ARJ24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1100

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).

1. Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal ('the Tribunal') filed on 23 October 2024. By that decision, the Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection ('the Minister') not to grant the applicant a protection (subclass 866) visa ('protection visa') under section 65 of the Migration Act 1958 (Cth) ('the Act').

1. The applicant is a Malaysian citizen.[1]
2. The applicant arrived in Australia on 27 July 2016.[2]

Application for a protection visa on 29 September 2017

1. The applicant made an application for a protection (class XA) (subclass 866) visa on 29 September 2017.[3]
2. In his application for a protection visa, the applicant, in response to a question as to why he left Malaysia, said:[4]

MY STORY STARTED WHEN I BECOME GUARANTOR TO MY UNCLE, I HAVE BEEN A VICTIM AT THEIR OFFEND THREATENED BY USING VIOLENCE TO ME WHO FAILED TO PAY ON THE TIME, THEY SPLASHED WITH THE RED PAINT AND PIG HEAD ON MY FAMILY HOUSE THEIR ALSO WRITING ABUSIVE WORDS TO ME, EVERDAY TOTAL LOANS IS HIGHER AND I CONNOT AFFORD TO PAY IN JUST I'M AS A GUARANTOR. I AM VERY DEPRESSED AND A MAKES ME SOUL BECAUSE OF PRESSURED IN OFFEND INTERRUPTED BY THEM, I CONNOT FACE IT AT ALL ANYMORE AND I DECIDE TO LEAVE BECAUSE NOW MY LIFE IS IN DANGER AND HAYING A BIG RISK, I COME TO AUSTRALIA TO SEEK PROTECTION AND HOPE THE AUSTRALIA GOVERNMENT WILL HELP ME AND I GET PEACEFUL LIFE HERE, I HAVE NO CHOICE THAN LEAVING MY COUNTRY.

1. The applicant further stated that if he returned to Malaysia he would not feel safe from the debt collectors and the loan shark gangsters who 'are still hunting' him.[5] He also stated that:[6]

THEY HIT ME AND THREATENED IF I DO NOT PAY THEY WILL BURN MY MOTHER HOUSE AND FORCE MY FAMILY TO MADE A PAYMENT ALSO MY FAMILY MEMBER AS WELL'.

1. The applicant stated that he made a police report, and no action was taken by the police.[7] He claims that he tried to deal with the situation by moving from his hometown to Kuala Lumpur, but the same thing happened there.[8]
2. In response to a question as to whether he felt that he would be harmed or mistreated if he were to return to Malaysia, the applicant said:[9]

I'M SURE THEY WILL FIND ME IF I RETURN TO MY COUNTRY. I'M NOT BE ABLE TO BEAR THE RISK PROBLEMS AND I PRAY TO GOD. I DON'T WANT MY FAMILY MEMBER ALSO IN DENGER AND FALL VICTIM TO THEIR ATROCITY. I DIDN'T FIND A SOLUTION BECAUSE IT IS IMPOSSIBLE FOR ME TO SOLVE THE PROBLEM AT THE DEBTS BECAUSE THE AMOUNT WAS TOO HIGH. THE BANK IN MY COUNTRY PROVIDE FINANCIAL LEADING TO HELP ME.

1. On 28 November 2017, the applicant was notified by letter that a delegate of the Minister had refused his application for a protection visa.[10]

Application for review in the Tribunal on 10 December 2017

1. On 10 December 2017, the applicant sought a review of the delegate's decision in the Tribunal.[11]
2. By letter dated 17 November 2023, the applicant was invited to attend a hearing before the Tribunal, scheduled for 1 December 2023.[12]
3. On 17 November 2023, the applicant wrote to the Tribunal to 'request a change of date for the hearing'.[13] In that email, the applicant said:[14]

Hello,

I am writing to request a change of date for the hearing on December 1st. Unfortunately, I will be on-site at the Iron Bridge mining job on that date and will be there for two weeks.

Is there any possibility of rescheduling the hearing for a date after December 14th?

Thank you for your time and consideration.

