ILZ24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 973
•29 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ILZ24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 973
File number(s): PEG 393 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 29 May 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal misconstrued significant harm – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – jurisdictional error not established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 65, 414, 415, 424A, 424AA,
Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 Schedule 2, Part 2, Division 1
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 29 May 2025 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Ismailjee Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 393 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ILZ24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application filed by applicant on 17 October 2024 be dismissed.
3.The applicant pay the Minister’s costs fixed in the sum of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Malaysia. He first arrived in Australia on 12 February 2016, pursuant to a UD-601 Electronic Travel Authority visa. He left Australia on 11 May that year, and he returned again on 15 June 2017 on the same type of visa. That visa expired on 15 September 2017 and the applicant became an unlawful non-citizen.
He applied for a Protection Class XA (subclass 866) visa on 13 December 2017 and associated bridging visas were granted. In the visa application, the applicant claimed that he was seeking protection in Australia because Malaysia has a bad economy, political scandals and corruption. He said that he left Malaysia because of those matters and that the Malaysian people suffer and struggle to live there. He said that the cost of living keeps increasing. The applicant said that he has tried, always, to continue to survive in Malaysia, but the corruption is getting worse and that has led to a bad economy.
On 27 March 2018, the delegate refused to grant the applicant a protection visa. On 6 April 2018, the applicant sought a review of the delegate's decision in the Administrative Appeals Tribunal. On 10 April 2024, the Tribunal sent the applicant an invitation to attend a hearing that had been scheduled for 1 May 2024 to give evidence and present arguments relating to the issues arising in his case. The letter said that the Tribunal had considered the material that it had, but it was not able to make a favourable decision on that information alone.
On 14 April 2024, the applicant sent the Tribunal a completed response to the hearing invitation form. He said that he required a Malay interpreter. He said that he did not intend to rely on any documents at the hearing, and he did not request for the Tribunal to take oral evidence from any other person. The applicant attended the hearing on 1 May 2024 with the assistance of a Malay interpreter. The hearing concluded later in that day. On 3 July 2024, though, the Tribunal wrote to the applicant again and invited him to appear before a second hearing, which was set for 23 July 2024, again to give evidence and present arguments relating to the issues arising in his case.
The letter again went on to say that the Tribunal had considered the material before it, but was not able to make a favourable decision on that information alone. It is not clear from the materials why two hearings were conducted, but in any event, the Tribunal's reasons clearly go through the evidence that was given at both hearings and the analysis of the materials and issues that arose from both of the hearings.
The applicant sent the Tribunal another response to hearing invitation form on 7 July 2024. However, shortly before the second hearing - indeed, the day of the second hearing - the applicant provided documents in support of his claim, and they are particularly claims that went to the support that he pays for his eldest child's university tuition - also birth certificates for his three children, and also court documents written in Malay, in which the applicant is a defendant. They are materials that the Tribunal itemised having received and made some analysis of as part of its consideration.
The Tribunal affirmed the delegate's decision on 17 September 2024.
At both of the hearings, the applicant gave evidence confirming that his claim for protection was only on economic grounds. The Tribunal set out, in summary, the claims for protection at the commencement of its written reasons, and it was something that the Tribunal spoke with and questioned the applicant about.
The applicant gave detailed evidence across both hearings about his life in Malaysia and his travel to Australia. He spoke about his life and his work in Australia and also his perceptions about what his life might look like if he was required to return to Malaysia. The applicant told the Tribunal that if he was allowed to save for two or three more years, he would be willing and able to return to Malaysia. In any event, based on the evidence given by the applicant at the hearings, the Tribunal accepted his work and life history in Malaysia. It accepted the evidence he gave about leaving school, moving to Kuala Lumpur, getting married, having a family, starting his own business, separating from his wife, working in restaurants, travelling to Australia and variously working throughout Australia - the Tribunal accepted all of those things.
It also accepted that the applicant has three children, the eldest being a university student and the other two children are high school students who live with his former mother-in-law on the outskirts of Kuala Lumpur, and every month, the applicant sends money to pay to cover their expenses. The Tribunal also accepted that the applicant feels responsible for his parents, who have poor health, and who are financially dependent on him.
