EDI16 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 979
•27 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EDI16 v Minister for Immigration and Citizenship [2025] FedCFamC2G 979
File number(s): MLG 2653 of 2021 Judgment of: JUDGE JOHNS Date of judgment: 27 June 2025 Catchwords: MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal was acting under dictation of a previous decision maker – whether the Tribunal had an independent mind – whether the Tribunal acted unreasonably or illogically in conducting its research – whether the Tribunal made findings based on speculation – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), ss 5J(1)(a), 424(1), 424AA, 474, 476, 476(2)(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 17.05, 17.05(2)(g)
Cases cited: Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 184
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 104 Date of hearing: 5 June 2025 Place: Melbourne Solicitor for the Applicants: Mr Tao Jiang of Vstar Lawyers Counsel for the Respondents: Mr Jonathan Barrington ORDERS
MLG 2653 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EDI16
First Applicant
EDJ16
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
27 JUNE 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed by the Applicants on 15 October 2021 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 JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (as the Minister was then called) (Delegate), to refuse to grant the Applicant a Protection (Subclass 866) visa (Protection Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
This matter was heard on 5 June 2025 and proceeded in person at the Melbourne Registry of this Court.
To obtain relief from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
BACKGROUND
The background to this matter is derived from the Court Book and submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed jurisdictional error in affirming the decision of the Delegate refusing the Applicant a Protection Visa.
The Application for a Visa
The First Applicant (Applicant) is a Malaysian citizen who arrived in Australia on 10 September 2014 with his wife (Second Applicant) as holders of Visitor (Class UB Subclass 601) visas.[1]
[1] Court Book (CB) 29, 87.
On 9 December 2024, the Applicant lodged an application for a Protection Visa, with the Second Applicant included in the application as a member of the family unit.[2]
[2] CB 16 – 49.
In the application, the Applicant claimed that:
(1)he faced persecution and threats from ethnic Malay Muslims in Malaysia because he operated a restaurant that served pork dishes[3],
(2)gang members repeatedly threatened him, vandalised his business by throwing red paint, and physically confronted him[4],
(3)that he would be at risk of being killed if he returned to Malaysia[5], and
(4)local authorities, including the police, are unable to protect him as they support the local Malays.[6]
[3] CB 34.
[4] CB 35.
[5] Ibid.
[6] CB 37.
On 3 June 2015, the Delegate invited the Applicant to an interview to discuss his claims.[7] The Applicant made the following claims at the interview which was conducted on 1 July 2015[8]:
[7] CB 62.
[8] CB 89 – 90.
(1)In October or November 2013, he operated a Chinese restaurant named “Pin Li”. The restaurant employed him, the Second Applicant, and one other employee, seated 130 people, and operated daily from 5 am to 2 pm.
(2)The restaurant was previously operated by an elderly Chinese man. The restaurant served dishes, many of which contained pork.
(3)The restaurant was initially successful, but late January 2014, a lone gangster visited him and instructed him to stop selling pork dishes.
(4)Approximately, one week later, in early February 2014, ten gang members from the “Tiga Line Gang”, including the previous gangster demanded that the Applicant close the restaurant.
(5)Two days later, red paint was thrown on the restaurant door. He reported his incident at the Setayang Police Branch but was not sure if a formal police report had been made.
(6)One week later, the same gangster confronted him at his family home and instructed him again to stop selling pork. A physical altercation ensued, and the gangster threatened him, stating “wherever you go, I can find you.” The Applicant claims that he did not report the incident to the police.
(7)After this confrontation, he immediately ceased operating the restaurant and returned it to the elderly Chinese man. He sold his house and car to run away from the gangster.
(8)By later February 2014, he resumed his previous work as a tour guide, which he continued till June 2014.
(9)In mid-June 2014, he received a text message from the gangster stating, “Don’t forget me, I’m your very, very good friend”, prompting him to decide to leave Malaysia. He and the Second Applicant arranged for their child to stay with his sister and then travelled to Australia.
