BCM24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 452

Note: The form of the order is subject to the entry in the Court's records.

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 then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection, (as the Minister was then called) ("the delegate"), to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa.

Application for a visa and the delegate's decision

1. The applicant is a citizen of Malaysia. The applicant arrived in Australia on an Electronic Travel Authority (Class UD) (Subclass 601) visa on 26 October 2017. On 18 January 2018, the applicant made an application for a Protection (Class XA) (subclass 866) visa ("the visa") (Court Book ("CB") 21-78). The applicant's claim for protection in the visa application was made on the basis of Malaysia's poor economic climate which had led to the cessation of work; that because the applicant had stopped working he was forced to enter the AKPK's Debt Management Program; that without permanent employment he would be unable to pay bank loans; and that pursuit of debts by the banks would result in mental and emotional stress (CB 44-46).
2. On 6 September 2018, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that he was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act") as the delegate was not satisfied that the applicant was a refugee as defined in s 5H of the Act; and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act as the delegate was not satisfied that as a consequence of being removed to Malaysia there was a real risk the applicant would suffer significant harm as defined in s 36(2A) of the Act (CB 94-97) ("delegate's decision").

Application for review to the Administrative Appeals Tribunal

1. On 26 September 2018, the applicant applied to the Tribunal for a review of the delegate's decision (CB 107-122). In his application, the applicant provided his street address, mobile telephone number and email address (CB 107-122).
2. On 28 September 2018, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 124-125).
3. On 5 October 2023, the Tribunal sent the applicant by email (at the email address provided in his application) notification that his file was being prepared to be given to a Tribunal Member and asked him to complete within seven days, a pre-hearing information form via the attached hyperlink (CB 131). The applicant did not provide a completed pre-hearing form.
4. On 30 January 2024, the Tribunal sent by email to the applicant (at the email address provided in his application) an invitation to attend a hearing in person at 9.30am on 22 February 2024 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 130-143).
5. On 22 February 2024, the applicant attended the hearing via video.
6. On 27 February 2024, the Tribunal notified the applicant that it had affirmed the delegate's decision and provided written reasons for its decision (CB 156-169) ("Decision").

1. The Tribunal identified that the issue on review was whether the applicant had a well-founded fear of persecution for one of reasons in s 5J(1) of the Act and whether there was a real chance that, if returned to Malaysia he would be persecuted for one of those reasons, and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act ([14]).
2. The Tribunal then set out the criterion for a protection visa in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations") and the relevant DFAT Country Information Report for Malaysia including information under the heading of "Economic Overview" ([20]).
3. The Tribunal then set out the applicant's claims for protection as set out in his visa application as follows ([16]):

(a) He was dismissed from his job because his employer wanted to reduce the company's costs;

(b) He is the guarantor for his brother's education loan with the National Higher Education Fund Corporation (PTPTN);

(c) This loan became a financial burden for him to pay, which forced him to enter AKPK's Debt Management Programme (DMP);

(d) He feared that with the increased prices of essentials and foods plus transport costs and home rents in Malaysia there will be increased financial pressure on him and with no employment and a smaller pay rate increase he will be unable to repay his brother's education loan. He feared that this will result in him living in harsh conditions and suffering mental and emotional stress;

(e) He does not believe that any authority or organisation can help or protect him because this is a socio-economic matter; and

(f) He is unable to relocate because he will experience the same problem elsewhere in Malaysia as this is a socio-economic matter.

1. For the purposes of assessing the applicant's claims, the Tribunal stated that the receiving country was Malaysia ([35]).
2. The Tribunal then stated that at the hearing it provided an outline of the refugee and complimentary protection criteria to the applicant, who acknowledged that he understood the criteria ([24]).
3. The Tribunal then summarised the applicant's evidence at the hearing as follows:

(a) The applicant arrived in Australia on a tourist visa in 2017 and after travelling around for about a month he met a friend from Malaysia. He said that he saw a better future for himself here in Australia so he applied for a protection visa so that he could remain in Australia. He said that after he made his application for the visa, he was granted a bridging visa with working rights and obtained employment on a mango farm at [location in Queensland] where he continues to work and reside ([25]);

(b) Prior to travelling to Australia, he had been living with his parents and his two brothers in Malaysia. He told the Tribunal that his older brother sold coffee, and his younger brother was studying a diploma in an electrical field and his older sister, who was married, lived with her own family ([26]);

(c) He had been working as a cashier at a petrol station in Malaysia before he travelled to Australia. Prior to his employment at the petrol station, he had been studying sports science at university. He had left his studies after he had been found to be using marijuana on campus and that resulted in him being removed from his studies and being blacklisted by the government's tertiary education authority, MARA ([27]);

