BCO24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 478

ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431; [2023] FCAFC 98

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

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. The applicants are citizens of Malaysia. The first applicant applied for a protection visa which was refused by a delegate of the Minister. The second and third applicants, who last arrived in Australia after the first applicant's protection application visa was refused, separately applied for protection visas and that application was refused by a different delegate of the Minister. The Administrative Appeals Tribunal (Tribunal) affirmed the decisions not to grant the applicants protection visas and the applicants seek judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).[1]
2. The applicants raise two grounds in their application alleging that the Tribunal made a jurisdictional error by failing to take into account relevant information and by not allowing the applicants sufficient time to provide further evidence of their claims for protection. The Minister also raised an issue in relation to the Tribunal's compliance with the principles in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (Appellant S395).
3. For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.

1. The applicants are a family. The first applicant and second applicant are husband and wife respectively and the third applicant is their daughter. The first applicant has been in Australia since March 2017. The second and third applicants visited Australia in May 2017 and from December 2017 to March 2018, before entering Australia again in October 2018 and remaining onshore since that time.

The first applicant's protection visa application

1. On 31 May 2017 the first applicant applied for a protection visa. The first applicant claimed protection on the basis of his Shia Islam religion.
2. On 14 September 2017 a delegate of the Minister refused to grant the first applicant a protection visa.

The second and third applicants' protection visa application

1. On 23 January 2019 the second and third applicants applied for protection visas on the basis of incidents after the first applicant's departure and being banished from their family following the departure of the first applicant to Australia. The second applicant claimed that she and the third applicant could not return to Malaysia without the support of the first applicant or the second applicant's family.
2. On 4 August 2020 a delegate of the Minister refused to grant the second applicant and the third applicant protection visas.

1. On 10 October 2017 the first applicant applied to the Tribunal for merits review of the delegate's decision of 14 September 2017 and on 9 August 2020 the second and third applicants applied to the Tribunal for merits review of the delegate's decision of 4 August 2020.
2. On 15 November 2023 the applicants were invited to attend a hearing before the Tribunal on 1 December 2023 to give evidence and present arguments in relation to the issues arising in the review. The applicants attended the hearing, which proceeded as a joint hearing, and were assisted by an interpreter.
3. On 8 December 2023 the Tribunal invited the first applicant to provide any further written evidence which he did not wish to be discussed with or provided to the second applicant and on 20 December 2023 the first applicant provided further evidence.
4. On 14 February 2024 the Tribunal affirmed the delegate's decisions not to grant the applicants protection visas.

