ELK20 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 642

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ELK20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 642

File number(s):

SYG 2345 of 2020

Judgment of:

JUDGE MCCABE

Date of judgment:

7 May 2025

Catchwords:

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.  

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Migration Act 1958 (Cth) ss 36, 425, 425A, 476

Cases cited:

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

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of hearing:

25 March 2025, 11 April 2025, 14 April 2025

Place:

Sydney

Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Ms E Maker, Sparke Helmore Lawyers

Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 2345 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ELK20

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	7 MAY 2025

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant pay the first respondent’s costs in the fixed amount of $7,200.

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 MCCABE:

1. Ms ELK20 is a Malaysian citizen who currently resides in Australia. She was included as a dependent in her mother’s application for protection visas lodged in 2017. The mother said she feared harassment and violence at the hands of loan sharks who might try to collect outstanding debts if she returned to Malaysia.

2. The application for protection visas was refused by a delegate of the first respondent (the minister) on 28 March 2018. Ms ELK20 and her mother sought review of the decision in the Administrative Appeals Tribunal. By the time the application for review came on for a hearing in September 2020, the applicant’s mother had returned to Malaysia. Ms ELK20 attended the hearing on her own and said she and her mother had been estranged for some time. Ms ELK20 admitted at the hearing that she knew little of the claims her mother had made. She added that she had followed her mother to Australia and had not made any claims of her own in support of a protection visa.

3. The Tribunal informed the applicant during the hearing that her mother’s absence from Australia meant the mother’s claim had to be rejected. The Tribunal explained that meant the applicant’s claim as a dependent would also be rejected. Only at that point, and notwithstanding she had previously said she had not made any claims, the applicant made a series of fresh claims about what she feared might happen to her if she returned to Malaysia. The Tribunal considered these late-breaking claims but affirmed the delegate’s decision to refuse the visa.

4. The applicant has now applied to the Court seeking judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth). I am satisfied the application for judicial review should be dismissed. The applicant was unable to identify a material jurisdictional error in the Tribunal’s decision – the sole basis on which the Court is permitted to interfere – and there is no jurisdictional error apparent on the face of the reasons. I explain my reasons for that conclusion below.

   Background

5. Ms ELK20 first travelled to Australia on an Electronic Travel Authority (Class UD) (Subclass 601) visa (an ETA) in October 2014. She appeared to travel back and forth between Australia and Malaysia on an ETA prior to August 2017. On 30 September 2017, the applicant’s mother, whom I shall refer to as Mrs T, lodged her application for a Protection (Class XA) (Subclass 866) visa. A copy of the application form is reproduced in exhibit one (the court book) at pp 1ff. The application form identified the applicant as a dependent member of Mrs T’s family unit that should also receive a visa. The application form recounted how Mrs T had borrowed money from unregistered lenders in Malaysia who charged usurious rates of interest. When Ms T was unable to keep up with repayments, she claimed she received “malicious threats”, and said she was “harmed” and that her goods were seized by her creditors. She said she and her daughter came to Australia to escape the threats: court book at pp 17ff.

6. The applicant did not make any claims on her own behalf in the application for a visa.

7. The minister’s delegate rejected the application without holding a hearing. The decision record is reproduced in the court book at pp 40ff. The delegate found Mrs T was unlikely to experience a risk of harm in circumstances where the Malaysian authorities would provide effective protection from illegal money-lenders. In the absence of any independent claims from Ms ELK20, her application for a visa was inevitably rejected.

   The Tribunal’s review

8. Mrs T and the applicant sought review of the delegate’s decision in the Tribunal. On 29 July 2020, the Tribunal sent the applicants an invitation to attend a hearing. The hearing invitation was sent to the applicant’s nominated email address. The hearing was to be held by telephone on 9 September 2020 because of Covid restrictions. On 8 September 2020, the applicant emailed the Tribunal to explain she had only just become aware of the hearing. She said she and Mrs T were no longer in contact “due to some issues”. She asked if she could attend the hearing on her own.

9. It turns out Mrs T had departed Australia on 1 March 2020.

10. It is apparent from the file that the applicant had not provided any additional material in support of the application for review in advance of the hearing. She told me at the hearing in these proceedings that she was under the impression she did not need to articulate claims of her own at the Tribunal because it would all be covered by the claims made by her mother. I accept the applicant did not play an active role in the review process up until she attended the hearing by telephone.

