of killing or torturing him. The applicant told the Tribunal that he had been told to pay the gang RM250,000.
The applicant also claimed that it is hard for Hindus and it would be easier if he was a Muslim, and because he is a Hindu he cannot get a good job and support his family.
In its reasons, the Tribunal:
(a)found (at [30]) that the applicant’s claims for protection suffered due to the changes in his account of events before the primary decision-maker and the Tribunal. The Tribunal noted that the applicant’s claims before the primary decision-maker did not include being forcibly removed from a sports field to another location where an alleged assault took place, or being extorted for a significant amount of money, being RM250,000;
(b)found that the applicant’s account was confusing and difficult to follow with obvious and significant inconsistencies, and that his oral evidence was embellished in response to questions (at [33]);
(c)found, in addition to those inconsistencies, the applicant’s submission that he did not try to access assistance in respect of the claimed demand for money, kidnapping and death threats directed to him and members of his family, and physical assault resulting in actual bodily injury, lacked credibility (at [34]).
The Tribunal considered the applicant’s claims against the refugee criteria in s 36(2)(a) of the Act, noting that he did not advance any claims in respect of his race, nationality, membership of a particular social group, or political opinions (at [35]).
The Tribunal found that there was no evidence the applicant had been or would be persecuted for reasons of religion and was not satisfied that there was a real chance that the applicant would face a real chance of harm due to his Hindu religion if he returned to Malaysia (at [37]).
The Tribunal then considered the applicant’s claims against the complementary protection criteria in s 36(2)(aa) of the Act, and was not satisfied that the applicant’s claims demonstrated that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm if he was removed from Australia to Malaysia (at [42]).
In particular, the Tribunal:
(1)accepted the applicant may have broken a shoulder but was not satisfied it was because of an assault by a criminal gang (at [39]);
(2)considered it more likely the applicant came to Australia for economic reasons than fearing a football match-fixing gang (at [40]); and
(3)was satisfied that the applicant could seek assistance and protection by police from any threats of harm or any criminal activity, rejecting the applicant’s claim that the police would not take action against gang members (at [41]).
RELEVANT LEGISLATION
Section 36 of the Act (as at the date of the Tribunal’s decision) relevantly provided, inter alia:
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
That is, in addition to satisfying security criteria in subsection (1B) and (1C), an applicant for a protection visa had to be either a “refugee” (as defined in s 5H of the Act), or a person at a real risk of suffering significant harm if removed to another country (the “complementary protection” criteria).
PROCEEDINGS BEFORE THIS COURT
Originating application
The applicant commenced the proceeding by an originating application (the originating application) filed on 22 July 2021 containing the following two grounds (reproduced without alteration):
Ground 1: The Tribunal made a finding without evidence in relation to the availability of police protection.
(a)The applicant claimed that he had been assaulted by members of a Muslim gang and had suffered a broken shoulder following the assault.
(b)The Tribunal rejected the applicant’s account, finding that if he had been assaulted, the ‘logical procedure’ would have been to approach the police for assistance (Tribunal decision [41]).
(c)The basis for that conclusion was the Tribunal’s finding that ‘the Malaysian government has initiatives against gang activity, and they do offer protection to people who are threatened’ (Tribunal decision [25]).
(d)However, the Tribunal did not cite any report or source in support of that finding and accordingly the inference arises that it was made without evidence.
Ground 2: The Tribunal failed to consider an integer of the applicant’s claims for protection, namely whether he faced harm in Malaysia as an Indian Malaysian.
(a)The applicant claimed that he had been subject of discrimination in Malaysia as a Hindu of Indian ethnicity – this extended to the denial of employment and other opportunities.
(b)The Tribunal addressed the claim by considering passages in the most recent report of the Department of Foreign Affairs and Trade concerning the situation of Hindus in Malaysia but not those which addressed the situation of Indian Malaysians, which indicated that ‘Many Indian Malaysians remain poor and unemployment in the Indian Malaysian community is comparatively high’ (DFAT [3.16]) and ‘Indian Malaysians comprise a disproportionately high number of incarcerated persons’ (DFAT [3.17]).
(c)The Tribunal failed to separately or cumulatively consider the harm that the applicant might face as an Indian Malaysian.
Although the Court made directions on 1 August 2024 for the applicant to file and serve any amended application with proper particulars of its grounds, along with any written submissions or additional evidence, the applicant has not filed any such further application or written submissions.
