JIB24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1218
•1 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JIB24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1218
File number(s): PEG 417 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 1 August 2025 Catchwords: MIGRATION – decision of the Administrative Appeals Tribunal – whether the Tribunal adhered to procedural fairness requirements – where the applicant elected to not attend Tribunal hearing – whether there was a real risk that the applicant would suffer significant harm – active and intellectual engagement with the evidence of the applicant – grounds of judicial review reveal no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 5 J(1)(a), s 36(2)(a), 36(2)(aa), 424A
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
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQU16 v Minister for Home Affairs [2021] HCA 10
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
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
Singh v Minister for Home Affairs (Singh) [2019] FCAFC 3
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 21 July 2025 Place: Perth Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Mayne, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 417 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIB24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
1 AUGUST 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 8 October 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.
The applicant arrived in Australia on 30 January 2018 as the holder of an Electronic Travel Authority (ETA) visa.
On 8 February 2019, the applicant applied for the visa, claiming he had left Malaysia as an illegal money lender would harm him due to his inability to repay a debt he owed.
On 26 April 2019, the delegate refused to grant the applicant the visa on the basis that they were not satisfied s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) were met.
On 30 April 2019, the applicant lodged an application for review of the delegates decision with the Tribunal.
On 8 October 2024, the Tribunal affirmed the decision not to grant the applicant the visa.
THE TRIBUNAL’S DECISION
At [1] – [2], the Tribunal set out the application for review and the background of the matter.
The Tribunal had regard to the criteria for a protection visa in s 36 of the Act, Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and the Ministerial Direction No 84 [3] – [7]. 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) [8].
The Tribunal accepted that the applicant was a Malaysian citizen and accepted that Malaysia would be the receiving country [9].
At [10] – [18], the Tribunal outlined the applicant’s personal background.
At [19] – [23], the Tribunal outlined the information before the delegate, and the delegates summary of the applicant’s claims for protection, which was as follows:
•The business in Malaysia failed to generate adequate cash flow to meet its expenses. Subsequently they were unable to afford their monthly expenses such as home and car loan repayments, which impacted on their daily life.
•They borrowed from an illegal money lender to salvage their business and repay their loans.
•The money lender kept disturbing their family, hit them, kick them, and vandalised their house by splashing red paint on the walls.
•They attempted to relocate to Singapore, but the money lender found them.
•If they return to Malaysia, the money lender will come to them and their family, hit them and tell them to traffic drugs. If they refuse, they will be harmed.
•They do not believe the authorities can help because it is a personal issue.
The Tribunal noted that on 10 July 2024 it had sent the applicant a pre-hearing information form, to which the applicant responded to on 12 July 2024, and in which he relied on the protection claims advanced in his visa application [24].
At [25], the Tribunal further noted that on 4 September 2024, it had invited the applicant to attend a hearing as it was not satisfied that on the basis of the material before it, that a review could be decided in the applicant’s favour. However, the applicant advised the Tribunal that he did not wish to participate in a hearing and consented to a decision being made on the papers.
The Tribunal outlined that if the applicant had attended a hearing, it would have discussed with the applicant whether the harm that he feared was for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s 5 J(1)(a).
At [30], the Tribunal considered the fact that the applicant could rely on the Royal Malaysian Police (the RMP) as country information suggested that Local and International sources consider the RMP to be a professional and effective police force.
Based on the limited evidence before it, the Tribunal was not satisfied that the information contained in the visa application was correct [33]. Further, based on country information, the Tribunal found that there was not a real chance that the applicant would be seriously harmed if he returned to Malaysia [33].
The Tribunal noted that even if it had been satisfied of the factual matters underpinning the protection claim, it did not accept that the harm feared is for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a).
Accordingly, at [34], the Tribunal found that the applicant did not have a real chance of serious harm arising from being chased by money lenders, for reasons mentioned in section 5J (1) of the Act or any other claimed reasons if he were to return to Malaysia from Australia now or in the reasonably foreseeable future. As such the Tribunal found that the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
The Tribunal went on to consider whether the applicant met the complimentary protection criterion under s 36 (2) (aa) of the Act [35].
Given that the Tribunal found that there was no real chance that the applicant would be seriously harmed if returned to Malaysia, and that the real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, in the absence of any independent evidence to support his claims, it followed that the Tribunal found that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there was no real risk the applicant would suffer significant harm if he was returned to Malaysia pursuant to section 36(2)(aa) of the Act [36] – [38].
Accordingly, at [42], the Tribunal affirmed the decision not the grant the applicant a visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances two grounds of judicial review contained in an Originating Application filed with the Court on 27 October 2024. They are as follows:
1.The Tribunal did not properly assess the specific threats and personal circumstances I presented regarding the harassment and violence from illegal money lenders. It failed to fully evaluate how these threats undermine the protection I could receive from the authorities in Malaysia, despite evidence showing their limited capacity to address such personal security issues.
2.The Tribunal relied heavily on general country information about Malaysia’s law enforcement capabilities without adequately considering the specific evidence I provided regarding the ineffectiveness and corruption of local police in dealing with illegal money lenders. It assumed that state protection would be available to me, despite my evidence showing that such protection is not accessible or reliable in my case. Furthermore, the Tribunal failed to properly assess whether I would face significant harm, such as cruel or inhuman treatment, if returned to Malaysia.
