GTL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 578
•23 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GTL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 578
File number(s): MLG 3947 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 23 April 2025 Catchwords: MIGRATION – Application for judicial review – Protection (subclass 866) visa – where the applicant and his wife, GSX18, had their applications for review heard by the Administrative Appeals Tribunal at the same time – where the Tribunal affirmed decision of the first respondent that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 – whether Tribunal applied the appropriate weight to the applicant’s evidence – found weightage is a matter for the Tribunal – whether the Tribunal considered irrelevant country information – where certain ground raised by applicant sought impermissible merits review – whether the Tribunal erred by making a finding that was illogical or irrational – found finding was reasonable – whether the Tribunal denied the applicant procedural fairness – found no failure of procedural fairness – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J(1),5J(1)(a), 5J(4)(b), 5J(4)(c), 36(2)(a), 36(2)(aa), 424A, 425, 474, 478, Div 4 Pt 7
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2
Convention on the Rights of the Child art 3
Cases cited: Craig v South Australia (1995) 184 CLR 163
CRI012 v Republic of Nauru [2018] HCA 19
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 3 March 2025 Place: Melbourne Solicitor for the First Applicant: Mr Karunadasa of TAI Lawyers Solicitor for the First Respondent: Ms Liddy of Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3947 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GTL18
Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
23 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
3.The Amended Application filed on 28 January 2025 is dismissed.
4.The Applicant pay the First Respondent’s costs fixed in the amount of $5000.00.
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 J YOUNG
Before the Court is an Amended Application filed on 28 January 2025, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 30 November 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (Visa)
BACKGROUND
The applicant is a citizen of Malaysia. The applicant is the husband of the first applicant (GSX18) and the father of the second applicant (GTH18) in MLG3946/2018.
On 9 January 2015, the applicant arrived in Australia.
On 28 September 2015, the applicant applied for the Visa. The applicant’s claims were set out in his Visa application and accompanying written statement. Relevantly, the applicant claimed that:
(1)on 9 July 2011, he was involved in an accident in which a Singaporean citizen of Muslim faith was killed (victim). The applicant was arrested and imprisoned for two weeks and subsequently blocked from entering Singapore for a ‘couple of year’;
(2)sometime later the applicant returned to Johore Bahru where a group of Malays claiming to be relatives of the victim came to the applicant’s home demanding $300,000 Singapore dollars which the applicant refused to pay. As a result, this group attacked and threatened to kill him in the presence of his family. The applicant agreed to pay the money out of desperation but advised he would need at least three weeks to source the money;
(3)the following day the applicant moved to his hometown in Kuantan Pahang. After around three months a group of gangsters hit his bike with their car and took him to meet the victim’s relatives in Johore Bahru. The applicant escaped and fled to a friend’s house and then made a police report, however, the police did not take any action;
(4)he fears being killed if he returns to Malaysia because the group of gangsters want revenge for the death of their relative; and
(5)he is Christian and the victim was Muslim. He states that in Malaysia they are “anti to Christian”.
On 17 March 2016, the Delegate refused to grant the applicant the Visa.
On 30 March 2016, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 5 June 2018, the Tribunal emailed the applicant enclosing an invitation for him to attend a rescheduled hearing on 8 August 2018 at 12.00pm to give evidence and present arguments.
On 8 August 2018, the applicant attended the hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Tamil and English languages. The review hearing for GSX18 was held consecutively.
On 16 August 2018, the Tribunal emailed the applicant requesting that any additional information or submissions he wished to make be provided to the Tribunal by 8 September 2018. On 6 September 2018, the applicant submitted additional information. including several media articles, to the Tribunal in support of his case (Post-Hearing Evidence).
On 30 November 2018, the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On the same day, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 30 November 2018 (Tribunal Decision).
At paragraphs [11] – [15] of the Tribunal Decision, the Tribunal summarised the applicant’s claims.
At paragraphs [16] – [17] of the Tribunal Decision, the Tribunal listed the information provided by the applicant and GSX18 in support of their applications, including the Post-Hearing Evidence provided on 6 September 2018, and at paragraph [18] noted that it had regard to all the evidence and information before it.
