CBM21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2156

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 28 June 2021, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa (the visa) pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).
2. For the reasons set out below, the application must be dismissed.

1. On 15 February 2018, the applicant, a citizen of Malaysia, lodged an application for the visa.
2. On 20 August 2018, a delegate of the first respondent refused to grant the visa.
3. On 3 September 2018, the applicant lodged an application for review of the delegate's decision with the Tribunal.
4. On 25 May 2021, the Tribunal invited the applicant to appear at a hearing on 22 June 2021.
5. On 22 June 2021, the applicant appeared before the Tribunal, to give evidence and present arguments.
6. On 28 June 2021, the Tribunal affirmed the decision under review.

1. The Tribunal identified the issue for review was whether 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) of the Act.
2. The applicant sought protection on the basis that he had been involved in a business with his friend, that together they started a business. His friend subsequently disappeared, and a gang came to his workplace. The gang claimed he owed them money as he was a person named in a document that his friend who had disappeared gave them. The applicant is quoted at [14] of the Tribunal decision as stating:

I could be death.

I got beaten by the gang because I resist to pay them.

I try made a report police but police said it do wasting their time because it my fault trust my friend.

1. At [22], the Tribunal found inconsistencies in the applicant's evidence provided to the Department and the Tribunal regarding whether he had suffered physical harm and whether he sought police assistance.
2. The applicant claimed that he had not suffered any actual harm but had suffered an incident where the gang had come to his house, issued a threat and splashed paint. The applicant said he had not suffered actual harm, but after the paint incident, he had been scared and ran away. The applicant claimed his family had received a letter saying he had to pay MYR 50,000 or he would be killed. The applicant was asked if he had that letter, and he said he did not and was unaware if the letter was still in Malaysia.
3. Given these inconsistencies, the Tribunal drew an unfavourable inference as to the credibility of the applicant's claims [23]. The Tribunal had regard to the applicant's claims but found that even if a loan shark organisation were to demand repayment for a debt incurred by another person, he would be able to report the matter to the police and could access support services to deal with the matter. The Tribunal relied upon country information and found that assistance was available from the Malaysian Government's Credit Counselling and Debt Management Agency, as well as the non-government Malaysian Muslim Consumers Association, which has a unit dedicating to resolving loan shark debt [21].
4. The Tribunal also noted that debtors in Malaysia had access to state protection, and that illegal moneylending is an offence under the Moneylenders Act 1951 (Malaysia) [21]. The Tribunal also noted that according to country information, police do actively investigate and prosecute illegal moneylenders [28]. The Tribunal considered that the chance of the applicant suffering serious or significant harm due to his claim of an outstanding debt was remote [29]. Ultimately, the Tribunal was not satisfied that the applicant met the refugee criterion under section 36(2)(a) or the complementary protection criteria under section 36(2)(aa) of the Act [30] - [35].
5. Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.

1. The applicant advances two grounds of judicial review contained in an Originating Application filed with the Court on 28 June 2021. They are as follows (without alteration):

1. THE NON-CITIZEN WILL BE SUBJECTED TO DANGER

2. THE NON-CITIZEN WILL BE TORTURE

1. The applicant also included the following statement in his application for judicial review under the heading 'Final orders sought by the applicant/s':
   1. DECISION MADE WAS LAWFULLY ERROR

1. The applicant appeared before the Court unrepresented. At the hearing, the applicant was assisted by a Malaysian interpreter.
2. Prior to the hearing commencing, the Court ensured the applicant was in possession of a copy of the relevant Court Books and the respondent's written submissions had been provided to him, translated to him, and that he understood them. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wish to.
3. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review. The Court also explained the procedure by which the hearing would be undertaken.
4. The Court noted that no written submissions or other material was provided to the Court in respect of the applicant's case. The applicant told the Court that he was scared, as he was all by himself, and if he returned to Malaysia, his life would be in danger. The applicant said he would be threatened and he was still traumatised by what had occurred to him prior to coming to Australia.
5. It was put to the applicant that the matters he sought to rely upon did not raise any jurisdictional or legal error in the decision of the Tribunal; rather, they merely expressed vehement disagreement with the outcome arrived at by the Tribunal. The applicant was asked if he could point to any legal error, but he did not respond. After the first respondent's oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered "No'.

1. Grounds One and Two do not identify or allege any error on the part of the Tribunal.. Rather, they only seek impermissible merits review and do not assert or establish jurisdictional error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at [272].
2. The applicant's allegation that the 'decision made was lawfully error' is a bare assertion of error and is not sufficiently particularised to be the subject of a meaningful response, and for that reason alone, should be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21]. ). Further:

It is not incumbent on the Court to independently consider for itself whether such a generic ground might be capable of being particularised so as to identify a specific error ... or a jurisdictional error made by the Tribunal: AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19].

1. The task of a Court conducting judicial review was considered by the Full Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], and was described in this manner:

... an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision, or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is also a situation whereby the onus of proof is on the applicant to show that there is evidence before a Tribunal in sufficient detail in order for the Tribunal to reach the requisite degree of satisfaction to grant the visa that has been sought.
2. The Court is in agreement with the first respondent in that Grounds One and Two are mere assertions that the applicant would be subject to danger and tortured. The grounds do not identify or allege any error on the part of the Tribunal. No particulars are provided. The Court further agrees that where grounds of judicial review are not particularised, they may be dismissed for that reason alone: WZAVW at [35]. That equally applies to the claim that the decision "was lawfully error".
3. Taking a very generous view of the applicant's grounds, they could be interpreted as an assertion of legal unreasonableness in the ultimate conclusion arrived at by the Tribunal. Legal unreasonableness is characterised as being a decision that no reasonable decision-maker could come to based on the evidence before it. It also includes a decision that is illogical or irrational or is not based on probative evidence.
4. The Court has considered the totality of the Tribunal's decision. The Court is satisfied that, given the inconsistencies in the applicant's claims regarding a debt allegedly owed to a moneylender, the relevant country information outlined at [21] of the Tribunal's decision, and the credibility concerns identified by the Tribunal, the decision reached by the Tribunal was neither legally unreasonable, illogical, nor irrational.
5. There is a clear consideration of the applicant's claims against the criteria required for either protection or complementary protection. The Court is satisfied it was within the legitimate decisional freedom of the Tribunal to arrive at the outcome it did, that being the applicant did not require protection under the Refugee Conventions. The Court is satisfied that the applicant's grounds of judicial review amount to no more than seeking impermissible merits review and accordingly have no merit: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 [272].
6. The same applies to the claim that the decision was not lawfully made. The Court has carefully reviewed the material contained in the Court Book and the other supporting documentation and is unable to ascertain any other unarticulated jurisdictional error.

1. In these circumstances, the Application must be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.