DYZ18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 376
•19 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYZ18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 376
File number: MLG 2279 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 19 March 2025 Catchwords: MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – whether the Tribunal failed to consider relevant facts – whether the Tribunal considered the statehood of the applicant’s child – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to do its duty – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) pt 7, div 4, ss 5, 5H, 5H(1), 5J, 5J(a), 5J(b), 5J(c), 5J(1), 5K, 5LA, 36, 36(2), 36(2)(a), 36(2)(aa), 36(2A), 91R, 411(1)(c), 412(2), 414(1), 415, 422B, 499
Migration Regulations 1994 (Cth) sch 2, regs 2.08, 2.08(1)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 3
Cases cited: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 233 FCR 136
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
Minister for Home Affairs v CLR15 [2019] FCAFC 45, 268 FCR 339
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW[2010] FCAFC 41, 183 FCR 575
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, 212 FCR 99
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12
MZZZWv Minister for Immigration and Border Protection [2015] FCAFC 133, 234 FCR 154
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1
Re Patterson; Ex parte Taylor[2001] HCA 51, 207 CLR 391
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 29 January 2025 Date of hearing: 13 February 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Lessing Solicitors for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2279 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYZ18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
19 MARCH 2025
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 2 August 2018 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 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 Gostencnik
INTRODUCTION
The applicant has applied for judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the (then) Minister for Immigration and Border Protection refusing the applicant a Protection (Class XA) (Subclass 866) visa.
BACKGROUND
The applicant is a Malaysian citizen who arrived in Australia on 15 December 2016 on a (Class UD) (Subclass 601) Electronic Travel Authority visa: Court Book (CB) 25, CB93. On 8 February 2017, the applicant applied for a protection visa and was granted an associated Bridging visa: CB93. On 23 February 2017, the (then) Department of Immigration and Border Protection acknowledged receipt of the visa application: CB48-CB52. The applicant’s visa application claimed that she left Malaysia because she could not repay a student loan, and she feared being unable to find a job and being blacklisted (and consequently being unable to borrow from a bank) because she was unable to repay the debt: CB36. The applicant claimed that Malaysia’s economy has worsened, the authorities cannot protect her from a financial problem: CB38, and she could not relocate within Malaysia because she cannot find a job and will struggle to support her family: CB37. The application also indicated the applicant had not been harmed and did not fear harm if she returns to Malaysia: CB38.
On 18 September 2017, the Minister’s delegate refused the visa application, and a notification of the delegate’s decision was transmitted to the applicant by email: CB89. The notification attached to the email comprised a notification letter: CB89-CB91, a decision record: CB93-CB97, and two attachments including an extract of ss 5H, 5J and 36 to the Migration Act 1958 (Cth) (Act): CB98-CB101. The delegate was not satisfied that the applicant is a refugee as defined in s 5H of the Act, nor that there were any substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm. The delegate was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act, and consequently refused the protection visa application: CB97.
TRIBUNAL PROCEEDING
The applicant applied to the Tribunal for a review of the delegate’s decision: CB102-CB108. The Tribunal acknowledged receipt of the application on 27 September 2017, noting that the validity of the application had not been assessed and enclosed an ‘Information for review applicants’ factsheet: CB123-CB130. On 1 February 2018, the Tribunal invited the applicant to attend a hearing scheduled for 5 March 2018 to give evidence and present arguments relating to the issues in her case: CB132-CB133. The correspondence enclosed an ‘Information about hearings’ factsheet: CB134-CB137, and requested the applicant complete and return a ‘Response to hearing invitation – MR Division’ form to confirm her attendance at the hearing and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider: CB138-CB140.
Tribunal case notes made on 9, 14, 21 February and 2 March 2018 record that the applicant called the Tribunal and requested an adjournment of the hearing as she was scheduled to give birth the week prior: CB141-CB142, CB145-CB147. The applicant provided the Tribunal with a doctor’s certificate confirming her pregnancy and expected date of confinement: CB144. On 2 March 2018, the Tribunal granted the applicant an adjournment, and by email transmission on 3 April 2018, the Tribunal invited the applicant to attend a hearing re-scheduled for 30 April 2018: CB149-CB152. The Tribunal’s correspondence again enclosed an ‘Information about hearings’ factsheet: CB153-CB156, and requested the applicant complete and return a ‘Response to hearing invitation – MR Division’ form to confirm her attendance at the hearing and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider: CB157-CB159.