The applicant did, however, file an affidavit dated 21 August 2024 which attaches (without any accompanying narrative in the body of the affidavit to identify those documents as annexures) the following:
(1)a declaration made on 9 August 2024 by a person purporting to have witnessed an assault on the applicant with a wooden stick, and to have taken him for medical treatment after the assault;
(2)a certified translation of a Royal Malaysian Police report of an assault which allegedly took place on 14 July 2024;
(3)what appears to be the original of that police report;
(4)a medical report from a Kuala Lumpur hospital dated 22 July 2024, concerning the admission of a patient into neurosurgery on 14 July 2024;
(5)a report dated 10 August 2024 of a clinical psychologist concerning the applicant’s referral for treatment of depression; and
(6)a discharge note from a Kuala Lumpur hospital dated 22 July 2024.
At the hearing, the first respondent objected to the receipt of the affidavit on the grounds of relevance as the material contained within it post-dated the Tribunal’s decision. The affidavit was admitted on a provisional basis to give the applicant an opportunity in his submissions to demonstrate its relevance. The task of the Court is to consider whether the decision of the Tribunal was made in accordance with its statutory decision-making authority. That question is answered by reference to circumstances that existed at the time of the making of the decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 (EGZ17) at [28]. Accordingly, it is ordinarily only material that was before the Tribunal when it made its decision that informs the enquiry about the Tribunal’s exercise (or purported exercise) of its power. The applicant did not ultimately persuade the Court that the affidavit contained anything of relevance.
Hearing
The applicant had the assistance of a Tamil interpreter at the hearing.
When the applicant came to address the Court, he said little about the grounds in the originating application but raised some further issues orally, namely:
(1)that there was no evidence to support the Tribunal’s opinion in [40] of its reasons that it was more likely the applicant came to Australia for economic reasons rather than fearing a football match fixing gang (Ground 3);
(2)that the Tribunal did not give him sufficient time to obtain and tender medical documents (Ground 4); and
(3)that his brother had been assaulted and hospitalised and that would happen to him if he was returned to Malaysia (Ground 5).
The applicant was asked why he had not taken the opportunity that was afforded to him by the orders made by the Court on 1 August 2024 to file and serve an amended application containing the above grounds. The applicant referred to his brother having been assaulted. The applicant filed an affidavit dated 21 August 2024 (described above), which purports to attach documents concerning his brother’s injuries. He was therefore capable in August 2024 of preparing documents in support of his claim, and had no acceptable explanation for failing to set out his further grounds in an amended application in those circumstances. Nonetheless, the first respondent’s representative indicated that he was able to deal with Ground 4 in his oral submissions, and would make the same submission as to both why leave to rely on the new ground should be refused, and why the ground did not identify error. I was satisfied that the first respondent was capable of dealing with the arguments raised by the applicant’s further grounds, or of making any application if the Minister wished to make some further written submissions, and accordingly the applicant was permitted to address the Court as to the proposed additional grounds.
Subsequent to the hearing, it became apparent that it was necessary, in order to properly deal with Ground 2, for the Court to have the 2021 DFAT Country Information Report Malaysia before it (the 2021 DFAT report). That report was before the Tribunal, and Ground 2 alleges a failure by the Tribunal to have regard to material in that report. A further directions hearing was convened, in which the parties were given an opportunity to address the Court on whether that report should be received into evidence. There was no objection to the receipt of that report. The parties were given an opportunity to make further submissions as to Ground 2.
CONSIDERATION
Ground 1
The first ground of the application is set out above.
The applicant advances what is effectively a “no evidence” ground. A party seeking to advance such a ground must persuade the Court that there was “not a skerrick of evidence” to support the finding or conclusion which it attacks: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17] (Viane), citing Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at 587 [575].
In the particulars to this ground, the applicant pointed to [25] of the Tribunal decision, which was as follows (emphasis added):
The Tribunal put to the applicant that the Malaysian government has initiatives against gang activity, and they do offer protection to people who are threatened. The applicant replied, “not really” and went on to claim that within two to three days people are released and that some police are corrupt. The applicant was asked how he knew this would happen if he has not been to police himself. He said he knew of other cases where people had been let out of jail after paying the police.
The applicant argued that the Tribunal did not cite any source or report for the finding in [25] which appears in bold above, and so the inference arises that it was made without evidence.
