DOJ25 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FedCFamC2G 256

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. This is an application for review of a decision of the Administrative Review Tribunal made on 20 March 2025 affirming a decision of the delegate not to grant the applicant a protection visa. That decision by the delegate was made on 30 August 2018. The applicant was found to be a citizen of Malaysia and arrived in Australia on 17 February 2018, by plane, using his Malaysian passport, and being the holder of a UD/601 ETA visa. That visa ceased on 17 May 2018. On 23 May 2018, the applicant applied for a protection visa. On 30 August 2018, that application was refused. The applicant applied to what was the Administrative Appeals Tribunal ("AAT"). That tribunal determined it had no jurisdiction.
2. On 30 November 2018, the applicant became an unlawful non-citizen. The applicant was renotified of the refusal decision by the department on 16 May 2020, and then the applicant applied to the AAT for review on 9 June 2020. The AAT was abolished on 14 October 2024, and the applicant's application was transferred to the Administrative Review Tribunal ("the Tribunal") for review after commencement of Part 5 of the Administrative Review Tribunal (Consequential Transitional Provisions No. 1) Act 2024 (Cth).
3. The applicant claimed to fear harm because he borrowed money from unlicensed banks and that he was unable to pay his loan, and as a result, a gangster was hunting him and threatened to hurt him if he was found. The applicant said he did not seek assistance from the Malaysian authorities because unlicensed money dealers have connections with Malaysian authorities and police. The Tribunal identified the relevant law. The Tribunal referred to the applicant appearing to give evidence on 27 February 2025. The Tribunal summarised what the applicant was told at the commencement of the hearing. The Tribunal referred to the applicant's response to hearing notice form dated 22 January 2025 requesting his parents be called as witnesses. The applicant provided the Tribunal with the Malaysian mobile telephone numbers for each of his parents. The applicant confirmed that his parents were expecting to provide evidence by telephone on the scheduled date.
4. The Tribunal identified on three occasions attempting to contact the applicant's parents during the hearing on the Malaysian mobile numbers provided by the applicant without success. The Tribunal accordingly offered the applicant an opportunity to obtain letters in support from his parents in respect of his protection claims on or before 7 March 2025. Letters of support dated 11 March 2025 were provided by the applicant's father and the applicant's mother and identified as being taken into account in the Tribunal's reasons. The Tribunal identified that there were no other written submissions provided, either pre-hearing or post-hearing, by the applicant in support of his review. The Tribunal set out the father's letter of support as well as the mother's letter of support.
5. Having identified the relevant law in respect of the protection visa, the Tribunal referred to the applicant's past claims of harm, alleged joining of the "Double 7" gang in Thailand, to which friends spoke to him about, and the applicant had explained that the "Double 7" gang exists all over Malaysia and that he first joined the gang in Thailand; when he returned to Malaysia, he remained a member. The applicant said, "Once you join the gang, it's impossible to leave." The Tribunal asked the applicant what he did as a member, and the applicant said nothing more than he was involved in fights and took money from gambling for the gang.
6. The Tribunal asked the applicant what evidence he had regarding his alleged involvement in the "Double 7" gang. At least, the Tribunal found the applicant's evidence regarding his alleged involvement as a "Double 7" gang member lacking in detail and unconvincing. The Tribunal referred to the applicant providing a large photo of what he alleged were members of the "Double 7" gang. The applicant did not explain in any detail where, when or why the photo was taken, nor did he identify himself in the photo before the Tribunal. The Tribunal did not accept that the photo provided by the applicant established evidence of his membership of the "Double 7" gang.
7. The Tribunal referred to the father's letter of support and the reference to being frequently harassed and bullied and the mother's letter of support referring to him as being mischievous and troublesome and mentioning that she later discovered that her son had become a member of a notorious gangster group in Malaysia, but did not refer to the "Double 7" gang specifically.
8. The Tribunal referred to the applicant's evidence about borrowing moneys from loan sharks and being introduced by a "Double 7" gang member to fund his diploma. The applicant completed his diploma, which he commenced in January 2014, in August 2016. The Tribunal took into account that there was no mention of any borrowing from loan sharks to pay for the applicant's diploma in the letters of support from his mother and father. The Tribunal asked the applicant whether he had any documents to support the loan from loan sharks and was told no.
9. The Tribunal referred to the applicant allegedly being "locked up" twice, and the Tribunal asked for more specific details. The Tribunal found the applicant did not answer in any meaningful way and the applicant's response was vague and unpersuasive. The Tribunal referred to the inconsistency between the applicant's alleged borrowing and what was referred to in the father's letter and, in contrast, to the reference by the mother to paying a sum of money to guarantee her son's release.
10. The Tribunal was told by the applicant he did not want to be a member of the "Double 7" gang and tried to run, but could not. The applicant confirmed that the "Double 7" gang or any associated loan sharks had never physically harmed him or his family when he was living in Malaysia, but asserted that there were demands for payment of RM40,000. The Tribunal referred to the inconsistencies in the information provided by the applicant's mother and father, and the applicant asserted that he moved to Australia to get away from the "Double 7" gang. The Tribunal found this was inconsistent with the evidence of the applicant's mother and father. The Tribunal did not accept the applicant's evidence that he joined the "Double 7" gang. The Tribunal did not accept that he borrowed RM40,000 from loan sharks associated with the "Double 7" gang. The Tribunal did not accept that the applicant was arrested and "locked up" twice.
