JTX24 v Minister for Immigration and Citizenship

Case •

[2025] FedCFamC2G 1221

•

1 August 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

JTX24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1221  

File number: PEG 434 of 2024
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 1 August 2025
Catchwords:  MIGRATION – Decision of the Administrative Appeals Tribunal –Protection (Subclass 866) visa – whether the Tribunal complied with procedural fairness requirements –  where the grounds of judicial review reveal no jurisdictional error – application for judicial review holds no merit –   application dismissed with costs
Legislation:

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

Migration Regulations 1994 (Cth) Schedule 2
Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

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

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10

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
Division: Division 2 General Federal Law
Number of paragraphs: 50
Date of hearing: 22 July 2025
Place: Perth
Solicitor for the Applicant: Self-represented litigant
Solicitor for the First Respondent: Ms Ismailjee, Sparke Helmore Lawyers
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

PEG 434 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JTX24

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

  1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 10 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).

  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 4 April 2018 on an Electronic Travel Authority (ETA) visa.

  5. On 24 June 2018, the applicant applied for the visa, claiming that he was a member of a gang, that he had attempted to leave the gang, that as a result of trying to leave the gang he had been tortured by the gang, and that if he returned to Malaysia, his life would be in danger on that basis.

  6. On 11 February 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.

  7. That same day, the applicant lodged an application for review with the Tribunal.

  8. On 10 October 2024, the Tribunal affirmed the decision not to grant the applicant the visa.

    THE TRIBUNAL’S DECISION 

  9. At [1] – [4], the Tribunal set out the application for review and the background of the matter.

  10. At [7] – [9], the Tribunal outlined the information before the delegate, and the delegates assessments of the applicants claims for protection. The Tribunal noted that as part of his application for the visa, the applicant declared that he had not been associated with persons involved in criminal conduct or that are engaged in violence either overseas or in Australia. However, within the section setting out his reasons for leaving Malaysia, the applicant described that (errors in original)  “…before this I was involved in gangsterism in Malaysia. This group’[s activities] in collecting the protection fee and robbe]ry and assas[s]in, I have decided to leave that groups.”

  11. At [12] – [14], 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 that he did not wish to participate in a 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.

  12. 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 [16] – [20]. 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) [21] – [22].

  13. The Tribunal accepted that the applicant was a Malaysian citizen, and accepted that Malaysia would be the receiving country [24].

  14. In assessing the general credibility of the applicant’s claims, the Tribunal had regard to Part 13 of the Protection Visa Processing Guidelines dated 17 April 2024 and to the Administrative Appeals Tribunal Guidelines on the Assessment of Credibility (July 2015) [27].

  15. At [29], the Tribunal noted that it is an applicant’s responsibility to make their case. In this case, the Tribunal observed that the applicant had not provided the level of detail necessary to satisfactorily establish the relevant facts of his case. The Tribunal further noted that it is not required to accept uncritically any or all of the allegations made by an applicant, and it is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out [31].

  16. The Tribunal had reservations that the applicant, who was 19 when he arrived in Australia, had been actively involved in a criminal gang in Malaysia [33]. The Tribunal observed that membership or former membership of a criminal enterprise such as a gang did not ordinarily amount to a particular social group as it was not innate, immutable, fundamental to identity or conscience or make a person otherwise distinguishable from another within society [34]. The Tribunal was also not satisfied that the applicant’s reported involvement in the gang could amount to an expression of political opinion [36].

  17. Based on country information, the Tribunal was satisfied that even if the applicant’s claimed membership of a gang amounted to a particular social group with respect to which he would be subjected to persecution for the essential and significant reason of his membership of that group, which the Tribunal did not accept, there are effective protection measures in Malaysia, including Sarawak, and that this would provide effective, durable protection against the claimed persecution [41].

  18. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Malaysia, as required for the purposes of the definition of a “refugee” contained in ss 5H and 5J of the Act [42]. Therefore, the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.

