DAO23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 185
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DAO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 185
File number: PEG 292 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 20 February 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s decision is “lacking substance” – whether the Tribunal failed to address the applicant’s claims and evidence – whether the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule – whether the Tribunal failed to put adverse information to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – whether the Tribunal erred in its assessment of relevant country information – whether the Tribunal’s decision was “illogical, irrational or unreasonable” – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Item 25
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 422B, 424A, 424AA & 476 and Division 4 of Part 7
Migration Regulations 1994 (Cth), Schedule 2
Cases cited: ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29
AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
CRG16 v Minister for Home Affairs [2019] FCA 374
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
DAK16 v Minister for Immigration and Border Protection [2019] FCA 68
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of hearing: 24 September 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 292 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAO23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.The application be dismissed.
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 KENDALL:
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 29 November 2023 and, as such, predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
Applicant’s migration history
The applicant is a citizen of Malaysia (Court Book (“CB”) 1-3 & 20). He arrived in Australia in May 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 26).
On 13 August 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-19 & 26).
On 18 January 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 26-41) on the basis that the applicant was not a refugee (as that term is defined in s 5J of the Act).
On 6 February 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 42-43).
On 19 September 2023, the Tribunal invited the applicant to attend a hearing scheduled before it on 23 October 2023 (CB 50-53). The applicant was also asked to provide any documents upon which he intended to rely and to do so by 16 October 2023 (CB 52).
On 16 October 2023, the Tribunal notified the applicant that it had rescheduled the hearing to 28 November 2023 (CB 67-70).
On 28 November 2023, the applicant attended the Tribunal hearing (CB 75-78). He was assisted at that hearing by a Mandarin interpreter (CB 75).
On 29 November 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 81-93).
THE TRIBUNAL’S DECISION
The applicant’s application for judicial review was filed pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in detail.
As this Court has previously explained, the Court is generally reluctant to extract large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons as this helps draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when (as was the case here) the grounds of review filed by the applicant lack particulars and when the applicant appeared before the Court without legal representation and was unable to discuss any concerns he might have about the Tribunal’s decision.
The Tribunal’s decision in this matter is 13 pages long and spans 36 paragraphs (CB 81-93). The final three pages include extracts of relevant legislative provisions (CB 91-93).
The Tribunal began by explaining that the applicant’s claims for protection (as set out in his protection visa application form) provided as follows (without alteration) (at [4]):
I worked with my mother since 14 years old and I had to stop my study when 16 years old. My mother selling food at a hawker centre and I working at there too. My dad is gangster and gamble, most of the time he slept at home and jobless too. One day he had dispute with my mother keep beating her head to the wall. I was so angry and using a knife to fight back with him, unfortunately I stab his stomach. I was sent to detention centre for one night after I released actually my dad not in serious condition. After that accident, my dad keep beating me and become more violence to me and my mother too. One days my dad is smuggling again and I report to the police and he get caught, I was so happy because after he get caught and no one will bully me again. But my dad “big boss” come to revenge and he was so angry because of me he lost all his money. He trying to kill me twice and I was admitted t hospital he still wanted to kill me. My mother report to the police but my dad boss seem like too powerful at there,police officer all corrupted by him,my mother had no choice after they burned our house my grandfather gave me money and ran to Australia, to hope I can start a new life at here.
The Tribunal then explained that the applicant had appeared before it on 28 November 2023, the hearing was conducted with the assistance of an interpreter in the Mandarin and English languages and the applicant was unrepresented at the hearing (at [9]-[10]).
The Tribunal then summarised the applicant’s oral evidence before the Court in detail, as follows (at [11]):
a.The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant stated that he was assisted in the completion of the forms by an acquaintance whom he named. He confirmed that the contents of the forms were true and accurate.
b.The applicant is from [city omitted], Malaysia, and is the youngest of three siblings; his parents and his siblings are resident in Malaysia. He has no family in Australia, he is not married and has no children. He maintains contact with his mother.
c.The applicant completed his education in Malaysia to the age of 16. He stated that, upon leaving school, he worked in a convenience store. The applicant did not know anyone in Australia when he arrived onshore. Since arriving onshore, he has worked in the agricultural sector.
d.When pressed as to why he decided to travel to Australia, the applicant stated that his father had a history of domestic violence and abuse against himself and his mother. The applicant stated that his father was a problem gambler. The applicant stated that he reported his father’s actions to the police, but that the police took his father’s side. He stated that his mother decided that it was “too risky and dangerous” for him in Malaysia and wanted him to go somewhere else.