The Tribunal also accepted that the applicant owes about 67,000 Malaysian ringgit to a bank in Malaysia under a loan agreement. The Tribunal also accepted the circumstances in which the applicant said the loan took place - that is, that a friend borrowed 105,000 ringgit, which was secured against a property owned by the applicant, that the friend repaid only 3,600 ringgit of the loan amount and then disappeared, so the bank is calling upon the applicant to settle the loan and interest, and he has also not been able to find his friend.
The Tribunal accepted that the bank sued the applicant under the loan agreement so as to repossess the home and the land and recover the money that it is owed. It accepted that the applicant's credit rating has been negatively affected because he has not repaid the loan, that the house has been auctioned and that the applicant does not know the value of the house and the property and that he did not know if selling the house had reduced the amount he owes in any way. The Tribunal accepted that the applicant is not bankrupt, but that the bank may pursue him for non-payment of any outstanding and remaining moneys, which may well have the consequence of pushing him into bankruptcy on his return to Malaysia in the reasonably foreseeable future. The Tribunal also observed that the applicant was able to pay for his own flight to Australia in 2016, notwithstanding the financial difficulties that he was experiencing, and that he was also able to find work when he returned to Malaysia at that time.
The Tribunal did not accept that the applicant would have difficulty finding work in Malaysia in the near future if he returns again, finding that he has an entrepreneurial spirit and solid work experience in both Malaysia and Australia. It did not accept that it would be hard for the applicant to find work because his name has been blacklisted for not repaying the bank loan because the Tribunal reasoned that this would not affect the ability of a person to obtain employment.
The Tribunal found that the applicant would not suffer serious harm on economic grounds in the reasonably foreseeable future if he returns to Malaysia because of these findings and also, that the applicant said that he would be able to cover his expenses and those of his children and that he could survive on the salary that he could obtain. The Tribunal also accepted that the applicant would not be able to afford to buy his own property or obtain a business loan immediately upon returning to Malaysia, but found that those circumstances do not rise to the level of serious harm.
The Tribunal also found that there is no agent of harm for economic reasons and no systematic and discriminatory conduct against the applicant by the bank or otherwise for economic reasons, including because the applicant said that he understood that the economy applied to everybody, and also agreed that the bank had moved to recover money that was owed to it in accordance with Malaysian law, and that is the type of thing that takes place when a bank is owed money.
The Tribunal was accordingly not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth).
The Tribunal then considered the complementary protection criteria and found that there is no agent of harm in relation to the Malaysian economy. Again, the Tribunal found that the economic situation in Malaysia is one faced by the population generally, and based on evidence available to it, including that given by the applicant, it found that the applicant does not face any risk personally.
The Tribunal also included in that analysis the finding that banks seeking repayment of loans and suing people who borrow and guarantee money under a loan agreement, auctioning property to assist in repayment of loans and potentially pushing people into bankruptcy is a risk faced by the population at large and that the applicant does not face any risk personally due to the actions of the bank. It found that these things, being required to pay a bank loan or potentially being pushed into bankruptcy, does not rise to the level of significant harm in accordance with section 36(2A) of the Act, and it was not satisfied that the applicant is a person in respect of whom Australia owes protection obligations under section 36(2)(aa) of the Act.
The applicant applied for judicial review of the Tribunal's decision on 17 October 2024. He has been self-represented throughout the proceedings. He appeared with the assistance of a Malay interpreter, though he is able to speak and understand some English. I am mindful of the remarks of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, particularly that the consequences of failing to particularise grounds depend on their circumstances.
Although the Minister did not submit that any of the grounds should be dismissed for want of particularisation, these factors and the language barrier make it rarely appropriate to dismiss an appeal or review ground in a migration case for lack of particularisation where there is an application for relief arising out of an application for a protection visa and the person is self-represented. In the circumstances, it is appropriate for the person to be afforded an opportunity to explain orally the matters that they say go to the grounds of review, and make any additions or variations to the application that they may want to make. I gave the applicant the opportunity to expand upon or modify, or particularise his grounds of review to help me understand the errors that I was being asked to consider. As I said, it is appropriate because of the language barrier but also, the fact that the applicant did not file and serve any written submissions, amended application or additional evidence in accordance with the registrar's orders that were made on 21 January this year.
