DZA18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 426
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DZA18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 426
File number: MLG 2275 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 28 March 2025 Catchwords: MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where applicant alleges jurisdictional error – where applicant’s grounds of review are not particularised and lack merit – Tribunal’s decision not attended by jurisdictional error – application for review of Tribunal’s decision dismissed Legislation: MigrationAct 1958 (Cth) ss 5H, 36(2), 36(2)(a), 36(2)(aa), 36(2A), 36(2)(b), 36(2)(c), 424A, 499
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: Bushell v Repatriation Commission [1992] HCA 47, 175 CLR 408
Grant v Repatriation Commission [1999] FCA 1629, 57 ALD 1
Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561, 59 FCR 518
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332
MZZZWv Minister for Immigration and Border Protection [2015] FCAFC 133, 234 FCR 154
SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390, 168 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 25 February 2025 Date of hearing: 11 March 2025 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr G Rossi Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2275 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DZA18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
28 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 $5,400.00.
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 seeks judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) made on 28 June 2018 affirming a decision by a delegate of the (then) Minister for Immigration and Border Protection made on 23 June 2017 refusing to grant a Protection (Class XA) (Subclass 866) visa to the applicant.
BACKGROUND
The applicant, a citizen of Malaysia: Court Book (CB) 42; CB52 arrived in Australia on an Electronic Travel Authority (Class UD) (Subclass 601) visa on 18 January 2017: CB43; CB62. On 11 April 2017 the applicant applied for a protection visa: CB1-CB45. On 13 April 2017, the (then) Department of Immigration and Border Protection acknowledged receipt of the visa application by letter transmitted to the applicant by email: CB21; CB46-CB47.
The applicant’s visa application: CB1-CB45 set out that the applicant left Malaysia because of “a misunderstanding with some people” and accompanying threats of harm made by unnamed perpetrators towards the applicant: CB36. The applicant claimed that he was beaten and harassed on multiple occasions by the perpetrators and claimed that he was worried the perpetrators will find him again to repeat the beatings and harassment: CB36-CB38. The applicant did not provide in the application any particulars as to the nature of the misunderstanding or as to the identity or number of the alleged perpetrators. Apart from stating in general terms that he was beaten, threatened and harassed, the applicant did not provide details of the type of harm he suffered. The applicant also claimed that he fears further harm from the alleged perpetrators upon returning to Malaysia: CB38. The applicant claimed that he was unable to seek protection from the Malaysian police because he feared reprisals against him and his family: CB37 and due to a lack of evidence: CB38. The applicant claimed that he attempted to relocate within Malaysia: CB37 but this relocation was unsuccessful in protecting him from harassment: CB38.
On 23 June 2017, the delegate refused to grant a protection visa to the applicant: CB58-CB75 on the grounds that the applicant did not satisfy s 36(2) of the MigrationAct 1958 (Cth) (Act). Section 36(2) provides that to be granted a protection visa, an applicant must be a non-citizen in Australia in respect of whom Australia owes protection obligations, or to otherwise be a member of the same family unit as a person to whom such an obligation of protection is owed.
The delegate’s decision records that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and (aa) of the Act. The delegate did not consider that the applicant held a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’ as required to satisfy the refugee criteria pursuant to s 36(2)(a): CB64. The delegate noted that a person who has a well‐founded fear of persecution for other reasons is not a refugee within the terms of the Act: CB63-CB64.
The delegate considered whether the applicant’s fear of harm engaged the complementary protection obligations set out in s 36(2)(aa) of the Act. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk the applicant will suffer significant harm as defined in s 36(2A): CB64-CB75.
On 13 July 2017, the applicant applied to the Tribunal for a review of the delegate’s decision: CB81-CB82.
TRIBUNAL PROCEEDING
The Tribunal acknowledged receipt of the application on 19 July 2017: CB84 noting that the validity of the application for review had not been assessed, and enclosing an ‘Information for review applicants’ factsheet: CB86-CB88.
On 7 September 2017, the applicant was invited by letter of even date to attend a hearing scheduled for 6 October 2017: CB91-CB92. The letter invited the applicant to respond to the hearing invitation within seven (7) days of receipt of the letter: CB91 by completing and returning the ‘Response to hearing invitation – MR Division’ form enclosed with the letter: CB92. On 27 September 2017, the applicant returned a completed response to hearing invitation form to the Tribunal’s ‘National Registry Mailbox’ by email, wherein he indicated that he intended to take part in the scheduled hearing and that he would require a Malaysian interpreter: CB97-CB100.
On 11 October 2017, the Tribunal wrote to the applicant by email attaching a letter containing an updated invitation to attend a hearing. The attached letter invited the applicant to attend a hearing scheduled for 20 November 2017: CB102-CB103. In that letter, the Tribunal indicated that, on the basis of the information then before the Tribunal, it would be unable to make a decision favourable to the applicant: CB102. The letter stated that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision in relation to the application without taking any further action to allow the applicant to appear: CB103. The applicant was again invited to confirm his intention to attend and participate in the hearing by providing the Tribunal with a completed response to hearing invitation form: CB103. On 19 October 2017, the applicant again forwarded the completed response to hearing invitation to the Tribunal by email: CB105-CB107.
