EJY20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1358
•22 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJY20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1358
| File number(s): | MLG 3618 of 2020 |
| Judgment of: | JUDGE JOHNS |
| Date of judgment: | 22 August 2025 |
| Catchwords: | MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to comply with the obligation under s 425(1) – whether the Tribunal failed to consider relevant evidence – whether the Tribunal’s decision was unreasonable, illogical or irrational – whether the Tribunal failed to afford procedural fairness – whether the Tribunal relied upon and adopted a decision of a related proceedings that was itself affected by jurisdictional error – a no jurisdictional error established – application dismissed |
| Legislation: | Migration Act 1958 (Cth) ss 5J(1)(a), 36(2)(a), 36(2)(aa), 425(1), 476, 476(2)(a) |
| Cases cited: | BDW15 v Minister for Immigration & Anor [2017] FCCA 2742 Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 NAIS v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 228 CLR 470 Nathanson v Minister for Home Affairs (2022) 276 CLR 80 Nguyen v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCA 485, [51]. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 3 SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 |
| Division: | Division 2 General Federal Law |
| Number of paragraphs: | 101 |
| Date of hearing: | 22 May 2025 |
| Place: | Melbourne |
| Counsel for the Applicants: | Angel Aleksov |
| Solicitor for the Applicants: | Farrell Rose Migration Lawyers |
| Counsel for the Respondents: | Laura Mills |
| Solicitor for the Respondents: | Sparke Helmore |
| Second Respondent: | Submitting appearance save as to costs. |
ORDERS
| MLG 3618 of 2020 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | EJY20 First Applicant EJZ20 Second Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINSTRATIVE REVIEW TRIBUNAL Second Respondent | |
ORDER MADE BY: | JUDGE JOHNS |
DATE OF ORDER: | 22 AUGUST 2025 |
THE COURT ORDERS THAT:
The application filed on 8 October 2020, as amended on 9 April 2025, is 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). The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (Delegate) to refuse the Applicants Protection (subclass 866) visas (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:
(a)allocated to the Court as presently constituted on 19 March 2025 and subsequently, on 14 April 2025, listed for hearing; and
(b)heard on 22 May 2025 together with EMC20 v Minister for Immigration and Multicultural Affairs (file matter MLG3701/2020) (‘EMC20’) and proceeded in person at the Court’s Melbourne Registry.
To obtain relief from this Court, the Applicants in this matter must show that the Tribunal has fallen into jurisdictional error. For the reasons that follow, the Court is not satisfied that either Tribunal decision is affected by jurisdictional error.
The applications for judicial review are, accordingly, dismissed.
BACKGROUND
The background to this matter is derived from the 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 to refuse the Applicants’ Protection Visas.
The Application for a Protection Visa
The two Applicants in these proceedings – EJY20 and EJZ20 – are citizens of Malaysia. The Applicants arrived in Australia on 4 November 2016 on Electronic Travel Authority (Class UD) visas.[1]
[1] Court Book EJY20: Exhibit R1, 55, 82 (‘R1’).
On 16 December 2016, the Applicants lodged applications for Protection Visas.[2] EJY20 was the primary Applicant, with his wife EJZ20 included as a member of the family unit.[3] Because of the connection between this matter and the applicants in EMC20 it is convenient to refer to EJY20 as “the Brother”, because he is the main protagonist in this matter.
[2] R1 10-71, 81.
[3] R1 47.
On 19 December 2016, EMC20 and EMP20 (the applicants in EMC20) lodged applications for Protection Visas. EMC20 was the primary applicant in that application[4], with his wife EMP20 (EJY20’s sister)[5], included in that application as a member of the family unit.[6] Because of the connection between this matter and the applicants in EJY20 it is convenient to refer to EMP20 as “the Sister”, because she is the main protagonist in that matter.
[4] Court Book EMC20: Exhibit R2 (‘R2’) 1-66.
[5] R1 153; R2 113.
[6] R2 38-42.
The Applicants claimed that in 2011, the Brother took out a loan of RM 300,000 from an unlicenced money lender– referred to as “Ah Long”– to fund a telecommunications infrastructure project in Malaysia.[7] EMC20 and the Brother were involved in the business venture, while the Sister was the guarantor for the loan.[8] The business failed, and the loan could not be repaid.[9]
[7] R1 41; R2 34.
[8] R1 153; R2 113 [23].
[9] Ibid.
The Applicants claimed that following default, agents of the money lender harassed and threatened them. The Brother claimed to have been physically assaulted and threatened with death.[10] The Sister and EMC20 also claimed to have been harassed and threatened, including an incident involving damage to a car and a threatening note.[11] The Applicants submitted that the Malaysian police and authorities were either unwilling or unable to protect them due to an indifference towards disputes involving unlicenced lenders.[12]
[10] R1 42.
[11] R2 32, 115 [24].
[12] R1 43;R2 34.
Decision by the Delegate
On 10 March 2017 the Delegate refused to grant the Applicants Protection Visas. In reaching this decision, the Delegate:
(a)found that the harm feared by the Applicants did not arise for a recognised reason (such as race, religion, nationality, membership of a particular social group, or political opinion) under s 5J(1)(a) of the Act[13]; and
(b)was not satisfied that the Applicants could not obtain effective state protection and that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there was a risk that the Applicants will suffer significant harm as outlined in s 36(2)(aa) of the Act.[14]
[13] R1 84.