The applicant attended the hearing with the assistance of an interpreter in the Malay and English languages: CB184. During the hearing, the applicant sought an extension of time to gather evidence concerning her child’s birth in Australia: CB189. The Tribunal granted the applicant further time, and on 1 June 2018, the applicant provided the Tribunal with her child’s birth certificate evidencing that her child was born in Australia and out of wedlock: CB175-CB176.
By its decision made on 2 July 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa: CB183. The applicant was notified of the Tribunal’s decision and was provided with a copy of its Statement of Decision and Reasons (Decision): CB183-CB200, an ‘Information about decisions – MR Division’ factsheet: CB180-CB182, and an extract of ss 5 and 36 of the Act: CB201-CB203.
TRIBUNAL’S DECISION AND REASONS
The Tribunal sets out at [1]-[12] of the Decision a brief introductory background to the review application followed by a summary of the relevant protection visa criteria by reference to ss 5H(1), 5J(1), 5K, 36 of the Act, Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) and Ministerial Direction No.56 made under s 499. The Tribunal also notes that it was required to consider policy guidelines prepared by the Department of Immigration (PAM3) Refugee and humanitarian – Refugee Law Guidelines and country information prepared by the Department of Foreign Affairs and Trade to the extent that it is relevant to the decision under consideration. At [13] of the Decision, the Tribunal states that the issue before it was whether Australia has protection obligations towards the applicant, and sets out its conclusion that the delegate’s decision should be affirmed.
The Tribunal concluded at [14]-[17] of the Decision that the applicant was a Malaysian national and therefore, Malaysia was the receiving country for the purposes of assessing the applicant and her son’s claims. At [22]-[23], the Tribunal summarised the applicant’s claims as set out in her visa application as well as those described by the Tribunal as “new” claims raised at the review hearing as follows:
•The applicant left Malaysia because she could not repay a student loan.
•She fears she will be unable to find a job as she is 'blacklisted' since being unable to repay the debt.
•She has not been harmed and does not fear harm if she returns to Malaysia.
•The economy in Malaysia has got worse and the authorities cannot help protect her from a financial problem.
•She could not relocate within Malaysia because she cannot find a job and will struggle to support her family.
•The applicant has been in Australia since December 2017 and gained her 'bridging visa' in April 2018 and has been working in a local supermarket in Griffith, NSW.
•In this time the applicant met a Sri Lankan national and formed a relationship with him.
•Her partner told her that he (sic) a previous relationship with another woman in Sri Lanka but that had ended.
•Her partner experienced certain difficulties with his visa – was detained in October 2017 and was returned to Sri Lanka in December 2017.
•The applicant fell pregnant and subsequently gave birth to a child who is also the child of the Sri Lankan national.
•She subsequently was informed by a third person who received the news of her partner's marriage in Sri Lanka via 'Facebook' to her surprise and disappointment.
•The applicant fears that if she returns to Malaysia she will be considered an 'outcast' by society and her family because she is a 'single mother' and her 'new-born child' will not be able to be treated 'equally' because it has 'no father' and is considered 'illegitimate'.
The “new” claims were in substance that the applicant and her child will be outcasts if returned to Malaysia because she is a single mother, and the child was born to a single mother.
