GNT24 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1158

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GNT24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1158

File number: PEG 314 of 2024
Judgment of: JUDGE LADHAMS
Date of judgment: 23 July 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 denied the applicant procedural fairness by not giving him adequate time to provide further evidence – no jurisdictional error – application dismissed.
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 5J, 36, 424AA, 425, 425A, 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 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

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law
Number of paragraphs: 39
Date of hearing: 18 July 2025
Place: Perth
Applicant: The applicant appeared in person
Counsel for the First Respondent: Mr T Lettenmaier
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: MinterEllison

ORDERS

PEG 314 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

GNT24

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

23 JULY 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 $8,371.30.

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

  1. 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 29 July 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…

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GNT24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1158
Case
[2025] FedCFamC2G 1158
Decision Date

CaseChat Overview and Summary

In the case of GNT24 v Minister for Immigration and Citizenship, the applicant, GNT24, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) affirming a decision by a delegate not to grant him a protection visa. The applicant's application for the visa was based on claims of potential harm arising from debts he owed to a Chinese money lender and a bank in Malaysia. The court was required to determine whether the AAT had erred in its process, specifically whether it had denied the applicant procedural fairness by not providing adequate time to present additional evidence.

The legal issue central to this case was whether the AAT had committed a jurisdictional error in its handling of the applicant's case, particularly in not allowing sufficient time for the applicant to provide further evidence. The court examined the AAT's process and its adherence to procedural fairness, considering if any failure to allow additional time to the applicant had affected the decision-making process. The court found that the AAT had considered the claims made by the applicant thoroughly, based on the evidence available at the time, and had reached a conclusion that the applicant did not face a real chance of serious harm if returned to Malaysia.

The court's reasoning focused on the legal standards of jurisdictional error as defined in previous case law, particularly highlighting that the disagreement with the AAT's decision did not constitute a jurisdictional error. The court concluded that the AAT had not denied the applicant procedural fairness by not allowing more time to present evidence, as the evidence presented was sufficient to make an informed decision. Consequently, the court dismissed the applicant's application for judicial review, affirming the AAT's decision that the applicant did not qualify for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 29 July 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.SUMMARY OF THE TRIBUNAL DECISION The Tribunal considered claims for protection advanced by the applicant arising from debts he owes to a Chinese money lender in Malaysia and to a bank and accepted, based on the evidence before it, that the applicant had money owing to a Chinese money lender and to a bank. The Tribunal accepted the applicant’s claim that he does not anticipate the bank has any intention to, or will, inflict serious harm of a kind contemplated in s 5J(5) of the Migration Act now or in the reasonably foreseeable future if the applicant is returned to Malaysia. The Tribunal considered that, at worst, the bank might foreclose and take possession of the applicant’s house and, whilst this is undesirable, it would be nothing more than a consequence of a commercial transaction. Further, there was no evidence before the Tribunal to suggest the applicant, his wife and children could not secure other accommodation in the event the applicant lost his house to the bank. The Tribunal accepted that there is a loan from a Chinese lender even if the applicant could not be certain of the precise amount owing due to the accrual of interest. The Tribunal also accepted the Chinese lender had not written off the loan and intends to recover his money. The Tribunal accepted there was an incident between the applicant and the lender before the applicant travelled to Australia where the lender grabbed the applicant by the shirt, threatened him and slapped him. However, the Tribunal found this did not amount to serious harm. Having regard to all the evidence before it, the Tribunal did not accept the Chinese lender demonstrated a genuine intention to inflict any form of serious harm upon the applicant. The Tribunal accepted there had been threats but did not consider the lender actually intended to carry out the threats. The Tribunal accepted the applicant believes he may face some hardship in repaying his home loan, the loan from the Chinese lender and meeting the living costs of his family, including the educational expenses of his four children. However, the Tribunal did not accept the applicant would be unable to find employment of some kind in Malaysia if he returns and accepted that the applicant previously worked as a chef for 15 years. The Tribunal found the country information put to the applicant at the hearing indicating that Malaysia has a low rate of unemployment supported the conclusion that the applicant will be able to earn a living. The Tribunal did not accept that the evidence suggested that the income the applicant would earn in Malaysia would give rise to a real chance of the applicant suffering serious harm. The Tribunal also found, based on country information, that there are measures and mechanisms to which the applicant may turn to if he continues to suffer financial challenges, including submitting to personal bankruptcy, approaching a loan counselling organisation or negotiating repayment terms with his creditors. The Tribunal found the applicant can pursue these courses of action and that he will not face a real chance of serious harm by any creditor now or in the reasonably foreseeable future in Malaysia.

Ratio Decidendi

Legal Principle Established

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 20 November 2024 (exhibit 1);(c)an affidavit of Abhilasha Tyagi filed on behalf of the Minister on 4 July 2025, annexing a copy of a document that was before the Tribunal but not included in the court book; and(d)an affidavit of service of Aneesha Satyendra filed on behalf of the Minister on 10 July 2025.CONSIDERATION OF THE APPLICATIONThe 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 (LPDT), 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].The applicant’s oral submissions at the hearing relating to his claims for protection When the judicial review application came before the Court for hearing, I explained to the applicant the role of the Court and the Court’s focus on whether the Tribunal decision is affected by jurisdictional error. The applicant confirmed that he understood the explanations offered by the Court.