e.When pressed as to the circumstances of the domestic violence he experienced, the applicant stated that it had “always” been a part of his life; when pressed, he agreed that it had been a part of his life from his earliest memories. When further pressed, the applicant stated that violence occurred “almost every day”; that whenever his father came home, he would drink alcohol and “could not control his emotions” and would start to “beat up” the applicant and his mother.
f.The applicant stated that his father struck him and his mother with his fists. When pressed he stated that his father did not use weapons, only his fists, and that he caused bruising and abrasions both his mother and to the applicant. The applicant stated that his father was not employed, and that he presumed that he earned money from “indecent or illegal stuff”. When pressed, the applicant stated that he did not know if his father was involved in criminality, but that he thought he associated with criminal and gambling groups.
g.When asked whether there was a particular event which caused the applicant to go to the police, the applicant stated that he did so because his father “bashed” him and his mother; he agreed with the proposition that he decided to go to the police because of the cumulative effect of his father’s behaviour over time.
h.The applicant stated that he and his mother attended at the police station to make the complaint, and that because of their complaint his father was arrested by police at the family home on the same day.
i.When asked what happened after that, the applicant stated that his father’s “boss” came to the family home. When pressed, the applicant stated that he knew that his father worked for this man, doing “inappropriate stuff”, but that he was not aware of exactly what he did.
j.When pressed the applicant stated that this person:
Was very angry and upset and he said something like [he had] lost someone who could make money for him.
k.The applicant stated that this person threatened him and his mother, and beat them with his fists. He stated that the incident lasted for about “half an hour”. He stated that his father was still under arrest at this time, but was later released, he believes without charge.
l.The applicant stated that the incident with the “boss” occurred about a year before he decided to come to Australia and that he did not see his father again before he left Malaysia. He stated that he and his mother left the family home and lived in “different, temporary” places.
m.The applicant stated that his brother and sister had left home by this time and that they were “a lot older” than him; he stated that his sister is now in her mid-thirties and his brother in his forties. When pressed the applicant stated that he did not remember whether his siblings ever experienced violence at the hands of his father and that he did not talk about it with them.
n.When asked about his decision to travel to Australia, the applicant stated that his mother “demanded” that he leave Malaysia and settled upon Australia. He stated that he wanted a “better future”. When pressed, the applicant stated that he funded his travel to Australia by borrowing money from relatives.
o.When pressed regarding his fear of returning to Malaysia now, the applicant stated that he did not want to be “in the shadow” of his father. The applicant stated that his father keeps in occasional contact with his mother but that the couple do not reside together.
p.When further pressed, the applicant stated that he is “very afraid and concerned” that his father will “beat him up again”. The applicant stated that his fear persists even though he is now an adult man.
q.When asked by the Tribunal whether, if he was threatened with, or experienced, violence at the hands of his father he could lay a complaint with the police in Malaysia, the applicant stated that he could do so.
r.When asked by the Tribunal whether the police would help him, the applicant stated that he believed that they would.
s.When asked by the Tribunal whether he would be safe from his father if the police helped him, the applicant stated:
Yes, I think so.
t.When pressed by the Tribunal as to whether, if he returned to [city omitted] and was threatened with, or experienced violence, he believed the police would help him, the applicant stated:
Yes.
u.When asked by the Tribunal whether he had any concerns regarding his father’s “boss”, the applicant stated that he was “still quite scared” of him.
v.When asked whether there was a particular reason why the “boss” would want to beat him now, the applicant stated that he did not know.
w.When asked by the Tribunal whether the police would assist him if he was threatened by this person, the applicant stated:
I think maybe they will.
x.When asked whether, if the police so assisted him, he would feel safe, the applicant stated:
I think maybe, yeah.
The Tribunal then assessed the applicant’s claims and the evidence before it, commencing with an overview of the criteria for the grant of a protection visa.
Relevantly, the Tribunal began by explaining that the criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth), noting that an applicant must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act – that is, he or she must be either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” criterion (at [12]).
The Tribunal then explained that s 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. Further, as noted by the Tribunal, a person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b) of the Act (at [13]-[14]).
The Tribunal continued:
15.Under s.SJ(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.SJ(2)-(6) and ss.SK-LA, which are extracted in the attachment to this decision.
