DZA20 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1566

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DZA20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1566   

File number(s):

MLG 3188 of 2020

Judgment of:

JUDGE GERRARD

Date of judgment:

26 September 2025

Catchwords:

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider a claim or an integer of a claim – procedural fairness – whether Tribunal relied on incorrect information – misunderstanding of Court’s jurisdiction – no jurisdictional error established – application dismissed

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Migration Act 1958 (Cth) ss 5H, 5J(1)(a), 36(2)(a), 36(2)(aa), 425, 476

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2013] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

DDQ17 v Minister for Immigration and Border Protection [2018] FCA 784

ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41

Minister for Immigration and Citizenship v SZRKT (2013) 2121 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

NABE v Minister for Immigration & Multicultural Affairs (No 2) (2004) 144 FCR

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Division:

Division 2 General Federal Law

Number of paragraphs:

56

Date of last submission/s:

14 August 2025

Date of hearing:

29 August 2025

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Malay interpreter

Counsel for the First Respondent:

Sophie Ward

Solicitor for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 3188 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DZA20

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	26 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE GERRARD:

INTRODUCTION

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant the applicant a Protection (Class XA)(Subclass 866) visa (the visa).  In order for the applicant to succeed in this Court, she must establish that the decision made by the Tribunal contains jurisdictional error.  This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.

   BACKGROUND

3. The applicant is a citizen of Malaysia (Court Book (CB) 18). She first arrived in Australia on 10 April 2018 as the holder of a visitor visa (CB 24).

4. On 28 June 2018, the applicant applied for a protection visa (CB 17-38, 40). In her application, she claimed to have left Malaysia due to not being able to financially support her family owing to low salary and economic pressures.  She states a need to sometimes borrow money from friends or money lending companies in order to pay bills, rent and food for the family. She is concerned that if she is to return to Malaysia, she will no longer be able to support her family and accumulate many debts in the future (CB 33-35).

5. On 8 August 2018, a delegate of the Minister refused to grant the applicant the visa (CB 51-61). The delegate found that the applicant’s fear in facing economic hardship in Malaysia failed to satisfy grounds in relation to ss 5J(1)(a) and 5H of the Act. The delegate was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as set out in ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act) (CB 51-57).

6. On 10 August 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 62-63).

7. On 29 June 2020, the applicant was invited to attend a telephone hearing  scheduled for 16 July 2020 (CB 70-72). On the 16 July 2020, the applicant attended the hearing with the assistance of a Malaysian interpreter (CB 73).

8. On 22 July 2020, the applicant submitted screenshots of her Maybank internet banking to support her claim to fear economic harm in Malaysia (CB 77-83).

9. On 5 August 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 86-93).

10. On 31 August 2020, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.

    THE TRIBUNAL’S DECISION

11. To obtain assistance in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.  It is therefore necessary to outline the Tribunal’s decision in some detail.

12. The Tribunal began by identifying the visa decision under review (at [1]-[2]). The Tribunal outlined relevant criteria for a protection visa followed by the applicant’s written claims for protection as set out in her visa application (at [3]-[8], [16], [17]).

13. The Tribunal summarised the applicant’s protection claims, namely that (at [16]- [17]):

    ·she feared returning to Malaysia because of economic pressures;

    ·she was unable to support her family financially;

    ·she sometimes needed to borrow money from her friends and money lending companies;

    ·she may have a lot of debts; and

    ·her future would darken

14. At the hearing, the applicant provided evidence about her original claims, and also issued a new claim in relation to her fear of a forced marriage upon returning to Malaysia (at [18]).

15. The applicant stated that she had come to Australia because her family, namely her mother and brothers, asked her to get married against her wishes. She further stated that if she lived with her family, her life would be very stressful (at [19]).

16. When the Tribunal asked why she could not live independently from her family in Malaysia, given the applicant was then 28 years old, the applicant stated that she did not have her own home and so had to live with her family (at [18]-[20]). The applicant further stated her reluctance to live and work in a large city such as Kuala Lumpur, owing to never having been there and not knowing the place (at [20]).