(10)He believed that relocating within Malaysia or to Singapore was not safe as the gangster could find him anywhere. He also expressed fear of seeking protection from the Malaysian authorities, whom he believed to be collaborating with gang members.
Decision by the Delegate
On 9 July 2015, the Delegate refused the Applicant’s Protection Visa application.[9] Because the Second Applicant’s claim was entirely dependent on the Applicant, her visa was also refused.[10]
[9] CB 82 – 95.
[10] CB 95.
The Delegate found the Applicant’s claims vague and limited in detail, and the lack of documents to substantiate the claims made it difficult to accept that the Applicant:
(a)operated a restaurant,
(b)had an altercation with a gangster who is now pursuing him, and
(c)sold both his car and home and returned the restaurant to the previous owner due to these threats.[11]
[11] CB 91 – 92.
Given the lack of credibility in the Applicant’s claims, the Delegate found that the Applicant did not have a well-founded fear of persecution. Further, on the same basis, the Delegate was not satisfied that as a consequence of him being removed from Australia to Malaysia, there was a real risk he will suffer significant harm.[12]
[12] CB 93 – 94.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Application to the First Tribunal
On 10 July 2015, the Applicant applied to the Tribunal for review of the Delegate’s decision.[13]
[13] CB 96 – 104.
On 20 October 2016, the Applicant was invited by the Tribunal to attend a hearing on 17 November 2016.[14]
[14] CB 107 – 108.
On 17 November 2016, the Applicants attended the scheduled hearing by video with the assistance of a Malay interpreter.[15]
[15] CB 119 – 121.
On 20 November 2016, the Applicant provided further information to the Tribunal that included untranslated information to support his protection claims.[16]
[16] CB 123 – 130.
On 28 November 2016, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Protection Visa.[17]
[17] CB 132 – 139.
Decision by the First Tribunal
The Tribunal’s decision is 7 pages long and spans 36 paragraphs. Part of the decision outlines the relevant law.
The Tribunal identified various inconsistencies between the evidence that the Applicant provided during his initial interview with the Delegate and his evidence at the Tribunal hearing.
The inconsistencies identified primarily related to details about the Applicant’s restaurant, including discrepancies relating to the:
(a)restaurant’s name (Applicant told the Delegate that the restaurant’s name was Pin Le but told the Tribunal it was Ji Pin),
(b)the month of opening (the Applicant told the Delegate that the restaurant opened in October or November 2013 but told the Tribunal it opened in December 2013 and even December 2014),
(c)seating capacity (Applicant told the Delegate that the restaurant seated 130 people but told the Tribunal that it seated 30 – 40 people),
(d)opening hours (Applicant told the Delegate that the restaurant was open 5 am till 2 pm but told the Tribunal it was open 7 am till 3 to 4 pm),
(e)duties of the employee (Applicant told the Delegate that he had one assistant that served noodles and drinks but told the Tribunal that there was one part-time worker who washed dishes), and
(f)the circumstances surrounding its closure (Applicant told the Delegate that the restaurant closed in February 2014 but told the Tribunal it closed in June 2014).[18]
[18] CB 135 at [14].
The Tribunal also found inconsistencies concerning the alleged threats from gangsters. For example, the Applicant had initially told the Delegate that the threats had begun in January 2014, with one gangster threatening him followed by 10 gangsters arriving later.[19] However, at the Tribunal hearing the Applicant said that initially five or six gangsters threatened him in March 2014 followed by seven or eight gangsters.[20] Moreover, while he initially mentioned receiving threatening messages during his interview with the Delegate, he did not mention them at the Tribunal hearing.[21]
[19] CB 135 – 136 at [16], CB 137 at [27].
[20] Ibid.
[21] CB 136 at [17].
When the Tribunal put these discrepancies to the Applicant, he provided general explanations like confusion[22] and being forgetful[23].The Tribunal did not find these explanations to be persuasive.[24]
[22] CB 135 – 136 at [16].