At paragraph [25] of the Tribunal Decision, the Tribunal found that the harm the applicant feared was serious harm as required by s 5J(4)(b) and the persecution he feared involved systemic and discriminatory conduct as required by s 5J(4)(c) of the Act. However, at paragraph [26], the Tribunal noted that the applicant did not fear harm on the basis of his religion, race, nationality or political opinion, nor could it discern any claim arising from the applicant’s membership of a particular social group, as required by s 5J(1) of the Act.
At paragraphs [27] – [30] of the Tribunal Decision, the Tribunal considered the applicant’s claim that the police or Malaysian authorities failure to protect him was most likely due to his ethnicity and religion. Based on country information and the “general and speculative nature” of the claims, the Tribunal did not accept that the police or Malaysian authorities had or would refuse the applicant protection for one or more of the reasons in s 5J(1).
At paragraphs [31] – [32] of the Tribunal Decision, the Tribunal found that the applicant’s persecutors wanted money or revenge for a personal loss and that none of the reasons in s 5J(1) were the essential and significant reason for the persecution feared by the applicant. Accordingly, the Tribunal concluded that the applicant did not have a well-founded fear and did not satisfy s 36(2)(a).
At paragraphs [33] – [42] of the Tribunal Decision, the Tribunal considered whether the applicant met the complementary protection criteria required by s 36(2)(aa) of the Act. The Tribunal accepted a number of the applicant’s claims including but not limited to:
(1)the harm feared by the applicant constituted serious harm pursuant to s 36(2)(a) and significant harm pursuant to s 36(2A);
(2)the applicant’s evidence about the 2011 incident, including that the applicant was the driver of the vehicle and that he was subsequently charged and found guilty of a serious offence relating to the fatality;
(3)the applicant and his family were targeted in Johor Bahru by people related to the victim and that those people physically assaulted him in 2014 and demanded he pay 300,000 Singapore dollars in compensation;
(4)after receiving the demand, the applicant and his family moved to Kuantan Pahang for safety;
(5)the people who threatened the applicant were the family, friends or relatives of the young man who was killed in the 2011 incident;
(6)the applicant was located in Pahang about three and a half months after he moved there, an attempt to abduct him was made and he escaped;
(7)despite the applicant reporting the abduction to the police, the police did not investigate the incident immediately or pursue his attackers;
(8)the applicant did not intend to stay permanently in Australia which explained why he did not seek protection immediately and that his Visa application was prompted by later threats made to his wife and son; and
(9)sometime in 2018 the men had gone to the applicant’s mother-in-law’s home and threatened that they would kill the applicant and his wife.
At paragraph [40] of the Tribunal Decision, the Tribunal found that the applicant had not established that the Malaysian police had been or would be corrupted by foreign citizens or their Malaysian relatives or associates intent on harming him. Further, the Tribunal found that the risk that Malaysian or Singaporean police had been or would be bribed to assist his persecutors in locating him if he were to relocate within Malaysia was remote or speculative.
At paragraph [42] of the Tribunal Decision, the Tribunal was satisfied that the applicant feared that he, his wife and his children would be assaulted, extorted, killed or abducted by people related to the victim of the car accident or their associates and that the attackers may still be looking for the applicant and his family to cause them harm or to demand money. The Tribunal found that there was a real risk that the applicant and his family would suffer significant harm if they returned to reside in either Johor Bahru or Kuantan Pahang. However, the Tribunal accepted that if the applicant returned to Malaysia, he would choose to reside in another location throughout Malaysia.
At paragraphs [43] – [48] of the Tribunal Decision, the Tribunal considered whether the applicant would face a real risk of significant harm if he returned to Malaysia and resided in a location other than Johor Bahru or Kuantan Pahang. With reference to relocation advice provided in the Department of Foreign Affairs and Trade: Country Information Report, Malaysia 19 April 2018 (DFAT Report) and the information and news articles provided by the applicant, the Tribunal did not accept that crime was rampant and unhindered by effective police or that the applicant’s ethnicity and religion placed him at any increased risk of significant or any harm in Malaysia. The Tribunal considered the evidence before it and did not accept that the family had a profile of any particular or heightened risk of harm when compared to other members of Malaysian society if they were to return to Malaysia and live outside of their former residential areas. The Tribunal ultimately found that based on the information before it, the real risk of significant harm is localised in the applicant’s prior residential areas and that the risk he would suffer significant harm outside Johor Bahru or Kuantan Pahang by his attackers or for any other reason was remote.
