CWE20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 585

1. The applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the former Administrative Appeals Tribunal (now the Administrative Review Tribunal) (Tribunal), made 29 May 2020. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made 20 September 2017 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
2. References in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit 'R1'.

1. The applicant is a citizen of Malaysia (CB 51, 58) who arrived in Australia on an Electronic Travel Authority (Subclass 601) visitor visa on 16 May 2017 (CB 58).
2. On 10 August 2017, the applicant applied for the visa (CB 10-50, 58). In the application for the visa, the applicant claimed to fear harm if he was to return to Malaysia because of his membership in the Bersih political party. In the visa application, he provided the following explanation as to why he left Malaysia (CB 45):

I AM MEMBER OF MINORITY POLITICAL PARTY CALLED BERSIH WHICH IS UNDER PRESSURE OF RULING GOVERNMENT. I DISCLOSE MY SELF IN DIFFERENT RALLAYS, THEY THREAT ME TOO MUCH AND MY BUSINESS ALSO FINISH. THEY DON'T WANT TO EXTEND MY LICENCE. DUE TO LIFE THREAD, I RUNAWAY FROM MALAYSIA AND ASSAYLUM SEEKER IN AUSTRALIA

1. On 20 September 2017, a delegate of the Minister refused to grant the applicant the visa (CB 58-65). The applicant was notified on the same day (CB 55-7).
2. On 24 October 2017, the applicant applied for merits review of the delegate's decision (CB 66-7). The time within which to make an application to the Tribunal under the Act and Migration Regulations 1994 (Cth) (Regulations) was 28 days.
3. The application was made seven days out of time. On 27 October 2017, the Tribunal invited the applicant to comment on the validity of his application for merits review (CB 69-70).
4. On 4 November 2017, the applicant responded to the Tribunal's invitation with the following email response (CB 71):

I, [APPLICANT] would like to ask a sincere apology due to my delay on submitting my application documents. I overlooked the email that was sent to me due to my broken phone screen. I did not have any other alternative to check on the email sent. I found a way to check my email and I realise that the date of re-submission was overdue. I am upset and regret to inform that it is my fault to neglect the email. I sincerely ask for and apology and reconsider my application. I sincerely thank you for your time and understanding.

1. On 9 November 2017, the Tribunal determined that the merits review application was made out of time and it did not have jurisdiction to conduct a review of the delegate's decision (CB 77-8).
2. On 1 May 2019, Judge Kelly of this Court, by consent, quashed the Tribunal decision dated 9 November 2017, remitted the matter to the Tribunal for reconsideration and extended the period of time in which the applicant could seek review of the Tribunal's decision to 15 December 2017. The Minister conceded, following the decision of the Full Court of the Federal Court of Australia in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [41]- [65], that the notification letter informing the applicant of the refusal decision did not comply with s 66(2)(d)(ii) of the Act, as it did not state clearly enough the time in which the application for review to the Tribunal must be made (CB 79-80).
3. On 23 April 2020, the applicant was invited to attend a telephone hearing before the Tribunal (CB 90-2).
4. On 11 May 2020, the applicant appeared via telephone at a hearing before the Tribunal and was assisted by an interpreter of the Malay and English languages (CB 95-7).
5. On 29 May 2020, the Tribunal affirmed the delegate's decision to refuse to grant the visa (CB 100-13) (Decision).