1. Based on the first applicant's oral evidence at the hearing, the Tribunal accepted that although raised in Sunni Islam, the first applicant converted to Shia Islam through being introduced by his friend at college. The Tribunal accepted that the first applicant wishes to practise Shia Islam because it brings him peace, that the practice of Islam feels incomplete without engaging in acts of worship the way he wishes and that the first applicant did not feel free to publicly practise Shia Islam in Malaysia although he did occasionally attend mosques.
2. The Tribunal accepted that the first applicant and the friend were involved in a confrontation within the compound of a mosque after being asked why they had publicly prayed in a manner different to Sunni Islam and that resulted in the first applicant being punched in the face and losing a tooth. The Tribunal found that that one occasion of harm suffered did not individually of cumulatively rise to the level or serious harm, nor systematic and discriminatory conduct.
3. Based on the second applicant's oral evidence at the hearing, the Tribunal accepted that the second applicant is from a deeply religious Sunni Islam family, her father is a religious teacher both at home and at a religious school and he has now cut her off from her birth family. The Tribunal accepted in its entirety an incident in June 2017 described by the second applicant where the second applicant was scolded by her father for the first applicant's religion and given an ultimatum.
4. The Tribunal accepted that the second applicant, prior to coming to Australia in December 2017, saw a man following her and saw people around the house but did not know who he was. The Tribunal accepted that the second applicant received a phone call from a teacher at her daughter's school claiming a person had sought to take the second applicant's daughter out of school on false claims of knowing the second applicant. The Tribunal accepted that a person the second applicant had seen before came again to the house she was renting in Malaysia and stated that he was looking for her husband. The Tribunal also accepted that the person kept coming to the house and observed the second applicant's movements.
5. The Tribunal accepted the second applicant's oral evidence that she is still a Sunni Muslim but expects to be guided by her husband into following Shia Islam. The Tribunal also accepted based on what the first applicant said that it was a matter between him and God, and that he was not trying to convert other people. The Tribunal found the husband has no intention to proselytise or attempt to convert anybody other than his wife and children into Shia Islam.
6. The Tribunal accepted based on country information that Shia Muslims generally live free from societal discrimination on a day-to-day basis but face low levels of official discrimination. The Tribunal accepted that proselytising or promoting Shia Islam can result in higher risks of official discrimination. The Tribunal accepted that the country information it addressed in its reasons was consistent with that provided by the first applicant following the hearing.
7. The Tribunal found, based on the first applicant's oral testimony, that the first applicant did not experience being prevented from worshipping freely or harassment by state authorities, but experienced societal pressure and one occasion of physical abuse by members of the public which resulted in the first applicant feeling Shia Islam was not accepted.
8. The Tribunal accepted that the first applicant still attended a mosque on occasion following the confrontation in the mosque compound when he thought no other people were present. The Tribunal accepted that the second applicant, following her marriage, stopped going to mosque.
9. The Tribunal accepted that if the first applicant was granted a protection visa then the other applicants' claims would follow. The Tribunal found that if the first applicant was not granted a protection visa then the second and third applicants' claims of being unable to cope on their own in Malaysia do not need to be determined, as the first applicant would return to Malaysia with them.
10. The Tribunal was not satisfied that the applicants faced a real chance of serious harm now or in the reasonably foreseeable future if they returned to Malaysia, summarising its findings at [98] of its reasons, where it said:

The Tribunal finds that there is no real chance of serious harm in the reasonably foreseeable future if the husband, wife and daughter returned to Malaysia by reason of their actual or imputed religion, because the husband acknowledged he could return to Malaysia; the family will have a new home upon their return as they had been renting their last accommodation such that the people who had been following or watching the wife and daughter, and seeking the husband at that address previously would not know where they were upon their return (if they even knew they had returned after more than five years); the husband as a Shi'a Muslim is not a leader in the religion, nor proselytising or promoting Shi'a Islam but a private practitioner and as a private practitioner, the husband faces a remote risk of official discrimination or harassment by state authorities based on the country information accepted above; Shi'a generally live free from societal discrimination on a day-to-day basis according to the country information accepted above; the risk of future confrontations at mosques or within the mosque compounds and the husband's caution in public worship does not rise to the level of serious harm; the wife and daughter are currently Sunni Muslims, though they will likely move to Shi'a in the future but only by following the lead of the husband; the wife, since her marriage, does not attend mosque although the husband does; and the wife will not have contact with her parents and siblings because they have banished her due to her husband's faith but the husband, the wife and the daughter (and other child) will remain as a family unit.

1. The Tribunal therefore found the applicants did not engage Australia's protection obligations under s 36(2)(a) of the Migration Act.
2. Relying on the same findings of fact, the Tribunal found there were not substantial grounds for believing that there was a real risk the applicants would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. The Tribunal therefore found the applicants did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. The applicants filed an application for judicial review on 12 March 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
2. The applicants raise the following two grounds in their application:
   1. The Tribunal failed to take into account relevant information in the form of the oral evidence provided by the Applicant to the Tribunal of the circumstances that would cause him harm in Malaysia.
   2. The Tribunal did not allow the Applicant sufficient time to provide further evidence of his claims for protection.
3. On 27 May 2024 a Registrar of this Court made an Order which, amongst other things, required the applicants to file and serve, at least 28 days before the hearing, written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which they seek to rely. The applicants did not file any documents in accordance with the Order. The Minister filed written submissions 14 days before the hearing, as required by the Order.
4. The evidence before the Court comprises:

