EGX20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 51
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGX20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 51
File number(s): MLG 3503 of 2020 Judgment of: JUDGE COULTHARD Date of judgment: 22 January 2025 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider relevant material – considering irrelevant material – failure to afford procedural fairness – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J(1), 36(2)(a), 36(2)(aa), 36(2A), 422B, 424AA, 425, 425A, 426, 476(1)
Administrative Appeals Tribunal Act 1975 s 44
Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] FCAFC 263; (2004) 144 FCR1
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of last submission/s: 15 January 2025 Date of hearing: 15 January 2025 Place: Brisbane Applicant: The Applicant appeared in person unrepresented. Solicitor for the Respondents: Ms Tran - Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs. ORDERS
MLG 3503 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGX20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
22 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the second respondent be changed to “Administrative Review Tribunal”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $6500.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Malaysia. The applicant arrived in Australia on 16 September 2016 on an Electronic Travel Authority (Class UD) (Subclass 601) visa.
On 8 November 2016, the applicant made an application for a Protection (Class XA) (Subclass 866) visa (“the visa”) (Court Book (“CB”) 1-37).
On 7 March 2017, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) (“the delegate’s decision”) (CB 56-65).
Application for review to the Administrative Appeals Tribunal
On 21 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 66-72).
On 22 March 2017, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 73-75).
On 20 August 2020, the Tribunal invited the applicant to attend a hearing on 7 September 2020 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 76-80). The invitation asked the applicant to provide, at least seven days before the hearing, all documents he intended to rely on to establish that he meets the criteria for the visa.
On 25 August 2020, the applicant provided a completed Response to hearing invitation form stating that he would attend the hearing and outlining the documents he intended to rely on at the hearing. The applicant also requested that the Tribunal take oral evidence from his employer (Mr Van Niekerk) and his college lecturer (Mr Gopal) (CB 81-85).
On 31 August 2020, the applicant provided the Tribunal with documents he said he intended to rely upon at the hearing including a letter of support from his employer, pay slips and an estimate of income tax and, a confirmation of enrolment in a Diploma of Agribusiness Management with the Australian College of Agriculture and Horticulture (CB 86-99).
On 7 September 2020, the applicant attended the hearing (CB 100-102). He was assisted by an interpreter in the Malay and English languages.
On 11 September 2020, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 106-119).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant was a person to whom Australia has protection obligations because either: (a) the applicant is a refugee pursuant to s 36(2)(a) of the Act because he has a well-founded fear of persecution for one of the five reasons specified in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Malaysia he would be persecuted for one of those reasons; and, if not, (b) whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm pursuant to the complementary protection criterion in s 36(2)(aa) of the Act ([8]-[12]; [16]).
The Tribunal’s reasons for Decision record that it explained to the applicant that its role is limited to reviewing the decision to refuse the applicant a protection visa which is not an employer sponsored visa. The Tribunal said that it had read the letter from the applicant’s employer and that it accepted the genuineness of the sentiments expressed and his support for the applicant continuing to work on his farm. The Tribunal explained to that applicant that this was not relevant to the Tribunal’s review of the decision to refuse the applicant a protection visa. For that reason, the Tribunal told the applicant that it did not propose contacting the applicant’s employer ([26]-[27]). The Tribunal’s reasons for Decision record that, similarly, it explained to the applicant that it accepts that the applicant is studying for a Diploma of Agribusiness Management at the Australian College of Agriculture & Horticulture but that it did not propose contacting the applicant’s lecturer ([28]). The Tribunal’s reasons for Decision record that the applicant accepted this decision ([27]-[28]).
The Tribunal set out in full (without alteration) the applicant’s claims for protection as set out in his application to the protection visa as follows:
Why did you leave that country [Malaysia]?
I am leaving the country because the democratic system practiced has runed my country, under leadership Dato Seri Najib Tun Razak summary no longer to get people and have many investors and shut out of them, result of the Malaysia public work that have to be removed d unemployed.
