IDH24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1543
•22 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
IDH24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1543
File number: PEG 378 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 22 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 misconstrued provisions of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider a claim or integer of a claim – whether the Tribunal made an unreasonable decision – 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, 476
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 16 September 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 378 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IDH24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
22 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 on 9 January 2019. The applicant claimed to fear harm from the Malaysian authorities as a member of Bersih. A delegate of the Minister refused to grant the applicant a protection visa on 11 October 2019, without inviting the applicant to attend an interview.
The applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. The applicant completed a pre-hearing information form on 28 August 2024, in which he gave information about his claims for protection. The applicant again claimed to be a Bersih member and claimed that he took part in street demonstrations, led by opposition parties. He claimed the police used tear gas and acid water, many groups were in prison and the media hid sensitive issues.
On 30 September 2024 the Tribunal wrote to the applicant and invited him to attend a hearing on 25 November 2024. In a response to the hearing invitation, the applicant indicated that he would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The Tribunal then made a decision on the papers on 3 October 2024, affirming the delegate’s decision not to grant the applicant a protection visa.
The Tribunal considered that the applicant provided insufficient information:
(a)in support of his claims to be a member of Bersih;
(b)as to his role with the Bersih movement, his attendance at demonstrations and whether he experienced any harm as a result of his participation in demonstrations or his involvement with the Bersih movement; and
(c)regarding the exact nature of the harm he fears.
The Tribunal considered that the evidence presented by the applicant was not sufficiently detailed to enable the Tribunal to be satisfied that he faced a real chance of persecution in Malaysia or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk he would suffer significant harm. The Tribunal therefore found that the applicant did not meet the requirements for the grant of a protection visa set out in s 36(2)(a) or (aa) 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 seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. His application to this Court is therefore dismissed.
JUDICIAL REVIEW APPLICATION
The applicant relies on the following grounds, set out in his judicial review application filed on 9 October 2024 (reproduced without alteration):
1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm from government authority department because I was posting online news againts governmentpolitical position . If I have return to Malaysia I will be harm or detained by government agents, because local authorities department cannot help or protect me. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia.
However, the case officer failed to investigate the applicant’s claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.
2. I believe that the AAT case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision.
3.I seek for my claims to be given a second chance for me to provide more details to straighter my claims but not just to concern.
The evidence before the Court comprises:
(a)an affidavit filed by the applicant with his judicial review application, which repeats his grounds of review and annexes a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 20 November 2024; and
(c)an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 15 September 2025, confirming that the applicant has been given a copy of the relevant court documents filed by the Minister.
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 make a jurisdictional error by failing to consider whether the applicant would face harm by posting anti-government articles online? Did the Tribunal misconstrue provisions of the Migration Act?
The ground cannot succeed insofar as it simply expresses disagreement with the decision or invites the Court to engage in merits review
I accept the Minister’s submission that, on one level, ground 1 simply expresses disagreement with the Tribunal decision and impermissibly invites the Court to consider for itself whether the applicant meets the requirements for the grant of a protection visa. As noted above, disagreement with the Tribunal decision does not, of itself, establish jurisdictional error and this Court does not have the jurisdiction to engage in merits review of the Tribunal decision.
The Tribunal was not required to consider a claim that was not raised by the applicant and which did not emerge squarely on the material before it
Ground 1 otherwise appears to raise two separate issues. In the first part of the ground, the applicant alleges that the case officer[2] made a jurisdictional error by saying he did not face a real risk of significant harm from posting online news against the Malaysian government’s position. This may be viewed as an assertion that the Tribunal made a jurisdictional error by failing to consider whether the applicant would face a real risk of significant harm because he posted online news against the political position of the Malaysian government.
[2] I explained to the applicant at the hearing that I would treat the reference to ‘case officer’ as a reference to the Tribunal, as the Court does not have jurisdiction to review the delegate’s decision.
The Tribunal was required to consider all the claims for protection that were expressly articulated by the applicant, as well as claims that were not expressly articulated but which clearly emerged on the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60]. The Tribunal was not required to consider claims that the applicant did not expressly articulate and which did not clearly emerge on the materials before it.
I accept the Minister’s submission that the applicant did not make any claim to the Tribunal that he was posting online against the Malaysian government’s political position. I note that the applicant did not make any contrary submission. I further accept the Minister’s submission that no such unarticulated claim squarely arose on the material before the Tribunal.