(a) a court book filed by the Minister;

(b) an affidavit made by the first applicant, annexing a copy of the Tribunal decision and filed with his application on 12 March 2024;

(c) an affidavit of Benjamin Mayne filed on behalf of the Minister on 17 July 2024 annexing a copy of a report published by the Department of Foreign Affairs and Trade (DFAT) titled 'DFAT Country Information Report Malaysia' dated 29 June 2021 (DFAT report); and

(d) an affidavit of service of Benjamin Mayne filed on 24 February 2025, confirming that the Minister served relevant Court documents on the applicants.

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants' complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can 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.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

1. By ground 1, the applicants assert that the Tribunal failed to take into account oral evidence provided by the first applicant in relation to the circumstances that would cause him harm in Malaysia. The ground as pleaded does not clearly indicate which aspect of the first applicant's oral evidence the Tribunal failed to take into account.
2. The first applicant was afforded an opportunity to better explain this ground at the hearing before the Court. He submitted that:

(a) he was not satisfied with the Tribunal's making of the decision because when the Tribunal asked him to provide proof he could not do anything at the time to get evidence as he could not leave the country;

(b) he could not return to Malaysia to get evidence;

(c) however, he had already given oral evidence to the Tribunal in a truthful way;

(d) the information referred to in the oral evidence is agreed by the first applicant's whole family, but was not accepted by the Tribunal; and

(e) he does not think it is fair for him if his explanation is not accepted by the Tribunal.

1. Understood in the light of the first applicant's oral submissions, it appears that the applicants' complaint is that the Tribunal did not accept their evidence, rather than the Tribunal did not take into account their evidence. To the extent that the ground is properly understood as an assertion of disagreement with the Tribunal decision, as indicated above, this cannot, of itself, give rise to jurisdictional error.
2. The Tribunal was required to consider all of the claims for protection advanced by the applicants and their component integers: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [60]-[61]. The Minister in his written submissions outlined further principles relevant to the assessment of this ground and I accept those principles as an accurate statement of the law. The principles referred to by the Minister are:

(a) It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431; [2023] FCAFC 98 (Jabari) at [55]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Jabari at [55]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111]. Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole: Jabari at [55].

(b) What is required is the reality of consideration by the decision-maker, and on judicial review the Court is required to assess, in a qualitative way, whether the decision-maker has, as a matter of substance, had regard to the relevant matter: Jabari at [55].

(c) The Tribunal must read, identify, understand and evaluate the representations made by an applicant: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at [24]. The Tribunal must have regard to what is said in the representations, bring its mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them: Plaintiff M1 at [24].

(d) Approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Tribunal: ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52 at [8].

(e) Provided the Tribunal has averted to and understood the representations an applicant has made, the degree or quality of engagement it provides to a given representation is a matter for the Tribunal, as long as it acts within the bounds of rationality and reasonableness: Jabari at [52].

(f) A conclusion that the decision-maker has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof: Jabari at [55].

(g) The onus lies on the applicants to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Jabari at [55].

