EEO18 v Minister for Immigration and Multicultural Affairs

Case •

[2025] FedCFamC2G 304

•

5 March 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EEO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 304

File number(s): MLG 2409 of 2018
Judgment of: JUDGE CORBETT
Date of judgment: 5 March 2025
Catchwords: MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to identify country information – Whether findings supported by evidence – Outcome consistent with evidence – Application dismissed.
Legislation:

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(2)-(6), 5K-LA, 36(2)(a), 36(2)(aa), 499

Migration Regulations 1994 (Cth), Sch 2

Cases cited:

Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship v SZDMS [2010] HCA 16

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

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Division: Division 2 General Federal Law
Number of paragraphs: 48
Date of last submission/s: 6 February 2025
Date of hearing: 6 February 2025
Place: Melbourne
Solicitor for the Applicant Applicant appeared in person, self-represented
Solicitor for the Respondents Mr J Mintz, Clayton Utz

ORDERS

MLG 2409 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

EEO18

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

5 MARCH 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’;

2.The name of the second respondent be amended to ‘Administrative Review Tribunal’;

3.The application for judicial review filed 14 August 2018 be dismissed; and

4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,467.00.

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CORBETT

  1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 12 July 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).

  2. Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.

    BACKGROUND

  3. The applicant is a citizen of Malaysia.

  4. The applicant first arrived in Australia on 3 December 2014 as the holder of an Electronic Travel Authority (Subclass 601) visa and remained for approximately three months before departing (CB 51). The applicant returned to Australia on 26 December 2015 again as a holder of a Travel visa and applied for a Protection visa on 16 March 2016 (CB 1-44).

  5. The applicant’s visa application made claims of political persecution on the basis of political opinion. Attached to the application were copies of the applicant’s passport, identity card and drivers’ licence, no further supporting documentation was provided. The applicant’s written answers to her reasons for claiming protection are produced below (CB 36-8) (verbatim):

    •In response to question 89 – Why did you leave that country? (CB 36):

    I LEAVED MALAYSIA BECAUSE OF THE POLITICAL AND ECONOMICAL STATUS OF MY COUNTRY BECOME WORST AND DOWN. THE MALAYSIAN CURRENCY ALSO UNSTABLE AND DECREASED. MANY PEOPLE BECOME POOR AND UNAFFORDABLE TO SUPPORT THEIR OWN LIFE. THE ECONOMIC GROWTH BECOME UNSTABLE AND LACK OF JOB OPPORTUNITIES. BECAUSE OF THAT, I JOINED “BERSIH” RALLY TO PROTECT OUR RIGHT. THIS IS BECAUSE MALAYSIA DID NOT PROVIDE A SPACE TO SPEAK AND PROTECT OUR RIGHT.

    •In response to question 90 – What do you think will happen to you if you return to that country? (CB 36):

    MY FAMILY AND MY NEIGHBOURS WILL CHASE ME. THERE WAS HIGH PROBABILITY THAT THEY WILL BEAT ME AND WILL SEND ME TO AUTHORITY TO GET PUNISH BY AUTHORITY. IT ALSO CAN CAUSED ME HARD TO FIND A JOB BECAUSE OF THE RECORD THAT I’VE JOINED ‘BERSIH’ RALLY.

    •In response to question 91 – Did you experience harm in that country? The applicant ticked “no” (CB 37).

    •In response to question 93 – Did you move, or try to move, to another part of that country? (CB 37):

    I’M NOT TRIED TO MOVE BECAUSE MY FAMILY ACTUALLY DIDN’T KNOW THAT I’M JOINING ‘BERISH’. AFTER THEY KNOW THAT. THEY DID NOT ALLOWED ME TO MOVE BECAUSE THEY AFRAID I WILL INFLUENCE MY ‘BERSIH’ GROUP. SO I’VE TRIED TO RUN FROM THE PLACE AND FINALLY I CAME TO AUSTRALIA.

