AZZ19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 913

1. By way of Application filed on 12 March 2019, the Applicant seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 26 February 2019 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant (Applicant) a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s36(a) or s36(aa) of the Migration Act.
3. The hearing of the Application took place at the Melbourne Registry of the Court on 11 June 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of both a Malay interpreter, and then at the Applicant's request, a Tamil interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal committed jurisdictional error in determining that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act or that that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. The Court has before it a Court Book with 82 pages filed by the Minister on 26 May 2021 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister's Submissions filed 27 May 2025 (Minister's Submissions) accurately summarise the background to this matter at [3] to [10]. The Court adopts those submissions with amendments as follows.
2. The Applicant is a citizen of Malaysia.
3. On 12 October 2016, the Applicant arrived in Australia as the holder of an Electronic Travel Authority (Subclass 601) visa.
4. On 12 December 2016, the Applicant applied for a protection visa, the Visa in relation to these proceedings. The Applicant claimed that he had left Malaysia due to the political and economic status as well as the rising cost of living.[2]
5. On 23 March 2017, a Delegate of the Minister refused to grant the Applicant the Visa (Delegate's Decision) on the basis that the Delegate was not satisfied that the harm claimed fell within one of the reasons mentioned in s 5J(1)(a) of the Migration Act. The Delegate found that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) and 36(2)(aa) of the Migration Act.[3]
6. On 27 March 2017, the Applicant sought review of the Delegate's Decision before the Tribunal (Review Application).[4]
7. On 30 March 2017, the Tribunal wrote to the Applicant to confirm acknowledgement of the application.[5]
8. On 12 January 2018, the Tribunal wrote to the Applicant advising them it had considered the material before it and had been unable to make a favourable decision on the information alone. The Applicant was invited to attend a hearing before the Tribunal on 15 February 2018 (Hearing Invitation).[6]
9. On 15 February 2018, the Applicant attended the scheduled hearing with the assistance of an interpreter in English and Tamil.[7]
10. On 25 February 2019, the Applicant was notified of the Tribunal's decision not to grant the Visa and upheld the Delegate's Decision.[8]

1. The Tribunal's Decision is at 72 to 79 of the Court Book.
2. The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [11] to [24].
3. The Tribunal accepted that the Applicant had come to Australia to work but found that he had provided no evidence to support his claims of economic hardship. The Tribunal placed significant weight on country information which had indicated there were good economic conditions in Malaysia and did not accept that the Applicant would face serious harm if he returned to Malaysia.[9]
4. The Tribunal accepted that the Applicant was concerned about his child and custody issues but found that his concerns did not amount to real risk of serious harm and that he was not actively being persecuted by anyone in Malaysia for this reason.[10]
5. The Tribunal was not satisfied on the basis of its factual findings that the Applicant was a refugee in accordance with s 5H(1) and that the Applicant's claims warranted protection obligations under ss 36(2)(a) or 36(2)(aa).[11]

1. The Application was filed in this Court on 12 March 2019, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 12 May 2021, Orders were made by Registrar Carney of this Court for the First Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. That the First Respondent file: the Court Book, written submissions with proper particulars and any additional evidence. For the First Respondent's name be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3. On 5 September 2024, Orders were made by Registrar Foster of this Court for the First Respondent's name be amended to Minister for Immigration and Multicultural Affairs. For Order 9 of Orders made by Registrar Carney on 12 May 2021 be vacated. That the First Respondent file: the Court Book, written submissions with proper particulars and any additional evidence. The Court noted that the parties were informed that Orders 4 to 7 of the Orders made by Registrar Carney on 12 May 2021 in relation to any Amended Application or further evidence still stand. The Applicant advised that he had been served with an electronic copy of the Court Book and had printed out a hardcopy.
4. This matter was heard on 11 June 2025 at 10:00am for a Final Hearing before me.
5. At the commencement of the Hearing before me, the Applicant sought to tender the following documents (both in Malay and English as translated by Google Translate):

(a) Police Report of the Royal Malaysian Police dated 23 June 2011;

(b) Police Report of the Royal Malaysian Police dated 16 July 2011;

(c) Order to Undergo Supervision for a person found guilty of an offence under s 15 of the Dangerous Drugs Act 1952 dated 8 April 2013;

(d) Session Court/Magistrate letter dated 8 April 2013 attaching order to undergo supervision; and

(e) Prison Department of Malaysia document headed "Verification of Detainees" dated 29 March 2013.