11. Ms ELK20 gave evidence at the Tribunal hearing with the assistance of an interpreter. She said she was unaware before that point that her mother had left the country.

    The Tribunal’s decision on review

12. The Tribunal’s decision and statement of reasons is dated 11 September 2020. The reasons are reproduced in the court book at pp 68ff.

13. The reasons commence with a discussion of the criteria which govern the award of a protection visa. The Tribunal highlighted the need for an applicant claiming to be a refugee to establish they have a well‑founded fear of persecution, while an applicant who seeks complementary protection must establish there is a real risk they will suffer significant harm.

14. The Tribunal’s reasons appear to proceed in a narrative form which reflects the way the hearing unfolded. After briefly recounting the procedural history and summarising the claims made by the absent Mrs T, the Tribunal concluded (and apparently explained to the applicant at the hearing) it was unnecessary to delve any further into Mrs T’s case as she had left Australia. The Tribunal noted (and apparently explained to the applicant in the hearing) s 36(2) of the Act required an individual applying for a protection visa to be a non-citizen who is actually in Australia. The Tribunal then turned to Ms ELK20 and noted (at [47]) she “has made no claims of her own”. At that point, the narrative suggests the Tribunal informed the applicant in the hearing that “the fate of her application depends on the outcome of [Mrs T’s] application. …It follows that she is therefore also unable to be granted a protection visa” (at [48]). The reasons indicate the applicant appeared to have a change of heart about her case at that point. The Tribunal recorded at [61]-[62]:

    61.After initially confirming that she had made no protection claims of her own and been unaware of the nature of any claims that her mother had made, when confronted with the Tribunal’s conclusion that her mother could not have a visa granted because she had left Australia, and that as a consequence, she could not also be granted a visa, the second named applicant took the opportunity to advise the Tribunal of her own reasons for being unable to return to Malaysia.

    62.She initially cited medical conditions and then, recalling her mother’s claims, stated that as she was an only daughter, she feared that someone would harm her if her mother owed them money.

15. The Tribunal appeared to take this revelation in its stride. The narrative in the decision reflects the Tribunal pivoting to elicit information about the fresh claims by the applicant in her own right so they might be assessed in light of the criteria in s 36 of the Act. The exchange between the Tribunal and the applicant that is summarised in the reasons for decision at [61]-[70] is brief enough to quote below:

    61.After initially confirming that she had made no protection claims of her own and been unaware of the nature of any claims that her mother had made, when confronted with the Tribunal’s conclusion that her mother could not have a visa granted because she had left Australia, and that as a consequence, she could not also be granted a visa, the second-named applicant took the opportunity to advise the Tribunal of her own reasons for being unable to return to Malaysia.

    62.She initially cited medical conditions and then, recalling her mother’s claims, stated that as she was an only daughter, she feared that someone would harm her if her mother owed them money.

    63.The Tribunal asked the second-named applicant whether she had at any time been harmed by anyone in Malaysia. She replied that she had not, but recalls having received a text. The Tribunal asked the second-named applicant the nature of that text and who it came from. She replied that it was from an unknown number and that it requested that she pay money. When asked for more detail about the request to pay money, the second-named applicant stated that the text said that her mother owes money and that she, the daughter, must now pay it. The Tribunal asked whether the text asked for a specific amount of money. The second-named applicant replied that she did not know how much money was involved.

    64.The Tribunal asked the second-named applicant when the said text had been received. She replied that it was a long time ago, and before she came to Australia.

    65.The Tribunal put to the second-named applicant that as her mother had now gone back to Malaysia, the Tribunal might draw the conclusion that she no longer held any fears of harm from a loan shark, or anyone else. The second-named applicant replied that she had no idea.

    66.She restated that she had no idea about her mother’s loans.

    67.The Tribunal inquired as to when the second-named applicant’s mother may have borrowed money. She replied that it was probably in 2016.

    68.The Tribunal noted that the second-named applicant had arrived in Australia for a visit on 5 April 2017 and then departed Australia on 25 April 2017. She then remained in Malaysia until her return to Australia on 15 August 2017.

