CVP19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1552
•25 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CVP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1552
File number(s): MLG 2331 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 25 September 2025 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal affirming decision not to grant Protection (subclass 866) visa – whether Tribunal failed to consider integer of claim – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 36, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 1.10, 8.09; sch 2 pt 3 div 1
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration v SZIAI (2009) 259 ALR 429Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 18 September 2025 Place: Melbourne Applicants: Appeared on own behalf Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2331 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVP19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
25 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed on 22 July 2019 (amended on 18 September 2025) is dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the amount of $7,467.00.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal).
The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (Delegate), to refuse to grant the Applicant a Protection (subclass 866) visa (Protection Visa).
This matter was:
(a)allocated to the Court as presently constituted on 28 July 2025;
(b)listed for hearing on 31 July 2025; and
(c)heard on 18 September 2025; proceeding in person at the Court’s Melbourne Registry.
To obtain relief from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed jurisdictional error in affirming the decision of the Delegate to not grant a Protection Visa.
The Application for a Visa
The Applicant is a citizen of Malaysia[1] who arrived in Australia on 18 October 2016, as the holder of a UD-601 Electronic Travel Authority visa.[2]
[1] Court Book (CB) 18.
[2] CB 25, 83.
On 19 December 2016, the Applicant lodged an application for a Protection Visa.[3] With her application, the Applicant provided a pro-forma petition memorandum and news articles to support her claims.[4]
[3] CB 1-41, 83.
[4] CB 47-75.
In the Applicant’s Protection Visa application, the following claims were made, on the basis of which she ostensibly feared harm in her country of origin:[5]
(1)the Applicant was a volunteer of Sabah Sarawak Union- United Kingdom (SSU-UK) and collected signatures for a United Nations petition which impelled the British Government to review the validation of the 1963 Malaysian Agreement;
(2)human right abuses have occurred in Malaysia, due to violation and ignorance of the 1963 Malaysian Agreement;
(3)the Applicant did not have basic rights such as freedom of expression and speech;
(4)the Applicant was threatened and accused of being secessionist. She was threatened by the Malaysian government and some volunteers were charged under the Sedition Act 1948 for collecting petition signatures and calling for Sabah Sarawak rights;
(5)the Malaysian government administered ethnic cleansing by allowing illegal immigrants from the Philippines to enter Sabah, provided they were willing to convert to Islam and vote for the ruling party;
(6)she could not relocate due to the racist environment and discrimination throughout Malaysia;
(7)Sabah was no longer safe as the natives were victims of various crimes caused by the illegal immigrants such as robbery, fighting and sexual abuse. Police reports were made, but little action was taken; and
(8)the authorities in Malaysia would not protect people like her who were against the Malaysian government.
[5] CB 36-8, 84.
Decision by the Delegate
On 22 March 2017, the Delegate refused to grant the Applicant a Protection Visa.[6]
[6] CB 79-81.
The key conclusions drawn by the Delegate in deciding not to grant the Protection Visa, can be summarised as follows:[7]
[7] CB 83-92.
(1)the applicant provided vague detail and no evidence to support her claims that she was
involved in SSU-UK movement or volunteered for collecting petition signatures in Malaysia;
(2)the Applicant did not give any timeframe for the activities she was supposedly involved in;
(3)her claims of illegal migration may have been true, however her claims that the Malaysian government was converting those illegal immigrants to ‘Islam’ and giving them identity card for their vote in favour of the ruling party was not substantiated by any evidence or country information. On the contrary, the majority of the illegal immigrants were already Muslim;
(4)there was not a known widespread political or criminal threat in the Sabah province;
(5)country information indicated that though there were cases of political persecution reported in Malaysia, it was generally targeted towards the high-profile opposition leaders. General opposition party members were able to undertake political activities and were not at risk of official discrimination on a day-to-day basis;
(6)the Applicant claimed she would be subjected to racial discrimination if she relocated to another part of Malaysia but did not detail any prior experience of persecution, threat or harm in Malaysia due to her race;
(7)the Applicant departed Malaysia without hindrance from the authorities which suggested that she was not of adverse interest to the Malaysian authorities;
(8)the Applicant was not at risk of harm from the Malaysian authorities or anyone else in Malaysia for reasons of her political activities or for any other reason;
(9)there was no real chance of persecution for one or more of the reasons
mentioned in s5J(1)(a) of the Migration Act 1958 (Cth) (Act); and
(10)the applicant’s circumstances did not give rise to a real risk that she would be subjected to any form of significant harm.