[14] R1 88.
The Delegate considered that the Applicants’ claims were vague and not supported by corroborating evidence, and that the country information indicated that the Malaysian authorities were generally capable of addressing criminal conduct, including illegal money lending, and providing an adequate level of protection.[15]
[15] Ibid.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Separately, on the same day, the Delegate also refused the Protection Visa applications made by the applicants in the EMC20 matter.
Application to the Tribunal
On 14 March 2017, the Applicants, along with the applicants in the EMC20 matter (but in a separate application), applied to the Tribunal for review of the Delegate’s decision.[16] In both matters, all four of the applicants were assisted by the same migration agent in the review process.[17]
[16] R1 95-6.
[17] R1 102-4.
On 8 October 2019, the Applicants were invited to attend a hearing scheduled for 29 October 2019.[18] That hearing was later postponed, at the request of the Applicants, on medical grounds and was finally held on 14 November 2019.[19]
[18] R1 108.
[19] R1 129.
Prior to the hearing, the Tribunal issued a written invitation to the Applicants to file additional submissions ahead of the hearing by 22 October 2019.[20] The Applicants did not take the opportunity to file any additional material. As a result, the Tribunal member had regard to the oral submissions made by the Applicants at the hearing in addition to the materials filed with the initial Protection Visa applications.
[20] R1 108.
Tribunal Hearing
At the hearing on 14 November 2024, the Applicants’ representative requested that the Tribunal consider the matter related to the review application made by the applicants in the EMC20 matter. That is, considering the two applications shared the same factual matrix, the evidence and finding in one matter be considered in the other, insofar as relevant. The Tribunal member accepted this approach.[21] Both matters were heard by the same Tribunal member.
[21] R1 156 [26]
At the Tribunal hearing, the Brother gave oral evidence about the business venture, the loan, his role in the project, the events which led to the default, and the two alleged incidents of violence committed by the agents of the lender.[22] The Brother stated that he was physically attacked in his car by armed men after he was unable to make the loan repayments.[23] On another occasion, he said that his car was vandalized by the agents of the lender. The Brother also expressed doubts about the ability and/or willingness of the Malaysian authorities to protect him and his wife.[24] His wife, EJZ20, did not give oral evidence.
[22] R1 153-6.
[23] Ibid.
[24] Ibid.
The transcript of the Tribunal hearing on 14 November 2019 (Exhibit A1) reveals that:
(a)towards the end of the hearing the Tribunal member notified the Applicant that he was obliged to draw their attention to certain matters and information (essentially country information);
(b)the Tribunal member asked the Brother and his representative if they wanted a short adjournment before responding to the country information;
(c)the Brother and his representative declined the offer of an adjournment;
(d)the Brother and his representative made submissions in response to the country information; and
(e)the Tribunal member offered the Applicants (through their representative) and opportunity to make post-hearing submissions by 20 November 2019.
No post-hearing submissions were file with the Tribunal.
On 11 September 2020, the Tribunal affirmed the decision of the Delegate to refuse protection visas to the Brother and his wife (EJZ20).[25]
[25] R1 148-62.
Separately, on 18 September 2020, the Tribunal also refused the Protection Visa applications made by the Sister and her husband (EMC20).[26]
[26] R2 109-20.
TRIBUNAL’S DECISION
The Tribunal’s decision is 15 pages long and spans 43 paragraphs.
The Tribunal accepted a number of claims made by the Brother. In particular, the Tribunal was satisfied that:
(1)the Brother had borrowed a significant amount of money in or about 2011 from a money lender for the purposes of funding a telecommunications infrastructure project;
(2)the Brother, the Sister, his brother-in-law (EMC20), and his uncle were involved in that project;
(3)the Sister had acted as guarantor for the loan while the Brother was the primary loan holder;
(4)the business venture ultimately failed because the parties involved were unable to meet contractual deadlines in relation to the project;
(5)the Brother had made several repayments to partially satisfy the owing debt but, as a result of the failure of the business venture, he was unable to continue repaying the loan; and
(6)demands have been made of the Brother by the money lender for repayments of the loan.[27]
[27] R1 159 [33].
Beyond those general findings, the Tribunal did not accept the more serious claims made by the Brother, including that he was attacked on two occasions by agents of the loan shark, that he suffered physical and psychological injuries from those attacks, or that he faced a real risk of harm if he was to return to Malaysia.[28] The reasons for rejecting these claims were that:
(1)the Brother failed to produce any documentary evidence to corroborate his claims, including any police reports, medical reports, witness statements, or photographs of injuries or damaged properties;
(2)the Brother’s knowledge about the terms of the loan was limited as he was unable to state the duration of the loan;
(3)the Tribunal found it implausible that such a large loan would be given to the Brother in cash, in a bag, without any formal documentation or security;
(4)the Tribunal found the alleged attacks on the Brother to be vague, lacking in detail, and without corroborating witnesses. For instance, in both alleged attacks, the alleged assailants were masked and used phrases like ‘pay or die’ and despite outnumbering the Brother and the use of weapons, he managed to get away relatively unscathed. In respect of the physical scar on the Brother’s hand, the Tribunal found that to be inconclusive;
(5)the Brother gave no evidence (medical or psychiatric reports) to corroborate his claims of suffering anxiety and depression as a result of the claimed attacks;
(6)the Brother gave no evidence of having taken any steps towards repaying the loan since arriving in Australia, which the Tribunal found inconsistent with his stated fear of reprisals; and
(7)the Brother initially believed that he was applying for a work visa and only later learned that a Protection Visa application had instead been submitted by a third party named “Peter”. Despite this, he chose to proceed with the Protection Visa application without notifying the Department of the mistake.[29]
[28] R1 159 [34].