At paragraphs [49] – [51] of the Tribunal Decision, the Tribunal considered the circumstances of the applicant and his family, noting that the applicant did not raise any specific personal characteristics that would impact on their capacity to relocate and re-establish themselves in Malaysia, with the exception of the significant harm from his persecutors, which the Tribunal found to be remote if located outside of his previous home areas. The Tribunal made note of the applicant’s proven resilience and resourcefulness which would assist him in re-establishing himself and his family. Accordingly, the Tribunal found that the applicant and his family could reasonably relocate to an area of Malaysia where they would not face a real risk or significant harm or any other harm. He therefore did not meet s 36(2)(aa) of the Act.
Accordingly, at paragraph [53] of the Tribunal Decision, the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 28 December 2018. The applicant filed an Amended Application on 28 January 2025.
The Amended Application contains the following four grounds for judicial review (without amendment):
The Applicant contends that the Second Respondent’s decision to refuse his application on the basis that he does not meet the refugee criterion in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) is invalid on several jurisdictional grounds. The Applicant further submits that the Tribunal has committed jurisdictional errors in assessing his matter by not giving adequate weightage to materials submitted, irrelevant consideration of Country Information Reports and dealing with illogical considerations. Finally, the Applicant raises issues that he has been denied procedural fairness due to the nature of the review conducted by the learned Tribunal member.
1.GROUND 1 – INADEQUATE WEIGHTAGE TO MATERIALS SUBMITTED
Particulars
A.The Tribunal member failed to give due weightage to the evidence submitted by the Applicant to establish the risk of persecution and harm in his home country. The below mentioned findings of facts by the Tribunal member should note the Applicant’s advantage:
(a)In reference to paragraphs 16 and 17 of the decision record, the applicant submitted materials in support of his claims included statement recorded under Singapore Criminal Procedure Code 2010, photographs showing injuries to applicant, death certificate of Mrs. Devadu Bangariah (mother-in-law of the applicant), articles and reports on child abduction, links between gangs, corruption in government and corruption within Malaysian police.
(b)In analysis, Despite accepting the materials submitted, the tribunal member failed to given adequate weightage to them in determining the well-founded fear of persecution. In paragraph 42 of the decision record, the member explicitly states that “Based on these findings of facts, I am satisfied that the applicant fears that he, his wife, and his children will be assaulted, extorted, killed or abducted by people related to the victim (or their associates) killed in a car accident in July 2011”. However, in paragraphs 46, 48 and 49 of the decision record, contradicting her findings, the member did conclude that the Applicant and his family would not suffer significant harm or persecution if returned to their home country.
(c)Furthermore, the Tribunal member failed to consider and provide weight to the applicant’s evidence of attempts to relocate other parts of Malaysia and being found by his attackers (reference to paragraphs 45 and 46 of the decision record). The member placed minimum or no weight on this evidence in determining the possibilities of relocation by the applicant and concluded that the applicant and his family could relocate to other parts of Malaysia, except Johor Baharu (referring to paragraphs 48,49, and 50).
(d)Accordingly, the Tribunal member failed to consider and give due weightage to the facts and materials submitted by the applicant as a whole and logically in establishing his well-founded fear of persecution. Instead, the member merely exaggerated her speculations without convincing evidence that caused a disadvantage to the applicant.
2.GROUND 2 – IRRELEVANT CONSIDERATION OF COUNTRY REPORT INFORMATION
Particulars
A.The Tribunal member considered the country information contained in reports by the Department of Foreign Affairs and Trade (DFAT) about police protection, Indian ethnicity, Christian faith, and freedom of internal movement (Paragraphs 28,29 and 44). These reports are general and non-specific and do not reference similar cases to the applicants’
B.The member also erred in his country report comparison as she failed to answer the critical question of how similar the cases in the country information reports are being compared. In Appellant S395/2002 v MIMA, McHugh and Kirby JJ explained that: “It is a mistake to assume that because members of a group are or are not persecuted, as the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a well-founded fear of being persecuted for reasons of…membership of a particular social group”.