The Tribunal next proceeded in its Decision to set out some of the applicant’s viva voce evidence, noting the applicant made the following claims:
(a)the applicant took out a loan owed to the government financial institution in the amount of 40,000 MYR for her diploma course: at [28];
(b)she only re-paid 2,000 MYR and hence was ‘blacklisted’ by the government agency. The applicant did not have the loan agreement in her possession as the documents were in Malaysia, and the news of her ‘blacklisting’ was only relayed by a friend: at [30]-[31];
(c)the authorities are attempting to recover the loan owed by the applicant; however, she did not experience any issues when she applied for a passport and visa, and when she left Malaysia: at [34];
(d)the applicant’s main concern if she returned to Malaysia is the inability to meet her repayments, or to raise a loan with any financial institution, but acknowledged that she will be able to find employment: at [35]-[36];
(e)the applicant’s child is born in Australia, and the child’s father is a Sri Lankan citizen who left Australia to reside in Sri Lanka with his new partner: at [37]-[40]. The applicant sought time to provide evidence to the Tribunal concerning her child’s birth: at [41]-[43];
(f)if the applicant returned to Malaysia, she would be treated as an outcast because she is a single parent and her child would have no rights because he is illegitimate: at [44]-[45]. She will not be able to relocate as she “needed to be ‘close to her family’”: at [46]; and
(g)the applicant felt safer in Australia because she believed that her child would have a better future: at [48].
In discussing the applicant’s evidence about the outstanding debt and her ‘blacklisting’ claim, the Tribunal noted that: the applicant had not provided documentary evidence of her blacklisting and that her blacklisting had been relayed orally to her: at Decision [28]-[33]; she had not experienced problems obtaining a passport and visa nor in leaving Malaysia: at [34]; and that the applicant was concerned that she would be unable to secure a home or car loan with any financial institution: at [35]. At [37]-[60], the Tribunal discusses the applicant’s concerns about her child on return to Malaysia and her claim that he would be an outcast. The Tribunal accepted, considering the available country information, that having a child out of wedlock was considered deeply shameful. The Tribunal also noted reports that there were government shelters and support options for unwed mothers and ultimately concluded that while the government does not encourage unwed mothers, a level of government acceptance and support for unwed mothers exists.
The Tribunal accepted at [61]-[62] of the Decision that the applicant faced financial problems because of her debt in Malaysia and it accepted the applicant sought employment in Australia to relieve her debt and that she had a relationship with a Sri Lankan national resulting in the birth of her child. However, the Tribunal concluded that:
(a)as the applicant provided no evidence that she was restricted from participating in the national economy, and that the country information reports indicate that Malaysia is described as a functioning economy, the applicant does not have a well-founded fear of persecution as provided in ss 5J(a), (b) or (c) of the Act: at [63];
(b)although noting her fears of being blacklisted, the applicant provided no evidence that she was “blacklisted” by creditors and country information reports indicate that cases in Malaysia are “processed in accordance with the rule of law and legal procedure”, and so the applicant has access to the judicial system to defend any legal proceedings instituted by creditors: at [64];
(c)the Tribunal accepted, given the stigma and shame attached to unwed mothers, the applicant’s family will not accept her return, nor support her as an unwed mother: at [65]. But it considered the chance that the applicant and her child will face serious harm from the applicant’s immediate family was remote, largely because the applicant said that she did not want to relocate because she wanted to remain close to her family and that she could repair their relationship – suggesting an absence of any feared harm – and so the Tribunal did not accept that the applicant or her child will face a real risk of significant harm as set out in s 36(2A) of the Act, nor are there substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk she, or her child, will suffer significant harm: at [65]-[66];
(d)the Tribunal did not consider that the rejection of the applicant and her child by the applicant’s family amounted to serious or significant harm within the meaning of the Act: [67];
(e)the Tribunal accepted that the applicant may suffer societal discrimination as an unmarried mother, but reasoned that the level of discrimination is minor, and did not accept that her treatment would amount to serious or significant harm as defined in s 36(2A) of the Act: at [70]-[73];
(f)the Tribunal accepted that the applicant and her child may experience some difficulties in re-settling in Malaysia but, as the applicant made no mention of ill-health either physically or mentally, the Tribunal reasoned that they will be able to re-settle, their fear of persecution is thus not well-founded and they will not be subject to significant harm as defined in s 36(2) of the Act upon their return to Malaysia: at [74]; and
(g)the Tribunal accepted that the applicant’s child may face societal discrimination because of the circumstances of his birth, but reasoned that as the child will have emotional and financial support from his mother; and opportunities of creating friendships, the child will not be subject to serious or significant harm as defined in ss 91R and 36(2A) of the Act: at [78]-[84]; nor are there substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s child being removed to Malaysia that there is a real risk that he will suffer significant harm: at [85].