What do you think will happen to you if you return to that country?
To continue living the most pressing them had to borrow money from financial companies are not licensed.
Did you experience harm in that country?
Yes. Among them including me can not paid more debt increased.
Did you seek help within that country after the harm?
No. Malaysia is among the highest debt with wold bank.
Did you move, or try to move, to another part of that country to seek safety?
No. More poor countries but increased more corruption.
Do you think you will be harmed or mistreated if you return to that country?
Yes. When people speak about the truth, they will be jailed, or they will killed by the assassin.
Do you think the authorities of that country can and will protect you if you go back?
No. I have decided to escape into Australia. Because I am sure the Australia Government gives hope people like my and many more people Malaysia the other.
Do you think you would be able to relocate within that country to an area where you would not be harmed?
No. I am that the government Australia expect assessing the fair and I say a big thank you to the Australia Government provide protection for me.
The Tribunal accepted that the applicant is a citizen of Malaysia, and that Malysia is therefore the receiving country for the purpose of assessing the applicant’s claim for protection ([15]).
The Tribunal recorded that at the start of the hearing the applicant indicated that everything in his protection visa application was true and correct and that he did not have any help or assistance in preparing his application ([23]).
The Tribunal put to the applicant, in accordance with s 424AA of the Act, that the applicant’s claims for protection are identical to those of another applicant, who also provided the same address as the applicant had provided in his protection visa application. The Tribunal told the applicant that, depending on his comments on or response to the information, this may cause the Tribunal to find his claims are not genuine. The Tribunal’s reasons record that the applicant indicated he understood the relevance of the information to the review and that he did not need additional time but wished to respond immediately ([29]). The applicant replied that it may be that they have the same situation as him. The Tribunal asked the applicant if he prepared his application with someone else. The applicant replied that he is not sure and that he had a friend, but his friend has already left that address and that maybe his friend saw his claims and used them ([31]). The Tribunal observed that the claims are expressed in very idiosyncratic language, suggesting a language translation program may have been used, and that it considered it likely that two or more people were involved in creating them, and shared the final product. Notwithstanding this, the Tribunal said that it accepts that the applicant has a genuine concern about the leadership of Najib Razak when he was Prime Minister and cost of living pressures in Malaysia ([31]).
The Tribunal summarised the applicant’s evidence and claims as follows:
(a)The applicant has a wife and four children who are living in Kuantan state, Malaysia ([24]);
(b)The applicant was living in Kuala Lumpur most recently where he worked as a driver during the day and drove a taxi at night ([24]);
(c)The applicant has family in Malaysia including his mother; two brothers; one of whom is studying, and one of whom is looking for work; three sisters who are married; his stepfather who works on a palm-oil plantation part-time who supports his mother ([25]);
(d)The applicant commented that the economic situation in Malaysia had become very bad and mentioned the corruption claims involving the government investment fund, 1 Malaysia Development Berhad (1MDB) and the then Prime Minister Najib Razak ([24]);
(e)The applicant commented that the government introduced a goods and services tax and he found he could not survive because he could not cover expenses ([24]);
(f)The applicant said that he is working in Australia on a farm and had submitted supporting documents about that to the Tribunal ([26]);
(g)The applicant is studying an Advanced Diploma of Agribusiness Management and submitted supporting documents about that to the Tribunal ([28]);
(h)The applicant said that politics in Malaysia are not stable and the party that won the last election is not the government and that the previous government under Najib Razak had made the economy go down and the people were suffering a lot and things were very hard ([30]).
The Tribunal’s reasons for Decision record that the Tribunal noted the applicant’s reference to unemployment [in Malaysia] and the need for people to borrow money and that it asked the applicant whether he was in employment up to the time he left Malaysia. The applicant indicated that he was ([32]).
