FNM24 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1007

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FNM24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1007

File number(s):

PEG 267 of 2024

Judgment of:

JUDGE GERRARD

Date of judgment:

2 July 2025

Catchwords:

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims – whether the Tribunal failed to consider the complementary protection criteria – where the applicant elected not to attend a Tribunal hearing – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5AAA, 36, 36(2)(a), 36(2)(aa), 476

Migration Regulations 1994 (Cth) sch 2

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

CHM18 v Minister for Home Affairs [2019] FCCA 960

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Division:

Division 2 General Federal Law

Number of paragraphs:

44

Date of last submission/s:

18 March 2025

Date of hearing:

30 May 2025

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Mandarin interpreter

Counsel for the First Respondent:

Benjamin Mayne

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 267 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FNM24

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	2 JULY 2025

THE COURT ORDERS THAT:

1.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 Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GERRARD:

INTRODUCTION

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Protection (subclass 866) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.

   BACKGROUND

3. The applicant is a citizen of Malaysia (Court Book (CB) 14). He first arrived in Australia on 4 March 2018 as the holder of a UD-601 Electronic Travel Authority (CB 52)

4. On 4 June 2018, the applicant applied for a protection visa (CB 1-37). In his application, he claimed to have left Malaysia because he could not get a job due to economic and political issues (CB 32-34). Given the applicant’s answers in his protection application comprise the extent of his claims, it is worth setting them out in full (without alteration) (CB 32-34):

   Q 89:   Why did you leave that country(s)?

   A:       Political issue and economic issue

   Q 90:    What do you think will happen to you if you return to that country(s)?

   A:       No job, cannot support my family and myself

   Q 91:    Did you experience harm in that country(s)?

   A:       No job, cannot support my family and my self

   Q 92:    Did you seek help within the country(s) after the harm?

   A:       My friend suggest me to come Australia

   Q 93:    Did you move, or try to move, to another part of that country(s) to seek safety?

   A: I have applied many jobs in Malaysia but failed because of economy and political issue in Malaysia

   Q 94:    Do you think you will be harmed or mistreated if you return to that country(s)?

   A:       No job and cannot support myself and family

   Q 95: Do you think the authorities of that country(s) can and will protect you if you go back?

   A:       Malaysia has bad economy and political issue

   Q 96:    Do you think you would be able to relocate within that country(s)?

   A:       Political and economic issue happen in whole Malaysia

5. On 15 November 2018, a delegate of the Minister refused to grant the applicant the visa (CB 52-60). The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) (CB 56).

6. On 10 December 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 61-62).

7. On 12 April 2024, the applicant completed a pre-hearing information form in which he indicated he did not wish to provide any further information with respect to his claims (CB 73-76).

8. On 11 July 2024, the applicant was invited to attend a hearing scheduled for 1 August 2024 (CB 79-81). In that invitation, the Tribunal noted that it was presently unable to make a favourable decision on the existing material before it. That same day, the applicant responded that he did not wish to participate in the hearing and he consented to the Tribunal making a decision on the papers (CB 83-85).

9. On 12 July 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 89-95).

10. On 24 July 2024, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.

    THE TRIBUNAL’S DECISION

11. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.

12. The Tribunal began by identifying the visa decision under review (at [1]-[2]). The Tribunal indicated that the applicant had been invited to give oral evidence and present arguments at a hearing, but that he had consented to the Tribunal proceeding to make a decision on the evidence available to it and without requiring him to appear at a hearing (at [3]).

13. The Tribunal summarised the applicant’s protection claims, namely that (at [4]):

    ·he feared returning to Malaysia because of political and economic issues;

    ·he had no job and could not support himself or his family;

    ·he has applied for many jobs but failed because of economic and political issues throughout Malaysia; and

    ·his friend suggested he come to Australia.