[29] R1 160-1.
Considering the above concerns noted by the Tribunal, it found that the Brother lacked credibility. It was not satisfied that the Brother faced a well-founded fear of persecution of the kind contemplated by s 36(2)(a) of the Act or a real risk of significant harm under s 36(2)(aa) of the Act.
Because EJZ20’s claim was entirely dependent on her husband (the Brother), and she did not submit any independent protection claims, her application necessarily failed after the rejection of the Brother’s protection visa application.[30]
[30] R1 162.
Accordingly, the Tribunal decided to affirm the decision of the Delegate to refuse the Applicants a Protection Visa.
PROCEEDINGS IN THIS COURT
The application
On 9 October 2020, the Applicants filed an application for judicial review of the Tribunal’s decision dated 11 September 2020 (Originating Application). The application is brought pursuant to s 476 of the Act.
On 9 April 2025, the Applicants filed an amended application (Amended Application). The Applicant seeks orders that the decision of the Tribunal be quashed and that it be remitted back to the Tribunal to be determined according to law. The Amended Application lists five grounds of alleged error. They are reproduced without alteration below.
Case management
On 28 October 2020, 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 28 November 2024, a Registrar of this Court issued an order (Registrar’s Order) programming the matter for hearing. The Registrar’s Order directed that:
(a)the Minister file and serve a bundle of relevant documents (Court Book) by 12 December 2024;
(b)the Applicant file any amended application, written submissions and further evidence in support of the application at least 28 days before the scheduled hearing; and
(c)the Minister file and serve any written submissions and additional evidence that the Minister sought to rely upon at least 14 days before the scheduled hearing.
On 6 February 2025, the Minister filed a Court Book outside of the time prescribed by the Registrar’s Order.
On 9 April 2025, the Applicant filed an Amended Application and written submissions. The Applicant also filed an Affidavit affirmed by Ms Catherine Farrell of Farrell Rose Migration Lawyers which annexed the:
(a)transcript of the Brother’s and EJZ20 Tribunal hearing held on 14 November 2019; and
(b)transcript of the EMC20 and Sister’s Tribunal hearing held on 18 November 2019.
On 14 April 2025, this Court made orders, by the consent of the parties, to list this matter for hearing on 15 May 2025, to be heard together with the EMC20 matter. The orders also directed the Minister to file and serve their amended response and written submissions by 15 May 2025.
On 15 May 2025, the Minister filed its written submissions in accordance with this Court’s orders.
Therefore, the materials before this Court are as follows:
a)the Amended Application for judicial review filed on 9 April 2025;
b)a Court Book in respect of the EMC20 application, numbering 120 pages filed on 12 December 2024 (marked as Exhibit R2);
c)a Court Book in relation to these proceedings, numbering 162 pages filed on 6 February 2025 (marked as Exhibit R1);
d)an outline of written submissions filed by the Applicants on 9 April 2025;
e)an Affidavit of affirmed by Ms Catherine Farrell of Farrell Rose Migration Lawyers filed on 9 April 2025, which annexed the Tribunal transcript for the:
i.EJY20 Tribunal hearing (marked Exhibit A1);
ii.EMC20 Tribunal hearing (marked Exhibit A2); and
f)an outline of written submissions filed by the Minister 15 May 2025.
The judicial review hearing
At the hearing on 22 May 2025, the Applicants were represented by Angel Aleksov of Counsel. The Minister was represented by Laura Mills of Counsel.
Before this Court, the Applicants made submissions in support of the grounds set out in their amended application. The Court incorporates (without repetition) paragraphs 18 to 43 of the Applicants’ Submissions. Those submissions are considered below.
The Minister made submissions consistent with the written submissions filed by the Minister on 15 May 2025. The Court incorporates (without repetition) paragraphs 26 to 53 of the Minister’s outline of submissions.
After the Minister made their submissions, the Court invited the Applicants to respond to what the Minister’s representative had said. No further submissions were made.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[31] 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.[32]
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.[33]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[34] 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”.[35] Different kinds of error may overlap.[36] The categories are not closed.[37] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[38]
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.[39] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[40] It has been described as an “undemanding” standard.[41]
[31] [2025] FedCFamC2G 620.
[32] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[33] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [17] (Allson CJ, Besanko and O’Callaghan JJ).
[34] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[35] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152, [3] (‘LPDT’).
[36] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, [82].
[37] LPDT, [3].