1. I accept the Minister's submission that the Tribunal considered the applicants' claim to fear harm on the basis of the first applicant's practice of Shia Islam. The Tribunal accepted that the first applicant had suffered harm on one occasion but found that this or any future altercations at a mosque would not amount to serious harm. The Tribunal also found, based on the first applicant's own evidence, that he had no intention to proselytise or attempt to convert anyone if returned to Malaysia, that he was a private practitioner and not a Muslim leader, and that these circumstances overall, having regard to country information, meant that there was a remote risk of harm. I accept the Minister's submission that the Tribunal's reasons demonstrate active and intellectual engagement with and demonstrable consideration of the applicants' claim as to the cause of their feared harm in Malaysia.
2. The Tribunal in its reasons provided a detailed summary of the oral evidence given by the applicants at the hearing. This summary was set out at [26] to [46] and [65] of the Tribunal's reasons in relation to the first applicant and at [47] to [64] in relation to the second applicant. The Tribunal also addressed country information and the responses of the applicants to the country information put to them. The Tribunal made findings of fact and considered whether the applicants met the criteria for the grant of protection visas at [84] to [98] of its reasons. Having regard to the written evidence provided by the applicants and the Tribunal's summary of their oral evidence, I am satisfied that the Tribunal considered the applicants' claims for protection and the component integers of those claims. The applicants have not identified any specific oral evidence that they claim the Tribunal failed to take into account, and I have not otherwise identified any relevant evidence that the Tribunal has failed to address in a manner consistent with the requirements of the authorities referred to above.
3. Given the matters raised by the first applicant in his oral submissions to the Court, I have also considered in the context of this ground whether the findings made by the Tribunal and the decision that it reached were open to it on the materials before it. While the first applicant claims that the Tribunal did not accept his evidence, it is apparent from the Tribunal decision that the Tribunal did accept the first applicant's evidence in relation to his practice of Shia Islam and the one occasion of harm that he faced in the past. The aspect of the first applicant's claims that the Tribunal did not accept was that the risk or chance of harm that he would face in the reasonably foreseeable future did not amount to a real chance of serious harm or a real risk of significant harm and therefore did not meet the requirements for the grant of a protection visa. Having regard to the first applicant's evidence about the practice of his religion and the country information before the Tribunal, these findings were open to the Tribunal on the evidence before it and do not demonstrate any illogicality or irrationality in the manner described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131]- [135].
4. Ground 1, as pleaded and having regard to the matters raised by the first applicant in his oral submissions, does not establish jurisdictional error.

1. By ground 2, the applicants assert that they were not afforded sufficient time to provide evidence of their claims for protection. When invited to further explain this ground in his oral submissions, the first applicant indicated that what he meant by this ground was that he was not given a chance to show the evidence, for example, a video that he searched for on Google regarding his case, and the Tribunal did not accept the video to support his evidence. He submitted that the video was recorded by Malaysian media and is relevant to his situation. He was not directly involved in the video as he was already in Australia. He sent the link to the Tribunal when asked, but it seemed that they did not accept the video as evidence and this is the only evidence that the first applicant has to support his case. The first applicant confirmed that the videos he was referring to were the ones for which links were provided in his submissions to the Tribunal set out at page 204 of the court book.
2. The applicants were afforded the following opportunities to provide evidence in relation to their claims for protection:

(a) all applicants had the opportunity to provide evidence with their protection visa applications;

(b) the Tribunal sent invitations to provide information under s 424(2) of the Migration Act to the applicant on 20 January 2023 and the first and second applicants responded to their respective invitations;

(c) the first and second applicants gave oral evidence and presented arguments at the joint hearing before the Tribunal on 1 December 2023; and

(d) the Tribunal afforded the first applicant an opportunity after the hearing to provide information that he did not wish to be disclosed to the second applicant and the first applicant responded, purportedly on behalf of all applicants.

1. It was in the post-hearing submission that the first applicant provided links to the videos that he addressed in his oral submissions to the Court.
2. The Tribunal expressly acknowledged these videos in its reasons at [75(b)] where it described them as two videos on uTube:
   • one about 2 minutes in length from May 2011' 'MyMetroTV', in which people spoke Malay, but seems to show the RMP taking down banners and taking people away from a public event; and
   • one about 45 seconds in length from October 2017, appearing to be a news report from Astro Awani in Malay, showing some pictures of authorities and other individuals in a private religious setting.
3. It is apparent from the Tribunal's reasons that it accessed and reviewed the videos and took them into account in making its decision. At a factual level, the first applicant's assertions at the hearing before the Court therefore fail. Further, the videos did not relate to the first applicant personally and are best characterised as a form of country information. The Tribunal had regard to a variety of sources of country information and made findings based on that country information. Ultimately the choice of country information and the weight to be given to it were matters for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13].
4. There is one aspect of the Tribunal's invitation to the first applicant to provide a further submission post-hearing that warrants further consideration and this was addressed by the Minister in his written submissions and in the oral submissions advanced by Counsel for the Minister.
5. The Tribunal's invitation for the first applicant to provide further evidence was sent to him by email on 8 December 2023 at the email address recorded in his application. The Tribunal referred to the joint hearing on 1 December 2023 in relation to the reviews of the decisions relating to himself and the second applicant and continued (emphasis in original):

