AKR23 v Minister for Immigration and Citizenship [2026] FCA 300

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) dismissing an application for judicial review of a decision of the then Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a protection visa. The appellant is a citizen of Malaysia and claims to fear harm on return to that country.
2. There are two grounds of appeal, although they both concern the same point. If the grounds are taken to mean what they say on their face, they assert that the primary judge erred by failing to take a matter into account or to give weight to that matter, namely the impact of the COVID-19 pandemic on the appellant's ability to find work. It may be, however, that the appellant, who has no legal representation, has attempted to transpose to the primary judge the error which he asserted before his Honour had been committed by the Tribunal; that is, the Tribunal had failed to take that matter into account or failed to give it sufficient weight. Read fairly and giving the appellant the benefit of the doubt, he may be asserting that the primary judge erred in the way in which his Honour dealt with the ground of review (which was the only ground put to his Honour).
3. Either way, however, there is no merit in the appeal, and for the following reasons it will be dismissed.

1. The appellant, a citizen of Malaysia, applied for a Protection (Class XA) (Subclass 866) visa in July 2017. He claimed that he left Malaysia because of political and economic issues and feared that if he returned he would be unable to support himself or his family. The Minister refused to grant the visa in September 2017 and the appellant applied to the Tribunal for review of the Minister's decision. The appellant was unrepresented at the Tribunal hearing.
2. At that hearing, the Tribunal noted that the appellant's reference to 'political issues' in Malaysia was in fact him ascribing blame to politicians and the Malaysian political system for the state of the economy, and as such the Tribunal found that the appellant did not claim to fear harm if he returned to Malaysia by reason of his actual or imputed political opinion.
3. The Tribunal further found that the appellant had indicated that the income he had earned in Malaysia was sufficient to sustain himself and that he had been able to obtain regular employment in the past in Malaysia.
4. At the Tribunal hearing, the appellant said that one of his reasons for leaving Malaysia was that his brother owed money to loan sharks. This was not raised in his visa application or submissions to the Tribunal. When asked why he had not raised the claim earlier at the hearing, the appellant said he had not mentioned it because of 'privacy reasons'. The Tribunal did not accept the claim and found there was no real chance the appellant would suffer harm by reason of any alleged loans his brother may have taken out with loan sharks.
5. The Tribunal accepted that the appellant might not be able to earn as much money in Malaysia as he could working in Australia, but found that the appellant had indicated that the income he had earned in Malaysia was sufficient to sustain himself and that he had been able to obtain regular employment in the past in Malaysia. On that basis the Tribunal found that the appellant would be able to do so in the future and that the economic circumstances leading to a lower income did not amount to serious harm for the purposes of section 5J(4)(b) of the Migration Act 1958 (Cth).
6. The Tribunal was not satisfied there were substantial grounds for believing there was a real risk the appellant would suffer significant harm if he were returned to Malaysia. It affirmed the Minister's decision to refuse to grant the visa to the appellant.

1. The appellant was unrepresented before the primary judge. To succeed on his application for judicial review, he needed to establish jurisdictional error on the part of the Tribunal.
2. The single ground of review the appellant advanced before the primary judge was that the Tribunal failed to give sufficient weight to the appellant's personal financial circumstances and the impact of COVID-19 on his ability to find employment in Malaysia and support himself financially.
3. The primary judge found that the Tribunal did in fact give detailed consideration to these circumstances and the impact of the COVID-19 pandemic. This included expressly considering the appellant's submissions and supporting information about the impact of the COVID-19 pandemic.
4. His Honour also found that the Tribunal expressly considered the appellant's personal financial circumstances and that no error arose in the Tribunal accepting that the appellant would earn less in Malaysia, but that the lower income would not threaten the appellant's capacity to provide for himself or otherwise amount to any form of serious harm.
5. Finally, the primary judge disagreed with the appellant's claim that the Tribunal's decision was illogical, irrational or unreasonable, instead finding the Tribunal's decision was based on rational reasons and was arrived at after consideration of logically probative matters.
6. The primary judge held that the appellant failed to identify any jurisdictional error on the part of the Tribunal and dismissed the application.

1. The appellant was unrepresented at the hearing of this appeal. He advances two grounds of appeal that concern the same claim about consideration of the impact of COVID-19, as outlined at the beginning of these reasons.
2. The appellant does not expand on this claim in his supporting affidavit. He did not file any written submissions and declined the opportunity to make oral submissions at the appeal hearing. The Court is left with the grounds of appeal described in the appellant's notice of appeal, the corresponding ground of review in the Circuit Court, and the primary judge's treatment of that ground.
3. As mentioned above, when taken on their face, the grounds of appeal assert that the primary judge erred by failing to take into account or give weight to the impact of the COVID-19 pandemic on the appellant's ability to find work. That assertion could not found a successful appeal, as it incorrectly treats the primary judge as if he were the administrative decision maker. The task of the primary judge was not to consider the appellant's personal financial circumstances nor the impact of the COVID-19 pandemic on his ability to find work. It was to review the Tribunal's decision for jurisdictional error. I am satisfied that the primary judge undertook that task and did so comprehensively.
4. I will therefore make the assumption, favourable to the appellant, that instead he asserts that the primary judge erred by failing to find jurisdictional error on the part the Tribunal in relation to its consideration of the impact of the COVID-19 pandemic.
5. However, the primary judge found that the Tribunal had considered the appellant's evidence in relation to his financial circumstances, including the claim in the appellant's submissions that 'things had gotten worse in Malaysia' since the COVID-19 pandemic, and an article submitted by the appellant about job losses in the pandemic. The Tribunal ultimately decided to place no weight on the documents provided by the appellant and rather relied on more recent information about contained in the relevant Department of Foreign Affairs and Trade country information report stating that the Malaysian economy had rebounded strongly from the pandemic. The primary judge correctly observed that the Tribunal was entitled to accept, reject or give such weight to the evidence submitted by the appellant as it deemed appropriate in the circumstances: see Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464 at [27].
6. The primary judge found that the Tribunal clearly and comprehensively considered the appellant's personal financial circumstances and the impact of the COVID-19 pandemic on his ability to find employment. That finding was plainly correct. In reaching it, his Honour referred to paragraph 75 of the Tribunal's reasons, in which the Tribunal gave close consideration to the appellant's claims about the impacts of the pandemic. It is not necessary to set that paragraph out; to the extent that the appellant contends that the Tribunal failed to take into account the effect of the pandemic on his employment prospects, that contention is without merit.
7. To the extent that the appellant contends that the Tribunal failed to give this matter sufficient weight, that cannot establish jurisdictional error. The weight to be put on the matter was a matter for the Tribunal: see Lee above.

1. The appellant has failed to identify error on the part of the primary judge or, for that matter, jurisdictional error on the part of the Tribunal. The primary judge was correct to dismiss the application for the reasons his Honour gave. The appeal will be dismissed with costs.
2. The Minister seeks costs fixed at the amount of $5,000, which is less than the short form amount claimable for an appeal involving a migration decision that is dismissed after hearing, as provided for in rule 40.43(3) of the Federal Court Rules 2011 (Cth). The appellant did not advance any reason why that sum should not be awarded. An order for the costs of the Minister will be made in the amount claimed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.