AFT21 v Minister for Immigration and Citizenship [2026] FedCFamC2G 386

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 7 January 2021. That decision affirmed an earlier decision of a delegate of the first respondent not to grant the first applicant a Protection (Class XA) (subclass 866) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Act).

1. On 12 December 2016, the applicant, a citizen of Malaysia, first arrived in Australia as the holder of an electronic travel authority visa.
2. On 24 February 2017, the applicant lodged an application for a protection visa.
3. Following a decision by a delegate on 24 May 2017 to refuse to grant the applicant a protection visa, the applicant lodged an application for review of the delegate's decision with the Tribunal.

1. On 7 January 2021, the Tribunal affirmed the decision under review not to grant the applicant a protection visa.
2. The Tribunal affirmed the refusal of the applicant's protection visa, finding that he did not meet the refugee or complementary protection criteria. Although the Tribunal accepted that he had experienced an assault by relatives in late 2015 related to a family financial dispute, and that he owed money to his aunt, it found no real chance that he would face serious harm if returned to Malaysia.
3. Several factors were significant in coming to this conclusion. They were: (i) no further violence occurred in the 12 months before he left Malaysia; (ii) his aunt did not approach him in Malaysia after his uncle and cousins attacked him in late 2015; (iii) the aunt has taken no action to recover the debt after the applicant's father said he would take responsibility for the debt; (iv) his relatives had not contacted him during his four years in Australia; (v) he had repaid half of the debt owed; and (vi) he intended to live at his home in Sitiawan rather than on Pangkor Island (where his family lived).
4. The Tribunal also found that state protection was reasonably available, noting Malaysia's functioning criminal justice system and police force, and that his suspicions of police corruption were unsupported.
5. The Tribunal further concluded that the applicant's broader concerns - such as difficulty finding work in Malaysia, and a preference for living in Australia - did not amount to persecution or significant harm as defined in the Act. It accepted that the Malaysian economy had been affected by COVID‑19 but found he could still secure employment, given his work history in both countries. The Tribunal was not satisfied that he faced any real risk of torture, cruel or inhuman treatment, degrading treatment, or other forms of significant harm if returned.
6. Accordingly, the Tribunal found that Australia did not owe the applicant protection obligations under either s 36(2)(a) or (aa) and affirmed the decision to refuse the protection visa.

1. On 28 February 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 7 January 2021. The application contains three grounds of review. They are (as written):
   1. The decision made to refuse my Protection Visa application has a jurisdictional error.
   2. The decision maker's decision was based on a report on the poverty level in Malaysia that was falsely reported by the Malaysian government.
   3. The decision maker's claims that the applicant would not face harm when he returns to his home country is incorrect.
2. To succeed on the application the applicant must establish that the Tribunal committed material jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [2] and [7].
3. On 10 December 2025, the proceedings were docketed to me and set down before me for final hearing on 3 March 2026.

1. At the hearing of this matter on 3 March 2026, the applicant appeared unrepresented, with the assistance of a Mandarin interpreter. Mr C Dietrich of Minter Ellison appeared for the first respondent.
2. At the commencement of the hearing the applicant sought leave to file a four-page written submission. Mr Dietrich had no objection to it being filed in Court. I allowed the applicant's submissions to be filed in Court.
3. The applicant's submissions identify another five grounds of judicial review. They are:

Ground 4: The Tribunal unfairly relied upon country information, a DFAT Country Report issued on 13 December 2019, and not on the applicant's evidence.

Ground 5: The Tribunal assumed that the applicant's uncle and cousin would not harm the applicant if he returned to Malaysia.

Ground 6: Did not consider if depression and past family violence amounted to significant harm.

Ground 7: The Tribunal erred when making a relocation finding.

Ground 8: It was not relevant to consider the World Bank Press Release on whether the applicant would be able to secure employment if he returns to Malaysia.