17. The Tribunal expressed their concerns regarding the credibility of the applicants claim in relation to being subjected to a forced marriage by her family on the grounds of:

    ·failure to mention the claim of forced marriage in her protection visa application despite this being one of the reasons as to why the applicant left Malaysia;

    ·her claim that her brothers would force her to marry against her wishes being inconsistent with her original statements regarding her family composition as set down in her protection visa application, which stated the applicant having only three older sisters and no brothers.

18. At the hearing, the Tribunal discussed the inconsistent evidence with the applicant, who attributed the inconsistencies to a friend who helped her fill out the application (at [23]). The Tribunal refused to accept the applicants claims in relation to her forced marriage to be true (at [28]).

19. The Tribunal also failed to accept that the applicant was primarily responsible for the financial support of her mother and two younger sisters following the death of her father.  The Tribunal found the applicant’s inconsistent evidence regarding her family’s composition specified on her visa application extended to her indicating her father was still alive, and was living with the applicant, her mother and her three older sisters at the same address (at [32]).

20. The Tribunal did accept that the applicant owed money to a financial institution for a personal loan (at [31]). It did not, however, accept that the applicant would come to harm for any reason relating to the loan, and found the applicant would be able to repay the loan upon her return to Malaysia (at [31], [34]).

21. The Tribunal stated their concerns regarding the significant differences between the applicant’s evidence at hearing and the statements made in her visa application. Those discrepancies ultimately caused the Tribunal to consider that certain details of the applicant’s evidence should not be accepted (at [10], [11]).

22. The Tribunal found the economic harm feared by the applicant was not for reasons of her race, religion, nationality, membership of a particular social group or political opinion. The Tribunal also found that the applicant failed to meet the criteria as set out in s5J(1)(a) of the Act, and therefore followed that she failed to meet the criteria set out in s36(2)(a) of the Act (at [36]).

23. The Tribunal considered the issue as to whether the applicant ultimately satisfied the criteria of being a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other complementary protection grounds.  The applicant’s evidence demonstrated that no-one would seek to harm her upon her return to Malaysia, including her family. The evidence also failed to establish a real risk that the applicant would face significant harm in relation to her economic situation (at [39]).

24. Ultimately, the Tribunal established that there was no such evidence to satisfy the criterion under s 36(2)(a) or (aa), and determined that the applicant was not a person in respect of whom Australia had protection obligations (at [39]-[42]).

25. The Tribunal affirmed the decision not to grant the applicant a protection visa (at [43]).

    APPLICATION TO THIS COURT

26. The application for judicial review filed by the applicant on 31 August 2020 contains five grounds of review as follows (without alteration):

    1. The Tribunal filed to consider many vital integer of my case

    2.  The Tribunal deprived me of procedur fairness

    3. The Tribunal Member failed relied on incorrect information and decided my case using facts form some other case;

    4. The Tribunal Member failed to ask me questions abaout the types of harm relevent in my case.

    5. According in section 44 of the Administrative Appeal Tribunal Act 1975 there is a description and authorizing me to make such action appeal to Federal Circuit Court.

27. The applicant appeared before the Court on 29 August 2025 without legal representation but with the assistance of a Malay interpreter.  The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister’s written submissions.

28. The materials before the court include the application for judicial review and supporting affidavit filed by the applicant on 31 August 2020 (the affidavit being taken as read and in evidence at the hearing on 29 August 2025), a Court Book numbering 101 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 14 August 2025.

29. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DDQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2013] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what she believed to be wrong the Tribunal’s decision and/or procedure.

30. The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));

    (b)where the decision-maker ignores relevant material (Craig at 178);

    (c)where the decision-maker relies on irrelevant material (Craig at 178);

    (d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354- 355);

    (e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 2121 FCR 99 at [111]);

    (f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

    (g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).

31. However, it was also explained to the applicant that this was not an exhaustive list and she should attempt to tell the Court why she said the Tribunal had fallen into error.

32. When invited to tell the Court as to what was wrong with the Tribunal’s decision, the applicant said she had nothing to say and accepted that the Tribunal did not make any error. The Court appreciates the applicant’s frankness in making such a concession. Nevertheless, it is the Court’s role to ascertain whether or not the Tribunal’s decision is affected by jurisdictional error. The Court understood the applicant’s concession simply as a self-represented applicant having difficulty in articulating her concerns regarding the decision. Accordingly, the Court will consider the grounds advanced in the application.