On 20 November 2017, the applicant attended the hearing and was assisted by a Malay interpreter: CB108.
TRIBUNAL’S DECISION AND REASONS
On 28 June 2018, the Tribunal decided to affirm the delegate’s refusal to grant the applicant a protection visa: CB112. On 29 June 2018, the applicant was notified of the Tribunal’s decision by letter enclosing a copy of the Tribunal’s Statement of Decision and Reasons (Decision): CB111; CB113-CB122.
From the outset, the Tribunal highlighted the applicant’s credibility as a significant matter in issue: Decision at [2]. The Tribunal set out the eligibility criteria for the grant of a protection visa pursuant to ss 36(2)(a), (aa), (b), or (c) of the Act: at [3].
The Tribunal also noted that it was bound to consider Ministerial Direction No. 56 (made in accordance with s 499 of the Act) as well as policy guidelines prepared by the Department of Immigration (PAM3) Refugee and humanitarian – Refugee Law Guidelines, and the 2018 Country Information Report for Malaysia prepared by the Department of Foreign Affairs and Trade, to the extent that it is relevant to the application for review: Decision at [4].
The Tribunal recounts that at the hearing, the applicant expanded upon his claims set out in the original application: Decision at [8]. The Tribunal records that the applicant alleged that whilst living in Malaysia, one of his housemates belonged to a criminal gang involved in activities including assault, robbery and collecting money in exchange for protection. The applicant alleged that members of the criminal gang would socialise at his place of residence, and at some time in August 2016 members of the gang asked the applicant to join their enterprise. Initially, the applicant declined any invitation to join the gang, but continued to receive invitations or suggestions that he should join from various members. The applicant alleged that in September 2016, he was threatened by the gang at his place of residence because he refused to join. The applicant gave evidence contending that members of the gang threatened him with assault if he ever publicised details of their activities, to which the applicant responded that if that should occur, he would file a police report. The applicant contended that gang members brushed off the possibility of the police becoming involved because they had an “inside person in the police department”: at [10].
The applicant also gave evidence before the Tribunal that members of the gang physically assaulted him because he had refused to join, and that he fled to his mother’s house, before departing for Australia. The applicant gave evidence that he received further threats, including against his family, but that no harm had come to him or any member of his family: Decision at [11]-[14].
The Tribunal had serious concerns about the applicant’s credibility and evidence: Decision at [16]. In particular, the Tribunal found inconsistencies between the applicant’s claims given in his visa application and the applicant’s evidence provided at the hearing: at [17]-[38]. The Tribunal also noted that, as the applicant had raised some matters for the first time at the hearing, the Tribunal was permitted to draw an unfavourable inference in relation to the credibility of that claim or evidence, but declined to draw that inference on this occasion: at [18].
The Tribunal noted that the “significant inconsistencies and omissions” between evidence given via the original application and the oral evidence provided by the applicant at the hearing substantially undermined the applicant’s credibility and reliability: Decision at [19]. The Tribunal put its concerns about the applicant’s credibility to him at the hearing for comment or explanation, and the applicant appears to have attributed the inconsistencies to his poor literacy in the English language. This explanation appears not to have assuaged the Tribunal’s concerns.
The Tribunal set out that which it regarded as material inconsistencies between the applicant’s written application and oral evidence, at considerable length: Decision at [20]-[27], that which it regarded as contradictory evidence given at the hearing: at [28]-[32] and inconsistencies which it regarded as being of relatively minor concern: at [33]-[38]. The inconsistencies identified by the Tribunal are numerous and varied, many of which go to the heart of the applicant’s claims to fear harm and to have suffered harm in the past. The Tribunal’s assessment of the salient inconsistencies resulted in findings by the Tribunal that: the applicant is (was) not a truthful witness; the applicant attempted to mislead the Tribunal; and the applicant had fabricated the material facts upon which his fear of future harm was based: at [39]. Consequently, the Tribunal found that the applicant will not suffer any harm in the foreseeable future upon return to Malaysia: at [40]. The Tribunal also noted that, whatever claims the applicant made about fearing harm on return to Malaysia, the applicant had not specified what he expected to happen upon his return, his evidence was vague and lacked detail, and it was for the applicant to lead evidence regarding support of claims made: at [40]-[41].
The Tribunal ultimately decided, in light of its adverse credibility findings, that the applicant did not face a real chance of future harm or persecution in the foreseeable future on the basis of any reason claimed: Decision at [44]. The Tribunal considered that the applicant was not therefore a person in respect of whom Australia had protection obligations under either limb of s 36(2) of the Act: at [48]-[49].
