DIQ24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 197
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DIQ24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 197
File number(s): PEG 184 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 29 January 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether Tribunal misconstrued significant harm – whether Tribunal failed to investigate the applicant’s claims – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 36(2)(a), 414, 415, 424A, 424AA
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 Division 1, Schedule 2, Item 3
Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
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
EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 29 January 2025 Place: Perth For the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Woollett For the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 184 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIQ24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of Administrative Appeals Tribunal be amended to “Administrative Review Tribunal”.
3.The application filed on 29 May 2024 be dismissed.
4.The applicant pay the Respondent’s costs fixed in the sum of $5,400.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Malaysia. He first arrived in Australia on 30 November 2017 on a UD 601 electronic travel authority.
On 15 February 2018, the applicant applied for a protection (class XA) (subclass 866) visa. In the visa application, the applicant said that he left Malaysia because he was deceived by a scamming moneylender. The scamming continued by showing the application fake certification from the National Bank. He said that he would likely be harmed if he was returned to Malaysia, “in that counting, threatening and destroyed my own property (equipment)”. The applicant also referred to a situation where he was back from work and was suddenly followed by a bunch of strangers who forced him to stop his vehicle to the side of the road and all of them hit him with a steel bar.
A police report was made, but he said the scammers can still find ways to track him down. He said that he tried to move to his parents’ house but was concerned that the scammers will continue to be able to find him. On 12 September 2018 the delegate decided not to grant the applicant the visa. On the same day the applicant applied to the Tribunal for a review of the delegate's decision.
On 26 July 2023 the Tribunal sent the applicant an email asking him to complete a pre-hearing information form, however, the applicant did not respond. On 28 July 2023 the applicant did, however, lodge a new application for a review of the delegate's decision. The Tribunal pointed this out to the applicant on 31 July 2023 and suggested that he may have intended to send the pre-hearing information form back to it instead.
The Tribunal sent the applicant a further request to submit a pre-hearing information form on 11 January 2024. On 8 March 2024, the Tribunal sent the applicant a notification saying that it had considered the material before it but was unable to make a favourable decision on that information alone. It sent the applicant an invitation to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case with a hearing that was scheduled for 15 April 2024.
On that day, the applicant attended the hearing before the Tribunal with the assistance of a Malaysian interpreter. In its statement of decision and reasons, the Tribunal summarised the applicant's background and his personal circumstances. It also summarised his claims as made in the protection visa application, and it also summarised the delegate's decision. The Tribunal set out the evidence given by the applicant at the hearing.
When the Tribunal asked the applicant about documents, he said that he had asked a friend in Malaysia to go to the police and obtain a copy of the police report, but that his friend was told that the applicant would need to return personally to obtain it. The applicant said that he is married and that his wife and eight-year-old son live in Thailand. His wife went to Thailand in 2017 as a Thai national who was born there. However, the applicant told the Tribunal that he could not live in Thailand. He had lived in Bangkok for a few months, but he could not do so long term.
He had a problem with the language and he also experienced some discrimination there. He said that his wife returns to Malaysia approximately once a year to visit his mother and that he speaks to his wife once a day usually, and he supplies his family with money every month. The applicant told the Tribunal his employment history and that he works in construction in Perth. He had been with the same employer at that stage for two years.
The applicant said to the Tribunal that his employer has indicated they are considering sponsoring him for a skilled visa, but will await the outcome of the protection visa application. That same submission was also made to me at this hearing. The Tribunal asked the applicant to explain why he fears that he will be seriously harmed if he returns to Malaysia, and he told the Tribunal that he made a deal with a “Chinese guy”, to borrow money.
He was unable to remember the name of the lender, but he showed the Tribunal a photo on his phone of a man holding an identification card near his face, and who the applicant said was the Chinese lender. The applicant also showed the Tribunal a photo of a letter showing the Bank Negara Malaysia letterhead. The letter was written in Malay and was not translated, but the Tribunal pointed out that it referred to an amount of 40,000 ringgit.
The applicant claimed that the letter was evidence of his claim that he did not actually ever receive the loan amount. The applicant sought to tender a copy of that letter at the hearing before me, but in any event I note that the Tribunal went on to consider that letter and accept ultimately that the applicant did not receive the money.
