BSH23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1151

Things to do before the hearing

Please provide all documents you intend to rely on to support your case by 14 February 2023. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.

1. On 14 January 2023, the applicant returned a completed "Response to hearing invitation" form to the Tribunal via email (CB 93-96). In that form, the applicant requested a Mandarin interpreter (CB 94).
2. He also provided additional documents to the Tribunal, including written submissions, various photographs depicting watches and other items he was selling with his online business and photographs he claimed documented scarring on his body from an alleged assault by loan sharks (CB 97-112).
3. On 20 February 2023, the Tribunal wrote to the applicant (by email) advising that, due to circumstances beyond their control, the hearing had been cancelled and they would contact him again as soon as a new hearing date was available (CB 113).
4. On 24 February 2023, the Tribunal again contacted the applicant (by email sent to the applicant's nominated email address) advising him that the hearing would now take place on 23 March 2023 (CB 114-117).
5. Later that same day (being on 24 February 2023), the applicant again returned a completed "Response to hearing invitation" form to the Tribunal via email (CB 118-121). In that form, the applicant again requested a Mandarin interpreter (CB 119).
6. On 20 March 2023, the Tribunal wrote to the applicant and requested information from him (CB 122-123). In particular, the Tribunal asked for the following information (CB 123):

The presiding member has requested that you consult with a GP and obtain a signed medical certificate that comments on the nature of your alleged burn scars. The member requests this medical certificate as a means of better informing her decision in relation to this matter.

The member also requests that you provide the GP with the photographs of your burn scars that you have submitted to the tribunal; within the medical certificate, the GP

should comment on whether the scars appear to be consistent with a cigarette burn and a boiling water burn. If you could ask that the GP also comments on whether he/she is able to determine the approximate date that the wounds were inflicted, considering the current state of the scarring, that would be helpful.

Please provide this medical certificate to the tribunal by 23 March 2023, if possible. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

1. On 21 March 2023, a letter was provided to the Tribunal (by email) from a medical centre including information relating to the applicant's scarring (CB 124-125).
2. On 23 March 2023, the applicant appeared at the Tribunal hearing to give evidence and present arguments in support of his review application (CB 128-131). The applicant was assisted at that hearing by an interpreter in the Mandarin and English languages (CB 128).
3. On 16 June 2023, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 134-143).
4. On 5 July 2023, the applicant applied to this Court for judicial review of the Tribunal's decision. The applicant also provided an affidavit in support of that application (sworn by him on 29 June 2023). That affidavit annexed a copy of the Tribunal's decision, together with the associated notification letter and information sheet.

1. The application for judicial review was brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to detail the Tribunal's decision in some detail.
2. The Tribunal's decision is 10 pages long and spans 38 paragraphs (CB 134-143). The final three pages contain extracts of relevant legislative provisions (CB 141-143).
3. The Tribunal began by explaining that the applicant, who was a citizen of Malaysia, had applied for the visa on 20 June 2017 and was refused that visa by a delegate of the Minister on 5 September 2017. The Tribunal confirmed that the applicant had appeared at a hearing before it on 23 March 2023 to give evidence and present arguments (at [1]-[3]).
4. The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions detailed in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also noted that, in assessing the applicant's protection claims and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department and country information assessments prepared by the Department of Foreign Affairs and Trade ("DFAT") for protection status determination purposes (at [4]-[9]).
5. The Tribunal summarised the applicant's protection claims as set out in his visa application as follows (at [11]). The applicant claimed that:

(a) he left Malaysia because of a "political ... and economic issue[s]";

(b) if he returned to Malaysia he would not have a job and could not support himself or his family;

(c) his friend suggested that he come to Australia; and

(d) he did not seek protection from the Malaysian authorities because Malaysia had a "bad economy and political issue[s]."

