ESB20 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 857

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ESB20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 857

File number(s):

SYG 2520 of 2020

Judgment of:

JUDGE SKAROS

Date of judgment:

6 June 2025

Catchwords:

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection visa - Malaysia – Whether Tribunal failed to consider claims – Weight given to country information – Tribunal not obliged to uncritically accept claims – No question of principle – Application dismissed  

Legislation:

Migration Act 1958 (Cth) s 36, 65, 425, 499

Cases cited:

LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Division:

Division 2 General Federal Law

Number of paragraphs:

73

Date of hearing:

21 May 2025

Place:

Parramatta

Counsel for the Applicant:

In person

Solicitor for the First Respondent:

Ms Ren, HWL Ebsworth Lawyers

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 2520 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ESB20

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	6 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration and Citizenship.

2.The application filed on 6 November 2020 is dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.

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 SKAROS:

1. By application filed on 6 November 2020 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 19 October 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant a protection visa (the visa) under s 65 of the Migration Act 1958 (the Act).

   [1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.

   BACKGROUND

2. The applicant is a male citizen of Malaysia. He first arrived in Australia in June 2017 as the holder of a visitor visa.

3. On 4 August 2017, the applicant applied for the visa. In his visa application, the applicant stated that he sought protection on the basis that he was unable to pay a debt to a bank in Malaysia and that the bank had sold his house and car and that he and his family were poor. On 27 September 2017, the delegate refused to grant the applicant the visa.

4. On 10 October 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

5. On 30 September 2020, the Tribunal invited the applicant to appear before it at a hearing on 15 October 2020. The applicant appeared on that date by telephone and was assisted by an interpreter in the Mandarin and English languages.

6. On 19 October 2020, the Tribunal affirmed the decision under review.

   THE TRIBUNAL’S DECISION

7. The dispositive issue in the review was whether the applicant was a person in respect of whom Australia had protection obligations under s 36 of the Act.

8. The Tribunal identified the criteria for a protection visa; that the applicant must either satisfy the ‘refugee’ criterion or meet the ‘complementary protection’ grounds for protection. The relevant definition of ‘refugee’ and the provisions relevant to the complementary protection grounds under the Act were also set out.

9. The Tribunal identified that it must have regard to Ministerial Direction No. 84 made under s 499 of the Act, and that it must take into account the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’ and any relevant country information assessments.

10. The Tribunal accepted that the applicant was a citizen of Malaysia and set out the applicant’s initial claims for protection, which were set out in his visa application; the applicant had claimed that he lost his business, owed money to a bank that he could not repay and that the bank had sold his house and car and were still chasing him for the money. He claimed to come from a poor family and said that he would be harassed by the bank if he returned to Malaysia.

11. The Tribunal then described the evidence the applicant gave at the hearing before it. Relevantly, the applicant claimed that he would be subject to discrimination and poor treatment in Malaysia because of his Chinese ethnicity. He said Chinese people are treated poorly and, for example, struggle to obtain finance. The applicant was unable to give any examples of how he had been treated differently because he was Chinese. The applicant also stated that his father had been violent towards him in Malaysia and that his father beat him about two days a week. He also said his father had a mental health issue.

12. The Tribunal noted that the applicant appeared to contradict himself on two instances. First, he stated that his father beat him but elsewhere stated that his father was seldom at home. When asked about this, the applicant stated that his father would come to his work to beat him. This led to the second inconsistency, that the applicant had stated at the hearing that he had not worked in Malaysia but was now saying he had worked, specifically in the hospitality industry. When asked about this, the applicant said he was nervous.

13. The Tribunal put country information to the applicant which indicated that there were services available to those suffering family violence, and that, speaking generally, the police force was considered effective. The applicant stated he did not know about these services and that the police had told him previously that it was a personal matter. The Tribunal put to the applicant that at his age he could live independently and not rely on, or interact with, his father. In response, the applicant stated that his father would find him wherever he went.

14. On the issue of credibility, the Tribunal concluded that although the applicant did provide unreliable evidence at times, his whole account was not tainted.

    Claim: Chinese Ethnicity

15. The Tribunal accepted, broadly, that the applicant may have faced some differential treatment as a result of his Chinese ethnicity in Malaysia.