The Court does not draw that inference. Rather, that part of [25] of the Tribunal’s reasons appears to be a reference to the “country information” referred to by the delegate in the primary decision, which is set out in these reasons above. That decision had been given to the applicant and was electronically attached by the applicant to his application to the Tribunal for review of the primary decision. The country information reproduced in the primary decision included the following passage (emphasis added):
The Royal Malaysian Police (RMP) are a generally professional and effective force, but are prone to corruption. The RMP is responsible for law enforcement nationwide, and has demonstrated a willingness and capacity to tackle crime and enforce the law. In recent years, the RMP has launched crackdowns on criminal gangs, crime syndicates and loan sharks, while in July 2017 a human trafficking hotline was set up through which reports will be submitted to police. Credible sources say the RMP is a generally professional and effective force and is well-trained and equipped; however, it can be limited in its effectiveness in investigations, and officers receive limited training in areas like human rights (footnotes excluded).
That material supported the conclusion in [25] of the Tribunal’s reasons. The Tribunal was entitled, in any event, to rely upon personal or specialised knowledge accumulated from the matters with which it deals: Muin v Refugee Review Tribunal (2002) 68 ALD 257; [2002] HCA 30 at [7] per Gleeson CJ; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza (2022) 291 FCR 568; [2022] FCAFC 89 at [44] – [54], just as the High Court found the Minister was entitled to rely upon such knowledge in Viane.
The country information reproduced above provides a logical and defensible basis for the proposition put by the Tribunal member to the applicant, even if the applicant disagreed with it.
The Tribunal was ultimately satisfied that the applicant could seek assistance and protection from the police in respect of any threats of harm or any criminal activity, and rejected the applicant’s claim that the police would not take action against gang members (at [41]). It was open to the Tribunal to so find.
Ground 1 does not disclose jurisdictional error.
Ground 2
Ground 2 of the application is also set out above.
The applicant asserts that the Tribunal erred by failing to consider the harm that the applicant may face as an Indian Malaysian.
Neither in the applicant’s application for the protection visa, nor in the course of the Tribunal’s review is there any reference to the applicant claiming to have a fear by reasons of his race.
However, the fact that claim was not expressly advanced by the applicant is not necessarily an answer to this ground.
The Tribunal was bound to consider not just the claims advanced by the applicant, but also those that arose on the material before the Tribunal: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 at [114]. That is because ultimately, the Tribunal was under a duty to fulfil its statutory obligation to review the decision before it: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; [1998] FCA 1693 at 63.
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE), the Full Court considered the Tribunal’s obligation to deal with the claims before it, both express and implied, and said the following (from [58]):
58.The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola(No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
59.There is some authority which might be taken to suggest that the Tribunal is never required to consider a claim not expressly raised before it. In SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301, membership of a ‘particular social group’ was put to the Tribunal as a Convention ground for apprehended persecution. The Tribunal was held ‘not obliged to consider whether some other social group might be constructed ...’ at [19]. That decision however turned upon particular circumstances. Its correctness is not in contention here. It does not establish a general rule that the Tribunal, in undertaking a review, can disregard a claim which arises clearly from the materials before it.
60.In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
61.In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
62.Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 at 8-9 [31]-[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114 [1]:
‘Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.’
63.It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.
Although the applicant had not advanced any claim that he would suffer persecution because of his race, the question whether the applicant had a well-founded fear of persecution by reason of his race was raised on the material before the Tribunal.
First, the applicant’s language, name and religion suggested that he was Indian Malaysian. The applicant had the assistance of a Tamil interpreter, and the Tribunal recorded the applicant’s Tamil ethnicity (at [17]). The applicant’s name appears to be Indian. The applicants’ claims were advanced on the ground that he was a Hindu and the 2021 DFAT report, in a passage set out at [27] of the Tribunal’s reasons, contains the statement “Most Hindus are Indian Malaysian”.
Second, there was some material before the Tribunal to indicate that Indian Malaysians suffered from the societal discrimination the applicant claimed. The 2021 DFAT report to which the Tribunal referred contained a section concerning Indian Malaysians, at [3.13] to [3.20], immediately before the section concerning religion that the Tribunal quoted in its reasons. That section referred to poverty and relatively higher levels of unemployment amongst Indian Malaysians, some Indian Malaysians not receiving university places despite high matriculation scores and reports of discrimination in obtaining rental accommodation.
The applicant’s claims that he would be shut out from employment sufficient to support his family found some support in the section of the 2021 DFAT report concerning Indian Malaysians. The report recorded (at [3.13]) that “more than 50 per cent of Indian Malaysians were employed in low-income jobs as of 2015, they also represented a high proportion of professionals…”. The 2021 DFAT report also recorded (at [3.16]) “(m)any Indian Malaysians remain poor and unemployment in the Indian Malaysian community is comparatively high. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera [ethnic Malays and indigenous groups]…”.