    69.The Tribunal suggested to the second-named applicant that it would appear that she had no fear of harm prior to travelling to Australia on the first occasion and freely returned to Malaysia and remained there for four months before returning again.

    70.The second-named applicant responded by stating that she had quit her job in March of 2017. The Tribunal noted that, but reminded the second-named applicant that she had previously stated that she quit her job for health reasons. The second-named applicant agreed.

16. The Tribunal then examined the Country Information Report published by the Department of Foreign Affairs and Trade in 2019 which addressed the record of the Malaysian authorities in dealing with money-lenders. The Tribunal asked the applicant to comment on the information in the report which suggested the authorities were generally effective in dealing with illegal money-lenders. The reasons for decision record the Tribunal suggesting to the applicant that she could seek protection from the police if she were the subject of unwelcome attention: at [78]. The Tribunal said (at [79] of its reasons) the applicant declined to address that proposition. She spoke instead about her medical conditions.

17. The Tribunal noted the applicant referred to her health challenges as a reason for staying in Australia. While the Tribunal did not exhaustively enumerate those conditions, it referred to the applicant experiencing back problems and stress. The statement of reasons records the applicant saying “she wanted to stay in Australia as she does not get stressed here”: at [85]. The Tribunal relied on the Country Information Report to find the applicant’s conditions could be readily treated in Malaysia given the quality of its health system at [87]. Addressing the claims she had made at the hearing, the Tribunal found (at [86]):

    The Tribunal does not accept any of the second-named applicant’s claims as to fearing harm in relation to her mother’s debts. The claim made after learning of the likely fate of the review was opportunistic and speculative. She claimed to have no knowledge of her mother’s claims, situation or debt position. She had made no claims of her own. She stated at first that she simply followed her mother to Australia. She did not know anything about where her mother borrowed money, or even if she had. She speculated that money may have been borrowed in 2016. She could give no clear evidence about the text she had received, and the Tribunal formed the view that the second-named applicant was making up that part of her evidence as she went along.

18. The Tribunal then assessed the applicant’s claims with reference to the criteria in s 36(2) of the Act. It concluded:

    ·The applicant did not have a well-founded fear of persecution for any prescribed reason and therefore did not qualify as a refugee for the purposes of s 36(2)(a) (at [89]); and

    ·There was not a real risk the applicant would suffer significant harm for the reasons she claimed (at [95]).

19. Having reached that conclusion, the Tribunal affirmed the decision under review.

    The application for judicial review

20. The applicant filed an application for judicial review on 13 October 2020. The statement of grounds which accompanied the application include five contentions. I reproduce them below:

    1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE

    2.THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS

    3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;

    4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT IN MY CASE.

    5.ACCORDING IN SECTION 44 OF THE ADMINISRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.

21. The applicant said she had written out the grounds of review herself and they were translated into English for her by a friend of a friend. It was apparent from the discussion of those grounds at the hearing that the applicant was not familiar with some of what was contended.

22. While I put each of the grounds to her, I also asked her to explain her criticisms of the Tribunal’s decision in her own words. I did that after explaining the concept of material jurisdictional error. As I did so, I emphasised the decision as to whether the applicant should get a visa was a matter for the executive government. I explained the role of the Court was limited to identifying material jurisdictional error – that is, a legal error or defect in the Tribunal decision or decision-making process that was such that the matter should be returned to the Tribunal to re-make the decision. I referred to examples of jurisdictional error such as those mentioned in the High Court’s decision in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [3] per Gageler CJ, Edelman, Steward, Gleeson and Jagot JJ.

23. At the outset of her submissions, and again at the end, the applicant said she wanted an opportunity to explain her current circumstances. She said she had in fact paid down her mother’s debt to the loan sharks after the Tribunal’s decision. She said that recent history demonstrated the error in the Tribunal’s finding of fact. She also said she married in 2023, and she has since given birth to her son. She said she is now worried about the safety of her son should she be required to return to Malaysia – although it was not clear why he would be at risk if she had paid off her mother’s debts as she had claimed. I did not need to resolve that question because events that have transpired since the date of the decision are not relevant to my review. These proceedings are concerned with errors in the Tribunal’s decision, not with the merits of the applicant’s claim for a protection visa or any change to her situation.

