IKE24 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1143

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

IKE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1143

File number(s):

PEG 387 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

23 July 2025

Catchwords:

 MIGRATION – Protection (Subclass 866) visa  – whether the Tribunal failed to actively and intellectual engage with claims – whether the applicant was denied procedural fairness – grounds of judicial review have no merit – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2) (aa),424A (1), 424A, 425,425A

Migration Regulations 1994 (Cth) Schedule 2.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Fox v Percy [2003] HCA 22

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126

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

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

Division:

Division 2 General Federal Law

Number of paragraphs:

51

Date of hearing:

16 July 2025

Place:

Perth

Solicitor for the Applicant:

Self-Represented litigant

Solicitor for the First Respondent:

Mr Mayne, Sparke Helmore

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 387 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

IKE24

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

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 24 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).

2. For the reasons set out below, the application must be dismissed.

   BACKGROUND

3. The applicant is a citizen of Malaysia.

4. The applicant first arrived in Australia on 10 January 2013 on an Electronic Travel Authority (ETA) visa and departed on 17 November 2013.

5. On 31 January 2018, the applicant arrived in Australia on a second ETA visa.

6. On 30 April 2018, the applicant applied for the visa, claiming he had left Malaysia as he had fought with gangsters over the demolition of a Hindu temple.

7. On 30 November 2018, 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.

8. On 6 December 2018, the applicant lodged an application for review with the Tribunal.

9. On 24 September 2024, the Tribunal affirmed the decision not to grant the applicant the visa.

   THE TRIBUNAL’S DECISION 

10. At [1] – [3], the Tribunal set out the application for review and the background of the matter.

11. At [4] – [9], 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) [10], [33].

12. At [12], the Tribunal summarised the applicant’s claims for protection as follows:

    a.The applicant was involved in a fight with a group of Malay gangsters who wanted to demolish a Hindu temple (…) early in 2018 [the Hindu temple incident].

    b.The applicant was defending the temple.

    c.One of the gang members took the applicant's photo and told the applicant to 'Watch Out.'

    d.The applicant has since been fearful of his safety as the temple's priest was being taunted daily by the gangsters.

    e.The police did not take any action against the gangsters, despite the temple's priest lodging a police report.

    f.The applicant decided to leave Malaysia because he didn't want to put his wife and children in danger.

    g.The applicant feared the gangsters would 'finish ... [him] off' if he returned to Malaysia.

    h.The applicant did not seek help because he didn't know the identity of the gangsters and the police had not shown any interest in the issue.

    i.The applicant would not feel safe in any part of Malaysia because the gangsters were part of a big syndicate throughout the whole of Malaysia.

13. The Tribunal noted at the hearing that the applicant had stated he had a friend assist him with his visa application, and that the information in the form was correct and true [14].

14. At [36], the Tribunal noted that the applicant had given two inconsistent accounts of the Hindu temple incident: the first on his protection visa application, which is outlined at paragraph 12 above, and the second at the hearing.

15. In the first account, the applicant said he had fought with gangsters, one of whom had taken his photograph. The police had not been present and had shown no interest in the incident. However, in the account given by the applicant at the hearing, the applicant said he had accidentally caused a police officer to fall to the ground, and it was a reporter who had taken his photograph [21] – [22]. The applicant feared that he would be arbitrarily detained and imprisoned under the Security Offences (Special Measures) Act 2012 (SOSMA), as the officer thought the applicant had assaulted him. The applicant has been in hiding since 2012, as the police were looking for him [21] – [23]. Further, during the hearing, the applicant raised that he was unsure of whether the Hindu temple incident had occurred in 2006 or 2012, as well as the fact that he could not remember the name of the temple [24].

16. In addition to travelling to Australia in 2013, the Tribunal noted that the applicant had stated that he had travelled to Korea three times in 2016, and had visited Thailand with his wife in 2015 [26]. When asked why the applicant had returned to Malaysia at least five times after the Hindu temple incident, if he feared for his life, the applicant said that the police had been looking for him but only had his photograph [26]. When asked why the applicant would go through the airport so often when an airport has an abundance of police, the applicant said it was because they did not have a full record of him [26].

17. When the Tribunal raised the inconsistent Hindu temple incident accounts with the applicant, the applicant responded that his application was in English, and that he had told his friend what had happened, and his friend had summarised to the applicant what he had written [29]. The applicant further raised that his friend was a drinker.

