FUU24 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1005

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FUU24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1005

File number(s):

PEG 284 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 provided the applicant with a fair opportunity to present her claims – procedural fairness – whether the Tribunal correctly applied s 36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5H, 36(2)(a), 36(2)(aa), 36(2A), 65, 422B, 425, 476, 499

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

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

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 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

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

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

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

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

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

Division:

Division 2 General Federal Law

Number of paragraphs:

53

Date of last submission/s:

8 May 2025

Date of hearing:

22 May 2025

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Mandarin interpreter

Counsel for the First Respondent:

Abby Tyagi

Solicitor for the First Respondent:

Minter Ellison

Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 284 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FUU24

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 her a Protection (subclass 866) visa (the visa). As will be explained, for the applicant to succeed in this Court, she 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) 30). She first arrived in Australia on 27 November 2017 as the holder of a visitor visa (CB 92, 163).

4. On 30 April 2018, the applicant applied for a protection visa (CB 22-70). In her application, she claimed to have left Malaysia due to economic hardship and corruption, and if returned, she feared that she would continue a difficult life without employment or financial support (CB 45). She also claimed that the Malaysian government and police were corrupt and would not assist poor people like her (CB 47).

5. On 23 October 2018, a delegate of the Minister refused to grant the applicant the visa (CB 92-101). The delegate found that the applicant did not meet the definition of refugee for the purpose of ss 5H and 36(2)(a) of the Migration Act 1958 (Cth) (the Act), nor did she meet the complementary protection criteria under s 36(2)(aa) of the Act (CB 94-96).

6. On 27 October 2018, the applicant applied to the Tribunal for review of the delegate’s decision (CB 102-103).

7. On 9 May 2024, the applicant was invited to attend a hearing scheduled for 21 June 2024 (CB 135-137). On 21 June 2024, the applicant attended the scheduled hearing with the assistance of a Mandarin interpreter (CB 153).

8. On 12 July 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 162-172).

9. On 6 August 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

10. 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.

11. The Tribunal began by identifying the visa decision under review. The Tribunal set out that the applicant was not invited to an interview by the Department for Home Affairs, and that on 23 October 2018, a delegate of the Minister refused to grant the applicant the visa under s 65 of the Act (at [2], [8]).

12. The Tribunal set out the legislative criteria for the grant of a protection visa, namely, the refugee and complementary protection criteria (at [14]-[18]). The Tribunal confirmed that, in accordance with Ministerial Direction No. 84, made under s 499 of the Act, it also had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, as well as Department of Foreign Affairs and Trade (DFAT) country information (at [19]).

13. The Tribunal set out the applicant’s claims and evidence as contained within her protection visa application (at [5]-[7]). In her application, the applicant claimed she departed Malaysia due to economic hardship and corruption, that she had a hard life living without financial support, and that the government’s corruption meant they would not assist poor people like her. At the hearing, she claimed she met an agent who she paid AUD600 to lodge her application. He did not tell her about the criteria for the grant of a protection visa, and despite signing the application, she was unaware of the claims made save for general claims relating to corruption of the Malaysian government (at [6]). The Tribunal accepted that she paid a person money to lodge her application, and while she was broadly informed of what was included, she did not read the information in her application (at [7]).

14. The Tribunal then set out the findings in the delegate’s decision. The Tribunal set out that the delegate referred to country information about the economic situation in Malaysia, noting that Malaysia’s economy has been growing at a steady rate over the past few decades and the medium to long-term economic outlook for Malaysia is positive. It further noted that the authorities have turned their attention to reducing poverty and that the economic climate in Malaysia affects everyone. The delegate ultimately found that any economic hardship the applicant may suffer would not amount to significant harm (at [8]).

15. In respect of the applicant’s review application before the Tribunal, the Tribunal confirmed that, on 9 May 2024, it invited the applicant to a hearing and requested she complete a hearing invitation response form. Whilst the applicant confirmed she would attend the hearing, she did not provide the Tribunal with any further details or information in support of her claims for protection (at [11]).

16. The Tribunal confirmed the applicant attended the hearing on 19 June 2024. The applicant was not represented but was assisted by a Mandarin interpreter (at [12]).

17. At the outset of the hearing, the Tribunal noted it explained the purpose of the hearing, as well as the criteria for the grant of a protection visa, to the applicant. The Tribunal also explained the issues before it, and that it would discuss any concerns it had about the applicant’s claims or evidence with her. The applicant expressed her understanding of these matters and indicated she had no questions in this regard (at [13]).