1. In the Decision, the Tribunal set out the background and procedural history of the matter (CB 101-2 [1]-[7]).
2. The Tribunal then addressed the statutory criteria to be met in order for a protection visa to be granted, namely the refugee criterion in s 36(2)(a) of the Act, the connected definition in s 5H(1)(a) of the Act and the considerations of ss 5J(1)-(6) and 5K-LA of the Act, as well as the complementary protection criterion of ss 36(2)(aa), 36(2A) and (2B) of the Act (CB 102 [8]-[12]). Extracts of these provisions were provided as an attachment to the Decision (CB 114-6). The Tribunal also referred to the guidelines for decision makers in Ministerial Direction No. 84, made under s 499 of the Act (CB 102 [13]).
3. In paragraphs [22]-[54], the Tribunal considered the applicant's claims for protection (CB 104-112).
4. At the hearing before the Tribunal, the applicant clarified that his protection concerns were primarily related to his membership of the HINDRAF (Hindu Rights Action Force) (CB 104-5 [27]), as opposed to the Bersih movement. The applicant's visa application was true and correct as far as he believes, however it was written by a friend and he has never read it (as he is not capable of understanding English), which is how the applicant explained his failure to reference HINDRAF in his visa application (CB 104 [22]-[23]). Despite this inconsistency between the oral and written protection claims, the Tribunal accepted that the applicant became a member of HINDRAF after a Hindu temple was destroyed in his village in approximately 2012 (CB 110 [47]).
5. In relation to the applicant's claim to fear harm because of his Hindu religion, the Tribunal found that the applicant would not face a real chance of suffering treatment that would amount to persecution involving serious harm, should he return to Malaysia. Nor did the Tribunal accept that Hindus in Malaysia are not able to worship freely without interference from the authorities or that they face social discrimination on a day-to-day basis (CB 110 [47]).
6. The Tribunal accepted that Indian Malaysians face low-level discrimination in some areas of Malaysia. However, the Tribunal found that there is no real chance of the applicant facing persecution involving serious harm, including violence, as a result of his ethnicity (CB 110-1 [48]).
7. The Tribunal reached a similar conclusion with regard to the applicant's political beliefs and membership. The Tribunal accepted that the applicant participated in a Bersih 5 rally in November 2016 and that he posted information about his involvement on Facebook. It was also accepted that the applicant may have been involved with the Bersih and HINDRAF movements, including by speaking to friends and customers of his business about the concerns and disadvantages faced by the Indian community in Malaysia. The Tribunal also accepted that this may have led to him coming to the attention of individuals or groups who disagreed with his views, which may have led to some low-level abuse and harassment. In so doing, the Tribunal accepted the applicant's evidence that cars may have occasionally parked in front of the entrance to his workshop repair business, that a car with tinted windows may have pulled up to his workshop and driven away when he approached, or that he may have on one occasion been slapped by an unknown person at his workshop (CB 111 [49]).
8. The Tribunal was less willing to accept some of the applicant's more speculative claims. In particular, the Tribunal doubted the claim that ongoing vandalism of customers' cars outside his workshop was a result of an ongoing harassment campaign against the applicant. A possible explanation offered by the Tribunal was that the vandalism was mindless or caused by resentment from local residents who were protesting the lack of available street parking (CB 111 [50]). Nor could the Tribunal accept the applicant's claim that his business license was not renewed by local authorities for discriminatory reasons, as there may have been a valid reason for the failure to renew. The applicant also failed to provide any explanation as to why he did not seek assistance to renew his license or appeal the decision (CB 111 [51]). There was equally no evidence to substantiate his belief that he was being followed (CB 111 [52]).
9. As a result, the Tribunal concluded at [53] and [54] (CB 111-2) that:

[53] ... while the applicant may have irritated some people in his local area through his pro-HINDRAF views and comments, resulting in some low-level local harassment, there is nothing to indicate or suggest that he was the victim of a concerted campaign of intimidation designed to cause him serious harm. While the Tribunal accepts that the loss of his business licence would have been a setback for the applicant, noting his skills and experience as a mechanic the Tribunal considers that he has capability to find alternative employment in Malaysia.

[54] ... the Tribunal also considers that, as discussed with the applicant, he could avoid any risk of harassment in the future by relocating away from the area where his business was located and where he suffered harassment in the past.

1. In consequence, the Tribunal determined at [55] (CB 112) that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
2. For similar reasons and given the fact that the applicant had a practicable relocation alternative in Malaysia, the Tribunal found that applicant is not a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Act (CB 113 [60]-[61]).

