CLL25 v Minister for Immigration and Citizenship

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

EQJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1476

GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

SZMJM v Minister for Immigration and Citizenship [2010] FCA 309

In person (via telephone), with the assistance of an interpreter

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The Originating Application, lodged on 24 February 2025 and accepted for filing on 28 February 2025, be dismissed.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 24 February 2025 the applicants, CLL25 and CLM25,[1] filed an application for judicial review.[2] The Judicial Review Application was made under s 476 of the Migration Act 1958 (Cth).[3] The Judicial Review Application seeks judicial review of a decision of the Administrative Review Tribunal dated 23 January 2025[4] in which the Tribunal affirmed decisions of a delegate[5] of the first respondent, now the Minister for Immigration and Citizenship,[6] of 9 July 2019 not to grant the Applicants Sub-class XA-866 Protection visas.[7]
2. The Court Book[8] was lodged on 3 June 2025 and accepted for filing on 12 June 2025.

BACKGROUND TO THE JUDICIAL REVIEW APPLICATION INCLUDING CLAIMS MADE TO THE TRIBUNAL

1. The background to the Judicial Review Application is as follows:

(a) the Applicants are citizens of Malaysia who arrived in Australia on 29 October 2018 as the holders of Electronic Travel Authority visas;[9]

(b) on 12 January 2019 the Applicants lodged two nearly identical applications for Protection Visas; [10]

(c) in the two Protection Visa applications the Applicants claimed that:

(i) they left Malaysia because:

• (A) of political and economic issues;
• (B) they wanted to find better opportunities for work;
• (C) a friend suggested they come to Australia; and
• (D) they were facing financial difficulties and joblessness; and

(ii) if they return to Malaysia they:

• (A) will face major financial hardship, harm and suffering; and
• (B) they fear they will have no job and cannot support themselves and their family as they have applied for many jobs in Malaysia but have not found any jobs in Malaysia, and the authorities cannot protect them;[11]

(d) on 9 July 2019 the Delegate's Decisions were to refuse to grant the Applicants Protection Visas;[12]

(e) on 10 and 16 July 2019 the Applicants lodged applications with the Tribunal for merits review of the Delegate's Decisions;[13]

(f) on 10 December 2024 the Applicants were invited to a hearing before the Tribunal on 21 January 2025;[14]

(g) on 2 October 2024 the Applicants completed the pre-hearing information form which specified the Applicants' claims for protection were related to their economic and financial difficulties, including a new claim for protection relating to the Applicants' child;[15]

(h) on 21 January 2025 the Applicants attended a hearing before the Tribunal;[16] and

(i) on 23 January 2025 the Tribunal Decision was to affirm the Delegate's Decisions and the Tribunal notified the Applicants accordingly on 24 January 2025.[17]

(a) considered the Applicants' economic and political claims but was not satisfied that there was a real chance or risk of harm to the Applicants because of economic issues if they were returned to Malaysia in the reasonably foreseeable future.[18] This was because:[19]

(i) the Applicants stated that they would live in CLL25's mother's house in Malaysia if they returned to Malaysia;

(ii) based on CLL25's work history as well as on country information, CLL25's criminal history will not exclude him from the workforce in Malaysia in the future;

(iii) based on country information and the Applicants' admissions, the Applicants will be able to find work in Malaysia and be able to support their family; and

(iv) based on the Applicants' evidence about political issues, which were confined to concerns about the uncertainty surrounding regular democratic elections, there is no real chance or risk of harm to the Applicants if they were returned to Malaysia in the reasonably foreseeable future. The Applicants did not provide any additional evidence as to any harm suffered nor any additional evidence of harm that they feared in future by a change in ruling parties or to any particular laws; and

(b) affirmed the Delegate's Decisions to not grant the Applicants Protection Visas.[20]

1. The Judicial Review Application contains five grounds of review which are set out at [14] (grounds 1, 2, and 3), [23] (ground 4), and [30] (ground 5). Further possible procedural fairness issues raised at hearing before the Court[21] are set out at [34] below.

