Eab20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, a Malaysian citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which affirmed a delegate's decision to refuse him a Protection (Class XA) (Subclass 866) visa. The applicant had claimed a fear of harm in Malaysia arising from outstanding debts owed to friends. He had remained in Australia as an unlawful non-citizen since his visitor visa expired in 2015. The Federal Circuit Court of Australia was asked to determine whether the Tribunal had committed jurisdictional error.

The legal issues before the court were whether the Tribunal failed to consider the applicant's claims of potential harm due to his Christian faith and ethnic Chinese background in Malaysia, and whether it failed to consider his claim of fear for his life upon return. These grounds were framed as failures to consider claims, which, if established, could amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

The court applied established case law, including *Dranichnikov v Minister for Immigration & Multicultural Affairs* and *Singh v Minister for Home Affairs*, which stipulate that a failure by the Tribunal to consider an applicant's claims can constitute jurisdictional error. Such an error occurs when the Tribunal does not engage in an active intellectual process or give genuine consideration to substantial arguments, claims raised by evidence that could be dispositive, or matters essential to an applicant's claim. However, the court also noted that an inference of failure to consider an issue should not be too readily drawn, particularly where the Tribunal's reasons are otherwise comprehensive and the issue was identified. In this instance, the Tribunal's decision explicitly noted the applicant's Christian faith and Chinese ethnicity. Crucially, the Tribunal accepted the applicant's evidence that he had not faced harm in the past and did not fear harm in the future, repeatedly confirming this. It also found that he had no fears in relation to loans from his brother, and was not satisfied that there was a real chance he would be harmed in Malaysia for any reason.

The originating application for judicial review was dismissed by the court.