FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FMI24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 877
ORDERS
PEG 262 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FMI24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
9 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General…
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- AGLC
- FMI24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 877
- Case
- [2025] FedCFamC2G 877
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the Tribunal had erred in its assessment of the applicant's protection claims, whether the applicant was denied procedural fairness, and if the Tribunal was biased. The court considered the legislative framework governing protection visas, including the statutory criteria for refugee status and complementary protection, as well as the applicable guidelines and country information assessments. The court also examined the procedural steps taken by the Tribunal, including its invitation to the applicant to attend a hearing and the applicant's decision not to participate.
The court found that the Tribunal had not committed any jurisdictional error in its assessment of the applicant's claims. The Tribunal had thoroughly considered all relevant information and applied the correct legal standards. The court also held that the applicant was not denied procedural fairness, as the Tribunal had provided adequate opportunities for the applicant to present his case and had made a decision based on the available evidence. Furthermore, the court found no evidence of bias on the part of the Tribunal. As such, the application for judicial review was dismissed.
The court made an order substituting the Administrative Appeals Tribunal as the second respondent in this proceeding and dismissed the applicant's application for judicial review. The decision of the Tribunal stands, and the applicant's application for a protection visa remains refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In the circumstances, the Court made an order (at the hearing of this matter on 10 April 2025) substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.Applicant’s migration history The applicant in this matter is a citizen of Malaysia (Court Book (“CB”) 1-3). He arrived in Australia in March 2019 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 36). On 2 June 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-23). In that visa application, the applicant answered “no” when asked if he “authorise[d] another person to receive communication about [his visa] application on [his] behalf”. The applicant also provided an email address to enable the Department of Home Affairs (the “Department”) to contact him (the “first nominated email address”) (CB 7). On 27 June 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 36-46). The delegate summarised the applicant’s protection claims as follows (CB 37):(a)the applicant departed Malaysia because he had borrowed money from an underground bank, which he was unable to repay;(b)the underground bank’s gangster physically assaulted the applicant and his parents and damaged their property for failure to repay the debt;(c)if the applicant were to return to Malaysia, he feared being arrested, imprisoned and possibly killed by the authorities, acting on behalf of the underground bank;(d)the authorities in Malaysia were corrupt and colluding with the underground bank and associated gangs; and(e)if the applicant were to return to Malaysia, the authorities would not protect him. Having assessed the applicant’s claims, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act. As such, the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) of the Act. The delegate also considered whether the applicant would face a real risk of suffering significant harm, as defined in s 36(2A) of the Act, from loan sharks if he returned to Malaysia. The delegate determined that the applicant could obtain protection from an authority in Malaysia – such that there was not a real risk that he would suffer significant harm as outlined in s 36(2B)(b) of the Act. On that basis, the delegate determined that there was no real risk that the applicant would suffer significant harm and, as such, the applicant was not a person in respect of whom Australia had any protection obligations as outlined in s36(2)(aa) of the Act (CB 40-41). On 6 July 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 47-48). In that review application, the applicant asked that all correspondence be sent to him directly (as the “review applicant”) and provided the Tribunal with the first nominated email address to enable the Tribunal to do so (CB 48).