GET24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1291
•13 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GET24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1291
File number: PEG 305 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 13 August 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal did not adequately consider or give sufficient weight to evidence and claims presented – whether the Tribunal made errors in its fact-finding process by not properly investigating or questioning the accuracy of the applicant’s claims – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 5AAA, 36, 65, 476, 477
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 30 July 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 305 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GET24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
13 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $6,500.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 2 August 2024. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant raises two grounds in his application, which allege that the Tribunal:
(a)did not adequately consider or give sufficient weight to the applicant’s evidence and claims;
(b)made errors in its fact-finding process by not properly investigating or questioning the accuracy of the applicant’s claims.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 10 May 2018 the applicant applied for a protection visa. The applicant claimed he left Malaysia because he was being forced by his girlfriend’s family to convert to Islam before marrying her and that they hit him for refusing to do so.
On 15 January 2019 a delegate of the Minister refused to grant the applicant a protection visa. The applicant was not invited to attend an interview to discuss his claims for protection prior to the delegate’s decision.
The applicant applied to the Tribunal for merits review of the delegate’s decision on 17 January 2019.
The Tribunal acknowledged the application on 18 January 2019 and, in the correspondence sent to the applicant on that date, advised the applicant that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
The Tribunal invited the applicant on 12 April 2024 to complete a pre-hearing information form and the applicant returned two completed pre-hearing information forms to the Tribunal the following day. The pre-hearing information form provided a space for the applicant to give more information about his claims for protection. He left this section blank on the first completed pre-hearing information form he submitted and wrote in the relevant section of the second pre-hearing information form, ‘I would not to present my claim during the hearing.’
On 29 July 2024 the Tribunal wrote to the applicant and invited him to attend a hearing before the Tribunal on 20 August 2024. The Tribunal indicated in the hearing invitation that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal requested that the applicant complete a response to hearing invitation form within seven days and requested that he provide all documents he intended to rely on to support his case by 13 August 2024.
On 30 July 2024 the applicant provided to the Tribunal a response to the hearing invitation. In the response, the applicant indicated that he would not participate in the hearing and he consented to the Tribunal making a decision on the papers. He did not provide any further documents to the Tribunal.
On 2 August 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal accepted the applicant is of Chinese Cambodian ethnicity and he is a Christian.
The Tribunal summarised the evidence provided by the applicant about his claim that he was being forced to convert to Islam from Christianity to marry his girlfriend and expressed concern about the lack of detail in that evidence. The Tribunal had concerns about the absence of evidence about the applicant’s circumstances in the six years since he made the protection visa application. The applicant did not provide information about whether the relationship with his girlfriend continued or the extent of any contact he had with the girlfriend or her family over that period. The applicant did not provide information about his life in Australia since making the application.
The Tribunal accepted, based on country information, that:
(a)mixed marriages between persons of different religious backgrounds is commonplace in Malaysia;
(b)Syariah law stipulates a non-Muslim must convert to Islam before marrying a Muslim;
(c)any Muslim girlfriend of the applicant would face a risk of official discrimination under Malaysian law in the form of refusal of official permission to convert to Christianity;
(d)if a Christian man and Muslim woman married in Australia, the marriage would not be able to be registered with the Malaysian authorities; and
(e)a married couple who are a Christian man and Muslim woman in Malaysia may move to large urban centres to avoid attention.
The Tribunal did not accept the applicant’s claims were genuine because of:
(a)the lack of detail about the applicant’s claims for protection;
(b)the lack of detail about what has happened in the applicant’s life since arriving in Australia or his current circumstances; and
(c)the failure to provide any information after making his protection visa application, and in particular after being advised the Tribunal could not make a favourable decision on the information before it.
In circumstances where the Tribunal did not accept the applicant’s claims were genuine, it was not satisfied there was a real chance the applicant would be harmed in the reasonably foreseeable future if he returned to Malaysia. The Tribunal was therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a) of the Migration Act, or the alternative complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 18 August 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application for judicial review contains the following grounds:
1.The Tribunal did not adequately consider or give sufficient weight to the evidence and claims I presented. Specifically, I provided information regarding the risk of forced conversion to Islam and the physical assaults I faced from my girlfriend’s family. The Tribunal failed to engage with the specific details of these claims or request further clarification or evidence, which should have been considered more thoroughly before reaching a decision.