(d) When he left Malaysia, he had a student loan of AUD $5,000.00 and that he had also guaranteed his younger brother's student loan which was also in the amount of AUD $5,000.00 and that through his wages in Australia he had been able to send about AUD $1,000.00 a month back to his family for their support and to make repayments on the student loans. His family used the money he had sent to them and had to date repaid half of his and his younger brother's student loans ([28]);

(e) The applicant said that he had not been harmed in Malaysia, and that he feared returning to Malaysia because he would not be able to return to any university studies and would have to find work that would likely provide him with a lower wage than what he presently receives in Australia ([29]);

(f) If he returned to Malaysia, he would have to continue to repay the student loans and that this would be difficult because without qualifications he would only be able to secure unskilled employment. He said that such employment would likely only provide enough money for him to support himself and that he would be unlikely to be able to assist his family financially and make any further loan payments ([30]).

1. The applicant agreed with the Tribunal, that he may be able to make loan payments from his wages in Malaysia. However, he said that he would have to slowly repay the loans, and this could take him a lot longer than if he stayed working in Australia [31].
2. The Tribunal reminded the applicant of the explanations it had given him as to the refugee and complimentary protection criteria. The applicant told the Tribunal that he did not come within the definition of a refugee, however he said he could face degrading treatment or punishment if he was to return to Malaysia on the basis that he would likely only be able to secure the minimum wage and that would only allow him to support himself and not accumulate any savings. He said that such a situation could be stressful for him ([32]).
3. The applicant agreed with the Tribunal that the economic situation, employment opportunities and available unskilled wages in Malaysia were economic factors faced by all the Malaysian population ([33]).
4. The Tribunal then discussed with the applicant the DFAT country information, highlighting to the applicant: Malaysia's upper middle-income economy; the recent economic performance of the Malaysian economy; the labour force participation and unemployment rate; Malaysia's well-established universal health care and some of the limitations on mental health care; and the Malaysian welfare system. The applicant in reply made no comment ([34]).
5. The Tribunal then turned to consider whether on the evidence the applicant is a person in respect of whom Australia owes protection obligations.
6. The Tribunal said that it found the applicant to be a forthright and cooperative witness throughout the hearing. On the evidence before it, and for the reasons outlined below, the Tribunal found that the applicant's reasons for seeking protection are economic and do not relate to any well-founded fear of persecution or any reasonable fear of facing 'significant harm' upon any return to Malaysia ([41]).
7. As to the applicant's economic fears, the Tribunal said:

(a) The applicant claimed to have been dismissed from his Malaysian employment and as he is the guarantor of his brother's education loan he will, if he returns to Malaysia, suffer mental and emotional stress. He claims that he will face such stress because of the financial pressure he will face in having to support himself financially and make the loan repayments on his brother's education loan ([42]);

(b) It was the applicant's evidence at the hearing that he had come to Australia as a tourist and while in Australia had formed the view that he could have a better life here in Australia. He told the Tribunal that he could earn better wages in Australia than he could as an unskilled worker in Malaysia which would allow him to repay his and his brother's student loans more quickly ([43]);

(c) The applicant told the Tribunal that he had not been harmed in Malaysia through his loss of employment and prospects of future unskilled employment. He also told the Tribunal that he did not fear being harmed upon any return to Malaysia but was concerned about his ability to secure employment that would provide him with similar wages as those he presently received in Australia. He further told the Tribunal that he did not fear being harmed if he could not repay the student loans but rather, he would become stressed about his situation in Malaysia given that he would likely have little savings and a significantly reduced capacity to repay these loans ([44]).

1. The Tribunal concluded that the applicant's fears of harm are not for any of the reasons provided for in s 5J(1)(a) of the Act. Therefore, the Tribunal was not satisfied that the applicant faces a real chance of persecution involving serious harm if he was to return to Malaysia in the reasonably foreseeable future for any of the reasons in s 5J(1)(a) of the Act ([46]). Accordingly, the Tribunal found that the applicant's fears were not well-founded ([47]).
2. As to the applicant's claim to mental and emotional stress, the Tribunal said:

(a) the applicant feared becoming stressed because of the financial pressure he will face in having to support himself financially and make the loan repayments on both his and his brother's education loans if he returns to Malaysia ([48]);

(b) the applicant feared that such financial stress could amount to degrading treatment or punishment ([49]).