    •In response to question 94 – Do you think you will be harmed or mistreated if you return to that country? (CB 38):

    THEY (NEIGHBOURS, FAMILY MEMBERS) WILL NOT ALLOWED ME TO LIVE IN MY COUNTRY AND WILL TRY TO MADE ME BECOME STRESSFUL TO FACE MY LIFE WITH THE BAD WORDS AND CHASE ME OUT. SO I WILL NOT HAVE ANY PLACE TO LIVE.

    •In response to question 95 – Do you think the authorities of that country can and will protect you if you go back? (CB 38):

    BECAUSE I JOINED THE ‘BERSIH’ RALLY WHICH NOT ALLOWED TO BE JOINED BY GOVERNMENT. SO, THE AUTHORITY CANNOT GIVE ANY PROTECTION TO ME.

    •In response to question 96 – Do you think you would be able to relocate within that country? (CB 38):

    THIS IS BECAUSE MY NAME ALREADY BLACKLIST WITHIN THAT COUNTRY. BECAUSE I JOINED THE BERSIH RALLY TO PROTECT MY RIGHT AS A CITIZENSHIP OF THAT COUNTRY.

  6. On 4 May 2016, the applicant was notified that a delegate of the Minister refused to grant the visa (CB 47-9). Attached to the notification of refusal was the decision record dated 3 May 2016 (CB 51-61). The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under the refugee criterion or complementary protection criterion outlined in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act).

  7. On 13 May 2016, the applicant filed an application with the Tribunal to review the delegate’s decision (CB 62-3).

  8. On 22 May 2018, the Tribunal invited the applicant to a hearing scheduled for 4 July 2018 and to give evidence and present arguments relating to her application for review (CB 88-97). The invitation attached a ‘Response to hearing invitation – MR Division’ form which the applicant completed and returned on 27 May 2018 (CB 98-100).

  9. On 4 July 2018, the applicant appeared before the Tribunal to give evidence and present arguments relating to the issues arising in the review application. The applicant was assisted by a Malay interpreter (CB 102). At the hearing, the applicant provided the Tribunal with a letter from her employer attesting to her reliability and good character (CB 106).

  10. On 13 July 2018, the applicant was notified that on 12 July 2018, the Tribunal affirmed the delegate’s decision not to grant the visa (CB 107-123) (Decision).

    TRIBUNAL DECISION

  11. In the Decision, the Tribunal outlined the criteria for the visa set out in s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 113). The Tribunal findings also considered the definitions of a refugee under ss 5H(1)(a) and the meaning of a well-founded fear of persecution (CB 113). The Tribunal also referred to the circumstances in which a person will be taken not to have a well-founded fear of persecution in ss 5J(2)-(6) and ss 5K-LA of the Act (CB 113).

  12. The Tribunal considered the mandatory considerations under Ministerial Direction No. 56 (made pursuant to s 499 of the Act), the policy guidelines prepared by the Department of Immigration (PAM 3) and relevant country information assessments provided by the Department of Foreign Affairs and Trade (DFAT) (CB 113, 116-120).

  13. The Tribunal considered the applicant’s evidence and claims for protection (CB 114-5 [11]–[12]). The Tribunal considered the applicant to be a generally reliable and truthful witness (CB 117 [17]). The Tribunal listed a series of findings from that evidence (CB 117-9 [17]–[20]). The Tribunal identified that the applicant had a fear of persecution based on her support of and participation in the Bersih rallies, which she claimed had created conflict with her family and resulted in a lack of employment opportunities in Malaysia. However, the Tribunal found that some of her original claims were exaggerated (CB 117 [17]).

  14. The Tribunal found that the applicant was not a person who experienced persecution, nor had she been beaten, chased or threatened due to her political views (CB 117 [18]).

  15. The Tribunal concluded that the applicant did not have a well-founded fear of persecution now or in the foreseeable future and was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 36(2)(a) of the Act (CB 119 [21]).