The Tribunal also set out (at [27] of its reasons) country data about Malaysian economic development indicating Malaysia is an upper middle income, export oriented economy, expected to progress to high income status between 2024 and 2028. That data indicated Malaysia’s economic performance had led to significant reductions in poverty. However, the data also indicated persistent inequalities for indigenous people and the poorest 40 percent of the population, and included the view of the UN Special Rapporteur on Extreme Poverty that Malaysia’s official poverty line was artificially low.
Taken together, that material should have alerted the Tribunal to the prospect that the applicant was of Indian ethnicity (or race), and that he had, to use the language in Dranichnikov cited at [60] of NABE above, applied the wrong label of religion, rather than race, to his claims of economic discrimination.
An unemployment rate of 4.7 percent, particularly when compared with a rate of 4 percent amongst the majority ethnic group does not paint an overwhelming picture of economic hardship and deprivation. The evidence before the Tribunal about the circumstances of Indian Malaysians by no means provided overwhelming support for the applicant’s claims about his likely fate upon his return. Nonetheless, it provided some support for the applicant’s claim that he would suffer discrimination, and be unable to obtain employment that was sufficient to provide for his family. Although not strong, the material before the Tribunal was sufficient to warrant the Tribunal dealing with the applicant’s claims.
Whilst the Tribunal recorded the applicant’s claim of employment discrimination, it did not address that claim. At [36], the Tribunal said:
36. The applicant made some claims regarding his religion, specifically that he was disliked by the Muslim members of his football team because of his Hindu religion. He also claimed that because he is Hindu, he cannot get a good job and support his family. The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances. These include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage. Whether the relevant nexus exists will often depend on an analysis of the motivation of the persecutor or, where the harm feared involves the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied. In this case there is no evidence the applicant has been or will be persecuted for reasons of religion.
The Tribunal recorded the applicant’s claims that he would suffer employment discrimination because he is a Hindu, and went on to observe that questions of religious persecution may arise in a variety of circumstances. The Tribunal referred to other possible examples of religious persecution, such as religion-based laws, apostasy and mixed marriage, and then discussed the approach to be taken to determine whether generally applicable laws are to be regarded as persecutory. Those questions, whilst perhaps apposite to other claims of religious based discrimination did not arise from the applicant’s claims.
The questions that arose for determination, in light of the material before the Tribunal, were:
(i)Whether the applicant’s claims that he would not be able to find employment if returned to Malaysia should be accepted. That is, whether there was a real chance of such treatment, such that the applicant’s fear was a “well-founded” one;
(ii)Whether the applicant’s claims were of treatment that could be regarded as “serious harm” within the meaning of s 5J(5) of the Act; and
(iii)Whether that treatment was by reason of a Convention ground, in this case, either religion or race.
The Tribunal did not address any of those questions.
The first respondent submitted that the information in the 2021 DFAT report had no application to the applicant because the material in the report concerning the incarceration rate of Indian Malaysians and that relating to the general employment situation of Indian Malaysians had no application to the applicant as he had not claimed to have been incarcerated, and had part-time work as a building technician in Malaysia. The respondent is correct so far as the applicant relied on the information concerning incarceration rates in the 2021 DFAT report. The applicant had not made any claim that he feared incarceration. However, although the applicant said he had been employed as a part-time building technician while he was in Malaysia, it did not necessarily follow that his claims about the future could be rejected without any consideration. Whilst the Tribunal may well have pointed to the applicant’s employment history in Malaysa, and indeed his employment in Australia, in answer to the applicant’s claim, it did not. It made no finding at all about whether the economic hardship the applicant feared was likely to eventuate if the applicant was returned to Malaysia, nor did it make any finding whether that treatment could, if it occurred, be regarded as sufficiently serious, or systematic and discriminatory, to satisfy the criteria for protection. The Tribunal’s conclusion in the final sentence of [36] of its reasons that “there is no evidence the applicant has been or will be persecuted for reasons of religion” does not expressly address those questions. It is not clear whether the answers to those questions are subsumed within that general conclusion.
The Tribunal did not address the applicant’s claims that he would suffer significant economic hardship upon his return to Malaysia. The Tribunal erred in doing so where that claim of likely harm had been squarely made by the applicant, and there was some material before the Tribunal to support the claim and to indicate such treatment may be for a Convention ground.
Whilst the material before the Tribunal which supported the applicant’s claims could not be fairly characterised as presenting a strong case that the applicant satisfied the criteria for protection, or even one that was more likely than not to succeed, the questions could not be regarded as beyond argument. Without trespassing on the function of the decision-maker, the Court cannot be satisfied that had the Tribunal not erred, but instead addressed the applicant’s claims, the outcome would have inevitably have been the same: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (LPDT) at [16].