    CONSIDERATION

33. As outlined above, the application for judicial review contains five grounds asserting jurisdictional error.  Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

    Ground one

34. Ground one asserts that the Tribunal failed to consider vital integers of the applicant’s case in relation to her claims of economic harm and fear of forced marriage upon her return to Malaysia.

35. As submitted by the Minister, this ground fails as the Tribunal had given full consideration to the information provided by the applicant within her visa application, and had further regard to newly submitted oral and written evidence provided by the applicant both during and after the hearing (see NABE v Minister for Immigration & Multicultural Affairs (No 2) (2004) 144 FCR at [61]).

36. The Court accepts that the Tribunal decision demonstrates a detailed and comprehensive engagement with the applicant’s claim of fear of economic harm in Malaysia by the detailed eleven paragraph discussion within the decision.  Similarly, the Tribunal considered in some detail the applicant’s claim of fear of forced marriage upon the applicant’s return to Malaysia.  It is clear from the decision that the Tribunal was careful to confirm the entirety of the applicant’s claims and further engage with the applicant in order to elicit information relevant to her claims of economic harm and fear of forced marriage.

37. No jurisdictional error arises in respect of ground one.

    Ground Two

38. Ground two contends that the Tribunal failed to afford the applicant procedural fairness. However, the applicant has provided no clarification as to how she says she was denied procedural fairness.

39. The Court accepts that the Tribunal’s decision reveals no procedural unfairness for the reasons advanced by the Minister. The Tribunal outlined its compliance with its procedural fairness obligations in accordance with s 425 of the Act by inviting the applicant to attend a hearing to present arguments and provide supporting evidence.

40. Furthermore, the Tribunal correctly stated there was no basis to suggest that an adjournment was required, nor any indication that the applicant be allowed more time to provide further information. The Tribunal further complied with procedural fairness obligations by reminding the applicant prior to the hearing to provide further arguments, and considered evidence submitted by the applicant after the hearing regarding her claims of economic harm.

41. There is also no evidence which might suggest that the Tribunal’s decision was affected by actual or apprehended bias.

42. No jurisdictional error arises with respect to ground two.

    Ground Three

43. Ground three asserts that the Tribunal relied upon incorrect information and decided the matter using facts from another case. The Court notes that the applicant has not identified any other case from which the Tribunal has relied upon other evidence.

44. As submitted by the Minister, the Tribunal has correctly identified the applicant and the biographical information she has provided, in accordance with the claim stated within the applicant’s visa application.  The Court accepts there is no evidence that the Tribunal considered any erroneous or misplaced information from another applicant’s case.  It is also clear that the Tribunal considered the claims which had been raised by the applicant.

45. Furthermore, the Tribunal failed to consider any information deemed irrelevant.  The Court accepts that the Tribunal has considered the entirety of the information provided by the applicant in relation to her application.

46. No jurisdictional error arises in respect of ground three.

    Ground Four

47. Ground four asserts that the Tribunal failed to ask the applicant questions about the types of harm relevant to her case.

48. It is well-established that it is the applicant’s responsibility to advance her own case (see Abebe v The Commonwealth (1999) 197 CLR 510), and that it is not the role of the Tribunal to elicit information to better support the applicant’s case (see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]).

49. The Court is satisfied that the applicant was provided ample opportunity to expound upon her claims regarding the harm she would face upon her return to Malaysia in relation to economic harm and forced marriage.

1. Regarding her claims of harm in relation to financial difficulties, the applicant did not submit the bank would seek to harm her for any reason related to her loan, nor did the applicant venture that she would be unable to service the loan.

2. The Court also accepts the Minister’s contentions in respect of the applicant’s claims in relation to forced marriage. The Tribunal considered the applicant’s claims that her mother and brother would force her to marry a particular person, and its rejection of the credibility regarding this claim was within its jurisdictional freedom.

3. No jurisdictional error arises with respect to ground four.

   Ground Five

4. Ground five states that the applicant can appeal to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It appears that the applicant has misunderstood the source of the Court’s jurisdiction which is, in fact, s 476 of the Act. There is no dispute that this Court has jurisdiction to hear this application or any suggestion that the application is invalid in any way.

5. In any event, this ground does not allege any jurisdictional error

   CONCLUSION

6. The application for judicial review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.

7. Accordingly, the application is dismissed.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       26 September 2025