THE APPLICANT’S SUBMISSIONS
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. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he have wished to.
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 was provided to the Court by the applicant in support of his case. The applicant was taken to his initiating Application and Ground One was translated to him. The applicant was asked what he wanted to say in relation to that ground. In response, the applicant told the Court that if he went back to Malaysia, he was not sure he could be protected from the money lenders. The applicant did not consider that Malaysian Police and Government could protect him.
In relation to Ground Two, the applicant repeated that he would not be protected from the money lenders. The applicant had paid back the principal amount to the money lenders, and they continued to want more interest. The applicant said they would find him in Malaysia, and he was afraid to go back.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submits that the complaint in ground one “rings hollow” due to the fact that the applicant did not provide any details or evidence of any “specific threats” from the illegal money lenders, or of the Malaysian authorities’ “limited capacity to address such personal security issues”.
The Tribunal’s compliance with its exhaustive procedural fairness obligations under Division 4 of Part 7 of the Act meant that the applicant was afforded opportunities to provide evidence or details about his claims. However, the applicant elected not to avail himself of these opportunities and 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].
There was also no information that the Tribunal was required to invite the applicant for comment or response under s 424A of the Act. This is because the information the Tribunal relied on in making its decision were those contained in the applicant’s visa application and the country information before it, both of which were exempt under s 424A(3)(a) and (ba) respectively.
In circumstances where the Tribunal correctly observed that the applicant had provided no evidence that the money lender would still pursue him after six years since he departed Malaysia, and where he had chosen not to attend a hearing to give evidence and make arguments in support of his claim, the Tribunal could not be satisfied that his claims were correct or that he would still be pursued by any money lender. This is unsurprising given that it was the applicant’s responsibility to provide sufficient evidence to the Tribunal to satisfy it that he met the visa requirements: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [69].
In any event, the Tribunal correctly set out the applicant’s bare claims and evidence at [10] – [23], and its reasons demonstrate that it actively and intellectually engaged with this information in its assessment of whether s 36(2)(a) or (aa) of the Act were satisfied: 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].
Contrary to ground two, it is well-established that the identification of relevant country information, and the weight to be afforded to it, is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10 (NAHI) at [13]. The applicant had not provided any evidence which contradicted the information contained in the DFAT country information report, as he appears to allege now.
Further, the Tribunal did not “assume” that state protection would be available to the applicant, and its reasons at [30] and [33] demonstrate that it engaged with the DFAT report which expressly stated that the Royal Malaysian Police were a “professional and effective police force”. It was therefore open and reasonable for the Tribunal to conclude that the applicant would not face a real risk or chance of harm by relying on this country information, especially where it was already not satisfied that the applicant would be pursued by a money lender, or that those claims were even correct due to the lack of evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131], [135].
The Tribunal’s reasons at [36] – [38], plainly demonstrate that it considered whether there was a real risk that the applicant would suffer significant harm, and it was entitled to rely on its previous factual findings under its assessment of the refugee criterion: DQU16 v Minister for Home Affairs [2021] HCA 10 at [27]; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56].
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 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 Authority: NAHI.
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].
First, the Court is satisfied the Tribunal complied with all relevant procedural fairness requirements. The applicant was invited to attend the hearing, however he declined to do so. The applicant presented no evidence to the Tribunal to support his claim in respect of a protection visa. Further, the applicant has provided no material to the Court in support of his complaints of jurisdictional error by the Tribunal.
In relation to ground one, the Court is satisfied that the Tribunal fully considered the limited material that was before it which consisted of bare and unsupported claims by the applicant. The Court is satisfied that the Tribunal actively and intellectually engaged with the evidence and claims that were before the Tribunal: Singh v Minister for Home Affairs [2019] FCAFC 3 (Singh) at [37].
In relation to ground two, as set out above, the identification of relevant country information and the weight to be afforded to it is a matter for the Tribunal. The Tribunal properly set out at [22] – [23] relevant country information that was used by the delegate as well as at [30], country information contained in a DFAT report dated June 2024, that the Royal Malaysian Police is a professional and effective police force. Further, there was no information before the Tribunal as to whether the risk of harm claimed by the applicant extends across Malaysia.
The Court is satisfied that it was open and reasonable for the Tribunal to conclude, based on the country information that was before it, that the applicant was not at real risk or chance of harm from a money lender if he were to return to Malaysia. The Court is satisfied the Tribunal correctly applied the complementary protection criterion on the evidence before it. It was open to the Tribunal not to be satisfied that the applicant was at real risk of significant harm, including torture or being subjected to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment if he were to return to Malaysia.
The applicant’s oral submissions, such as they are, rise no higher than vehement disagreement with the conclusion arrived at by the Tribunal, and ask this Court to undertake impermissible merits review. Both grounds one and two have no merit.
As the applicant is unrepresented, the Court has perused the relevant Court books and associated documentation. The Court is unable to ascertain any articulated jurisdictional error.
DETERMINATION
In these circumstances, the Court has no option other than to dismiss the application.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 1 August 2025
0
13
2