16.If a person is found not to meet the refugee criterion in s.36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he is a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that he or he will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Finally, the Tribunal explained that, in accordance with Ministerial Direction No. 84, the Tribunal had taken account the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department of Home Affairs and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes (to the extent that they were relevant to the applicant’s review) (at [17]).
The Tribunal then explained that all relevant facts of the individual case must be supplied by the applicant himself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. Further, the Tribunal is not required to uncritically accept any and all the allegations made by an applicant (at [18]).
The Tribunal further noted the importance of adopting a reasonable approach in relation to any credibility findings (at [19]-[20]).
The Tribunal then explained that it had carefully considered all of the applicant’s claims, individually and cumulatively and, on the materials before it, had concluded that the decision under review should be affirmed (at [21]).
The Tribunal then outlined its findings, noting, first, that, when giving his oral evidence, the applicant “appeared to do so honestly and truthfully”. Overall, the Tribunal found the applicant’s statements to be coherent and plausible and did not run counter to generally known facts or to the country information assessed by the Tribunal (at [23]).
The Tribunal continued:
24.Accordingly, despite a lack of corroborating evidence, the Tribunal extends to the applicant the benefit of the doubt and is prepared to accept that the applicant and his mother were victims of domestic violence at the hands of the applicant’s father. The Tribunal further accepts that, upon the arrest of the applicant’s father, the applicant and his mother were threatened and beaten by his father’s “boss” in the manner he has described in evidence. The Tribunal also accepts that the applicant’s fear of his father and his father’s boss were the factors motivating him to travel to Australia and to seek protection here. Finally, the Tribunal accepts the applicant’s subjective fear of returning to Malaysia on account of his experiences there at the hands of his father and his father’s “boss”.
The Tribunal then stressed, however, that “the applicant’s unequivocal evidence to the Tribunal was that he believed that, if he was threatened or beaten in Malaysia by his father or his father’s “boss”, he could lay a complaint with the Malaysian police, that the police would assist him, and that he would feel safe” (at [25]).
The Tribunal then summarised the contents of the country information before it, as follows:
26.… the DFAT Report remains essentially unchanged from previous versions of the report regarding law enforcement, police effectiveness and corruption, and the legal system in Malaysia. Law enforcement entities in Malaysia operate at both federal and state level. In relation to the Royal Malaysian Police (RMP) DFAT reports that credible local and international sources consider it to be a professional and effective police force:
Royal Malaysian Police (RMP)
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates over 800 police stations across Malaysia. The Inspector General of Police is responsible tor the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. SUHAKAM conducts some human rights training and workshops for police, state Islamic religious authorities and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
27.In relation to police corruption in Malaysia, the Tribunal notes the following information by DFAT:
Police Integrity and Accountability
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009 as part of the government’s response to police corruption, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
28.The DFAT Report provides the following summary regarding Malaysia’s judicial system:
5.14 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level, and subordinate courts. Syariah courts operate at state level with jurisdiction over Muslims in personal matters. The subordinate civil courts hear the majority of Malaysia’s criminal, civil and family law matters for non-Muslims. A Judicial Appointments Commission makes judicial appointments, subject to the Prime Minister’s final approval. Seven of 11 members of the Federal Court are Malay Muslims which is roughly equivalent to their proportion of the population.
5.15 Sources report issues of judicial independence, arbitrary verdicts, selective prosecution, delays to court-ordered relief for civil plaintiffs, and preferential treatment of some litigants and lawyers persist in Malaysia. The ability of individuals to seek legal redress through Malaysian courts is variable. Sources advise that defendants generally have adequate time to prepare a defence, particularly those with the financial means to engage private counsel. Government legal aid resources are limited and generally of poor quality. Although strict rules of evidence apply in court, defence counsel may be impeded by limited pretrial discovery. According to a leading human rights NGO, a Court of Appeal judge claimed he had been reprimanded by a senior judge after writing a dissenting statement in 2018. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods: in mid-2018, 26.7 per cent of the total prison population comprised pre-trial detainees (see Detention and Prison).
5.16 State-level syariah courts apply syariah-based law in accordance with their rules of procedure (see Religion). Native (Indigenous) courts operate in Sabah and Sarawak, and are mechanisms for settling disputes regarding breach of customary law. In accordance with the Constitution, native courts and the enforcement of native customary law are considered state matters, regulated by state legislation.