I also explained to the applicant the limitations on the Court's jurisdiction, that it is not permitted to conduct a merits review of the Tribunal's decision and that the Court does not have the power to grant the applicant a visa. I set out for the applicant some of the more commonly recognised categories of jurisdictional error and explained to him that in order to be entitled to the relief he is seeking, he must establish that the Tribunal's decision is affected by jurisdictional error.
I explained to the applicant that jurisdictional error is made out if the Tribunal exceeds the limits of the decision-making authority that is conferred upon it by the statute, and where the error is material in the sense that it could realistically have deprived him of a successful outcome. When I spoke to the applicant about these matters, he did not provide a detailed expansion upon the grounds of review. He had, as a layperson in the court system, some limitations - some difficulty - in expressing his position in relation to these matters.
He referred me to errors made in the initial visa application and also by the migration agent who assisted him. This is not inconsistent with what the applicant told the Tribunal, where he said that after he travelled to Australia for the second time, he was working on a farm, and he was advised that if he wanted to continue then he would need to apply for a visa and that a protection visa would be easier to obtain. It was recorded that he paid an agent to write the application for him. He provided details and documents, and he signed the application without reading it.
When the Tribunal asked the applicant whether he agreed with what was in the protection visa application, he said that at the time, he did not know whether he agreed with the contents or not. He assumed it was approved, so he went with that. But later, and across both hearings, it is recorded that the applicant walked back aspects of what is in the visa application because it is said that at the two hearings, he told the Tribunal that he was claiming protection only on economic grounds and that his return to Malaysia will simply affect how he works to support his children and parents and that he did not leave Malaysia because of political scandals and corruption.
The Tribunal accepted the evidence that was given by the applicant across the two hearings. In any event, and putting all of that aside, and apart from the fact that in general terms an applicant has an onus of establishing jurisdictional error, I have endeavoured to assess not only the recognised categories of jurisdictional error that are apparent through the grounds of review, but also the decision more broadly and consider them based on the materials that I have and the remarks, though limited that they were, that the applicant was able to give me at the hearing.
My assessment of the grounds follows.
Grounds 1 and 2
Grounds 1 and 2, in my view, have some link and can be considered together. Taken together, they broadly assert that the Tribunal misconstrued the risk and fear of significant harm to the applicant upon his return to Malaysia from the economic situation and also, money that he owes the bank. The Tribunal's reasons correctly set out that if a person is found not to meet the refugee criteria in section 36(2)(a), they may nevertheless meet the complementary protection criteria for the grant of a visa.
The Tribunal identified that the meaning of significant harm in that context, what it was, and the circumstances also in which a person will be taken not to face a real risk of significant harm are respectively set out in sections 36(2A) and 36(2B) of the Act. Those provisions were included within an annexure to the Tribunal's decision. The Tribunal also referred to the correct test of significant harm in its analysis of the question of whether the applicant was entitled to complementary protection. The Tribunal referred to the Full Court of the Federal Court decision in GLD18 v Minister for Home Affairs [2020] FCAFC 2, where the Tribunal properly construed the language in section 36(2A) as concerning and only concerning how a visa applicant might be treated by another person. Within that context, the Tribunal found that there was no agent of harm in relation to the Malaysian economy and that the economic circumstances there apply to the population generally. It also found, as I have touched on, that banks seeking repayment of loans and taking legal action against people, auctioning property and potentially pushing people into bankruptcy is all part of a risk that is faced by the population generally.
Section 36(2B)(c) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. Within that analysis and the applicant's own evidence across the hearings, including in answer to a question asked by the Tribunal whether he feared harm if he returned to Malaysia, he said maybe not. He said that the main effect a return will have is how he will work to support his children and his parents. He also said that approaching the age of 50, he would have difficulty finding work in Malaysia because of the preference to give work to young new graduates but acknowledged the improvement in the economic figures in Malaysia. He maintained that it would be hard for people like him to find work. He agreed, or he understood, when it was put to him, that the economy applies to everybody. He agreed that there was no agent of harm because the bank seldom sends people to harm persons.
In relation to the bank's conduct in sending letters and so forth, the applicant agreed that that would be or that that is taking place in accordance with Malaysian law. That is in the same sequence of questioning where it is recorded that in response to concerns raised by the Tribunal that there was no real risk of harm, the applicant asked whether he could be allowed to stay for two or three more years, after which he would be willing and able to return to Malaysia.