1. The Tribunal concluded both individually and cumulatively the applicant's claims, the DFAT country information, and, noting that the economic situation in Malaysia is a factor faced by all of the population and the availability of health care in Malaysia, the applicant's fears of financial stress and worry that he may face upon his return to Malaysia do not meet the threshold of 'significant harm' ([50]). The Tribunal therefore found that there is no real risk of the applicant facing 'significant harm' as defined in s 36(2A) of the Act if he was to return to Malaysia in the reasonably foreseeable future ([51]).
2. As to the refugee criterion, the Tribunal rejected the applicant's claims of fear of persecution in their entirety. Having considered all of the applicant's claims both individually and cumulatively, the Tribunal found there was no evidence of persecution or fear of persecution for the reasons in s 5J of the Act. The Tribunal found that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal found that the applicant's fears were not well-founded ([52]). The Tribunal concluded 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 Act ([53]).
3. As to the complementary protection criterion, the Tribunal, having concluded the applicant did not meet the refugee criterion also considered whether the applicant was eligible for complementary protection pursuant to s 36(2)(aa) of the Act ([54]). On the evidence before it, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act [55]. Accordingly, the Tribunal found that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act ([56]).
4. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa ([59]).

1. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 12 March 2024. The applicant filed an affidavit (affirmed on 7 March 2024) on 12 March 2024. The affidavit annexes the Tribunal's decision.
2. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. The material before the Court was the application; the applicant's affidavit; the affidavit of Jonathan Aaron Djasmeini (affirmed and filed on 5 March 2025) on behalf of the first respondent annexing a copy of a letter from the Department to the applicant dated 11 January 2018 notifying the applicant that he had made an invalid protection visa application (which was not the application before the Court); and the Court Book. The Court Book was made an exhibit in the proceedings.
4. The applicant appeared in person unrepresented. The applicant had the assistance of an interpreter in the Malay and English languages.
5. The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error in reviewing his application for a protection visa and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.

1. For the applicant to be successful the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. Despite procedural orders permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):

The Administrative Appels Tribunal (AAT) has misapplied s 36(2)(aa) of the Migration Act 1958 (Cth) and therefore made a jurisdictional error.

Particulars

The tribunal has failed to articulate reason for its assertion that the applicant will not face 'significant harm' upon return to Malaysia:

1. The Tribunal is not satisfied that the applicant had a genuine fear of serious or significant harm at the time of lodgement of his protection application.
2. The Tribunal is not satisfied that the applicant has a genuine fear of serious or significant harm at the time of this decision.

1. Despite the procedural order requiring him to do so, the applicant did not file any written submissions. The applicant was given the opportunity to make oral submissions in support of his application for judicial review and in reply to the first respondent's submissions.

1. The Court asked the applicant to explain why he said the Tribunal had made an error. The applicant explained his personal circumstances that led to him applying for a protection visa which were largely consistent with what he had told the Tribunal at the hearing as set out in the Tribunal's reasons for Decision. When asked what error he said the Tribunal had made, the applicant said that he had addressed the harm he will suffer and that is where there is an error. This submission did not assist the Court to identify any ground of jurisdictional error rather it seems to be an invitation to the Court to engage in impermissible merits review.
2. Turning then to the grounds as expressed in the application.
3. In ground one, the applicant first contends that the Tribunal did not articulate reasons for its assertion the applicant will not face significant harm upon return to Malaysia. As can be seen from the Court's summary of the Tribunal's decision, the Tribunal did articulate those reasons at [48]-[51] of the Decision.
4. The applicant then contends in ground one that the Tribunal was not satisfied that the applicant had a genuine fear of serious or significant harm at the time of lodgement of his protection application. As the first respondent submitted (first respondent's submissions ("FRS") [19]), this ground misunderstands the Tribunal's reasons. The Tribunal did not make any findings in relation to the applicant's fears at the time he made the visa application. That was the correct approach. Clause 866.211 of the Regulations does not require the Tribunal to make findings as to the genuineness of an applicant's claims at the time the visa application is made.
5. The applicant further contends in ground one that the Tribunal was not satisfied that the applicant had a genuine fear of serious or significant harm at the time of the Tribunal's decision. That is correct. However, the Tribunal did not make any jurisdictional error in not being so satisfied. The Tribunal correctly applied the Act and the Regulations in coming to its decision. The Tribunal:

(a) identified the relevant criteria for a protection visa in s 36(2) of the Act and correctly summarised those criteria ([7]-[12]);

(b) went on to consider if the applicant had a well-founded fear of persecution for any one of the reasons in s 5J(1)(a) of the Act and if so, whether he would be persecuted for one of those reasons if he returned to Malaysia ([42]-[47]). The applicant did not make a claim to fear persecution for any of the reasons of race, religion, nationality, membership of a particular social group, or political opinion and so did not claim to meet the definition of refugee in s 5H of the Act;

(c) for the purposes of the complementary protection provision in s 36(2)(aa) of the Act, applied the correct legislative test in determining whether there were substantial grounds for believing that as a necessary and foreseeable consequence of returning to Malaysia there was a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act. The Tribunal considered the applicant's claims, having regard to the evidence the applicant gave at the hearing with respect to economic fears and mental and emotional stress were he to return to Malaysia ([25]-[34]; [42]-[51]) and concluded that the applicant would not suffer significant harm as defined in s 36(2A) of the Act.

