DKY24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 305
•4 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DKY24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 305
File number(s): PEG 202 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 4 March 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – protection visa – applicant self-represented – whether Tribunal failed to investigate the applicant’s claims to fear harm from his wife’s ex-husband – whether the Tribunal was biased – whether the Tribunal had regard to the applicant’s wishes that he call his brother to give evidence at the hearing – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 426 Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
BOL15 v Minister for Immigration & Anor [2016] FCCA 1994
Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BTF15 v Minister for Immigration & Border Protection [2016] FCA 647
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DKT24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1201
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 28 January 2025 Place: Heard in Perth, delivered in Darwin Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Rayment Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 202 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DKY24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The Application filed on 5 June 2024 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 LIVERIS
The applicant is a citizen of Malaysia. He first arrived in Australia on 2 April 2012 pursuant to a UD-976 Electronic Travel Authority visa. He was granted a tourist visa on 29 June 2012, and left Australia on 2 October, later that same year.
The applicant returned to Australia on 17 March 2015, again on an ETA visa. That visa expired on 17 June 2015, and the applicant became an unlawful non-citizen. He was granted bridging visas, first on 17 October 2016. He applied for a protection visa on the same day, and again on 1 February 2019, but both of those visas were deemed invalid.
The applicant applied for a protection visa once more on 15 March 2019. He said that he left Malaysia because he was desperately looking for jobs, and that he had come to Australia in the hope to find jobs. He said he has no qualifications in Malaysia and was unable to get money. He said he was afraid and ashamed of his inability to find a job, and will take his own life because he has no use for his life if he is not able to work and earn money.
On 12 April 2019, the delegate refused to grant the applicant a protection visa.
On 13 April 2019, the applicant sought review of the delegate’s decision in the Administrative Review Tribunal.
On 12 February 2024, the Tribunal sent the applicant an invitation to attend a hearing scheduled on 19 March 2024, to give evidence and present arguments relating to the issues arising in his case.
On 18 February 2024, the applicant sent the Tribunal a completed response to the hearing invitation form. He said that he required a Malay interpreter. He said that he intended to rely on documents at the hearing, but he didn’t outline what those documents were.
The applicant also requested that the Tribunal take oral evidence from his brother, a sales co-ordinator. The applicant described his brother as one of his closest brothers, and said they live and rent together. He described the evidence his brother would give as him being a witness to the applicant being chased by creditors and severely threatened.
On 11 March 2024, the applicant sent the Tribunal relevant documents for his hearing, being a typed personal statement. The statement set out the applicant’s life and work history, his debts and the opportunity to come to Australia to work and pay off debts.
On 12 March 2024, the Tribunal sent the applicant a letter saying that due to circumstances beyond the Tribunal’s control, the hearing could no longer proceed on 19 March 2024. The hearing was re-scheduled to 10 April 2024.
The applicant sent the Tribunal another response to the hearing invitation form. He repeated his request that the Tribunal receive oral evidence from his brother, describing the relevance to his case in the same terms as he had before.
At the hearing, the applicant gave evidence that he feared returning to Malaysia because he fears harm from his wife’s ex-husband, and he fears the Malaysian economy. He said that he has two children now and that everything is expensive in Malaysia. He said if he returns, he will have to start from the bottom. He also said that if he had to return, he would go to Kuala Lumpur to live as he could probably find a job there.
The applicant said that he is scared of his wife’s ex-husband, who has been looking for her. He described his wife’s ex-husband as a violent, ex-Navy person, and who has two siblings who are police officers. He said his wife lives about four hours from Kuala Lumpur and that her ex-husband will know that she has returned, as his wife will go and visit her mother, sister and children if she returns to Malaysia.
The applicant said that his wife’s ex-husband wants money, and that is why he is still interested in her. The applicant said that he is aggressive, and that he regularly goes to his wife’s mother and asks for money for the children in his care, being the children he has with the applicant’s wife.
The Tribunal asked the applicant why he could not report any threats from his wife’s ex-husband the Police, as Malaysia had an effective Police Force. The applicant said that he could do that, but he would get angry if anyone tried to hurt his kids.
The applicant told the Tribunal that when he lodged his application for the protection visa he knew his wife, but they were not in a relationship then, which is why he did not raise the claim to fear harm from her ex-husband, as he was unaware of the situation then.