  16. Having concluded that the applicant did not meet the refugee criteria, the Tribunal considered the complementary protection criteria in s 36(2)(aa) of the Act (CB 119 [22]–[27]). The Tribunal found that the applicant has not experienced harm amounting to significant harm in Malaysia for any reason prior to coming to Australia. The Tribunal also found (based on the applicant’s evidence at the hearing) that the applicant would prefer to stay in Australia where she has ongoing employment (CB 119 [23]).

  17. The Tribunal then addressed the applicant’s claim to suffer significant harm due to poor economic conditions in Malaysia. The Tribunal considered the country information prepared by DFAT dated 19 April 2018 (which was then the most recent report prepared in relation to Malaysia) (CB 119 [24]).

  18. The Tribunal found that the economic and political situation in Malaysia is of a nature where if the applicant returned to Malaysia, she would be capable of earning a living and supporting herself and her family (CB 120 [25]). The Tribunal also found that the applicant lives independently of her family and is therefore not reliant on for physical or emotional support (CB 120 [26]).

  19. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act (CB 120 [27]).

    PROCEEDINGS IN THIS COURT

  20. On 14 August 2018, the applicant filed an application for judicial review of the Tribunal’s Decision. The application was supported by an affidavit of the applicant sworn on 13 August 2018 that annexed a copy of the Decision. The application contained a single ground of review with particulars:

    (1)The Tribunal made an error of law in that it arrived at a finding for which there was no evidence.

    Particulars

    1.1 The Tribunal’s decision record is to be taken as a complete statement of its reasons for making the decision on the review (per Re Minister for Immigration and Multicultural Affairs; Ex Parte Yusuf [2001] HCA 30 at 5 per Gummow J);

    1.2 As such, where an issue or evidence is not mentioned in the Tribunal’s decision record, it may be inferred that this is because the Tribunal failed to have regard to it;

    1.3 In the present case, the Tribunal referred to ‘country information’ which indicated that the political situation in the applicant’s country of reference had drastically changed following the outcome of federal elections held in May 2018 – for instance:

    1.3.1 ‘…[I]n the lead-up to the election, there were reports of open criticism of the Government by organisations such as Bersih Rally, and widespread condemnation of any attempts to improperly influence the outcome of the election by BN, or to silence critics’ (at [15]);

    1.3.2 ‘An observation of the Malaysian media since the recent election reflects a societal optimism that the new governing coalition, is expected to implement an open, democratic process is governing Malaysia over the future’ (at [16]);

    1.3.3‘Most commentators refer to a ‘strengthening’ of Malaysia’s democracy and an expectation that historic issues of corruption at most levels of government and a burgeoning national debt will be tackled’ (at [16]);

    1.4 On the basis of above, the Tribunal concludes that ‘the current country information…reflect[s] that Malysia is a stable, democratic society, albeit one which his dealing with a recent period of oppressive suppression of political discourse, corruption and authoritarian rule’ (at [19]);

    1.5 However, at no stage does the Tribunal make specific reference to the country reports supposedly supporting the above propositions;

    1.6 Accordingly, the presumption arises that the Tribunal had no material to refer to in support and arrived at findings in the absence of evidence.

  21. On 19 February 2020, a Registrar of this Court ordered that the applicant file and serve any amended application with proper particulars, any supplementary Court Book and written submissions 28 days before the date fixed for the final hearing. The final hearing was later fixed for 6 February 2025 at Melbourne. The applicant did not file or serve any amended application, further affidavit evidence or written submissions. The Minister prepared a Court Book and an outline of written submissions.

  22. At the hearing before this Court on 6 February 2025 at Melbourne, the applicant appeared in person and was assisted by an interpreter fluent in the English and Malay languages. Mr Mintz, solicitor, appeared for the Minister.

  23. The Court confirmed that the applicant and interpreter understood each other and that the applicant had received the Court Book and the Minister’s outline of written submissions.

  24. As the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on, and further articulate the ground of review, and to inform the Court of the basis on which the Tribunal fell into jurisdictional error. The Court explained that it could not grant the applicant a visa and could not undertake a review of the merits of the Decision. However, the Court could send the application back to the Tribunal for reconsideration if there was a significant legal or factual error that meant the Tribunal acted contrary to law.

  25. The Court referred to the application for judicial review and asked the applicant to explain why she believed the Tribunal’s Decision was wrong, noting that the ground of review in the application for judicial review was particularised in considerable detail (CB 124-7).

    APPLICANT’S SUBMISSIONS

  26. The applicant’s submissions were brief. The applicant confirmed that she understood that the political situation in Malaysia had drastically changed following the election, and it was unlikely she would be harmed if she returned, however, submitted that she “appeals for empathy from the Court”.

  27. The applicant explained that she would like to remain in Australia until her child completes her education. The applicant said – ”I need two or three years”. The applicant also explained that her husband is unwell and unable to work and should she return to Malaysia, her working rights in Australia would cease. The applicant sought to provide the Court with a letter from the principal of her child’s school and documentation demonstrating her child’s current visa status. The documents were viewed by Mr Mintz and the Court and objected to by the Minister on the grounds of relevance. The documents were noted but returned to the applicant and not tendered.

  28. The Court reminded the applicant that the Court cannot grant the applicant a visa but must consider whether the Decision reveals a material jurisdictional error. The applicant was otherwise unable to assist the Court regarding the ground of review, save to say that it was “wrong” and that the Tribunal “did not consider all the evidence”.

    MINISTER’S SUBMISSIONS

  29. On behalf of the Minister, Mr Mintz briefly summarised the procedural background of the application for judicial review. The Court Book was tendered and marked as exhibit “R1”.

  30. The Minister submitted that the oral evidence given at the hearing before the Tribunal was essential to the conclusions and findings reached in the Decision, noting that the applicant conceded that she did not come to Australia seeking protection, rather for work and a better life (CB 116 [12]). Mr Mintz highlighted various inconsistencies in the applicant’s evidence upon which the Tribunal relied in the reasoning of the Decision. These inconsistencies were listed in the written outline of submissions.

  31. Mr Mintz referred to the applicant’s ground of review that asserted that the Tribunal’s findings made at paragraph [19] of the Decision were arrived at without supporting evidence (CB 118-9). Mr Mintz submitted that the sources of the findings made in paragraph [19] were identified in the preceding paragraphs and the country information identified in paragraphs [8], [13] and [15] of the Decision (CB 113-9). The Minister conceded that paragraphs [15] and [16] did not identify the precise parts of the country information relied on by the Tribunal or the media reports referred to, but the chain of reasoning leading to the findings in paragraph [19] was not illogical and the applicant has not contended or established that any of the facts relied on were plainly wrong (CB 117). To the contrary, the findings were consistent with the applicant’s evidence at the hearing that there was a change of government in Malaysia and that former supports of the Bersih movement were not at risk of harm (CB 115 [12]). So too, the applicant’s evidence that the new government was supportive of Bersih’s stated goals (CB 115-6 [12]). Regardless of the source of the largely uncontentious observations in paragraph [19], the applicant did not satisfy the criteria of a refugee and did not meet the criteria required for complimentary protection based on her own evidence.

  32. The Minister submitted that the Tribunal’s reasoning was rational and logical and supported by the evidence of the applicant. Based on the applicant’s evidence at the hearing before the Tribunal, even if there was jurisdictional error by failing to identify the source of the evidence relied on by the Tribunal (which was denied), the error was not “material” because the applicant conceded in her evidence that she did not face persecution or serious harm if she was to return to Malaysia (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [10] (LPDT)). There was no subjective or objective basis to find that there was a real risk that the applicant would suffer persecution, harm or significant harm of the kind identified in the application for the visa or otherwise (see Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 at [72]). The outcome of the Tribunal’s review would have been inevitably the same without reliance on the general observations regarding political changes referred to in paragraph [19] of the Decision.

  33. The Minister submitted that the application for judicial review should be dismissed with costs.

    REPLY

  34. In reply the applicant repeated her request to be permitted to remain in Australia to allow her child to complete her education. The applicant could not otherwise assist the Court or contradict the Minister’s submissions.

    CONSIDERATION

  1. The application for judicial review identifies one ground of review and provides clear particulars. Put simply, it is alleged by the applicant that the Tribunal erred in law by making a finding for which there was no evidence. The finding is in paragraph [19] of the Decision and is isolated to the finding that (CB 118-9):

    “…the current country information… reflect[s] that Malaysia is a stable, democratic society albeit one which is dealing with a recent period of oppression suppression of political discourse, corruption and authoritarian rule”.

  2. The “current country information” is not specifically identified in the impugned sentence in paragraph [19] of the Decision, however, at the beginning of paragraph [19], the Tribunal’s opening words to the paragraph are; “Based on the existing country report from DFAT”. The Tribunal referred to country information assessments prepared by DFAT in paragraphs [8], [13] and [15] of the Decision (CB 113, 117). In particular, in paragraph [15] of the Decision, the Tribunal identified the “very recent Country Report by Department of Foreign Affairs dated 19 April 2018 (CB 117).” The precise “country information” relied upon to reach the conclusions in paragraph [19] of the Decision is not footnoted or cited, but it is uncontroversial.

  3. At paragraph [13] of the Decision, the Tribunal considered that part of the DFAT 19 April 2018 country information report that addressed the Bersih movement which contained statements that were consistent with the finding of “recent oppression suppression of political discourse, corruption and authoritarian rule” (CB 116). So too, the reference to that report in paragraph [15] of the Decision. The conclusion that Malaysia is a stable, democratic society” appears to come from the press reports referred to in paragraphs [15] and [16] of the Decision (CB 117). Those press reports are not identified but are consistent with the applicant’s evidence to the Tribunal at the hearing as recorded in the Decision.

  4. That relevant evidence of the applicant for the purpose of this application for judicial review is to be found at paragraph [12] of the Decision and was inter alia that the applicant (CB 115-6):

    •conceded that she was never 'chased', 'beaten' or 'sent to authority' due to the conflict with her family and neighbours. She also conceded that she did not fear that occurring if she returned to Malaysia.

    •agreed with the country information which suggested that ordinary citizens who joined Bersih Rally and attended Bersih protests (like herself) and didn't get into riots were not at risk of being arrested or harmed by the Government even before the government changed. She also confirmed that she had not been blacklisted by the authorities. She observed that she couldn't have left the country if she had been blacklisted because of her Bersih involvement by the authorities.

    •did not vote in the recent election as she believed that she was not entitled to do so. She is very happy with the outcome. She accepted the Tribunal's suggestion that even if there had been a risk or persecution by the Government for her political views prior to Election 14, (on 9 May 2018), there is no basis for a fear of persecution from the government in Malaysia now for Bersih Rally members given that the very change of government they had been seeking has occurred, and the new government is supportive of Bersih's stated goals.

    •conceded that her husband, as a retired police officer, had contacts who could assist her and protect her if she faced any physical threat on return to Malaysia. The applicant confirmed that she had not faced or feared any such harm, despite what was in her application.

    •when the Tribunal put to the applicant that the evidence she had given suggested that she came to Australia not because of fear of harm or persecution but because she wanted to find work and a better life. The applicant said that was true. She noted that even so, she would not have come to Australia unless she had fought with her family.

    •since she has been in Australia, her husband has kept her informed about the political situation, particularly since the election. She was aware that different Government ministries had been filled for the first time by non-Malay minority representatives, and that the GST had been abolished as promised during the election. Her husband had said to her that she might find it economically less oppressive now, if she was to return.