18. At [37], the Tribunal did not accept the applicant's explanation for the inconsistencies between the applicant's two accounts of the Hindu temple incident.  The applicant had initially said that the details in his protection visa application were true and that his friend had confirmed to the applicant that he had written what the applicant had told him to. The Tribunal found it inherently unlikely that the applicant would have told his friend that he had fought with and was sought by police, only for his friend to have written that he had fought with and was threatened by gangsters.

19. At [38], the Tribunal accepted that Hindu temple demolitions occur in Malaysia, however, given the inconsistencies in the applicant’s account of the Hindu temple incident, the Tribunal did not give this claim any weight. The Tribunal was not satisfied that the applicant had an altercation with the police or that the police were looking for him as a result.

20. Additionally, the Tribunal found the applicant’s claim that he would be arbitrarily detained and imprisoned to be implausible, and did not accept the claim that the police were currently looking for him [39]. The Tribunal found it implausible that the applicant would have returned to Malaysia at least five times between the alleged Hindu temple incident and his second arrival in Australia, if he feared for his safety [39]. The Tribunal did not accept that the police had been looking for the applicant, that the applicant had been hiding since 2012, or that the applicant had been able to travel because the police did not have his full details [39].

21. While the Tribunal accepted that Malaysian Indians and Hindus generally faced a moderate level of official discrimination, it was not satisfied that the applicant faced a real risk of serious or significant harm because of his ethnicity or religion [40].

22. Subsequently, at [41], the Tribunal found that there was not a real chance that, if the applicant returned to Malaysia, he would suffer serious harm, and there was not a real risk that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, he would suffer significant harm.

23. For these reasons, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or 36(2)(aa), nor did he satisfy s 36(2). As such, at [45], the Tribunal affirmed the decision not to grant the applicant the visa.

    GROUNDS OF JUDICIAL REVIEW

24. 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 (errors in original):

    1.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTION ABOUT THE TYPE OF HARM RELEVANT IN MY CASE

    2.THE TRIBUNAL DESPRIVED ME OF PROCEDUR FAIRNESS

    3.ACCORDING IN SECTION 44 OF THE ADMINSRTRATIVE APPEAL TRIBUNAL ACT 1972 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.

    THE APPLICANT’S SUBMISSIONS

25. The applicant appeared before the Court unrepresented.  The applicant was assisted by an interpreter.  Prior to the hearing commencing, 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 translated to him. 

26. 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.

27. Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case.  The applicant was taken to his grounds of judicial review and was asked what questions about the type of harm relevant to his case were not asked, this being the first ground of judicial review.

28. The applicant told the Court that he could not return to Malaysia due to the incident at the temple. The applicant stated that because he had assaulted a police officer, they would not listen to reason, so all of us started running, his only intention was to protect the temple. The applicant reiterated he feared being arrested under the SOSMA, and if this happened, he would not be brought before a court of law and would be simply detained indefinitely. The applicant said that a brother of his is in prison under the same law. The applicant stated he came to Australia for protection. The applicant was again asked, noting the false description of the interchange between the applicant and the Tribunal, which is recorded in the Tribunal decision, what questions were not asked of him that should have been asked by the Tribunal. The applicant again reiterated his fear of being arrested should he be forced to return to Malaysia.

29. The Court read the applicant’s ground two back to the applicant and asked what procedural fairness step was not undertaken by the Tribunal. The applicant stated that he would be arrested at the airport upon returning home, as ‘they’ are searching for him. The applicant was told that his answer was not responsive to the question of what procedural fairness step was required, which was not undertaken by the Tribunal. The applicant simply replied that he could not return.

30. When asked if he had anything else to say, the applicant told the Court that his older brother had passed away, and his family was told not to return. The applicant did not even go back to his mother’s funeral, as his family told him he would be arrested or killed. The applicant stated that if you are arrested under the SOSMA, there is no chance of you being released because those cases never come before a court.

31. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  The applicant answered nothing more than that he needed protection in Australia.

    THE FIRST RESPONDENT’S SUBMISSIONS

32. As to ground one, the first respondent submits that the Tribunal’s reasons demonstrate that it had asked the applicant what he feared would happen if returned to Malaysia, to which he answered that he would be arrested and detained by the police because of his involvement in the Hindu temple incident: [21]. Further, the Tribunal’s reasons show that it enquired about any evidence the applicant could provide, and discussed the applicant’s claims with him, as well as the inconsistencies in his evidence: [27]-[30]. Therefore, it is clear that the Tribunal had engaged with the applicant’s claims and evidence about the harm he said he would face if returned to Malaysia, and that it subsequently actively and intellectually engaged with the claims in its assessment of whether the applicant met the visa requirements in s 36(2)(a) and (aa) of the Act: 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].

