GWW24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1293
•13 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GWW24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1293
File number: PEG 341 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 – where the applicant asserts an unspecified jurisdictional error – whether the Tribunal’s conclusion was based on personal opinion rather than fact – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 5AAA, 5H, 5J, 36, 65, 415, 424A, 425, 425A, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112
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 SZMDS (2010) 240 CLR 611; [2010] HCA 16
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
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347; [1994] FCA 1105
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 31 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 341 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GWW24
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. 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 judicial review application, which amount to an unparticularised assertion that the decision-maker made a jurisdictional error and an assertion that the finding that the applicant would not face harm if returned to Malaysia is purely based on personal opinion and not on any facts.
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 12 November 2018 the applicant applied for a protection visa. The applicant claimed he left Malaysia because he was chased by a loan shark for a loan made by his father and that he might be arrested by the loan shark if he were to return to Malaysia.
On 5 March 2019 a delegate of the Minister refused to grant the applicant a protection visa.
The applicant applied to the Tribunal for merits review of the delegate’s decision on 12 March 2019.
The Tribunal sent an email to the applicant on 27 February 2024 requesting that he complete a pre-hearing information form. The applicant completed this form and returned it to the Tribunal on 2 March 2024.
On 12 August 2024 the applicant was invited to attend a hearing before the Tribunal on 27 August 2024 to give evidence and present arguments in relation to the issues arising in the review. The applicant attended the hearing and was assisted by an interpreter.
On 27 August 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
Refugee criterion
The Tribunal found that the applicant’s claimed risk of harm, being the fear of possible violence from money lenders utilised by his father, did not arise because of a refugee nexus reason. The refugee nexus reasons are race, religion, nationality, membership of a particular social group or political opinion: s 5J(1) of the Migration Act. The Tribunal considered that parental debt is not an immutable characteristic and that there was no evidence the debt or the interest accruing was of an amount that might make it ‘immutable’. The Tribunal further considered that there was no evidence that there was any lasting and unchangeable consequence of the alleged debt.
The Tribunal was therefore not satisfied the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act.
Complementary protection criterion
The Tribunal had regard to country information for Malaysia which suggested that there is a risk for those who are genuinely indebted to illegal moneylenders.
However, the Tribunal did not accept the applicant’s evidence that he was at risk of harm because his father was in debt to illegal lenders. The spontaneous evidence that the applicant gave to the Tribunal in person was that he came to Australia to work because of economic problems that affect the population of Malaysia generally. Only on being asked whether his father was in debt did the applicant restate his original claims.
The Tribunal considered that the applicant’s restatement of his earlier claims was not consistent with his previous articulation of them to the Tribunal in the pre-hearing response form. The Tribunal put to the applicant discrepancies in the various articulations of the applicant’s claims and found his answers were not persuasive.
The Tribunal did not accept the applicant’s evidence that he was beaten up by debt collectors on more than five occasions as he raised this only on specific questioning by the Tribunal and his description of what had occurred was vague.
The Tribunal accepted the applicant’s evidence that he came to Australia to work, that his father was not at the time of the Tribunal decision under threat from an illegal lender, that the applicant had not taken over any loan for his father and was not liable for payments, that no-one was at the time of the Tribunal decision tracking the applicant, and that his father had declined offers of financial assistance from the applicant because he did not need them.
The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of removal to Malaysia there was a real risk that the applicant would suffer significant harm. The Tribunal was therefore not satisfied the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 5 September 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 grounds as follows (reproduced without alteration):
1.The decision made to refuse my protection visa application by the decision maker has a jurisdictional error.
2.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely on his personal opinion and not any facts.
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 15 November 2024; 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 2
It is convenient to first address ground 2 of the application, as that is the more specific ground raised by the applicant.
Ground 2 amounts to an assertion that the Tribunal’s finding that the applicant would not face the requisite risk of harm in Malaysia to engage Australia’s protection obligations was based on the personal opinion of the Tribunal and not on fact.
It is unclear the precise nature of the jurisdictional error that the applicant asserts in advancing this ground.
The Minister in his written submissions addressed ground 2 as raising an allegation of bias. At the hearing, I explained to the applicant the nature of a bias ground and that, if he was alleging bias, the allegation would need to be proved by evidence. I told the applicant, as a matter of procedural fairness, that he could request an adjournment to provide further evidence, and if he sought further time to provide evidence, I would hear from him about the evidence he proposed to file and I would hear from the Minister’s lawyer about whether the applicant should be afforded more time.
The applicant did not request any additional time to provide evidence and did not make any submissions alleging that the Tribunal decision was affected by bias.
In circumstances where the Minister has addressed the ground as including an allegation of bias, I will consider the ground on this basis, notwithstanding the lack of relevant submissions or evidence from the applicant.
An allegation of bias is a serious allegation that must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. To establish actual bias, the applicant would need to establish that the Tribunal approached its task with a pre-existing state of mind that was not open to persuasion: Jia Legeng at [71]-[72]. To establish apprehended bias, the applicant would need to establish that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have approached the review with an open mind: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [37].
The applicant has not clearly articulated why (or if) he believes the Tribunal decision is affected by bias and has not filed or identified any evidence before the Court that would establish bias. There is nothing obvious in the evidence before the Court that suggests any possibility of bias. In these circumstances, the applicant has not established that the Tribunal decision is affected by actual or apprehended bias and I accept the Minister’s submissions in this regard.
The applicant also has not established that the Tribunal made a jurisdictional error by making a decision that was not based on fact.