Whilst you were both present for the introduction to the hearings, [the second applicant] and your two children waited outside the hearing room whilst your hearing occurred, then you waited outside with your children whilst [the second applicant's] hearing occurred and then you were all back in the hearing room.

At the beginning of the hearings, you both agreed that information in one application could be discussed in the other application.

The Tribunal wishes to give you an opportunity to inform it of any evidence in support of your case that you do not wish [the second applicant] to know.

The Tribunal invites you to give to it any information in writing which is not to be discussed with or provided to [the second applicant]. The Tribunal will have regard to that information in making its decision on the review but nothing you say to the Tribunal will be made public in any way that might identify you.

1. The first applicant was invited to provide the information in writing by 15 December 2023 and was invited to contact the Tribunal before that date if he was unable to provide the requested information by that date.
2. The first applicant wrote to the Tribunal on 15 December 2023 and requested additional time until 19 December 2023 to provide the information. By return email, the Tribunal advised the first applicant that he now had until 20 December 2023 to provide the information. The first applicant provided a submission to the Tribunal on 20 December 2023 and expressed the submission as being from all three applicants.
3. The Minister submitted that the Tribunal was entitled to seek further information under s 424(1) of the Migration Act and that the invitation complied with the requirements of s 441A(5) of the Migration Act, which permitted the Tribunal to give a document to the applicant by transmitting it by email to the last email address provided to the Tribunal in connection with the review. However, the Minister acknowledged that the timeframe for response was less than the prescribed period, as required by s 424B(2) of the Migration Act and reg 4.35(3)(b) of the Migration Regulations 1994 (Cth) (Regulations).
4. Section 424B of the Migration Act sets out the requirements for written invitations, including where a person is invited in writing to give information under s 424 of the Migration Act. The potential concern in the present case is that the invitation did not comply with s 424B(2), which provides:

If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

1. The prescribed period is set out in reg 4.35(3) of the Regulations, which provides that the prescribed period for giving information, comments or response:

(a) commences when the person receives the invitation; and

(b) ends at the end of:

(i) 14 days after the day the person receives the invitation; or

(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day - the shorter period.