[23] CB 136 at [17].
[24] CB 137 at [25] – [28].
As a result of these inconsistencies, the Tribunal determined that the Applicant had fabricated his claims about operating a restaurant that served pork in Malaysia.[25] Because the Tribunal found that he did not run such a restaurant, it also determined that he had never been targeted or threatened by Malay gangsters.[26]
[25] CB 137 at [29].
[26] Ibid.
Based on these findings, the Tribunal was not satisfied that the Applicant faced a real chance of harm because of his ethnicity or any other reason in s 5J(1)(a) of the Act[27], nor was the Tribunal satisfied that there was a real risk of significant harm if the Applicant returned to Malaysia.[28] Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Protection Visa.
[27] CB 137 at [29] – [32].
[28] CB 138 at [33] – [34].
Prior proceedings in this Court
On 28 November 2016, the Applicants appealed to the Federal Circuit Court (as this Court was then called) for judicial review of the First Tribunal’s decision.[29]
[29] CB 144 – 145.
On 3 September 2019, the Court upheld the Tribunal’s decision on the basis that it was not affected by any jurisdictional error.[30]
[30] CB 150.
The Applicants subsequently appealed to the Federal Court of Australia.[31] On 20 February 2020, the Federal Court set aside the Federal Circuit Court’s judgment and remitted the matter back for reconsideration.[32] The error was that, due to an oversight, this Court failed to have regard to the post-hearing written submissions filed by the Applicants.[33]
[31] CB 182.
[32] CB 184.
[33] CB 189 – 190.
On 22 July 2020, upon remittal from the Federal Court, this Court found that the Tribunal had committed a jurisdictional error by failing to consider whether there was a real chance of the Applicants suffering persecution falling short of death for reasons of their ethnicity. The Court held that the Tribunal either failed to consider an integer of a claim or misunderstood the meaning of persecution, or both, thus falling into jurisdictional error.[34]
[34] CB 176.
The Court ordered that the Tribunal’s decision dated 28 November 2016 be set aside and the matter be remitted back to the Tribunal to be determined according to the law.
Remittal to the Tribunal
On 1 September 2020, the Applicant was notified by the Tribunal that it would be reconsidering his application for review.[35]
[35] CB 195 – 199.
On 2 August 2021, the Tribunal emailed the Applicant to update him on the progress of his application for review and invited him to file any further evidence in support of his Protection Visa application.[36]
[36] CB 211.
On 11 August 2021, the Applicant was formally invited by the Tribunal to attend a hearing scheduled on 8 September 2021.[37]
[37] CB 220.
On 17 August 2021, the Applicant responded to the hearing invitation and confirmed his attendance at the scheduled hearing.[38]
[38] CB 225 – 228.
On 30 August 2021, in light of the COVID-19 lockdown measures, the Tribunal decided to hold the hearing by Microsoft Teams.[39] The Applicant subsequently confirmed their attendance to attend the hearing remotely.[40]
[39] CB 230.
[40] CB 231.
On 8 September 2021, the Applicants attended the scheduled hearing by video with the assistance of a Malay interpreter.[41]
[41] CB 242 – 244.
On 14 September 2021, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Protection Visa.[42]
[42] CB 247 – 259.
SECOND TRIBUNAL’S DECISION
The Tribunal’s decision is 16 pages long and spans 67 paragraphs. Part of the decision outlines the refugee criterion and complementary protection criterion.
It is useful to outline the Tribunal’s decision in detail.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to reproduce substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning processes and the evidence assessed by the Tribunal.[43]
[43] DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32].
The Tribunal ultimately affirmed the Delegate’s decision to refuse the Protection Visa. A central aspect of the Tribunal’s reasoning was the finding that the Applicant was not a credible witness.[44] That conclusion was based on inconsistencies between the Applicant’s accounts given during the initial interview with the Delegate and the First Tribunal hearing.
[44] CB 250 at [19].