2. The Tribunal made errors in its fact-finding process by not properly investigating or questioning the accuracy of my claims. The decision relied on assumptions and general information rather than a detailed examination of my specific circumstances. This lack of thorough fact-finding constitutes a jurisdictional error that warrants further consideration of my application.
Pursuant to an Order made by a Registrar of this Court on 6 November 2024, the applicant was required to file and serve, at least 28 days before the hearing, written submissions, any amended application and any additional evidence upon which he seeks to rely. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing, as required by the Order.
The evidence before the Court comprises:
(a)an affidavit of the applicant filed with his judicial review application annexing a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 18 November 2024 (exhibit 1); and
(c)an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 21 July 2025.
CONSIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Ground 1
By ground 1, the applicant asserts that the Tribunal failed to adequately consider or give sufficient weight to his evidence and claims. In particular, the applicant asserts that the Tribunal failed to engage with the specific details of his claim regarding the risk of forced conversion to Islam and physical assaults he faced from his girlfriend’s family, or to otherwise request further clarification or evidence.
In his oral submissions to the Court, the applicant submitted that the Tribunal did not recognise and pay careful attention to his claims. He submitted he has been persecuted by the Islam religion and had been assaulted by the family of his girlfriend. He submitted that the Tribunal did not consider the details of his claims or request further evidence or details, and the claim should have been considered thoroughly before making a decision.
The Minister submitted that this ground fails as the Tribunal engaged with the limited and vague claims made by the applicant, set out the relevant criteria and considerations for the grant of the visa and correctly reproduced them in the annexure to its decision. The Tribunal referred to the correct legal tests and there is nothing on the material before the Court to suggest that the Tribunal failed to engage with the details of the claims or otherwise failed to investigate the applicant’s claims, particularly noting there was no obligation for the Tribunal to make the applicant’s case for him.
I accept the Minister’s submissions in relation to this ground.
The only articulation of the applicant’s claim for protection that was before the Tribunal was that in his application for a protection visa. There was minimal detail in the claim. The Tribunal summarised the applicant’s claim for protection at [7] of its reasons in the following way:
In relation to their claims for protection, the applicant claimed they left Malaysia because the family of their Islamic girlfriend was starting to force the applicant to convert to Islam to marry her, including physical assaults. The applicant reported this to the Malaysia police five times. The girlfriend is unnamed and otherwise not referred to in the protection visa application.
I am satisfied that this accurately reflects the applicant’s protection claim as advanced in the protection visa application.
The Tribunal rejected the credibility of the claim, saying at [43] of its reasons:
The Tribunal does not accept that the claim is genuine, by reason of the lack of detail about the applicant’s claims for protection, the lack of detail about what has happened in the applicant’s life over the last six years since they arrived in Australia or their current circumstances, and the failure to provide any information after making the protection visa application and in particular after being advised that the Tribunal could not make a favourable decision on the information before it.
Insofar as the applicant’s complaint articulated in ground 1 relates to whether the Tribunal adequately considered the details of his claims, it is not established. The Tribunal considered the applicant’s claims for protection at the level of detail provided by the applicant. The Tribunal expressly recorded the applicant’s claim that he was being forced to convert to Islam and that he had been assaulted five times by his girlfriend’s family. The Tribunal rejected those claims because of its credibility concerns, including those relating to the lack of detail in the claims.
In his oral submissions to this Court, the applicant made a more general submission that he was persecuted by Islam. He did not make this more general claim before the Tribunal and it did not clearly emerge from the materials before the Tribunal. The Tribunal was therefore not required to consider whether the applicant would face a risk of harm from Muslims more generally on account of his religion.
The ground also contains an assertion that the Tribunal should have requested further evidence or details in relation to the applicant’s claims.
The onus was on the applicant to provide sufficient evidence to establish his claims for protection. Section 5AAA of the Migration Act provides that it is the responsibility of a non-citizen who claims to be a person in respect of whom Australia has protection obligations to ‘specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.