1. On 20 November 2023, the applicant wrote a further email to the Tribunal.[15] In that email, the applicant said:

Hello,

I have attached a photo of my confirmation for the upcoming work. I completed this confirmation last month. Typically, if I am not available for work, I need to inform the client at least four weeks in advance. I hope this information will help me to change the date of the work.

Thank you for your time and consideration.

1. On 22 November 2023, the Tribunal advised the applicant that 'The Member has agreed to the request and the hearing has been rescheduled' to 15 December 2023.[16]
2. The hearing therefore proceeded before the Tribunal member on 15 December 2023. The applicant attended the hearing, representing himself, and was assisted by an interpreter in the Malay language.[17]
3. On 2 February 2024, the applicant was notified by letter that the Tribunal had affirmed the decision of the delegate to refuse the applicant a protection visa.[18]

1. The Tribunal's reasons of 1 February 2024 are set out at pages 103 to 110 of the Court Book.
2. At paragraphs [2] to [9] of the Tribunal's reasons, the member set out the background to the application for review. Relevantly, at [4], the Tribunal set out the basis of the applicant's claim for protection. At paragraph [8], the Tribunal records that the applicant gave oral evidence at the hearing on 15 December 2023 and that whilst a Malay interpreter was available, the applicant 'used the interpreter at his discretion'.
3. At paragraphs [10] to [18], the Tribunal identified the relevant refugee criteria and the complementary protection criteria, as well as the law that applies. At paragraph [19], the Tribunal identified the key issue in the review, namely 'whether the applicant meets the visa criteria set out in s 36 of the Act'.
4. The Tribunal accepted the applicant's identity and citizenship.[19] The Tribunal then went on to set out the applicant's claims.[20]
5. At paragraphs [21] - [24], the Tribunal set out the applicant's background in Malaysia including his family and educational background. At [25] the Tribunal accepted the applicant's evidence about these matters and was satisfied that the applicant was a Malaysian citizen.
6. At paragraphs [26] to [44], the Tribunal set out the applicant's evidence about the circumstances which led him to leave Malaysia, in particular, the circumstances in which the applicant assisted his uncle (Uncle K) to borrow money from a money lender in mid-2015. The Tribunal notes the applicant's claim that the loan shark told him that if his uncle was not able to repay the money on the agreed terms then he, the applicant would become liable to do so.[21]
7. The Tribunal then sets out the applicant's evidence regarding his Uncle's failure to meet the repayments to the loan shark and the consequences for him personally, including an attempt by two men to pull him into their car to take him away to assault him.[22]
8. The applicant told the Tribunal that although his uncle continued to try and meet the repayments, he, the applicant, continued to be intimidated by the loan shark's people.[23] The applicant told the Tribunal that he tried move to Kuala Lumpur to stay with another uncle, Uncle S. At paragraph [36], the Tribunal records that the applicant became aware that Uncle S was going to try and go to Canada or Australia for work and he decided to join Uncle S in this endeavour.
9. The applicant stated that after he and Uncle S travelled to Australia, someone had visited his family home for the loan shark and thrown red paint at his home, left a pig's head and wrote abusive words on a note. The applicant then returned to Malaysia for a few weeks before returning to Australia.[24]
10. At paragraphs [42] - [44], the Tribunal largely accepted the applicant's evidence in relation to his Uncle's indebtedness to a loan shark, for which the applicant became a guarantor and the difficulties that the applicant claims occurred when Uncle K failed to meet the repayments.
11. At paragraphs [45] - [49], the Tribunal sets out the circumstances in which the applicant initially applied for a student visa and at [49], the Tribunal accepted that the applicant believed that he had been granted a student visa which was later cancelled, even though this was incorrect. In any event, the Tribunal noted that the applicant ultimately applied for a protection visa. At paragraph [52], the Tribunal noted that the applicant has said that he was genuinely still fearful of the loan shark situation in Malaysia. Relevantly the Tribunal noted:

The applicant said that he was genuinely still very fearful of the loan shark situation in Malaysia at that time because there were still people looking for him. When I asked him what he meant by that, he said that his brother mentioned to him sometime in 2017 that he had seen associates of the loan shark driving past their house and they were still intimidating.