C.The applicant’s matter is distinct, subjective, and anomalous. The DFAT reports considered by the Tribunal member are entirely irrelevant to the applicant’s case, and the decision based on this finding is wrong in ab-initio.
3. GROUND 3 – ILLOGICAL AND IRRATIONAL CONSIDERATION
Particulars
A.The possibilities of safe relocation to areas other than Applicant’s locality were decided by the Tribunal member based on illogical and irrational considerations, as noted below:
(a)“So far applicant has only been located in his home in Johor Bahru and in the place of his birth and there is only a speculative or remote risk that the persecutors would locate him with the assistance of the Malaysian police by bribing them” (paragraph 40).
(b)“While hiding in Kuala Lumpur the applicant was not located by his attackers and therefore Kuala Lumpur is a possible place of relocation” (paragraph 46).
(c)“Bearing in mind the size of Kuala Lumpur, I consider the fact that he was not located there is a reasonable indicator that there is no real risk that he would be located by his persecutors” (paragraph 46).
(d)“Kuala Lumpur or Penang have no links with the applicant, being far from any part of the country in which he has lived in its past” (paragraph 48).
B.The above statements of the learned Tribunal member clearly indicates that she has ascertained the possibilities of safe relocation only based on distance, population and the size of the cities, but not with logical, plausible and convincing evidence. Hence, this finding is entirely vague and the decision is wholly irrational and illogical, amounting to a jurisdictional error.
4. GROUND 4 – DENIAL OF PROCEDURAL FAIRNESS
Particulars
A.Denial of procedural fairness can be linked to the ‘legitimate expectation’ which was used by Haoucher v Minister for Immigration & Ethic Affairs (1990) and indicates “that an interest less than a right may nevertheless warrant the protection of rules of natural justice or, as it now more commonly called, procedural fairness”. The applicant had a legitimate expectation that his expectation that his application would be considered in accordance with laws of procedural fairness, however due to the reasons mentioned above the applicant was denied procedural fairness.
B.Based on the aforementioned four grounds and particularly Ground 1 and 2, of not giving adequate weightage to materials submitted and considering irrelevant country report information, the Tribunal member has erred in following procedural fairness. As a result, the decision is arbitrary in omnibus.
Based on the first, second, third and fourth grounds, the Tribunal did not provide adequate weightage to material submitted, based its findings on irrelevant considerations, dealt illogically and subsequently made errors of law. For these reasons, the applicant appeal to the Honourable Court for a fair review and relief to be provided by means of orders sought.
The applicant also filed the following material:
(1)an affidavit filed on 28 December 2018 which annexed the Tribunal Decision;
(2)an affidavit filed on 28 January 2025 which further set out the background and claims for protection; and
(3)written submissions filed on 4 February 2025.
The Minister filed a Response on 8 March 2019. The Response contained the following grounds:
1.The application filed on 28 December 2018 seeks judicial review of a decision of the Administrative Appeals Tribunal (AAT) dated 30 November 2018. The AAT affirmed a decision not to grant the applicant a protection visa.
2.The application pleads seven grounds of review which, in the absence of any particularisation, are devoid of any meaning, the first respondent accordingly opposes all orders sought by the application on the basis that no arguable case for the relief sought is raised.
The Minister also filed written submissions on 17 February 2025.
The Hearing
The hearing took place on 3 March 2025.
As set out above, the applicant is the husband of GSX18 and the father of GTH18 in the matter MLG3946/2018. The applicant and GSX18 lodged separate applications for judicial review.
The application for judicial review in MLG3946/2018 was heard immediately after the present application.
The applicant was represented by Mr Karunadasa, solicitor of TAI Lawyers and the Minister was represented by Ms Liddy, solicitor of Sparke Helmore.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at section 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal Decision: section 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Ground 1
By Ground 1 the applicant submits that the Tribunal failed to consider the evidence provided by the applicant and did not accord appropriate weight to the applicant’s evidence. In his written submissions, the applicant submits that the Tribunal made a significant error in asserting that the applicant and his family do not face a risk of serious harm if returned to Malaysia. In oral submissions and in the Amended Application the applicant submitted that:
(1)the Tribunal failed to consider and give sufficient weight to the applicant’s evidence regarding his mother-in-law’s illness and that the applicant believed that the mother-in-law’s illness was caused by the stress of her daughter’s situation;
(2)the Tribunal failed to consider and give sufficient weight to the applicant’s evidence of his attempts to relocate and being found by his attackers; and
(3)while the Tribunal accepted that the applicant had been kidnapped it did not give sufficient weight to this evidence.