The Tribunal’s reasons for Decision record that the Tribunal asked the applicant what problems he experienced that made him come to Australia to which the applicant replied that he wanted to make a new life and did not want to stay in Malaysia, so he decided to come to Australia ([32]).
The Tribunal’s reasons for Decision record that the Tribunal asked the applicant if he had experienced any harm while he was in Malaysia. The applicant said that he went to a street demonstration where people wore yellow shirts, and ‘they’ were looking for the people who were involved. The Tribunal said that it was aware of the ‘Bersih’ group who wore yellow shirts and held street demonstrations protesting about government corruption including in 2016 ([32]).
The Tribunal’s reasons for Decision refer to the 2016 Department of Foreign Affairs and Trade Country Information Report on Malaysia which the Tribunal said provides detailed background on the Bersih movement. The Tribunal noted that there had been five Bersih rallies since November 2007, the last of which was held on 19 November 2016 ([33]).
The Tribunal asked the applicant when he participated in a Bersih rally. The applicant told the Tribunal that he had participated in three such rallies. The Tribunal commented that that the last rally was in November 2016 which was after the applicant came to Australia. The applicant said that he had participated in rallies in July 2011, June 2012 and August 2015. As to the rally in August 2015, the Tribunal said to the applicant that the country information indicated that it was peaceful, protestors wore yellow shirts, there was a carnival atmosphere, former Prime Minister Mahathir Mohammad showed his support by making a brief appearance, and reportedly there was only a small number of arrests ([34]).
The Tribunal queried with the applicant why he did not mention the Bersih at all in his written statement of claims or claim that he had been harmed because of involvement in any rallies and that the country information does not indicate that people who participated in the 2015 and 2016 rallies were harmed. The applicant replied that at the time, Najib Razak controlled the highest levels of the judiciary and had the police and media under his control. The Tribunal commented that the applicant had not provided anything to indicate that he had been harmed in Malaysia because he was involved in Bersih protests. The applicant acknowledged that this is the case ([35]).
The Tribunal said that it accepted that the applicant may have attended one or more Bersih rallies while he was in Malaysia. Considering the applicant’s evidence that he was not harmed while he was in Malaysia and the relevant country information, the Tribunal said that it did not accept that the applicant faces a real chance of persecution involving serious harm because of his involvement in Bersih rallies should he return to Malaysia now or in the reasonably foreseeable future ([36]).
The Tribunal concluded that it found there was no basis for the applicant’s claim in his written statement that he fears he will be harmed if he returns to Malaysia because when people speak about ‘the truth’ they will be jailed or killed by ‘the assassin’ ([36]).
The Tribunal then asked the applicant what he fears if he returns to Malaysia now. The applicant replied that he would have to start everything from scratch and would not have work. The Tribunal put to the applicant that he had work when he left and asked him who would prevent him from getting work. The applicant acknowledge that he would not be prevented by anyone from getting work ([37]).
The Tribunal also put to the applicant that Najib Razak is no longer Prime Minister and that he was recently convicted of a corruption charge related to the 1MDB scandal although there is an appeal pending. The applicant commented that Najib Razak remains influential, and his party is still part of government ([38]). The Tribunal accepted that Najib Razak may retain some influence within Malaysian politics but considered that his conviction on corruption charges likely means his influence has been reduced and that his immediate focus is likely to be on appealing his conviction. The Tribunal said that it does not consider there is anything to indicate or suggest the applicant faces a real chance of suffering persecution involving serious harm because he is opposed to Najib Razak returning to the Prime Ministership ([38]).
In considering the applicant’s economy related claims, the Tribunal noted that the country information indicates the Malaysian economy has performed reasonably well over the last few years, that the goods and services tax had been repealed in 2018, inflation is at 1.2 per cent and the minimum wage in urban areas was increased from 1 January 2020 ([39]). The Tribunal said that whilst it accepts that the applicant would have to start over again, if he returned to Malaysia, it noted that he was in full employment up until the time he left Malaysia and that whilst he can earn significantly more working in Australia, it found nothing to indicate or suggest that the applicant would be denied the opportunity to work or would be unable to find any work in Malaysia ([40]). The Tribunal said that whilst the applicant had raised the concern in his written statement that some people borrow money from unlicensed financial companies ‘to continue living’, there was nothing in the evidence to indicate or suggest that the applicant was indebted to or fears unlicensed money lenders or their agents ([40]).