1. The date of 15 December 2023 specified in the invitation was a period of seven days from the date the first applicant was deemed to have received the invitation. With the extension granted to 20 December 2023, the total period for the first applicant to respond was 12 days from the date he was deemed to have received the invitation, which is still less than the prescribed period.
2. The Minister submitted that the first applicant's request for an extension of time to 19 December 2023 and the Tribunal granting the extension of time until 20 December 2023 constituted an agreement in writing for the purposes of reg 4.35(3)(b)(ii) of the Regulations. Counsel for the Minister was not able to refer the Court to any case law addressing the proposition that the request for an extension of time and the grant of that extension of time amounts to an agreement in writing.
3. There is merit in the Minister's submission and the applicants have not raised anything to contradict the Minister's characterisation of the request and grant of an extension of time as amounting to an agreement in writing to a period shorter than 14 days. I am inclined to accept the Minister's submission.
4. Even if I am wrong in accepting the Minister's submission, I would not find that ground 2 establishes jurisdictional error. In considering an alleged breach of s 424B(2) of the Migration Act, the question for the Court is not simply whether or not there was a breach, but rather whether any breach gives rise to jurisdictional error: SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 at [48].
5. At the time the invitation was issued, the first applicant had already been afforded multiple opportunities to present evidence in relation to his claims. The post hearing invitation was to provide any evidence that he may not wish to have shared with the second applicant, in circumstances where the applicants had separate applications before the Tribunal which were addressed at a joint hearing. The first applicant did not give any indication that he had information to provide that he did not want shared with the second applicant and rather took the opportunity to provide a further submission on behalf of all applicants. The first applicant indicated how much time he would require to provide evidence when he requested an extension of time and was ultimately granted an extension to one day beyond that requested by him. The first applicant provided his submission within the extended timeframe and did not indicate in the submission that he had any further evidence to provide if he was granted more time and did not request any further time. Further, the first applicant did not provide any additional material in the period of almost two months between his submission of 20 December 2023 and the Tribunal decision of 14 February 2024.
6. The first applicant did not indicate to the Court that there was any additional evidence that he could have provided if he had more time and his submission to the Court seems to indicate that he could not have provided any further relevant evidence unless he were to return to Malaysia. In the circumstances, there was no practical unfairness to the first applicant as a consequence of the timeframe to respond to the Tribunal's invitation being less than 14 days. Therefore, even if there was a breach of s 424B(2) of the Migration Act, there was no jurisdictional error in the present case.
7. Finally, in his reply submissions to the Court, the first applicant claimed that 14 days was not enough to provide all evidence in relation to his claims for protection. However, as indicated above, the opportunity to provide additional evidence after the hearing was a further opportunity to provide evidence, offered after the applicant had already had multiple opportunities to provide evidence. It is not accurate to say that the first applicant had less than 14 days to provide all evidence in relation to his claims for protection.
8. Ground 2 is not established.

A further issue raised by the Minister: Appellant S395

1. The Minister raised in his submissions that the Tribunal at [98] of its reasons found that the first applicant would not face a real chance of serious harm by reason of his religion because, amongst other things, he was a 'private practitioner'. The Minister raised for consideration an issue of whether, in circumstances where the Tribunal did not consider whether his private practice was the result of his fear of persecution, a question arises as to whether the Tribunal fell into an error of the type identified in Appellant S395.
2. In explaining the requirements of Appellant S395, the Minister referred to the following summary of the principles in Appellant S395 set out in Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 (VWBA) at [6]:

(a) The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal's task is to assess what the applicant will do, not what he or she should do. See S395 at [40] and [50] per McHugh and Kirby JJ and at [80] and [82] per Gummow and Hayne JJ.

(b) If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. See S395 at [43] and [53] per McHugh and Kirby JJ and at [88] per Gummow and Hayne JJ.

(c) The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted. See S395 at [56] per McHugh and Kirby JJ and at [85]-[86] per Gummow and Hayne JJ.

1. The reasoning in Appellant S395 and subsequent judgments now needs to be considered in the context of s 5J(3) of the Migration Act, which provides that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would, relevantly, require the person to 'alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith'. I am satisfied that the characteristic of the first applicant the subject of the issue raised by the Minister is the first applicant's religion, and the first applicant is not required by s 5J(3) to take reasonable steps to modify his behaviour relating to his religion to avoid a well-founded fear of persecution.
2. The Tribunal's reference at [98] of its reasons to the first applicant being a 'private practitioner' of his Shia Islam faith needs to be considered in the context of the Tribunal's reasons and findings as a whole. Relevantly, the Tribunal found that:

(a) the first applicant wishes to practise Shia Islam and feels that without praying or engaging in acts of worship the way he wishes, his practice of Islam feels incomplete: [84];

(b) the first applicant did not feel free in Malaysia to publicly practise Shia Islam, although he did occasionally attend mosques, but he did practise the religion in private: [84];

(c) the harm suffered by the first applicant in being, on one occasion, punched in the face and losing a tooth, and subsequently being cautious about practising Shia Islam in public, does not individually or cumulatively rise to the level of serious harm, nor is it systematic or discriminatory conduct: [85];