These submissions must be rejected.
Firstly, contrary to the applicant’s written submission, at paragraph [42] of its decision the Tribunal did find that there were substantial grounds “for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia there is a real risk that they will suffer significant harm if they were to return to reside in either Johor Bahru or Kunantan Pahang.” However, the Tribunal found that the applicant and his family could reasonably relocate within Malaysia where they would not face a risk of significant harm. In addition, it is to noted that at paragraph [26] of its decision the Tribunal had earlier found that the applicant feared serious harm as required by s 5J(4)(b) and the persecution he feared was systematic and discriminatory conduct as required by s 5J(4)(c). However, the Tribunal found that the harm feared was from a personal vendetta due to a car accident in Singapore and not because of his religion, race, nationality, political opinion or because of his membership of a particular social group such as to engage s 5J(1)(a).
Secondly, contrary to the applicant’s submission. the applicant’s mother-in-law’s illness was considered and accepted by the Tribunal at paragraph [41], where it said:
The applicant’s mother-in-law has a brain tumour and is in hospital and they believe that her illness has been caused by stress of what was happening to her daughter. The men want her home prior to her hospitalisation in 2018 to ask where the applicant and his wife were. They told her that they will kill him and his wife. Subsequently, the applicant’s mother in law’s health has severely deteriorated and they consider that is because of the threats made to her daughter. I observed the distress with which this information was relayed at hearing by the applicant and also by his if and I accept that this threat occurred, and that the applicant’s mother in law is very unwell.
Thirdly, contrary to the applicant’s submissions, at paragraph [45] and [46] the Tribunal considered the applicant’s attempts to relocate and took into account that the applicant had been located in Pahang, but found that locating the applicant at his known address did not indicate any great capacity in his attackers to find him “throughout the country”. The Tribunal took into account that the applicant had not been located while staying in Kuala Lumpur and that the applicant himself believed that he would be able to return and relocate to another part of the country after a short stay in Australia.
Fourthly, in so far as those submissions go to the weight the Tribunal gave particular evidence, the weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (Lee) at [27].
Accordingly, I accept the Minister’s submission that it is apparent from the Tribunal’s decision that the Tribunal had regard to the applicant’s claims and evidence, applied the statutory framework and made findings that were open to it.
Ground 1 therefore discloses no jurisdictional error.
Ground 2
By Ground 2 the applicant submits that the Tribunal took into account irrelevant considerations by relying on information contained in the DFAT Report.
In oral submissions the applicant conceded that it was open to the Tribunal to consider the DFAT Report. However, it was submitted that too much weight was placed on the DFAT Report. It was then submitted that the Tribunal failed to have regard to the information and media articles provided by the applicant to the Tribunal. There was then a further submission that the DFAT Report is material of a general nature and the Tribunal should have given greater weight to the material provided by the applicant.
For the following reasons, these submissions must also be rejected.
Firstly, the Tribunal may get any information that it considers relevant and the weight it gives to that information is a matter for it to determine as part of its fact-finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
Secondly, it is clear from paragraph [47] of the decision (noting also that the media articles are specifically identified at paragraph [17] of the decision) that the Tribunal did have regard to the material provided to it by the applicant. However, for the reasons set out in that paragraph, whilst accepting that crime takes place in Malaysia as in every country, the Tribunal did not accept that crime, particularly murder and kidnapping, is “rampant” and unhindered by effective police. It did not accept that the victims of the crimes referred to in the articles were of a particular racial or religious profile. The Tribunal did not accept that the articles evidence an endemic or widespread problem in relation to citizens of Indian ethnicity being subject to abuse by police. The Tribunal did not accept that the applicant’s ethnicity and religion and that of his wife and children placed him at any increased risk of significant harm or any harm in Malaysia in any of the areas he would likely return to. The Tribunal did not accept the articles established where the applicant and his family would be at particular or heightened risk of harm when compared to other members of Malaysian society if they were to return to Malaysia and live in a part of Malaysia outside of their former residential areas.