24. That brings me to the applicant’s first ground of review. She says the Tribunal did not appreciate or take into account she would be expected to pay her mother’s debt because she was the only daughter. But the Tribunal acknowledged the applicant’s claim that she was the only daughter and felt responsible at [62]-[63] of the statement of reasons. The Tribunal thereafter explained why it was not persuaded by that claim. While it was unimpressed with the applicant’s state of knowledge about the debt and was obviously sceptical of the claim that she had received an anonymous text message from an unnamed creditor, the Tribunal went on to find it was satisfied the Malaysian authorities were equipped to deal with any genuine threats in any event.

25. The first ground is not made out. The applicant has not demonstrated the Tribunal ignored or missed any integer of the claim. The Tribunal gave logical reasons for making the finding which formed the basis of its conclusion that the applicant did not satisfy the statutory criteria in s 36(2) of the Act. There was nothing unreasonable in that decision.

26. The want of procedural fairness referred to in the second ground of review was said to arise out of the fact the applicant did not appreciate until part way through the hearing that she could and should raise claims in her own right rather than relying on her mother’s application. The applicant told me in her oral submissions that she had been unable to speak to anyone about her claim because of Covid lockdowns. She said she felt flustered at the Tribunal hearing and may not have articulated her claims as well as she could have done. She conceded to me that she had not asked the Tribunal member for an adjournment so she could consider her position.

27. I was not provided with a transcript of the Tribunal’s hearing so there is some difficulty in evaluating how the hearing unfolded and whether there was anything in the applicant’s conduct that should have prompted the Tribunal to offer an adjournment. The Tribunal’s statement of reasons is the best guide to what happened at the hearing in the absence of a transcript. Those reasons make clear the applicant did not suggest she had any claims to make until after it was explained to her that she could not be given a visa in reliance on her mother’s claims given her mother had left the country. The Tribunal then engaged with the applicant’s claims as I have already explained.

1. There is no doubt the applicant was given an opportunity to attend the hearing and make submissions in accordance with s 425. A valid and timely hearing invitation had been sent to the applicant’s email address pursuant to s 425A. She was able to raise her fresh claims. The claims were explored at the hearing. The statement of reasons records the Tribunal asking about Mrs T’s debts and the applicant’s reasons for saying she would be held liable for the debts if she returned to Malaysia. It discussed her travel history. The Tribunal also records discussing the country information report that talks about the efficacy of the Malaysian authorities in dealing with loan sharks.

2. Before me, the applicant insisted she felt flustered at the hearing. She says she may not have articulated her concerns as clearly as she would have done if she had appreciated she could make claims on her own behalf. That may be so, but there was nothing unfair about the Tribunal’s process.

3. The applicant also told me it would be unfair if she was unable to raise her concerns about the welfare of her son. The applicant’s son was born long after the Tribunal’s decision was made, so that and other events which transpired after the hearing are irrelevant for present purposes. The Tribunal afforded the applicant procedural fairness at the time of the hearing, so this ground must be rejected.

4. The applicant was unable to articulate at the hearing before me what she meant in the third ground of review. She did say the Tribunal failed to appreciate the reality that she would be expected to meet her mother’s debts. She confirmed she has since paid down that debt in fulfilment of the obligation, but – assuming that occurred – that does not establish jurisdictional error. I accept the applicant disagrees with the Tribunal’s findings of fact, but those findings were not unreasonable. The findings were clearly grounded on the evidence before the Tribunal at the time. What transpired after the hearing is irrelevant. To the extent the applicant is concerned about the Tribunal’s references to Mrs T’s case, those concerns must be rejected: the fate of Mrs T’s application was properly considered by the Tribunal and was relevant to the outcome of the applicant’s case. In any event, the applicant herself referred to her mother’s circumstances in the course of the hearing. The Tribunal does not appear to refer to any other cases, and its reference to the country information report was appropriate and reasonable.

5. I infer the applicant may also be critical of the Tribunal conducting its review by telephone. The Tribunal explained in its hearing invitation that it was holding remote hearings during this period because of restrictions on in-person events as a consequence of the pandemic. There is nothing improper or unlawful about that. The Tribunal did not record any difficulties with the telephone connection during the hearing, and the applicant still had access to an interpreter. I note the applicant did not request an adjournment before or during the hearing because of any difficulties she was experiencing. There is no substance to this criticism. The third ground of review must fail.