The Tribunal expressly identified these inconsistencies and put them to the Applicant in accordance with the requirements of s 424AA of the Act, giving the Applicant an opportunity to respond.
The inconsistencies identified by the Tribunal were as follows (reproduced from the Tribunal’s decision without substantial alteration):
1.He told the delegate he opened the restaurant in October or November 2013 but told the first Tribunal he opened it in December 2013.
2.He told the delegate the restaurant was named Pin Le but told the first Tribunal it was named Ji Pin.
3.He told the delegate the restaurant seated 130 people, but told the first Tribunal it seated 40-50 people.
4.He told the delegate the restaurant was open from 5 am until 2 pm, but told the first Tribunal it was open from 7 am until 3 or 4 pm.
5.He told the delegate they had one assistant who served noodles and drinks but told the first Tribunal they had one part-time worker who washed dishes.
6.He told the delegate he closed the restaurant in February 2014 but told the first Tribunal he closed it in June 2014.
7.He told the delegate that the first time people came to the restaurant was in January 2014, it was one person who threatened him and then ran away, and a week later 10 people came and threatened him; but this was different to the account he gave to the first Tribunal (where he indicated 5-6 gangsters first came in March 2014, verbally threatened them, then one or two weeks later 7 or 8 gangsters came).
8.He told the delegate the gang leader sent him SMS messages but didn’t mention this to the first Tribunal, even when asked if anyone had been in contact with him.[45]
[45] CB 253 at [36].
The Applicant explained these inconsistencies by asserting that a substantial amount of time had passed since the events in question and that he had been nervous during interviews, which may have led to mistakes in his evidence.[46]
[46] CB 252 – 253 at [35] and [38].
The Tribunal also considered country information regarding Malaysia and found that there was no credible or objective basis to suggest that ethnic Chinese individuals are subject to systemic discrimination or violence.[47]
[47] CB 256 at [43].
The Tribunal further referred to its own online research, including Google search of Chinese restaurants in Kuala Lumpur that advertised the sale of pork.[48] It used this to support its finding that the Applicant’s claim of being targeted for selling pork lacked credibility.
[48] CB 254 at [41].
The Tribunal noted that the Applicant had not provided any documentation to establish that he had a business licence to operate the restaurant. In light of this absence, and the Applicant’s vague explanation[49], the Tribunal considered it to be improbable that the Applicant would have commenced such a business in Kuala Lumpur without a valid licence.[50] This seemed to support the Tribunal’s broader concerns about the credibility of the Applicant’s account.
[49] CB 252 at [32].
[50] CB 257 at [49].
The Tribunal gave the Applicant the opportunity to raise any other examples of harm or discrimination he may have experienced in Malaysia.[51] In response, the Applicant only raised matters of discrimination relating to receiving less favourable loans but did not claim to have suffered societal violence or threats outside the context of the restaurants.[52]
[51] CB 258 at [57].
[52] Ibid.
The Tribunal concluded that the Applicant had fabricated his claims and that there was no real chance that he or the Second Applicant would suffer harm on return to Malaysia for any convention reason or risk of significant harm under the complementary protection criteria. Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Protection visa.
CURRENT PROCEEDING IN THIS COURT
The Application
On 15 October 2021, the Applicant filed an application (Originating Application) with this Court under s 476 of the Act, seeking judicial review of the Tribunal’s decision. On 19 May 2025, the Applicant filed an amended application (Amended Application).
In the Amended Application, the Applicant seeks orders that the Tribunal’s decision be quashed, and the matter be remitted back to the Tribunal for reconsideration according to the law.
The Amended Application contained the following single ground of review, with three distinct sub-issues (reproduced without alteration):
1.The Tribunal made the jurisdictional errors for i) acting under dictation by giving automatic effect to the reasons of an earlier Tribunal decision ii) failing to bring its own independent mind to bear on what would be the correct and preferable decision on the review thereby making a jurisdictional error. iii) acting unreasonably and illogically to conduct ‘Google search’ (CB254 at para [41]) and found that some Chinese restaurants in Kuala Lumpur which advertised themselves as selling pork and the Tribunal made the improper speculation (CB257 at para [49]) to the applicant having commenced a business “without an appropriate business licence”.