1. For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error.[22] An error must be material to be jurisdictional.[23]
2. At hearing the Court explained to the Applicants (with the assistance of an interpreter) the need to establish jurisdictional error in the Tribunal Decision for the Judicial Review Application to succeed, and the nature of jurisdictional error.[24]

1. The Applicants did not file a written outline of submissions as they were permitted to do by reason of an order of a Registrar of the Court made on 4 August 2025.[25] Albeit that the Applicants did not file submissions or other materials they were invited at the final hearing to make oral submissions.[26] That approach is consistent with Federal Court authority to the effect that even where there are unparticularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground or grounds of review.[27]
2. CLL25's initial oral submissions at final hearing were limited to a statement he "hope[d] your Honour can consider my grounds. That's all I want to say".[28]
3. CLL25, in reply, submitted that "my feelings was not being prioritised and taken care of during the [Tribunal] hearing. That's all I want to say".[29] CLM25 made a short submission to the effect that she "was not being called forth and given a chance to speak" at the Tribunal Hearing.[30] The Court has treated these two submissions as raising procedural fairness issues which are dealt with further below.[31]
4. The Applicants did not make oral submissions specifically related to the five grounds of review in the Judicial Review Application.
5. The Minister filed a written outline of submissions in accordance with the Registrar's Order, and made oral submissions at hearing,[32] which, in essence, asserted that:

(a) the grounds of review did not raise any jurisdictional error;

(b) in relation to grounds 1, 2 and 3 that the Tribunal made findings that were open to it on the evidence and did not misconstrue s 36(2A) and complied with its procedural fairness obligations;

(c) in relation to ground 4 that the Tribunal was under no duty to investigate;

(d) in relation to ground 5 that ss 424A and 424AA had been repealed and that there was nothing to suggest that the Tribunal had not complied with ss 357A or 359A; and

(e) the Applicants attended the Tribunal Hearing and were not denied any opportunity to make submissions and were not denied procedural fairness.

Consideration of the Judicial Review Application

1. In considering the Judicial Review Application the Court has had regard to the oral submissions made by the Applicants and the written and oral submissions made by the Minister.

1. Grounds 1, 2, and 3 can be considered together, and are as follows (transcribed verbatim):

The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to Malaysia from political issues, economic and financial difficulties.

The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.

1. Section 36(2) and (2A) provides as follows:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subjected to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.

1. At the outset it is relevant to observe that the Tribunal followed the procedures in Pt 5, including the following:

(a) inviting the Applicants to attend the Tribunal Hearing[33] (which they did attend);[34]

(b) permitting the Applicants to give evidence and present arguments with the assistance of a Malay interpreter, albeit that only CLL25 did so, whilst CLM25 opted not to give evidence;[35]and

(c) complying with the provisions of ss 357A and 359A.

1. There is nothing to indicate that the Tribunal:

(a) was asked to exercise a discretion, for example to adjourn the Tribunal Hearing; or

(b) proceeded in a way that was other than in an efficient and fair way.[36]

1. The Tribunal identified and considered the Applicants' claims raised in:

(a) their Protection Visa applications;

(b) the pre-hearing information form; and

(c) the Tribunal Hearing.[37]

1. The Tribunal made findings on the Applicants' evidence given at the Tribunal Hearing, including that:

(a) the Applicants would live in CLL25's mother's house in Malaysia;

(b) CLL25's criminal history will not exclude him from the workforce in Malaysia in the future; and

(c) both Applicants will be able to find work in Malaysia.[38]

1. In the Tribunal Decision the Tribunal made findings and conclusions reasonably open to it on the evidence and material before it, including relevant country information which it put to CLL25[39] and which it both otherwise referred to and applied.[40] The Tribunal Decision had an evident and intelligible basis, and further a consideration of the Applicants' material and evidence and the country information could rationally lead another decision-maker to arrive at the same conclusion on the same evidence and materials, and the Tribunal Decision was therefore not unreasonable.[41]
2. The Tribunal correctly applied s 36(2) and (2A), and assessed whether the Applicants met:

(a) the refugee criterion; or

(b) the complementary protection criteria, and insofar as the Tribunal had to consider whether the Applicants would suffer significant harm in the circumstances specified in s 36(2A), none of those circumstances applied when regard is had to the Tribunal's findings concerning the Applicants and any risk associated with their returning to Malaysia.[42]

1. For the above reasons no error, let alone jurisdictional error, has been made out in relation to grounds 1, 2, and 3, and those grounds do not establish jurisdictional error in the Tribunal Decision.

