BAM24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 380

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Before the Court lies an application seeking judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal's decision. On that basis, the application cannot succeed.

1. The applicant is a citizen of Malaysia (Court Book (CB) 35). He first arrived in Australia on 3 August 2017 as the holder of a tourist visa (CB 56).
2. On 24 October 2017, the applicant applied for the visa which is the subject of the application before this Court (CB 13-33). In that application, the applicant claimed that he had left Malaysia as he was one of a number of non-Muslim employees who were made redundant by his employer because of the Malaysian economy. The applicant also claimed that he had quarrelled with another staff member because he had "said a bad word" about Islam. The applicant claimed this had been reported and that he was concerned that he would be imprisoned or beaten if he returned to Malaysia (CB 26-28).
3. On 18 January 2018, a delegate of the Minister refused to grant the applicant the visa (CB 52-67). The delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) (CB 62).
4. On 20 January 2018, the applicant applied to the Tribunal for review of the delegate's decision (CB 68-69).
5. On 9 October 2023, the applicant completed a pre-hearing information form in which he stated (verbatim) (CB 74-79):

I will be severely punished for insulting islam/muslim. They will put me in jail and might being beatten by the people whom I had a big fight at my workplace, or I will be searched by the people and I will be harmed by being beatten.

1. On 31 January 2024, the applicant was invited to attend a hearing scheduled for 23 February 2024 (CB 80-83).
2. On 23 February 2024, the applicant attended the scheduled hearing with the assistance of a Malay interpreter (CB 84-87).
3. On 1 March 2024, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa (CB 89-98).
4. On 8 March 2024, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Act.

1. To obtain assistance in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is therefore helpful 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 then correctly set out the criteria for a protection visa (at [4]-[9]).
3. The Tribunal outlined the applicant's protection claims as set out in his visa application as follows (at [11]).

(a) He is a Christian (Catholic) from Sabah. He worked in Malaysia as a security guard.

(b) He was fired by his employer when they were reducing the number of employees due to economic conditions. The employees let go during the downsize were all non-Muslims.

(c) At the end of his employment, he got into an argument with the staff and said a bad word about Islam. Someone reported him for this, and it would be easy for them to put him in jail.

(d) He had to hide, and couldn't do anything, because Malaysia is a Muslim country.

(e) He cannot return to Malaysia because he will be charged and jailed for what he said about Islam, or he may be beaten by the people he said the bad words about Islam to.

1. The Tribunal then set out the applicant's oral evidence as follows (at [12]-[14]):
   • The applicant's father passed away in 2014 and his mother still lived in the family home. He has two sisters and a brother and has held a number of jobs in Malaysia in varying industries.
   • The applicant's ethnicity is Kadazan Dusun and he confirmed that he had not faced any discrimination or other problems in Malaysia by reason of his ethnicity.
   • He continues to identify as a Catholic but currently attended an Anglican church which he explained was because he was interested in the differences between Anglican and Catholic practice.
   • The applicant had obtained a passport in early July 2017, prior to losing his job in late July 2017, because he had heard the company was planning on letting people go and he wanted to work overseas.
   • The applicant was upset when he lost his job. He worked for a large company which employed hundreds of workers and around 30-40 people were made redundant at the same time as him. The applicant believes all those who lost their jobs were Christian because they were also Kadazan Dusun, however some Christians retained their positions.
   • He continued to work for about a week after losing his job. After he had finished working, he approached the boss's office and was disrespectful to Islam by saying bad words directed towards Islam. There were two or three other people present. He was asked to leave by the boss. He later heard that the boss wanted to report the incident to the police.
   • The applicant thinks the incident was reported because the police came to his mother's house looking for him after he left Malaysia. However, he was not aware of any charges against him and he had not received a summons.
   • He is scared to return to Malaysia because, if the incident had been reported to the police, the case could remain open for 10 years. He also was afraid that people from his old workplace would beat him up because of what he said about Islam.
2. The Tribunal found that the applicant's claims in respect of the workplace incident were lacking in detail. The Tribunal accepted that it had been some years since the incident took place, but the visa application and written claims were completed only 3 months after the alleged incident. The Tribunal expected that, since this incident was the stated reason for leaving Malaysia, the applicant should at least be able to give a summary of how he disrespected Islam beyond saying he had used some "bad words" and that "Islam was racist" (at [15]).
3. The Tribunal also had regard to country information which indicated that there were only 10 reported arrests or investigations in 2020 of people who had allegedly made derogatory remarks about Islam. The Tribunal found that 10 arrests in a country with a population of nearly 33 million people was not a significant number (at [16]).
4. The Tribunal found that, even if it accepted the applicant had made a disrespectful comment about Islam when he lost his position, there was no evidence before the Tribunal that he had been reported to the police or faced any harassment or other harm from his employer. The Tribunal found that the applicant's evidence that the matter had been reported to the police was solely speculative on his part. The Tribunal also noted that the applicant had remained in Malaysia for a few weeks and had no difficulties departing, which the Tribunal found suggested that the authorities were not looking for him (at [17]).
5. The Tribunal also observed that the applicant had raised for the first time at hearing that the police had visited his home but provided no supporting evidence in that regard. The Tribunal found that this was an embellishment made at the hearing (at [17]).
6. The Tribunal found that it was farfetched that anyone would have been interested in the workplace incident seven years after it had occurred (at [18]).
7. The Tribunal also found that the applicant's claims in respect of religious discrimination did not accord with country information and the Tribunal did not consider the applicant faced a real harm of being harmed because he was a Christian in Sabah (at [19]).
8. Having regard to country information, the Tribunal also accepted that the applicant would not face harm for reasons of his ethnicity (at [20]).
9. The Tribunal concluded that there was not a real chance the applicant would experience harm for any of the reasons claimed, or that there was a real risk he would face significant harm if he was returned to Malaysia (at [21]-[23]).
10. The Tribunal therefore affirmed the delegate's decision not to grant the applicant a protection visa (at [27]).

