HLB24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1527
•18 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
HLB24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1527
File number: PEG 343 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 18 September 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 failed to properly consider new claims raised at the hearing – whether the Tribunal misinterpreted or gave insufficient weight to documents provided by the applicant – whether the Tribunal failed to afford the applicant a fair hearing – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 424A, 425, 425A, 476
Cases cited: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
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
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Tran v Minister for Immigration and Multicultural Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 5 September 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 343 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HLB24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
18 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa in Australia. In his protection visa application, which was made on 16 October 2018, the applicant claimed that he left Malaysia for economic reasons. A delegate of the Minister refused to grant the applicant a protection visa on 28 February 2019.
The applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. The applicant attended a hearing convened by the Tribunal on 30 August 2024. At this hearing, the applicant indicated that he did not rely on the claims in the protection visa application and instead raised new claims alleging that he had arranged a loan from a credit company, but an employee of the credit company fraudulently used his documents to borrow money from a loan shark, who since tried to recover the debt from the applicant. The applicant claimed that he feared for his safety because of the loan shark.
The Tribunal affirmed the delegate’s decision on 5 September 2024. The Tribunal expressed some concerns about the credibility of the new claims raised by the applicant and was not satisfied that the applicant engaged Australia’s protection obligations under 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 seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act. The grounds raised by the applicant assert that the Tribunal made a jurisdictional error because it:
(a)focused primarily on the claims raised in the applicant’s protection visa application and gave insufficient attention to the new claims raised at the hearing based on a threat from a loan shark;
(b)misinterpreted or gave insufficient weight to documents that the applicant provided to the Tribunal at the hearing in support of his new claims; and
(c)failed to afford him a fair hearing, as its questioning of the applicant was biased and there were translation issues that prevented the applicant from properly conveying the details of his case.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application to this Court is therefore dismissed.
JUDICIAL REVIEW APPLICATION
The applicant filed his judicial review application on 19 September 2024. That application contained three grounds which are set out later in this judgment. The applicant also filed an affidavit which repeated the grounds of application and annexed a copy of the Tribunal decision.
The applicant did not file any amended application or written submissions ahead of the hearing.
The only other evidence before the Court is the court book filed by the Minister on 5 November 2024.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Ground 1: Did the Tribunal fail to adequately address the new claims raised by the applicant at the Tribunal hearing?
Ground 1 reads:
The Tribunal focused primarily on the initial claims in my protection visa application and gave insufficient attention to the new claims I raised during the hearing regarding threats from loan sharks. These claims were not adequately addressed. The Tribunal failed to fully consider the serious threats to my safety posed by loan sharks, which were crucial to my case.
As can be seen from the ground, the applicant asserts that the Tribunal addressed his original protection claims, but failed to adequately address the new claims he raised at the hearing. The applicant did not advance any submissions in support of this ground.
The ground is not established. The Tribunal’s reasons demonstrate that the Tribunal was aware that the applicant no longer relied on the claims in his protection visa application. Further, the Tribunal in its reasons summarised the evidence that the applicant gave at the hearing, and considered the evidence and claims raised for the first time at the hearing. The applicant has not established that the Tribunal failed to consider those claims or that it made findings about the claims that were not open to it on the evidence before it.
The Tribunal’s reasons demonstrate that it was aware the applicant did not rely on his claims in the protection visa application
The Tribunal recorded at [5] of its reasons:
At the hearing, the applicant confirmed that he had completed his protection visa application with help of a friend and that he had signed the application. The applicant confirmed that he no longer relies on the claims raised in his protection visa application and that he does not want to return to Malaysia due to fear for his safety regarding claims raised at the hearing, which are discussed below.
The Tribunal again recorded at [24] of its reasons that ‘the applicant expressly confirmed that he no longer relies on the claims in his protection visa application and that he would be able to secure employment to sustain himself if he returned to Malaysia and he does not fear any harm on that basis’.
Having recorded that the applicant no longer relied on the claims in his protection visa application, the Tribunal did not make further findings in relation to those claims. It was not required to do so in circumstances where the applicant no longer relied on those claims.
The Tribunal considered the new claims raised by the applicant at the Tribunal hearing
The Tribunal then proceeded to consider the new claims raised by the applicant at the hearing.