[38] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, [82].
[39] LPDT, [7].
[40] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
[41] Nathanson v Minister for Home Affairs (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ).
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.[42]
[42] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, [40].
RELEVANT LEGISLATION
Section 425 of the Act (since repealed) provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
CONSIDERATION
The Court will now consider each ground of review in turn.
Ground One
1.The Tribunal failed to comply with the obligation under s 425(1) of the Migration Act 1958 (Cth) (‘the Act’) to afford the Applicant procedural fairness.
Particulars
a).The Tribunal relied on an absence of documents such as the loan agreement, police complaint, photographs of injuries, and vehicle damage as a basis for adverse credibility findings (EJY20 Reasons at [35(a), 35(c)]).
b).The Tribunal did not put this issue to the Applicant during the hearing, nor did it ask whether any such documents existed, why they were not provided, or whether arguments could be made about the absence of such evidence.
c).The Applicant was thereby denied a fair opportunity to give evidence or make submissions in relation to an issue that was material to the determination of his credibility.
d).The Tribunal also reasoned adversely to the Applicant for failing to notify the Department about the incorrect lodgement of a protection visa application (Tribunal reasons at [35(f)]), and for failing to make repayments on the loan while in Australia (Tribunal reasons at [35(g)]). Neither of these matters were raised with the Applicant at hearing.
e).These issues were material to the outcome, as the Tribunal’s adverse findings were key to its rejection of the applicants’ protection claims. The hearing was therefore not fair, contrary to section 425(1) of the Act.
By this ground, the Applicants contend that the Tribunal failed to afford procedural fairness as required by s 425(1) of the Act. The Applicants submit that the Tribunal relied on matters not raised with them during the hearing, depriving them of a fair opportunity to respond to issues material to their credibility and the outcome of their claims.
Section 425(1), as in force at the time of the Tribunal’s decision, required that the Tribunal invite the Applicants to appear for a hearing and give evidence and present arguments relating to issues arising in relation to the decision under review. The Applicants rely on Nguyen v Minister for Immigration, Citizenship & Multicultural Affairs to submit that an “issue” may include an absence of evidence on a material point.[43]
[43] [2023] FCA 485, [51].
Counsel for the Applicants identified three issues that were not allegedly put to the Applicants.
The first issue raised concerns the absence of corroborating documents. At [35(a)] of its decision, the Tribunal said:
The First Applicant did not produce any documents to corroborate his evidence. This is most surprising having regard to the importance of this matter as described by the First Applicant. There are no documents that have been produced evidencing the loan or the business venture. He has produced no copies of police complaints he has apparently made. He has produced no photographs of injuries or of his smashed car. There is simply nothing in documentary form to corroborate the First Applicant's very serious claims. The First Applicant's most significant claims, concerning the violence and threats to which has been subject, depend entirely on the Tribunal simply accepting his word, without anything more.[44]
[44] R1 160 [35(a)].
The Applicants submit that at no point during the hearing did the Tribunal ask whether such documents existed, why they were not provided, or invite submissions about the absence of such evidence.
The second issue concerns the Applicants’ failure to notify the Department about the incorrect lodgement of their visa application. At paragraph [35(f)] of its decision, the Tribunal said:
The First Applicant had no intention of applying for a protection visa because he thought he was applying for a work visa. That, according to the First Applicant, is why he says he came to Australia. He says he came here to work and pay back the loan. If that is the case, it is difficult to understand why he did not take steps to inform the Department as soon as he discovered that the wrong visa application had been made on his behalf. Instead, he has chosen to prosecute a protection visa application while still maintaining that his principal purpose of coming to Australia was to work and pay back the loan.[45]
[45] R2 161 [35(f)].
The Applicants submit that the Tribunal did not raise this issue with them during the hearing, depriving them of the opportunity to provide an explanation.
The third issue relates to the Tribunal’s finding at paragraph [35(g)] of its decision that the Applicants had given no evidence about having taken any steps towards repaying the loan. The Tribunal said:
The First Applicant gave no evidence about having taken any steps towards repaying the loan. It seems unusual that a person who claims to be in fear for their personal safety and that of their family, due to threats made by money a lender pursuing a bad debt, has not taken steps towards making repayments so they and their family will be left alone.
Counsel for the Applicants submitted that this was never put to him at hearing, stating:
MR ALEKSOV: Now that you are in Australia, safely away from the moneylender and working, presumably with access to money, why haven’t you taken steps to pay down that loan? – Never asked.
In response, the Minister submits that procedural fairness did not require the Tribunal to expressly raise each of these matters. Relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor[46] and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[47], the Minister argues that the obligation is limited to identifying any issue “critical” to the decision which is not apparent from its nature or the statute, and does not extend to providing a “running commentary” on all possible reasons for an adverse outcome.[48]
[46] [2006] HCA 3, [29]-[43] (Gleeson CJ, Kirby, Hayne Callinan and Heydon JJ).
[47] [2001] HCA 22, [31] (Gleeson CJ and Hayne J).
[48] Minister’s written submissions filed 15 May 2025, [38].