1. In submitting that he had addressed the Tribunal on the harm he will suffer if he returns to Malaysia, the Court considered whether the applicant's complaint might be that the Tribunal did not consider his subjective fear of harm. As the first respondent correctly submitted (FRS [20(e)] referring to DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 177), it was not necessary for the Tribunal to make a finding about whether the applicant had a genuine subjectively held fear of harm because it had rejected, on the evidence, that there was an objectively held fear of harm.
2. The Court agrees with the first respondent's submission (FRS [21]) that the Tribunal did articulate its reasons for finding that the applicant would not face significant harm on return to Malaysia. The Tribunal addressed why the applicant's fears were not well-founded ([47]; [52]); identified that the applicant's reasons for seeking protection were economic ([41]); considered, having regard to the relevant country information, that the economic situation was a factor faced by all of the population and could therefore not amount to significant harm ([50]; [55]; s 36(2B)(c) of the Act); and to the extent that the applicant feared stress arising from his economic reasons, having regard to country information, considered that health care was available ([50]).
3. Accordingly, no jurisdictional error arises on ground one of the application.

1. Although not articulated in the application, in making his oral submissions, the applicant told the Court that the hearing before the Tribunal was held by video and that he 'may have missed some things'. The applicant elaborated on this in his submissions in reply by saying that because he had limited time to prepare for the hearing, he panicked and he did not tell the Tribunal that his family members do not care for him and that this might cause him mental health issues and he would not be able to afford health care.
2. As noted above, on 30 January 2024, the Tribunal sent by email to the applicant an invitation to attend a hearing in person at 9.30am on 22 February 2024 (CB 130-143). The invitation was sent to the applicant at the email address he provided in his application to the Tribunal (CB 108).
3. The applicant failed to personally attend the Tribunal's hearing at the scheduled time.
4. The Tribunal's hearing record and case notes (CB 146-150) record that when the applicant failed to attend the following occurred:

(a) the Tribunal officer telephoned the applicant on the mobile telephone number he provided in his application;

(b) the applicant answered and when questioned about the hearing, said that he was not aware of it and had received no notification of the hearing;

(c) the Tribunal officer told the applicant that a hearing invite was sent to him on 30 January 2024. The applicant said that he did not see the invite and that he could not attend the hearing in person because he was in [a location in Queensland]. The applicant asked if he could reschedule the hearing. The Tribunal officer told the applicant that the hearing could not be rescheduled without an official application. The applicant then said he could conduct a virtual hearing via teams;

(d) The Tribunal sent the video link details to the applicant's email address;

(e) At 9.40am the Tribunal called the applicant and talked him through how to join the teams link. The applicant joined but the applicant's audio was not working. The Tribunal then called the applicant at 9.52am to explain to him how to make the audio work. The audio started working and the hearing commenced at 9.56am.

1. Pursuant to s 425 of the Act, the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Relevantly, the invitation must be given to the applicant by one of the methods specified in s 441A of the Act. Where the invitation is transmitted by email, the email is to be transmitted to the email address provided by the applicant as the recipient (s 441A(5)(b) and (d)). The applicant, as the recipient, is deemed to have received the email at the end of the day upon which the email was transmitted (s 441C(5)).
2. Accordingly, the Court is satisfied that the applicant was notified of the hearing in accordance with the requirements of the Act.
3. The Court is also satisfied that the hearing proceeded by video at the request of the applicant. The Court considers that it was not unreasonable for the hearing to proceed by video in circumstances where the applicant had been properly notified of the hearing and where the applicant offered to proceed with the hearing by video.
4. The Court does not consider that, in all the circumstances, there was any denial of procedural fairness. Further, there is nothing in the Tribunal's reasons for Decision that suggest that the applicant was unable to present his evidence and make his arguments to the Tribunal in support of his claims.

1. Given that the applicant was unrepresented, the Court has considered the Tribunal's Decision carefully to discern if there are any other grounds upon which the Tribunal might have made a jurisdictional error. The Court is unable to otherwise discern any basis for a finding of jurisdictional error.

1. Accordingly, for the reasons given above, the application is dismissed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.