Particulars
i.From Tribunal Transcript P-10:25-25) to P-12 of the Tribunal Transcript, a fair and reasonable reading of these lines of exchanges revealed the Tribunal had “erected a presumption that the finding in the earlier Tribunal decision dated 17 November 2016 about the credibility assessment is taken to be authoritative”. The questioning technique of the Tribunal uncritically accepts and adopt the reasons and conclusion in the earlier Tribunal decision, this is particularly so when the Tribunal said, “I just want to read you some more inconsistencies that the previous tribunal put to you, in accordance with the requirements of section 424(aa)” (Tribunal Transcript P11:40).
ii.The Tribunal’s reasoning at para [36] (CB253) started by the chapeau sentence that “The current Tribunal indicated that there were some further inconsistencies between his evidence to the delegate and his evidence to the previous Tribunal that it would like to put to him for comment, in accordance with the requirements of s.424AA of the Act”. Some further inconsistencies’ must be construed in the context that the Tribunal should bring its own independent mind to assess and evaluate the said inconsistencies that run counter to the applicant’s version of events before the delegate and the earlier Tribunal, but the subsumed passages which are identical between the delegate, the earlier Tribunal and the present Tribunal. By doing so, The Tribunal failed to bring its own independent mind to bear on what would be the correct or preferrable decision on the review, which led to the miscarriage of its task: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 (Tracey, Murphy and Mortimer JJ).
iii.The pleaded ‘Google search’ issue and ‘Business licence’ issue will be addressed in more detail in the ensuing submissions section.
Materiality
(a)The jurisdictional errors are apodictic, and its materiality threshold is satisfied because the reasoning process took by the Tribunal that acting under dictation to the reasons of an earlier Tribunal, in tandem with the Tribunal’s purported reasons for its decision copied, without attribution, significant portions of the reasons of the very decision it was asked to review.
(b)Had the Tribunal not fallen into the jurisdictional error of impermissibly substitute its own analysis and assessment with the country information as to whether the applicant is subject to a real chance or real risk of persecution, and if it had reached the state of satisfaction predicated on the proper exercise of its statutory power, then a reasonable and objective decision maker shall have decided differently.
For ease of reference the grounds of appeal are referred to as follows:
a)Ground one: the “Acting Under Dictation Issue”,
b)Ground two: the “Failure to Bring an Independent Mind Issue”,
c)Ground three: the “Google Search Issue”,
d)Ground four: the “Business Licence Issue”.
Case management
On 24 November 2021 the First Respondent (Minister) filed a response. The Minister opposed the orders sought by the Applicant in his Originating Application on the basis that it failed to establish any jurisdictional error in the Tribunal’s decision.
On 17 March 2025, a Registrar of this Court issued an order (Registrar’s Order) programming the matter for hearing before this Court on 30 April 2025.
The Registrar’s Order also directed that:
(a)the Minister file and serve a bundle of relevant documents (Court Book) by 21 March 2025,
(b)the Applicant file any amended application, written submissions and further evidence in support of the application by 16 April 2025, and
(c)the Minister file and serve any written submissions and additional evidence that the Minister seeks to rely upon by 23 April 2025.
On 21 March 2025, the Minister filed a Court Book in accordance with the Registrar’s Order.
On 3 April 2025, this Court issued Orders (First Order), by consent, varying the timetable for submissions and programming of the hearing. The First Order directed that the:
(1)hearing be adjourned to 5 June 2025,
(2)Applicant file any amended application, written submissions and further evidence at least 28 days before the hearing, and
(3)Minister file any amended response, written submissions and further evidence in reply at least 14 days before the hearing.
On 19 May 2025, the Applicant filed an amended application and written submissions, outside of the prescribed timeframe.