As to the applicant’s oral evidence that she completed a Diploma as a medical laboratory technician and has employment experience in Malaysia and Australia, the Tribunal noted that the applicant will be able to find employment and re-establish herself in Malaysia: Decision at [75]. The Tribunal therefore concluded that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations, nor does she satisfy the criterion as set out in ss 36(2)(a) or (aa) of the Act for a protection visa: at [86]. Consequently, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa: at [87].
CONSIDERATION
By her application filed on 2 August 2018 the applicant has set out 4 grounds of review as follows:
1.The Tribunal failed to consider many vital integers of my case;
a) The Tribunal failed to consider that I only get (sic) blacklisted by the government loan agency in Malaysia after I arrived in Australia. That is the reason I did not experience any issues when I applied for her passport and encountered no problems when leaving Malaysia to come to Australia.
a)The Tribunal failed to consider if me and my son where (sic) made to return to Malaysia and we relocate to more urban area, how the financial constrain (sic) with a higher living cost and the fact that I am not able to raise a loan will negatively affect my capacity, as a single parent to provide and looking (sic) after my son wellbeing. My son will be deprived from his right in having (sic) normal childhood and upbringing.
b) Although my son can return to Malaysia as a permanent residence, (sic) there no (sic) assurance that he can attain Malaysia’s citizenship and that cause a destructive consequences (sic) to his life.
c) The Tribunal did not consider that my son will be made stateless as he cannot claim Sri Lankan citizenship because his biological father did not acknowledge him as his child. Together with the public stigma that he will need to face, my son also will be denied from his right to education, freedom to travel and freedom to choose as a citizen of a country should have.
2.The Tribunal failed to consider many vital evidence that are relevant to my case;
3.The Tribunal deprived me of procedural fairness;
4.The Member has failed to do his duty
The applicant was unable, during the hearing of the judicial review application, to elaborate on these grounds nor was she able to provide particulars of the errors alleged in grounds 2 to 4. At the commencement of the hearing, I explained to the applicant the nature of the Court’s judicial review jurisdiction. I explained that the Court may only grant relief if the applicant establishes the Tribunal’s decision is affected by jurisdictional error and that the proceeding before the Court was not another opportunity to present her merits case nor was it a review of the merits of the Tribunal’s decision or her visa application. I explained that jurisdictional error involved a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law ... no decision at all’ and is in that sense ‘void’”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the applicant some examples of jurisdictional error as including material errors by a decision maker:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)failing to consider a “claim” or a relevant “integer” of a claim;
(h)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(i)failing to observe some applicable requirement of procedural fairness; and
(j)showing actual or there is apprehended bias.
Nevertheless, the applicant sought to engage only with the merits and said she had expected more leniency from the Tribunal given her circumstances, and so she considered the Tribunal did not treat her fairly. She said she was distressed by the Tribunal’s decision and would do anything to protect her child. She said that the Tribunal had failed in its duty because it was not sympathetic to her circumstances. None of the applicant’s oral submissions at the hearing raised any issue of jurisdictional error in respect of the Tribunal’s decision or its process in arriving at the decision.
Turning then to the review grounds set out in the application. Ground 1 contends that the Tribunal failed to consider vital integers of the applicant’s case. By the particulars in paragraphs (a) and (b), the applicant says that the Tribunal failed to consider the timing of her claimed “blacklisting” – that she did not experience difficulties obtaining a passport in departing Malaysia because the blacklisting occurred subsequently – and failed to consider the impact of a requirement of returning to Malaysia and relocating to an urban area would have on the applicant and her child. And by paragraphs (c) and (d) of the particulars, the applicant contends the Tribunal failed to consider the potential harm the applicant’s child would face because the child would be a non-citizen or stateless if the child returned to Malaysia and was refused citizenship in Malaysia. It is uncontroversial that the Tribunal was statutorily required to examine and deal with the applicant’s claims, including an integer of her claims: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 at [57]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 233 FCR 136 at[42], but I do not accept that the Tribunal erred in the manner alleged in ground 1 of the application.