The Tribunal summarised the evidence given by the applicant at the hearing at [25]-[29] of its reasons. In these paragraphs, the Tribunal said:
25.At the hearing, the applicant raised completely new claims. The applicant’s evidence at the hearing was, in my view, presented in a vague and confused manner. After repeated questioning and seeking clarification, essentially his evidence is that in June 2017 he had approached CIM Credit SDN BHD, a credit company, to borrow money so he could travel to Australia and work. He stated that he was advised to make an advance payment of 4,822 ringgits after which he would receive a loan of 50,000 ringgits and would be refunded the advanced payment. The applicant stated that after he borrowed the 4,822 ringgits from a friend and made the advanced payment, he did not receive the loan amount of 50,000 ringgits as promised and that he was blocked from the WhatsApp group chat. He stated that he then realised that he had been scammed by ‘[name omitted]’ who I note is mentioned in the letter as an employee of the credit company who is said to have briefed the applicant about the loan and advanced payment. The applicant claimed that after realising that he was defrauded of 4,822 ringgits, he reported the matter to the police and was told that the matter would be investigated.
26. The applicant claimed that he then received a call from an unknown number asking him to repay the 50,000 ringgits. That is when he realised that [name omitted] had used his identity to borrow money from a loan shark and had given the loan shark the applicant’s identity documents and payslips. The applicant said that he received the call sometime around 20 June 2017 and that he told the caller that he had not borrowed any money and to stop harassing him.
27. When asked about what else happened, given that the applicant remained in Malaysia living at his family home and working at the same place for another year before coming to Australia, the applicant said that around the time of the Chinese New Year in 2018, ‘they’ came to his house to collect the debt. The applicant got into a fight with the person at his house and pointed to a scar on his hand claiming that the scar was because of that fight. When asked, the applicant said that he reported the matter to the police and gave a statement to the police so they could investigate the matter, but the police did not do anything. When asked if he had the police report or a copy of the statement, the applicant said that he had to look for it at home. Later during the hearing when I expressed concern that the applicant has not provided any other evidence to substantiate his claims, he did not offer to provide the police reports claimed to be at his home.
28. When asked about any further incidents, the applicant stated that he received phone calls threatening that if he did not pay the money, they would go to his house, and that he moved to another place to hide. When referred to his earlier evidence where he confirmed that he had only ever resided at his family home during his time in Malaysia, the applicant said that he did not know that he had to mention places where he went to hide. When I expressed that I had asked if he had lived anywhere else apart from his family home in [place omitted], he had responded in the negative. The applicant expressed his agreement and did not offer another explanation for his failure to mention that he had moved outside of his family home at any time while in Malaysia.
29. When asked if anything has happened to his family while he has been in Australia since 2018, the applicant responded in the negative and then said that his family members told him that people are hanging around and seeing if the applicant is there.
The Tribunal found the applicant’s evidence at the hearing was presented in a vague and confused manner and it had significant concerns with the applicant’s newly raised claims. The Tribunal’s concerns about the applicant’s evidence included that the evidence was provided at such a late stage and that the evidence at the hearing evolved to support the applicant’s narrative that he continued to be of interest to the loan sharks. The Tribunal did not consider that the documentary evidence provided by the applicant supported his claims. Further, the Tribunal noted that the applicant did not provide supporting evidence such as police reports or statements from his family members in Malaysia who he claimed were aware of the issues and had been approached by loan sharks warning that the applicant would be harmed if he returned to Malaysia.
The Tribunal was prepared to accept that the applicant approached a credit company to borrow money in 2017. However, the Tribunal did not accept that an employee of the credit company used the applicant’s identity documents provided for the purposes of his credit application to borrow money from a loan shark. The Tribunal also did not accept that the applicant was approached, threatened or harmed by loan sharks as claimed, that he reported the matter to the police, or that he departed Malaysia in the circumstances that he claimed at the hearing.
I accept the Minister’s submission that the Tribunal’s reasons demonstrate that it actively engaged with the new claims raised by the applicant at the hearing. I further accept the Minister’s submission that the findings made by the Tribunal in relation to the new claims were supported by a logical and probative basis. The claims were adequately addressed. That the Tribunal did not accept the claims does not mean that they were not considered.
Conclusion in relation to ground 1
The applicant has not established ground 1.