On 21 May 2025, further Orders were made, by consent of the parties, directing that:
(1)the Applicant’s amended application and written submissions filed on 19 May 2025 be accepted for filing, and
(2)the Minister file and serve any written submissions and any further evidence by 2 June 2025.
On 28 May 2025, an affidavit sworn by Tao Jiang of Vstar Lawyers and Consultants was filed which annexed the transcript of the Second Tribunal hearing dated 8 September 2021.
On 29 May 2025, the Minister complied with the Order by filing written submissions.
Therefore, the materials before the Court are as follows:
(a)the application for judicial review filed 15 October 2021,
(b)a Court Book numbering 263 pages filed 21 March 2025 (marked as Exhibit R1),
(c)an amended application for judicial review filed 19 May 2025,
(d)an outline of written submissions filed by the Applicant on 19 May 2025,
(e)an affidavit deposed by Tao Jiang filed 28 May 2025 (marked as Exhibit A1), and
(f)an outline of written submissions filed by the Minister on 29 May 2025.
The judicial review hearing
At the hearing, the Applicant was represented by Mr Tao Jiang of VSTAR Lawyers. The Minister was represented by Mr Jonathan Barrington of Counsel who was instructed by Mills Oakley.
Prior to the hearing, the Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
Before this Court, the Applicant made submissions in support of the grounds set out in their Amended Application filed on 19 May 2025. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 29 May 2025.
After the Minister made their submissions, the Court invited Mr Jiang to respond to what the Minister’s representative had said. Mr Jiang did not have a reply.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[53] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48.Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49.Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[54]
50.“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[55]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[56] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[57] Different kinds of error may overlap.[58] The categories are not closed.[59] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[60]
52.In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[61] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[62] It has been described as an “undemanding” standard.[63]
[53] [2025] FedCFamC2G 620.
[54] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[55] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[56] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[57] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[58] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[59] LPDT at [3].
[60] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[61] LPDT at [7].
[62] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[63] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[64]
[64] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40]
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
a)why they believe the Tribunal made a jurisdictional error, and
b)each of the four grounds of review in the Amended Application.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. The Court incorporates (without repetition) paragraphs 12 to 32 of the Minister’s outline of submissions.
Ground 1 – the Acting Under Dictation Issue
The Tribunal made a jurisdictional error by acting under dictation by giving automatic effect to the reasons of an earlier Tribunal decision.
By this ground, the Applicant contends that the Tribunal merely adopted and accepted the decision of the previous Tribunal without undertaking the statutory task at hand.[65]
[65]BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 184 (BKX23) at [11].
The Court rejects that contention. When reading the decision of the Tribunal on the second occasion, it is evident that it was well acquainted with its statutory task. It expressly informed the Applicant during the hearing that its task was to assess all the information afresh and to make a new decision on the application. The Tribunal stated:
The tribunal is independent. The role of the tribunal is to look at all of the information and to make a new decision on your application.[66]
[66] Exhibit A1, P-3 at [3] – [4].
The Tribunal then proceeded to do exactly that; that is “make a new decision”. On a fair reading of the Tribunal’s decision, there is simply no indication that the Tribunal on the second occasion did not fulfill that duty, nor that it felt obliged to make a particular decision. The fact that the Tribunal on the second occasion came to the same ultimate conclusion (to affirm the decision of the Delegate to refuse a Protection Visa) is not evidence that the Tribunal on the second occasion was “acting under dictation” by the Tribunal on the first occasion.
At the final hearing before this Court, the Applicant’s representative directed the Court to paragraphs [34] – [36] of the Tribunal’s decision, contending they illustrated how the Tribunal was acting under dictation.
That contention is not accepted. Paragraphs [34] and [35] are simply descriptions of what happened at the Tribunal hearing – specifically, that the Tribunal put to the Applicant the inconsistencies between his accounts given to the Delegate and the First Tribunal, and invited comment. This approach is procedurally fair and consistent with s 424AA of the Migration Act. The Minister submitted, and the Court agrees, that this is not at all suggestive of a decision-maker who felt obliged to follow or copy another decision-maker’s conclusions.