The Minister submits that the existence of the terms of the loan, as well as the attacks allegedly suffered by the Applicants, were “fundamental” to the protection claims, making it obvious that corroborating evidence would be relevant.[49] Further, the Delegate’s earlier decision had observed that the Applicants provided minimal detail with no supporting documentation, putting them on notice of this issue prior to the Tribunal hearing.[50] The Minister also notes that while the Tribunal did not ask the Brother specifically about documents at their hearing, it did raise the question of loan documentation with the Applicants’ representative during the related EMC20 hearing, and that representative was given an opportunity to file written submissions in both matters but did not do so.[51] As to the Tribunal’s finding at [35(g)], the Minister submits that its questions about repayments were sufficient to put the Applicants on notice.
[49] Court Transcript 47, [5].
[50] Minister’s written submissions filed 15 May 2025, [39]; Court Transcript 47, [10].
[51] Court Transcript 47, [25].
This Court accepts that s 425(1), as in operation at the date of the Tribunal’s decision, required an applicant to be given a meaningful opportunity to address any issue critical to the decision which is not otherwise obvious. The existence of the loan and the attacks was central to the Brother’s claims. At the Delegate stage, the Delegate recorded,
“I note that the applicant has outlined their situation in minimal detail and with no supporting evidence.”[52]
[52] R1, 88.
The Applicants were then invited to a hearing. It was made clear to them that the Tribunal had considered the material then before it and was “unable to make a favourable decision on this information alone.” The Applicants were invited to appear and provide documents.
The Applicants contended that “at no point [was the Brother] asked to produce corroborating documents…”. Having regard to the very clear contents of the Invitation to Attend a Hearing, the Court as presently constituted, rejects that contention. The Applicants had every opportunity to put “supporting evidence” or “corroborating documents” before the Tribunal. Further, following the hearing on 14 November 2019, the Applicants were given a further 6 days to file supplementary submissions. They did not. It matters not that the invitation to file supplementary submissions was general in nature.
Having been put on notice about the absence of supporting evidence at the Delegate stage, it ought to have been apparent that documentary evidence would assist at the Tribunal stage.
Reviewing the transcript of the Tribunal hearing it is apparent that the Brother was provided with an opportunity to “go back a step and tell [the Tribunal] about this whole loan”.[53] Every aspect of the loan was covered; who was the borrower, when it was borrowed, the quantum, the interest rate (30% p.a.), who was the guarantor, the purpose of the loan (telecommunications tower), the partnership with the Sister and his brother-in-law, the proposed date that repayments would begin (6 months). All the relevant issues were identified by the Tribunal. All the relevant issues relating to the loan (with particularity) were drawn to the Brother’s attention. The Court rejects the contention that during that evidence the Tribunal was required to ask at any time “do you have a document for that?” It was incumbent on the Applicants to provide documentary evidence in support of their claims. The Court is satisfied that the Applicants had a real and meaningful opportunity to present their case.
[53] Exhibit A1, 15-23.
The Court accepts that the Tribunal did not raise with the Brother issues concerning his failure to correct the visa lodgement or his lack of repayments while in Australia. However, read fairly these matters were not critical to the Tribunal’s decision, and in any case: [54]
… procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure” Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
[54] SZMUF v Minister for Immigration and Citizenship [2009] FCA 182, [22].
Ground One is dismissed.
Ground Two
2.The Tribunal constructively failed to exercise jurisdiction by failing to consider relevant and probative evidence in the review.
Particulars
a).The Applicant’s sister (EMP20) gave evidence in her own Tribunal review that she held the loan document, and that it was lost when the business venture’s project office was ransacked (EMC20 Reasons at [24(c)]).
b).The Tribunal did not consider this explanation for the absence of documentary evidence in EJY20’s matter, despite having otherwise relied on her evidence as corroborative (EJY20 Reasons at [33]).
c).This was important evidence in EJY20’s review, and a failure to consider important evidence is a failure to afford procedural fairness and a constructive failure to perform the review required by the Act (see Minister for Immigration and Citizenship v SZRK (2013) 212 FCR 99).
By this ground, the Applicants submit that the Tribunal failed to consider, in the Brother’s matter, relevant and probative evidence given by the Sister in her own Tribunal review hearing. Specifically, the Applicants submit that EMP20 had given evidence that she held the loan documents until the project office was ransacked resulting in its loss.[55] The Applicants submit that while the Tribunal otherwise relied on EMP20’s evidence in its decision,[56] it failed to consider her explanation for the absence of the loan document, which was important to the Tribunal in assessing the Applicants’ credibility.
[55] R2 114, [24(c)].
[56] R1 159, [33].
Counsel for the Applicants submitted that the Tribunal had a duty to consider important evidence from EMP20’s Tribunal hearing, particularly given that the Applicants’ representative had expressly asked the Tribunal to consider the cases together and the Tribunal had agreed to do so.[57] Counsel argued that EMP20’s evidence explaining the absence of the loan document was capable of reversing the adverse credibility finding made at [35(a)], where the Tribunal stated:
The First Applicant did not produce any documents to corroborate his evidence. This is most surprising having regard to the importance of this matter as described by the First Applicant. There are no documents that have been produced evidencing the loan or the business venture.[58]
[57] R1 153-6.