The Tribunal recognised that it is the applicant’s responsibility to provide information about his claims at [36] of its reasons, where it said:
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
There is no identifiable jurisdictional error in the Tribunal’s approach to the assessment of the applicant’s claims. As can be seen from the summary of the background information above, the Tribunal afforded the applicant multiple opportunities to provide further evidence in relation to his claims. These opportunities were afforded in the acknowledgement of the application for review, in the request to complete a pre-hearing information form, in the response to hearing invitation form, and by inviting the applicant to attend a hearing. Despite these opportunities, the applicant did not provide more detail about his claims. There was no obligation on the Tribunal to seek further specific information from the applicant or to assist the applicant to establish his case.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Tribunal made errors in its fact-finding process by not properly investigating or questioning the accuracy of his claims, instead relying on assumptions and general information rather than a detailed examination of the applicant’s specific circumstances.
The Minister submitted that the complaint raised by this ground rings hollow, given the Tribunal could not reach a state of satisfaction that the incidents occurred as the applicant had not provided sufficient detail and declined to attend a hearing. It remained the responsibility of the applicant to specify all particulars and provide sufficient information of his claims and, when the applicant elected not to attend the hearing, it was an inevitable consequence that the delegate’s decision would be affirmed by the Tribunal. The Minister further submitted that, in any event, ss 65 and 36(2) of the Migration Act require the Tribunal to reach a requisite level of satisfaction in respect of the relevant criteria before a visa can be granted. Section 65(1)(b) of the Migration Act requires that if the Tribunal, as relevant decision-maker, is not so satisfied, it must refuse to grant the visa. The Tribunal in the present case was not satisfied given the applicant’s undetailed and uncorroborated claims, the lack of corroborative documents to support his claims and his declining to attend the hearing despite the warning on the hearing invitation that the Tribunal had considered the material and was unable to make a favourable determination on the papers.
I again accept the Minister’s submissions in relation to this ground.
As discussed in the context of ground 1, the Tribunal was not required to assist the applicant to establish his claims for protection. The applicant could only be granted a protection visa if he satisfied the Tribunal that he met the requirements for the grant of the protection visa, including those set out in s 36(2) of the Migration Act. The brief information provided by the applicant was insufficient to satisfy the Tribunal of the applicant’s claims. It was therefore appropriate for the Tribunal to affirm the delegate’s decision.
In some cases, it can amount to a jurisdictional error if the Tribunal fails to inquire about a critical fact, the existence of which is readily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25]. However, this is not such a case. The applicant has not identified any specific inquiry that the Tribunal was required to make. Rather, the applicant’s assertion is a general one that the Tribunal should have done more to investigate his claims, notwithstanding that the applicant did not avail himself of any of the several opportunities afforded by the Tribunal to present further information to it in relation to his claims. That is insufficient to establish jurisdictional error.
The Tribunal indicated in the notice of its invitation to the applicant to attend a hearing that it was unable to make a decision favourable to the applicant on the evidence before it. As submitted by the Minister, in these circumstances, when the applicant declined the Tribunal’s invitation to attend the hearing, it was an inevitable consequence that the Tribunal would then affirm the delegate’s decision: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. The Tribunal was satisfied that the applicant understood the form he completed and returned to the Tribunal and that he genuinely consented to the Tribunal making a decision on the papers without participating in the hearing. The applicant has not challenged this finding of the Tribunal.
Contrary to the applicant’s assertion, the Tribunal decision is not based on assumptions. The Tribunal decision was a consequence of its lack of satisfaction that the applicant meets the requirements for the grant of the visa, having regard to the evidence that was before it and the relevant criteria. The Tribunal did rely on some country information in relation to mixed marriages in Malaysia. However, the Tribunal’s findings based on country information were not determinative because the Tribunal had credibility concerns about the factual basis of the applicant’s claims. The Tribunal rejected the applicant’s claims based on its specific concerns with the evidence he provided.
Ground 2 is not established.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal made a jurisdictional error, his application for judicial review must be dismissed.
The parties made submissions on costs at the hearing. In the event the Minister is successful in this proceeding, he seeks an order that the applicant pay his costs in the amount of $6,500. It is appropriate that costs follow the event and the quantum sought by the Minister is reasonable having regard to the work required to be performed for the Minister.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 13 August 2025
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