At paragraph [36], the Tribunal on the second occasion identified additional inconsistencies in the Applicant’s evidence beyond those put to the Applicant by the Tribunal on the first occasion. This is confirmation that the Tribunal on the second occasion was applying an independent mind to the information before it. The Tribunal on the second occasion was clearly looking at all the information afresh, as it indicated it would.
The Applicant’s submission that the Tribunal acted under dictation and had no regard to new evidence given at the hearing (particularly paragraph [38] of the Tribunal decision, which had details about the opening and closing of the restaurant, and pages 14 and 15 of the Tribunal hearing transcript), is not accepted by this Court.
The Tribunal properly considered the Applicant’s responses in paragraphs [46] and [47] of the Tribunal decision, and reached a decision based on the cumulative evidence:[67]
46.After carefully considering the applicant’s evidence the Tribunal concluded that the applicant never managed a restaurant selling dishes containing pork and was never harassed or threatened with harm or death by a Malay Muslim gang as a consequence. The Tribunal reached this conclusion because of what the Tribunal considers, when taken cumulatively, are significant and material inconsistences between the applicant’s evidence to the delegate and his evidence to the first Tribunal, as well as some inconsistencies between his evidence to the first Tribunal and to this Tribunal.
47.As outlined above, the applicant provided inconsistent evidence in relation to the name; month of opening; seating capacity; operating hours; duties of the claimed single employee; timing of the closure of the restaurant (February or June 2014); what he did with the business (immediately returned it to the elderly Chinese man who originally ran it or rented it to someone else in June 2014 and made arrangements to sell it after he came to Australia); and what he did after he closed the restaurant (whether or not he went back to working as a tour guide or whether he reopened the restaurant after a week or two on a part-time basis). The applicant also provided inconsistent evidence in relation to when gangsters first came to the restaurant, whether one of more gangster came to restaurant on that first occasion; whether one or more (ten) gangsters came to his apartment; and whether he was sent an SMS message and what the content of the message was.
[67] CB 256 – 257, [46] - [47].
Based on the material before it, and a fresh reconsideration of Applicant’s previous and new information, it was open to the Tribunal on the second occasion to reach the same conclusion as the earlier Tribunal. However, it clearly did so by distinguishing its task and the evidence before it from that of the earlier Tribunal.[68] In this matter, the Tribunal on the second occasion did not merely adopt the decision of the Tribunal on the first occasion without undertaking the statutory task for itself. The fact that the Tribunal on the second occasion came to the same conclusion as the Tribunal on the first occasion does not, without more than was contended by the Applicant, establish jurisdictional error.
[68] BKX23 [14].
For the above reasons, ground one is dismissed.
Ground 2 – the Failure to Bring an Independent Mind Issue
Failing to bring its own independent mind to bear on what would be the correct and preferable decision on the review thereby making a jurisdictional error
This ground has substantial overlap with ground one. Like ground one, the fact that two decision-makers arrived at the same conclusion by similar methods does not show a failure to bring an independent mind or that the Tribunal had copied the prior Tribunal slavishly. The Tribunal’s task was discussed in ground one. It was entirely conventional for the Tribunal on the second occasion to follow a similar process as it did on the first occasion. It was not required to reinvent the wheel.
The Applicant’s two criticisms of the Tribunal’s approach are that the Tribunal should have:
a) engaged in more expansive or different lines of questioning, or
b) conducted the hearing wholly afresh, disregarding the Tribunal’s reasoning on the first occasion.
The second criticism is contrary to MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133, where the Full Court affirmed that it is:
legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant. [69]
[69] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [67].
The Tribunal on the second occasion did not err by considering the previous Tribunal’s reasoning. It had no duty to discard the findings made on the first occasion. Rather the Tribunal on the second occasion had a legitimate and necessary use for it.