The Delegate was therefore not satisfied that the Applicant had a real chance of being persecuted for a refugee convention reason under s 36(2)(a) of the Act, nor that there was a real risk of significant harm for the purposes of complementary protection under s 36(2)(aa). The application for a Protection Visa was accordingly refused.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Application to the Tribunal
On 8 April 2017, the Applicant applied to the Tribunal for review of the Delegate’s decision.[8]
[8] CB 98-100.
On 12 February 2018, the Applicant attended the scheduled hearing in person with the assistance of a Malay interpreter.[9]
[9] CB 172-3.
On 20 March 2018, the Tribunal wrote to the Applicant, inviting her to comment or respond to information by 3 April 2018 (s 424A Invitation):[10]
[10] CB 178-9.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•The information is that the Tribunal has received around 70 review applications (including yours), from applicants whose protection visa applications contain very similar claims to your protection claims in key respects. Specifically your claim that you volunteer for the Sabah Sarawak Union — United Kingdom (SSU-UK) organisation to collect signatures to send to the United Nations to ask the British Government to review the validity of the "Malaysia Agreement 1963"
This information is relevant to the review because, subject to your comments, it may indicate that you have not been truthful about your claims to have volunteered with the SSU-UK, given the implausibility of 70 or so other protection visa applicants having very similar claims. If so, this would lead the Tribunal to not accept your claims to have volunteered with the SSU-UK and it would not be satisfied that you face a well-founded fear of persecution on return to Malaysia or face a real risk of significant harm if removed from Australia to Malaysia on this basis. If so, this would be the reason, or part of the reason, for affirming the decision under review.
On 29 March 2018, the Applicant responded to the s 424A Invitation.[11] The Applicant claimed that “her participation… [in the SSU-UK movement] was sincere and vital”. The Applicant provided information of the movement’s intent and detailed her continued involvement within Australia, activities focused upon raising awareness of “the current situation [in] Saban Sarawak” and garnering signatures for a petition calling for “Sabah Sarawak Rights”. Ostensibly to reinforce her claim for protection, the Applicant referenced 70 similar protection claims.
[11] CB 180-2.
On 6 April 2018, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Protection visa.[12] The Applicant was notified of the Tribunal’s decision on 9 April 2018.[13]
[12] CB 189.
[13] CB 185-8.
First Tribunal Decision
The Tribunal’s factual conclusions can be summarised as follows:[14]
(a)the Applicant did not express any fears of returning to Malaysia due to her involvement with the SSU-UK, and her evidence confirmed she had not received any threats or complaints from the Malaysian authorities since she was involved in the group;
(b)the Applicant did not have a real chance of serious harm arising from her membership of the SSU-UK for any of the convention reasons in s 5J(1)(a) or any other claimed reasons, if she were to return to Malaysia;
(c)the Applicant did not have a real chance of serious harm arising from her economic circumstances for the convention reasons in s 5J(1)(a) or any other claimed reasons, if she were to return to Malaysia; and
(d)there was no risk that the Applicant would be significantly harmed upon return to Malaysia.
[14] CB 219-223.
Based on the findings made by the Tribunal it was not satisfied that the Applicant satisfied ss 36(2)(a)-(aa) of the Act and was accordingly not regarded a person to whom Australia owed protection obligations.
First Judicial Review application
On 20 April 2018, the Applicant applied to this Court for judicial review of the Tribunal’s decision dated 6 April 2018 (First Judicial Review Application).[15]
[15] CB 202-7.
On 26 June 2018, consent orders were made:
(1)that the decision of the Second Respondent dated 6 April 2018 (Administrative Appeals Tribunal number 1707567) be set aside; and
(2)that the matter be remitted to the Second Respondent for reconsideration according to law.
The Court noted:
The First Respondent concedes that the decision of the Second Respondent (Tribunal) dated 6 April 2018 is affected by jurisdictional error on the basis that the Tribunal failed to address one of the Applicant's claims, namely her claim in her original Visa application that it "is no longer safe in Sabah as the natives in Sabah have been exposed to various criminal activities/issues caused by illegal immigrant such as robbery, fighting, sexual abuse and kidnapping", which amounts to jurisdictional error (see Htun v Minister for Immigration andMulticultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1).[16]
[16] CB 227-8.