16. It quoted country information which indicated that Chinese Malaysians may face discrimination in the business sector and low levels of official discrimination in accessing services or seeking opportunities.

17. The Tribunal considered the applicant’s evidence on this claim to be general and vague and it did not accept that he had suffered serious harm in the past on the basis of his Chinese ethnicity and that any discrimination suffered was low-level. Keeping this in mind, and when considering the country information, the Tribunal found that if the applicant were to return to Malaysian now, or in the reasonably foreseeable future, he would only experience low-level discrimination.

18. The Tribunal noted that the applicant had been able to work in Malaysia before coming to Australia and that the country information supported the view that those of Chinese ethnicity were able to contribute to the economy, particularly in the private sector.

19. The Tribunal was not satisfied that Australia had protection obligations in respect of the applicant on account of his Chinese ethnicity.

    Claim: Social Group - Financial Hardship

20. The Tribunal then considered if the applicant was a refugee or met the complementary protection criterion on account of him coming from a poor family.

21. The Tribunal accepted that the applicant came from a household with a low income which appeared to be subsidised by extended family and that the applicant had worked in low-income jobs in Malaysia.

22. The Tribunal assessed the available country information which suggested that the applicant’s home area in Malaysia experienced high poverty rates and that only minimal assistance was available for poor families.

23. The Tribunal found that the applicant’s family had several sources of income (including from extended family members) and had been able to subsist in difficult circumstances. It considered that the fact the applicant was able to travel to Australia using money loaned from an aunt indicated that his family was not unsupported. Therefore, the Tribunal found the applicant would not face serious harm, because of his family’s financial circumstances, that would threaten his family’s ability to subsist now or in the reasonably foreseeable future. The Tribunal was satisfied the applicant would be able to work in Malaysia or internationally. This was particularly so in circumstances where the applicant had been working in Australia and had worked in the hospitality industry previously in Malaysia.

24. Further, the country information suggested that Malaysia’s economy was diversified and had strong resources and manufacturing sectors, poverty had declined, and the economy was beginning to recover from the COVID-19 shock.

25. As to the complementary protection criteria, the Tribunal found that the applicant would be able to obtain paid employment in Malaysia; given his age, experience and knowledge of the English language.

26. The Tribunal was not satisfied that Australia had protection obligations for the applicant on account of his family’s economic circumstances in Malaysia.

    Claim: Social Group – Victim of Family Violence

27. The Tribunal accepted the applicant’s reasons for not putting claims related to family violence in the original visa application. It also ultimately accepted that the applicant was fearful that his father may harm him if he returned to Malaysia.

28. The Tribunal noted that the country information suggested that there was some support for those suffering from family violence, particularly for women and that emergency protection orders were available. However, the Tribunal considered that these measures were in their infancy and the applicant, being male, may not consider it appropriate to access these services. The Tribunal was nonetheless satisfied that assaults on the applicant by his father were covered by the criminal code in Malaysia.

29. After assessing the applicant’s evidence and the available country information, the Tribunal was also satisfied that the Malaysian police would offer the applicant effective protection from his father if he were to return to Malaysia. It was also satisfied, after assessing the available country information, that the courts and justice system would enable him to seek protection too.

30. The Tribunal did not accept the applicant’s evidence at hearing that his father would find him if he relocated to a metropolitan area. In light of the applicant’s evidence that his father was poor and a drunk, the Tribunal considered it would be fanciful for him to locate the applicant in a major city to commit violence against him. It was also satisfied that it was reasonable for the applicant to move to a metropolitan area considering his age, proven resilience and his capabilities in living in a foreign country facing significant cultural and linguistic barriers as he had done so in Australia.

31. The Tribunal was not satisfied that the applicant was a refugee or that he met the complementary protection criteria as to his claims of family violence.

32. The Tribunal affirmed the decision under review.

    APPLICATION TO THIS COURT

33. On 6 November 2020, the applicant filed the originating application in this Court which advanced four grounds of judicial review.

34. The Minister filed the Court Book on 5 February 2021, which was tendered into evidence at the hearing and marked Exhibit CB. On 28 September 2022, the Minister filed written submissions.

35. The matter was listed for final hearing on 21 May 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 17 April 2025.

