FPP24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 507
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FPP24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 507
File number: PEG 274 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 10 April 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s decision is unreasonable – whether the Tribunal was biased – whether an alleged failure to provide an interpreter was procedurally unfair – whether the Tribunal failed to investigate for itself further possible protection concerns – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 5J, 5AAA, 36, 424, 425, 425A & 476 and Division 4 of Part 7
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Jia Legeng (2001) 178 ALR 421
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
VH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 17 March 2025 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 274 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPP24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
10 APRIL 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 KENDALL:
INTRODUCTION
The applicant in this matter seeks judicial review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) on 1 July 2024. By that decision, the Tribunal affirmed a decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the “visa”).
To obtain relief from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
For the reasons that follow, the Court has determined that the application for judicial review should be dismissed.
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
As outlined above, this judgment relates to a decision of the then Tribunal. That decision is dated 1 July 2024 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time that the applicant made his application to this Court, the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter on 17 March 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 is a citizen of Malaysia (Court Book (“CB”) 1-3 & 22-23). He arrived in Australia in March 2018 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 37).
On 7 June 2018, the applicant applied for the visa (CB 1-21 & 37).
The applicant’s visa application outlined his claims for protection (and general safety concerns) as follows (CB 14-16):
(a)he was seeking protection from his country as he was not protected in his hometown;
(b)the applicant had asked for assistance and protection from his country against the furious loan sharks but to no avail;
(c)he applied for a loan from an illegal money lender after various conventional banks rejected his loan application;
(d)the applicant was seriously in need of money to support his family as a result of Malaysia’s unstable economy at the material time;
(e)he received no help;
(f)the interest rate on the loan granted by the loan sharks was too high. The interest amount was more than the principal sum and the applicant was not able to pay. He had no other choice than to spend all of his personal savings to fly to Australia to seek protection as he was harassed and attacked by the loan shark in his own country;
(g)as he was unable to repay the loan, he was harassed and forced to repay it within a short period of time. His home was painted in red as a warning and he was stopped and followed by the loan sharks. He was under tremendous pressure because his life was in danger;
(h)he had lodged a police report and was given the contact number of a police officer. The applicant asked him whether he had started the investigation but there was no update. Meanwhile, the attacks and harassment continued;
(i)the applicant was facing family problems at the material time. He did not see the point of running or relocating elsewhere as he was followed by the loan shark most of the time;
(j)he would be hunted and harmed by the loan sharks and, worst case scenario, he might also be killed because he could not afford to repay the loan; and
(k)the applicant had already lodged a police report but was shocked that to date, no action nor investigation had begun. He would be harmed and harassed by the same party.
On 3 December 2018, a delegate of the Minister refused to grant the applicant the visa (CB 37-46). The delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act or s 36(2)(aa) of the Act (CB 37-41).
On 8 December 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 47-48).
On 12 April 2024, the Tribunal asked the applicant to complete and return a “pre-hearing information form” (CB 52).
On 16 April 2024, the applicant provided the Tribunal with a completed “Change of Contact Details” form (CB 53-54).
On 12 June 2024, the Tribunal invited the applicant (via email) to attend a hearing before it scheduled to take place on 1 July 2024 (CB 55-58).
The applicant appeared at that Tribunal hearing to give evidence and present arguments (CB 65-68).
The Tribunal made an oral decision at the completion of the hearing (on 1 July 2024) affirming the delegate’s decision refusing to grant the applicant the visa (CB 71-72).
On 16 August 2024, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 76-80).
On 25 July 2024, the applicant sought judicial review of the Tribunal’s decision in this Court.
THE TRIBUNAL’S DECISION
The application for judicial review was filed pursuant to s 476 of the Act. 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.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to reproduce lengthy sections of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when the grounds of review filed by the applicant lack particulars and when the applicant appeared before the Court without legal representation (as was the case here).
The Tribunal’s decision in this matter is five pages long and spans 26 paragraphs (CB 76-80).
The Tribunal began by identifying the core issue before it, being whether the applicant met the refugee criterion contained in s 36(2)(a) of the Act or the complementary protection criterion contained in s 36(2)(aa) of the Act (at [4]).