  19. The Tribunal went on to consider whether the applicant met the complimentary protection criterion under section 36 (2) (aa) of the Act. Whilst the Tribunal was prepared to accept, based on country information, that the applicant may be at risk of harm from his former criminal associates if returned to Malaysia, however, given the lack of evidence offered by the applicant to support his claims to fear harm, the Tribunal considered this risk to be unlikely [46].

  20. Based on country information, the Tribunal was satisfied that there was adequate protection available to the applicant such as to render the risk of any significant harm to be less than a real risk [49].

  21. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act [51].

  22. Accordingly, at [53], the Tribunal affirmed the decision not the grant the applicant a visa.

    GROUNDS OF JUDICIAL REVIEW

  23. The applicant advances three grounds of judicial review contained in an Originating Application filed with the Court on 7 November 2024. They are as follows:

    1.The Department and the Tribunal should have considered wl1ether or not the applicant will face a real risk of significant harm from gangs if he returns to Malaysia. In considering this, The Department and the Tribunal need to consider the country information and the applicant's personal circumstances. There are instances of corruption in the police force, and the Malaysian authorities are not willing to help the applicant because of tt10 discrimination against the Chinese Malaysians. Thus, the Malaysian authorities are not able to provide an adequate level of protection to the applicant.

    2.Malaysia's issues of judicial independence, arbitrary verdicts, selective prosecution, delays to court-ordered relief for civil plaintiffs, and preferential treatment of some litigants and lawyers persist in Malaysia. The defendants generally had adequate time to prepare a defence, particularly those with the financial means to engage private counsel. Government legal aid is limited and generally of poor quality.

    3.Although strict rules of evidence apply in court in Malaysia, defence counsel may be impeded by limited pretrial discovery. The slow movement of cases through the under resourced court system can lead to lengthy pretrial detention periods.

    THE APPLICANT’S SUBMISSIONS

  24. 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 so wish to.

  25. At the commencement of the hearing, the Court explained 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.

  26. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that if he went back (to Malaysia), he would face serious harm. The applicant stated that he would like to go back home, however it is very dangerous, so he would like to stay here (Australia).

  27. The applicant was asked if he could identify any legal or jurisdictional error in the Tribunal decision. The applicant was not able to do so.

  28. At the conclusion of the first respondent’s oral submissions, the applicant was asked if you wish to state anything in reply.  The applicant answered “No”.

    THE FIRST RESPONDENT’S SUBMISSIONS

  29. By ground one, the applicant complains that the Tribunal should have considered whether the applicant would face a real risk of significant harm from gangs. The applicant complains that the Tribunal ought to have considered the following in its decision: the corruption in the police force; the discrimination against Chinese Malaysians; and that the authorities are not able to provide an adequate level of protection to the applicant.

  30. This ground fails on the facts as the Tribunal correctly identified and set out the applicant’s bare claims and evidence. There is nothing on the material before the Court to suggest that the Tribunal misconstrued any relevant provision of the Act or otherwise failed to investigate his claims, particularly noting there was no obligation for the Tribunal to make his case for him: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].

  31. Before a visa can be granted,  ss 65 and 36(2) of the Act require that the Tribunal reach a requisite level of satisfaction in respect of the relevant criteria. Section 65(1)(b) of the Act requires that if the Tribunal, as the relevant decision-maker, is not satisfied, it must refuse to grant the visa. Clearly, in the applicant’s case, the Tribunal was not satisfied given he had not provided the level of detail necessary to satisfactorily establish the relevant claimed facts: [29]. The Tribunal noted the lack of evidence provided by the applicant to support his claims: [28], [46], [50]. The Tribunal noted that the applicant declined to attend the hearing even though the hearing invitation made it clear that the Tribunal had considered the material and was unable to make a favourable determination on the papers: [29].

  32. Further, the Tribunal was under no obligation to investigate the applicant’s claims. It is trite law and well established that the duty imposed on the Tribunal is a duty to review, not a duty to inquire: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. This complaint also rings hollow where the applicant declined to attend a hearing before the Tribunal or provide further evidence, especially in circumstances where the applicant was on notice from both the delegate’s decision and the Tribunal’s hearing invitation, that a favourable decision could not be made on the papers [28] – [29].