In circumstances where no relevant claim was expressly raised by the applicant and no claim emerged clearly from the materials before the Tribunal, the Tribunal was not required to consider whether the applicant would face harm from posting online news against the political position of the Malaysian government. No jurisdictional error arises from its failure to do so.
The Tribunal did not misconstrue the provisions in the Migration Act
The second part of ground 1 alleges that the Tribunal failed to investigate the applicant’s claims because it misconstrued ss 36(2)(a), 36(2C), 36(3) and 5H of the Migration Act and Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
When I invited the applicant at the hearing to explain why he believes the Tribunal misconstrued these provisions, he responded that he thinks the decision is not fair.
Section 36(2)(a) of the Migration Act provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term ‘refugee’ is defined in s 5H of the Migration Act. The Tribunal summarised the requirements of ss 36(2)(a), 5H and 5J of the Migration Act at [7]-[9] of its reasons, where it said:
7.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
9. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
These paragraphs accurately summarise the core requirements of ss 36(2)(a), 5H and 5J of the Migration Act. I accept the Minister’s submission that the Tribunal identified the correct tests under the Migration Act and did not misconstrue or misapply the relevant provisions.
Section 36(2C) of the Migration Act provides that a non-citizen is taken not to satisfy the complementary protection criterion in s 36(2)(aa) if the Minister has serious reasons for considering that the non-citizen committed particular types of crime or if the Minister considers, on reasonable grounds, that the non-citizen is a danger to Australia’s security or that the non-citizen has been convicted of a particularly serious crime and is a danger to the Australian community. The Tribunal did not rely on or apply s 36(2C) of the Migration Act in reaching its decision and there is nothing before the Court to suggest that that provision was relevant to the Tribunal decision in any way.
Section 36(3) of the Migration Act provides Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia. There was no information before the Tribunal to suggest that the applicant had any right to enter and reside in any other country and the Tribunal did not rely on this provision in any way.
Schedule 2 of the Regulations sets out criteria that are relevant to the grant of a protection visa. However, in circumstances where the Tribunal found the applicant did not meet the criteria in s 36(2) of the Migration Act, he could not meet the requirements for the grant of a protection visa irrespective of whether he met any other criteria set out in Sch 2 to the Regulations. The Tribunal did not expressly consider whether the applicant met the criteria in the Regulations. No error arises from its failure to do so in circumstances where the Tribunal was not satisfied that the applicant met the criteria in s 36(2) of the Migration Act.
The applicant has not established that the Tribunal made a jurisdictional error by misinterpreting or misapplying provisions of the Migration Act or Regulations.
To the extent that the applicant alleges that the Tribunal ‘failed to investigate’ his claims, he has not established that the Tribunal made a jurisdictional error. The Tribunal was not required to conduct any investigation in relation to the applicant’s claims. Rather, the applicant bore the responsibility of specifying the particulars of his claim for protection and for providing sufficient evidence to establish the claim: s 5AAA of the Migration Act.
Conclusion in relation to ground 1
Ground 1 is not established.
Ground 2: Did the Tribunal fail to consider a claim or an integer of a claim? Did the Tribunal make an unreasonable decision?
The Tribunal considered all the claims made by the applicant
The applicant asserts by ground 2 that the Tribunal failed to consider his claim or an integer of his claim. The applicant does not identify in the ground the claim or integer that he alleges the Tribunal did not consider. When I asked the applicant at the hearing what claim he believes the Tribunal did not consider, he responded that if he returns, they will capture him.
The Tribunal summarised the applicant’s claims at [15] of its reasons:
The applicant’s claims can be summarised as follows:
•They are a Bersih member. They took part in street demonstrations, led by opposition parties. The Home Affair Minister of Malaysia made a statement that if Malaysian’s were not happy with the political system of the country, they should leave.
•Police used tear gas and acid water. Many groups were imprisoned, media hid sensitive issues.
•They did not seek help as authorities will take action against those who conspired with members of Bersih.
•They did not try to relocate as all of the Malaysian authorities are supported by the government and if they moved to another part of the country, they will be found, and no difference would be made.
•If they return to Malaysia, they fear they will be caught by police and jailed. Their life is in danger. They will not be safe.
This articulation of the applicant’s claims is consistent with, and appears to be based on, his articulation of his claims in the pre-hearing information form provided to the Tribunal. This articulation of the applicant’s claims encapsulates the claims advanced in his protection visa application form and appears to be copied from the summary of the applicant’s claims set out in the delegate’s decision.
