GNT24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1158
•23 July 2025
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
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 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 a single ground in his application alleging that he was denied procedural fairness because he was not given adequate time to provide further evidence.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. His application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 12 July 2018 the applicant applied for a protection visa. The application for a protection visa was refused by a delegate of the Minister on 25 October 2018. The applicant applied to the Tribunal for merits review of the delegate’s decision on 14 November 2018.
On 27 June 2024 the applicant attended a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in the review. The applicant was assisted by an interpreter at the hearing. After the hearing, the Tribunal gave the applicant until 4 July 2024 to provide any further information and the applicant provided further documents in accordance with this timeframe.
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.
The Tribunal found the applicant did not experience serious harm in Malaysia and that he does not face a real chance of such harm in the reasonably foreseeable future. The Tribunal accepted the applicant’s claim that he was told he could have a good life in Australia and that he thought he could run from his problems, however, this is not the test for a protection visa.
The Tribunal found nothing in the applicant’s evidence or in the country information before it to suggest that the applicant faces a real chance of going to jail for his debts. However, the Tribunal considered that if that is a lawful consequence in Malaysia of defaulting on his loans, then the applicant’s fear is based on a law of general application, and does not amount to a well-founded fear of persecution.
The Tribunal considered the applicant’s claim his wife is sick, has asthma and is mentally upset about the situation. The Tribunal expressed sympathy for the applicant and his wife, and accepted their financial circumstances may be stressful, but found that there is nothing to suggest the applicant’s wife would be unable to access adequate medical treatment or support in Malaysia.
The Tribunal was 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, finding that he did not face a real chance of serious harm of a kind contemplated by s 5J(5) of the Migration Act. Based on the same findings of fact, the Tribunal found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act, finding that there was not a real risk of the applicant being harmed in a way that would fall within the definition of ‘significant harm’.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 27 August 2024. The application was made within 35 days of the Tribunal decision as required by s 477(1) of the Migration Act.
The sole ground raised in the applicant’s application is (reproduced without alteration):
The applicant was denied procedural fairness because he was not given adequete time to provide further evidence.
Pursuant to an Order made by a Registrar of this Court on 6 November 2024, the applicant was required to file and serve 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of application and any additional evidence on which the applicant seeks to rely. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions ahead of the hearing as required by the Registrar’s 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 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 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 (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.
When the applicant was invited to make oral submissions to the Court, the applicant submitted:
(a)he has debt issues and that is why he came to Australia;
(b)he borrowed money from private people and they have added interest upon interest and that is why his debt has increased;
(c)he was threatened that if he does not pay them, they may torture or kill him; and
(d)he lost all of the things in his business and that is why he came to Australia.
In his reply submissions, and after Counsel for the Minister comprehensively summarised the Tribunal’s reasons for the applicant’s benefit, the applicant submitted that:
(a)if he goes back to Malaysia, he will get a job but he will not earn sufficient income to repay his debt;
(b)his wife is not well and suffers from asthma and he has a lot of medical expenses towards her treatment;
(c)when the debtors come and ask for money, he will be stressed and they will ask him very seriously about the delay in repaying the debt; and
(d)that is why he does not wish to go back to Malaysia and he is very scared to go back.
The applicant’s oral submissions, to the extent that they are summarised in this section,[2] do not assert any jurisdictional error in the Tribunal decision. They rather address the reasons the applicant believes he should be granted a protection visa. As explained above, and as I explained to the applicant at the hearing, the Court does not have jurisdiction to consider for itself whether the applicant meets the requirements for the grant of a protection visa and the Court cannot grant the applicant a visa of any kind. The applicant’s submissions summarised in this section invite the Court to engage in impermissible merits review. They do not establish that the Tribunal made a jurisdictional error.
[2] The applicant also made oral submissions in relation to the assertion that he was denied procedural fairness, which are addressed in the section below.
Was the applicant denied procedural fairness?