18. The Tribunal confirmed the issue before it was whether there is a real chance that the applicant will suffer serious harm if returned to Malaysia, or alternatively, whether there is a real risk that she will suffer significant harm being removed from Australia to Malaysia (at [20]). The Tribunal accepted Malaysia is the applicant’s receiving country (at [22]).

19. The Tribunal accepted the applicant’s evidence at the hearing relating to her brother’s circumstances, her personal circumstances growing up in Malaysia, as well as her family presently in Malaysia (at [23]-[25]).

20. The Tribunal accepted that the applicant married her husband in Australia in 2022 and that he is also a Malaysian citizen. The Tribunal noted the applicant does not claim to fear harm on the basis of her husband’s claims, particularly where she gave evidence that she is unaware of her husband’s circumstances in Malaysia and his protection claims. The Tribunal observed that she was generally not very forthcoming in respect of his visa status. When put to the applicant that it was unusual she did not know much about her husband’s circumstances, she did not add anything in response (at [26]-[27]). The Tribunal ultimately was not satisfied, on her evidence and absent of any information to the contrary, that she faced a real chance of serious harm or was at real risk of significant harm based on her husband’s claims or circumstances (at [29]).

21. In respect of her own protection claims, the applicant gave evidence that she sought protection in Australia on the basis of elections in Malaysia, and that ‘we’ were against the current government. When asked about the political party in current government she was against, the applicant could not provide the name, but generally referred to a lack of democracy and ‘free voting’ in the country, and that she decided not to vote. When asked whether she was involved in any political activities or was a member of any political party, she responded in the negative and was unable to name a political party she was in support of (at [30]).

22. When asked whether she would face issues based on her political views, the applicant said that if she led a political party, she would have faced issues from the police, but did not indicate any political parties she knew of, was involved with, or wished to lead. The applicant otherwise claimed she was dissatisfied with the government and political parties for promising to build roads, bridges and universities during election campaigns, none of which happened (at [31]-[32]).

23. The Tribunal observed that, while the applicant was dissatisfied with government actions to improve facilities and infrastructure in her area, she has neither been involved in any political activities, nor come to the attention of Malaysian authorities for any reason. Given her evidence and the lack of any country information suggesting harm would come to someone’s profile who was dissatisfied with government action, the Tribunal was not satisfied that she faced a real chance of serious harm or is at a real risk of significant harm on this basis if returned to Malaysia (at [33]-[34]).

24. The Tribunal accepted the applicant is of Chinese ethnicity. The applicant gave evidence that the Chinese ethnic group are not treated the same as ethnic Malays, as Chinese students are not able to get allowances from the government. When asked whether her family in Malaysia faced any issues on the basis of their ethnicity, the applicant said her family are low-income earners who just work hard (at [35]).

25. The Tribunal then put relevant country information to the applicant about the situation of the Chinese ethnic group in Malaysia and the general economic situation in the country. The Tribunal set out that, while country information supports that ethnically Chinese people in Malaysia face some low-level official discrimination due to the government’s affirmative action policies towards ethnic Malays, there are no official laws that discriminate against the Chinese ethnic group. Further, despite the low level of official discrimination, country information indicates that Malaysian Chinese people comprise a high proportion of the professional and educated class, are prominent in business and commerce and tend to be wealthier than other ethnic groups in Malaysia, and that Malaysia’s economic performance over several decades has led to a significant reduction in poverty (at [36]-[39]).

26. The Tribunal expressed that, given her past experiences in Malaysia, her and her family’s circumstances and the country information cited, the applicant may face some challenges initially in re-settling in Malaysia and in obtaining employment, but that this did not appear to amount to serious harm or a real risk of significant harm as a result of removal from Australia to Malaysia (at [40]).

27. The Tribunal was also not satisfied that the applicant faced a real chance of serious harm or is at a real risk of significant harm for reasons of her Chinese ethnicity, or that she would not be able to find employment to support herself, or that she would face economic hardship or be denied capacity to earn a livelihood of any kind where her capacity to subsist will be threatened (at [41]).

28. The Tribunal was not satisfied that the applicant satisfied s 36(2)(a) or (aa) of the Act, namely, the refugee or complementary protection criterion (at [43]-[44]).

29. The Tribunal affirmed the decision not to grant the applicant a protection visa (at [21], [46]).  

    APPLICATION TO THIS COURT

30. The application for judicial review filed by the applicant on 6 August 2024 contains five grounds of review as follows (without alteration):

    1.It is crucial that the Department provides me with a fair chance to present my case. With proper guidance, I can offer further details about the corruption within the Malaysian government and my political stance. However, the Department did not allow me to do so.