5.17 Mobile courts, which sit as the Magistrates and Sessions Court and are empowered by roaming magistrates, operate in remote areas of Sabah and Sarawak. The courts operate in an effort to register undocumented people, allowing the court magistrate to capture late birth registration with government officials from the National Registration Department present to process paperwork. Prior to presenting at a mobile court, applicants are required to register their applications online, providing available documentation (if any). Online checks are performed by the National Registration Department. When applicants present at the mobile court, they require a witness, often the midwife and the village head, to testify to the unregistered birth, and language checks will be performed. If an application is approved, a birth certificate can be issued on the spot while the applicant is at the mobile court. Single and unmarried mothers are permitted to register their children's births at mobile courts in Sabah.
29. DFAT assesses that:
... while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
The Tribunal then determined as follows:
30.While the Tribunal accepts that there are difficulties and inadequacies in the policing and judicial system in Malaysia, generally speaking having regard to the DFAT Report the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA (2)(c) of the Act. The Tribunal considers on the evidence before it that this protection is durable, and that the applicant can access it. The Tribunal notes the applicant’s evidence in this regard that he accepts that he could lay a complaint with the Malaysian police were he to be threatened or assaulted by his father or his father’s “boss”, and that the police would assist him and he would feel “safe”. The Tribunal therefore considers that effective protection measures as defined in s.5LA are available to the applicant in Malaysia and that he therefore does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
Having concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal then considered whether the applicant could be afforded complementary protection (as per s 36(2)(aa) of the Act).
In that regard, the Tribunal determined as follows:
32.Overall the Tribunal is satisfied that if in the future the applicant’s father or his “boss” threaten the applicant, or commit violence against him, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(28)(b). Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [36]).
APPLICATION TO THIS COURT
The application for judicial review (filed in this Court on 10 December 2023) contains five “grounds of review”, as follows (without alteration):
1.The AAT did not give our application proper consideration.
2.The decision of the tribunal;
(a) is affected by an error of law; and
(b) denied the application procedural fairnessn
3.The first respondent did not take the serious harm or consequences or returning Malaysia in such situation, the whole assessment in the decision letter is not in detail and not convinced.
4.I have make an application for assistance through Victoria legal Aid and am waiting for a decision.
5.The assessment is not fair.
On 7 February 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The applicant appeared before the Court (on 24 September 2024) without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with him that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 10 December 2023 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 93 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 9 September 2024.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court also 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:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks, even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Unfortunately, despite the Court’s best efforts, the applicant did not address the grounds of review or address the issue of jurisdictional error more broadly. Rather, he simply told the Court that he “did not feel like there was any error made” by the Tribunal.
CONSIDERATION
The applicant’s grounds of review are not particularised, no written submissions were filed by the applicant and the applicant’s oral submissions did not address the issue of jurisdictional error. Indeed, as noted above, the applicant’s only submission to this Court was that there was no error on the part of the Tribunal.
Noting that the applicant was unrepresented, the Court will interpret the applicant’s ground sof review as widely as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
Grounds one and three
Grounds one and three provide as follows:
1. The AAT did not give our application proper consideration.
…
3.The first respondent did not take the serious harm or consequences or returning Malaysia in such situation, the whole assessment in the decision letter is not in detail and not convinced.
Read together and interpreted as broadly as possible, grounds one and three can be read as suggesting that the Tribunal’s decision is “lacking substance” or fails to address the applicant’s claims and evidence.
The Court disagrees for the reasons that follow.
The Tribunal’s decision in this matter is clear, forensic and an example of how best to address (with much needed sensitivity) the concerns of an applicant who is unrepresented and for whom English is not a first language. Other Tribunal members would do well to emulate this Member’s efforts in this regard.
The Tribunal began with a clear articulation, verbatim, of the applicant’s claims (at [4]). Those claims suggest a concern that harm will result from the applicant’s father’s “big boss” following an incident in which the applicant stabbed his father. As the Tribunal explained, in his visa application the applicant further claimed that, although the incidents had been reported to the police, the police were corrupt.
The Tribunal then detailed its conversation with the applicant and the applicant’s oral evidence at the Tribunal hearing, noting, relevantly, as follows (at [11]):
q.When asked by the Tribunal whether, if he was threatened with, or experienced, violence at the hands of his father he could lay a complaint with the police in Malaysia, the applicant stated that he could do so.
r.When asked by the Tribunal whether the police would help him, the applicant stated that he believed that they would.
s.When asked by the Tribunal whether he would be safe from his father if the police helped him, the applicant stated:
Yes, I think so.
t.When pressed by the Tribunal as to whether, if he returned to [city omitted] and was threatened with, or experienced violence, he believed the police would help him, the applicant stated:
Yes.
u.When asked by the Tribunal whether he had any concerns regarding his father’s “boss”, the applicant stated that he was “still quite scared” of him.
v.When asked whether there was a particular reason why the “boss” would want to beat him now, the applicant stated that he did not know.
w.When asked by the Tribunal whether the police would assist him if he was threatened by this person, the applicant stated:
I think maybe they will.
x.When asked whether, if the police so assisted him, he would feel safe, the applicant stated:
I think maybe, yeah.