Ground 2: Did the Tribunal misinterpret or give insufficient weight to the documents the applicant provided in support of his new claims?
Ground 2 reads:
Despite submitting relevant evidence, such as the letter from CIM Credit SDN BHD and a photograph, the Tribunal either misinterpreted or gave insufficient weight to these documents, undermining the credibility of my claims.
The applicant provided two documents to the Tribunal at the hearing to support his claims raised at the hearing. Those documents were:
(a)a letter from CIM Credit dated 7 June 2017 confirming that the company would release a RM 50,000 financing loan to the applicant, and setting out some information about the terms of the loan; and
(b)a photograph of a man.
The applicant asserts that the Tribunal misinterpreted or gave insufficient weight to these documents. In his oral submissions at the hearing before the Court, the applicant submitted that the Tribunal showed disbelief about the documents and considered them to be false information. The applicant submitted that when he gave the photograph of the person, he was asked how he could prove that it was the person from the company.
The Tribunal’s consideration of the documents
The Tribunal described the documents provided by the applicant at [12] of its reasons as ‘a letter said to be from the Director of ‘CIM Credit SDN BHD’ dated 7 June 2017 and a photograph of a man which he said he had obtained from a chat group’.
The Tribunal said at [34] of its reasons:
As explained at the hearing, while the documentary evidence provided may establish that he attempted to borrow money from a credit company and that the letter was provided to start the process of obtaining credit, the document does not establish that an employee of the credit company stole the applicant’s identity to borrow money from loan sharks or that he faced the claimed events and is wanted by loan sharks. The photograph that he presented the Tribunal is a photograph of a man with no identification and no information to support the applicant’s assertions that it is a photograph of the man who defrauded him or that it has been obtained from a WhatsApp group chat.
The Tribunal did not misinterpret the documents
There is nothing in the Tribunal’s reasons to suggest that it misinterpreted the documents in any way. I have considered the documents as they appear in the court book and there is nothing inaccurate in the Tribunal’s description of them. Further, it is evident from the Tribunal’s reasons that the Tribunal understood the applicant was relying on those documents to support his claim that an employee of the credit company used his identity documents to obtain a loan from loan sharks.
The applicant’s submissions to this Court suggest that his complaint is that the Tribunal did not believe the documents. However, this is not an accurate representation of the Tribunal’s reasons. The Tribunal made no finding that either document was fraudulent or false.
The Tribunal relied on the document from the credit company to accept that the applicant took steps to obtain a loan from that company. That finding is supported by the information on the face of the document and does not demonstrate that the Tribunal misinterpreted the document.
The Tribunal accurately observed that the man in the photograph was not identified in the photograph and there was no information to support the applicant’s assertions that it was the man who defrauded him or that it had been obtained from a WhatsApp group chat. The applicant’s complaint that, at the Tribunal hearing, the member asked the applicant how he could prove that the person in the photograph was from the credit company, does not establish jurisdictional error. The Tribunal was not required to uncritically accept the evidence provided by the applicant and, given the lack of any identifying marks on the photograph, it was appropriate for the Tribunal to question how it could be satisfied that the person depicted in the photograph was from the credit company.
There is no jurisdictional error in relation to the weight the Tribunal attributed to the documents
As submitted by the Minister, it is a matter for the Tribunal as part of its fact-finding function to identify the material that it considers to be relevant to its reasoning and to give that material appropriate weight: Tran v Minister for Immigration and Multicultural Affairs [2004] FCAFC 297 at [5]-[7].
The Tribunal was not satisfied that the letter from the credit company and the photograph showed that a member of the credit company defrauded the applicant and borrowed money from a loan shark. The Tribunal therefore did not place any material weight on these documents in support of those aspects of the applicant’s claims. There is nothing unreasonable in the Tribunal’s consideration of the documentary evidence provided by the applicant and no jurisdictional error arises from the weight that the Tribunal attributed to the documentary evidence.
Conclusion in relation to ground 2
The applicant has not established ground 2.
Ground 3: Did the Tribunal demonstrate bias based on the questions it asked the applicant? Were there interpretation errors at the Tribunal that denied the applicant a fair hearing?
Ground 3 reads:
The Tribunal’s questioning was biased and led me to give answers that did not reflect my true situation. Combined with my limited understanding of English and translation issues, this resulted in my inability to properly convey the details of my case, which significantly affected the fairness of the hearing.