REMITTAL – SECOND TRIBUNAL DECISION
On 28 June 2018, the Tribunal wrote to the Applicant notifying her that the then Federal Circuit Court had remitted the matter to the Tribunal for reconsideration and that the case would be allocated to a member. The Tribunal provided the Applicant with an Appointment of Representative/Appointment of Authorised Recipient and a Change of Contact Details form.[17]
[17] CB 231-6.
On 3 July 2018, the Applicant returned the completed forms; she did not appoint a representative.[18]
[18] CB 242-6.
On 21 February 2019, the Tribunal invited the Applicant to attend a hearing on 2 May 2019. With the invitation the Tribunal provided a Response to Hearing Invitation form [19]
[19] CB 248-56.
On 20 March 2019, the Applicant responded to the hearing invitation and confirmed her attendance.[20]
[20] CB 257-9.
On 2 May 2019, the Applicant attended the scheduled hearing in person with the assistance of a Malay interpreter.[21] The Applicant tendered several documents at the hearing, which were mainly news articles.[22]
[21] CB 260-2.
[22] CB 264-94.
On 4 June 2019, the Tribunal provided the Applicant with a copy of the recording from the hearing.[23]
[23] CB 297.
On 30 June 2019, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Protection visa.[24] The Applicant was notified of the Tribunal’s decision on 2 July 2019.[25]
[24] CB 303-24.
[25] CB 298-302.
The Tribunal’s decision is 25 pages long and spans 98 paragraphs.
At paragraphs 11(c)-(h) of the Minister’s written submissions, filed 4 September 2025, the Tribunal’s reasons are summarised. The Court as presently constituted has carefully read the Tribunal’s reasons and accept the summary as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment (citations omitted).
11.
…
(c)in relation to the Applicant's claims of being an ethnic Kadazan and a Christian, noted the Applicant had not claimed to fear harm for either reason, was not satisfied she would be denied employment for either reason, was satisfied her capacity to subsist would not be threatened due to discrimination, and found she did not face a real chance of serious harm on the basis of her ethnicity or religion;
(d)in relation to the Applicant's claims in relation to her involvement with the SSU-UK:
i.accepted she had been a member of the SSU-UK in Malaysia and had signed a petition calling for the conferral of rights on the indigenous population of Sabah and Sarawak;
ii.found the Applicant had not experience any harm, threats, or discrimination due to her activities with the SSU-UK, found she had not undertaken any significant or highly public activities in Australia and that there was no formal record of her membership to the Australia SSU-UK party, found nothing had happened to her as a result of her involvement in the SSU-UK and that it was unlikely she was recorded as a member or that her involvement was known by the authorities, but that even if her involvement was or became known, she had such an extremely low profile the Tribunal was not satisfied she would face a real chance of serious harm as a result;
iii.considered country information that indicated most lower level, and even higher profile, activists who faced charges had those charges dropped, and country information which suggested the new government had a less authoritarian approach to Sabah Sarawak activists and that low profile individuals faced a low risk of official discrimination; and
iv.was not satisfied the Applicant would face a real chance of serious harm due to her involvement with the SSU-UK.
(e)in relation to the Applicant's claims of economic hardship, accepted the Applicant's earnings in Malaysia might be lower than what she could earn in Australia, but was not satisfied there was a real chance she would be denied the capacity to earn a livelihood or that her capacity to subsist would be threatened;
(f)in relation to the Applicant's claims of harm in relation to illegal immigrants or crime in Sabah, considered that country information suggested there had been an increase in immigration by Muslims into Sabah, and that while petty crime was common, violent crime was relatively uncommon with the exception of high risk kidnapping in Eastern Sabah. The Tribunal noted the Applicant's evidence was that she is from Western Sabah, such that the Tribunal was not satisfied she faced a real chance of serious harm at the hands of immigrants, noting it did not consider "petty crime" to amount to serious harm. Additionally, the Tribunal found that any risk that existed was shared by the population in general;
(g)considered the Applicant's claims individually and cumulatively and was not satisfied she faced a real chance of serious harm for any reason, and did not meet the criterion in s 36(2)(a) of the Act; and
(h)considered the Applicant's claims with reference to the complementary protection criterion and found, for the same reasons, that the Applicant was not at a real risk of significant harm if returned to Malaysia, and did not meet the requirements in s 36(2)(aa) of the Act.
Based on the findings made by the Tribunal it was not satisfied that the Applicant satisfied ss 36(2)(a)-(aa) of the Act and was accordingly not regarded a person to whom Australia owed protection obligations.
Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant’s Protection Visa.
