IJY24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1142
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
IJY24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1142
File number(s): PEG 386 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 July 2025 Catchwords: MIGRATION – Protection (Subclass 866) visa – where the applicants fears of harm did not meet the complementary protection obligations – where the applicant did not provide evidence in support of claims – grounds of judicial review have no merit – application dismissed Legislation: Migration Act 1958( Cth) ss 36(2)(a), 36(2)(aa), 425, 425A, Division 4 of Part 7
Migration Regulations 1994 (Cth) Schedule 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Home Affairs v Omar [2019] FCAFC 188
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 16 July 2025 Place: Perth Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Rayment, Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 386 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IJY24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The Application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 September 2024, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Protection (Subclass 866) visa (the visa).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Malaysia.
On 19 October 2018, the applicant arrived in Australia on an Electronic Travel Authority visa.
On 23 December 2018, the applicant applied for the visa, claiming he had left Malaysia due to economic hardship and corruption.
On 11 September 2019, the delegate refused to grant the applicant the visa on the basis that they were not satisfied that s 36(2)(a) or (aa) of the Migration Act 1958( Cth) ( the Act) were met.
On 13 September 2019, the applicant lodged an application for review with the Tribunal.
On 25 September 2024, the Tribunal affirmed the decision not to grant the applicant the visa.
THE TRIBUNAL’S DECISION
At [1] – [7], the Tribunal set out the application for review and the background of the matter.
At [8] – [11], the Tribunal noted that it had invited the applicant to attend a hearing, as it was not satisfied that on the basis of the material before it, it could decide the review in the applicant’s favour. However, the applicant advised the Tribunal he did not wish to participate in the hearing and consented to a decision being made on the papers. The Tribunal further noted that whilst the applicant was invited to provide any further information or documents, the applicant did not reply or provide any additional material.
At [13] – [20], The Tribunal had regard to the criteria for a protection visa in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and the Ministerial Direction No. 84. The Tribunal took into account Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) [38] – [50].
At [29], the Tribunal noted the applicant’s claims as to why he left Malaysia as follows:
Due to economic & problem in Malaysia I’m taking my decision to come to Australia to seek a better future for me rather than my country, Malaysia. As you can see, Malaysia now is the one on the top list of corruption because of our previous president Najib Razak. Many of our people is suffering due to economic & corruption problem. And the result, including me, there is many people was retrench by company. I’m also had been retrench. I lost my job and I don’t have enough financial supporting me in Malaysia. My family also hoping me in Australia to support financial for them because my family is poor. I’m really hoping that Australian government can consider my application for my future.
Further, the Tribunal noted that the applicant did not experience any harm in Malaysia, and did not believe he would be harmed if returned [30]. With regards to what the applicant thought would happen if he were sent back to Malaysia, he said he could not get a “suitable job…because the salary in Malaysia is not enough to cover expenses” and he would not be able to support his family [31]. The Tribunal noted that the applicant had not tried to relocate to any other parts of Malaysia, as he claimed the problem would be the same regardless of where he lived [32].
At [35], the Tribunal noted that the applicant had not identified a subjective, let alone objective, fear of persecution for the essential or significant reason of his race, religion, nationality, political opinion or because he is a member of a particular social group. Moreover, the applicant had not provided any evidence or particulars to substantiate a finding that his capacity to subsist is at threat if he were to return to Malaysia, and failed to identify any basis whatsoever upon which it may be found that the ‘economic & corruption problems’ in Malaysia impact him in a manner which is systematic or discriminatory, as opposed to being circumstances which affect the Malaysian population as a whole [36].
Accordingly, at [37], the Tribunal was not satisfied on the material before it that the applicant had a well-founded fear of persecution if returned to Malaysia. As such, the Tribunal found that the applicant was not a refugee and therefore was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.
The Tribunal then went on to determine whether the applicant was a person in respect of whom Australia owed protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Act.
The Tribunal again noted that the only claims made by the applicant pertain to ‘economic & corruption problems’ in Malaysia [51]. Therefore, there was no basis upon which the Tribunal could be satisfied that the applicant faced a real risk of suffering significant harm if he were removed from Australia to Malaysia [51]. Accordingly, the Tribunal found the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act [52].