1. The Tribunal confirmed that it had invited the applicant to provide information by way of the s 424 form and that, in that form, the applicant answered "no" when asked if he wished to add to or update his protection claims. He also answered "no" when asked if there was any additional information he wanted to provide to the Tribunal (at [12]).
2. The Tribunal then detailed the written submissions provided by the applicant on 14 January 2023. In those submissions, the applicant claimed to fear harm from loan sharks for a loan amount totalling RM20000 with an interest rate of three percent per month with 12 months within which to repay the debt. The applicant claimed that he had borrowed the money to start his online business but he was not making any money and could not repay the loan. The applicant claimed that he was assaulted by four people when he was not able to pay them. The Tribunal confirmed that the applicant had also provided photographs of scarring on the applicant's body (which he claimed were caused during that assault) (at [13]-[14]).
3. The Tribunal noted that the applicant had given a "plausible account of his childhood and family background" and outlined his evidence about the money he had borrowed from the loan shark and the alleged assault. The Tribunal noted that the applicant had not repaid any of the loan, despite being employed for the past two years. The Tribunal also acknowledged that the applicant had a girlfriend in Malaysia and that she originally came to Australia with him but had since returned to Malaysia. The Tribunal noted that the applicant confirmed that his girlfriend had not been harmed since returning to Malaysia and that none of his family had been contacted by any "debt collectors" (at [15]-[20]).
4. The Tribunal detailed the applicant's evidence that his "friend's friend" had completed his visa application form for him and that he had not read the application before signing it. The applicant claimed to have instructed his "friend's friend" by way of text messages and he no longer had the phone that the messages were on. The applicant claimed that his initial reasons were "economic differences" and "financial difficulty" and that it was only in later messages that he said that he had been "beaten up". The applicant also conceded that he had no clear recollection of the application process and was only 19 years of age when he came to Australia (at [21]-[23]).
5. The Tribunal accepted that the applicant had been the "victim of a nasty assault at some stage in his history" but "did not accept the applicant's late raised claim to be a victim of loan sharking". The Tribunal found the applicant's account of borrowing money to be vague and his explanation for why he did not raise the claim before the delegate to be unsatisfactory. The Tribunal noted that there was no corroborating evidence of a loan or threats from a loan shark and the evidence of the applicant's injuries were not taken contemporaneously. The Tribunal was of the view that the injuries could not be dated from the photographs and it was not possible to tell if they occurred on one or on many occasions. The Tribunal also did not accept that the applicant's elective non-repayment of the loan was an immutable characteristic for the purpose of establishing whether the applicant was a member of a particular social group and noted that the applicant had conceded that he had made no effort to make any payments since arriving in Australia, despite having the ability to do so. For those reasons, the Tribunal was not satisfied that the applicant was owed protection obligations under s 36(2)(a) of the Act (at [25]-[28]).
6. Having found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal again noted that it did not accept the applicant's story of being harmed by debt collectors. The Tribunal did accept that the applicant had been assaulted on at least one occasion but, without knowing the real reason or circumstances, the Tribunal did not have substantial grounds for believing that there was a real risk to the applicant in the future. Further, even if the Tribunal did accept that the applicant had been assaulted by debt collectors in the past, it would not give rise to a real risk of future significant harm to the applicant. This was because the applicant's girlfriend returned to Malaysia from Australia without being harmed, which suggested that the group had less interest in pursuing the alleged debt than the applicant thought. The Tribunal also considered that the applicant's evidence in relation to the loan sharks was more than six years old. The Tribunal noted current DFAT country information indicated that there had been a substantial police crackdown on debt collecting in Malaysia since 2017 and found that despite the applicant's non-payment of his loan, his girlfriend and family remained unharmed by the debt collectors (at [29]-[34]).
7. The Tribunal accepted that there were some economic problems in Malaysia and it might be difficult for the applicant to secure work if he were to return. The Tribunal considered that was a problem which would affect the population generally 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 (at [35]-[36]).
8. The Tribunal ultimately determined that the applicant did not satisfy the criterion in s 36(2) of the Act and affirmed the delegate's decision refusing to grant the applicant the visa (at [37]-[38]).

1. The application for judicial review (filed by the applicant on 5 July 2023) contained two "grounds of review" as follows (without alteration):
   1. I was persecuted in my country due to political and economic issues, where I was exploited by local forces that threatened my safety and survival. As my human rights were violated and no help could be obtained from the authorities, I had to come to Australia to seek for protection.
   2. Meanwhile, the Tribunal hearing was unfair to me because it was not conducted in Mandarin. Throughout the process, I was confused with misleading questions and were forced to give responses unfavourable for my circumstances.
2. The applicant also filed an affidavit in support of that judicial review application (sworn by him on 29 June 2023 and filed on 5 July 2023). That affidavit annexed a copy of the Tribunal's decision and associated notification letter and factsheet. It also repeated the grounds of review outlined above.
3. On 10 April 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, written submissions and any additional evidence. Unfortunately, no additional materials were filed by or on behalf of the applicant.
4. On 24 October 2024, further procedural orders were made by Registrar van der Westhuizen of this Court transferring the proceeding to the Perth Registry of the Court.
5. The applicant appeared before this Court on 29 May 2025. He did so without legal representation. He was assisted at that hearing by an interpreter in the Mandarin language. The Court confirmed with the applicant that he had received copies of the CB and the Minister's written submissions. Mr Benjamin Mayne from Sparke Helmore appeared at the hearing on behalf of the Minister.
6. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 5 July 2023 (the affidavit being taken as read and in evidence at the hearing of this matter), a CB numbering 143 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 9 May 2025 and the affidavit of service of Ms Aatika Ismailjee (affirmed and filed on 22 May 2025 and also taken as read and in evidence at the hearing of this matter).
7. Noting that the applicant was not represented (and noting the remarks of the Federal Court of Australia in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 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)), the Court gave the applicant an opportunity to outline (orally) what he thought the Tribunal "did wrong" in relation to his matter.
8. The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal's decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