[58] R1 160, [35(a)].
Counsel further submitted that while the Tribunal did not make an express finding in its decision in EMC20 about whether the loan documents had been destroyed, its reasons in that decision did not reject EMP20’s evidence about the ransacking outright. Instead, it left that part of her evidence unaddressed. In these circumstances, the Applicant argued that the failure to consider it in its decision constituted a failure to consider relevant evidence.
In response, the Minister submitted that a decision-maker is not required to refer to every piece of evidence in its reasons and that an inference of failure should not be too readily drawn.[59] The Minister argued that at paragraph [24(c)] of the EMC20 decision, the Tribunal referred to EMP20’s evidence about the ransacking and missing loan documents but was not satisfied of this claim when it said in paragraph [35] of that decision:
On balance, other than those findings that have specifically been made by the Tribunal in paragraphs [31] and [32] above, the Tribunal is not satisfied that the Applicants' claims are made out.[60]
[59] Minister’s written submissions filed 15 May 2025, [44].
[60] R2 118, [35].
The Minister submitted that the Tribunal’s rejection of the Sister’s explanation in the EMC20 Tribunal decision meant that it was unnecessary for the Tribunal to make a separate finding on that matter in its decision.[61]
[61] Minister’s Submissions, 10 [46].
In paragraph [35] of the Brother’s Tribunal Decision the Tribunal held that,
Although the claims are, at first glance, plausible having regard to the relevant country information, as summarised in paragraph [28] above, concerns about the veracity of the First Applicant’s claims arise from the following aspects of his evidence … (a) The First Applicant did not produce any documents to corroborate his evidence. …
In paragraph [34] of the Sister’s Tribunal Decision the Tribunal held that,
Although the claims are, at first glance, plausible having regard to the relevant country information, concerns about the veracity of the Applicants’ claims arise from the following aspects of the evidence … (a) there are no documents that have been produced evidencing the loan or the business venture.
That is to say, in both decisions, the absence of documents was central.
In the Sister’s matter she explained [24](c) that there were “no loan documents or guarantor documents … [because] the project office, where she worked, had been rampage. All the loan documents were gone.” That statement was not included in the Tribunal’s findings [31] and [32]. The Tribunal the concluded that, “other than the findings that have specifically been made by the Tribunal in paragraphs [31] and [32] above, the Tribunal is not satisfied that the Applicants’ claims are made out.” Consequently, the Minister is correct in its contention that the Tribunal rejected the “rampage claim”. The Court rejects the submission made by Mr Aleksov that “the Tribunal didn’t make a finding on that.”[62]
[62] Court Transcript, 24, 27.
Having rejected the “rampage evidence” in the Sister’s case, it was unnecessary to refer to it in the Brother’s case. The alleged office rampage does not explain the absence of documents.
Given that the Tribunal is not required to refer to every piece of evidence in its reasons, the Court is not persuaded that there was any failure to consider relevant and probative evidence amounting to a jurisdictional error when, in the Brother’s matter, the Tribunal did not refer to the rejected evidence in the Sister’s matter.
Ground Two is dismissed.
Ground Three
3.The Tribunal’s decision was legally unreasonable, illogical or irrational.
Particulars
a).The Tribunal accepted that the Applicant had entered into a business venture with family members, had borrowed a significant sum of money from a loan shark, and that demands for repayment were made (EJY20 reasons at [33]). The Tribunal accepted this despite there not being in evidence any documents corroborating the business venture or the loan.
b).The Tribunal proceeded to reject the Applicant’s claims of threats and attacks on the basis that there was no evidence of the loan or venture (EJY20 reasons at [35(a)]), and no police report or medical evidence.
c).It was illogical for the Tribunal to accept the loan and business venture on the applicant’s word but then disbelieve the associated threats for lack of the very same documents. The Tribunal could not rationally rely on the Applicant’s account for one purpose and disregard it for another.
d).Further, the Tribunal’s expectations regarding the existence of a police report or photographic evidence were unreasonable, particularly given that the Applicant was not asked any questions about these matters during the hearing, and in circumstances where the Tribunal had before it evidence from the Applicant’s sister in EMC20 that such documents did not exist (EMC20 Reasons at [34(b)]).
e).These findings were material to the Tribunal’s decision. The adverse credibility findings were central to the Tribunal’s rejection of the Applicant’s protection claims. Had the Tribunal not drawn unreasonable or illogical inferences from the absence of documents, it may have reached a different conclusion.
By this ground, the Applicants submit that it was legally unreasonable, illogical, or irrational for the Tribunal to accept the Applicants’ account in relation to the existence of the loan and business venture, that they borrowed a significant sum of money from a loan shark, and that demands for repayment were made, yet reject the Applicants’ claims of threats on the basis of the same absence of corroborating documents. The Applicants further argue that it was unreasonable for the Tribunal to expect a police report and photographic evidence in circumstances where the Applicants were not asked any questions about these matters during the hearing, and where the Tribunal had evidence from the Sister in the EMC20 Tribunal hearing that such documents did not exist.