36. The applicant appeared in person with the assistance of an interpreter in the English and Mandarin languages. The Minister was represented by Ms Ren of HWL Ebsworth Lawyers.

37. Prior to commencement of the hearing, the Minister’s written submissions were explained to the applicant with the assistance of the interpreter.

38. Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.

39. The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application, which the applicant did.

    CONSIDERATION

40. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.

41. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

42. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].

43. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    GROUNDS OF REVIEW

44. The application for judicial review raises the following ‘grounds’ (without alteration):

    1. At the Hearing, I told the AAT that my visa application was prepared by a man but later I could not find him any more so less information and evidence were provided. But the AAT failed to consider the information I provided at the Hearing.

    2. The AAT gives too much weight to the country information as it may not accurate and updated. So the AAT made mistake for only rely on the country information.

    3. At the Hearing AAT failed to consider my claims but did not accept my claims. This let the AAT to believe that I would not have the real chance that I could be harmed if I return to Malaysia, which was wrong.

    4. AAT did not consider the fact that I had been mistreated for being a Chinese in Malaysia.

    Ground one

45. By ground one, the applicant contends that the Tribunal failed to have regard to his explanation as to why there was limited information provided in his visa application, and that the Tribunal failed to consider information provided at the hearing in respect of his protection claims.

46. When asked at the hearing to provide particulars to this ground, the applicant said the person who assisted him with the application ‘made up excuses that he was unaware of’. When asked about the hearing before the Tribunal and whether he took up the opportunity to give evidence about the real reasons he sought protection, the applicant said he told the Tribunal that he wanted to stay in Australia to avoid the family violence he would face if he returned to Malaysia. I observed that the Tribunal’s decision indicates it had considered his claim to fear harm from his father if he returns to Malaysia. The applicant said he is the boy and has two younger sisters that he needed to protect. He said his father used violence against him the most because he was the boy.

47. At [60], the Tribunal considered the applicant’s explanation as to why his family violence claims were not included in the visa application and was prepared to accept that the claims advanced by the applicant at the hearing (including the family violence claim) were those he had intended to advance. Notwithstanding its reservations about some inconsistencies in the evidence, the Tribunal was prepared to accept that the applicant feared harm from his father if he returned to Malaysia.

48. At [61]–[70] the Tribunal comprehensively considered the applicant’s claim of family violence by reference to the country information before it. The Tribunal discussed with the applicant country information which indicated he could seek state protection, and the applicant was given an opportunity to respond to that information. Having considered the material before it and the applicant’s responses, the Tribunal did not accept that the applicant would not receive effective state protection and did not accept that he would not be able to seek assistance from the police/legal system were he to seek protection against his father: [65], [68]. The Tribunal considered that the applicant could relocate to a more metropolitan area of Malaysia, where he could find work, and did not accept the applicant’s claim that his father would seek him out and beat him. The Tribunal did not consider it unreasonable for the applicant to relocate to another part of Malaysia where he could live as an independent adult: [69].

49. The Tribunal’s reasons plainly demonstrate that it considered the applicant’s explanation about the information (or lack thereof) in the visa application and that it had considered the claims raised by him at the hearing, including the family violence claim.

50. As to the applicant’s submission that he was subject to violence because he was the male (only son) in the family. I accept the Minister’s submission that this evidence was not before the Tribunal and, in any event, as found by the Tribunal, the applicant could relocate to a metropolitan area in Malaysia.

51. Ground one does not establish jurisdictional error.

    Ground two

52. By ground two the applicant contends that the Tribunal made an error in relying upon and giving ‘too much weight’ to inaccurate and out of date country information. When asked for further particulars of this ground, the applicant said the protection laws in Australia were better than those in Malaysia.

53. I accept the Minister’s submission that there was nothing improper in the Tribunal’s consideration of the country information. The Tribunal was aware that some of the information before it pre-dated the then COVID-19 pandemic and had regard to more current information at [51]–[53] when considering the applicant’s claims for protection.

54. The weight attributed to country information is a matter for the Tribunal and I am satisfied that the Tribunal’s evaluation of the country information, in the context of the applicant’s claims, was open to it and that no error is disclosed in that regard.

1. Ground two does not establish jurisdictional error.

   Ground three

2. By ground three the applicant contends that the Tribunal was in error by its failure to consider and accept his claim that he would be harmed in Malaysia. The applicant had nothing further to say in respect of this ground at the hearing before me.