The Tribunal’s reasons for Decision then record that it put to the applicant that it finds it hard to see that he would suffer treatment amounting to serious harm due to one more of the five refugee criterion reasons, or would suffer significant harm if he returned to Malaysia. The Tribunal’s reasons for Decision record that the application replied, ‘yes’ and that he indicated that he did not have further comments to make ([41]).
The Tribunal concluded that there is nothing to indicate or suggest that the applicant would suffer severe economic hardship and/or be prevented from or be unable to obtain any employment on his return to Malaysia. The Tribunal found that the there is nothing to indicate or suggest there is a real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity subsist for one or more of the reasons in
s 5J(1)(a) of the Act, should he return to Malaysia ([42]).
The Tribunal concluded that it does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from the Malaysian government, its authorities, those opposed to the Bersih movement, unlicensed money lenders and/or their agents, or anyone else, for one or more of the five reasons mention in s 5J(1)(a) of the Act were he to return to Malaysia now or in the foreseeable future ([43]). Accordingly, the Tribunal said it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under
s 36(2)(a) of the Act.
The Tribunal then went on to consider whether there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Malayasia. Considering the applicant’s circumstances and the relevant country information, and having regard to its findings of fact, the Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as set out in s 36(2A) of the Act, from the Malaysian government, its authorities, those opposed to the Bersih movement, unlicensed money lenders and/or their agents, or any other authority, organisation, persons or group ([47]). Accordingly, 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.
Accordingly, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 28 September 2020. The applicant also filed an affidavit on 28 September 2020. The affidavit does no more than annex a copy of the Tribunal’s decision.
A procedural order was made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit annexing the Tribunal’s decision, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents in Court with him.
The applicant appeared in person unrepresented. The applicant had the assistance of an interpreter in the Malay and English languages.
Despite being ordered to do so, the applicant did not file any written submissions. The applicant was given the opportunity, with the assistance of the interpreter, to make oral submissions in support of his application for judicial review and in reply to the first respondent’s submissions.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The applicant explained to the Court his present circumstances in Australia including that he is working the second largest lemon farms in Queensland where he wishes to continue working until his retirement. The applicant said that he wanted the Court to assist him by transferring his application for a protection visa to an employer sponsored visa and explained that he had his employer’s support for this. The Court explained to the applicant that it had no jurisdiction to do so.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error in reviewing his application for a protection visa and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
Ground One:
The Tribunal filed to consider many vital integer of my case.
Ground Two
The Tribunal deprived me of procedur fairness.
Ground Three
The Tribunal member failed relied on incorrect information and decided my case using facts form some other case.
Ground Four
The Tribunal member failed to ask me questions abaout the types of harm relevant in my case.
Ground Five
According in section 44 of the Administrative Appeal tribunal Act 1975 there is a description and authorising me to make such action appeal to the Federal Circuit Court.
At the hearing, the applicant told the Court that during the COVID-19 pandemic his passport had expired and that he could not go home. He said that he had taken out a loan with the Commonwealth Bank which he was still paying off and that if he stays in Australia, he will be able to pay off the loan. He said that he had completed his studies and now had an advanced diploma. He said that he had spent $15,000 for institution fees. The applicant further said that he had been a faithful employee for 7 years and was working on the second largest lemon farm in Queensland where he wished to keep working until retirement.
These are, of course, not matters which are relevant to determining whether there was any jurisdictional error on the part of the Tribunal.