1. I refused the tender of those documents by reference to the decisions in MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 and Minister for Immigration & Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [55].
2. I asked the Applicant to explain Grounds 1 to 4 of the Application to me. The Applicant said that he was unable to say anything in support of the Grounds. At the Applicant's request, I stood the matter down for 20 minutes to give the Applicant time to consider his grounds of Application further.
3. Upon resumption, the Applicant sought an adjournment of the Hearing to get legal advice. He explained that the Application had been drawn by another person. The Applicant advised that he was very busy and was unable to find time to take these steps any earlier. He said that if I gave him time, "I will make good on my application and I will be ready for the hearing".
4. I ruled against the Applicant's adjournment application by reference to the decisions in Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 107 at [27] and Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
5. The Applicant then asked for a Tamil interpreter on the basis that this, rather than Malay, was his principal language. I stood the matter down until 2:15 p.m. so that a Tamil interpreter could be arranged. The matter resumed at 2:15 p.m. with the assistance of a Tamil interpreter.
6. The Applicant relied upon the following documents:

(a) The Application filed 12 March 2019; and

(b) The Affidavit of the Applicant sworn and filed 12 March 2019 (Applicant's Affidavit).

(a) The Response, filed 9 April 2019;

(b) The Minister's Submissions filed 27 May 2025; and

(c) List of Authorities filed 4 June 2025.

1. Both parties relied on the Court Book.
2. The Application contains four (4) ground of review (Ground of Review):

1. The Tribunal consider many vital integers of my case. (Ground 1). 2. The Tribunal failed to consider many vital evidence that are relevant to my case because the AAT. (Ground 2). 3. The Tribunal deprived me of procedural fairness (Ground 3).: 4. The Tribunal Member relied on incorrect information and decided my case using facts from some other tribunal case. (Ground 4).

• 4.1 The Member has failed to do her duty
  • 4.1.1 The Tribunal deprived me of procedural fairness
    1. the tribunal member failed to ask me questions about the types of harm relevant
  • 4.2 The Member has failed to do he duty.

1. The Applicant did not file any written submissions.
2. In oral submissions, made with the assistance of a Tamil interpreter, the Applicant said that he didn't lodge this Application. He said that somebody else completed and lodged it for him.
3. The Applicant set out the following background to his Application.
4. In 2008, the Applicant got married at 20 years old. He said that he married without his parents' permission. He said that he had to leave his parents' home. He and his wife had a daughter.
5. In 2011, the Applicant's wife left him and his daughter to be with her boyfriend. The Applicant said that his wife was missing when he went home. He reported her missing to the police. The Applicant said that at some point he saw his wife in a prostitute area. He said that her boyfriend threatened him.
6. In 2012, the Applicant said that his daughter got separated from him. He said that "during the incident" (presumably the one that led to the separation) his wife tried to "trap me in a false case". He said that the police found a bag of drugs. Then he was jailed for the next three years. He said that he was kept there until 2015. The Applicant told the court that he had gone through "mental and physical" torture.
7. Upon his release, the Applicant met up with his ex wife. The Applicant said that her boyfriend and other assailants came along and attacked him and "physically tortured" him. The Applicant was told that he was not allowed to talk to his ex wife anymore and that they did not want to see his face.
8. In 2016, the Applicant came to Australia with the help of his friends and family. Since then, the police came to his house in Malaysia. He said that if he went back to Malaysia, they would put him in jail because of the drug case. His father has told him that if he returns, the police will put him back in jail as a suspect.
9. He said that the person who completed the form did not know the full story; namely that he and his daughter would be in danger if they return to Malaysia.
10. The Applicant said that he is having a peaceful and relaxed life in Australia.
11. He said that he had a son and a daughter now.