It was the responsibility of the applicant to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim: s 5AAA of the Migration Act. The Tribunal, exercising the same powers and discretions as the Minister’s delegate, was required to affirm the delegate’s decision, with the effect that the decision to refuse to grant the visa remained operative, if it was not satisfied that the applicant met all relevant criteria for the grant of the visa: see ss 65 and 415 of the Migration Act. The Tribunal was not required to have rebutting evidence or otherwise disprove the applicant’s claims before it rejected them: Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347; [1994] FCA 1105 at 348.
As outlined in the Minister’s submissions, the Tribunal in the present case expressed multiple concerns with the applicant’s evidence and, based on these concerns, rejected the applicant’s claims to be at risk from a loan shark. The Tribunal’s concerns included that:
(a)the applicant gave spontaneous evidence that he came to Australia to work because of economic problems in Malaysia that affect the population generally, and he only restated his original claims that his father had borrowed from an illegal lender when asked whether his father was in debt;
(b)there were inconsistencies in the applicant’s restatement of his claims, when compared to his articulation of his claims in his protection visa application and pre-hearing response form and, when the discrepancies were put to the applicant, his responses were not persuasive;
(c)the applicant’s insistence that he completed the pre-hearing response form himself but had asked a friend to sign it was strange given his lack of familiarity with the form, and his attempt to cover that lack of familiarity by changing his answers to the Tribunal’s questions was ‘disingenuous and reflected poorly on his honesty as a historian’;
(d)there was delay between the applicant’s arrival in Australia and his application for a protection visa, which he said was a deliberate choice as he wanted to finish his holiday; and
(e)he only raised his claim to have been beaten up five times by debt collectors on specific questioning from the Tribunal and his description of what occurred was vague.
I accept the Minister’s submission that the Tribunal assessed the information before it and reached conclusions that were logical, rational and reasonable on the evidence before it. The applicant has not shown that the Tribunal decision was based on opinion not fact.
Ground 2 is not established.
Ground 1
Ground 1 is a general and unparticularised assertion of jurisdictional error.
At the hearing, I explained to the applicant that the ground does not contain sufficient detail for the Court to properly understand the jurisdictional error that the applicant asserts, and I gave him examples of types of jurisdictional errors that sometimes arise in migration cases.
The applicant confirmed that he understood the Court’s explanations. I offered to stand the matter down briefly to give him an opportunity to consider his submissions to the Court, but the applicant declined that offer.
When I invited the applicant to make oral submissions and give more information about why the Tribunal made a jurisdictional error, the applicant submitted that he does not know whether the Tribunal made a jurisdictional error and he just asked a friend to help him to apply for a visa. In his reply submissions, after hearing the Minister’s submissions, the applicant submitted that he just wants to get the visa because he wants to help his family.
These oral submissions do not assert or establish any jurisdictional error in the Tribunal decision.
I have reviewed the material before the Court to see if there is any obvious jurisdictional error or any jurisdictional error that is sufficiently arguable on the face of the materials before the Court that it needs to be raised with the Minister’s lawyer. I took this approach having regard to cases that address the Court’s obligations to self-represented litigants in migration cases, such as COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] and MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [100] and [112].
There is nothing in the materials before the Court to suggest that there is any jurisdictional error in the Tribunal decision.
Further to the issues discussed in the context of ground 2, I make the following observations.
The Tribunal correctly identified that the issue before it was whether the applicant was entitled to protection pursuant to the refugee criterion or the complementary protection criterion, or as a person who is a member of the same family unit as a person who is entitled to and holds a protection visa. The Tribunal correctly identified and summarised the relevant law that it was required to apply, particularly that set out in ss 5H, 5J and 36 of the Migration Act. There is nothing before the Court to suggest that the Tribunal misunderstood or misapplied the relevant law, or that it asked itself the wrong question.
Based on the applicant’s claims as articulated in his protection visa application and his pre-hearing information form, as well as the summary in the Tribunal’s reasons of the oral evidence the applicant gave at the hearing, it appears that the Tribunal considered each of the claims for protection advanced by the applicant and their component integers: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55].
I accept the Minister’s submission that the Tribunal complied with its procedural fairness obligations as set out in the Migration Act. The Tribunal invited the applicant to attend a hearing, as required by s 425 of the Migration Act. The notice of the invitation, sent to the applicant by email on 12 August 2024, complied with the formal requirements set out in s 425A of the Migration Act. There is nothing before the Court to suggest that the invitation to attend a hearing was not a real and meaningful one. There was no information before the Tribunal that the Tribunal was required to put to the applicant for comment pursuant to s 424A of the Migration Act, as the information relied on by the Tribunal, namely, the written documents the applicant provided to the Department and the Tribunal, the applicant’s oral evidence to the Tribunal and country information, fell within the exceptions to s 424A(1) set out in s 424A(3)(a), (ba) and (b) of the Migration Act.
None of the material relied on by the applicant was irrelevant material that the Tribunal was prohibited from taking into account. I also have not identified any evidence or other material in the court book that was before the Tribunal and that the Tribunal was required to, but did not, take into account.
There is nothing in the evidence before the Court to suggest that the Tribunal acted unreasonably in the exercise of its discretionary powers or in its fact finding. The Tribunal’s decision was open to it on the evidence before it and was not illogical or irrational: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131], [135].
Ground 1 is not established.
CONCLUSION
Given my findings above that the applicant has not established jurisdictional error, the application for judicial review must be dismissed.
The parties made submissions on costs at the hearing. The Minister seeks an order that the applicant pay the Minister’s costs in the amount of $6,500 if the Minister is successful in this matter. The Minister has been successful and I am satisfied that the quantum of costs sought by the Minister, which is less than the amount indicated for matters resolved at final hearing set out in Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), is appropriate having regard to the work required to be performed on behalf of the Minister in this matter.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 13 August 2025
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