ARI20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1810

1. To obtain assistance in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is therefore necessary to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa decision under review (at [1]-[2]). The Tribunal outlined the relevant criteria for the grant of a protection visa, namely, the refugee and complementary protection criteria (at [3]-[7]). The Tribunal confirmed that, in accordance with Ministerial Direction No. 84, made under s 499 of the Act, it also had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines', as well as country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) (at [8]).
3. The Tribunal set out the applicant's claims for protection as contained in his protection visa application (at [22]). The applicant claimed that he left Malaysia as it was difficult to live there owing to the economy and very high cost of living. He feared he might be unable to support himself financially and would remain unemployed if he returned to Malaysia.
4. At the Tribunal hearing, the applicant provided oral evidence about his claims with the assistance of a Malay interpreter. The applicant stated that he had come to Australia because it is difficult for him to live in Malaysia as he no longer has anyone there to "care for me or want to know my welfare" (at [23]).
5. The Tribunal noted the applicant is a Malaysian citizen with a valid passport. His religion is Islam and he has previously been married but is now separated (at [24]). The Tribunal further enquired about the applicant's previous work history in Malaysia, to which he submitted that he had worked for a railway company for approximately 11 years prior to arriving in Australia (at [25]).
6. The Tribunal then proceeded to enquire about the nature of the protection visa application in which the applicant acknowledged receiving assistance from a friend. The applicant stated that the application was completed not by him, but rather by his friend, and that upon instructing his friend what to write, the applicant was satisfied the contents contained within the application were as intended by him (at [26]).
7. The Tribunal enquired as to whether the applicant had obtained any form of employment whilst living in Australia, to which the applicant acknowledged that he had undertaken temporary employment lasting approximately three months (at [27]). Apart from this short period, the applicant did not engage in any further employment. The Tribunal also considered the applicant's visa application history and his original intention of returning to Malaysia once his travel visa had expired. The applicant further acknowledged that he decided to apply for a visa after a friend advised him that his life will be difficult upon his return to Malaysia (at [28]).
8. The Tribunal put DFAT country information to the applicant for comment. The applicant said he was unsure as to the accuracy of the information, but failed to provide any evidence to the contrary (at [29]).
9. The Tribunal posed the question to the applicant as to why he had decided to apply for the protection visa in April 2017 after arriving in Australia on 11 August 2016, to which the applicant remarked "I did not know about it, I told my situation to my friends, it was already so late". The applicant declined to make any further comment in support of his application for review (at [30]).
10. The Tribunal ultimately concluded that at no stage either during the hearing or within the protection visa application did the applicant claim a well-founded fear of persecution, nor did he profess to a fear of being harmed or mistreated upon his return to Malaysia (at [34]).
11. The Tribunal found the economic harm feared by the applicant was not for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal therefore found that the applicant failed to meet the criteria as set out in 5J(1)(a) of the Act, and it follows that he failed to meet the refugee criterion in s 36(2)(a) (at [35]-[36]).
12. The Tribunal also considered the issue as to whether there was a real risk that the applicant would face significant harm as a consequence of being returned to Malaysia. Adopting its own findings with respect to the refugee criterion, and absent any further evidence from the applicant, the Tribunal found that the applicant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act (at [37]-[40]).
13. The Tribunal affirmed the decision not to grant the applicant a protection visa (at [42]).

1. The application for judicial review filed by the applicant on 14 February 2020 contains eight grounds of review as follows (without alteration):
   1. The Tribunals made an error of Law in incorrectly applying s65 of the Migration Act 1958.
   2. The Tribunals made an error of Law in incorrectly applying s36(2)(aa) of the Migration Act 1958.
   3. The Tribunals made an error of Law in incorrectly applying s36(2)(a) of the Migration Act 1958.
   4. The Tribunals drew an unreasonable inference that the Applicant did not suffer harm.
   5. The Tribunal failed to take into account relevant consideration that the Applicant was genuinely fearful of returning to Malaysia due to threats by the government of Malaysia.
   6. The Tribunal erred in not finding that the Applicant suffered any harm.
   7. The Tribunal made assumption about the Applicant without evidence or proof.
   8. The Tribunal acted unreasonably, unfairly and irrationally in dismissing the review
2. The applicant appeared before the Court on 21 August 2025 without legal representation but with the assistance of a Malay interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
3. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 14 February 2020 (the affidavit being taken as read and in evidence at the hearing on 21 August 2025), a Court Book numbering 95 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 1 August 2025.
4. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DDQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2013] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal's decision and/or procedure.
5. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 2121 FCR 99 at [111]);

(f) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(g) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28_; Minister for Immigration and Citizenship v SZMDS_ (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
2. When invited to tell the Court what was wrong with the Tribunal's decision, the applicant said he had nothing to say and that he understood the Minister's submissions. Accordingly, the Court will consider the grounds advanced in the application in order to determine whether or not the Tribunal's decision is affected by jurisdictional error.