The applicant told the Tribunal that he wanted to borrow the money because his father was sick at the time, and that he also wanted money to renovate his parents' kitchen. He said that a friend of his told him about the Chinese moneylender and that he telephoned the moneylender in November 2017 to make an application for a loan. He said that he did not qualify for a loan from the bank and when he contacted the Chinese moneylender he sent him a scanned image of his individual identification card.
He said that the lender then conducted some checks and told the applicant that he would transfer the sum of 40,000 ringgit to the applicant's bank account, but he said that he never received any amount of the loan in his bank account and that is the scam. He said that he later became suspicious in another telephone conversation with the lender, so he didn't give him his bank account details.
The applicant said that when he became suspicious, and on receipt of the letter, he went to the bank and told them about the incident with the Chinese moneylender. They said that it was a scam and that he should make a report to the police. However, the applicant said the next day the Chinese moneylender telephoned him and told him that he was required pay 640 ringgit per month until 2025 to pay off the loan. He told the lender it was a scam, and he would not be paying and that the lender then threatened to kidnap his son.
The applicant said that neither he nor his wife or his son have ever been physically harmed, but he said that paint was thrown on his house in Johor and he then went to stay in his hometown of Changlun for a few months. However, he continued to feel unsafe there. While he was there he went to a shopping mall with his wife and a man approached him while he was in the car park. The man grabbed him by his shirt and said that if he failed to pay the Chinese guy then his son and wife would be in trouble.
The applicant then said the name of the Chinese moneylender. He described the name of that person to the Tribunal. I will refer to that person now in these reasons as AB. The man who approached the applicant in the car park then told him that he had a few weeks to get the money, and after warning him, he left. After this incident the applicant told his wife to go back to Thailand to avoid trouble, and his wife and child returned to Thailand a day or two after that incident.
The Tribunal asked the applicant whether there had been any relevant developments with AB in the last six and a half years since he borrowed the money, and he said that he has not heard anything from him since he travelled to Australia. He also said that a few days after he arrived in Australia, his mother telephoned him and told him that some Chinese guys turned up asking about his whereabouts. The applicant said that moneylenders have connections all through Malaysia. He also said that police did not initially act on complaints and that he did not report the confrontation that occurred in the car park.
He said that he panicked, and that he still feels unsafe, and that police action would be slow. The applicant sought to adduce a copy of the police report that he made in respect of the steel bar incident at this hearing. That was the subject of some discussion between the applicant and the Tribunal. I also declined to receive that document on the basis that the purpose for which it was sought to be adduced was to further the applicant's claims. As I explained to the applicant at the hearing, I do not have the jurisdiction to grant a visa, and my role is limited to an administrative review of the Tribunal's decision.
The Tribunal ultimately considered the essence of the applicant's claim for protection as submitted to the delegate as a claimed fear of harm from the moneylender AB, with whom he claims to have negotiated to borrow 40,000 ringgit, which he did not ever receive because he became suspicious about the transaction and refused to give his bank account details to the lender. He therefore never received the proceeds of the loan, but notwithstanding that, the applicant asserted that the moneylender claimed that he received the money and is treating the loan as made and is pursuing recovery of the money by demanding monthly repayments from him.
The Tribunal considered the documents that the applicant adduced at the hearing that included a photo of the person that the applicant claimed to be the lender that he showed on his mobile phone, and also the untranslated letter from the bank which appeared to reflect an amount of 40,000 ringgit.
The Tribunal considered the totality of the applicant's evidence and found that whilst his claims were generally consistent over time, and more particularly from the time that they were first made in the protection visa application to the Department, the Tribunal wasn't satisfied that that consistency alone was sufficient to accept the claim that he was being pursued for repayment of a loan which he claims he never received.
However, the Tribunal proceeded by giving the applicant what it classed as the benefit of the doubt, and accepted his claim that he was scammed by the moneylender AB. The Tribunal proceeded on the basis that the country information reported that loan sharks operate in Malaysia and carry out money lending activities without licences. The Tribunal was prepared to accept that the applicant wanted to borrow money because his father was sick at the time, and also because he wanted to conduct renovations to his parents' kitchen.
The Tribunal accepted that the applicant encountered one or more unscrupulous loan sharks, particularly the person identified as AB, when he wanted to borrow money, and that he agreed to enter into the loan agreement with that person as he had claimed. The Tribunal also gave the applicant the benefit of the doubt and proceeded by accepting that the 40,000 ringgit was not transferred to his bank account by the moneylender after he decided that the transaction was suspicious, and refused to give over his bank account details.