The Tribunal asked the applicant whether he was relying on the claims made by his wife in her protection visa application, and he said that if he was to return to Malaysia, he could not stay in one room with his family. It would be difficult, and a struggle, and his siblings could not help him if he returns to Malaysia.
The applicant told the Tribunal that when he first came to Australia, he had a lot of debts, including to loan sharks. He said that he has now paid off those debts, and that he has one personal loan to repay. He has also helped his brother financially, who was scammed, and he has assisted his wife to pay her debts.
The Tribunal summarised that the applicant was fearful of returning to Malaysia as he will be unable to support his family, and also give money to his wife’s ex-husband. He will also find it difficult to find work that pays him a sufficient amount to support his family and he will have to start at the bottom again. He will not be able to afford decent accommodation and will have to live in one room. He has greater opportunities in Australia and can provide larger accommodation for his family to live in.
In considering the applicant’s claims, the Tribunal accepted that the applicant did not complete high school, and that his level of education restricts his employment opportunities and earning capacity. The Tribunal accepted the applicant will have to start over again on his return to Malaysia. It accepted that the applicant’s earning capacity is higher in Australia than it is in Malaysia, and allows him to support himself and his family, as well as sending money back to Malaysia to support his family there.
The Tribunal accepted that the applicant can rent a large house in Australia, and that he may not be able to rent a similar size property if he returns to Malaysia. It accepted that the applicant has been able to pay his debts as well as his wife’s debts while in Australia. It accepted that he still has one debt to pay and that he may have to continue to pay that on his return to Malaysia.
The Tribunal accepted the applicant’s earnings in Malaysia would be lower than he might be able to earn Australia, but it was not satisfied that they would be so low as to threaten his ability to subsist in Malaysia or otherwise amount to serious harm.
The Tribunal did not accept that there is a real chance that the applicant will be denied employment, threatening his capacity to subsist if he returns to Malaysia. The Tribunal found that the applicant would not face a real chance of serious harm if he returned to Malaysia, now or in the reasonably foreseeable future, due to the economic circumstances in Malaysia.
The Tribunal referred to country information to find that should the applicant or his family members be subjected to threats or constant demands for money from his wife’s ex-husband, there are effective protection measures through the State, including the Police and criminal law and judicial system. The Tribunal went on to find that the applicant does not have a well-founded fear of persecution on this basis.
The Tribunal also dealt with the applicant’s claim that the health system in Malaysia is not as good as it is in Australia. The Tribunal took into account country information to accept that the applicant may need to wait, as well as travel, to access appropriate health services, including mental health services, for himself.
The Tribunal also noted that while Malaysia may have a lower standard of health care than is available in Australia, it is not clear on the country information why health care would be systematically and discriminatorily withheld from the applicant. The Tribunal set out the country information showing the general availability of universal health care, and did not accept that should the applicant require medical treatment, he will be subject to serious harm as a result of systematic or discriminatory conduct, and found that the applicant does not have a well-founded fear of persecution for reason of his health.
The Tribunal considered the applicant’s claims that Malaysia is not a safe country to live in, and noted that he has not claimed to have experienced harm before as a result of security issues, terrorism or crime. The Tribunal took into account country information that security was stable and the Police were effective. It rejected the applicant’s claims as purely speculative. The Tribunal found that there is not a real chance of serious harm to the applicant for these reasons if he returns.
The Tribunal considered the applicant’s claims individually and cumulatively, and found that the applicant does not have a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if he returns to Malaysia.
Having made these findings, the Tribunal went on to consider whether the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958. The Tribunal relied on the findings made in the refugee assessment, and was not satisfied that there was a real risk that the applicant would suffer significant harm for any reason on his return to Malaysia.
The Tribunal was accordingly affirmed the delegate’s decision not to grant the applicant a protection visa.
On 5 June 2024, the applicant applied for judicial review of the Tribunal’s decision.
There is one ground of review pleaded, with three separate parts. The ground of review as pleaded is:
The decision of Tribunal
a.The applicant’s fear of harm and stress due to the ex – wife husband’s treats and demands for money is understable, especially given the history of domestic violence. The impact of ongoing harassment and intimidation on the applicant’s mental health and well being.
b.The safety and well being of the applicant, as well as their families are at risk to life and liberty. The applicant’s life and liberty are threatened by threats and possible attack. Lack of protection from authorities in their country of origin. The Tribunal biased to grant international rights for applicant.
c.The applicant humbly request that Tribunal reverse the decision and reconsider to ensure the safety and well-being their family. The Tribunal made a significant mistake in understanding the facts of the case that would risk harm and separation if they were forced to return to their country of origin.