The Tribunal’s summary of the applicant’s claims shows that the Tribunal was aware that the applicant claimed he would be caught by police if he returns to Malaysia. Based on the applicant’s claims as presented to the Department and the Tribunal, the only basis upon which the applicant claimed to fear being caught by police is his involvement in Bersih.
The Tribunal considered the claims advanced by the applicant, but did not accept them. The Tribunal considered that the applicant had provided insufficient information to support his claim to be a member of Bersih and in relation to his role with that organisation and demonstrations, whether he had experienced past harm and in relation to the harm that he fears in the future.
I do not accept that the Tribunal failed to consider the applicant’s claims for protection, which were based on his claimed involvement with Bersih. The Tribunal considered all the claims advanced by the applicant, including his claim that he would be caught by police or authorities if he returns to Malaysia.
The Tribunal decision was reasonable
The applicant has not articulated why he believes the Tribunal decision was legally unreasonable.
As indicated above, the Tribunal was not satisfied of the applicant’s claims for protection because of the lack of information in those claims. As submitted by the Minister, it was for the applicant to provide evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76]. This obligation is now set out in s 5AAA of the Migration Act, which provides that it is the responsibility of a non-citizen who claims to be a person in respect of whom Australia has protection obligations to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
Having regard to the limited information about the applicant’s claims, as articulated in his protection visa application and in his pre-hearing information form submitted to the Tribunal, it was open to the Tribunal to find that the applicant had not provided sufficient information to establish his claims for protection. There is nothing unreasonable in this decision.
Further, as submitted by the Minister, the applicant had multiple opportunities to provide additional information in relation to his claims. In acknowledging his review application by way of a letter sent on 11 October 2019, the Tribunal advised the applicant that if he wished to provide material or written arguments for the Tribunal’s consideration, he should do so as soon as possible. The pre-hearing information form, completed by the applicant on 28 August 2024, included an instruction that if the applicant wished to submit any further evidence to the Tribunal, it should be provided in writing as soon as the applicant could provide it. The applicant was invited to a hearing, where he would have had the opportunity to elaborate on his claims, but lost the entitlement to attend a hearing when he consented to the Tribunal determining the matter without inviting him to a hearing. The notice of the invitation sent to the applicant (before the applicant consented to the Tribunal deciding the matter without a hearing), advised the applicant that he could submit further documents to the Tribunal.
Despite these opportunities, the applicant did not provide more detailed information to the Tribunal. The Tribunal afforded the applicant a fair opportunity to provide information to it and, as indicated above, when the applicant failed to provide more information, it was not unreasonable for the Tribunal to find that he had provided insufficient information to establish his claims for protection.
Conclusion in relation to ground 2
Ground 2 is not established.
Ground 3 does not allege any jurisdictional error
By ground 3 the applicant seeks an opportunity to provide more details about his claims and to be given a second chance. The ground does not allege or establish any jurisdictional error in the Tribunal decision.
As I explained to the applicant at the hearing, this Court does not have the jurisdiction to consider for itself whether he meets the requirements for the grant of a protection visa and the Court can only remit the matter to the Administrative Review Tribunal for reconsideration if the Court finds that the Tribunal made a jurisdictional error. I have not found that the Tribunal made a jurisdictional error.
Ground 3 is not established.
Other matters raised in the applicant’s oral submissions
In his oral submissions to the Court, the applicant submitted that he joined a political party in 2020. He submitted that he is Chinese and the government discriminates against Chinese people and he joined a party to go against the government. The government knows that he and others are a group and will pressure them. Five years after joining the party, most Chinese candidates and members were given a warning. The applicant submitted that he came to Australia in 2017 and that the government in Malaysia does not treat Chinese people equally. He submitted that he might be captured if he returns to Malaysia and that politics in Malaysia is very dark.
As I explained to the applicant at the hearing, these matters relate to why the applicant believes he should be granted a protection visa. The Court does not have jurisdiction to consider whether the applicant meets the criteria for the grant of a protection visa or to engage in merits review of the Tribunal decision.
The applicant did not make any claims before the Tribunal other than those based on his claimed involvement with Bersih. The Tribunal was not required to consider the applicant’s involvement in a political party he joined in 2020, whether he would face discrimination or harm on the basis of his Chinese ethnicity or his claim that the political climate in Malaysia is very dark. That is because the applicant did not raise these claims before the Tribunal and they did not clearly emerge on the material before it.
CONCLUSION
The applicant has not established that the Tribunal made any jurisdictional error. His application to this Court for judicial review of the Tribunal decision is therefore dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 September 2025
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