(d) the first applicant did not proselytise or attempt to convert others in Malaysia and has no intention to do so if he returns to Malaysia: [91];

(e) the first applicant considers that being a Shia Muslim is a matter between him and God, to face God he only has to convince himself and he does not try to convert other people because he respects their beliefs: [91];

(f) Shia Muslims generally live free from societal discrimination on a day-to-day basis, but face a low level of official discrimination in that religious authorities may prevent them from being able to worship freely, with there being a higher risk of official discrimination for those proselytising or promoting Shia Islam: [92];

(g) the first applicant did not experience religious authorities preventing him from worshiping freely nor any harassment from state authorities, but experienced societal pressure and, on one occasion, physical abuse by members of the public: [93];

(h) after the confrontation at the mosque, the first applicant still on occasion attended a mosque when he thought there would not be other people present: [94]; and

(i) the risk of future confrontations at mosques or within mosque compounds and the first applicant's caution in public worship does not rise to the level of serious harm: [98].

1. Read in its proper context, I also consider that the Tribunal's reference to the applicant being a 'private practitioner' in [98] is a reference to him not being a religious leader or a person who proselytises or promotes Shia Islam, rather than a person who avoids practicing his religion in public places.
2. The Minister acknowledged that the Tribunal in this matter did not make any express findings about whether the first applicant's practice of Shia Islam required it to be practised in public, or with others, but submitted that the this can be implied from its reasoning, based on country information, to the effect that Shia Muslims generally live free from societal discrimination on a day-to-day basis and face low levels of discrimination absent proselytising or promoting the religion. The Minister submitted that the Tribunal met the second Appellant S395 requirement, on a similar basis to the reasoning given by the Tribunal in VWBA.
3. I am satisfied in the circumstances of the present case that the Tribunal has not made the error identified in Appellant S395. The Tribunal did not, anywhere in its reasons, require the first applicant to take reasonable steps to avoid persecution.
4. There are two aspects of the Tribunal's reasoning that may be relevant to whether the first applicant will act in a way to reduce a risk of persecution that would otherwise have been well-founded.
5. The first relates to the Tribunal's finding that the first applicant did not feel free to practise his religion in public or that he felt cautious about doing so. The Tribunal's finding essentially amounts to a finding that the first applicant limited his public practice of his religion because of a subjective fear of harm. The Tribunal did not expressly address the extent to which the first applicant would attend mosques in the future, however, its findings at [98] seem to imply that he may attend mosques on some occasions. The Tribunal's findings based on country information demonstrate that the Tribunal considered that Shia Muslims who practise their religion and do not proselytise or promote Shia Islam face low levels of official discrimination. It is implicit in this finding and the acceptance of the country information that the Tribunal considered that Shia Muslims would not face a well-founded fear of persecution if they practise their religion without proselytising or promoting their religion to others. Appellant S395 does not require the Tribunal to consider whether and why the first applicant would act in a particular way to avoid a fear of persecution that is not well-founded.
6. The second aspect of the Tribunal's reasoning that is relevant to its finding that the first applicant would be a 'private practitioner' is its finding that the first applicant would not proselytise or promote his religion (other than to his wife and children). The Tribunal accepted the first applicant's explanation that he had no intention to convert others because he respected their beliefs and saw his religion as a matter between himself and God. There was no evidence before the Tribunal that the first applicant avoided proselytising or promoting his religion to others to avoid a fear of persecution, and the Tribunal made a finding as to why the first applicant would not proselytise or promote his religion, with that reason having nothing to do with any attempt to avoid a fear of persecution.
7. I thank the Minister for raising the additional issue based on Appellant S395 and am satisfied that no error arises on that basis.

1. In circumstances where the applicants have not established that the Tribunal made a jurisdictional error, the application for judicial review must be dismissed.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicants' matter was before it for review.