The Tribunal noted that in making a decision in that regard it had taken into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs and country information assessment reports prepared by the Department of Foreign Affairs and Trade (“DFAT”) (to the extent that they are available and relevant to the decision under consideration). In relation to the latter, the Tribunal specifically referenced the existence and content of the ‘DFAT Country Information Report Malaysia’ prepared by DFAT and dated 24 June 2024 (at [5]-[6]).
The Tribunal then summarised the contents of the applicant’s visa application, explaining that applicant had claimed that he borrowed money from a loan shark and was unable to repay the loan because of the high interest rates. Further, he claimed that the loan sharks painted his home red as a warning, harassed and attacked him and, if he returned to Malaysia, he would be harmed or killed if he did not repay the loan (at [7]).
The Tribunal then summarised the delegate’s decision, explaining that the delegate found that:
(a)the harm feared was not due to one or more of the applicant’s race, religion, nationality, membership of a particular social group or political opinion and, as such, the applicant did not have a well-founded fear of persecution; and
(b)the applicant could obtain protection from the authorities in Malaysia, such that he would not face a real risk of serious harm.
The Tribunal then summarised the applicant’s claims and evidence given at the hearing before it, highlighting as follows:
(a)the applicant is of Malay ethnicity and is a Muslim. He claims to have started a business in Malaysia (at [12]);
(b)the applicant claimed to have borrowed money illegally in Malaysia for his transport business. He borrowed close to 100,000 ringgit and repaid 200,000 ringgit but still owes money due to high interest and penalty rates. To repay part of the loan, the applicant sold his house. He claims he then faced harassment from gangsters sent by the lender, leading him to stay with friends and family to avoid them (at [14]);
(c)financially, the applicant claims that he was unable to continue making payments after moving to Australia, with the outstanding debt possibly still around 100,000 ringgit, although his evidence was unclear in this regard. However, the Tribunal explained that nothing turned on that for the purposes of the Tribunal’s reasons. The applicant claimed to have stopped making payments due to financial constraints and the need to support his sick mother (at [15]);
(d)the applicant fears returning to Malaysia due to the risk of being found by the loan shark or their agents or debt collectors, including gangsters, who he claims have made attempts to collect the debt even after his departure. He also believes he cannot secure adequate employment in [village omitted] to manage living costs. His mother lives in [village omitted], as does one of his brothers (at [16]); and
(e)the applicant agreed that the harm feared by him from the loan sharks was not feared for one or more of the reasons in s 5J(1)(a) of the Act. Moreover, the applicant conceded that he would not face harm in [village omitted], adding that the information he provided, and his identification, did not have any information relating to [village omitted] – only [city omitted]. Yet, he claimed that it would not be reasonable to relocate there because he would find it difficult to obtain employment due to its small village environment and lack of opportunities. He claims that, despite having a diploma, he struggled to obtain office jobs in Malaysia and economic conditions made it challenging to sustain employment. In Australia, he has worked as a driver and in factories, indicating engagement in a lower-skilled job markets (at [17]).
Having considered the evidence before it, the Tribunal made the following findings:
18.Even if I were to accept that there is a real chance that the applicant will face serious harm from his creditors, their agents or debt collectors in Malaysia, I am not satisfied that the applicant’s fear of harm is for the essential and significant reason of one or more of the reasons outlined in s 5J(1)(a), namely his race, religion, nationality, political opinion or membership of a particular social group. Indeed, the applicant explicitly acknowledged at the hearing that he did not fear harm on this basis for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
19.Even if I were to accept that the applicant faces a real risk of significant harm from his creditors, their agents or debt collectors in Malaysia I am satisfied that it would be reasonable for the applicant to [village omitted] which would be, I find, a place that he would not face a real risk of significant harm.
20.I am prepared to accept that, comparatively, economic opportunities are more limited, and quality of life is lower in [village omitted] than it is here in Australia. I also accept that the applicant can better provide for his family here in Australia than he can in [village omitted].
