AZS24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1150

Things to do before the hearing

Please provide all documents you intend to rely on to support your case by 31 January 2024. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.

1. On 7 February 2024, the applicant appeared at the Tribunal hearing to give evidence and present arguments in support of his review application (CB 100-103). The applicant was assisted at that hearing by an interpreter in the Malay and English languages (CB 100).
2. The applicant also provided a number of additional documents to the Tribunal at that hearing (CB 104-118).
3. On 20 February 2024, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 121-132).
4. On 6 March 2024, the applicant applied to this Court for judicial review of the Tribunal's decision (CB 1-7). The applicant also provided an affidavit in support of that application (deposed by him on 5 March 2024) (CB 8-12). That affidavit annexed a copy of the Tribunal's decision.

1. The application for judicial review was brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to detail the Tribunal's decision in some detail.
2. The Tribunal's decision is 12 pages long and spans 57 paragraphs (CB 121-132). The final three pages contain extracts of relevant legislative provisions (CB 130-132).
3. The Tribunal began by explaining that the applicant, who claimed to be a citizen of Malaysia, had applied for the visa on 24 April 2018 and was refused that visa by a delegate of the Minister on 30 May 2018. The Tribunal confirmed that the applicant had appeared at a hearing before it on 7 February 2024 and was assisted by a Malay interpreter (at [1]-[3]).
4. The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions detailed in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also noted that, in assessing the applicant's protection claims and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department and country information assessments prepared by the Department of Foreign Affairs and Trade ("DFAT") for protection status determination purposes (at [4]-[9]).
5. The Tribunal detailed the applicant's protection claims set out in his visa application as follows (at [11]):

"Because of due to economic problem in the country of Malaysia with a very difficult job now. I come to Australia state because here is a job search pit with low living tarf. I want to live legally in this country. I want to live and work legally in Australia." He said further that he wanted to settle down everything as his life would be threatened. He did not want to take a risk if he went back to Malaysia.

1. The Tribunal explained that, at the start of the hearing before it, the applicant confirmed that his claims were as set out in his visa application. However, during the hearing, the applicant set out a new protection claim that his sister-in-law would report him to the police because, sometime in November 2017, he was found in her bedroom (at [15]-[16]).
2. The Tribunal accepted the applicant's evidence about his general biographical information, including that (at [17]-[18]):

(a) his wife arrived in Australia a week prior to his arrival and they both filed visa applications, however, his wife returned to Malaysia after a year because her sister had become incapacitated and was unable to take care of herself. His wife now looks after her sister in a home that is rented for 600 ringgits per month, with their four children;

(b) an agent (who was a friend of a friend) helped to prepare the applicant's visa application; and

(c) he had not saved any money while in Australia and sent money to his wife and to his mother back in Malaysia.