The Tribunal’s error was material, and therefore, jurisdictional.
Ground 3
In this ground, the applicant alleges that there was no evidence to support the Tribunal’s opinion in [40] of its reasons, and that it was more likely the applicant came to Australia for economic reasons rather than fearing a football match-fixing gang (Ground 3).
The “not a skerrick” standard discussed above at [28] applies in respect of this ground. The ground has not been made out.
Immediately above the passage to which the applicant referred, the Tribunal recorded the applicant having made a number of references to not being able to find work in Malaysia, and to his employment in Australia as a solar technician. That material provided a basis for the Tribunal’s finding.
Even if the finding involved error, it was not material in the sense, discussed in LPDT, that there was a realistic possibility that the decision that was made could have been made differently without that finding. The applicant’s claims to protection (both as a refugee, or under the complementary protection ground) arose principally from the alleged assault by the gang in connection with football match-fixing. The Tribunal rejected the applicant’s claims to have been assaulted due to obvious and significant inconsistencies in the applicant’s account (at [30] – [33]), and his failure to access assistance in respect of that alleged attack (at [34]). The Tribunal’s view about the applicant’s likely economic imperatives was not expressed as a reason for rejecting the applicant’s claims about the assault. Rather, the discussion at [40] occurs after the Tribunal had already reached that conclusion.
Ground 3 does not disclose any jurisdictional error on the part of the Tribunal.
Ground 4
The applicant alleged that the Tribunal did not give him sufficient time to obtain and tender medical documents (Ground 4).
The first respondent submitted that the applicant should not be given leave to rely on this ground as there was no satisfactory explanation for why it had not been raised earlier, and because it has no merit.
The ground does not disclose any jurisdictional error.
At [19] of its reasons, the Tribunal records that the applicant offered to go to a doctor and have an x-ray to show to the Tribunal.
At [23] of its reasons, the Tribunal narrates a further exchange with the applicant concerning his injuries (emphasis added):
The Tribunal invited the applicant to provide more information about the physical harm he claimed to have suffered. He repeated that after a game he was taken to “another place” and beaten that resulted in a broken shoulder. He repeated his claim that he can provide documentary proof. The Tribunal put to the applicant that many people have injuries from playing sport and just because he had broken his shoulder, did not mean someone did it to him. The applicant claimed he had played for many years and had not suffered any injury. The applicant offered to provide all the documents “after lockdown ends” when he can send his brother to the house. The Tribunal commented that the applicant has a long time to obtain that evidence, and that he has been in Australia since well before COVID. The applicant said he got the Tribunal hearing suddenly and he had not focused on it. He said he left in a rush and left anything when he came to Australia.
Later, at [39], the Tribunal makes the following finding:
The Tribunal accepts the applicant may have broken a shoulder in the past but is not satisfied it was because of an assault by a criminal gang.
The critical issue for the Tribunal was not whether the applicant had suffered an injury (the existence of which, the Tribunal accepted medical records may show), but whether someone else had inflicted the injury. The Tribunal put to the applicant that it did not consider the medical records would show that someone else had inflicted the injuries. The applicant did not claim that the medical records to which he referred would contain other information that might show that the injuries had been inflicted by someone else.
Ground 4 does not disclose any jurisdictional error.
Ground 5
The applicant alleged that his brother had been assaulted and hospitalised and that he would also be subject to such treatment if he was returned to Malaysia (Ground 5).
The applicant effectively seeks to rely upon new evidence, being an alleged assault upon his brother in July 2024, in support of his claim for protection. The task of the Court is to consider whether there was jurisdictional error by the Tribunal having regard to the circumstances before the Tribunal at the time of its decision: EGZ17. The Court is not empowered to consider new evidence the applicant seeks to rely upon in respect of his substantive claim.
Ground 5 does not disclose any jurisdictional error.
CONCLUSION
As the Tribunal fell into jurisdictional error in the respect set out above, the decision should be quashed and the matter remitted for reconsideration. The Administrative Appeals Tribunal, which was originally named as second respondent, was replaced by the Administrative Appeals Tribunal as of 14 October 2024, and pursuant to Item 10 of Schedule 16 of the Administrative Review Tribunal (Consequential And Transitional Provisions No.1) Act 2024,the Administrative Review Tribunal is substituted for the Administrative Appeal Tribunal as a party to the proceedings. Item 25 of that schedule also empowers the Court to now make any orders that it could have made in relation to the Administrative Appeals Tribunal, against the Administrative Review Tribunal instead. Orders will issue accordingly in relation to the Administrative Review Tribunal.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 7 May 2025
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