The Court took the applicant to his application for judicial review and invited him to make submissions explaining each of the grounds set out in the application. The applicant told the Court that he had not written the application and that he did not know who had done so as it was a long time ago. The Court said to the applicant that the application stated that it was prepared by him. The applicant said that he trusted someone to help him, but that person did not explain anything further to him. The Court did not raise this with the applicant, but notes that the applicant’s signature on his application to this Court appears to be identical to his signature on his affidavit filed in support of his application for judicial review. The Court then took the applicant to the procedural orders made on 2 October 2024 by a Registrar of this Court. The Court observed to the applicant that the Registrar had made an order permitting the applicant to file an amended application with proper particulars of the ground of the application. The applicant confirmed that, as is stated in the order, he attended that hearing by telephone with the assistance of an interpreter in the Malay and English languages.
Nevertheless, the Court read out each ground of review (which was translated by the interpreter) and asked the applicant if he had any submission that he wished to make in respect of each ground of review. Ground one: Failure to consider many vital integer/s
The application does not particularise the ‘many vital integer/s’ of his claim that the Tribunal failed to consider.
The Court invited the applicant to explain what integers or relevant matters he says the Tribunal failed to consider. The applicant was unable to make any submission on the basis that he said he did not draft the application.
Acting as a model litigant, the solicitor for the first respondent told the Court in oral submissions that prior to the hearing commencing the applicant had shown to her some photographs on his telephone in respect of which the applicant might wish to make submissions.
The Court invited the applicant to do so. From the applicant’s submission, the Court understands that the photographs now being referred to show the applicant attending a Bersih rally or rallies. These photographs were not in evidence before the Court nor were they in evidence before the Tribunal although the Tribunal’s reasons for Decision refer to the applicant’s evidence about photographs he had uploaded to Facebook showing his attendance at rallies. This evidence is dealt with by the Tribunal in its reasons for Decision ([34]).
The Tribunal’s reasons for Decision demonstrate that the Tribunal considered and made findings on each of the applicant’s claims under ss 36(2)(a) and (aa) of the Act that he raised at the hearing regarding his participation in Bersih rallies. The Tribunal commented that the applicant had not provided any evidence to indicate that he had been harmed in Malaysia because he was involved in Bersih protests. The Tribunal’s reasons for Decision record that the applicant acknowledged this to be the case ([35]).
The Tribunal accepted that the applicant may have attended one or more Bersih rallies while he was in Malaysia ([36]). Considering the applicant’s evidence that he was not harmed while he was in Malaysia and the relevant country information, the Tribunal said that it did not accept that the applicant faces a real chance of persecution involving serious harm because of his involvement in Bersih rallies should he return to Malaysia now or in the reasonably foreseeable future ([36]). The Court agrees with the first respondent’s submission that the Tribunal’s reasons for Decision demonstrate that it gave an intelligible justification as to why it rejected the applicant’s claim in relation to his attendance at the Bersih rallies.
In oral submissions to this Court, the applicant said that during the Bersih rallies smoke bombs and tear gas was used, and shots were fired at the Merdeka Square but that the internet did not show this. The Court asked the applicant if this evidence was before the Tribunal. The applicant said that it was not and that he had only raised it now. Accordingly, this evidence cannot establish that there was any jurisdictional error on the part of the Tribunal in respect of its consideration of the applicant’s claims regarding his attendance at Bersih rallies.
The applicant also said in oral submissions that as the former prime minister (Mr Razak) was now in prison, this demonstrates that his evidence to the Tribunal (about Mr Razak) has proven to be correct. The applicant went on to say that Mr Razak is now applying for house arrest which demonstrates that his influence in Malaysian politics has not waned. The Tribunal considered the applicant’s evidence about his concerns regarding Mr Razak and made findings about the applicant’s claims that he remains influential in Malaysian politics. The Tribunal accepted that Mr Razak may retain some influence but considered that his influence had been reduced having regard to his conviction on corruption charges ([38]). The Court considers that the Tribunal’s reasons for Decision in this regard demonstrate an intelligible justification as to why it rejected the applicant’s claim in relation to his concerns about the former prime minister on the evidence that was before it.
