DBW25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1622

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This is an application for a constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Act") in respect of a decision of the Administrative Review Tribunal ("Tribunal") made on 5 March 2025 affirming the decision of the delegate of the First Respondent, Minister, not to grant the applicant a protection (Class XA) (Subclass 866) visa ("protections visa"). The applicant applied for the protection visa on 13 January 2019. The applicant first arrived in Australia on an electronic travel visa on 13 December 2016 and departed on 9 March 2017. On 3 October 2017, the applicant arrived in Australia on an Electronic Travel Authority and on 19 December 2017 applied for a student visa that was granted on 14 February 2018. It appears that the applicant returned to Malaysia and next arrived in Australia on 9 November 2018, and it was not until 13 January 2019, as identified, that the applicant applied for the protection visa.
2. These proceedings were commenced on 18 March 2025, and the grounds of alleged error are as follows:

1. The Administrative Review Tribunal (ART) failed to recognize the real risk of persecution and significant harm I will face if returned to Malaysia.

2. The Tribunal did not adequately consider my personal experiences, including past incidents of racial discrimination, bullying, and physical assault.

3. The Tribunal relied on general country reports rather than my specific circumstances.

4. The decision does not align with the principles of refugee protection under the Migration Act 1958 (Cth).

1. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed he understood the explanation given by the Court. The Tribunal in its decision identified the background to the review application and identified the applicant is of Chinese ethnicity and of Christian religion and identified where he was born and lived in Malaysia.
2. The Tribunal identified that the applicant had not been employed and identified his migration history, to which the Court has already referred. The Tribunal summarised the applicant's claims that he would not have a bright future if he stayed in Malaysia, that the economy is very bad, that the people seem to have higher priority over Chinese and Indian people, that he wanted a better future, that he did not want to face harm in Malaysia, that he could not relocate because he was only 18, that he could not support himself, and that if he returns to Malaysia, he thinks he would be in debt and unable to find a job and would be bullied. The applicant also feared that he would not get help from the authorities because they only helped their own ethnic group, and he would be unable to relocate because Chinese people are considered immigrants.
3. The Tribunal identified the outcome before the delegate and then referred to the applicant's evidence asserting that he is from a low-income family. The Tribunal summarised the evidence given by the applicant, including that his parents are separated, his completion of high school, what happened after he arrived in Australia, and that he now has a partner in Australia. The applicant maintained that he faced harm by reason of being Chinese in a Muslim country because of some discrimination, and the applicant alleged that he had been called names and had to pay money to other children not to be disturbed. The applicant identified he had been mugged twice by the same group when he was 13 but only reported the second assault. It was raised by the Tribunal with the applicant that the mugging was at a time when he was a child, and he is now an adult. The applicant agreed that that risk would not be great but believed he would still face discrimination.
4. The Tribunal raised with the applicant that the country information supports that Malaysia has a reasonably effective defence force when the applicant said nothing happened after he reported the matter. The Tribunal referred to the strengthening economy, on the country information, and the demand for unskilled labour, and that a high proportion of Chinese Malaysians are professionals and an educated class, and the reference to alleged discrimination in business and government. The applicant maintained that this information concerns only a wealthier class of Chinese Malaysians.
5. The applicant identified his language skills and being able to speak three language and his knowledge of Western systems, which the Tribunal found would enhance his ability to work in Malaysia. The Tribunal set out the relevant law and identified the incident that had not been raised in his protection visa application as to being mugged, and accepted that the applicant did not have the requisite knowledge at the time he applied, and did not make an unfavourable inference under s 367A of the Act in respect of that new issue. The Tribunal did not accept the applicant's claims. Having taken into account the country information, the Tribunal accepted that the applicant had been mugged when he was a child and that he was targeted on those occasions because of his Chinese ethnicity, but identified there had been no further attacks since his leaving of Malaysia and that he had been at school, and that he had had no similar experience in the six years that had passed since his last departure from Australia.
6. The Tribunal also identified the young age of the applicant at that time and that he is now an adult and less vulnerable. Taking into account the country information in relation to the Royal Military Police, considered to be professional and effective, the Tribunal did not accept that the applicant faced physical harm or bullying on account of his Chinese ethnicity or for any other reason if he were returned to Malaysia. The Tribunal referred to the applicant's claims of lack of opportunities and discrimination. The Tribunal found that the greater barriers are actually faced by non-Malays in the area of employment and education, but the policy did not amount to persecution.
7. The Tribunal referred to country information that Chinese Malaysians experience low levels of official discrimination. In view of the country information and the applicant's evidence, the Tribunal accepted that Malaysians of Chinese ethnicity face levels of discrimination but did not accept that this persecution amounts to meeting the refugee criteria. The Tribunal returned to whether the applicant faced economic hardship and a lack of opportunity on account of his Chinese ethnicity and accepted that he will face some level of discrimination in employment, particularly in the public service.