21.I have considered the applicants claims to be unable to obtain work there. He has have the benefit of family support in [village omitted] (namely his brother and mother). The applicant’s brother is employed and the applicant has skills from both his time in Australia and in [city omitted] that would, in my view, result in him being able to obtain employment. Until that time, I am satisfied, based on country information, that there would be financial support available to the applicant in [village omitted]. I am not satisfied that he would be unable to obtain employment or would otherwise risk being unable to subsist in [village omitted]. I am satisfied that it would be reasonable for the applicant to relocate to [village omitted] to avoid a real risk of significant harm.
22.In those circumstances, I find that there is taken not to be a real risk that the applicant will suffer significant harm. The applicant does not satisfy s 36(2)(aa) of the Act.
On the basis of the above, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution. The Tribunal was thus not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act (at [23]).
Further, having concluded that the applicant did not meet the refugee criterion set out in s 36(2)(a) of the Act, the Tribunal explained that it had considered the alternative criterion in s 36(2)(aa) of the Act and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations (at [24]).
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [25]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 25 July 2024) contains three grounds of review as follows (without alteration):
1.The decision made by the decision makers to refuse my protection visa has a jurisdictional error.
2.The decision makers statement about me not facing harm when returned to Malaysia is purely based on his/her personal opinion and not based on any facts.
3.I am humbly request the decision makers to reverse the decision and reconsider to ensure the safety and well being of my families. The tribunal also made a significant mistake in understanding the facts of the case that would risk harm and separation if i am forced to return to my origin country.
On 6 September 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, additional evidence and written submissions. Unfortunately, no additional documents were filed by or on behalf of the applicant.
The applicant appeared before the Court (on 17 March 2025) without legal representation but with the assistance of a Bahasa Malay interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions. Mr Benjamin Mayne from the Sparke Helmore appeared on behalf of the Minister.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 25 July 2024 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 80 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 6 March 2025.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 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)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant told the Court that, during the Tribunal hearing, he did not use the interpreter so there was “some misinterpretation”. The applicant explained that “there are some things that were missing, such as politics and religion”.
The applicant’s comments, to the extent that they give rise to any issue of jurisdictional error on the part of the Tribunal, will be addressed by the Court below.
CONSIDERATION
Unfortunately, the applicant’s grounds of review are not particularised, no written submissions were filed by the applicant and the applicant’s oral submissions before this Court were minimal.
This is not a criticism. The applicant was not represented and the Court recognises that legal proceedings can be challenging and stressful.
In the circumstances, the Court will interpret the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
Grounds of review
Ground one and ground three
For ease of reference, ground one and three provide as follows:
1.The decision made by the decision makers to refuse my protection visa has a jurisdictional error.
…
3.I am humbly request the decision makers to reverse the decision and reconsider to ensure the safety and well being of my families. The tribunal also made a significant mistake in understanding the facts of the case that would risk harm and separation if i am forced to return to my origin country.
Read together, and as broadly as possible, these grounds can be taken as suggesting that the Tribunal’s decision is “illogical, irrational or unreasonable”.
The Court disagrees for the reasons that follow.
The relevant authorities in relation to illogicality, irrationality and legal unreasonableness were recently canvassed by this Court in AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 (“AVH24”).
The Court repeats the summary provided in AVH24 (with minor amendments and additions) below.
As explained by the High Court of Australia in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were clearly summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
In relation to any concerns the applicant might have about the Tribunal’s decision in this regard, the Court notes the contents of the Minister’s written summary of the Tribunal’s findings (at [9]-[12] in written submissions filed in this Court on 6 March 2025) as follows:
(a)the Tribunal recorded the applicant’s evidence at hearing. That evidence showed that the applicant had agreed before the Tribunal that his feared harm was not for one or more reasons in s 5J(1)(a) of the Act. He also conceded that he would not face harm in [village omitted], only in [city omitted], but that it would still be unreasonable for him to relocate to [village omitted] because he would not find employment (at [11]-[17]);
(b)the Tribunal was not satisfied that the applicant’s fear of harm from loan sharks was for the essential and significant reason of race, religion, nationality, membership of a particular social group, or political opinion, as set out in s 5J(1)(a) of the Act (at [18]);
(c)the Tribunal determined that, even if it accepted that the applicant did face a real risk of significant harm from his creditors, their agents or debt collectors in Malaysia (which the Tribunal did not accept), the Tribunal was nonetheless satisfied that it would be reasonable for the applicant to relocate to [village omitted] (at [19]); and
(d)the Tribunal accepted that the economic opportunities in [village omitted] were more limited to those in Australia but determined, on the evidence, that the applicant would nonetheless be able to find employment and (based on the country information before the Tribunal) there would be financial support available to the applicant in [village omitted]. On that basis, the Tribunal was satisfied that it would be reasonable for the applicant to relocate to [village omitted] to avoid a real risk of significant harm (at [21]-[22]).