Thirdly, at paragraph [44] of its decision, the Tribunal sets out ss 5.18 – 5.21 of the DFAT Report and at paragraph [45] records that it discussed the possibility of relocating within Malaysia with the applicant “and the relocation advice given by DFAT above.” Accordingly, the applicant was given an opportunity to address the country information and did so.
Fourthly, as submitted by the Minister, it was open to the Tribunal to prefer the country information to the evidence of the applicant. The country information provided an evident, transparent and intelligible justification for the Tribunal to find that the applicant and his family could relocate within Malaysia.
Ground 2 therefore discloses no jurisdictional error.
Ground 3
By Ground 3 the applicant submits that the Tribunal’s findings as to the applicant’s ability to relocate were illogical and irrational.
In written submissions the applicant submits that in concluding that the applicant and his family could reasonably relocate within Malaysia, the Tribunal failed to undertake a “comprehensive evaluation” of relevant considerations. In the Amended Application the applicant contends that the Tribunal determined relocation was reasonable based solely on distance, population and the size of the cities. Further, in oral submissions the applicant submitted that if the Tribunal had given proper weight to the applicant’s evidence it would have formed a different view. Finally, in oral submissions the applicant submitted that when he was kidnapped his identity card was stolen and as a consequence, he will be able to be located wherever he is resident in Malaysia (Identity Card Claim).
The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
In MZANX v Minister for Immigration and Border Protection [2017] FCA 307 Mortimer J (as she then was) held at [51] that in considering the reasonableness of relocation there must be a “sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location”, and what the applicant’s anticipated life would look like in that location (at [65]). Further, the Court held at [55] that general statements will be insufficient and that the particular circumstances of the individual (such as personal strengths and weaknesses, skills, material and family support) will need to be considered in detail.
At paragraph [50] the Tribunal said:
The applicant has work experience as a port worker and driver. His wife has experience working at Singapore Airport. Their children are young but there are no reported health concerns. Although the applicant’s surviving family (and that of his wife) are located in Kuantan Pahang, they have a history of living independently from their families, with extended periods of residence in Johor Bahru, Singapore and now Australia. The applicant did not raise any specific personal characteristics which would impact on his or his wife’s capacity to relocate and re-establish themselves throughout Malaysia, apart from his fear that they would be located and face significant harm from his persecutors; a risk that I have determined is remote outside his home areas of Johor Bahru and Kuantan Pahang. The evidence before me does not suggest or establish that the applicant and his family would face any other harms (significant or lesser harms) in other parts of the country. The applicant has worked in Australia, has participated in the community and has proven to be resilient and resourceful. I consider that these qualities, along with the support of his family including of course his wife and young family, would stand him in good stead in terms of re-establishing himself in Malaysia. There is no information or evidence before me which suggests that conditions relating to housing, employment, schooling in Kuala Lumpur or other parts of Malaysia would render relocation unreasonable. I find that the applicant (and his family) could reasonably relocate to an area of Malaysia where they would not face a real risk of significant (or any other) harm.
In light of paragraph [50], I accept the Minister’s submissions that in relation to relocation the Tribunal considered:
(a)the applicant and his wife’s employment experience;
(b)the age and health of the applicant’s children;
(c)the applicant’s history of living independently from his family in Kuantan Pahang;
(d)that the applicant did not raise any specific personal characteristics for himself or his wife which would impact on their ability to relocate within Malaysia;
(e)the applicant and his wife’s contribution to the community in Australia;
(f)the applicant’s proven ability to be resilient and resourceful;
(g)the support of the applicant’s family, including his wife and young children;
(h)that there was no evidence to suggest that relocation would be unreasonable due to housing, employment or schooling conditions in other parts of Malaysia.
Accordingly, any contention that the Tribunal did not undertake a comprehensive analysis and relied solely on distance, population and the size of the cities must be rejected.
I consider that the Tribunal’s finding that it was reasonable for the applicant and his family to relocate was open to it on the evidence before it. I address the assertion that the Tribunal incorrectly states in paragraph [50] that the applicant’s wife has experience working at Singapore airport below.