  33. Grounds two and three are an assertion by the applicant that Malaysia has issues of judicial independence. The applicant alleges that “defence counsel in Malaysia may be impeded by limited pretrial discovery”. Grounds two and three do not raise any complaint of jurisdictional error and instead simply seek relief and raise complaints about supposed issues with the Malaysian courts. Grounds two and three are not proper grounds of review as they do not articulate any jurisdictional error and as such should be dismissed.

  34. For completeness, it is noted that the Tribunal complied with its exhaustive procedural fairness obligations set out in Division 4 of Part 7 of the Act. On 11 July 2024, the Tribunal invited the applicant under s 425 of the Act to attend a hearing on 29 July 2024: [14], which he declined to attend, instead elected to have a decision made on the material before the Tribunal: [14], [29]. Furthermore, there was no information that the Tribunal was required to put to the applicant under s 424A of the Act. The Tribunal’s decision to affirm the delegate’s decision was based on the claims and the limited evidence provided by the applicant in his visa application, and the country information before the Tribunal, all of which fall within the exceptions of s 424A(3)(ba), (b) and (a) of the Act respectively. This was a logical, rational and reasonable conclusion and not one that no other decision maker would have made.

    CONSIDERATION

  35. 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.

  36. 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.

  37. 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.

  38. It is well settled that country information and the weight given to that information is a matter for the Tribunal: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.

  39. 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].

  40. 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]. The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82].

  41. Firstly, the Court is satisfied that the Tribunal complied with all procedural fairness requirements. The applicant was properly invited to a hearing to give evidence and present submissions. The applicant declined to do so, after having been warned that the Tribunal was unable to come to a favourable decision in his case based on the material that was before it at the time. The Court is satisfied there was no information that the Tribunal was required to put to the applicant. In circumstances where the applicant failed to provide any information or additional evidence, it is perhaps unsurprising, that the Tribunal affirmed the delegate’s decision.

  42. Ground one is a complaint that the Tribunal should have considered whether the applicant would face a real risk of significant harm from gangsters if he were returned. The applicant complains that Malaysia authorities would be unable to provide him with an adequate level of protection.

  43. The Court is satisfied that this claim cannot be sustained. The Tribunal properly set out the applicant’s claims, such as they were, at [7] of the decision record. Those claims were then discussed at [32] – [38].

  44. At [39], the Tribunal set out the relevant country information. The Tribunal found there were protection measures in place in Malaysia including Suwarak, that would provide effective durable protection against the applicant’s claims of persecution from criminal gangs.

  45. At [46], the Tribunal considered, based on country information, that the applicant may be at risk of harm from his former criminal associates if returned to Malaysia. However, given the lack of evidence offered by the applicant to support his claims of fear, the Tribunal considered that risk and likelihood. Accordingly, at [49], the Tribunal found that any risk of harm was less than a real risk.

  46. The Court is satisfied that the Tribunal correctly identified and engaged with the applicant’s claims for protection. However, based on the evidence that was before it, and for the reasons it gave, the Tribunal correctly determined the applicant was not entitled to a protection visa.

  47. There is nothing that is legally unreasonable, irrational, or illogical in the Tribunal’s findings. Ground one, largely seeks for the Court to engage in impermissible merits review. Ground one has no merit.

  1. Grounds two and three are simply statements about the applicant’s views as to the Malaysian justice system. They do not point towards any jurisdictional error in the Tribunal’s decision and are not proper grounds of judicial review. Grounds two and three have no merit.

  2. As the applicant is unrepresented, the Court has perused the relevant Court books and other papers associated with the Tribunal’s decision. The Court is unable to detect any articulated jurisdictional error.

    DETERMINATION

  3. In these circumstances, the Court has no option other than to dismiss the application with costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated: 1 August 2025

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