1. At paragraph [53], the Tribunal accepted the applicant's evidence about the circumstances in which he prepared and lodged the protection visa application in September 2017. At paragraph [54], the Tribunal went on to say:

I also accept that the claims outlined on the application form are consistent with the applicant's fears arising from Uncle K's loan situation in mid-2015 and the conduct of the people who had subsequently harassed the applicant and his family in connection with the repayments required to be made.

1. At paragraphs [55] to [57], the Tribunal set out the applicant's current situation. At paragraph [58], in response to a question from the Tribunal member about what he would do if he went back to Malaysia, the applicant said that 'he wouldn't go back to Ipoh and he might go somewhere "new"'.
2. The Tribunal then records the following:
   1. I asked the applicant whether he was afraid to go back to Malaysia. He said that he was, because he anticipated that the loan shark associates could easily find him, and if they did find him, they would hit him, and they might also attend his family's house and harass them.
   2. I put it to the applicant that he may not experience any problems related to Uncle K's loan situation if he returned to Malaysia in due course, because enough time may have passed for the situation to have settle down. His response was that he was not sure about that.
   3. Specifically in relation to his fears of the debt collectors, the applicant recounted to me as follows.
      • In around October or November 2016, the family home had been visited by a group of people who arrived in 3 cars and on 2 motorbikes, and who forced entry into the house and confronted his mother about the applicant's whereabouts.
      • In 2018, his brother was out playing soccer with friends and he had been approached by a group of people who asked about the applicant's whereabouts and said they would find him when he comes back.
      • In November 2023, the house of a neighbour in Malaysia had been burned and their car had been fire-bombed, because of problems with a loan shark. I clarified whether the November 2023 incident was related to his Uncle K's loan. He said that it wasn't, but it was an example of what can potentially happen.

• I accept the applicant's evidence about the above incidents. The applicant did not tell me about any other incidents of concern to him.
  1. I asked the applicant if he knew whether Uncle K still owed any money to the loan shark. He said his Uncle K died in 2021. He did not know if there was an outstanding amount left.
  2. I asked the applicant if there was anything else that he wanted to tell me about what might happen if he returns to Malaysia. He responded by saying that it would be hard to find a good paying job or to earn good money. He said that he is comfortable in Australia now.

1. At paragraphs [65] to [71], the Tribunal went on to consider whether the applicant had a well-founded fear of persecution. Relevantly the Tribunal said:
   1. I also make the following findings based on the applicant's evidence.

(a) The debt collectors specifically sought to ascertain the applicant's whereabouts in October or November 2016, and again in 2017 and 2019. But there have been no other occasions on which the applicant's family has been approached by the debt collectors since the applicant arrived in Australia in late July 2016.

(b) Although the applicant's family's neighbour's house was set on fire by a loan shark in November 2023, that incident was entirely unrelated to the applicant and Uncle K's loan.

(c) As such, there has been a minimum period of 5 years during which the debt collectors have not approached or engaged in any harassment or intimidatory conduct at all towards the applicant in Australia or his family in Malaysia.

(d) The loan agreement involving Uncle K was made for a 5-year period (until mid-2020). Uncle K died in 2021. It is unknown whether the loan repayments were completed.

1. I determine the cumulative effect of the above findings is that the loan shark is no longer pursuing Uncle K's debt. I consider if the loan shark was still seeking repayments via the applicant, then additional approaches by them to the applicant's family in Malaysia would have occurred since 2018, either in the form of harassment or enquiries about the applicant's location. I also consider the passage of time since the loan was taken out by Uncle K, and his subsequent death, have diminished the loan shark's interest in the debt, assuming the debt in fact still existed when Uncle K passed away. These various matters comprise changed circumstances. Consequently, I find that the loan shark will not seek to harass, threaten, or harm the applicant in the reasonably foreseeable future should he return to Malaysia, despite what happened in the past.
2. To be clear, contrary to the applicant's oral evidence at the hearing, I do not accept that the loan shark or their associates will try to locate the applicant, hit him, or harass him again in Malaysia.