The Tribunal’s reasons for Decision otherwise demonstrate that the Tribunal considered and made findings on each of the applicant’s claims under ss 36(2)(a) and (aa) of the Act that he raised in his application for a protection visa and at the hearing. The Court also finds that there were otherwise no other claims that arose on the material before the Tribunal. In that regard, the Court agrees with the first respondent’s submission (first respondent’s submissions (“FRS”) [26]; citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1) that the Tribunal was only required to consider claims that were expressly made by the applicant or that clearly arose on the material before it.
No jurisdictional error is established on ground one.
Ground two: Failure to afford procedural fairness
In ground two, the applicant asserts that the Tribunal “deprived” him of procedural fairness. The application does not particularise how the Tribunal is said to have failed to afford the applicant procedural fairness.
The Court invited the applicant to explain how he thought the Tribunal had failed to afford him procedural fairness. The applicant was unable to make any submission on the basis that he said he did not draft the application.
The Tribunal was required to comply with the procedural fairness obligations under the then Division 4 of Part 7 of the Act which is an exhaustive statement of those obligations for Part 7 reviews (s 422B of the Act). The Court finds that the Tribunal complied with those obligations because:
(1)The applicant was invited to a hearing to give evidence and present his arguments in accordance with ss 425 and 425A of the Act (CB 76-80). The applicant attended the hearing. He had the assistance of an interpreter in the Malay and English languages;
(2)The hearing invitation (CB 76-80) put the applicant on notice that the Tribunal was unable to make a favourable decision on the information before it alone and put the applicant on notice that the issue before the Tribunal was the same as the issue before the delegate (which was whether he was at risk of harm). There were no new issues considered by the Tribunal of which it could be said the applicant was unaware (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]-[40] per Gleeson CJ, Kirby, Kayne, Callinan and Heydon JJ);
(3)At the hearing, the Tribunal put adverse information to the applicant about his visa application being in identical terms to that of another person who had given the same residential address as the applicant. The Tribunal’s reasons for Decision ([29]-[31]) shows that it did so in accordance with the procedure in s 424AA of the Act. The Court agrees with the first respondent’s submissions in that regard (FRS [29]). It is evident from the reasons for Decision that at the hearing the Tribunal gave to the applicant clear particulars of the information that the Tribunal said it considered would be the reason, or part of the reason, for affirming the delegate’s decision; it ensured that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the delegate’s decision; it orally invited the applicant to comment on or respond to the information and told the applicant that he may seek additional time to comment on or respond to the information which the applicant declined saying that he wished to comment on the information immediately. In the absence of the transcript, the Court cannot be satisfied that the Tribunal did not comply with its obligations under s 424AA (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1). In any event, it is clear from the Tribunal’s reasons for Decision that notwithstanding that the applicant’s visa application was identical to that of another applicant, the Tribunal accepted that the applicant had a genuine concern about the leadership of Najib Razak when he was Prime Minister and cost of living pressures in Malaysia ([31]);
(4)The applicant, as he was entitled to pursuant to s 426 of the Act, requested the Tribunal to take evidence from his employer and his college lecturer. As required by s 426(3) of the Act, the Tribunal had regard to the applicant’s wishes. The Tribunal explained to the applicant that it did not propose contacting those persons as their evidence was not relevant to the Tribunal’s consideration to its review of the applicant’s claim for a protection visa. That decision was reasonable. The evidence of the applicant’s employer and college lecturer could not have assisted the Tribunal in determining whether the applicant was someone in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act. The reasons for Decision record that the applicant accepted that decision ([27] and [28]). In any event, the Tribunal accepted the genuineness of the sentiments expressed in the letter from the applicant’s employer ([27]) and that the applicant was studying for the Diploma ([28]).