8. The Tribunal found the loss of opportunity and poor economic position anticipated by the applicant reaches the level of harm envisaged by s 5J of the Act and referred to country information in relation to low levels of discrimination but identified, on the country information, there are opportunities for Chinese Malaysians notwithstanding the barriers. The Tribunal identified the applicant's abilities to speak three languages and having completed his first year in a language course, having lived in Australia for approximately six years, and the skills he had acquired from a range of jobs he has had in Australia, which the Tribunal regarded as being transferable, and that he would have been afforded an opportunity to generate some savings. It was in these circumstances the Tribunal did not accept the applicant would be unable to find employment in Malaysia and did not accept he faces the loss of opportunity or poor financial prospects if he were to return to Malaysia.
9. The Tribunal found the need for sensitivity did not amount to the type of serious harm identified in s 5J(5) of the Act. The Tribunal did not accept that the loss of opportunity and poor economic position anticipated by the applicant reaches the level of harm envisaged by s 5J of the Act.
10. The Tribunal identified, having considered the applicant's claims individually and cumulatively, including his personal circumstances. The Tribunal did not accept there was a real chance that if he returned to Malaysia now or in the reasonably foreseeable future, he will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, because of limited opportunities or because of the economic and social situation in Malaysia. The Tribunal was not satisfied the applicant has a well-founded fear of persecution and found the applicant is not a person to whom Australia has a protection obligation under s 36(2)(a) of the Act.
11. The Tribunal then turned to the issue of complementary protection. The Tribunal did not accept the applicant would be unable to work or would suffer economic hardship in Malaysia. Having considered the applicant's individually and cumulatively and his personal circumstances, the Tribunal found there are no substantial reasons for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk the applicant would suffer or face significant harm for any reason. The Tribunal found the applicant is not a person to whom Australia has protection obligations under s36(2)(aa) of the Act and affirmed the decision under review.
12. In oral submissions the applicant made reference to being mugged when he was at school, which was clearly addressed by the Tribunal in its reasons. The applicant suggested he was afraid to go out and socialise. The Tribunal clearly identified a low level of discrimination that did not amount to serious or significant harm in relation to Malay Chinese. The Tribunal took into account the applicant's ethnicity, and the applicant's oral submissions did not establish any jurisdictional error by the Tribunal. In summary, the applicant's oral submissions invite an impermissible merits review. Nothing said by the applicant orally identified any jurisdictional error.
13. In relation to the grounds identified in the originating application, in respect of ground 1, it is apparent that the Tribunal correctly understood the applicant's claim to fear harm because of his Chinese ethnicity but made adverse findings that were open to the Tribunal. The adverse findings cannot be said to lack an evident and intelligible justification. The Court does not accept that ground 1 makes out any jurisdictional error.
14. In relation to ground 2, the applicant contended that his personal circumstances had not been considered. However, on a fair reading of the Tribunal's reasons, it is apparent the Tribunal took into account the applicant's personal circumstances and in fact the bullying incidents to which he had referred and accepted the same. This ground invites impermissible merits review. Ground 2 does not make out any jurisdictional error.
15. In relation to ground 3, the Tribunal was required to take into account country information, and there is no error by the Tribunal in doing so, and it is apparent that the Tribunal did consider the applicant's specific circumstances in the course of deciding whether the applicant met the refugee criteria or the complementary protection criteria. This ground invites impermissible merits review. No jurisdictional error is made out by ground 3.
16. Ground 4 is a generalised allegation that invites impermissible merits review. On the face of the Tribunal's reasons, it correctly identified the relevant law and made findings that were open to the tribunal for the reasons it gave.
17. In relation to the subheadings in the applicant's affidavit, it is apparent that the Tribunal did consider the applicant's claims cumulatively from the express terms of the Tribunal's reasons both in respect of refugee criteria and in relation to complementary protection criteria. No jurisdictional error arises by reason of the heading A) Error in Application of Legal Test for Persecution.
18. In relation to the heading B) Failure to Properly Consider Complementary Protection, it is apparent that the Tribunal did consider the applicant's claims in relation to complementary protection and made adverse findings that were open to the Tribunal for the reasons it gave. No jurisdictional error arises under that heading.
19. In relation to the heading C) Reliance on Incorrect or Incomplete Country Information, the Tribunal was entitled to take into account the DFAT country information report, and it is clear that the Tribunal did so, together with considering the applicant's submissions, and made findings adverse to the applicant that were open for the reasons given by the Tribunal. No jurisdictional error arises under heading C. Nothing in the comparative case law establishes any relevant error by the Tribunal in the circumstances of the present case.
20. It is for these reasons the Court makes the above orders.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.