The Tribunal then outlined in detail the statutory criteria for a protection visa (at [12]-[17]), the need to “read cautiously” when making findings as to credibility (at [18]-[21]) and, on the basis of the evidence concluded (at [25]) that “…the applicant’s unequivocal evidence to the Tribunal was that he believed that, if he was threatened or beaten in Malaysia by his father or his father’s “boss”, he could lay a complaint with the Malaysian police, that the police would assist him, and that he would feel safe”.
The Tribunal then outlined, in considerable detail, the country information it had before it (at [26]-[29]) and, having done so, concluded as follows:
30.While the Tribunal accepts that there are difficulties and inadequacies in the policing and judicial system in Malaysia, generally speaking having regard to the DFAT Report the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA (2)(c) of the Act. The Tribunal considers on the evidence before it that this protection is durable, and that the applicant can access it. The Tribunal notes the applicant’s evidence in this regard that he accepts that he could lay a complaint with the Malaysian police were he to be threatened or assaulted by his father or his father’s “boss”, and that the police would assist him and he would feel “safe”. The Tribunal therefore considers that effective protection measures as defined in s.5LA are available to the applicant in Malaysia and that he therefore does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
31.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion - complementary protection in s.36(2)(aa) of the Act.
32.Overall the Tribunal is satisfied that if in the future the applicant’s father or his “boss” threaten the applicant, or commit violence against him, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(28)(b). Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
33.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
34.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Overall, the Tribunal engaged with the evidence before it, drew conclusions that were open to it on the evidence before it and did so methodically and fairly.
If the applicant is suggesting that the Tribunal failed to address a particular protection claim, that concerns fails on a factual level. The Tribunal outlined the core claims before it (at [39]) and then (as discussed in detail above) assessed all of the applicant’s concerns in detail.
If the applicant is suggesting that the Tribunal should have undertaken further “investigation” of the applicant’s claims (regardless of how those claims were presented by the applicant), the Court disagrees.
As recently discussed by this Court in AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 (“AVH24”) (at [102]-[104]), section 5AAA of the Act provides as follows:
5AAA Non‑citizen’s responsibility in relation to protection claims
(1)This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a)the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4)To remove doubt, the Minister does not have any responsibility or obligation to:
(a)specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
It is not the Tribunal’s responsibility to investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. That responsibility falls on the applicant.
This does not mean that the Tribunal should avoid assisting applicants (particularly those who appear without legal assistance) better articulate their concerns and the evidence they rely on. That was done here. As noted above, the Tribunal questioned the applicant at length in an effort to better understand his claims and, from the discussion that followed, was better able to articulate the situation that awaited the applicant should he be returned to Malaysia.
It cannot be said here that the Tribunal has failed to do that which was required of it.
No error arises in relation to grounds one and three.
Ground two
Ground two states:
2.The decision of the Tribunal;
(a) is affected by an error of law; and
(b) denied the application procedural fairness.
Arguably, the applicant is suggesting here that that the Tribunal failed to comply with its obligations under s 422B of the Act – that is, the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule.
As previously explained by this Court in ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
The Court is satisfied that the applicant in this matter was afforded natural justice.