As to the submission that if “proper” weight had been given to the applicant’s evidence a different conclusion would have been reached, as already set out, the weight to be given to particular evidence is a matter for the Tribunal: Lee at [27]. In my view, this submission, in effect, seeks impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 (Liang) at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
Finally, as to the Identity Card Claim, the applicant conceded that this claim was not before the Tribunal. Accordingly, no error can arise as a result of the Tribunal not considering material that was not before it. Once again, in my view, this submission in effect seeks impermissible merits review: Liang at [272].
Ground 3 therefore discloses no jurisdictional error.
Ground 4
By Ground 4 the applicant submits that the Tribunal denied the applicant procedural fairness by misrepresenting the wife’s employment background.
As set out above, at paragraph [50] the Tribunal said that the wife had experience working at Singapore Airport. The Minister concedes that this does not appear in any of the materials which were before the Tribunal but submits that it is a typographical error. It is submitted that when read as a whole there is no error in the Tribunal’s reasoning process. The Minister relies on CRI012 v Republic of Nauru [2018] HCA 19 at [57] (CRI012). It is further submitted that had the Tribunal correctly recorded the applicant’s wife’s employment history, it would have reached the same conclusion and accordingly the error is not material.
I reject the submission that the statement as to the wife’s employment history was a typographical error. There is nothing in the Tribunal’s decision to support this contention. It is in no way analogous to the type of error considered by the Court in CRI012.
However, I accept the submission that when read as a whole there is no error in the Tribunal’s reasoning process and that the error is not material. Even if the applicant’s wife’s employment history had been correctly stated, reflecting her employment as a cashier, rather than at Singapore airport, there is no realistic possibility of a different outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152 at [13]-[14].
For completeness, the Tribunal’s proceedings were conducted under Part 7 of Division 4 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard. The applicant was validly invited to attend a hearing before the Tribunal in accordance with ss 425 and 425A of the Act. As stated above, the applicant attended the hearing on 8 August 2018 and gave evidence with the assistance of an interpreter in the Tamil and English languages.
In making its decision, the Tribunal considered and relied on the applicant’s protection claims contained within his Visa application, his oral evidence provided at the Tribunal hearing, country information, the written evidence provided by the applicant to the Department and the Post-Hearing Evidence provided by the applicant to the Tribunal on 6 September 2018. Accordingly, there was no information the Tribunal was required to put to the applicant pursuant to s 424A of the Act.
Accordingly, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act. There was no failure to accord procedural fairness to the applicant.
Ground 4 also therefore discloses no jurisdictional error.
Additional matters
Children
The applicant has three children. The eldest child is included in GSX18’s application for protection. In his written submissions the applicant seeks that his two youngest children be included in the review application. It is submitted that the youngest child (born in 2020) has autism and pressing medical needs and that the Convention on the Rights of the Child (CROC) require the Court to render the child’s best interests as a primary consideration.
Whilst I am sympathetic to the applicant’s position, those submissions must be rejected.
Section 477 of the Act provides, inter alia, for an application for judicial review to be made to this Court in relation to migration decisions. Section 478 of the Act provides who may make such an application and provides as follows:
Persons who may make application
An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:
(a)if the migration decision concerned is made on review by application under Part 5 or section 500--the applicant in the review by the ART; or
(b)in any other case--the person who is the subject of the decision; or
(c)in any case--a person prescribed by the regulations.
It is uncontested that art 3 of the CROC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
However, no claim for protection was ever made for the two youngest children and no decision has ever been made in respect of them. At paragraph [10] of its decision the Tribunal notes that the applicant’s wife’s claim includes the eldest child only and that they have a second child who is not subject to the review. The youngest child was not yet born.
Accordingly, pursuant to ss 477 and 478 of the Act, this Court has no jurisdiction in relation to the two youngest children and no application can be made in respect of them. It is therefore not open to this Court to simply include the two youngest children in this proceeding.
The additional matters therefore do not disclose any jurisdictional error.
DISPOSITION
For the above reasons, the Amended Application must be dismissed.
The Minister seeks an order that the applicant pay its costs fixed in the amount of $5,000. I note that this is below the scale provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and shall grant accordingly.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 April 2025
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