As such, at [54], the Tribunal affirmed the decision not to grant the applicant the visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances three grounds of judicial review contained in an Originating Application filed with the Court on 15 October 2024. They are as follows:
1.The Tribunal did not give adequate weight to my claims regarding the severe economic hardship I faced due to corruption and economic mismanagement in Malaysia. While I clearly stated how these conditions affected my livelihood and family, the Tribunal dismissed them as generalized problems. This failure to engage with my personal circumstances, particularly my inability to find suitable employment or support my family, amounts to a jurisdictional error.
2.The Tribunal incorrectly characterized my claims as generalized complaints about Malaysia’s economic conditions, failing to appreciate the unique circumstances of my case. My personal vulnerability due to job loss, coupled with systemic corruption, was not adequately considered. By relying on generalized country information and not sufficiently investigating my specific situation, the Tribunal failed to exercise its jurisdiction properly.
3.The Tribunal did not fully engage with Australia’s non-refoulement obligations under international human rights law, particularly the risk of cruel or degrading treatment due to my economic hardship in Malaysia. While it briefly mentioned these obligations, the analysis was insufficient, and my fear of facing inhumane conditions was not properly addressed.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. Although the applicant spoke reasonable English, he was assisted by an interpreter when he sought clarification of what was said in Court. At the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been provided to him and that he understood them.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case. The applicant told the Court that due to the economic conditions and corruption in Malaysia, he was unable to support his family, including his father. The applicant stated that he was working in Australia and sending money home to allow the family to survive.
The applicant was advised that being an ‘economic refugee’ was not a ground for the grant of a protection visa. For a protection visa to be granted, the applicant would need to demonstrate he had a well-founded fear of persecution or that, as a necessary consequence of removal from Australia, the applicant would face a real risk of significant harm. A lack of work in Malaysia did not meet either of those two tests.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submits that ground one is based upon the incorrect premise that the Tribunal failed to afford weight to the applicant’s claims, that the Tribunal “dismissed” his claims as generalised problems, and failed to consider his personal circumstances.
The Tribunal’s reasons demonstrate that it held concerns that the applicant had not provided evidence or particulars to substantiate a finding that his capacity to subsist would be threatened by reason of his claimed financial difficulties, or that the claimed economic and corruption problems impacted him in a way that was systematic or discriminatory [35].
The Tribunals consideration of the applicant’s claims is not surprising as the Tribunal was not required to uncritically accept his claims: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46 at [33]; DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [88]-[89]. It was the applicant’s responsibility to provide sufficient evidence to satisfy the Tribunal that he met the visa requirements, particularly the elements of s 5J of the Act: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [69].
Further, the Tribunal at [35], observed that the applicant had not identified any subjective or objective fear of persecution for any reason under s 5J(1), which in conjunction with the principles distilled above, were the reasons as to why the Tribunal was “not satisfied” that the applicant had a well-founded fear of persecution and did not satisfy the refugee criterion. The Tribunal did not simply “dismiss” the applicant’s claims, nor did it undertake any weighing exercise.
As to ground two, the first respondent submits the Tribunal did not mischaracterise the applicant’s claims, nor did it fail to consider his personal circumstances. Rather, the Tribunal’s reasons at [26] – [33], demonstrate that it accurately set out the applicants claims as recorded in his visa application, and that it actively and intellectually engaged with these claims in its assessment of whether s 36(2)(a) or (aa) were met: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [43]-[46]; Minister for Home Affairs v Omar [2019] FCAFC 188 at [37]. The Tribunal noted the applicant’s claims in relation to losing his job and corruption, but concluded that there was not sufficient evidence to substantiate a finding that his capacity to subsist would be threatened, or that the corruption was systematic or discriminatory. At no point did the applicant claim that he had a “personal vulnerability” due to losing his job, nor did he provide any evidence that the claimed corruption in Malaysia was “systemic” as he now appears to allege in this ground.