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. 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.
[1] [2018] FCA 784.
[2] [2023] FCA 384.
This is also appropriate because of the language barrier, and the fact that the applicant did not file and serve any written submissions, amended application or additional evidence in accordance with the orders made by the registrar on 29 August 2024. With all that in mind, I gave the applicant an opportunity to expand upon the grounds of review, including to give particulars to help me understand the errors that I was being asked to consider. I also explained to the applicant the limitations on the court’s jurisdiction, that it is not permitted to conduct a review of the merits of the Tribunal’s decision, and that it did not have the power to grant the applicant a visa. I set out for the applicant some of the more commonly recognised categories of jurisdictional error and explained to him that in order to be entitled to the relief he is seeking, he must establish that the Tribunal’s decision is affected by jurisdictional error.
In overview I told the applicant that jurisdictional error is made out if the Tribunal exceeds the limits of the decision-making authority that is conferred on it by the statute. The error must also be material in the sense that it could realistically have deprived the applicant of a successful outcome.[3]
[3] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.
When I gave the applicant the opportunity to break down and further particularise his grounds of review, he explained to me that for ground 1(a) he was referring to his wife’s evidence in her protection visa application of a Police report made about her ex-husband, and an assault by him. He said the report explained the matter in great detail. He said that the Tribunal did not obtain and weigh his wife’s evidence of the Police report. The applicant referred to his wife’s protection visa application, and separate judicial review proceedings in this court, which counsel for the Minister explained to me had been dismissed on 15 November 2024.[4]
[4] DKT24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1201.
As to ground 1(b), the applicant said he would go to any lengths to protect his family. He took issue with the Tribunal’s statements and findings about the availability of Police support and assistance in Malaysia, and said that despite this, his wife was still assaulted. He said that the Tribunal was biased, and that Police in Malaysia are open to corruption. The Tribunal said the Police will help, but the applicant’s point is that the Police will not help.
Further to ground 1(c), the applicant said the Tribunal made a significant mistake. He said that the attack on his wife was downplayed. It was written off as a small incident, and not a big deal at all. But he said that it was a big deal. In summary, the applicant said that he is very fearful that something may again happen.
In general terms, an applicant has the onus of establishing jurisdictional error. In addition to the points made by the applicant, I have endeavoured to assess the recognised categories of jurisdictional error that are apparent in the grounds of review, and in the materials. At the hearing I raised the further question with the parties about the adequacy of the Tribunal’s consideration of the applicant’s request for it to take oral evidence from his brother. My assessment follows.
Ground 1(a)
It is an applicant’s responsibility to advance evidence and arguments in support of their claims. The Tribunal has no general duty to inquire.[5] In EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs,[6] Judge Forbes summarised the principles as:
[5] Abebe v Commonwealth of Australia [1999] HCA 14.
[6] [2024] FedCFamC2G 105 at [51] – [57].
The Tribunal operates in an inquisitorial, rather than adversarial, fashion and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision.
However, the Tribunal is under no general duty to use, or to consider using, its investigative powers to obtain information relevant to the review. Although the Act confers on the Tribunal wide discretionary powers to investigate an applicant’s claims, the legislation does not impose on the Tribunal a general duty to make inquiries in addition to the information provided to it by the applicant.
It is well-established that a decision-maker has no duty to make his or her own inquiries in order to make out an applicant’s case.
However, in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [60], Kenny J observed (citations omitted):
[…] On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her. These authorities stretch back over the life of the Tribunal[…] On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
The circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are “ a confined category of case ”.
As to the circumstances where a failure to inquire might give rise to jurisdictional error, the High Court held in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 ( SZIAI ) at [25] that:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a duty to inquire, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a 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 review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case […]” (emphasis added)
Further, in SZIAI Heydon J observed at [52]:
The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve.
(citations omitted)
The applicant’s initial claims for protection were founded in employment-related, and economic claims. The applicant was provided with an opportunity to provide further documents in support of his claims, and he took that opportunity, including by supplying a further typed statement on 11 March 2024.
The typed statement, in the main, expanded on the applicant’s financial and economic claims. The typed statement raised no claim to fear harm due to threats of harassment, intimidation, demands or violence from his wife’s ex-husband.