At the start of the hearing, I referred the applicant to the ground in his application and asked if he prepared to ground himself, to which he answered in the affirmative.
After the applicant made oral submissions that did not assert any jurisdictional error in the Tribunal reasons, I referred him back to his ground and invited him to explain to the Court why he feels he was not given adequate time to provide further evidence.
The applicant relevantly submitted that he was given a month to provide further documents. I asked the applicant if he told the Tribunal that this was not enough time and he said no. I also observed to the applicant that the Tribunal gave the applicant an additional seven days to provide documents after the hearing and he submitted further documents within this time. I asked the applicant why, in the circumstances, he says that the Tribunal did not give him sufficient time to provide evidence, and the applicant submitted that he did not say that and a lawyer prepared the ground for him. I asked the applicant if there was any other reason he believes he was denied procedural fairness and he responded no.
The evidence before the Court suggests that the applicant was given multiple opportunities to provide evidence to the Tribunal and to present his case. In this regard, I particularly note the following evidence that is contained in the court book:
(a)On 5 April 2024 the Tribunal wrote to the applicant by email and invited him to complete a pre-hearing information form within seven days. The applicant submitted a pre-hearing information form to the Tribunal on 8 April 2024. The applicant was invited to give more information about his claims for protection or identify any other reasons he was afraid to return to his home country, in addition to the claims set out in his visa application. The applicant did not provide any further information or claims in the pre-hearing information form. The pre-hearing information form also put the applicant on notice that if he wanted to submit any further evidence to the Tribunal, he should provide it in writing as soon as he can.
(b)On 30 May 2024 the Tribunal again wrote to the applicant by email attaching an invitation to attend a hearing before the Tribunal on 27 June 2024. The invitation requested that the applicant read and complete an enclosed ‘Response to hearing invitation’ form within seven days. The invitation also contained a heading, ‘Things to do before the hearing’, which contained the following information:
Please provide all documents you intend to rely on to support your case by 20 June 2024. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by translation from a qualified translator.
(c)On 15 June 2024 the applicant provided to the Tribunal a completed response to the hearing invitation. The applicant indicated in this document that he did not intend to rely on any documents at the hearing, and that he did not request the Tribunal to take oral evidence from any other person at the hearing. The applicant did not provide any other documents or evidence to the Tribunal prior to the hearing.
(d)The hearing record from the Tribunal hearing held on 27 June 2024 indicates that the applicant was afforded an opportunity to provide information, comments or a response in writing by 4 July 2024. The Tribunal in its reasons for decision referred at [27] to agreeing to allow seven days for the applicant to submit documentary evidence of the bank loan, including evidence of the money he remits that is being paid off monthly, and at [40] to reminding the applicant that he had seven days to submit documents if he wished to, this reminder having been given in the context of the applicant’s evidence about his wife’s health.
(e)On 4 July 2024 the applicant provided further documents to the Tribunal including:
(i)a financial statement showing the applicant’s current efforts to repay his debt;
(ii)screenshots from WhatsApp showing threats made by private lenders;
(iii)a statement from the Credit Tip Off Service; and
(iv)medical bills for the applicant’s wife.
(f)The Tribunal also referred in its reasons to information it put to the applicant in accordance with s 424AA of the Migration Act. The Tribunal recorded at [37] of its reasons:
I then put information to the applicant which I explained might be the reason, or part of the reason, why I might affirm the decision under review. In particular, I put to him that there had been some information provided to the Department which alleged the applicant had made a fake story about what might happen to him if he returns to Malaysia. I also put to him it was alleged he was involved with bringing students from Malaysia and helping them get protection visas, and it was also alleged that he has a lot of friends who work on farms without visas. I explained that if I decided this information was reliable then I might conclude the applicant’s protection claims might not be credible. I explained, in accordance with s 424AA, that he could request an adjournment of the hearing before responding to these allegations. The applicant told me he needed no adjournment and would respond directly and said he was not lying. He said he is not associated with bringing anyone into Australia to obtain a protection visa. He said he has no connection with farms apart from during COVID-19 when he worked on a chicken farm giving the chickens injections. In response to the allegation that his protection claims are fake, he said he has not lied. He added he did not return to Malaysia even to attend his daughter’s wedding.