Having assessed the Tribunal’s findings in this regard, the Minister then argued (at [16] in written submissions filed on 6 March 2025) that no error arises in this regard because:
(a)the Tribunal’s reasons demonstrate that it had regard to the claims raised in the applicant’s visa application (at [7]) and his oral evidence at the Tribunal hearing (at [11]-[17]);
(b)the Tribunal’s reasons reflect an active and intellectual engagement with those claims and the applicant’s evidence (as well as the country information before it);
(c)having done so, the Tribunal identified that the applicant’s claims were not for any of the reasons set out in s 5J(1)(a) of the Act such that he could not satisfy the refugee criterion outlined in s 36(2)(a) of the Act;
(d)the Tribunal was satisfied, based on country information, that the applicant would be financially supported if he relocated to [village omitted], particularly as his mother and brother resided there, his brother was employed and the applicant had skills from both his time in Australia and [city omitted] that would assist him in finding employment. This allowed the Tribunal to conclude that the applicant did not satisfy the complementary protection criterion set out in s 36(2)(aa) of the Act; and
(e)the Tribunal’s conclusion was open to it and supported by a logical and probative basis.
The Court agrees.
Having reviewed the Tribunal’s decision in detail, it cannot be said here that the Tribunal’s reasoning is illogical, irrational or lacking a basis in a finding or inferences supported by logical grounds.
The Tribunal accurately summarised the relevant legislative provisions as they related to the applicant’s protection claims and demonstrated a thorough understanding of those statutory requirements.
Relevantly, the Tribunal identified that the applicant’s claims in relation to loan shark activity did not fall within s 5J(1)(a) of the Act. That determination was based largely on the applicant’s own oral evidence that the harm feared by him from loan sharks was not for one or more of the reasons outlined in s 5J(1)(a) of the Act (at [18]).
The Tribunal then determined that, even if it were to accept that the applicant faced “a real risk of significant harm” from his creditors, their agents or debt collectors in Malaysia, the Tribunal was satisfied that it would be reasonable for the applicant to relocate to [village omitted] which would be “a place that he would not face a real risk of significant harm”. The Tribunal accepted that, comparatively, economic opportunities would be more limited, and quality of life would be lower in [village omitted] than in Australia and that the applicant could better provide for his family in Australia than he could in [village omitted]. However, having considered the applicant’s claims to be unable to obtain work in [village omitted], the Tribunal noted that he had the benefit of family support in [village omitted] (namely his brother and mother), his brother was employed and the applicant had skills from both his time in Australia and in [city omitted] that would, in the Tribunal’s opinion, result in him being able to obtain employment. Further, the Tribunal concluded that, until that time, the Tribunal was satisfied (based on country information) that there would be financial support available to the applicant in [village omitted]. Finally, the Tribunal was not satisfied that the applicant would be unable to obtain employment or would otherwise risk being unable to subsist in [village omitted] and it would, on all of the evidence before the Tribunal, be reasonable for the applicant to relocate to [village omitted] to avoid a real risk of significant harm (at [19]-[21]).
In those circumstances, the Tribunal determined that there was no real risk that the applicant would suffer significant harm (as per the complementary protection criterion in s 36(2)(aa) of the Act) (at [22]).
It cannot be said in this matter that the Tribunal’s decision demonstrates a failure to attend “conscientiously and appropriately to its statutory obligations”: SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 at [10] per Allsop J (as His Honour then was). Nor can it be said that the Tribunal employed a process of reasoning that no logical or rational decision-maker could have made on the facts before the Tribunal.