The Tribunal considered the applicant’s claim that she was blacklisted at [30]-[33] of the Decision and it noted at [34] and [63] that despite the authorities still attempting to recover the money, the applicant experienced no issues when she applied for a passport and visa, and encountered no problems when she left Malaysia. The Tribunal’s observations about the applicant’s experience in obtaining a passport, visa and departing Malaysia at [34] are made in the context of her outstanding debt and not the claimed backlisting. The Tribunal’s second reference to the applicant’s experience when departing appears linked to the blacklisting, but when that reference is read in the context of the Tribunal’s consideration of the applicant’s financial circumstances at [63]-[64], it is palpably clear the Tribunal was not convinced about the blacklisting claim given the applicant was “told about her blacklisting by ‘a friend’ back in Malaysia” and absent documentary evidence. And more relevantly, the Tribunal considered the applicant’s blacklisting claim, but concluded by reference to the available country information report that the “majority of cases in [the] Malaysian civil courts are processed in accordance with the rule of law and legal procedure”: at [64] and found that the applicant would have access to the legal system to defend herself in any proceedings instituted by creditors.
During the hearing, the Tribunal asked the applicant that if she feared her family would treat her and her son as outcasts whether she would relocate to another part of Malaysia, but the applicant said that relocation was not possible as she wanted to be “close to her family” and that she would “make her relationship with her family work”: Decision at [65]. Therefore, the Tribunal considered the issue of relocation but did not need to consider the impact of relocation because the applicant told the Tribunal that she would not relocate. The impact of any relocation on the applicant or her child therefore did not arise because the applicant was adamant she would not relocate. The applicant does not take issue with the Decision’s recording of her evidence to the Tribunal in this regard.
As to the applicant’s criticism of the Tribunal’s consideration of the nationality and statehood of the applicant’s child and how the child would be treated as a consequence, the Tribunal cited excerpts of country information. First at [16] of the Decision, the Tribunal considered the Citizenship Laws of the World 2001 which provides:
A child born out of wedlock, outside of Malaysia, to a Malaysian mother, is not considered a citizen of Malaysia. The child may return to Malaysia with the mother with a permanent residency status and may apply for citizenship later.
At [17] of the Decision, the Tribunal cited the United Nations Commissioner for Refugees 2014 which provides:
In Malaysia, children born in the country to either Malaysian mothers or Malaysian fathers automatically acquire Malaysian nationality. But children born to Malaysian mothers outside of Malaysia may only acquire Malaysian citizenship at the discretion of the Federal Government through registration at an overseas Malaysian consulate or at the National Registration Department in Malaysia.
In considering the information, the Tribunal reasoned it was appropriate to assess the child’s claims against Malaysia, because that was the applicant’s country of nationality and the country against which her claims of fear of harm were made. As is evident from the extract above, the applicant’s child was not a Malaysian citizen, but citizenship could be acquired. The child was not a citizen of Australia and so it may be inferred that the Tribunal understood that the applicant’s child was in effect stateless. But the Tribunal was not required (nor empowered) to consider any protection claims of the child as it did not have jurisdiction to do so. Regulation 2.08 of the Regulations prescribes the following:
2.08 Application by newborn child
(1) If:
(a) a non‑citizen applies for a visa; and
(b) after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non‑citizen;
then:
(c) the child is taken to have applied for a visa of the same class at the time he or she was born; and
(d) the child’s application is taken to be combined with the non‑citizen’s application.
As the applicant’s child was born five months after the delegate’s decision, the applicant’s child did not satisfy reg 2.08(1)(b) of the Regulations and so was not automatically considered to have applied to the same visa as the applicant. Furthermore, there was no primary decision made in respect of the child by the delegate pursuant to ss 411(1)(c), 412(2), 414(1) and 415 of the Act (as then in force). As the delegate did not make a decision with respect to the applicant’s child, there was no Pt 7 reviewable decision and the Tribunal therefore lacked jurisdiction to deal with the child’s claims: Minister for Home Affairs v CLR15 [2019] FCAFC 45, 268 FCR 339 at [41].
For the reasons given above, no jurisdictional error is made out by ground 1 or any of the four particulars thereto.