Relevantly, the Court notes that:
(a)the applicant was advised by the Tribunal on 7 February 2018 that his application to the Tribunal had been received and that he was entitled to provide material or written arguments to the Tribunal (CB 44-46);
(b)the applicant was advised by the Tribunal on 22 February 2018 that he was required to provide the Tribunal with a copy of the delegate’s notification letter and visa refusal decision (CB 47). The applicant was then reminded of his obligations in this regard on 28 August 2020 (CB 48) and 11 July 2023 (CB 49);
(c)the applicant was invited in writing to attend a hearing before the Tribunal scheduled for 23 October 2023 and was asked to complete a “Response to Hearing Invitation” form (CB 50-53);
(d)the applicant ultimately responded to that invitation and attached a response to invitation form dated 25 September 2023 (CB 55-58). The applicant indicated that he did not wish to call witnesses (CB 56);
(e)on 16 October 2023, the applicant was advised that his hearing before the Tribunal had been rescheduled to 28 November 2023 (CB 67-70) and was advised that he should provide any documents he intended to rely on to the Tribunal at least seven days prior to the scheduled hearing (CB 69);
(f)the Tribunal wrote to the applicant and explained the effect of the “Migration and Refugee Matters Practice Direction” in so far as that document related to evidence and the content of written submissions (CB 71-72);
(g)the applicant attended the Tribunal hearing on 28 November 2023 (CB 75-78). That hearing lasted for almost an hour (CB 76);
(h)no written evidence or submissions were provided by the applicant to the Tribunal (CB 82 at [7]); and
(i)the applicant was asked numerous questions by the Tribunal and given ample opportunity to clarify or explain his claims (CB 83 at [11]).
The Court is satisfied that the Tribunal gave the applicant every opportunity to provide evidence in support of his case. The Court is also satisfied that the applicant was afforded natural justice in this matter.
Further, to the extent that the applicant suggests by ground two that the Tribunal has failed to put information to him pursuant to s 424A of the Act, the Court also disagrees.
At the time of the Tribunal’s decision (that being 29 November 2023), s 424A and s 424AA of the Act provided as follows:
424AA Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
These sections required the Tribunal to put any adverse information to the applicant which the Tribunal might rely upon when making its decision.
There is nothing before this Court to suggest that there was any “information” which the Tribunal in this matter was required to put to the applicant under s 424A of the Act. The only information which the Tribunal relied upon was information provided by the applicant himself or relevant country information. That information is not information of the sort covered by s 424A of the Act.
Finally, to the extent that the applicant takes issue with the country information the Tribunal had regard to, it is well established that the choice of country information, the weight afforded to country information and any consideration regarding the accuracy of country information is a matter for the decision-maker: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[13]; DAK16 v Minister for Immigration and Border Protection [2019] FCA 68 at [27] and CRG16 v Minister for Home Affairs [2019] FCA 374 at [56]. Further, this Court would be engaging in an impermissible merits review if it made its own assessment of country information: NAHI. The choice and interpretation of country information is also a factual matter for the Tribunal: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 and NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
No jurisdictional error arises in relation to ground two.
Ground four
Ground four states:
4.I have make an application for assistance through Victoria legal Aid and am waiting for a decision.
Unfortunately, this ground does not raise any issue of the sort that this Court can address and simply outlines a step the applicant had taken in the lead up to the hearing.
The Court notes that the applicant made no suggestion at the hearing before this Court (on 24 September 2024) that he was still seeking legal assistance and did not seek any adjournment or additional time within which to do so.
No error arises in this regard.
Ground five
Ground five states:
5.The assessment is not fair.
To the extent that the applicant suggests here that he was denied procedural fairness, the Court repeats its findings in relation to ground two above.
To the extent that ground five can be read to suggest that the Tribunal’s decision is “illogical, irrational or unreasonable”, the Court disagrees for the reasons that follow.
As explained by the High Court of Australia in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
As previously explained by this Court in AVH24, SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Further, legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness are summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Having reviewed the Tribunal’s decision in detail in this matter, it cannot be said here that the Tribunal’s decision is illogical, irrational or unreasonable.
Relevantly, the Tribunal:
(a)accurately summarised those provisions of the Act relevant to both “serious harm” and “significant harm” (as per ss 5J and s 36(2) of the Act) and has demonstrated a clear understanding of the meaning and effect of these provisions;
(b)identified the applicant’s core claims and concerns and interrogated those claims via extensive questioning of the applicant;
(c)provided a detailed summary of the evidence provided by the applicant;
(d)ultimately concluded that the applicant’s overall evidence was that he could (and would) seek police protection if he was subjected to threats from his father’s “big boss” upon his return to Malaysia; and
(e)assessed the country information relevant to that conclusion and ultimately reasoned that the applicant could safely return to Malaysia.
It is evident that the Tribunal in this matter drew conclusions that were open to it. It cannot be said that the Tribunal’s decision demonstrates a failure to attend “conscientiously and appropriately to its statutory obligations”: SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 at [10] per Allsop J (as His Honour then was). Nor can it be said that the Tribunal made findings that no logical or rational decision-maker could have made.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review (filed by the applicant on 10 December 2023) has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 February 2025
1
24
3