BQJ22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 589

1. In this matter, the applicant seeks judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal) dated April 2022, which affirmed a decision not to grant the applicant a Protection (Class XA) Subclass 866 visa (protection visa).
2. As will be seen, the grounds of the application say little about the alleged error, except to re-engage with the merits. The vagueness and the lack of any further written or oral submissions of any substance by the applicant provide a sufficient basis for dismissal, as the Full Court of the Federal Court noted at NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176, bearing in mind also the limited role of the Court as summarised by Owens J in JFPT v Minister for Immigration and Multicultural Affairs [2025] FCA 1245, which, although there speaking of the jurisdiction of the Federal Court, is directly applicable to review under section 476 of the Migration Act 1958 (Cth) (the Act). His Honour said, and I apply the following:

[2] The jurisdiction of this Court to review the Tribunal's decision is conferred by s 476A of the Migration Act. It is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. That jurisdiction is of a particular and limited kind. It is concerned only with the lawfulness of the exercise of the power pursuant to which the decision was made. The "duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone": Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).

[3] Fidelity to the limitations of that jurisdiction ensures that a clear boundary is maintained between the proper domains of the respective branches of government. That, in turn, permits the accurate location of responsibility for a particular exercise of public power, thus facilitating accountability in respect of it.

1. The application must be dismissed with costs in a fixed sum.

1. The applicant is a citizen of Malaysia who applied for a protection visa in 2018, and when it was refused by a delegate of the Minister, sought review in the Tribunal, and when the Tribunal affirmed the decision not to grant the applicant a visa, applied to this Court under section 476 of the Act.
2. The protection claim arose out of the applicant's asserted involvement in gang activities in Malaysia which brought him into conflict with rival gang members. However, the Tribunal found that those details were unpersuasive, did not give rise to a well-founded fear of persecution upon return to Malaysia, and did not otherwise establish a claim as a refugee or under the complementary protection visa criteria. The key paragraphs of the Tribunal's consideration are as follows:

[23] The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

[24] The Tribunal considered the applicant's claims made to the Department at the time of application and to the Tribunal at the hearing. The Tribunal is prepared to accept the applicant's claims that he has been involved in gang activities in Malaysia that brought him into conflict with rival gang members. However, the applicant's evidence regarding his fears of harm from Indian gangsters in Malaysia was inconsistent and the Tribunal did not find it persuasive. In his claims to the Department the applicant said was involved in a fight with gangsters and had sustained injuries. At the Tribunal hearing he said a friend had been beaten, and he had sought revenge that led to members of the other group being injured. Despite being asked about any harm he personally had suffered; the applicant did not refer to having been injured. In his original protection claims the applicant said he had been threatened with torture and with being forced to be one of the gang's followers. The applicant did not make this claim to the Tribunal focussing instead on his economic hardships in Malaysia and his improved situation in Australia. When asked why he had not made a police report about alleged threats of violence, the applicant said it was because people would find out who made the complaint, but in his application to the Department the applicant said it was because Indian gangsters threatened his family. The applicant claimed in his original application to have moved to different areas of the country to escape harm but was found by the gang, and that he has been informed gangsters are still looking for him. The applicant did not provide any evidence to support his claims and did not repeat them specifically at the Tribunal hearing. The applicant did not explain or give any detail about the reasons why Indian gang members would still be looking for him after four years. In addition, the Tribunal found his evidence overall to be lacking in detail or cogency. The Tribunal is satisfied that there is a relatively high level of gang activity in Malaysia, and that different racial groups can come into conflict. However, after assessing the evidence in the applicant's case, the Tribunal is not satisfied the applicant left Malaysia due to persecution, or that he has a well-founded fear of persecution if he returns to Malaysia because of threats from Indian gang members.

[25] The applicant gave evidence about his family makeup and socio-economic status in Malaysia. The Tribunal accepts the applicant's family are economically unstable and that he has been working in Australia to help provide for them. The applicant claimed he had paid an agent to assist him to apply for visas in Australia, after seeing an advertisement about working in Australia. The applicant indicated he had thought he was applying to be able work legally in Australia. The applicant did not make any specific claim that he was a member of a particular social group, but the Tribunal nevertheless considered his submissions that his family experienced difficult financial circumstances due to low paid employment. The applicant, as a high school only educated person and belonging to a low-income household may mean he is part a social group that experiences poverty in Malaysia.

[26] The meaning of the expression 'for reasons of ... membership of a particular social group' was considered by the High Court in Applicant A's case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

... First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". ...

[27] Whether a supposed group is a 'particular social group' in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person's membership of the particular social group.