1. The Tribunal therefore concluded that it was not satisfied that there was an 'objective, real chance that the applicant would suffer any form of serious harm if he returns to Malaysia' and therefore the applicant did not satisfy the criteria under s 36(2)(a) of the Act.[25]
2. The Tribunal then considered whether the applicant was owed complementary protection under Australian law and concluded that on the basis of its earlier findings, the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia. The Tribunal therefore concluded that the applicant did not meet the criteria in s 36(2)(aa) of the Act.[26]
3. For each of these reasons, the Tribunal affirmed the delegate's decision to not grant the visa.[27]

1. On 19 February 2024, the applicant filed an application for judicial review of the Tribunal's decision in this court, along with an affidavit in support.[28]
2. On 11 September 2024, the applicant was granted leave to file an amended initiating application and outline of submissions.[29] By these orders, the first respondent was also granted leave to file further written submissions responding to the amended application.
3. Both the applicant and the first respondent were represented at the hearing before me.

1. At the hearing before me, the applicant pressed only one ground of review, namely Ground 3 in the amended application:
   1. The Second Respondent (Tribunal) made a jurisdictional error by making the following findings of fact which were not open on the evidence:

3.1 The loan shark is no longer pursuing Uncle K's debt.

3.2 If the loan shark were still seeking repayments via the applicant, then additional approaches by them to the applicant's family in Malaysia would have occurred since 2018, either in the form of harassment or enquiries about the applicant's location.

3.3 The passage of time since the loan was taken out by Uncle K, and his subsequent death, have diminished the loan shark's interest in the debt.

3.4 The loan shark will not seek to harass, threaten, or harm the applicant in the reasonably foreseeable future should he return to Malaysia, despite what happened in the past.

1. It is submitted for the applicant that the factual findings made by the Tribunal at paragraph [68] of its reasons for decision were not capable of being reached on the material before the Tribunal or on lawful grounds. In making this submission, the applicant relies upon the observations made by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 ('Djokovic') at [21] where, in considering the state of satisfaction required for the Minister to determine to cancel a visa under s 116(1)(e)(i) of the Act, the Full Court said:
   1. The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion ...
2. It is further submitted that the findings made by the Tribunal could not have been based on findings or inferences of fact supported by logical grounds, and can properly be characterized as 'unjust, arbitrary or capricious'. At [35] of the Full Court decision in Djokovic, the court stated:
   1. Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds ... such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
3. The applicant submits that whilst the findings made by the Tribunal, namely that the due to the death of Uncle K, the passage of time and the lack of active harassment and inquiries by the loan sharks may have rationally lead the Tribunal to conclude that the loan shark might not continue to pursue the applicant, but it was not open for the Tribunal to go beyond that finding, at its highest and conclude that the loan shark would not pursue the applicant if he were to return.[30] In essence, the applicant submits that there was no rational or probative basis for concluding as it did that the loan shark was no longer pursuing the debt.
4. In essence, the applicant submits that the time that had passed, the absence of any ongoing contact for a period of six years, the fact that Uncle K had died, all could have led the Tribunal to conclude that the applicant may not have been at any ongoing risk. It was, however, according to the applicant not open to the Tribunal to conclude that the applicant was definitely not at risk.
5. Moreover, it is submitted for the applicant that had the Tribunal not made this finding, which was not open to it, the Tribunal would have had to go on to consider whether the applicant faced a risk of harm, if the debt remained active. Had the Tribunal considered this, there was a realistic possibility of a different outcome such that jurisdictional error is made out.

1. For the following reasons, I do not accept the applicant's submission and find that the Tribunal's findings at paragraph [68] when read in context of the reasons as a whole and in particular when read in the context of paragraphs [67] to [69], were rational, logical and were based on probative evidence. In considering the Tribunal's reasons, it is important to have regard to the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31]:
   1. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. ...
2. At the heart of the applicant's ground of review, is that the Tribunal's findings were illogical or irrational. The test for illogicality or irrationality requires, by its nature, has a high threshold. This is necessarily so to avoid the court, on review, impermissibly entering the realm of merits review.
3. As noted by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611:
   1. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
   2. ... The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

...