At the hearing, the applicant told the Tribunal that he was aware that his wife had applied for protection, and was aware of her claims. The Tribunal asked the applicant if he was relying on his wife’s claims, and there is no indication that he said he was.
When asked, he said that he could make Police reports, but he would be angry if anyone tried to hurt his kids.
Whilst the applicant told the Tribunal that he did not claim to fear harm from his wife’s ex-husband initially because he was not in a relationship with her at the time, nor aware of the situation, that does not provide any explanation for why the claim was not mentioned in the applicant’s typed statement to the Tribunal sent on 11 March 2024, many years after meeting and marrying his wife, and starting a family.
In all respects, the applicant’s references to his wife in the context of his claims was in terms that she is a “full-time housewife” and that he is required to pay her debts.
Further, the applicant’s updated statement that in Malaysia he worked for several months, made a bank loan to buy a car in 2014 which he is still paying off, and has a personal loan, is not consistent with the applicant’s initial claims in his protection visa application that he had never been employed, and was reliant on financial support of family.
After the hearing, on 12 April 2024, the applicant sent the Tribunal further documents, being birth certificates and his certificate of marriage. The applicant did not send the Tribunal any further materials regarding a Police report made by his wife in Malaysia.
In any event, and whatever the outcome of his wife’s Police report may have been, the Tribunal relied on country information to find that even if the applicant or his family are subjected to threats or constant demands by his wife’s ex-husband, there are effective protection measures in Malaysia that are available.
The Tribunal's use of and reliance on country information, as well as the weight to be afforded to country information, are matters for the Tribunal.[7] The applicant’s disagreement with the country information and his beliefs that the Police are corrupt and will not help him, does not amount to any jurisdictional error.
[7] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.
Further, the Tribunal considered the applicant’s mental health claims, incorporating his stress from having to find employment, accommodation, transport, pay his debts and support his family, as well as deal with his wife’s ex-husband coming around and demanding money.
Again, relying on country information, the Tribunal found that should the applicant require treatment for his health, including his mental health, he may need to wait and also travel, but that he could access appropriate services, including mental health services.
I do not consider there is any error in ground 1(a).
Ground 1(b)
Whilst bias is a recognised category of jurisdictional error, an allegation of bias must be distinctly made and clearly proved. In Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs,[8] Judge Kendall said that in order to make out bias, an applicant must establish that:
(a) The Tribunal, in the case of actual bias was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented; or
(b) The Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case.
[8] [2024] FedCFamC2G 60 at [61] (citations omitted).
At the hearing in this court, the applicant said that the Tribunal was biased because it made a statement that the Police presence in Malaysia was effective, however his wife was assaulted. He reiterated that he believes the Police are open to corruption, but the Tribunal found the Police were effective.
As I have assessed in Ground 1(a), the Tribunal’s findings about the Police were based on country information which it was entitled to rely on and weigh up.
There is no basis for the Tribunal’s use of country information to found a claim in actual or apprehended bias.
This ground otherwise raises no additional issues to those assessed in Ground 1(a).
As there is nothing in the material available, or evident in the Tribunal’s reasons, that show the threshold for actual or apprehended bias has been met, no jurisdictional error is evident in this ground.
Ground 1(c)
I explained to the applicant that the court is unable to conduct a merits review of the Tribunal’s decision. As I’ve also pointed out, an applicant must show more than emphatic disagreement with the decision.
The applicant explained that his reference to the Tribunal making a “significant mistake” was a reference to downplaying the attack on his wife by her ex-husband. As I have assessed, the applicant did not put those matters before the Tribunal. He did not ask the Tribunal to take oral evidence from his wife. He made reference to his wife’s application for a protection visa, but her claims were separately made.
Whilst the applicant set out his claims to fear harm from his wife’s ex-husband, I do not find that the Tribunal had any duty to make any inquiry about the matters advanced in the applicant’s wife’s claims for protection. Further, even if the Tribunal made some error of fact or downplayed the claimed seriousness of the threats from his wife’s ex-husband, the Tribunal considered the claim in detail, and reached conclusions which were substantially informed by country information going to the availability of law enforcement protections in Malaysia.
To the extent that the applicant’s claim that the Tribunal made a “significant mistake” may be said to be a complaint about the legal unreasonableness or illogicality of the decision, in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[9] 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.[10]
[9] [2022] FCAFC 3.