[28] Based on the applicant's evidence before the primary decision maker and the Tribunal on review, there is no evidence he would be denied access to basic services or denied the capacity to earn a livelihood. The Tribunal did consider whether the applicant would face significant economic hardship that would threaten his capacity to subsist. In this regard the Tribunal notes the applicant is of working age at 34 years old and has lived independently in Australia since his arrival on 21 March 2018, a period of four years. He has demonstrated that he has been able to able to make use of contacts to find work and live in a foreign country without being a native English speaker or having any family support. In that time, the applicant has been employed in the agricultural sector and would have acquired skills that could be utilised in his home country. The applicant also had an employment history in Malaysia that he can build on and being unmarried with no dependents, would be able to relocate to another part of his home country for work if necessary. The Tribunal understands the applicant has claimed his mother is widowed and he has a disabled sister, but he did not provide any verifiable evidence of this. He said his mother is not entitled to any government support because she is an Indonesian national, but he also declared two married sisters living in Malaysia which indicates the applicant's mother and sister are not without any family support. In addition, there are non-government organisations and networks that provide support to the disabled in Malaysia that the applicant's family may be able to access.

[29] For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Malaysia now or in the reasonably foreseeable future, the applicant would face harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection criteria

[30] A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

[31] During the Tribunal hearing the applicant was asked if he had any fears of significant harm if he returns to Malaysia. The applicant made claims of fearing harm from Indian gang members that he had previously clashed with. The Tribunal found the applicant's evidence to be inconsistent and lacking in detail and therefore not persuasive. The applicant's other claims were his and his family's economic situation, however, this is not a basis upon which complementary protection may be granted.

[32] In his evidence to the Tribunal, the applicant did not appear to have any genuine claims for protection in Australia. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

[33] Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

[34] There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

1. The applicant represented himself at the hearing before me on 1 April 2026. The Minister's brief written submissions had been provided to the applicant well before the hearing. At the hearing, the Minister's submissions were translated to the applicant by the Court-appointed interpreter.
2. The application had a potentially fatal defect because only a quashing order in the nature of certiorari was sought. As I explained in my decision in BGJ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1841, this is a fatal flaw in an application. However, as I foreshadowed in that case, where it is clear that the applicant seeks not only a quashing order, but asks that the matter be re-heard in the Tribunal, and when they are unrepresented, it is usually appropriate, once that is ascertained, for the Court itself under the rules to amend the application also to seek a writ of mandamus which, with the consent of the representatives of the Minister, I did at the hearing. That being so, the Court's jurisdiction under section 476 of the Act was then properly attracted.
3. The applicant, when asked whether he wished to rely on any evidence other than that in the court book tendered by the Minister, sought from the bar table to give evidence about a threat to his sister in Malaysia by a loan shark, but as this had happened recently, and in any event well past the date of the Tribunal decision, it could not rationally affect my determination of any relevant matter. That being so, I rejected it as section 56 of the Evidence Act 1995 (Cth) requires.
4. There were only three uninformative grounds of the application, namely:

"(a) The decision made to refuse my visa is based on personal opinion.

(b) The decision claims that applicant would not face any harm is incorrect.

(c) The applicant life is in danger."

1. The decision in NWWJ cited above is relevant here. There, the Full Court also dealt with opaque grounds of review which the applicant declined to expand on. The Court said in relation to a ground of review at [37]:

This ground was an unparticularised assertion of error in the decision of the AAT. Due to the vagueness of the application for review and the applicant's failure to file submissions, the Court is unable to ascertain what error was alleged to have been made by the AAT. The applicant was unable to articulate this ground any further during the course of the hearing. The failure to particularise a ground of review is itself a sufficient basis to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 [21]. Moreover, the reasons of the AAT have been set out in detail above and there is nothing which suggests the existence of a jurisdictional error in the cogent reasons of the Deputy President. The Deputy President considered each of the applicant's claims, his findings were open on the evidence, and those findings demonstrated an evident, transparent and intelligible justification for the decision to affirm the delegate's decision: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 350 - 351 [26] - [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, 445 - 446 [44].

1. Turning to this matter, it is clear that grounds 2 and 3 are merely an attempt to express disagreement with the Tribunal's decision and to invite the Court to engage in impermissible merits review, an approach which must be rejected (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [31] per the plurality of the High Court). They must fail.
2. That leaves the ground based on 'personal opinion'. I think it likely that this also is merely a disagreement with the merits of the matter, which must fail on the same basis, but it is clear, as the Minister submitted, that there is no possibility of an application for apprehended or actual bias, assuming, perhaps generously, that is what the ground refers to. There is no basis in the decision or the evidence for any such application.
3. Furthermore, as the quoted portions of the Tribunal decision in this judgment demonstrate, the Tribunal's findings were well open to it on the evidence, which was what it relied upon rather than 'personal opinion', and its reasoning disclosed a logical and rational evaluation of the applicant's evidence. The decision therefore had a sound basis, immunising it from assertion of jurisdictional error.
4. It follows that the application must be dismissed with costs in a fixed sum. The amount sought is below scale and is appropriate.

1. Accordingly, the orders of the Court will be:
   1. The application be dismissed.
   2. The applicant pay the first respondent's costs fixed in the sum of $5,900.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.