1. As outlined above, the application for judicial review contains eight grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158).

1. The first three grounds can be considered jointly as each assert the Tribunal incorrectly applied the law in relation to ss 36(2)(a), 36(2)(aa) and 65 of the Act (respectively). Broadly speaking, ss 36(2)(a) and 36(2)(aa) outline the criteria an applicant must satisfy for the grant of a protection visa. Section 65 of the Act authorises the Minister or Tribunal to either grant or refuse a visa in the event the aforementioned criteria are either satisfied or not satisfied.
2. As submitted by the Minister, the Tribunal correctly identified that, in order to meet the criteria for the grant of the visa, the applicant was required to satisfy the conditions specified in ss 36(2)(a) or 36(2)(aa) (or alternatively, ss 36(2)(b) or 36(2)(c)) of the Act. The Tribunal set out those sections in an annexure to its reasons.
3. The Court accepts that the Tribunal's decision demonstrated it identified and applied the correct test of "real risk of significant harm" for the complementary protection criterion and "well-founded fear of persecution" test for the refugee criterion with respect to the claims raised by the applicant. The Court observes that the applicant has provided no further clarification as to how the Tribunal may have misunderstood or misapplied those provisions.
4. No jurisdictional error arises in respect of grounds one, two and three.

1. Grounds four and six similarly contend that the Tribunal drew an unreasonable inference or otherwise erred in failing to find that the applicant had suffered harm. As submitted by the Minister, the Tribunal's finding in this respect was unsurprising in light of the applicant's admission to the Tribunal that he did not fear harm of any kind if he returned to Malaysia. Nor was there any other evidence before the Tribunal which might reasonably ground such a finding.
2. In the Court's view, the Tribunal made the only reasonable finding it could make in light of the applicant's admission. Further, these grounds do no more than challenge the ultimate finding that the applicant was not at risk of harm and, in that sense, the applicant invites the Court to engage in impermissible merits review (Wu Shan Liang at 272).
3. No jurisdictional error arises in respect of grounds four and six.

1. Ground five asserts that the Tribunal failed to take into account the relevant consideration that the applicant was "genuinely fearful" of returning to Malaysia due to threats by the government.
2. The Minister submits that this ground must fail in light of the applicant failing to raise any such claim in his visa application, and further failing to provide any evidence in relation to threats he received from the government.
3. It is well established that the applicant bears the burden of demonstrating that the Tribunal did not consider a relevant claim (see Minister for Immigration Citizenship v SZNCR [2011] FCA 369 at [50]- [53]). However, as set out earlier, the applicant never made a claim of this nature before the Tribunal.
4. The Court therefore accepts the Tribunal has engaged with the entirety of the information provided by the applicant and, in doing so, has found no evidence to support the applicant's claims in relation to a well-founded fear of harm due to threats made by the Malaysian government.
5. Once again, this appears to the Court to be a disagreement with the Tribunal's ultimate conclusion and, on its face, invites the Court to engage in merits review, which of course it cannot do.
6. No jurisdictional error arises in respect of ground five.

1. Ground seven asserts that the Tribunal made an assumption about the applicant without evidence or proof.
2. The Minister submits that this ground fails due to a significant lack of clarity in relation to the precise assumption alleged by the applicant, nor is it particularised in any meaningful way to be considered a valid ground for review (see WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]).
3. The Court accepts the Minister's submission. The difficulty for the applicant is that, without particularisation or clarification, the ground is essentially meaningless.
4. No jurisdictional error arises in respect of ground seven.

1. Ground eight asserts that the Tribunal acted unreasonably, unfairly and illogically in dismissing the review.
2. The Minister submits that this ground also fails as the Tribunal had demonstrated full engagement with the evidence before it, and in assessing that evidence against the relevant statutory framework, arrived at a logical conclusion. At the hearing, counsel for the Minister asserted that a finding of unreasonableness or illogicality in the Tribunal's reasoning is a high bar that requires more than emphatic disagreement with the Tribunal's decision. Furthermore, in order to establish jurisdictional error, the illogicality demonstrated must be considered extreme (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [59]).
3. In this matter, the Tribunal considered and assessed the evidence before it, including the relevant country information, and reached conclusions which the Court accepts were logically probative and rationally grounded in the material before the Tribunal. It certainly cannot be said that no other logical or rational decision-maker could not have arrived at the same conclusion.
4. The Court therefore accepts that the Tribunal drew a logical and reasonable conclusion in light of the material before it, particularly in circumstances where the applicant expressly stated he left Malaysia solely for economic reasons, admitted that he would not be subject to harm, and otherwise failed to provide evidence that he had suffered or would otherwise suffer harm upon returning to Malaysia.
5. No jurisdictional error arises in respect of ground eight.
6. The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention. There were none.
7. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Court is satisfied that, even adopting the broad approach refer to in [31] of these reasons, no jurisdictional error is apparent.

1. The application for judicial review made by the applicant has failed to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.