No jurisdictional error is established on ground two.
Ground three: Relying on incorrect information and on facts from some other case
In ground three, the applicant asserts that the Tribunal relied on incorrect information and on facts from another case. The application does not identify what information the Tribunal relied upon and which the applicant says was incorrect or the other case, the facts of which, the applicant says the Tribunal relied upon.
The Court invited the applicant to explain what incorrect information he says the Tribunal relied upon and what facts from some other case he says the Tribunal relied upon. The applicant was unable to make any submission on the basis that he said he did not draft the application.
The Tribunal’s reasons for Decision demonstrate that the Tribunal considered all the applicant’s written claims in his application for the protection visa and the information that he provided at the hearing in response to the Tribunal’s questions. The Tribunal, as it was required to, also had regard to relevant country information. The Tribunal also considered the employment and academic records that the applicant provided to the Tribunal prior to the hearing and, as already explained, reasonably concluded that this information was not relevant to the determinative issue. The applicant did not otherwise provide any information or documents to support his claim that he was a person in respect of whom Australia owes protection obligations.
The Tribunal put adverse information to the applicant that the applicant’s claims were identical to the claims made by another applicant with the same residential address as the applicant. The Court has found that the Tribunal complied with its obligations under s 424AA of the Act with respect to the adverse information. The Tribunal’s reasons for Decision disclose that it did not rely upon this information as it said that it nevertheless accepted the application had a genuine concern about the leadership of Najib Razak when he was Prime Minister and the cost of living pressures in Malaysia ([31]).
No jurisdictional error is established on ground three.
Ground four: Failure to ask the applicant questions about types of harm
In ground four, the applicant asserts that the Tribunal failed to ask him questions about the types of harm relevant to his case.
The Court invited the applicant to explain the questions about types of harm he said the Tribunal should have asked him about. The applicant was unable to make any submission on the basis that he said he did not draft the application.
The Court agrees with the first respondent’s submission that the duty of the Tribunal is a duty to review and not a duty to inquire (FRS [34] citing Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [35] per Heydon J). The Tribunal was not required to ask the applicant any specific question as a means of rebutting the applicant’s claims as to the harm that he alleged he would suffer were he to return to Malaysia. In any event, the Tribunal did ask the applicant questions and took evidence from him about his fears including about:
(a)that he could not survive because he could not cover his expenses ([24]) and that if you went to Malaysia, you could see that people were suffering a lot and things were very hard ([30]);
(b)that some people in Malaysia had to borrow money from unlicensed financial companies to continue living ([40]);
(c)if he returns to Malaysia, he will have to start everything from scratch ([37]);
(d)his participation in Bersih rallies in 2011, 2012 and 2015 ([32]-[36]);
(e)his opposition to the former Prime Minister, Najib Razak ([38]).
The Tribunal put to the applicant that from what he had told the Tribunal and the relevant country information, the Tribunal finds it hard to see that he would suffer treatment amounting to serious harm due to one or more of the five refugee criterion reasons or would suffer significant harm if he returned to Malaysia to which the applicant replied, ‘yes’ and indicated that he did not have any further comments he wished to make ([41]).
No jurisdictional error is established on ground four.
Ground five: Section 44 of the Administrative Appeal Tribunal Act 1975 and authorisation to appeal
There was some difficulty in interpreting for the applicant the wording of ground five. This, apart from the fact that the applicant said he did not draft the application, meant that the applicant could not assist the Court by explaining what was intended in ground five.
In any event, ground five is not a proper ground of review. It does not raise any matter that could be considered a jurisdictional error. As a statement, it is in any event misconceived as the Court’s jurisdiction is found in s 476(1) of the Act. The first respondent does not dispute that the Court has jurisdiction to hear the applicant’s application for judicial review.
No jurisdictional error is established on ground five.
CONCLUSION
Accordingly, for the reasons given above, the application is dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 22 January 2025
0