1. ... the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. ...

...

1. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker did not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

1. Similarly, in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, the court considered whether credibility findings made on an unreasonable or illogical basis could also give rise to jurisdictional error and concluded that it could.[31] However, at paragraph [30] subparagraph (5), the court said:

A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error to ensure that the Court does not embark impermissibly upon merits review ... As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, 'extreme' illogicality must be demonstrated 'measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions' ... Thus '[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality' (emphasis added).

1. When read as a whole and without an eye keenly attuned to find error, I find that the findings made by the Tribunal in paragraph [68] were open, were logical and rational and had an evidentiary basis.
2. At paragraph [66] of its reasons, the Tribunal accepted that the applicant's family had been visited by debt collectors in 2016 and that his brother saw them drive past the family home in 2017. The Tribunal member also accepted that as a result the applicant was genuinely fearful of harm when he lodged his protection visa application in September 2017. It is against this background that the Tribunal then went on to find that:
   • there had been no contact from the debt collectors and his family since the applicant arrived in Australia in late July 2016;
   • the arson of the applicant's neighbour's home in November 2023 was not related to the applicant or Uncle K's loan;
   • therefore, there had been at least a five year period during which there had been no contact with the applicant or his family in Malaysia; and
   • in any event, the loan agreement was due to expire in 2020, Uncle K had died in 2021 and it was not clear whether the loan repayment was complete.
3. It is on the 'cumulative' basis of these findings, that the Tribunal then says at paragraph [68] that it finds that the loan shark is no longer pursuing Uncle K's debt. Importantly, the Tribunal then further explains the basis of this conclusion, by referring to the following:
   • if the loan shark was still seeking payment of any outstanding debt, one would expect to have seen ongoing approaches to the applicant's family in Malaysia since 2018;
   • the Tribunal member formed the view that the passage of time since the loan was taken out and the subsequent death of Uncle K has resulted in a diminution in the loan shark's interest in the debt (if it was still outstanding when Uncle K died).
4. The Tribunal member further says that the changed circumstances, namely the death of Uncle K and the absence of any contact from the loan sharks for over five years, lead to the conclusion that the loan shark would not pursue the applicant in the foreseeable future if he were to return to Malaysia.[32]
5. Moreover, at paragraph [69], the Tribunal rejected the applicant's evidence that he believed the loan shark would try and locate him and harm him if he were to return to Malaysia.
6. In making these findings, the Tribunal was considering whether the applicant had a well-founded fear of persecution if he were to return to Malaysia for the purposes of s 36(2)(a), or alternatively whether there was a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia, for the purposes of s 36(2)(aa) of the Act. In that context, the findings made were reasonably open to the Tribunal and had a rational and probative basis.
7. For the reasons given, it was open to the Tribunal to conclude that the applicant was not at risk of harm from the loan shark because the loan shark was no longer pursuing Uncle K's debt.
8. The fact that a different Tribunal member may have come to a different conclusion, is not determinative.

1. For these reasons, the applicant's application ought to be dismissed with costs. I therefore make the orders set out at the commencement of these written reasons.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

[19] Tribunal decision record dated 1 February 2024 at paragraphs [25] and [64].

[20] Tribunal decision record dated 1 February 2024 at paragraphs [19] to [63].

[21] Tribunal decision record dated 1 February 2024 at paragraphs [27] and [28].

[22] Tribunal decision record dated 1 February 2024 at paragraphs [29] to [31].

[23] Tribunal decision record dated 1 February 2024 at paragraph [34].

[24] Tribunal decision record dated 1 February 2024 at paragraphs [38] and [39].

[25] Tribunal decision record dated 1 February 2024 at paragraph [70].

[26] Tribunal decision record dated 1 February 2024 at paragraphs [75].

[27] Tribunal decision record dated 1 February 2024 at paragraphs [79] to [80].

[29] Orders of Judge Kendall dated 11 September 2024.

[30] Applicant's outline of submissions filed 13 January 2025 at paragraph [9].

[31] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30 (1)-(4)].

[32] Tribunal decision record dated 1 February 2024 at paragraph [68].