1. Grounds one and two, read at their highest, contend that the Tribunal failed to take into account relevant considerations and Ground four could be read to contend that the Tribunal took into account irrelevant considerations.
2. The Minister submits that the Applicant has not identified the relevant considerations which he asserts were overlooked by the Tribunal and the Tribunal's decision record demonstrates that it applied the correct tests under s 36(2) of the Migration Act. The Tribunal also considered the Applicant's claims and oral evidence at the hearing.

1. By invitation dated 12 January 2018, the Applicant was invited to attend a hearing before the Tribunal on 15 February 2018, in compliance with ss 425 and 425A of the Migration Act.
2. The hearing was conducted with the assistance of an interpreter in the English and Tamil languages. The Applicant was also put on notice from the Delegate's decision record and from the Tribunal's questioning at the hearing that the determinative issue on review was whether his claims amounted to him facing a real risk of harm. The Minister submits that there was no breach of s 425 of the Migration Act.
3. The Minister submits that the Tribunal had regard to country information, written evidence provided by the Applicant to the Department as well as the Applicant's oral evidence at the hearing, all of which fell within the exception to information in s 424A(3)(a), s 424(3)(ba) and s424A(3)(b) of the Migration Act. The Tribunal was not required to put this to the Applicant pursuant to s 424A of the Migration Act. The Minister submits that no breach of s 424A is revealed.

1. The Minister submits that it is well established that it is for an Applicant to make out his or her case before the Tribunal.[12]
2. The Tribunal does not have a duty to investigate or to consider utilising such permissible statutory powers which might enable it to investigate. The Minister submits that this Ground cannot succeed.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[13]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[14] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[15]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[16] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[17] Different kinds of error may overlap.[18] The categories are not closed.[19]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[20] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[21] It has been described as an "undemanding" standard.[22]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
2. Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term "refugee" is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a "well-founded fear of persecution"[23] as defined by s 5J.
3. Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
4. The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).

1. It is convenient to adopt the Minister's grouping of the Grounds with slight modification.

The Tribunal consider many vital integers of my case.

The Tribunal failed to consider many vital evidence that are relevant to my case because the AAT.

The Tribunal Member relied on incorrect information and decided my case using facts from some other tribunal case.

1. A generous reading of Grounds 1, 2 and 4, is the contention the Tribunal either failed to take into account unidentified relevant consideration or took into account unidentified irrelevant considerations.
2. I have considered the Tribunal's Decision in order to identify whether there is any merit to Grounds 1, 2 and 4. The Tribunal's Decision at [30] to [33] sets out the Tribunal's findings under the heading "Assessment of Evidence and Findings". The Tribunal Decision then set out its reasons in respect of "Refugee criterion assessment - s 36(2)(a)" at [34] and [35] and in respect of "Complementary Protection Criterion Assessment - s 36(2)(aa)" at [36] to [40]. I have not identified in those findings instances of relevant considerations that were ignored or irrelevant considerations that were taken into account, in the case of the latter, it is not clear what "facts from some other tribunal case" were relied upon.
3. I am not satisfied that jurisdictional error is made out by reference to Grounds 1, 2 and 4.

The Tribunal deprived me of procedural fairness.