The Tribunal also accepted that the moneylender maintains that the applicant owes him the money, the 40,000 ringgit, and has communicated to him an expectation that he would make monthly repayments of the loan until 2025. The Tribunal also accepted that the applicant had ignored that demand. However, accepting all of these matters and based on the evidence that was adduced before the Tribunal, it concluded that the applicant does not face a real chance of harm of any kind from AB or from anyone associated with him now or in the reasonably foreseeable future in Malaysia.
The Tribunal based this finding on reasons that the applicant would be able to fairly defend any court action that the lender might institute to recover the moneys that were allegedly loaned. The Tribunal didn't accept that the applicant would face a real chance of serious harm from the moneylender while the matter proceeded through the courts, but even if that did occur, the Tribunal was satisfied, based upon country information, that the applicant was able to avail himself of adequate police protection.
Further, although it accepted that the applicant was confronted at a shopping centre car park by someone apparently acting on the moneylender's behalf, where his wife and child were threatened, accepting that the applicant considered it prudent for his wife and child to travel to Thailand in those circumstances and that they did so a day or two later, the Tribunal noted that neither the applicant nor his wife or child have ever been physically harmed.
The Tribunal also accepted that the applicant's wife and son continue to live in Thailand while he has been living in Australia pending the outcome of the protection visa application. The Tribunal did not accept that the applicant's wife or son are forced to remain in Thailand due to the ongoing risk of harm in Malaysia, but rather found on the applicant's evidence given at the hearing that his wife was able to return to Malaysia annually to visit her mother-in-law without experiencing harm.
The Tribunal also considered the claim made about paint being thrown on the house in Johor. It accepted that paint throwing in this manner is common in Malaysia where a creditor considers the debtor has defaulted on a loan and that the target of such conduct would experience embarrassment over the incident as well as the expense of cleaning up and restoring the property.
However, the Tribunal did not find that this amounts to serious harm, and nor did it find that being targeted for paint throwing in this case suggests that the applicant faces a real chance of harm of any kind anywhere in Malaysia from the creditor or anyone associated with them. The Tribunal accepted that the applicant may have felt some anxiety following these incidents, particularly the incident in the car park, the threats made by the creditor and the paint-throwing incident, and that he went to stay in his home town of Changlun for a few months.
The Tribunal accepted that he may have felt some security even there, however, the Tribunal found no evidence to suggest that the applicant was searched for or found there. The Tribunal did not find that the applicant was ever harmed in Changlun, and that this indicates that the creditor's influence is localised and that he does not have an intention to inflict any harm on the applicant.
The Tribunal was satisfied that the applicant could return to live either in his birthplace of Changlun or in Johor where he lived between 1998 and 2017, or to any other location in Malaysia without facing a real chance of serious harm from the lender. The Tribunal also pointed to the fact that the applicant admitted he had not heard anything from the lender since he travelled to Australia.
It found that the absence of any debt recovery action by the lender for over six years is persuasive evidence to undermine the proposition that the lender considers the applicant is indebted to him, or that he would target the applicant or his family for harm of any kind in Malaysia now or in the reasonably foreseeable future. The Tribunal accepted the applicant's evidence that neither he nor his wife or child ever suffered serious physical harm by the creditor and took into account the applicant's written claim where he said he was travelling from work and was followed by a group of strangers who forced him to stop his vehicle on the side of the road, and hit him with a steel bar.
The Tribunal assessed that claim as being inconsistent with other relevant claims and ultimately lacking in credibility inasmuch as the applicant's claim was that he had never been seriously physically harmed by the lender. The Tribunal found that even if the incident did occur, it was not satisfied that the evidence overall suggested that it was in any way related to the loan or the loan recovery efforts by AB, and nor did it accept that the claimed steel bar beating incident suggests that the applicant faces a real chance of harm from the moneylender or anyone else if he returns to Malaysia now or in the reasonably foreseeable future.
The Tribunal accepted the applicant's claim that he did not give his bank account details to the moneylender, and as a result no funds were ever transferred to him. On that basis the moneylender has not directly lost any money that might have been the case if he had actually transferred the funds, and the Tribunal considered this to further reduce the risk that the moneylender would be motivated to inflict any harm on the applicant or his family after more than six years.