The Tribunal then recorded at [54] of its reasons that it ‘accepted [the applicant’s] explanations generally’ in relation to the information put to him in accordance with s 424AA of the Migration Act and that it made ‘no adverse findings of any kind based on those allegations’.
I accept the submission advanced by Counsel for the Minister at the hearing that the applicant’s reference to being given one month to provide documents is most likely a reference to the hearing invitation. The applicant has not explained to the Court why the time afforded to him to present evidence before the hearing was insufficient, particularly in the context of a protection visa application that had been lodged almost six years earlier. Further, even if that time frame was insufficient, the applicant had a further opportunity after the hearing to provide additional evidence.
Taking into account the totality of the evidence before the Court, the applicant has not established that the Tribunal denied him procedural fairness by failing to give him sufficient time to provide evidence. In addition to the applicant being afforded multiple opportunities by the Tribunal to provide information and evidence about his claims for protection before, at and after the Tribunal hearing, it is also relevant to observe that there is nothing in the evidence before the Court to suggest that the applicant ever sought further time than he was afforded to provide documents or that he told the Tribunal that the time afforded to him was insufficient in any way.
While the only basis on which the applicant asserted he was denied procedural fairness is that he was not afforded sufficient time to provide evidence, the Minister addressed in his submissions further procedural fairness obligations of the Tribunal, including with reference to its obligations under Part 7 of the Migration Act. I address these briefly.
I accept that by inviting the applicant to a hearing, the Tribunal complied with its obligation under s 425 of the Migration Act. The notice of the invitation complied with the requirements of s 425A of the Migration Act and there is nothing before the Court to suggest that the invitation to attend a hearing was not a real and meaningful one. I accept the Minister’s submissions that the issues for determination by the Tribunal were broadly the same as those addressed by the delegate and the applicant was therefore on notice of those issues: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35].
I also accept the Minister’s submission that the Tribunal’s reasons suggest that it discussed its concerns regarding the applicant’s case and relevant country information with the applicant during the hearing. The Tribunal’s summary of the applicant’s evidence given at the hearing demonstrates that it asked several questions of the applicant in relation to aspects of his evidence, gave the applicant the opportunity to provide documentary evidence to support aspects of his claims, including in relation to his loans and his wife’s health, and discussed and invited him to comment on relevant country information.
Finally, I accept the Minister’s submission that there is no jurisdictional error arising in relation to the information that the Tribunal put to the applicant pursuant to s 424AA of the Migration Act. The Tribunal explained the process it adopted at [37] of its reasons, extracted at [30(f)] above. There is nothing in this explanation that would indicate that the Tribunal did not comply with its obligations under s 424AA of the Migration Act. In the context of the ground raised by the applicant, it is notable that the Tribunal told the applicant he could request an adjournment before responding to the information put to him, and the applicant indicated that he did not require further time and could respond immediately. In any event, I further accept the Minister’s submission that, in circumstances where the Tribunal accepted the applicant’s explanations generally in response to the information put to him under s 424AA and made no adverse findings on the basis of the information, even if there had been some error in the Tribunal’s approach to s 424AA of the Migration Act, the Tribunal’s decision could not realistically have been different and therefore any error would not be material: LPDT at [14].
The ground raised in the applicant’s application does not establish jurisdictional error.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal made a jurisdictional error, the application for judicial review must be dismissed.
Counsel for the Minister indicated at the hearing that, if the Minister is successful in this matter, the Minister seeks costs in the scale amount. Having regard to the work required to be performed for the Minister in this matter, I am satisfied that the scale amount is appropriate.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 23 July 2025
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