33. Contrary to what the applicant alleges by ground two, the Tribunal complied with its exhaustive procedural fairness obligations under Division 4 of Part 7 of the Act. On 12 April 2024, the Tribunal exercised its discretion under s 425(2) and invited the applicant to provide information in a pre-hearing information form, however, no response was received. The Tribunal also invited the applicant to attend a hearing, in compliance with ss 425 and 425A, which he attended with the assistance of a Tamil interpreter.

34. Further, the Tribunal’s findings on the applicant’s claims and its subsequent decision were primarily based on the information the applicant had provided to the Department, his oral evidence at the hearing, and the country information before it, all of which fell within the exceptions of s 424A(3)(ba), (b) and (a) respectively, which the Tribunal were not required to put to the applicant for comment or response under s 424A(1). The Tribunal also put the information contained in the applicant’s movements records to him at the hearing [25], to which he responded and maintained that he had travelled on different dates, that the Hindu temple incident had occurred before his first visit to Australia, and that he had returned to Malaysia on at least five occasions since the incident. The Tribunal used this information as the foundation for its assessment of the applicant’s claim to fear harm: [35]- [39].

35. Overall, the applicant was not denied procedural fairness and was afforded a real and meaningful opportunity to present his case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37].

36. The first respondent submits that ground three is not a proper ground and should be dismissed. At its highest, this ground is a bland assertion of error which fails to identify any jurisdictional error with sufficient particularity: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612, [60]; and as such, it should be dismissed.

    CONSIDERATION

37. 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.

38. It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62].

39. 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.

40. 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.

41. 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].

42. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76].

    Ground One

43. Ground one is an assertion that the Tribunal member failed to ask the applicant about the type of harm relevant in his case. The Court does not accept the submission. A fair reading of the Tribunal decision record clearly sets out at [14] – [32], an extensive interchange between the Tribunal and the applicant as to the reasons why he feared harm on return to Malaysia. This interchange included the Tribunal putting relevant information to the applicant that contradicted his claims. This also included that the applicant had departed from and returned to Malaysia on multiple occasions, including visiting Korea three times once before coming to Australia to make an application for a protection visa.

44. In the absence of any particulars as to what matters the applicant feels he should have been asked, the Court does not accept that the Tribunal failed to actively and intellectually engage with his claims and seek relevant clarification from him when necessary.

45. The matters advanced by the applicant to the Court do not point to any jurisdictional error on the part of the Tribunal, rather, they simply seek for the Court to engage in impermissible merits review. Ground one has no merit.

    Ground Two

1. Ground two is a bare assertion of the denial of procedural fairness. The applicant was asked what procedural fairness measures he was denied, but he was unable to provide an answer that addressed that question. Rather, the applicant simply again asserted that he required protection in Australia because of the temple incident.

2. The Court is satisfied the Tribunal complied with every procedural fairness obligation under Division 4 of Part 7 of the Act. The applicant was invited to provide information in a prehearing information form, however declined that opportunity. The applicant was invited to attend a hearing in compliance with ss 425 and 425A. The applicant attended a hearing and had the benefit of a Tamil interpreter. The Tribunal’s findings were based primarily on the inconsistencies in the information he provided, firstly to the Department and then to the Tribunal, together with relevant country information that was before the Tribunal.

3. The Court is satisfied that the Tribunal properly put information, which might have formed part of the reasons for affirming the decision of the delegate, being the applicant’s travel movement records, to the applicant. The applicant was given the opportunity to respond. Overall, there is nothing to indicate that the applicant was denied any procedural fairness measure and was afforded the real and meaningful opportunity to present his case. Ground two has no merit.

   Ground Three

4. Ground three is merely an assertion that the applicant has a right of appeal to this Court. It is not a proper ground of review and has no merit.

5. As the applicant is unrepresented, the Court has perused the relevant Court books together with associated documentation. The Court is unable to detect any unarticulated jurisdictional error on the part of the Tribunal.

   DETERMINATION

6. In these circumstances, as none of the grounds of judicial review have any merit, the application is dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       23 July 2025