1. I invited both parties to make oral submissions on their respective cases. I specifically asked the applicant, as he was unrepresented, if he wanted to make any submission in support of both the grounds in his application and in his written submissions.
2. The applicant made three oral submissions. The substance of those submissions were as follows. First, he raised issue with the Tribunal relying upon country information which he said was unfair to him because he could not provide evidence against it. Second, he submitted he would be harmed by his family if he returned to Malaysia, because his cousin hates him. Third, he submitted his life in Australia was peaceful and he did not want to go back to Malaysia.
3. Mr Dietrich told the Court he relied upon the first respondent's written submissions on the three grounds in the application. He made brief oral submissions on the five grounds of review identified in the applicant's submissions filed in Court.

1. Below I set out my consideration of the three grounds of review in the application, and the five grounds of review in the applicant's written submissions.

1. Ground 1 merely contains an unparticularised assertion the Tribunal committed jurisdictional error. Further, the applicant did not make any submission on this ground at the hearing.
2. Grounds of review that are devoid of particularisation are meaningless and must be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ.
3. For this reason, ground 1 is dismissed.

1. In this ground the applicant complains that the Tribunal's decision was based on a report on the poverty levels in Malaysia, which the applicant alleges is based on false reports from the Malaysian Government.
2. In its decision the Tribunal relied upon two pieces of country information, a DFAT Country Report on Malaysia issued on 13 December 2019 (DFAT Report) and a press release from the World Bank concerning Malaysia's economy (World Bank Press Release). As the first respondent submits, and I accept, under the relevant Ministerial Direction No. 84, the Tribunal was required to take the available DFAT country information assessment into account to when making its decision. The Tribunal did this: see Tribunal Decision (TD) [14].
3. As the first respondent also submits, and I accept, the identification and the weight the Tribunal gives to country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ.
4. The applicant's allegation this information was based on false reports from the Malaysian Government is baseless, and I reject it. The accuracy of the DFAT Country Report on Malaysia issued on 13 December 2019 and a press release from the World Bank concerning Malaysia's economy is also a matter for the Tribunal: SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16] per Hely J.
5. Ground 2 is rejected.

1. As to ground 3, it merely asserts a disagreement with the Tribunal's factual finding that the applicant would not face harm when he returns to his home country.
2. Merits review is not permitted under s 476 of the Act. As the first respondent submits and I accept, merely expressing disagreement with the Tribunal's findings invites the Court to engage in impermissible merits review: Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17] per Allsop CJ, Besanko and O'Callaghan JJ.
3. Ground 3 is unmeritorious.

GROUNDS IN APPLICANT'S WRITTEN SUBMISSIONS (GROUNDS 4-8)

1. I have derived ground 4 from what is contained in paragraphs 1 and 2 of the applicant's written submission. In this ground he argues, similarly to ground 2 of his application, that the Tribunal erred in relying upon country information rather than the applicant's evidence. In his oral submission, the applicant emphasised he considered the way the Tribunal treated country information was unfair to him.
2. This ground does not identify an arguable jurisdictional error. As I found in ground 2, in so far as the DFAT Report was concerned, the Tribunal was obliged to consider that report under Direction 84. In relation to the World Bank Press Release, it was a matter for the Tribunal as part of its fact finding function under the Act, what weight it considered appropriate to give that document in making its decision: see SZANK at [16]. Whether the Tribunal accepts country information over other evidence, such as the applicant's own evidence, or gives the country information more weight on a particular issue, is a factual matter for the Tribunal. That is also part of its fact finding function. The Court does not have jurisdiction to review the merits of the Tribunal's decision on factual matters: see Djokovic at [17].
3. Ground 4 has no substance.