1. The applicant filed an application for judicial review of the Decision with this Court on 17 June 2020 (CB 1-6). On the same day, the applicant filed a supporting affidavit which annexed a copy of the Decision (CB 7-9).
2. The originating application for judicial review dated 17 June 2020 included the following handwritten grounds for review:
   1. The application for protection visa was valid because I wasn't prevented by section 48A of the migration Act 1985 from lodging a protection visa application in Australia onshore. My visa has be refused immigration officer and tribunal member has affirm the decision not to grant 866 visa subclass to me in Australia. As I belive the decision of immigration and tribunal unfair to me I am bring this matter.
   2. I am applying Judicial Review at fedral circuit court under s 476 of the migration Act 1958 reiated to federal court regulations.
   3. The AAT member failed to conduct a review as required by s 5J(1)(a)(b)(c) of the migration Act 1958 as he did not consider a claim which arose clearly from that materia
   4. I am fear return to Malaysia because I will get harm from Malaysia authorities accoding im involved myself with HINDRAF. I did not get any justice if something happens to me.
   5. According to this situation I have entered in to Australia to save myself and did not have any right to enter in any other country legally except Malaysia, there is not intention making to wrong protection claims in Australia.
   6. Also my claims and documents true and genuine, all evidence can be investigated and questioned at the court hearing.
   7. I beg the judge and registrar to help in this matter. I don't have much money on me to hire solicitor. I will hire the lawyers when my court case allocated for hearing.
3. On 29 July 2025, a registrar of the Court ordered the applicant to file and serve any amended application with proper particulars for judicial review, any further affidavit evidence and an outline of written submissions at least 28 days before the date fixed for hearing. The applicant did not comply with these orders but did seek to file written submissions on 18 March 2026, seven days before the date fixed for hearing. Leave to do so was granted. Unfortunately, the written submissions were a recital of the applicant's claims for protection and the applicant's disagreement with the Tribunal's factual findings. No material jurisdictional error was identified.
4. In the originating application, the applicant sought an order to quash the Decision but did not seek a writ of mandamus requesting the matter be remitted to the Tribunal for reconsideration in accordance with the law (CB 4). An application that does not seek a writ of mandamus or prohibition, or an injunction, fails to properly invoke the Court's jurisdiction pursuant to s 476(1) of the Act (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 at [15] and [21] per Judge Driver). The applicant is self-represented and may not have been aware of this legal technicality and noting that the solicitors for the Minister have not raised this issue in the written submissions as a ground for opposing the application and raised no objection at the hearing to the amendment of the application by the Court, the Court will order that the application dated 17 June 2020 is amended to seek a writ of mandamus. The Court has the power to do so, even on its own motion (see Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889 at [44]- [51] per Judge Kendall). The Court finds that it is in the interests of justice and the overarching purpose of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) to dispense with non-compliance with the Rules, for the purpose of amending the originating process in this proceeding.
5. The final hearing of the application for judicial review took place before this Court in person at Melbourne on 25 March 2026.
6. The applicant appeared self-represented and was assisted by an interpreter of the Tamil and English languages.
7. Mr Michelon, solicitor, appeared on behalf of the Minister.
8. At the hearing, the Court confirmed that the applicant received a copy of the Court Book prepared by the solicitors for the Minister and a copy of the Minister's written outline of submissions dated 11 March 2025.
9. To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Decision. It was also explained that this Court cannot review the merits of the Decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272).
10. The Court also explained that the applicant's written submissions filed with the Court on 18 March 2026 do not identify a jurisdictional error by the Tribunal. The submissions explained the applicant's claims for protection, but not why the Tribunal fell into error. The Court invited the applicant to inform the Court of the basis on which the Tribunal made any jurisdictional error in the Decision.