    2.The Tribunal did not conduct the complementary protection criteria assessment as per s36(2)(aa) of the Act. The Malaysian government’s actions, including the use of draconian laws to silence critics, have created a situation where my return to Malaysia would lead to immediate arrest and persecution.

31. The applicant appeared before the Court on 22 May 2025 without legal representation but with the assistance of a Mandarin interpreter. The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister’s written submissions.

32. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 6 August 2024 (the affidavit being taken as read and in evidence at the hearing on 22 May 2025), a Court Book numbering 172 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 8 May 2025.

33. 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 she believed to be wrong with the Tribunal’s decision and/or procedure.

34. 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).

35. However, it was also explained to the applicant that this was not an exhaustive list and she should attempt to tell the Court what she said the Tribunal did wrong.

    CONSIDERATION

36. As outlined above, the application for judicial review contains two 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).

    Ground one

37. Whilst ground one specifically references the Department, the Court interprets this ground as alleging that the Tribunal failed to comply with its procedural fairness obligations by not providing the applicant sufficient opportunity to present her case.

38. When asked to elaborate on this ground at the hearing of this matter, the applicant told the Court that she did not get a proper chance to present her claims about the corruption of the Malaysian government, or of her personal political views, to the Tribunal.

39. It is the Court’s view that the Tribunal did comply with its procedural fairness obligations, which are exhaustively defined within Division 4 of Part 7 of the Act (s 422B of the Act, Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66]). The applicant was invited to, and attended, a hearing before the Tribunal in accordance with s 425 of the Act, and the issue arising for consideration was broadly the same as that considered by the delegate (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]). The applicant was assisted by an interpreter during the hearing.

1. The applicant also had the opportunity to provide the Tribunal with additional claims and evidence. She was invited to complete a pre-hearing information form on 5 April 2024 which gave her the opportunity to provide additional information in relation to her protection claims. The Tribunal's invitation for the applicant to attend a hearing dated 9 May 2024 also requested she provide any additional information she wished the Tribunal to consider. The Tribunal followed up the hearing invitation on two occasions, but the applicant’s response simply confirmed she would attend the scheduled hearing.

2. The Court has carefully reviewed the Tribunal’s decision and it is clear that the Tribunal explained the purpose of the hearing, the criteria for the grant of a protection visa, and that all aspects of the applicant’s claims were in issue before it. The Tribunal also discussed its specific concerns and relevant country information with the applicant. The Tribunal’s decision indicates that the applicant did not provide any response to a number of the Tribunal’s concerns and there is no evidence to suggest that she sought an adjournment in order to do so after the hearing. It is well established that it was a matter for the applicant to make her case before the Tribunal (Abebe v Commonwealth (1999) 197 CLR 510 at [187]).

3. The Court is ultimately satisfied that the Tribunal complied with its procedural fairness obligations and provided the applicant with sufficient opportunity to present her case.

4. No jurisdictional error arises in respect of ground one.

   Ground two

5. Ground two contends that the Tribunal failed to conduct the complementary protection criteria assessment by not allowing the applicant to present her claims regarding corruption of the Malaysian government, as well as her political stance.

6. The complementary protection criterion is set out in s 36(2)(aa) of the Act, which relevantly provides that:

   (2) A criterion for a protection visa is that the applicant for the visa is:

   …

   (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm;

   …

7. When asked by the Court to expand on this particular ground, the applicant confirmed she had nothing further to say. The Court will nevertheless consider the Tribunal’s reasons in respect of complementary protection.

8. The Tribunal correctly identified and applied the law relevant to the grant of a protection visa, including the complementary protection criterion in s 36(2)(aa) of the Act and the definition of ‘significant harm’ in s 36(2A) of the Act (at [18] of its reasons). In particular, the Tribunal identified that, in considering whether the applicant met s 36(2)(aa), it was required to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there was a real risk she would suffer significant harm as defined in s 36(2A) of the Act. There is no error in the Tribunal’s understanding of the applicable test.

9. The Tribunal provided cogent reasons for rejecting the applicant’s claims that she would be harmed in Malaysia due to her political views, her Chinese ethnicity, or due to economic hardship. In doing so, it was then open to the Tribunal to conclude that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm, as defined in s 36(2A) of the Act, if returned to Malaysia. Furthermore, the Tribunal specifically explained this process of reasoning to the applicant at the hearing and allowed her an opportunity to provide further information addressing its concerns, but she failed to do so. There was no error in the Tribunal’s approach in this regard.

10. No jurisdictional error arises in respect of ground two.

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

12. The Court is satisfied that, even adopting the broad approach referred to in [36] of these reasons, no jurisdictional error is apparent.

    CONCLUSION

13. 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.

14. Accordingly, the application is dismissed.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       2 July 2025