In response, the Minister submitted that the principles regarding legal unreasonableness and illogicality establish a high bar and require a conclusion that no sensible Tribunal acting with due appreciation of its responsibilities could have made the decision, or that there is no evident and intelligible justification for the decision.[63] The Minister submitted that there is nothing inconsistent, illogical or irrational in the Tribunal making general findings about the existence of the loan and business venture yet rejecting specific aspects of the Applicants’ claims including the precise amount borrowed or the claimed threats and attacks. It further submitted that the Tribunal gave detailed reasons for rejecting these claims at paragraph [34] and [35] of its decision.
[63] Minister’s written submissions filed 15 May 2025, [34], citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, [10] (Kiefel CJ) (‘SZVFW’); Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (‘Li’), [71] (Hayne, Kiefel and Bell JJ).
It is the case that the claims accepted by the Tribunal were accepted without documents, and all the claims rejected by the Tribunal were rejected because there were no documents. While, on its face, that may appear illogical, it is explained by the fact that the accepted claims were general in nature and the rejected claims were specific. However, there is an evident and intelligible justification for the distinction. There is nothing irrational in the Tribunal accepting that the Brother “borrowed a significant sum of money” [33](a) but reject the more specific claim that it was “300,000 RM” [34](a). The Tribunal gave the Brother the benefit of the doubt in relation to the general claims, but not the specific claims (especially because he was unable to produce corroborating documents – that being an issue before the Delegate and him being invited to provide documents by the Tribunal). There is nothing unreasonable in that approach. It does not, as Mr Alexsov contended, “speak to a confused mental state.”[64] For these reasons the Court as presently constituted is not satisfied that the reasoning of the Tribunal does not make sense.
[64] Court Transcript 26, 39.
Ground Three is dismissed.
Ground Four
4.The Tribunal failed to afford the applicants procedural fairness by failing to comply with section 425(1) of the Act by reason of excessive and unexplained delay between hearing and decision.
Particulars
a).The hearing was conducted on 14 November 2019, and the decision was delivered on 11 September 2020, a delay of ten months.
b).The Tribunal’s decision turned materially on adverse credibility findings, including observations as to the applicants’ demeanour and performance during the hearing.
c).It is unrealistic to expect that the Tribunal could recall how the applicants responded to questioning after such a lengthy delay, or to have preserved any positive impressions they may have made (see BDW15 [2017] FCCA 2742).
d).In these circumstances, the delay resulted in procedural unfairness and the denial of a fair hearing.
By this ground, the Applicants contend that the Tribunal failed to afford it procedural fairness by reason of the excessive and unexplained delay between the hearing and the delivery of its decision. The hearing took place on 14 November 2019, and the decision was delivered on 11 September 2020, approximately 10 months later.
The Applicants submit that this delay was excessive and that, because the Tribunal’s decision turned materially on credibility findings which were adverse for the Applicants, it was unrealistic to expect that the Tribunal could properly recall how the Applicants responded to questioning at the Tribunal hearing or preserve any positive or negative impressions the Tribunal Member may have made. Counsel for the Applicants placed reliance on the case of BDW15 v Minister for Immigration & Anor[65], where a 15-month delay was regarded to have deprived the applicants of a fair hearing.
[65] [2017] FCCA 2742 (‘BSW15’).
In response, the Minister submitted that the circumstances in which delay alone will vitiate proceedings are rare, and while a delay of 10 months is a significant period, it was shorter than the delay in BDW15 and the case of NAIS v Minister for Immigration & Multicultural and Indigenous Affairs[66], where the relevant delay was four years. The Minister argued that the Tribunal’s credibility findings were not based solely on demeanour, but rather a lack of corroborating evidence and inconsistencies in the Applicants’ evidence. The Minister further submitted that there was no express reference in the Tribunal’s decision as to observations about the Applicants’ demeanour or performance during the hearing. The Minister also argued that the delay was partly explained by the need to write two decisions concurrently.
[66] (2005) 228 CLR 470 (‘NAIS’).
In BDW15, (where the delay was 15 months) Judge Wilson surveyed the authorities about when a decision maker will deny procedural fairness to a person by making adverse credit findings following a substantial delay between the hearing and judgment. In citing NAIS (where the delay was 4 years, 8 months and 8 days), Judge Wilson quoted comments made by the Honourable Justice Kirby, [67]
The general unwillingness of courts, conducting an appeal or judicial review, to go behind findings as to the credibility of parties or witnesses is a well-known feature of all litigation where a determination is challenged after a first instance decision. This fact reposes a great responsibility upon primary decision-makers. Respect for their decisions comes at a price. That price is the reasonably prompt determination of contested questions of credibility while memories of impression are fresh and true reasons can be given for preferring some, and rejecting other, evidence.
...
[W]hen inordinate delay is established, closer analysis of the circumstances of the case and of the effect of the delay is then required.
...
The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, while regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that “the trier of fact can recall the testimony and the demeanor of the witnesses as well as the dynamics of the trial.”
[67] BDW15 (n 65) [12], quoting NAIS (n 66) [68].