1. The applicant's oral submissions in response were brief. The applicant submitted that the Tribunal did not listen to the details of his claims in relation to his involvement in the HINDRAF movement and failed to ask questions about his involvement in recruiting people to the cause. The Tribunal also did not consider the death threats he received from individuals. In response to the Court's questioning as to whether the applicant told the Tribunal of these claims, the applicant said, 'some of it I said, some of it I did not'.
2. The Court then queried if there was anything else wrong with the Decision. The applicant submitted that there were no more mistakes to point out and requested that the matter be sent back to the Tribunal for reconsideration.
3. The Court enquired if there was any further documentary evidence the applicant would seek to rely on. He submitted that some exist, but he did not have any available with him today and some may have been lost when he was moving between houses.

1. Mr Michelon, solicitor, relied on the outline of written submissions filed on behalf of the Minister dated 11 March 2026.
2. In relation to ground one of the grounds in the application for judicial review, the Minister submitted that this ground is misconceived as neither the delegate nor the Tribunal found that the visa application was invalid or considered the applicant to be barred from applying for the visa under s 48A of the Act.
3. It was further submitted that grounds two, four, five and seven of the application for judicial review fail to establish any jurisdictional error.
4. Ground three of the application for judicial review claimed that the Tribunal failed to conduct a review as required by s 5J(1)(a), (b) and (c) of the Act and failed to consider a claim that arose from the material. The claim that the Tribunal failed to consider was not identified in the grounds for review. In both the oral and written submissions on behalf of the Minister, it was submitted that the Tribunal considered the applicant's claims relating to his Indian ethnicity: [29], [42], [47], [48], [49]; his Hindu faith: [42], [47]; and his political opinion: [37], [47], [49], [53] (CB 105-12). These were the claims arising from the material before the Tribunal and at the hearing, and there were no further claims that the Tribunal was required to consider.
5. In response to the applicant's oral submission that the Tribunal failed to give enough weight to his involvement in the HINDRAF movement, it was submitted that the Tribunal engaged to the requisite level with the applicant's claims and evidence with regards to these matters. There was nothing in the Decision record to suggest that the applicant was prevented from giving evidence and the Tribunal recorded both the questions asked of the applicant and the responses received.
6. Furthermore, each of the claims raised in the applicant's written submissions to this Court were addressed by the Tribunal in the Decision. While many of the claims made by the applicant were accepted, the Tribunal reached the conclusion that the evidence did not indicate a real chance of serious harm were the applicant to be returned to Malaysia, as required by s 5J(4)(b) of the Act, nor did the harm relate to all areas of the receiving country pursuant to s 5J(1)(c). This was a conclusion that was open to the Tribunal on the evidence and logically supported by the findings made.
7. Ground six, which asserts the applicant's claims are 'true and genuine', if read generously, could be considered a challenge to the Tribunal's findings with regards to the genuineness of the applicant's claims and evidence. This view is reflected in pages 4-6 of the applicant's written submissions, which submit that the Tribunal noted inconsistencies in the applicant's oral and written evidence, the failure to provide corroborating evidence and credibility concerns regarding aspects of his claims.
8. In response to ground six, it was submitted that the Tribunal did not place weight or make any adverse findings against the applicant on the basis of the lack of corroborating evidence, at least in so far as some claims could have been supported by a police report. Rather than having concerns about the truthfulness of the applicant's evidence, the Tribunal found the applicant to be 'thoughtful and forthcoming in his oral evidence' and 'demonstrated a good level of political awareness' (CB 110 [47]). Much of the applicant's evidence was accepted and the evidence that was rejected was because the Tribunal found the evidence to be 'speculative' or 'vague and unconvincing' or open to other conclusions (CB 111 [50]-[52]). These findings were open to the Tribunal on the evidence, and the fact that the applicant merely disagrees with the Tribunal's findings does not constitute a jurisdictional error.
9. In conclusion, it was submitted on behalf of the Minister that the application for judicial review dated 17 June 2020 should be dismissed with costs in the sum of $5,000.00.