11. The Tribunal accepted that the applicant may have been harassed and bullied at school, but not by "Double 7" gang members as claimed. The Tribunal found that the applicant did not leave Malaysia because he was trying to run away from the "Double 7" gang as claimed and found that the applicant left Malaysia because his parents encouraged him to and they wanted to distance him from friends they perceived as negative. The Tribunal referred to the applicant's evidence that he had lost all contact with "Double 7" gang members since arriving in Australia and referred to the applicant's work he had undertaken in Australia and that he had not repaid any money to loan sharks since arriving in Australia.
12. The applicant was asked about what he feared on returning to Australia, and said he did not fear the loan sharks, but he feared the "Double 7" gang itself and that the gang would find him and chase him. The Tribunal found that the applicant did not join the "Double 7" gang in Thailand, did not accept that the applicant borrowed RM40,000 from loan sharks and did not accept the applicant was arrested twice. The Tribunal found that the applicant is not a refugee as defined in s 5H(1) of the Migration Act 1958 (Cth) ("the Act") and is not a person in respect of whom Australia has protection obligations under s 36(2A) of the Act. The Tribunal considered the applicant's claims in relation to complementary protection and found that the applicant is not a person in respect of whom Australia has a complementary protection obligation under s 36(2)(aa) and affirmed the decision under review.
13. At the commencement of the hearing, the Court explained to the applicant the process the Court would adopt, and the applicant confirmed he understood what was said by the Court. The Court explained to the applicant the nature of the hearing and identified the evidence before the Court. The applicant in his oral submissions made reference to a photograph that he had given to the Tribunal and expressed concern that he was not asked questions about the photo, in respect of which he contended he was identified in the photo in front of a gang member.
14. The applicant also made complaint that his parents were not called at the hearing and sought to explain that the statements for his parents, having been translated into English, had lost part of their clarity in translation. The applicant also raised in reply that he was concerned he was not asked questions about the photo. The applicant's written submissions, in substance, summarised his claimed fears and involvement with the "Double 7" gang and allegedly being arrested twice and his fear of the "Double 7" gang if returned to Malaysia.
15. The grounds in the applicant's application are as follows:
    1. ART MEMBER DOESN'T PROPERLY CONTACT THE WITNESSES AS PROVIDED IN THE PRE HEARING SUBMISSION FORM
    2. ART MEMBER MADE DECISION WITHOUT TAKING RELEVANT EVIDENT AND ACTUAL WITNESESS STATEMENT DURING THE HEARING
    3. SEEKING CONSIDERATION TO REVIEW THE PROCESS
16. In relation to the first ground, the Court accepts the Minister's submissions that it is clear from the record of the hearing that the Tribunal made efforts to contact the proposed witnesses that the applicant had confirmed would be available by mobile. The inability of the Tribunal to be able to contact the witnesses by mobile does not give rise to any jurisdictional error by the Tribunal or denial of procedural fairness. It is apparent that the Tribunal provided the applicant with an opportunity, which the applicant took advantage of, of providing further information from both his mother and his father. That information was clearly taken into account by the Tribunal.
17. There is no jurisdictional error that arises by reason of ground 1 of the application.
18. In relation to ground 2, this appears to be, in substance, a repetition of the complaint in relation to ground 1, in part, by reason of not having the benefit of his mother and father available to give oral evidence at the hearing. It is apparent the Tribunal endeavoured to contact those witnesses, and it was for the applicant to provide sufficient evidence to make out his claims consistent with s 5AAA of the Act. Further, it is apparent that the Tribunal did give the applicant the opportunity to provide further material from both his mother and father and that he did so. The use of that material by the Tribunal was logical and rational. It does not reflect any error by the Tribunal. No jurisdictional error is made out by ground 2.
19. The third ground, in relation to review, in substance, is a request for the Court to intervene on what appears to be grounds of merits. This Court has no power to review the decision on the grounds of merits. No jurisdiction error is made out by ground 3.
20. In relation to the applicant's oral submission about his photograph, it is apparent from the Tribunal's reasons at paragraph [71] that it took into account the evidence of the existence of the photograph but was not satisfied that the photograph established that the applicant was a member of the alleged gang. The Tribunal's reasons in that regard were logical and rational.
21. To the extent that the applicant complains that he was not asked further questions about the photograph, it was for the applicant to provide sufficient evidence to make out his claims, and it is apparent that the Tribunal had a real and meaningful engagement with the photograph that was provided by the applicant in relation to his claims. No jurisdictional error arises by reason of the applicant's reference orally to the photograph. Insofar as the applicant has referred to the absence of questions by the Tribunal about the photograph, this, in substance, is the same issue to which the Court has already referred and does not give rise to any jurisdictional error.
22. The applicant's oral submissions and the applicant's written submissions otherwise invite the Court to engage in impermissible merits review. No jurisdictional error is made out by the application.
23. It is for these reasons the Court makes the above orders.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.