1. The Tribunal was satisfied that the applicant's receiving country was Malaysia and outlined relevant country information extracted from the 2021 DFAT Report on Malaysia regarding Malaysia's economic situation (which was read out to the applicant at the Tribunal hearing) (at [19]-[29]).
2. The Tribunal outlined the applicant's evidence that "he would like to remain in Australia so that he could live and work" because "he need[ed] a lot of money" to take care of his children, his wife and his mother. The applicant also stated that it would "be hard for him to get a better job if he return[ed] to Malaysia" and confirmed that "he did not fear that anyone would hurt him but that he [would] not get a good job" (at [31]-[32]).
3. The applicant also gave evidence that "he feared that if he returned home his sister-in-law [would] cause him harm because he had done a bad thing to her". He explained that he had not spoken to his sister-in-law since November 2017 when she told him "that she did not want to see his face". When the Tribunal attempted to elicit additional details from the applicant, he said that "he had gone to his mother-in-law's house and she was not there" so he had "entered his sister-in-law's bedroom" but "before he could do anything apart from touch a part of her body, she woke up". The applicant claimed that his wife had told him to come to Australia with her and he did. He also claimed that his wife had told him (the day prior to the Tribunal hearing) that if he returned to Malaysia, his sister-in-law would report the incident to the police. The applicant stated that he was concerned that he would be arrested if he returned to Malaysia (at [33]-[38]).
4. The Tribunal first considered the applicant's economic claim and did not accept that the applicant would "not be able to subsist on the income that he [would] receive if he return[ed] to Malaysia". The Tribunal found that he would "be able to access paid employment" and had a "wealth of knowledge and experience in paid employment to date". The Tribunal considered the country information and the applicant's circumstances and found that economic hardship would not amount to serious harm. The Tribunal accepted that it would be difficult for the applicant to re-establish himself if he returned to Malaysia, however, the Tribunal found that he would be able to access paid work and concluded that the applicant did not have a real chance of serious harm arising from his own economic circumstances for a Convention related reason (at [39]-[44]).
5. The Tribunal then considered the applicant's new claim relating to his sister-in-law and noted that the applicant had not raised that claim until the Tribunal hearing. The Tribunal rejected the claim because the applicant had not provided any independent evidence or details to support the claim, no evidence was provided to the Tribunal to suggest that an offence had been committed and the applicant's sister-in-law had not reported the incident despite six and a half years passing. The Tribunal noted that the applicant also did not know the penalty he could face if he were charged and found guilty and could not remember details of the incident until the Tribunal attempted to elicit further information (which he then remembered) (at [45]-[46]).
6. The Tribunal detailed the applicant's evidence that he "had almost committed an offence but then said that he had touched" his sister-in-law, "he did not rape her". The applicant claimed that she had seen him in her bedroom and maintained that he had almost committed an offence. The Tribunal found that the applicant was not owed protection simply because he may be arrested or reported by his sister-in-law who may allege that he committed a crime approximately six and a half years prior. The Tribunal did not accept the applicant's version of events "as the evidence [was] inconsistent and the details [were] vague" (at [47]-[48]).
7. Having considered the applicant's claims individually and cumulatively, the Tribunal found that the applicant did not have a real chance of serious harm and thus did not satisfy the criteria set out in s 36(2)(a) of the Act (at [49]).
8. The Tribunal then considered the complementary protection criterion and, having rejected the applicant's account of the incident with his sister-in-law, the Tribunal did not accept that the applicant would face a real risk of significant harm on that basis. The Tribunal was also satisfied that the applicant had the capacity and inclination to find employment in Malaysia and would be able to secure a job and, again, the Tribunal was not satisfied that the applicant would be subjected to significant harm (at [51]-[52]).
9. The Tribunal ultimately affirmed the delegate's decision refusing to grant the applicant the visa (at [57]).

1. The application for judicial review (filed by the applicant on 6 March 2024) contained four "grounds of review" as follows (without alteration) (CB 4):
   1. THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.

2. THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.

1. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE.
2. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELAVANT IN MY CASE.

1. The applicant also filed an affidavit in support of that judicial review application (deposed by him on 5 March 2024 and filed on 6 March 2024) (CB 8-12). That affidavit annexed a copy of the Tribunal's decision.
2. On 17 September 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, written submissions and any additional evidence. Unfortunately, no additional materials were filed by or on behalf of the applicant.
3. The applicant appeared before this Court on 26 May 2025. He did so without legal representation. He was assisted at that hearing by an interpreter in the Malay language. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister's written submissions. Ms Maggie Woollett from the Australian Government Solicitor appeared at the hearing on behalf of the Minister.
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 6 March 2024 (the affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 132 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 12 May 2025.
5. Noting that the applicant was not represented (and noting the remarks of the Federal Court of Australia in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 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)), the Court gave the applicant an opportunity to outline (orally) what he thought the Tribunal "did wrong" in relation to his matter.
6. The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal's decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

(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 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]- [208];

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];

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

(g) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].

1. The Court also explained that it cannot undertake a merits review of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he seeks, even if the Court disagrees with the Tribunal's ultimate findings. Instead, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
2. Against this background, the applicant told the Court that the Tribunal had not looked at the applicant's economic claim from his perspective. In particular, the applicant stressed that the Tribunal "had looked at the Malaysian government and the economic situation in general", rather than looking at the applicant's own situation and his need to support his family. Further, the applicant told the Court that he had "made a huge mistake" and had done "something bad to [his] sister-in-law" and he "was not comfortable to return to Malaysia".
3. The applicant's oral submissions, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.