1. I have derived ground 5 from paragraph 3 of the applicant's written submissions. In essence he complains that the Tribunal erred by assuming that his family, and in particular his uncle and cousin, would not harm him if he returned to Malaysia.
2. This ground does not identify an arguable jurisdictional error. Moreover, it misunderstands the Tribunal decision. The Tribunal did not make any assumption that his uncle and cousin would not harm him if he returned to Malaysia. Rather, the Tribunal found in TD [69]:
   1. ...The Tribunal accepts that the applicant feels that his pride and dignity would be affected if he returned to Malaysia and his cousins resumed their insults and harassment of him. However, the Tribunal considers that as they have not attempted to contact him in Australia or pursue the feud in the last four years, they are unlikely to resume their harassment of him if he returns to Malaysia.
3. At TD [70]-[73] the Tribunal also found that the physical dispute with his uncle and cousins was partially due to the question of a family inheritance, and the ongoing harassment and insults from his cousins was a response to the outstanding debt owed to his aunt. The Tribunal was also satisfied that on the evidence the dispute about the inheritance is unlikely to result in any further conflict between the applicant and his cousins. The Tribunal also accepted there was evidence to support the Malaysian state being willing and able to offer protection to the applicant to protect him from the claimed harm from his uncle and cousins. These findings were reasonably open on the evidence (including the country information about the Royal Malaysian Police force). The Tribunal did not simply assume he would not be harmed.
4. Ground 5 has no merit.

1. I have derived ground 6 from paragraph 4 of the applicant's written submissions. He complains that the Tribunal failed to consider a claim based on the applicant suffering family violence and depression.
2. As the first respondent submitted, and I agree, no claim based on depression was ever made to the Tribunal. Therefore, it cannot be said that such a claim arose squarely on the material before the Tribunal: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1.
3. In so far as the claim of family violence was concerned, the Tribunal dealt with the claim, as made, that he feared harm from his family, in particular his uncle and cousins who the Tribunal had accepted had assaulted him in 2015: see TD [68]. There was no claim made beyond what was set out in TD [68]-[69] regarding family violence. For the reasons outlined above, the Tribunal found on the claim to fear harm from his relatives, the applicant did not have a well-founded fear of persecution: see TD [77].
4. Ground 6 is rejected.

1. I have derived ground 7 from paragraph 5 of the applicant's written submissions. In paragraph 5 the applicant complains that the Tribunal erred when it found he would live in Sitiawan and not Pangkor Island (where his family lives) if he returned to Malaysia.
2. This ground has no merit either. There was no relocation finding made by the Tribunal. The reference to where the applicant would live if he returned to Malaysia is a reference to what the applicant told the Tribunal he would do, in his own evidence, if he was to return to Malaysia. He told the Tribunal in response to a question of what would happen if he returned to Malaysia, that he would live in his own townhouse in Sitiawan rather than living on Pangkor Island where his family lived. This, he said, was due to his concern about the loss of his reputation on the island: see TD [40] and [62].
3. Ground 7 has no merit.

1. I have derived ground 8 from paragraph 6 of the applicant's written submissions. He submitted that it was not relevant for the Tribunal to have considered the economic situation in Malaysia, and it erred by considering the World Bank Press Release.
2. This ground also has no merit. In the Tribunal one of the claims made by the applicant was that the effects of the COVID-19 pandemic on the Malaysian economy are likely to make it more difficult to obtain employment if he returns to that country. In light of that claim, in my view, it was relevant for the Tribunal to consider the issue of whether the applicant would be able to secure employment if he returned to Malaysia. It was also, in my view, relevant and a matter for the Tribunal as part of the fact-finding exercise in relation to this issue, to consider country information on the issue, such as the World Bank Press Release, which it did.
3. Based on that evidence the Tribunal at TD [81] accepted:
   1. ...that the Covid-19 pandemic has had an impact on the economy in Malaysia and this would make the applicant's prospects of finding a job in the competitive Malaysian labour market more difficult. However, the Tribunal considers that despite the economic situation in Malaysia, the applicant would be able to secure employment if he returns to Malaysia.
4. This was reasonably open on the evidence before it. As earlier stated, the use and veracity of the country information on this issue was a matter for the Tribunal.
5. Ground 8 is rejected.

1. The applicant has not established that the Tribunal's decision is affected by jurisdictional error.
2. As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113].
3. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
4. The application is dismissed.

1. The first respondent seeks costs fixed in the sum of $5,900. I consider the amount sought by the first respondent reasonable for this type of matter. It is below scale. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.