6. That brings me to the fourth ground of review. The applicant’s contention that the Tribunal failed to ask her questions about the harm she might suffer cannot be sustained. The narrative in the Tribunal’s statement of reasons makes clear the Tribunal did engage with the applicant’s claims about potential harm to the extent she articulated them. It acknowledged she claimed she might be liable for her mother’s debts and discussed the risks faced by debtors dealing with loan sharks in Malaysia with reference to the country information report. The Tribunal asked about the single text message the applicant claimed to have received from a debt collector, and it was obviously unimpressed with the vague description of the supposed threat. The Tribunal concluded the Malaysian authorities were up to dealing with the risk, a finding squarely based on the country information report.

7. Ms Maker, who appeared for the minister, pointed out it is a matter for the applicant to provide the information required to make out her claims. The Tribunal does not have a general duty to inquire, even though it is sometimes unhelpfully described as an ‘inquisitorial body’. While there are qualifications to the general proposition put by the minister, this is not a case in which the Tribunal can be criticised for being uninquisitive. This ground must fail.

8. I will not address the fifth ground which incorrectly refers to the right to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Appeals to this Court from decisions of this kind are made pursuant to s 476 of the Migration Act. But even if the applicant had correctly described her appeal rights, that would not of itself amount to a valid ground of appeal.

   Conclusion

9. After considering and rejecting each of the five grounds of appeal identified in the notice of appeal, and having discussed the applicant’s criticisms of the Tribunal’s decision with her at the hearing, the application for judicial review must be dismissed.

10. The applicant wishes to raise concerns about ongoing risk she believes she will face if she returns to Malaysia. She is also concerned for the welfare of her son. I gather she also says her personal circumstances have changed. She told me at the hearing that she just wanted a fair opportunity to be heard in relation to these matters. These proceedings do not provide an occasion for considering events and circumstances that have arisen since the date of the Tribunal’s decision: my focus is necessarily on whether the Tribunal’s decision is affected by material jurisdictional error. As I explained to the applicant, I do not consider whether the Tribunal should have reached a different conclusion on the material before it - and I certainly do not evaluate whether subsequent events suggest the Tribunal’s factual findings were incorrect. This Court is not in the business of merits review: that is the Tribunal’s function, and the Tribunal performed its function without error in this case.

11. That leaves only the question of costs. I asked for oral submissions about potential costs’ orders at the end of the hearing. I told the applicant that costs often (but did not inevitably) follow the event. She said a costs order would impose a significant burden on her and she did not know how she would pay it given the existing challenge of supporting her mother and her son. While I acknowledge an award of costs might be a burden, impecuniosity is not ordinarily a reason to refrain from making such an order. (Whether such an order is enforced is a question for a later day.) I accept an award of costs should be made in favour of the minister in those circumstances. The minister has clearly incurred costs in conducting the proceedings, and those costs will otherwise be met out of public monies. Moreover, the applicant was presumably made aware when she commenced the proceedings that the Court may award costs against her if her application for judicial review was unsuccessful.

12. That leaves only the question of the amount of costs. Ms Maker said the minister was initially minded to ask for an award of costs in the fixed amount of $6,500 which was lower than the amount indicated on the Court’s scale. Ms Maker pointed out that amount was calculated on the assumption that the matter would conclude after the hearing which was listed on 25 March 2025. That hearing was adjourned after it became apparent there were difficulties with the quality of the translation. The minister – quite properly – did not oppose that adjournment, but it was not the applicant’s fault. The resumed hearing listed on 11 April 2025 also had to be adjourned because the applicant had taken her son to the hospital for urgent treatment. Once again, neither party can be blamed for that adjournment although I acknowledge the minister incurred further costs. The minister has now revised his costs estimate having regard to the two adjournments and asked for a fixed amount of $7,200. That amount is larger than what he had previously requested but it is still below the amount indicated on the Court’s scale.

13. I have sympathy for the applicant’s predicament since she is blameless in relation to the two adjournments. But the fact is the additional costs were legitimately incurred, and it is not apparent why the minister should be expected to bear them when the total amount sought is still below that which is indicated on the Court’s scale. In those circumstances, I am satisfied costs should be awarded in favour of the minister in the fixed amount of $7,200.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       7 May 2025