The Tribunal has failed to investigate applicant's claim, especially the grounds of persecution in Malaysia.

1. Ground 4 asserts that the Tribunal "failed to investigate" claims made by the Applicants (albeit that it refers in the singular to an "applicant's claims"). That raises the question as to whether the Tribunal was required to investigate claims made by the Applicants.
2. In Minister for Immigration and Citizenship v SZIAI[43] the High Court set out the limited circumstances where the Tribunal may be obliged to make its own inquiry. In SZIAI the High Court held that the Tribunal, exercising its power of review under the Act, did not have a "duty to inquire", but rather it had a "duty to review". The High Court further held that only where there was a failure to make an "obvious inquiry about a critical fact, the existence of which is easily ascertained" could an argument be made that a jurisdictional error may have occurred.[44] It has however been indicated that the circumstances in which a duty to inquire arises would be "rare and exceptional" and the fact that it might have been reasonable to make an enquiry does not amount to jurisdictional error.[45] And if the Tribunal could not be satisfied based on the material presented that the Applicants' claims were genuine it did not have a duty to make further enquiries.[46]
3. Having regard to the law set out in the previous paragraph the Tribunal did not err. That is because the claim of a failure by the Tribunal to investigate cannot be made out because the Tribunal was under no duty to investigate or inquire, save as to an obvious inquiry about a critical fact, the existence of which is easily obtained by the Tribunal. Here the Tribunal's findings and conclusions were based on the evidence and materials (including country information) before it, and there is nothing to suggest that there was a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily obtained by the Tribunal. No such critical fact is pointed to by the Applicants, and insofar as they refer to the grounds of persecution in Malaysia, the Tribunal considered all the claims made by the Applicants.
4. If, having regard to the Applicants being self-represented this ground is interpreted as one of a failure to consider claims or integers of claims made by the Applicants, the Court observes that:

(a) the Applicants' claims to meet the Protection Visa criteria are mandatory considerations under the Migration Act;[47] and

(b) it is a well-established principle that the Tribunal must consider all the claims made by an applicant and all of the integers of those claims as articulated by an applicant.[48]

1. The Applicants had ample opportunity to present their evidence and arguments, and it is plain the Tribunal set out and considered all of the Applicants' claims, which related to political, economic, financial, and work-related issues.[49] Thus, the failure to consider test is not met by the Applicants. The Applicants might not like or agree with the conclusions arrived at by the Tribunal, but that is not the test, and even emphatic disagreement with the Tribunal Decision does not establish jurisdictional error.[50]
2. It follows that ground 4 is not made out and does not establish jurisdictional error in the Tribunal Decision.

1. Ground 5 is as follows (transcribed verbation):

The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understand why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

1. The Applicants claim that the Tribunal failed to comply with ss 424A and 424AA. Sections 424A and 424AA were repealed on and from 14 October 2024.[51] The Tribunal Hearing was conducted on 21 January 2025 and the Tribunal Decision was handed down on 23 January 2025.[52] Sections 424A and 424AA therefore had no application to the Tribunal's conduct of the Tribunal Hearing as those sections had been repealed. On this basis ground 5 is misconceived and cannot succeed in establishing jurisdictional error in the Tribunal Decision.
2. Noting that there is now no equivalent to s 424AA, if the Applicants were at least intending to refer to s 359A (the equivalent to s 424A) located in Pt 5, a claim that there was a failure to comply with a mandatory requirement under s 424A also cannot succeed. For the reasons given above,[53] there is nothing on the face of the Tribunal Decision to suggest that the Tribunal:

(a) did not comply with ss 357A or 359A; and

(b) proceeded in a way that was other than efficient and fair.