The key issue which concerned the full court in MZZZW was the wholesale adoption of opinions of a previously constituted Tribunal.[70] As the Minister correctly contended in the present matter, “the applicants do not point to a single passage, even a single sentence, that actually involves any copying at all.”[71]
[70] Ibid at [57].
[71] Minister’s written submissions filed on 29 May 2025 at [18].
Rather, the Tribunal on the second occasion clearly demonstrated an independent mind by looking at other matters and putting further inconsistencies in the Applicant’s evidence to the Applicant. This provided the Applicant an opportunity to put forward new material. The line of questioning can be considered “meaningful” as it drew out further inconsistencies and new information from the Applicant. This new evidence was cumulatively used by the Tribunal on the second occasion to make an informed and considered decision.
Given the narrow set of facts in the matter, it is almost unremarkable that the Tribunal on the second occasion arrived at the same ultimate decision as the Tribunal on the first occasion. It does not in any way demonstrate the Tribunal on the second occasion failed to bring an independent mind to the task before it, nor that it copied the first Tribunal.
For the above reasons, no jurisdictional error is established by ground two, and it is dismissed.
Ground 3 – the Google Search Issue
Acting unreasonably and illogically to conduct ‘Google search’ (CB254 at para [41]) and found that some Chinese restaurants in Kuala Lumpur which advertised themselves as selling pork
This ground cannot succeed because the Tribunal member did not unreasonably nor illogically conduct a “Google Search”.
Section 424(1) of the Act is dispositive of this ground of review. It provides that:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
It is open to the Tribunal on how it investigates claims, and the Tribunal is allowed to access publicly available information. The Tribunal has discretion on informing itself as to matters that it considers appropriate.
Once informed of such matters though, the Tribunal must act in a manner that is procedurally fair. It did so in the present matter. Having found the information on Google about other restaurants in the area which sell pork, the Tribunal directly put this information to the Applicant for comment.[72] No criticism can be made of the Tribunal’s approach. The process adopted by the Tribunal cannot be criticised as unreasonable nor illogical. It does not establish jurisdictional error.
[72] CB 254 at [41].
For the above reasons, ground three is dismissed.
Ground 4 – the Business Licence Issue
Tribunal made the improper speculation to the applicant having commenced a business “without an appropriate business licence” (citations omitted).
The Tribunal’s findings which troubled the Applicant are as follows:[73]
The Tribunal also found it improbable that the applicant would have commenced such a business in Kuala Lumpur, where he might have expected monitoring by relevant authorities, without an appropriate business licence…[74]
[73] CB 257 at [49].
[74] CB 257 at [49].
To establish this ground of review, the Tribunal needs to have made this factual finding without a “skerrick of evidence”.[75] For this reason alone, this ground of review cannot succeed because the Tribunal findings are not based on assumptions nor speculation, rather they are based on the oral evidence of the Applicant given at the Tribunal hearing:[76]
Tribunal Member: And did you have a business licence?
Applicant: This shop has previously already had the business licence. So we just like, took it over
Tribunal Member: But you don’t get a business licence in your own name.
Applicant: Legally, yes, we should do that, but we have been, you know – we had to run a business for a very short time and we don’t have enough time to handle this.
[75] EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [76].
[76] Exhibit A1 P-9 at [28] – [37].
The Applicant’s evidence establishes that (likely) he did not have the requisite business licence. Accordingly, this Court rejects the contention made by the Applicant that “this appears to be an assumption made by the Tribunal in circumstances where the Tribunal had no contrary information to support such an assumption.”
The evidence before the Tribunal was satisfactory for it to form that conclusion. Clearly, it was open to the Tribunal to find it improbable that the Applicant would have commenced a business without the requisite licence. No jurisdictional error is established.
For the above reasons, ground four is dismissed.
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed. The Court will now hear the parties on costs.
I certify that the preceding one hundred and four (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 27 June 2025
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