PROCEEDINGS IN THIS COURT
The application
On 22 July 2019, the Applicant applied to this Court for judicial review of the Tribunal’s decision dated 30 June 2019 (Originating Application). The application is brought pursuant to s 476 of the Act.
The Originating Application sought to quash the decision of the Tribunal (writ of certiorari), however was deficient in seeking a writ of mandamus. At the hearing, to properly invoke the jurisdiction of the Court, the following Order was made:
Leave is granted to the Applicant to amend her application for judicial review,
filed 22 July 2019, to include a final order that a writ of mandamus be directed to
the Tribunal requiring them to determine the Applicant’s application according to
law.The Originating Application contains four grounds of review (addressed below).
Case management
On 18 March 2020, the First Respondent (Minister) filed a response, submitting that the Tribunal’s Decision was not affected by jurisdictional error.
On 16 December 2021, the Minister filed a bundle of relevant documents (Court Book).
On 18 February 2025, a Registrar of this Court issued an Order (Registrar’s Order) directing the:
(a)Applicant to file any amended application with proper particulars, written submissions and further evidence at least 28 days before the hearing; and
(b)Minister to file any written submissions and further evidence in reply at least 14 days before the hearing.
The Applicant did not file an amended application nor did she provide further particulars of the grounds for judicial review, despite being invited to do so.
On 4 September 2025, the Minister complied with the Registrar’s Order by filing written submissions.
On 17 September 2025 the Applicant filed an affidavit (Exhibit A1) complaining that the Minister’s submissions, filed so close to the hearing, interrupted her concentration and preparation for the hearing. Noting that the Minister was complying with Orders of this Court, there was nothing improper with the Minister’s submissions or the timing of the filing of them.
Therefore, the materials before the Court are as follows:
(a)the application for judicial review filed 22 July 2019;
(b)a Court Book numbering 371 pages filed 16 December 2021 (marked as Exhibit R1); and
(c)an outline of written submissions filed by the Minister on 4 September 2025.
The judicial review hearing
At the hearing, the Applicant appeared before the Court on her own behalf with the assistance of a Malay interpreter. The Minister was represented by Mr Jared Mintz, Senior Associate at Clayton Utz.
The Court confirmed with the Applicant that she had received a copy of the Court Book and the Minister’s written submissions.
To assist the Applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(1)where the decision-maker identifies the wrong issue or asks the wrong question;[26]
(2)where the decision-maker ignores relevant material;[27]
(3)where the decision-maker relies on irrelevant material;[28]
(4)where the decision-maker fails to follow mandatory procedures;[29]
(5)where the decision-maker shows actual or apprehended bias;[30] and
(6)where the decision is illogical, irrational or unreasonable.[31]
[26] Craig v State of South Australia (1995) 184 CLR 163, 198.
[27] Craig v State of South Australia (1995) 184 CLR 163, 198.
[28] Craig v State of South Australia (1995) 184 CLR 163, 198.
[29] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294, [207]-[208].
[30] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80, [2].
[31] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437, [44].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at.[32]
[32] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
The explanations provided to the Applicant were interpreted. Based on the Applicant’s responses, both in English and through the interpreter, the Court is confident she properly comprehended the scope and purpose of the hearing.
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on her grounds of review and to outline any other concerns she might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection.[33]
[33] [2019] FCA 600 at [7].
Before this Court, the Applicant made submissions in support of the grounds set out in their application. Those submissions are considered below.
The Minister relied upon written submissions filed on 4 September 2025.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. The Applicant made further submissions that went to the merits of her claim for protection. The Applicant also responded to the Minister’s foreshadowed application for costs.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[34] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48.Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49.Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[35]
50.“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[36]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[37] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[38] Different kinds of error may overlap.[39] The categories are not closed.[40] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[41]
52.In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[42] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[43] It has been described as an “undemanding” standard.[44]
[34] [2025] FedCFamC2G 620.
[35] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[36] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[37] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[38] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[39] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[40] LPDT at [3].
[41] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[42] LPDT at [7].
[43] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[44] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[45]
[45] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
a)why she believes the Tribunal made a jurisdictional error; and
b)each of the four grounds of review.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant made more general submissions, those submissions largely invited the Court to engage in impermissible merits review of the Tribunal’s decision. As this Court explained to the Applicant at the hearing, the Court cannot consider for itself whether the Applicant meets the criteria for a Protection Visa. To the extent that the Applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. The Court as presently constituted incorporates (without repetition) paragraphs 13 to 18 of the Minister’s outline of submissions.