There is nothing in the Tribunal's reasoning, in my assessment, that demonstrates that it misconstrued the risk of significant harm or that it, in some other way, narrowly or erroneously construed the existence of the risk of significant harm to the applicant in Malaysia. In my view, the findings that the Tribunal made were open on the evidence and its reasoning displays an engagement with the issues and the evidence that was presented to it. I consider that the Tribunal set out and explained those reasons, and though not directly put, it does not seem, in my view, there is anything illogical or legally unreasonable in the analysis that was made.
I accept the Minister's submission that once the findings that had been made were made, particularly the findings that engaged the risk as applying to the population generally and not the applicant personally, it is not clear how the Tribunal could conclude, other than it did, in relation to the existence of there being any risk of life or a real risk of significant harm as it is put in the grounds. Further, and to the extent, though, again not directly put, that grounds 1 and 2 may be seen to take issue with conclusions of fact or factual findings made by the Tribunal, I note that the degree of weight to be given to particular evidence is a matter for the Tribunal. And as I explained to the applicant at the start of the hearing, in order to make out error, a person must show more than an emphatic disagreement with conclusions.
I do not consider that any jurisdictional error is made out in grounds 1 and 2 as read together, and I dismiss those grounds.
Ground 3
Ground 3 alleges error by the Tribunal as expressed that it had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Act.
The Tribunal has a statutory jurisdiction to undertake a review of the delegate's decision. Section 414 provides that if a valid application for review is made, then the Tribunal must review the decision. Section 415 provides that the Tribunal has jurisdiction to do a number of things and affirming the decision under review is one of those things.
So, the point made in a lack of jurisdiction, in my view, is misconceived. I also consider that when read together, sections 36(2) and 65 of the Migration Act require a decision-maker to refuse to grant a visa if the decision-maker is not affirmatively satisfied that the criteria for the visa has been made out. Again, though not directly put, to the extent that this may be stated as legally unreasonable or illogical or irrational in terms of a state of satisfaction, the Full Court reasonably recently restated the principles that can characterise a decision or state of satisfaction as legally unreasonable in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 as:
The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at 517 –518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20 –21 [38]; Re Minister for Immigration &Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.[1]
[1] Paragraphs [33] to [35].
In my view, again returning to the applicant's own evidence and the concessions made in questioning by the Tribunal, some of which that I have referred to and going on to include the applicant's remarks that he could survive on the salary that he could obtain, but he could not afford his own property, and also, his remarks that distilled the claim to economic grounds and walking back the claims made in the protection visa application about political scandals and corruption, I accept that, based on that evidence and the Tribunal's findings, that none of the applicant's claims give rise to a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm. It is difficult to see how the Tribunal could not be affirmatively satisfied that the criteria were not met, and in the circumstances, it was legally required by virtue of the requirement to conduct the hearing and determine the review application to affirm the delegate's decision. The findings that the Tribunal made were, in my assessment, reasoned, cogent and based on evidence that was before it, including, as I have said, the applicant's own evidence.
So, in the circumstances, I do not find that ground 3 has been established, and I dismiss ground 3.
Ground 4
Ground 4, as pleaded, alleges that the Tribunal failed to investigate the applicant's claims, especially the grounds of persecution in Malaysia. As I have said, the applicant did not claim to fear harm based on persecution in Malaysia and walked back, at the hearing, the grounds or the basis of his application, including the references he made to the circumstances in which the protection visa application was prepared, signed and filed. Ultimately, the Tribunal accepted the claim as put as an economic claim and based on the debt that was owed to the bank, which, again, not only did the Tribunal accept existed, but found cogently and rationally, in my opinion, was a matter that affected the population at large. To the extent that the ground 4 alleges an error by failing to investigate an applicant's claims, it is an applicant's responsibility, as a general proposition, to put before the Tribunal the arguments and evidence that support their claims.
There is no general duty to inquire and the circumstances in which a Tribunal may be legally required to inquire or in which a failure to inquire may constitute jurisdictional error are limited. Those principles were summarised by Judge Forbes in EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105[2] as:
[2] At [51] – [57].