1. It follows that ground 5 is not made out and does not establish jurisdictional error in the Tribunal Decision.

1. At hearing before the Court the Applicants raised what appear to be procedural fairness grounds, as follows:

(a) CLL25 alleged that his feelings were not prioritised and taken care of during the Tribunal Hearing; and

(b) CLM25 alleged she was not given the opportunity to speak at the Tribunal Hearing.

1. Both Applicants attended the Tribunal Hearing.[54] The Court notes that the transcript of the Tribunal Hearing is not in evidence, or otherwise before, the Court.
2. Nothing in the Tribunal Decision or the Tribunal Hearing record indicates that CLL25 raised any issue about his feelings or the care taken of them by the Tribunal during the Tribunal Hearing.
3. The Tribunal Hearing record shows that the Tribunal Hearing lasted for one hour and nine minutes[55] and there is nothing in the Tribunal Hearing record which indicates that CLM25 sought to make submissions or give evidence, while the Tribunal Decision directly contradicts any suggestion CLM25 sought to give evidence. In relation to CLM25 the Tribunal Decision specifically notes that CLM25 "opted not to give evidence" at the Tribunal Hearing.[56]
4. The Tribunal Decision gives no indication that there was any misunderstanding arising at the Tribunal Hearing between the Applicants and the interpreter or between the Tribunal and the Applicants.
5. The Registrar's Order permitted the Applicants to file and serve "any further evidence in respect to the hearing". According to the Registrar's Order CLL25 attended the directions hearing before the Registrar on his own behalf and on behalf of CLM25 and had the assistance of a Malay interpreter. Neither of the Applicants availed themselves of the opportunity afforded to them by the Registrar's Order to file affidavit evidence in this Court in support of these procedural fairness grounds, or otherwise.
6. In the absence of a transcript, audio or other reliable record of the Tribunal Hearing the best evidence of what occurred at the Tribunal Hearing is the Tribunal Decision.[57] In this case the Tribunal Decision does not give any indication that the Applicants were denied procedural fairness in the manner now alleged.
7. In the circumstances the Court has concluded that the procedural fairness grounds are not made out and do not establish jurisdictional error in the Tribunal Decision.

1. The Court has concluded that the Applicants have failed to establish jurisdictional error in the Tribunal Decision. It follows that there will be an order dismissing the Judicial Review Application.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

[1] Together the "Applicants", individually CLL25 and CLM25 respectively as necessary.

[3] "Migration Act". All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Tribunal Decision, unless otherwise indicated.

[4] "Tribunal Decision" and "Tribunal" respectively.

[5] "Delegate's Decisions" and "Delegate" respectively.

[14] CB 219-221 ("Tribunal Hearing Invitation").

[22] Sections 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.

[23] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

[25] "Registrar's Order". For reasons which are not apparent from the Court file the Registrar's Order vacated similar orders made by a different Registrar on 27 May 2025.

[27] DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J; EQJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1476 at [11] per Burley J; GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125 at [26] per Banks-Smith J; BIK18 v Minister for Home Affairs [2019] FCA 788 at [3] per McKerracher J.

[36] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) ("ART (Consequential and Transitional Provisions No. 1) Act") Sch 16, item 24(2).

[40] CB 250 at [28] and [30] and fnn 1-4, and 251 at [36]-[39].

[41] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130], [131] and [135] per Crennan and Bell JJ.

[43] [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 ("SZIAI").

[44] SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[45] SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] per Bennett J.

[46] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [16]- [17] per Gleeson CJ, [43] per Gummow and Hayne JJ, and [124] per Callinan J.

[47] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [63] per Black CJ, French and Selway JJ; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 ("Htun") at [42] per Allsop J.

[48] Htun at [42] per Allsop J; Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]- [25] per Gummow and Callinan JJ (with whom Hayne J agreed at [95]), and at [78] per Kirby J; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ.

[49] CB 248-251 at [14]-[40], and see [4(a)] above.

[50] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [40] per Gleeson CJ and McHugh J.

[51] ART (Consequential and Transitional Provisions No. 1) Act, s 226.

[57] NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Chhetri v Minister for Immigration and Border Protection [2016] FCCA 490 at [48] per Judge Emmett; Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev.