EFF24 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 783

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EFF24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 783

File number(s): PEG 211 of 2024
Judgment of: JUDGE GERRARD
Date of judgment: 30 May 2025
Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued s 36(2A) – whether the Tribunal had jurisdiction – “reasonable satisfaction” – whether failure to consider the applicant’s claims – whether the Tribunal failed to comply with s 424A – no jurisdictional error established – application dismissed.
Legislation: Migration Act 1958 (Cth) ss 5J(1), 36(2), 36(2)(a), 36(2)(aa), 36(2A), 65, 424A, 424A(3), 424AA, 425, 425A, 476, 499
Cases cited:

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

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

DQQ17 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 Border Protection v Singh (2014) 231 FCR 437

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

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

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

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

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

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

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

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

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

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

Tickner v Chapman (1995) 57 FCR 451
Division: Division 2 General Federal Law
Number of paragraphs: 63
Date of last submission/s: 22 April 2025
Date of hearing: 1 May 2025
Place: Adelaide
Applicant: Self-represented with the assistance of a Malay interpreter
Counsel for the First Respondent: Benjamin Mayne
Solicitor for the First Respondent: Sparke Helmore
Second Respondent: Submitting appearance, save as to costs

ORDERS

PEG 211 of 2024

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

EFF24

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GERRARD

DATE OF ORDER:

30 MAY 2025

THE COURT ORDERS THAT:

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

2.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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or…

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AGLC
EFF24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 783
Case
[2025] FedCFamC2G 783
Decision Date

CaseChat Overview and Summary

The case of EFF24 v Minister for Immigration and Citizenship involved a Malaysian citizen who sought a protection visa in Australia. He claimed that a gang had kidnapped him after he reported his friend's illegal activities to the police, and that there was an order to kill him. After the delegate of the Minister refused his visa application, the applicant sought a review by the Administrative Appeals Tribunal (AAT), which upheld the delegate's decision. The applicant then applied for judicial review of the AAT's decision in the Federal Court of Australia.

The main legal issues before the court were whether the AAT misconstrued the definition of "significant harm" in the Migration Act, whether the AAT had jurisdiction to decide the matter, whether the AAT failed to consider the applicant's claims, and whether the AAT failed to comply with the Act's procedural requirements. The applicant argued that the AAT did not properly assess his claims and did not give him a fair hearing. The Minister for Immigration and Citizenship contended that the AAT's decision was lawful and that the applicant failed to show any jurisdictional error.

The court found that the AAT had not committed any jurisdictional error in its decision. The court noted that the AAT had properly considered the relevant legal tests and factual evidence in making its decision. The AAT had also given the applicant a real and meaningful opportunity to present his claims and evidence at the hearing. The court rejected the applicant's arguments that the AAT had failed to consider his claims or had not complied with the Act's procedural requirements. The court held that the AAT's findings were open to it on the information and evidence before it, and that the applicant had not established any jurisdictional error in the AAT's decision.

The court dismissed the applicant's application for judicial review and affirmed the AAT's decision not to grant the applicant a protection visa. The court noted that it could not consider the merits of the applicant's protection claims, and that the applicant had not shown any errors in the AAT's decision. The court held that the AAT had properly exercised its jurisdiction and had not erred in law in deciding the matter. The court concluded that the application for judicial review could not succeed on the grounds pleaded.

Orders

Orders of the court

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Background

Background to the litigation

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 The applicant is a citizen of Malaysia (Court Book (CB) 7). He first arrived in Australia on 18 February 2018 as the holder of a visitor visa (CB 8, 33). On 14 May 2018, the applicant applied for a protection visa (CB 1-18). In his application, he claimed to have left Malaysia because a gang had kidnapped him after he filed a police report in relation to his friend who was caught by the police “carrying goods”. He was told that the gang had been given the order to kill him (CB 11-12). On 13 August 2018, a delegate of the Minister refused to grant the applicant the visa (CB 33-40). The delegate found that whilst the applicant may not have absolute protection in Malaysia, the Malaysian authorities are willing and able to provide an adequate level of protection to the applicant for his feared harm of the gang (CB 35). 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 34, 36). On 31 August 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 41-42). On 11 January 2024, the applicant was invited to complete a pre-hearing information form (CB 47). On 15 April 2024, the applicant was invited to attend a hearing scheduled for 7 May 2024 (CB 49-51). On 7 May 2024, the applicant attended the scheduled hearing with the assistance of a Malay interpreter (CB 59). On 27 May 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 64-73). On 21 June 2024, 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 To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail. The Tribunal began by identifying the visa decision under review. The Tribunal set out that the applicant was not invited to an interview by the Department, and that on 13 August 2018, a delegate of the Minister refused to grant the applicant the visa under s 65 of the Act (at [2], [7]). The Tribunal confirmed that on 11 January 2024, the applicant was emailed requesting that he fill out a form providing current contact details and any additional information regarding his protection claims, to which he did not respond (at [9]). The Tribunal confirmed that on 15 April 2024, the applicant was invited to a hearing scheduled for 7 May 2024 and was assisted by a Malay interpreter at that hearing (at [10]-[11]). The Tribunal was satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process, and was able to present his claims and evidence and respond to issues raised at the hearing (at [11]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 21 June 2024, 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 To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail. The Tribunal began by identifying the visa decision under review. The Tribunal set out that the applicant was not invited to an interview by the Department, and that on 13 August 2018, a delegate of the Minister refused to grant the applicant the visa under s 65 of the Act (at [2], [7]). The Tribunal confirmed that on 11 January 2024, the applicant was emailed requesting that he fill out a form providing current contact details and any additional information regarding his protection claims, to which he did not respond (at [9]). The Tribunal confirmed that on 15 April 2024, the applicant was invited to a hearing scheduled for 7 May 2024 and was assisted by a Malay interpreter at that hearing (at [10]-[11]). The Tribunal was satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process, and was able to present his claims and evidence and respond to issues raised at the hearing (at [11]). The Tribunal explained the purpose of the hearing and the criteria for the grant of a protection visa. The Tribunal also explained that it was not bound by the findings of the delegate and would be assessing all of the information before it, but that the applicant should not assume that anything accepted by the delegate would also be accepted by the Tribunal. The Tribunal confirmed that the applicant expressed his understanding and had no questions in this regard (at [12]). The Tribunal set out the relevant legislative provisions in respect of the refugee and complementary protection criteria (at [13]-[17]), as well as the mandatory considerations contained within Ministerial Direction No. 84, made under s 499 of the Act (at [18]). The Tribunal noted that, at the hearing, the applicant said that when he organised his travel to Australia, he was told by a friend in Malaysia to see an ‘agent’ in Australia who is from Singapore. Once he met the agent, the agent provided him with accommodation and lodged his protection visa application. He gave the agent his passport and $450, and told the agent he wanted to work in Australia. The agent neither explained the criteria for a protection visa, nor asked the applicant about his circumstances in Malaysia. The applicant told the Tribunal that whilst he signed the application, he could not read English and was not made aware of the contents of his application (at [22]). The Tribunal then set out those claims and evidence in the application. The relevant claims are as follows (without alteration) (at [5]-[6]):[5] When he was in secondary school, he was forced to join a gang and gangsters were bullying secondary school students. The applicant was targeted and beaten until he joined. [6] When he was about 22 years old, his ‘big brother’ told him to carry ‘goods’ which he knew were ‘illegal’. While at university, the applicant’s friend was caught by the police, and he tried to place the blame on the applicant. The applicant’s father reported the matter to the police, the police obtained evidence, and arrested gang members. The gangsters came to the applicant’s parents’ house and made threats. The applicant was kidnapped and beaten until his father paid the gangsters money. There was an order to kill the applicant which caused him to depart the country and seek protection in Australia.

Ratio Decidendi

Legal Principle Established

The Court asked the applicant whether he had prepared the grounds to his application and he confirmed that a friend had assisted him. However, he also confirmed that he understood the grounds pleaded. When invited to address the Court as to what was wrong with the Tribunal’s decision, the applicant briefly stated that the police officer had threatened to shoot him and that he could not survive in Malaysia because of the length of time he had spent in Australia. The Court reminded the applicant that he needed to address whether there were any errors in the Tribunal decision and that the Court could not consider the merits of his protection claims. However, the applicant indicated that he did not wish to make any additional submissions. CONSIDERATION As outlined above, the application for judicial review contains five grounds asserting jurisdictional error, although the applicant did not address these grounds further at the hearing. Noting that the applicant was unrepresented in this matter, the Court has considered these grounds notwithstanding they were not supported by any substantive argument. 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). Grounds one and two Grounds one and two contend that the Tribunal misconstrued the “risk and fear of significant harm” as set out in s 36(2A) of the Act, particularly in relation to the claims about the economic situation in Malaysia, conflict with family members, past gang membership, and other activities. Section 36(2A) of the Act relevantly provides that:(2A) A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e)the non‑citizen will be subjected to degrading treatment or punishment. As submitted by the Minister, the Court agrees that the Tribunal clearly demonstrates within its reasons that it had regard to the correct test in considering the complementary protection criterion in s 36(2)(aa). In any event, the applicant conceded at the Tribunal hearing that he did not fear harm on any of the bases of the economic situation in Malaysia, conflict with family members, past gang membership or other activities. The applicant confirmed that his only concern was that he would earn less money working in Malaysia compared to Australia. The Tribunal correctly explained to the applicant that this would not engage Australia’s protection obligations, especially after considering that he would be able to find a job, would not face economic hardship, and would not be denied the capacity to earn a livelihood such that his capacity to subsist would be threatened. The Tribunal was within its right to adopt the factual findings in its assessment of the refugee criterion to conclude that there was no real risk that the applicant would suffer significant harm if returned to Malaysia. These findings in respect of its statutory task were not misconstrued and were open to the Tribunal on the information and evidence before it.