The following quote from Gleeson CJ in NAIS is also apt:[68]
There is no dispute that the delay on the part of the Tribunal was inordinate. There is nothing in the reasons of the Tribunal that seeks to explain or justify the delay. Nor is there anything in those reasons that recognises any possible effect of delay on the decision-making process or seeks to explain how any possible problem resulting from the delay might have been taken into account or overcome. The reasons are expressed in a form that appears to treat the time involved in the Tribunal process as immaterial to the adjudicative function.
[68] NAIS (n 66) [3].
In this matter the delay was excessive (10 months). The Court rejects completely the Minister’s submission that “the delay of ten months is not a lengthy or significant delay”[69], Further the delay was unexplained. It is not appropriate for the Court to speculate as to the reasons for the delay. It is not enough that it involved two matters, two sets of evidence and two hearings. This Court has considered more material across the two matters than the Tribunal did, and this decision is being delivered after only 13 weeks. Further still the delay is attributable to the Tribunal. The Applicants are blameless.
[69] First Respondent’s Written Submissions, [30].
The Court accepts that after a delay of 10 months and given the Tribunal’s workload it would not be possible for the Tribunal member to remember how the Brother performed at the Tribunal, nor remember any positive impressions he might have made. However, it must be that there was no negative view formed of the Brother, because the Tribunal gave him the benefit of the doubt in relation to all the general findings that it made about the loan. In relation to the general claims the Tribunal must have accepted that the Brother was a witness of truth.
It was not the Brother’s demeanour upon which the Tribunal made the findings “about the veracity of the [Brother’s] claims…”. There is nothing in the Tribunal decision about the Brother’s demeanour. That might be expected because the decision was handed down 10 months after the hearing. However, importantly, there was no finding that the Brother was not truthful. As Kirby J stated in NAIS what is required is an “examination of the matter actually decided.” In this matter, the claims rejected (about the specifics of the loan etc), were rejected because of an absence of corroborating documents. This was not a case where there was an assessment of the truthfulness of witnesses across competing versions of events. Mr Aleksov said that what the Court should look for “is an inference that demeanour was not irrelevant, [that it] might have mattered.”[70] Having scoured the Tribunal’s decision the Court is not convinced that demeanour matter at all. Consequently, the delay does not affect the validity of what the Tribunal decided.
[70] Court Transcript, 31 [32].
Accordingly, while the delay of 10 months was unacceptable, the delay in this matter does not vitiate the proceeding before the Tribunal.
Ground Four is dismissed.
Ground Five
5.The Tribunal’s decision is affected by jurisdictional error as it relied upon and adopted a decision in a related proceeding (EMC20 and EMP20) that was itself affected by jurisdictional error.
Particulars
a).The Tribunal expressly relied on the evidence of EMP20 (the first applicant’s sister) in assessing the applicant’s claims (see EJY20 Reasons at [33]).
b).Her credibility was therefore integral to the Tribunal’s assessment of the present applicant’s case.
c).If the Tribunal erred in assessing EMP20’s case, those errors infected the Tribunal’s findings in the present matter (see Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22)
d).Such an error was material, as had the assessment of EMC20/EMP20’s evidence been lawfully made, it may have led the Tribunal to assess the applicant’s claims differently.
By this ground, the Applicants submit that the Tribunal’s decision is affected by jurisdictional error because it relied upon findings made in the related Tribunal hearing involving the ECM20 applicants, which was itself affected by jurisdictional error. The Applicants submit that EMP20’s evidence was relevant in the Tribunal’s assessment of the Brother’s claims, and if the Tribunal erred in assessing EMP20’s credibility in ECM20, that error infected its findings in the Tribunal decision involving the Applicants as well.
Counsel for the Applicants submitted that the Tribunal expressly relied on the evidence given by EMP20 when it said at paragraph [33]:
Having regard to the evidence of the Applicants that was given at the hearing in Case Number 1704783 by the First Applicant’s sister and brother-in-law, which corroborates to some extent the First Applicant’s evidence about taking out a loan for the purposes of project in which they were all involved, the Tribunal also makes the following findings…
The Applicants argue that if jurisdictional error is found in the assessment of EMP20’s evidence in EMC20, then the Tribunal’s reliance on that assessment in its decision necessarily renders the decision affected by error. In this respect, Counsel placed reliance on Wei v Minister for Immigration and Border Protection,[71] which recognises that an error in one decision may infect another where the second is reliant on the first.
[71] (2015) 257 CLR 22.
In response, the Minister submitted that while the Tribunal had regard to the evidence in both proceedings, it did not merely adopt the findings in the EMC20 Tribunal hearing. Instead, the Minister submits that the Tribunal had made its own findings in each matter. The Minister argues that it does not automatically follow that an error in EMC20 would result in a jurisdictional error being found in this decision; each decision must be assessed on its own terms to determine whether it is affected by jurisdictional error.
The Court has not found jurisdictional error in the assessment of the evidence of the Sister or her husband, EMP20. Accordingly, the question of whether the Tribunal’s decision in relation to the Brother is affected by jurisdictional error because the Sister’s Tribunal decision was, does not arise.
Ground Five is dismissed.
DISPOSITION
For the reasons set out above, this Court is not satisfied that the Tribunal’s reasons were affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed. The Court will hear the parties on costs.
| I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. |
Associate: DD
Dated: 22 August 2025
0
17
1