CONSIDERATION
As earlier noted, the applicant has applied to this Court for judicial review of the Tribunal’s decision. The applicant’s grounds of review as set out in the application are as follows:
1. The Tribunal failed to consider many vital integers of my case;
2. The Tribunal failed to consider many (sic) vital evidence that are (sic) relevant to my case;
3. The Tribunal deprived me of procedural fairness;
4. The Tribunal Member relied on incorrect information and decided my case using facts from some other Tribunal case; The Member has failed to do his duty
Self-evidently the review grounds are not particularised. And despite orders made by a Registrar of the Court on 20 November 2024 enabling the applicant to file an amended particularised application, written submissions and any affidavit material on which the applicant might seek to rely, the applicant has not filed anything since those orders were made.
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 his merits case nor was it a review of the merits of the Tribunal’s decision or his 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.
During the hearing of the judicial review application, despite insisting that he had prepared the grounds of review, the applicant could not elaborate on the grounds nor provide any particular or example of the errors the Tribunal is alleged by the grounds to have made. Ultimately the applicant said that there was no evidence the Tribunal did not consider, he could not identify any procedural fairness error, and he had no basis for making the allegation in ground 4. The applicant said the Tribunal did not make a legal error and that he did not provide the Tribunal with sufficient evidence to support his claims. Nevertheless, I will consider the grounds the applicant advances in the application.
Grounds 1 and 2
Grounds 1 and 2 may be considered together and contend in substance a failure by the Tribunal to consider the applicant’s claims or integers thereof and the evidence in support of the claims. As already noted, the grounds are not particularised and so on their face they do not disclose jurisdictional error. It is not apparent on the material in the CB that the Tribunal overlooked or failed to consider any element of his oral or written evidence about his claims. To the contrary, it is evident the Tribunal undertook a detailed analysis of the applicant’s claims which he raised in both his written protection visa application and in oral evidence before the Tribunal. The Tribunal was not required to accept uncritically any of the applicant’s claims, and it made relevant adverse findings as to the applicant’s credibility and truthfulness, and at length, explained the basis for making those findings. The applicant does not challenge the credibility findings made nor the Tribunal’s analysis which underpins the findings.
Grounds 1 and 2 are therefore not made out.
Ground 3
By ground 3 the applicant complains, without particulars, that he was denied procedural fairness. On a review of the CB and as set out earlier, the Tribunal appears to have complied with its statutory procedural fairness obligations by inviting the applicant to attend the hearing to give evidence about elements of the applicant’s claims in respect of which the Tribunal held concerns, by raising those concerns with the applicant, and by providing him the opportunity to respond at the hearing. The applicant has not alleged the circumstances that enlivened the Tribunal’s obligations under s 424A (as then in force) nor has he identified any information which might have enlivened that obligation. Otherwise, the Tribunal notified the applicant of its decision and provided what appear to be comprehensive and cogent reasons for its decision.
No jurisdictional error is disclosed and so ground 3 fails.
Ground 4
By ground 4, the applicant contends the Tribunal relied on unidentified incorrect information and decided the case using unidentified facts from some other unidentified Tribunal case and he makes the generalised allegation the Tribunal has failed to do its duty.
Dealing with the last matter first, it is not controversial that the Tribunal on review must consider for itself whether it is satisfied the applicant’s protection visa application should be granted. The review conducted by the Tribunal is a merits review involving a consideration of the application for review, and the arguments and claims advanced, afresh: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133, 234 FCR 154 at [60], [66]; Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561, 59 FCR 518 at 529, [36]; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390, 168 FCR 1 at [20]. The Tribunal operates in an inquisitorial manner, and 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: MZZZW at [56], [66]; Grant v Repatriation Commission [1999] FCA 1629, 57 ALD 1 at [17]-[18]; Bushell v Repatriation Commission [1992] HCA 47, 175 CLR 408 at 424-425; Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [10], [93].
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: MZZZW 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.
A review of the Tribunal’s decision and reasons and the material in the CB discloses the Tribunal appears to have conducted a merits review, it made inquiries of the applicant about his claims; and considered the application for review, and the arguments and claims advanced by the applicant afresh. It gave, as already observed, comprehensive and cogent reasons for its decision, including for the adverse credibility findings it made. There is nothing in the material which suggests the Tribunal failed to discharge its duty.
As to the first part of the allegation in ground 4, I agree with the first respondent’s contention that it must fail because it does not identify any information or facts which are alleged to be sourced from another Tribunal decision, or which are incorrect. In any event, it seems clear enough from the Tribunal’s reasons that each factual finding made by the Tribunal relates to a claim made or evidence given by the applicant.
Consequently ground 4 does not disclose jurisdictional error and fails.
As the applicant was unrepresented before the Court, I have reviewed the Tribunal's decision and the material in the CB filed by the first respondent with an eye to identifying jurisdictional error beyond merely dealing with the applicant’s grounds of review, but I have not identified any such error.
Accordingly, the application is dismissed.
Costs
The first respondent seeks an award of costs in the amount of $5,400.00 in the event the judicial review application fails. The amount 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) for a migration matter determined at final hearing. There is no cogent reason advanced why such an order ought not be made and I consider the amount sought to be reasonable and reflective of the reasonable costs incurred by the first respondent. The applicant is to pay the first respondent’s costs fixed in the sum of $5,400.00.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 28 March 2025
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