1. As outlined above, ground one relevantly provided as follows:
   1. THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
2. By ground one, the applicant claims that the Tribunal failed to consider a claim (or an integer of a claim).
3. The Court notes that the applicant only raised two protection claims in this matter as follows:

(a) the "economic problem[s] in ... Malaysia" making it difficult for the applicant to find work" as outlined in the applicant's visa application (the "economic claim") (CB 44); and

(b) a new claim raised at the Tribunal hearing relating to an "incident" with his sister-in-law following which the applicant's sister-in-law threatened to report the matter to the police (the "sister-in-law claim") (CB 123 at [16]).

1. The Tribunal considered these claims in some detail in its written reasons. In particular, the Tribunal's findings in relation to the economic claim were set out at paragraphs [39] to [44] in its written reasons (CB 127) and its findings in relation to the sister-in-law claim were set out at paragraphs [45] to [49] in its written reasons (CB 127-128).
2. The Court notes that in oral submissions (at the hearing before this Court), the applicant suggested that the Tribunal did not consider his economic claim with respect to his individual situation. The Court disagrees for the reasons that follow.
3. The Tribunal put country information (from the 2021 DFAT Report on Malaysia) to the applicant in relation to the economic claim at the Tribunal hearing and reproduced those passages in its written reasons at paragraphs [20] to [25] in its written reasons (CB 125). Those passages did relate to the general economic situation of Malaysia.
4. However, the Tribunal then went on to consider the applicant's individual circumstances, noting, in particular, that the applicant had "worked continuously in Australia since his arrival" and would "be able to access paid employment" in Malaysia. Further, the Tribunal noted that the "prospect of finding work based on the applicant's circumstances [did] not amount to the applicant facing a harm that [would] amount to serious harm" because it would "not threaten his capacity to subsist". The Tribunal accepted that it would be "difficult for the applicant to re-establish himself" if he were returned to Malaysia but ultimately found that the harm feared by the applicant due to the economic claim "would not amount to serious harm because of his race, religion, nationality, membership of a particular social group or political opinion" (at [39]-[44]).
5. No jurisdictional error arises in relation to ground one.

2. THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.

1. By ground two, the applicant suggests that the Tribunal failed to comply with its obligations under s 422B of the Act. That is, the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule.
2. As previously explained by this Court in ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67 (and other similar matters), Division 4 of Part 7 of the Act (as was in force at the time of the Tribunal's decision in this matter) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
3. The Court is satisfied that the applicant in this matter was afforded natural justice.
4. Relevantly, the Court notes that:

(a) the applicant was advised by the Tribunal on 19 June 2018 that his review application to the Tribunal had been received and that he was entitled to "provide material or written arguments" for the Tribunal to consider (CB 82-84);

(b) the applicant was invited to provide information to the Tribunal by completing a questionnaire (CB 85). The applicant ultimately returned the completed questionnaire to the Tribunal by email on 10 December 2023 (CB 86-91);

(c) the applicant was invited in writing to attend a hearing before the Tribunal scheduled to take place on 7 February 2024, was asked to complete a "Response to Hearing Invitation" form and was advised that he could provide additional documents to the Tribunal upon which he intended to rely (CB 92-95);

(d) the applicant ultimately responded to that invitation and attached a response to invitation form dated 17 January 2024 (CB 97-99). The applicant indicated that he did not wish to call any witnesses (CB 98);

(e) the applicant attended the Tribunal hearing on 7 February 2024 (CB 100-103). That hearing lasted for one and a half hours and the applicant was assisted by an interpreter in the Malay and English languages (CB 100-101). The applicant also provided additional materials to the Tribunal at that hearing (CB 104-118);

(f) there was no requirement for the Tribunal to put any information to the applicant for his comment because the information relied upon by the Tribunal was evidence given by the applicant or country information: s 424A(3) of the Act (as was in force at the time of the Tribunal's decision);

(g) the applicant was asked numerous questions by the Tribunal at the hearing before it and given ample opportunity to clarify or explain his claims, including raising a new protection claim not previously raised (CB 123 at [16]);

(h) there is no evidence before the Court to suggest that the applicant requested an adjournment or any additional time to provide further information to the Tribunal or that the applicant was otherwise not provided with a proper opportunity to present his case; and

(i) there is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.