No jurisdictional error arises in this regard.
Ground two
Ground two states:
2.The decision makers statement about me not facing harm when returned to Malaysia is purely based on his/her personal opinion and not based on any facts.
Read broadly, ground two can be read as an allegation of bias on the part of the Tribunal.
An allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is no evidence before the Court to suggest bias on the part of the Tribunal. As detailed above (in relation to grounds one and three), the Tribunal actively engaged with the oral evidence and country information before it and assessed all protection claims as raised by the applicant. As explained by the Minister (at [17] & [19] in written submissions filed in this Court on 6 March 2025), the Tribunal also complied with its exhaustive procedural fairness obligations in Division 4 of Part 7 of the Act. Relevantly, in that regard, on 12 April 2024, the Tribunal exercised its discretion under s 424(2) of the Act and invited the applicant to provide a completed pre-hearing information form within 7 days. The applicant did not do so. The Tribunal also invited him to attend a hearing, in compliance with s 425 of the Act and s 425A of the Act, scheduled to take place on 1 July 2024. The applicant attended that hearing and, as discussed further below, was given ample opportunity to provide further evidence in support of any protection claims he might have. Ultimately, the Tribunal determined that the applicant was not owed protection. As discussed above, that finding was open to the Tribunal on the evidence before it.
No jurisdictional error arises in relation to ground two.
Oral submissions
As outlined above, in oral submissions before this Court, the applicant stated that, during the Tribunal hearing, he did not use an interpreter so there was “some misinterpretation”. The applicant also explained that “there are some things that were missing, such as politics and religion”.
Read broadly, the applicant’s concerns suggest procedural unfairness, that the Tribunal failed to address all of his protection claims or failed to investigate for itself any further possible protection risks.
The Court disagrees.
In relation to any concern that the applicant was unable to participate at the Tribunal hearing because no interpreter had been provided, the Court agrees with the Minister’s written submission to this Court that at no stage during the Tribunal review did the applicant request an interpreter in any language (such as in his review application or the completed response to hearing invitation forms) (CB 47 & 62). Further, the applicant’s visa application expressly recorded that he could speak, read and write in English (CB 7-8). There is no evidence before the Court to suggest that the applicant was denied a real and meaningful opportunity to present his case on review or, more specifically, at the Tribunal hearing as per the principles in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. Indeed, it is apparent from the Tribunal’s reasons that the applicant actively engaged with the Tribunal and answered questions (when put to him) in detail.
To the extent that the applicant raises concerns that the Tribunal did not addresses protection concerns on the basis of politics or religion, the Court notes that those concerns were not raised in either the applicant’s visa application or before the Tribunal itself. The only concerns raised by the applicant related to a perceived risk of harm from loan sharks and, arguably, economic harm. The Tribunal assessed those concerns and made findings that were open to it on the evidence before it.
If the applicant is suggesting that the Tribunal had a responsibility to investigate for itself further possible protection claims, the Court again disagrees.
As recently discussed by this Court in CUB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 101 (“CUB23”), s 5AAA of the Act provides as follows:
5AAA Non‑citizen’s responsibility in relation to protection claims
(1)This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2)For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a)the purposes of a regulation or other instrument under this Act; and
(b)the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4)To remove doubt, the Minister does not have any responsibility or obligation to:
(a)specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
As explained by this Court in both CUB23 and AVH24, the Tribunal is not required to investigate an applicant’s claims or to seek further evidence (by itself) in relation to what may or not be a protection claim: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. That responsibility falls on the applicant.
This does not mean, however, that the Tribunal should not assist an applicant (particularly an applicant who appears without legal assistance) to better articulate his concerns and the evidence he seeks to present and rely on.
There is no evidence before the Court that that approach was not adopted in this matter. The Tribunal complied with its procedural fairness obligations arising under the Act and the applicant was given ample opportunity to expand upon or add to any protection concerns he might have.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 25 July 2024 and the applicant’s oral submissions (made at the hearing before this Court on 17 March 2025) have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 April 2025
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