For those reasons, the Tribunal concluded there was not a real chance that the applicant's creditor will target him for any harm of any kind, now or in the reasonably foreseeable future if he returns to Malaysia. The Tribunal accordingly considered it is not necessary to consider or make findings about the availability or adequacy of police protection for the applicant in Malaysia, nor the question of internal relocation.
The Tribunal went on to consider the complementary protection criteria under section 36(2)(aa) of the Migration Act 1958. The Tribunal set out the circumstances that constitute significant harm for the purpose of 36(2)(a) of the Act. It relied on the reasons that it set out in its consideration of the individual and cumulative claims in the assessment of whether there's a real chance that the applicant will be harmed in any way for the reasons that he claimed if he is removed to Malaysia, to go on and find that there was not a real chance of him being harmed in any serious way for any of the reasons that were set out in his claims.
The Tribunal was satisfied that there is no real risk that the applicant will suffer any significant harm on any basis identified or cognisable if he is removed from Australia to Malaysia. It therefore affirmed the decision of the delegate not to grant the applicant a protection visa. On 29 May 2024, the applicant applied for judicial review of the Tribunal's decision in this court. He has been self-represented throughout these proceedings.
There are five grounds of review that are pleaded. As the applicant was not legally represented, I am mindful of the remarks of Colvin J in DQQ17 v Minister for Immigration and Border Protection[1] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2]. The consequences of failing to particularise a ground depend on the circumstances. It will rarely be appropriate to dismiss an appeal or a review in a migration case for lack of particularisation where the applicant applies for relief arising out of a protection visa application, and they are self-represented.
[1] [2018] FCA 784.
[2] BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
The applicant didn't file written submissions or any amended application with proper particulars of the grounds of the application and any additional evidence on which he sought to rely, notwithstanding being given the opportunity to do so by way of orders made by the registrar. But again, that is understandable given his self-represented status. Ordinarily, and particularly in these circumstances, it is appropriate for the person to be given an opportunity to explain orally the matters that they say go to the grounds of review, and the opportunity to adduce any additional evidence.
I asked the applicant to expand upon the grounds of review, including asking him to give particulars. I considered his application to adduce further evidence and I also explained to the applicant the limitations on the court's jurisdiction, that I'm not permitted to conduct a review of the merits review of the Tribunal's decision, and that I do not have the power to grant him a visa. I also set out for the applicant some of the commonly recognised categories of jurisdictional error.
I have explained that in order to be entitled to the relief sought in the application, the applicant must establish that the Tribunal's decision is affected by jurisdictional error and that it will have made such an error if it exceeds the limits of its decision-making authority that is conferred on it by the statute. The error must also be material to amount to jurisdictional error in that it could realistically have deprived an applicant of a successful outcome.
The applicant explained further to me that he still feels that he will be harmed, and he still feels that his family is at risk of harm by the moneylenders. He said that he still feels scared and traumatised, and even after seven years that there is a risk still to his existence. He said that the Tribunal was not able to look at his claims from within his shoes and his problems from his perspective. He emphasised his view that his life is in threat, that the facts showed the modus operandi of moneylenders in that circumstance, and that he is unable to go back to Malaysia.
In general terms, an applicant has the onus of establishing jurisdictional error. I have endeavoured to assess the recognised categories of jurisdictional error that are apparent in the five grounds of review and consider them based on the materials that I have, the remarks the applicant has made to me, and the assistance from the Minister's counsel. I assess them in the following terms.
Grounds 1 and 2
Grounds 1 and 2 both speak to asserted areas that the Tribunal misconstrued the risk and fear of significant harm to the applicant on his return to Malaysia as a result of the threats from the moneylender AB.
The Tribunal's decision sets out the legal principles that apply, and it correctly sets out at paragraphs 41 and 56 the circumstances that will constitute significant harm for the purpose of section 36(2A) of the Act.
Ultimately, having considered the evidence as a whole, the Tribunal wasn't satisfied that the moneylender would target the applicant in the future, such that it wasn't satisfied that there was a chance or risk of harm of any kind. I do not find that the claim that the Tribunal misunderstood or misconstrued that risk as claimed by the applicant, or misconstrued the claims of significant harm that were made by the applicant, to be made out. To the extent that the claims may sound in merits review, it is established that the court does not have the ability to review the merits of the Tribunal’s decision and that an applicant must point to more than disagreement with conclusions and findings made.