[10] Paragraphs [33] to [35].
In this case, the Tribunal’s assessment of the applicant’s individual claims was cogent and methodical, and included a cumulative consideration of the claims.
I do not consider there is any jurisdictional error in Ground 1(c).
Whether the Tribunal had regard to the applicant’s request for the Tribunal to call his brother as a witness
The applicant asked the Tribunal to take oral evidence from his brother. He explained the evidence he would give, and the relevance to his case as he being a witness to him, “ … being chased by creditors and severely threatened”.
The Tribunal observed that the applicant said in his hearing response that he wanted evidence to be taken from his brother, “who witnessed him being chased and threatened by creditors”.
The Tribunal’s hearing record shows that the applicant’s brother recorded as a witness to be in attendance at the hearing, together with his telephone contact number. Notes are recorded in the comments as to how the Tribunal would dial a call to Malaysia.
The hearing record shows no indication that the applicant’s brother gave an oath or an affirmation, or was called to give evidence. It is inferred from the Tribunal’s decision record that the applicant’s brother was not called by the Tribunal.
Section 426 of the Act provides that:
426 Applicant may request Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
The applicant supplied the response to hearing invitation, making the request for the Tribunal to take oral evidence from his brother, on 13 March 2024, in response to a notice dated 12 March 2024. The request was accordingly made within time for the purpose of s 426(2).
In BOL15 v Minister for Immigration & Anor,[11] Judge Lucev said:
Where, as here, the discretion under s 426(3) the Act is enlivened following notification under s 426(2), there can be no doubt that a failure by the Tribunal to have regard to the applicant’s wishes is a jurisdictional error. If an applicant requests that a Tribunal summons a witness, or take evidence from a witness, the Tribunal is not required to do so, at least in part because the Tribunal is under no duty to inquire.
[11] [2016] FCCA 1994 at [14] (citations omitted).
In BTF15 v Minister for Immigration & Border Protection,[12] Katzmann J observed that statutory discretions must be exercised reasonably and that there must be an intelligible justification for the exercise of power. A court may infer unreasonableness where it is not possible to understand how the decision was reached.
[12] [2016] FCA 647 at [39] – [41].
In Minister for Immigration and Border Protection v Singh,[13] the Full Court of the Federal Court said:
The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
[13] [2014] FCAFC 1 at [58].
In BTF15, Katzmann J went on to say:[14]
“ … a decision as to whether to receive oral evidence will depend, to a significant extent, on the relevance and importance of the evidence. Where on the face of the material before the Tribunal there was no reason to suppose that the authors of the statements could allay its particular concerns about the appellant’s credibility, it was not unreasonable to decide not to question them. The Tribunal was not obliged to test their accounts or to give them an opportunity to elaborate upon them before it came to an adverse conclusion about their evidence. Proceedings in the Tribunal are inquisitorial, not adversarial.
[14] At [55].
In this case, the Tribunal was clearly aware of the applicant’s request for it to take oral evidence from his brother, although there is no clear record of how it had regard to the applicant’s wishes, and deciding to exercise its discretion against those wishes.
It would have been preferable for the Tribunal to have done so, having expressly identified the request in the decision record, but then going no further. However, notwithstanding this, I consider that it can be inferred that the Tribunal had regard to the relevance and importance of the proposed evidence in the context of the applicant’s claims. They did not include a claim to fear harm from creditors or loan sharks, but rather from the applicant’s wife’s ex-husband. It was not suggested the applicant’s brother could give any relevant evidence in this respect.
Further, the applicant gave the Tribunal updated evidence at the hearing that he had a lot of debts in Malaysia, including to loan sharks, that he since paid off, having just one personal loan remaining. Having accepted this updated evidence, I consider that it is implicit in the Tribunal’s reasoning that it formed the view there was no need to call the applicant’s brother to give oral evidence about him being chased and threatened by these creditors in the past in these circumstances.
I do not find in the circumstances that the failure to call him lacked intelligible justification, or was an unreasonable exercise of discretion by the Tribunal.
Conclusions and orders to be made
I do not consider that there is any other jurisdictional error apparent in the Tribunal's decision as put forward by the applicant or otherwise.
In these circumstances, I will dismiss the application.
I will hear the parties as to costs if necessary.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 4 March 2025
0
20
1