14. The Tribunal set out the relevant legislative criteria for a protection visa under s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), including the refugee and complementary protection criteria, and the mandatory considerations contained within Ministerial Direction No. 84 (at [6]-[11]).

15. The Tribunal found that there was insufficient detail in the applicant’s written evidence with respect to his fear of political or economic harm in Malaysia, specifically, the exact nature of that harm, whether that amounted to serious harm, or whether there is a real risk or a real chance he will suffer serious or significant harm if returned to Malaysia (at [13]).

16. Given the lack of detail or further evidence in support of the applicant’s claims, the Tribunal was not satisfied the applicant faced a real chance of persecution in Malaysia or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk he will suffer significant harm (at [14]-[15]).

17. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and therefore found he did not meet the refugee criterion in s 36(2)(a) of the Act (at [15]-[16]). Based on the same findings, the Tribunal also found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) (at [17]).

18. The Tribunal affirmed the decision not to grant the applicant a protection visa (at [19]).

    APPLICATION TO THIS COURT

19. The application for judicial review filed by the applicant on 24 July 2024 contains three grounds of review as follows (without alteration):

    1.The Tribunal failed to properly assess the evidence I provided regarding the political and economic situation in Malaysia. Despite my statements and the country information indicating severe economic hardship and political instability, the Tribunal dismissed these claims without adequate consideration or investigation into the broader context and the specific threats I face.

    2.The Tribunal did not adequately consider my fear of persecution on the grounds of political opinion and economic hardship. My claims were not given the thorough consideration required under the Migration Act 1958. The decision did not reflect a detailed analysis of how the political and economic environment in Malaysia poses a direct threat to my safety and well-being.

    3.The Tribunal did not adequately consider whether I meet the complementary protection criteria under section 36(2)(aa) of the Act. Given the significant harm I would face if returned to Malaysia, including severe economic hardship and potential persecution due to political instability, I believe I meet the criteria for complementary protection.

20. The applicant appeared before the Court on 30 May 2025 without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.

21. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 24 July 2024 (the affidavit being taken as read and in evidence at the hearing on 30 May 2025), a Court Book numbering 95 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 18 March 2025.

22. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.

23. The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));

    (b)where the decision-maker ignores relevant material (Craig at 178);

    (c)where the decision-maker relies on irrelevant material (Craig at 178);

    (d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);

    (e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]);

    (f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

    (g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).

24. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.

25. When invited to address the Court, the applicant said that he couldn’t find any jobs in Malaysia and that’s why he decided to come to Australia. The Court reiterated that it does not have the power to grant a visa and cannot consider the merits of his visa application. The applicant was again invited to address the Court as to what was wrong with either the findings or the process undertaken by the Tribunal. The applicant responded that the Tribunal did not do anything wrong.

26. The Court appreciates the applicant’s frankness in making such a concession. Nevertheless, it is the Court’s role to ascertain whether or not the Tribunal’s decision is affected by jurisdictional error. In that sense, the Court takes the view that the applicant’s concession that the Tribunal did not do anything wrong as no more than a self-represented applicant having difficulty in properly articulating his concerns with the decision.

    CONSIDERATION

27. As outlined above, the application for judicial review contains three grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

    Grounds one and two

28. Grounds one and two contend that the Tribunal failed to consider or engage with the applicant’s claims with respect to the political and economic situation in Malaysia.

29. The Minister submitted that these grounds fail on the facts as the Tribunal’s reasons expressly identified and had regard to the information contained in the applicant’s visa application, being the full extent of the applicant’s claims. The Tribunal correctly summarised those claims and noted that the applicant did not provide any further statements or evidence to the Department or the Tribunal. The applicant did not expand on his claims in the pre-hearing information form, and despite being invited to present evidence and arguments at a hearing before the Tribunal, the applicant consented to a decision being made on the papers and evidence already before the Tribunal.