    •confirmed that she had no other grounds for seeking protection that she wished to put forward. She would like to stay in Australia for another one or two years. She is not ready to return to Malaysia.

  5. In Minister for Immigration and Citizenship v Li [2013] HCA 18 at [10], French CJ described the role of the Tribunal exercising a review under the Act as follows:

    [10] The review function of the tribunals created by the Act is sometimes called "inquisitorial". That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word "review" "has no settled pre-determined meaning; it takes its meaning from the context in which it appears.". As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. There are similarities to the kind of review provided by the Administrative Appeals Tribunal ("the AAT"), described by Brennan J in Bushell v Repatriation Commission as:

    "an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it."

    As for the AAT, so too for the MRT and the RRT, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings. There being no party to a review adverse to the applicant, no question of prejudice to a party other than the applicant can arise when the applicant asks the MRT to adjourn a review to enable additional information to be provided to the MRT. Nor can there be any prejudice to the tribunal although it is entitled to have regard to legislative objectives including timeliness in its processes.

  6. The role of this Court is different. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic), at [17] Allsop CJ, Besanko and O’Callaghan JJ described the role of a Court exercising judicial review as follows:

    [17]… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

  7. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], the Full Court of the Federal Court said:

    [11] There can be no objection in principle to the Tribunal relying on ‘country information’.  The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.  Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted.  It may be used to assess the credibility of a claim of a well-founded fear of persecution.  It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true.  The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court.  If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.  The Court does not have power to do that.

  8. Not every error by the Tribunal will be a material jurisdictional error (see LPDT at [7]). In this case, the reasoning of the Tribunal had a clear and logical basis. Whilst the finding in paragraph [19] of the Decision did not identify the source of the information, it was entirely consistent with the applicant’s evidence and was not controversial. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling to interfere in an appropriate case” (see Minister for Immigration and Citizenship v SZDMS [2010] HCA 16 at [130]; and Djokovic at [34]).

  9. Even if the failure to identify the precise source of the information relied upon to reach the finding in paragraph [19] was an error, it was not a material error as the outcome could not realistically have been different by identifying the source of the information. The conclusions reached by the Tribunal were based on the applicant’s evidence and in particular that the applicant does not have a subjective fear of discrimination, nor does she fear persecution from friends, neighbours or the Malaysian authorities for any reason if she returns to Malaysia (CB 118 [18]). The Tribunal found that the applicant did not leave Malaysia due to any fear of actual harm from the Government of Malaysia, her family or her neighbours (CB 118 [18]). Those findings were open to the Tribunal and were based on information identified by the Tribunal in the Decision. There was no material jurisdictional error and the application for judicial review must be dismissed.

  10. The applicant was self-represented, although the grounds of review in the application for judicial review were clearly articulated and particularised. Because the applicant was self-represented, the Court has also scrutinised the materials before the Tribunal and the Decision to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114]. No error is apparent.

  11. The application for judicial review filed 14 August 2018 is dismissed.

    COSTS

  12. At the conclusion of the Minister’s submissions, Mr Mintz sought costs, in the event that the application for judicial review was dismissed, infixed in the sum of $7,467.00. This is the scale amount for a proceeding concluded at a final hearing of a migration proceeding as set out in item 3, Div 1, Pt 3 of Sch 1 to the Federal Circuit Court Rules 2001 (Cth), for a proceeding commenced on 14 August 2018. The sum claimed is fair and reasonable and is to be paid by the applicant.

    OTHER MATTERS

  13. The Minister also sought to amend the name of the first respondent to the Minister’s current title ‘Minister for Immigration and Multicultural Affairs’ and to amend the title to the proceeding accordingly.

  14. Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the ‘Administrative Review Tribunal’. Orders will be made amending the names of the respondents and the title to the proceedings.

    ORDERS

    1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

    2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.

    3.The application for judicial review filed 14 August 2018 be dismissed.

    4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,467.00.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate:

Dated:       5 March 2025

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