1. The application for judicial review filed by the applicant on 8 March 2024 is in the following terms:
   1. I am seeking protection visa.
   2. I am applying for judicial review for my visa to be considered again.
   3. My visa was refused at AAT and I am not satisfied with the decision.
2. In an affidavit filed by the applicant which accompanied the application, the applicant further stated:

I am not able to go back to my country as my life is at risk in my home country.

1. The applicant appeared before the Court on 26 November 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.
2. The materials before the Court include the application for judicial review and supporting affidavit affirmed on 8 March 2024 (the affidavit being taken as read and in evidence at the hearing on 26 November 2025), a Court Book numbering 98 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 29 October 2025.
3. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [25] 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.
4. 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 (Wu Shan Liang) at 272) 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] FCA 317; (2013) 212 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 (SZMDS); Minister for Immigration and Citizenship v Li (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 address the Court as to what the Tribunal did wrong, the applicant stated that the Tribunal member "did not investigate my case thoroughly" and that he felt "that it was not fair to me". When invited to elaborate on that submission, the applicant said that the only matter he wanted to raise was that the Tribunal had not properly investigated his case.

1. As outlined above, the application for judicial review ostensibly contains three grounds. However, none of those grounds assert jurisdictional error and instead simply set out the applicant's dissatisfaction with the Tribunal's decision. This is not uncommon with self-represented applicants, and the Court recognises the difficulties litigants-in-person often have in articulating their arguments. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's complaint at the hearing that the Tribunal did not properly investigate his matter as broadly as possible (per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
2. Essentially, the applicant's complaint is that he believes the Tribunal should have investigated his matter in more depth. There are a number of difficulties with that assertion.
3. Firstly, as properly submitted by the Minister, s 5AAA of the Act expressly states that, in respect of protection claims, it is the responsibility of the applicant to specify all particulars of their claim to be a person who is owed protection and to provide sufficient evidence to establish that claim. That is entirely consistent with longstanding authority that it is a matter for the applicant to make out their own case before the Tribunal (see Abebe v Commonwealth (1999) 197 CLR 510 at [187]).
4. In any event, noting the paucity of evidence that was actually before the Tribunal, the Court accepts that the Tribunal did properly investigate the applicant's claims. The decision reflects a cautious and detailed consideration of the scant and meagre claims which were before it. The Court does not accept the applicant's assertion that more was required from the Tribunal.
5. Ms Pappas, whose client is subject to a direction to behave as a model litigant, also advised that she had otherwise reviewed the decision and was unable to identify jurisdictional error in the Tribunal's decision. There was nothing further she wished to draw to the Court's attention.
6. Similarly, the Court has considered the Tribunal decision as a whole and can find no easily discernible jurisdictional error. The Tribunal's decision reveals it understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. Where it had concerns, those concerns were put to the applicant and the applicant's responses were considered. All of the matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material. The Tribunal's findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547; and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
7. Ultimately, this was simply a matter where the Tribunal considered the claims advanced by the applicant and, for cogent and rational reasons, did not believe the applicant. The applicant's disagreement with the Tribunal's reason is consequently no more than an invitation for this Court to engage in impermissible merits review contrary to the longstanding admonition against such an exercise in cases such as Wu Shan Liang.
8. The Court is satisfied that, even adopting the broad approach referred to in [33] of these reasons, no jurisdictional error is established.

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 forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.