Further, the degree of weight to be given to evidence found by the Tribunal is a factual question for it, and I do not consider that any jurisdictional error is made out by grounds 1 and 2.
Ground 3
Ground 3 alleges that the Tribunal had no jurisdiction to make the decision because its "reasonable satisfaction" wasn't arrived at in accordance with the Act. The Tribunal's statutory jurisdiction to undertake the review of the delegate's decision is established in the legislation, and section 414 of the Act provides that if a valid application for review is made then the Tribunal must review the decision, and its powers on review was set out in section 415 include jurisdiction to affirm the decision under review.
The claim that the Tribunal had no jurisdiction to make the decision is in that sense not one that discloses any error. To the extent that it said that the jurisdiction didn't arise because its reasonable satisfaction wasn't arrived at, I have assessed as may being a complaint about legal unreasonableness or illogicality of the decision.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[3] the Full Court restated the principles that the characterisation of a decision or a state of satisfaction as legally unreasonable because of illogicality or irrationality is not easily made out when it was said:
The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at 517 –518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20 –21 [38]; Re Minister for Immigration &Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.[4]
[3] [2022] FCAFC 3.
[4] Paragraphs [33] to [35].
Here, in my view, the Tribunal's findings were based on evidence in part given by the applicant at the hearing, including responses to the Tribunal's questions that were designed to elicit all of the detail of his claims to fear harm from the moneylender AB. Whilst it accepted a lot of the underlying facts about the transaction, the findings that the applicant was not at risk of harm of any kind were based upon factors such as the absence of any previous physical harm to himself or any member of his family. His wife, who had been the subject of threats made, had returned to Malaysia annually without experiencing harm.
The moneylender hadn't shown any interest in the applicant for several years for more than six years. Country information showed that police protection was available to people to protect victims of moneylenders, and ultimately the circumstances of the narrative put forward by the applicant showed that there was no transaction of funds, so the moneylender was not out of pocket, and the incentive to continue to seek to harm him did not exist in a way that it might have had there been an exchange of funds.
These findings were open to the Tribunal on the evidence that was before it, and I do not find that they were legally unreasonable, illogical or irrational. I do not consider that ground 3 has been made out.
Ground 4
Ground 4 complains that the Tribunal failed to investigate the applicant's claims with particular reference to the grounds of persecution that the applicant claimed to face in Malaysia.
The applicant's responsibility is to advance evidence and arguments in support of their claim, and the Tribunal has no general duty to enquire.[5]
[5] Abebe v Commonwealth of Australia [1999] HCA 14; EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105 at [51] – [57].
Ultimately, the authorities establish that the failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to conduct a review, such that it may constitute jurisdictional error.
But in this case, I consider the Tribunal's questions of the applicant were directed to elicit the most complete and constructive details of his claims about the harm from the moneylender. And then having identified the claims, the Tribunal went on to consider and assess them in a way that I consider to be logical and rational. I don't consider there is any merit in ground 4.
Ground 5
Ground 5 asserts error by the Tribunal in failing to comply with sections 424A and 424AA of the Act. The Tribunal's decision was based upon the applicant's written claims, the evidence that he gave at the hearing and country information.
There are exclusions in section 424A that those provisions do not apply to information that is not specifically about a person, and is just about a class of persons, to which the applicant or the other person is a member. Country information is encapsulated within this exclusion. So too is information in the nature of an applicant’s written claims, and their oral evidence in the Tribunal.
I cannot identify any material that would be captured in these provisions that would disclose an error by the Tribunal, and so I do not consider that ground 5 has been made out.
Orders to be made
I have considered more broadly the Tribunal's reasons and cannot find, and did not raise any other areas of potential error by the Tribunal in considering the applicant's claims.
In the circumstances I will dismiss the application.
Counsel for the Minister has applied for an order that the applicant pay costs fixed in the sum of $5,400. I am satisfied that as the application has been dismissed it is appropriate for an order to be made for the applicant to pay the Minister's costs. I am also satisfied the fixed sum in the amount of $5,400 is reasonable having regard to factors including that it is within the amount set out in Item 3 of Schedule 2, Division 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021, which provides that the amount for costs that can be ordered at a proceeding concluded at a final hearing is fixed in the amount of $8,371.30.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 17 February 2025
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