(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 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]- [208];

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];

(f) where the decision-maker shows actual or apprehended bias_: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship_ [2013] FCAFC 80 ("SZRUI") at [2]; and

(g) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].

1. The Court also explained that it cannot undertake a merits review of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu Shan Liang"). Importantly, the Court cannot grant the applicant the visa that he seeks, even if the Court disagrees with the Tribunal's ultimate findings. Instead, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
2. Against this background, the applicant told the Court that he believed that the interpreter engaged by the Tribunal "did not interpret all of the things that [he] said to the Tribunal member" and, similarly, "the interpreter did not interpret all of the things the Tribunal member said to [him]". Later in the hearing, the applicant confirmed that he had "understood what the interpreter was trying to say", however, the interpreter "did mumble when he was interpreting ... and on that basis, [he did not think that] the interpreter properly interpreted all of the case". The applicant also said that he had submitted a lot of photographs and he did not think that the Tribunal member considered them properly.
3. The applicant's oral submissions, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.

1. As outlined above, ground one relevantly provided as follows:
   1. I was persecuted in my country due to political and economic issues, where I was exploited by local forces that threatened my safety and survival. As my human rights were violated and no help could be obtained from the authorities, I had to come to Australia to seek for protection.
2. To the extent that the applicant again raises protection claims by ground one or otherwise seeks for this Court to consider those claims, the Court is not permitted to do so: Wu Shan Liang at [31].
3. The Court also notes that, as correctly submitted by the Minister (at [23]-[24] in written submissions filed in this Court on 9 May 2025), whilst the applicant's visa application originally stated that the applicant feared returning to Malaysia due to political and economic issues, the applicant's claims later changed to the applicant fearing harm from loan sharks and claiming to have been assaulted by those loan sharks (or debt collectors connected with them). The applicant did not, however, raise any claim that he had been "exploited by local forces". Nor did that claim arise squarely on the material before the Tribunal such that the Tribunal ought to have considered it: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18].
4. The Court is satisfied that the Tribunal's reasons show that it had regard to all of the applicant's protection claims and evidence as advanced by the applicant. The Court is also satisfied that the Tribunal engaged in an active and intellectual assessment of those claims before ultimately determining that the applicant did not meet the requirements for the grant of the visa: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 ("Carrascalao") at [43]-[46] and Minister for Home Affairs v Omar [2019] FCAFC 188 at [37].
5. The Court does note that the Tribunal did not expressly reference the medical letter provided by the applicant on 21 March 2023 (CB 124-125) in relation to the applicant's scarring. However, it is well established that the Tribunal is not required to reference every piece of evidence provided by the applicant: Carrascalao at [45]. There is also nothing to suggest that the Tribunal failed to have regard to the information contained in the letter from the doctor which essentially suggested that the photographs provided by the applicant displayed scarring which were consistent with having been caused by injuries from cigarette burns and boiling water. However, the medical letter did not provide any opinion in relation to when those injuries might have been caused, by whom or on how many occasions the applicant had been injured causing the scarring.
6. The Court also notes that the Tribunal did, in fact, accept that the applicant had "been the victim of a nasty assault at some stage in his history" and noted that "his scars reflect[ed] that he ha[d] been attacked by someone on at least one occasion" (at [25] of its reasons). The Tribunal then considered the applicant's evidence regarding having borrowed money from a loan shark and ultimately found that the "evidence of his injuries was not taken contemporaneously" and there was otherwise no corroborating evidence of a loan or any threats to the applicant from a loan shark.
7. The Court is satisfied that the Tribunal had regard to the applicant's claims and the evidence before it and no jurisdictional error arises in relation to ground one.