The Tribunal’s compliance with its exhaustive procedural fairness obligations under Division 4 of Part 7 of the Act also meant that the applicant was afforded opportunities to provide evidence or details about his claims. As the Tribunal was not satisfied that it could make a favourable decision on the information that was currently before it, the Tribunal invited the applicant to attend a hearing in compliance with ss 425 and 425A of the Act. However, the applicant consented to a decision being made on the papers, the inevitable consequence of which was the Tribunal affirming the delegate’s decision: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
Additionally, there was no information that the Tribunal was required to invite the applicant for comment or response under s 424A of the Act due to the fact the information it relied on in making its decision were those contained in the applicants visa application and the country information before it, both of which were exempt under s 424A(3)(a) and (ba) respectively.
The first respondent submits that in ground three, the applicant alleges that the Tribunal’s assessment of the complementary protection criterion was insufficient and that it failed to consider the applicant’s “fear of facing inhumane conditions”. However, the applicant’s own evidence was that he had not experienced any harm in Malaysia, did not think that he would be harmed if he returned, and his main concern was being unable to find a “suitable job” to support his family: CB 12. The Tribunal’s reasons at [51] – [52] show that it plainly considered these claims, and it correctly observed at [50] that less favourable economic circumstances do not give rise to non-refoulment obligations. There is therefore nothing insufficient about the Tribunal’s assessment of s 36(2)(aa) in these circumstances.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
Firstly, the Court is satisfied that the Tribunal complied with all of its procedural fairness requirements. The applicant was properly invited to attend the hearing of the Tribunal to give evidence and present arguments. The applicant declined to do so. In those circumstances, the decision of the Tribunal to proceed to consider the matter on the basis of the information that was before it was open to the Tribunal for the reasons it set out at paragraphs [8] – [11] of the decision record.
Ground One
Ground one is a complaint that the Tribunal failed to consider the applicant’s claims and dismissed these claims as generalised problems. The Tribunal fully set out at [26] – [33] of the decision record the applicant’s claims for protection. These can be summarised as the following: that the applicant came to Australia to seek a better future for himself and his family; he had lost his job in Malaysia and did not have enough financial resources to support himself and his family; and that the applicant had concerns that if he went back to Malaysia he would be unable to find a suitable job that would have a sufficient salary to cover expenses.
The Court is satisfied the Tribunal fully considered these matters against the relevant refugee criteria but properly found that the applicant did not have a well-founded fear of persecution if he was returned to Malaysia and was therefore not a refugee for the purposes of s 36(2)(a) of the Act.
The Tribunal then went on to consider whether or not the applicant met the criteria under the complementary protection provisions under s 36(2)(aa) of the Act. Nothing the applicant put forward indicated that he would be likely to suffer significant harm as a result of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The applicant’s claims only related to economic and corruption problems in Malaysia, however, he provided no evidence to support those claims. The Court is satisfied that the Tribunal properly considered the applicant’s claims. Ground one has no merit.
Ground Two
Ground two is a generalised claim that the Tribunal incorrectly characterised the applicants’ claims as generalised complaints about Malaysia’s economic conditions. The Court does not accept this claim. The Tribunal’s reasons indicate that it properly identified the applicant’s claims, which simply related to having lost his job and a generalised corruption claim. The Court accepts the first respondent’s submission that the applicant provided no evidence, nor did he claim that he had a personal vulnerability due to losing his job, or that the claimed corruption in Malaysia was systemic, such that it posed a serious risk of harm to him if he were returned. Given the lack of evidence before the Tribunal, this finding is not surprising. On this basis, ground two has no merit.
Ground Three
Ground three is a generalised claim that the Tribunal did not fully engage with Australia’s non-refoulment obligations. The ground lacks any particulars, and the applicant did not provide any when requested to do so by the Court. The applicant claims the Tribunal failed to consider his “fear of facing inhumane conditions”. As noted by the first respondent, the applicant gave no evidence that he experienced any harm in Malaysia and, in fact, did not think he would be harmed if he were returned. The applicant’s main fear related to the economic conditions in Malaysia and his concern that he would not be able to find “a suitable job” that would allow him to support himself and his family. This does not and could never meet the requirements for complementary protection under s 36(2)(aa) of the Act. Ground three has no merit.
The Court has carefully perused the Court book provided, together with other associated documentation, in relation to the matter. The Court is unable to ascertain any unarticulated jurisdictional error.
DETERMINATION
As none of the grounds of judicial review have merit, the application must be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 July 2025
0
11
2