By this ground the applicant asserts that he was denied a fair hearing, because of bias exhibited by the Tribunal’s questioning and because of errors in interpretation at the hearing. I informed the applicant at the hearing that there was no transcript and evidence to show the questions that the Tribunal asked at the hearing, and no evidence to show any errors in interpretation. Despite being informed that he could request further time to adduce evidence, the applicant made no such request.
The applicant has not established that the Tribunal was biased or that there were errors in interpretation that denied him a fair hearing.
The Tribunal was not biased
The Minister in his written submissions accurately set out the relevant tests to establish bias. An allegation of bias is serious and must be distinctly raised and clearly proved by evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69]. To establish actual bias, the applicant would need to show that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation from the matter. To establish apprehended bias, the Tribunal must establish that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: 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 only matter the applicant has generally identified to support his assertion of bias is the questions that the Tribunal asked of him at the hearing. However, he has not identified any specific questions or even categories of questions that he relies on to establish bias.
As noted above, there is no transcript of the Tribunal hearing in evidence before the Court and no direct evidence of the questions that the Tribunal asked the applicant. I do have before me the Tribunal’s reasons, which contain a summary of some of the questions or issues put to the applicant at the hearing.
I accept the Minister’s submission that the types of questions that the Tribunal appears to have asked the applicant, based on its reasons at [25]-[28], which are extracted above, appear to have related to ascertaining more detail about his newly raised claims to fear harm from loan sharks. The Tribunal was not required to uncritically accept all evidence given by the applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. To the extent that I can ascertain the Tribunal’s questions from its reasons, they were questions that were appropriate for the Tribunal to ask and do not demonstrate any actual or apprehended bias on the part of the Tribunal.
The applicant has not established that the Tribunal was biased.
The applicant has not established that there were errors in interpretation
Errors in interpretation, if significant enough, can establish jurisdictional error on the basis that an applicant has not been afforded a fair hearing: see, for example, BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52].
The applicant submitted at the hearing before the Court that he came to realise that the interpreter, on the day of the Tribunal hearing, did not fully interpret what he had said. He did not provide any further detail and, as noted above, there is no evidence to show that the interpreter made any errors in interpretation at the Tribunal hearing, let alone errors significant enough to indicate that the applicant was not afforded a fair hearing.
There is nothing in the Tribunal’s summary of the applicant’s evidence given at the hearing to suggest that there were any errors in interpretation. Rather, the Tribunal expressly noted that the applicant did not raise any concerns with interpretation during the hearing, saying at [13] of its reasons:
The hearing was held with the assistance of an interpreter in the Mandarin and English languages. The applicant and the interpreter confirmed that they understood each other and no issues regarding the interpreting service were raised by the applicant during the hearing. I am satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process and was able to present his claims and evidence and respond to issues raised at the hearing.
The applicant has not established that he was denied a real and meaningful hearing as a result of any interpretation issues.
Other procedural fairness considerations
Although not expressly raised by the applicant, the Minister addressed in his submissions the Tribunal’s compliance with its procedural fairness obligations under Division 4 of Part 7 of the Migration Act.
I accept the Minister’s submissions that the Tribunal complied with its procedural fairness obligations under the Migration Act. The applicant was invited to attend a hearing to give evidence and present arguments in relation to the issues arising in the review, as required by ss 425 and 425A of the Migration Act. There is nothing in the evidence available to the Court to suggest that the invitation to attend a hearing was not a real and meaningful one. The only information relied on by the Tribunal was information the applicant provided to the Department with his visa application, information and evidence that the applicant provided to the Tribunal in the course of the review, and country information. In these circumstances, I accept the Minister’s submission that there was no information that the Tribunal was required to put to the applicant for response under s 424A(1) of the Migration Act, because the only information it relied on fell within the exceptions to s 424A(1) that are contained in s 424A(3)(a), (b) and (ba) of the Migration Act.
Conclusion in relation to ground 3
The applicant has not established that he was denied a fair hearing as a result of bias on the part of the Tribunal, errors in interpretation or for any other reason. Ground 3 is not established.
CONCLUSION
The applicant has not established that the Tribunal made a jurisdictional error. His application to the Court is therefore dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 18 September 2025
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