3. The Minister submitted that the Tribunal did have regard to the applicant’s claims and even gave him some ‘leeway’ and considered that, despite inconsistences in his evidence, it would not discredit his evidence entirely: [30]. I accept these submissions.

4. The Tribunal’s decision demonstrates that it had regard to the claims made at the time of application (at [14]–[15]) and those advanced at the hearing. In considering his later claims, the Tribunal was prepared to accept that the applicant was fearful of his father. In addition to considering his claims of family violence, the Tribunal also considered whether the applicant would face harm on account of his Chinese ethnicity and being from a poor family.

5. On review, the applicant did not advance his earlier claims of having a business or owing money to a bank. The Tribunal had also noted inconsistent evidence given about the applicant’s employment history. In any event, as submitted by the Minister, the Tribunal expressly considered the economic circumstances in Malaysia and was satisfied that the applicant would be able to find employment in Malaysia.

6. It was for the applicant to advance whatever claims and evidence he wished before the Tribunal, and it was for the Tribunal to make its findings in respect of those claims on the evidence before it. There is no obligation on the Tribunal to uncritically accept any or all of the applicant’s claims. It was open for the Tribunal, on the evidence before it and for the reasons it gave, to conclude that there was not a real chance or real risk that the applicant would face serious or significant harm if he returned to Malaysia now or in the reasonably foreseeable future.

7. Ground three does not establish jurisdictional error.

   Ground four

8. By ground four the applicant contends that the applicant failed to consider that he would be mistreated in Malaysia on account of his Chinse ethnicity.

9. The Tribunal reasons plainly demonstrate that it expressly considered this claim at [31]–[39]. The Tribunal gave the applicant the benefit of the doubt and accepted he had faced some differential treatment or discrimination generally: at [31] and [33]. However, given the applicant’s own evidence about his experiences in Malaysia and the country information before it, the Tribunal did not accept that the applicant had experienced serious or significant harm in Malaysia in the past and nor was it satisfied that he would, if he returns to Malaysia, suffer such harm in the foreseeable future.

10. No error is disclosed in the Tribunal’s consideration of the applicant’s claims of harm on account of his Chinese ethnicity. The Tribunal’s findings in respect of this claim was open to it on the evidence before it and for the reasons it gave.

11. Ground four does not establish jurisdictional error.

    Further ground raised

12. The applicant contended at the hearing before me that he was stressed at the Tribunal hearing and did not get an opportunity to provide evidence. I observed that the Tribunal’s decision record, being the only evidence before me about what occurred at the hearing, indicated that the Tribunal had asked him many questions, including why he feared harm in Malaysia, and that there was a record of his responses to those questions. I observed that his responses appeared relevant to the questions being asked. The applicant said he was anxious and that his agent’s face stressed him out.

13. The Minister submitted that the applicant was assisted by an agent (CB 72) and that there was nothing in the decision record which indicated that the applicant raised any issues about how the hearing was conducted.

14. To the extent that this complaint alleges any failure on the part of the Tribunal to afford the applicant the opportunity to give evidence or present arguments at the hearing, as required s 425 of the Act, this is not made out.

15. While I am prepared to accept that the applicant may have been anxious and stressed at the hearing, I am not satisfied on the material before me that the hearing was not meaningful or that the applicant was not given a genuine opportunity to give evidence or present arguments in support of his claims for protection.

16. For these reasons, the further ground raised does not establish jurisdictional error.

17. As none of the grounds raised establish jurisdictional error on the part of the Tribunal, the application for judicial review must be dismissed.

    COSTS

18. The Minister sought an order for the award of costs in the fixed amount of $5,600 in the event the applicant was unsuccessful. When invited to make submissions on the Minister’s request for a costs order, including the amount sought, the applicant stated that he was not employed. It is well established that financial hardship or mere impecuniosity is not a reason for costs not to follow the event.

19. I have considered the application and am satisfied that costs should follow the event and that the amount sought by the Minister is reasonable having regard to the work undertaken on the matter up to the date of the final hearing. For these reasons, I will order that the applicant pay the first respondent’s costs fixed in the sum of $5,600.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate:

Dated:       6 June 2025