Ground One
1.The Affidavit Reason after my second Tribunal Hearing on the 2 May 2019 are as follows:
Ground One merely refers to the second Tribunal Hearing. It is not, in and of itself, a contention that the Tribunal fell into jurisdictional error. Ground One is dismissed.
Ground Two
2.We would like to seek attention from the Australian Government (as one of the Commonwealth Country) to get justice on our MA63 Agreement which being violating by the Federal Government of Malaysia. To this date still not being materialised.
Ground Two is a call to the Australian Government for action. It is not, in and of itself, a contention that the Tribunal fell into jurisdictional error. Ground Two is dismissed.
Ground Three
3.Issue of Sabah illegal immigrants:
•Influx of illegal immigrants had contribute to include crimes in Sabah (such as robbery, murder, kidnapping all happen lately)
•Recent cases of a grab local (Kadazan-Dusun) driver been killed over a robbery
•Illegal fish bombing which killed 3 persons also been done by illegal immigrants
To the extent that Ground Three invites the Court to engage in impermissible merits review, it must be rejected for the reasons explained above. However, in fairness to the Applicant who is not represented, the Court is prepared to apprehend that Ground Three contends that the Tribunal fell into jurisdictional error because it failed to consider an integer of the Applicant’s claims. It is well established that a failure to do so may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion. That is not the case in the present matter and, consequently, Ground Three must be dismissed. That is because, as the Minister correctly submitted in relation to the first dot point under Ground Three:
15. … the Tribunal was cognisant of the details of this claim, having accurately summarised the Applicant's claims for protection and discussed those claims with her during the hearing: CB306 [17], 315 [56]. The Tribunal explicitly considered the Applicant's claim to fear harm from illegal immigrants and was not satisfied she faced a real chance of serious harm (nor a real risk of significant harm) for that reason in the context of the country information before it. Moreover, the Tribunal correctly observed that any risk of harm arising out of this claim was a risk experienced by the population generally.
In relation to the second and third dot points under Ground Three, the Court could not identify anywhere in the Court Book were the Applicant put these matters to the Tribunal. Consequently, the Court as presently constituted adjourned to allow the Applicant time to review the Court Book and identify when and how the matters concerning the driver being killed and/or illegal fish bombing were submitted to the Tribunal. After the adjournment the Applicant conceded that neither matter was advanced before the Tribunal. Quite clearly the Tribunal cannot be criticised for not considering matters not advanced before it.
The Applicant recast her complaint against the Tribunal as its failure to investigate the situation in her home country after she had highlighted some issues to the Tribunal. This criticism of the Tribunal mischaracterises the role of the Tribunal. The onus is on an applicant before the Tribunal to make good their claims. Further the duty imposed upon the Tribunal is a duty to review, not necessarily to make inquiries. A failure to make inquiries about a critical fact which can easily be ascertained may lead to jurisdictional error however, there is no overarching duty on the Tribunal to make inquiries.[46] Nothing advanced by the Applicant falls within the concept of a critical fact. Ground Three is dismissed.
[46] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [18]-[25], Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 and Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.
Ground Four
4.AAT not sensitive on the above matters.
Before the Court the Applicant contended that the Tribunal trivialised what she had put to the Tribunal. It is well established that the degree of weight to be given to evidence is a factual question for the decision-maker alone.[47] Ground Four is dismissed.
[47] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197].
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed.
COSTS
In its submissions the Minister sought a further order that “the Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00”.
The Court as presently constituted explained to the Applicant that:
(1)it had not made a decision about her application;
(2)the Minister is seeking costs in the event that it is successful;
(3)in deciding the question of costs, the Court is required to consider:
(a)whether it is appropriate that the Applicant should pay any costs at all, noting that the usual rule in courts in Australia is that an unsuccessful party pays the party/party costs of the successful party; and
(b)if the Court is so satisfied that the Applicant should pay costs, what is the reasonable quantum.
The Court then invited the Applicant to make a submission about costs in the event that she is unsuccessful, and her application is dismissed. The Applicant submitted, if the application were to be dismissed, she would only be able to afford around $3,000 - $4,000 and would have to pay by instalments.
The Court is satisfied that costs ought to follow the event, and that it is appropriate to make an order in the amount sought by the Minister which is below the scale costs, [48] given the amount of work undertaken as evidenced by the court file.
[48] Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2025 (Cth) sch 2 pt 3 div 1.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 25 September 2025
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