The Tribunal operates in an inquisitorial, rather than adversarial, fashion and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision.
However, the Tribunal is under no general duty to use, or to consider using, its investigative powers to obtain information relevant to the review. Although the Act confers on the Tribunal wide discretionary powers to investigate an applicant’s claims, the legislation does not impose on the Tribunal a general duty to make inquiries in addition to the information provided to it by the applicant.
It is well-established that a decision-maker has no duty to make his or her own inquiries in order to make out an applicant’s case.
However, in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [60], Kenny J observed (citations omitted):
[…] On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her. These authorities stretch back over the life of the Tribunal[…] On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
The circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are “ a confined category of case ”.
As to the circumstances where a failure to inquire might give rise to jurisdictional error, the High Court held in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 ( SZIAI ) at [25] that:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a duty to inquire, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case […]” (emphasis added)
Further, in SZIAI Heydon J observed at [52]:
The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve.
(citations omitted, emphasis as in original)
Ultimately, in my assessment, there is nothing in the Tribunal's reasons that show an obvious inquiry about a critical fact that could be easily ascertained that would justify the Tribunal being required to make an inquiry and ultimately, a constructive failure to exercise jurisdiction.
The Tribunal set out the claims that were made in the visa application. It, as I said, showed an engagement with and analysis of those claims that focused on the fear of returning to Malaysia because of the economic situation and the walked-back claims with respect to the additional part of political scandal and corruption. But certainly, the engagement with and the analysis of the evidence about the debt owed to the bank, the steps taken by the bank and the applicant's personal circumstances, life circumstances and the work that he had done, employment and academic history in both Australia and Malaysia were matters that the Tribunal clearly analysed and reasoned.
I accept that it is abundantly clear that there is an active intellectual engagement with the claims by the Tribunal. And I do not consider that there is any merit in ground 4 as it is set out, or otherwise, so I dismiss ground 4.
Ground 5
Ground 5 alleges error by the Tribunal in failing to comply with section 424A, when read with section 424AA, of the Act. Section 424A is an exhaustive statement of the Tribunal's obligation to put information to an applicant and invite a person to comment on it. However, certain information is excluded from the application of that provision. Country information, an applicant's written claims and oral evidence given by a person to the Tribunal are all within that exclusion.
The Tribunal's decision was based upon the claims for protection. In a detailed sense, the evidence given by him at both of the hearings and country information - all of those materials fall within the exceptions. This is not a particularised ground, but I have gone on to consider it, as best I can, in relation to all of the matters and encompassing a general procedural fairness analysis.
I accept the submissions that were made to me on behalf of the Minister that there was compliance with the Tribunal's procedural fairness obligations, commencing at the invitation to submit a prehearing form back on 30 November 2023. And notwithstanding that that was not engaged with, that engagement then occurred once invitations to attend hearings were made - both hearings - attendance of an interpreter, detailed evidence and constructive questioning by the Tribunal to the applicant. He supplied documents on the day of the second hearing which the Tribunal considered and took into account. There is nothing evident in the Tribunal's reasons, there is nothing that suggests it relied on information that was not known to the applicant, that was not put before him, that he was not invited to make comment upon, or that he was not already aware of.
In my assessment, there is no denial of procedural fairness evident in the Tribunal's reasons. It gave a detailed consideration to his claims as I have set out, so I do not consider there is any merit in ground 5 as pleaded or otherwise and I dismiss ground 5.
Conclusions
In all of the circumstances and having dismissed all of the grounds raised by the applicant and my assessment of the Tribunal's decision more broadly, I will make an order dismissing the application.
Counsel for the Minister has applied for an order that the applicant to pay the Minister's costs of the proceedings fixed in the sum $6,500. The applicant has not made any detailed submissions against an order but has asked questions about the process that would follow after an order might have been made. I explained to the applicant the question of whether a costs order should be made at all is a different one to the question of enforcement of an order.
In circumstances where the application has been dismissed, I will order the applicant pay the Minister's costs fixed in the sum of $6,500. In doing so, I note that that sum is within the amount that is specified in Schedule 2, Part 2, Division 1 of the Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 and given the amount of work that has been done, including preparing the court book, written submissions and attendance at the hearing, I consider that the sum sought is fair and reasonable.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 23 June 2025
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