30. The Tribunal correctly noted in its reasons that it was the applicant’s responsibility to make his own arguments and advance his own case in order to satisfy the Tribunal that he met the requirements for the grant of a visa, as per s 5AAA of the Act. The applicant was provided with a reasonable opportunity to present his claims and provide evidence. Indeed, the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Act, and the applicant was on notice from the hearing invitation that the Tribunal was unable to make a favourable decision on the material before it.

31. It is hardly surprising that the Tribunal was not satisfied of the applicant’s claims in circumstances where they lacked detail, and he did not provide any further evidence or attend the hearing to advance his claims and present arguments. The Tribunal’s ultimate rejection of his claims was an inevitable consequence of the extremely limited and unsupported claims made by the applicant, together with his election to not attend the hearing or provide further evidence at any stage (see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]). The Court is satisfied that it was open and permissible for the Tribunal to find that the applicant’s evidence lacked sufficient detail with respect to his claimed fear of harm. Given the limited nature of the claims and their lack of supporting evidence, it was the only finding the Tribunal reasonably could have made.

32. In respect of the applicant’s assertion in ground one that the Tribunal failed to “investigate” the economic and political situation in Malaysia, the Court accepts the Minister’s submission that this cannot be made out. The applicant did not provide or seek to rely on any country information which might elaborate or contextualise his claim which was limited to difficulties in securing a job. The Tribunal is under no duty to investigate, and it is well-settled law that it is for the applicant to advance his own case and for the Tribunal to then determine whether a claim has been made out (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

33. The applicant’s allegation in ground one could be construed as a submission that there was a  duty upon the Tribunal to make inquiries in respect of the country information relevant to the Malaysian economy, relying upon Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] (SZIAI). While it is true that the principle in SZIAI is well established, there is value in setting it out (emphasis added):

    …a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

34. The Court accepts the Minister’s submission that the applicant has not identified any of the three key elements required to engage the principle in SZIAI. Further, the applicant has not provided any evidence to suggest that an inquiry by the Tribunal would have yielded a useful result, or any evidence to indicate what information might have been elicited if the Tribunal had undertaken such an inquiry (SZIAI at [26]).

35. The Court finds there is no error in how the Tribunal considered or engaged with the applicant’s protection claims.

1. No jurisdictional error arises in respect of grounds one and two.

   Ground three

2. Ground three contends that the Tribunal did not adequately consider whether the applicant met the complementary protection criteria in s 36(2)(aa) of the Act.

3. The Minister submitted that this ground should also fail. The Tribunal identified and outlined the correct law for complementary protection (at [10] of its reasons) and, as with the refugee criterion, applied it to the scant evidence before it. On the basis of that very limited evidence, the Court agrees that it was open for the Tribunal to find that it was not satisfied there were substantial grounds for believing that the applicant would face a real risk of significant harm if he were returned to Malaysia.

4. To the extent that the applicant is aggrieved with the brevity of the Tribunal’s reasons, the Minister submitted that this in itself does not amount to jurisdictional error and is merely reflective of the case that was put to it by the applicant (Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [91] and NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 at [15]).

5. The Court agrees with the Minister’s submission. Although the reasons are brief, that follows as a consequence of the applicant’s claims which were limited to single and repetitive sentences in response to his application and his choice to not take up the applicant’s invitation to attend a hearing. It cannot be said that the applicant’s claims and evidence were not assessed. The Tribunal’s findings were open to it on the evidence and there is nothing to suggest that the Tribunal failed to consider the applicant’s claims or any relevant information (CHM18 v Minister for Home Affairs [2019] FCCA 960 at [53]-[56]). On their face, the applicant’s claims did not appear to invoke protection obligations and they were not supported by detail or evidence. Indeed, it is difficult to see how the Tribunal could have made any other decision than to affirm the delegate’s decision on the limited evidence before it.

6. No jurisdictional error arises in respect of ground three.

7. The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision.

   CONCLUSION

8. The application for judicial review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.

9. Accordingly, the application is dismissed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       2 July 2025