1. In reply, the applicant continued to dispute the Tribunal's findings, claiming that the cars that were damaged outside his workshop were easily identifiable as they were used for airport transport and he was the only business in the area to provide such transport. The applicant also disputed the Tribunal's finding that there were low levels of harassment and insisted that his harassers would be able to find him even if he relocated somewhere in Malaysia. The applicant also explained that because of the circumstances he was facing in his business, he took on a role at a factory and continued to face harassment there.
2. The Court again explained that it is unable to consider the merits of the Tribunal's decision and simply because the applicant might disagree with the findings made by the Tribunal, does not mean that the Decision is wrong and should be set aside. In response, the applicant simply requested that the Court remit the matter to be reconsidered.

1. The role of this Court is to review the Decision and decide whether the Tribunal has made a material jurisdictional error that requires the Decision to be quashed and remitted to a new Tribunal to be decided in accordance with law. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LPDT), the plurality said at [3]:

[3]...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.

1. The applicant in the originating application for judicial review and his submissions to this Court has not identified any material jurisdictional error by the Tribunal in making the Decision.
2. The applicant contests the Tribunal's findings of fact and the conclusions drawn from the evidence but has been unable to identify any misunderstanding of the applicable law, unreasonableness, incorrect consideration of issues, failure to consider relevant evidence, reliance on irrelevant material or failure to afford procedural fairness.
3. The applicant in the grounds of review in the originating application for judicial review says that the Tribunal failed to consider a claim clearly arising on the materials. However, that claim is not identified. The claims made on the materials were that the applicant feared persecution and harm as a result of his membership of the Bersih party, his attendance at the Bersih 5 rally and his involvement with the HINDRAF movement following the destruction of a temple in his village in approximately 2012. The applicant claimed he was harassed, assaulted and intimidated. He also claimed that his business licence was not extended for reasons connected with his political opinions or affiliation. The applicant said that he was unable to reside in other locations in Malaysia to avoid harm and that there was inadequate state protection for a person of his ethnicity and beliefs. All of these claims, including claims that were raised for the first time at the hearing before the Tribunal, were considered. There were no other claims clearly raised that were not considered and the applicant could not identify any to this Court.
4. Ground one of the grounds of review in the originating application for judicial review is confusing. Section 48A does not appear to have any relevance to this application or the review conducted by the Tribunal. No finding was made by the Tribunal in the Decision regarding the application of this section of the Act. The applicant asserts that the Decision was 'unfair' but he does not identify why it is unfair or why it was made by the Tribunal in error.
5. Grounds two, four, five and six in the originating application do not identify error but express general disagreement with the Decision and that the applicant seeks to exercise his right to judicial review by this Court. The role of this Court is not to reconsider the merits of administrative decisions under the Act but to determine if there has been error of the kind identified by the Court in LPDT at [3] (see paragraph [49] above). Simply because the applicant does not agree with the findings and consideration of his claims by the Tribunal does not mean that it should be set aside and returned to the Tribunal for reconsideration. There must be error of the kind recognised by the law. None is apparent in this case.
6. Ground three is also confused. There is no requirement to conduct a review pursuant to s 5J of the Act. That section defines the meaning of a well-founded fear of persecution. The Tribunal is required to consider whether the applicant has a well-founded fear of persecution, and it did so. The Tribunal concluded that the applicant did not have such a fear (CB 111-112 [53]-[56]). The Tribunal did not fail to consider a claim arising on the materials for the reasons explained above. No unconsidered claim has been identified by the applicant, and the Tribunal considered all claims squarely raised on the materials before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] and [63]). This ground is also rejected.
7. Ground seven simply expresses the intention to obtain legal representation, which did not occur. The inability to secure legal representation for the hearing before this Court or the Tribunal is not a ground upon which the Court may quash the Decision or remit the matter for reconsideration by the Tribunal.
8. The Court has also scrutinised the materials before the Tribunal and the Decision to identify any jurisdictional error, noting the Court's obligations as outlined in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], [100] and [112]-[114]. No jurisdictional error is found.
9. The amended application for judicial review is dismissed.

1. Costs should follow the event.
2. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $5,000.00, which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
3. The sum claimed is fair and reasonable in the circumstances of this case and will be ordered to be paid by the applicant.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.