The Tribunal deprived me of procedural fairness

1. The requirements of natural justice in relation to the Applicants' hearing before the Tribunal were codified by Div 4 of Part 7 of the Migration Act in relation to the matters dealt with in that Division.
2. I am satisfied that the Tribunal did comply with the requirements of Div 4 of Part 7 of the Migration Act (esp. ss 424A and 425 of the Migration Act):

(a) By letter dated 12 January 2018, the Applicant was invited "to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review";

(b) On 15 February 2018, the Tribunal conducted the review hearing;

(c) The Applicant appeared at the review hearing with the assistance of an interpreter in the English and Tamil languages;

(d) The Applicant was given a "real and meaningful opportunity" to make arguments and present evidence;

(e) The issues arising in relation to the review were those identified in the Delegate's Decision and from the Tribunal's questions;

(f) There was no separate obligation for the Tribunal to give notice under s 424A of the Migration Act of any "particulars of information"; and

(g) All of the material that was relied upon by the Tribunal fell within the statutory exception provided for in s 424A(3).

1. I note that most of the matters the subject of the Applicant's oral submissions were not raised before the Tribunal. Accordingly, I do not consider that the Tribunal committed jurisdictional error by failing to refer to them. Further, I do not consider that the Applicant's failure to raise the matters before the Tribunal was the consequence of a breach by the Tribunal of the rules of procedural fairness. I note for completeness that the court's role is limited to judicial review and not merits review. Accordingly, it is not for me to review the merits of the Applicants' claims.
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 3 and 4.1.

the tribunal member failed to ask me questions about the types of harm relevant

1. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [49] Gleeson CJ and Hayne J stated "[i]n the ordinary case ... what an applicant is entitled to by way of a hearing is a consideration of the written information provided in the application".
2. In VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, Crennan J held (at [27]) that it is for an Applicant to make out his or her case before the Tribunal. The Tribunal's power to get information that it considers relevant is permissive and not mandatory.
3. In Ismail v Minister for Immigration [2024] HCA 2; (2024) 417 ALR 36, Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ stated (at [25]):

making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.

(emphasis added)

1. See also Sultan v Minister for Immigration and Multicultural Affairs [2025] HCASJ 17.
2. The Tribunal's Decision records the Applicant's claim (at [10]) as set out in his Form 866. In answer to the question "Why did you leave [Malaysia]" the Applicant responded:

A. I leaved Malaysia because of the political and economic status of my country become worst and down. Our country currency decrease dramatically. The price more higher and its not parallel to our basic salary. I become unaffordable.

1. The other answers were uninformative.
2. The Tribunal's Decision at [12] to [24] records the Applicant's answers to a series of questions posed by the Tribunal. It is apparent that the questions were designed to elicit from the Applicant what harm the Applicant feared upon returning to Malaysia. For example, the Tribunal asked if the Applicant thought he would be harmed or mistreated if he returned to Malaysia. The answer given was "Definitely, because I have a daughter there." (at [20]). His fear was that he would lose custody of a child in a custody battle with his ex-wife. The Tribunal's Decision then goes on to analyse these claims as well as his claim of economic hardship.
3. I am not satisfied that the Tribunal was obliged to enquire further than it did. I am not satisfied that it breached any duty to make enquiries. The new matters the subject of the Applicant's oral submissions do not fall into the category of a "potential fact [that] was readily ascertainable and was critical or central to the decision".
4. I am not satisfied that jurisdictional error is made out by reference to Grounds 4.1, 4.1.1(a) and 4.1.2.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[24] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,000 being less than the scale amount.[25] I am satisfied that costs ought to follow the event,[26] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[27]
2. The Applicant advised the court that in the event that he was ordered to pay costs, he would like to do so by instalments. There is no evidence before me to justify an instalment order. The Applicant is at liberty to apply for such an order provided that his application is supported by evidence. Alternatively, he could approach the Minister to see if an instalment regime can be agreed between the parties.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 11 June 2025, Order 2.

[12] VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459.

[13] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[14] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O'Callaghan JJ at [17].

[15] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].

[17] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (LPDT) at [3].

[21] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[22] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).

[23] See s 5H(1)(a) of the Migration Act.

[24] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[25] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.

[26] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[27] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172.