By ground 2, the applicant contends that the Tribunal failed to consider “many vital evidence (sic) that are relevant to [her] case”. This ground is not particularised, and the applicant was unable at the hearing of this application to provide any indication of the evidence proffered by the applicant to the Tribunal which it failed to consider. A generalised contention that the Tribunal did not consider evidence does not amount to jurisdictional error. Ultimately, the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, 212 FCR 99 at [77], [111]. Here, nothing more than a generalised allegation without particulars or any example is made and so no jurisdictional error is disclosed by ground 2.
The applicant’s third ground contends that she was deprived of procedural fairness. Again, this ground is not particularised. The Tribunal’s obligation to afford procedural fairness, in so far as it concerns the hearing rule, is set out in Pt 7 Div 4 and by s 422B of the Act (as then in force) is taken to be an “exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Beyond the applicant making a general suggestion during the hearing that she thought the Tribunal’s decision was unfair as she expected the Tribunal would show her more leniency given her circumstance, the applicant was unable to proffer any example of any denial of procedural fairness about which the ground complains. It is not apparent from the materials that the Tribunal deprived the applicant of procedural fairness. As earlier noted, the Tribunal received the application on 27 September 2017. The Tribunal invited the applicant to a hearing and then granted an adjournment of the hearing on the basis that the applicant was due to give birth and was unable to attend. The Tribunal invited the applicant to attend a re-scheduled hearing on 30 April 2018 to give evidence and present arguments relating to the issues in her case. The invitation requested the applicant, inter alia, to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider. The applicant attended the scheduled hearing, which was conducted with the assistance of a Malay interpreter, where she gave evidence and presented arguments. As is evident from the Decision, the applicant was afforded the opportunity to present new oral evidence and to elaborate on her written evidence. She was asked questions by the Tribunal about a range of matters relevant to her claims. There is no evident procedural fairness failure, and as noted earlier, none is particularised. Therefore, this ground fails to establish jurisdictional error.
By the applicant’s fourth ground, she contends that the Tribunal failed to do its duty. Again, this ground is not particularised and she does not point to any specific failure by the Tribunal to discharge its duty. During the hearing of her application, the applicant was unable to explain how the Tribunal is said to have failed to carry out its duty. The duty imposed on the Tribunal by the Act is a duty to review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. 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 and such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction: SZIAI at [25]; Re Patterson; Ex parte Taylor [2001] HCA 51, 207 CLR 391 at 453 [189] and the authorities cited therein. But here no such allegation is made, and it is not evident on the material that such an error was made. The Tribunal has no obligation to conduct an inquiry to discover whether the applicant’s case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, 183 FCR 575 at [36], [49], neither is it under any duty to make the applicant’s case for her: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; nor to make any further inquiries or obtain information beyond that which is provided by the applicant: SZIAI at [25].
The Tribunal operates in an inquisitorial manner and it is under a duty to arrive at the correct or preferable decision on review according to the material before it, determining the substantive issues which arise on that review without restricting itself to any case advanced by the applicant. In essence, the Tribunal is required, within the limits of the applicable law, to bring its own perspectives, approach and reasoning to the claims made by the applicant: MZZZWv Minister for Immigration and Border Protection [2015] FCAFC 133, 234 FCR 154 at [60]. In other words, it is to exercise its own independent judgment in deciding a review. And as the Full Court in MZZZW explained, part of the statutory task to consider the applicant’s claims afresh and to make that which the Tribunal considers is the correct and preferable decision, includes exposing the Tribunal’s reasoning for making material findings of fact and setting out the material on which those findings are based. But here, no suggestion is made that the Tribunal did otherwise than bring its own independent judgment in deciding the review. Ground 4 does not disclose jurisdictional error.
For these reasons, the judicial review application fails and is dismissed.
Costs
The first respondent sought an award of costs in the amount of $7,467.00 in the event the application failed. The applicant did not advance any cogent reason why in that event a costs order in the amount sought should not be made. Considering the history of this matter, the result, the work involved as disclosed from the filings and that the amount sought is less than the amount currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), I consider the amount of costs sought is reasonable and appropriate. The applicant should pay the first respondent’s costs fixed in the amount of $7,467.00.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 19 March 2025
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