1. Ground two stated:
   1. Meanwhile, the Tribunal hearing was unfair to me because it was not conducted in Mandarin. Throughout the process, I was confused with misleading questions and were forced to give responses unfavourable for my circumstances.
2. By ground two, the applicant suggests that the Tribunal hearing was not conducted with the assistance of a Mandarin interpreter. This fails on a factual level.
3. Whilst the Tribunal's reasons (incorrectly) reference the applicant being assisted by a Malay interpreter (at [3] in its written reasons), the Court considers that reference to be nothing more than a typographical error. The Tribunal's "case notes" confirm the booking of an interpreter in the Mandarin language to attend the Tribunal hearing on 23 March 2023 "in person" and confirm that the interpreter was booked for a three hour duration (including his name and the organisation through which the interpreter booking was made) (CB 127). Further, the Tribunal's hearing record confirmed that same interpreter's attendance at the Tribunal hearing on 23 March 2023 confirmed that he had taken an affirmation and was present from 9.15am and was otherwise present for the duration of the Tribunal hearing (CB 128 & 131).
4. There is also no evidence before the Court to suggest that the applicant raised any concerns with the quality of the interpretation at any point with the Tribunal (either during the Tribunal hearing on 23 March 2023 or during the nearly three months that lapsed between the Tribunal hearing and the Tribunal making its decision in this case on 16 June 2023). Instead, the Tribunal's reasons show that the applicant and the Tribunal discussed his protection claims throughout the hearing and the applicant was able to properly engage with the Tribunal during that time (see, for example, paragraphs [15] to [24] of the Tribunal's reasons). Further, in oral submissions before this Court, the applicant confirmed that he had understood the interpreter.
5. Insofar as the applicant otherwise suggests that the Tribunal failed to comply with its obligations under s 422B of the Act or that the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule, the Court disagrees for the reasons that follow.
6. As previously explained by this Court in ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67 (and other similar matters), Division 4 of Part 7 of the Act (as was in force at the time of the Tribunal's decision in this matter) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
7. The Court is satisfied that the applicant in this matter was afforded natural justice.
8. Relevantly, the Court notes that:

(a) the applicant was advised by the Tribunal on 12 September 2017 that his review application to the Tribunal had been received and that he was entitled to "provide material or written arguments" for the Tribunal to consider (CB 54-56);

(b) the applicant was invited to provide information to the Tribunal by completing the s 424 form (CB 69-71). The applicant ultimately returned the completed s 424 form to the Tribunal by email on 14 May 2022 (CB 72-78);

(c) the applicant was invited in writing to attend a hearing before the Tribunal scheduled to take place on 21 February 2023, was asked to complete a "Response to hearing invitation" form and advised that he could provide additional documents to the Tribunal upon which he intended to rely (CB 84-92);

(d) the applicant ultimately responded to that invitation and attached a completed "Response to hearing invitation" form dated 14 January 2024 (likely to be a typographical error in including 2024 instead of 2023 as the year) (CB 93-96). The applicant also provided additional material to the Tribunal (CB 97-112);

(e) on 20 February 2023, the applicant was advised that his hearing before the Tribunal had been cancelled and would be rescheduled (CB 113) and was advised on 24 February 2023 that the hearing would take place on 23 March 2023 and given a further opportunity to provide additional material to the Tribunal (CB 114-117);

(f) the applicant again responded to that invitation and attached a completed "Response to hearing invitation" form dated 24 March 2023 (CB 118-121);

(g) the Tribunal again invited the applicant (on 20 March 2023) to provide information and, in particular, requested a medical certificate relating to the nature of the applicant's alleged scarring (CB 122-123);

(h) the applicant provided a medical letter in that regard on 21 March 2023 (CB 124-125);

(i) the applicant attended the Tribunal hearing on 23 March 2023 (CB 128-131). That hearing lasted for two hours and twenty minutes and the applicant was assisted at that hearing by an interpreter in the Mandarin and English languages (CB 128);

(j) there was no requirement for the Tribunal to put any information to the applicant for his comment because the information relied upon by the Tribunal was evidence given by the applicant or country information: s 424A(3) of the Act (as was in force at the time of the Tribunal's decision);

(k) the applicant was asked numerous questions by the Tribunal at that hearing and given ample opportunity to clarify or explain his claims, including discussing his new protection claim relating to loan sharks;

(l) there is no evidence before the Court to suggest that the applicant requested an adjournment or any additional time to provide further information to the Tribunal or that the applicant was otherwise not provided with a proper opportunity to present his case; and

(m) there is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.

1. The Court is satisfied that the Tribunal gave the applicant every opportunity to provide evidence in support of his case. The Court is also satisfied that the applicant was afforded natural justice in this matter.
2. No jurisdictional error arises in relation to ground two.

1. The application for judicial review and supporting affidavit (both filed by the applicant on 5 July 2023), together with the applicant's oral submissions to this Court (at the hearing on 29 May 2025) have failed to identify any jurisdictional error on the part of the Tribunal.
2. The Court is otherwise unable to identify any jurisdictional error.
3. The application is, accordingly, dismissed.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.