1. The Court is satisfied that the Tribunal gave the applicant every opportunity to provide evidence in support of his case. The Court is also satisfied that the applicant was afforded natural justice in this matter.
2. No jurisdictional error arises in relation to ground two.

1. Ground three provided as follows:
   1. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE.
2. By ground three, the applicant claims that the Tribunal relied on incorrect information or decided the case using facts or information from another matter. The Court disagrees for the reasons that follow.
3. As correctly submitted by the Minister (at [28] in written submissions filed in this Court on 12 May 2024), there are two minor "errors" in the Tribunal's decision. In particular, the Court notes that the Tribunal:

(a) referred to the applicant using a female pronoun "her" (CB 129 at [53]); and

(b) referred to the wrong date when describing when the applicant had returned the completed questionnaire to the Tribunal (referencing 11 December 2023 instead of 10 December 2023) (CB 86 & 123 at [12]).

1. However, the Court considers that those errors rise no higher than typographical in nature: CRI026 v The Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529 at [57]. Further, such minor typographical errors cannot support a finding that the Tribunal considered the incorrect information or relied on facts relating to another matter when the decision is viewed as a whole. In particular, the Court notes that the Tribunal:

(a) expressly referenced (and accepted) biographical information biographical information which clearly related to the applicant;

(b) correctly identified the protection claim the applicant made in his initial visa application; and

(c) correctly summarised the applicant's new claim for protection (being the sister-in-law claim) and detailed the information provided by the applicant in relation to that claim in its written reasons.

1. Having reviewed the Tribunal's reasons as a whole, the Court is satisfied that the Tribunal otherwise did not have regard to anything which could be described as "irrelevant". As noted above, the matters which the Tribunal had regard to comprised the evidence and information provided by the applicant in relation to his application and relevant country information, all of which were relevant and mandatory considerations.
2. No jurisdictional error arises in relation to ground three.

1. Ground four stated:
   1. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELAVANT IN MY CASE.
2. By ground four, the applicant appears to have suggested that the Tribunal failed to make enquiries or undertake further "investigations" in relation to the applicant's protection claims (regardless of how those claims were presented by him). The Court disagrees for the reasons that follow.
3. As recently discussed by this Court in AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98 (at [102]-[104]) (and other similar matters), s 5AAA of the Act (as was in force at the time of the Tribunal's decision in this matter) provided as follows:

5AAA Non‑citizen's responsibility in relation to protection claims

(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

(3) The purposes of this Act include:

(a) the purposes of a regulation or other instrument under this Act; and

(b) the purposes of any administrative process that occurs in relation to:

(i) this Act; or

(ii) a regulation or instrument under this Act.

(4) To remove doubt, the Minister does not have any responsibility or obligation to:

(a) specify, or assist in specifying, any particulars of the non‑citizen's claim; or

(b) establish, or assist in establishing, the claim.

1. It is well established that it was not the Tribunal's responsibility to investigate or substantiate an applicant's protection claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. That responsibility fell to the applicant.
2. This does not mean that the Tribunal should have avoided assisting applicants (particularly those who appeared before it without legal assistance) better articulate their concerns and the evidence they relied upon. That was done here. As noted above, the Tribunal questioned the applicant at length in an effort to better understand his claims and, in fact, the Tribunal expressly stated in its written reasons that it had attempted to "elicit" information from the applicant in relation to the sister-in-law claim (see, for example, [34] & [46] of the Tribunal's written reasons).
3. It cannot be said here that the Tribunal failed to do that which was required of it.
4. No jurisdictional error arises in relation to ground four.

1. The application for judicial review (filed by the applicant on 6 March 2024) and the applicant's oral submissions to this Court have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
2. The application is, accordingly, dismissed.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.