EFF24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 783

1. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa decision under review. The Tribunal set out that the applicant was not invited to an interview by the Department, and that on 13 August 2018, a delegate of the Minister refused to grant the applicant the visa under s 65 of the Act (at [2], [7]).
3. The Tribunal confirmed that on 11 January 2024, the applicant was emailed requesting that he fill out a form providing current contact details and any additional information regarding his protection claims, to which he did not respond (at [9]).
4. The Tribunal confirmed that on 15 April 2024, the applicant was invited to a hearing scheduled for 7 May 2024 and was assisted by a Malay interpreter at that hearing (at [10]-[11]). The Tribunal was satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process, and was able to present his claims and evidence and respond to issues raised at the hearing (at [11]).
5. The Tribunal explained the purpose of the hearing and the criteria for the grant of a protection visa. The Tribunal also explained that it was not bound by the findings of the delegate and would be assessing all of the information before it, but that the applicant should not assume that anything accepted by the delegate would also be accepted by the Tribunal. The Tribunal confirmed that the applicant expressed his understanding and had no questions in this regard (at [12]).
6. The Tribunal set out the relevant legislative provisions in respect of the refugee and complementary protection criteria (at [13]-[17]), as well as the mandatory considerations contained within Ministerial Direction No. 84, made under s 499 of the Act (at [18]).
7. The Tribunal noted that, at the hearing, the applicant said that when he organised his travel to Australia, he was told by a friend in Malaysia to see an 'agent' in Australia who is from Singapore. Once he met the agent, the agent provided him with accommodation and lodged his protection visa application. He gave the agent his passport and $450, and told the agent he wanted to work in Australia. The agent neither explained the criteria for a protection visa, nor asked the applicant about his circumstances in Malaysia. The applicant told the Tribunal that whilst he signed the application, he could not read English and was not made aware of the contents of his application (at [22]).
8. The Tribunal then set out those claims and evidence in the application. The relevant claims are as follows (without alteration) (at [5]-[6]):

[5] When he was in secondary school, he was forced to join a gang and gangsters were bullying secondary school students. The applicant was targeted and beaten until he joined.

[6] When he was about 22 years old, his 'big brother' told him to carry 'goods' which he knew were 'illegal'. While at university, the applicant's friend was caught by the police, and he tried to place the blame on the applicant. The applicant's father reported the matter to the police, the police obtained evidence, and arrested gang members. The gangsters came to the applicant's parents' house and made threats. The applicant was kidnapped and beaten until his father paid the gangsters money. There was an order to kill the applicant which caused him to depart the country and seek protection in Australia.

1. The Tribunal set out that the applicant confirmed at the hearing that these were not his claims and did not relate to his situation in Malaysia (at [23]).
2. The Tribunal detailed that the applicant said he had a conflict with his family, and after finishing high school, he enrolled in college to study electronics. His family did not want to support him financially and when he asked his parents for money for college fees and other expenses, he was told that they were not a bank and to find a job to support himself. His mother kicked him out of the family house, and he then resided in student accommodation, obtained a student loan for his course and secured a part-time job to pay for his expenses (at [25]). Following this, he was unable to continue and complete the course, and after two years, moved to Johor Bahru to find work (at [28]).
3. The Tribunal accepted this evidence and acknowledged the forthcoming manner in which the applicant gave his evidence. The Tribunal accepted that the applicant did not read or did not understand what was in his protection visa application prepared and lodged by his agent, and that the information in his application does not relate to him and was made up by his agent (at [29]).
4. The Tribunal accepted that the applicant's parents did not offer him financial support whilst in college, and that apart from his sister in Perak, he does not communicate with his parents or other siblings in Malaysia. The applicant expressly stated, and the Tribunal accepted, that he does not have any concerns for his safety in this regard, nor does he fear any harm at the hands of his family members in Malaysia (at [30]).
5. The Tribunal accepted that the applicant joined a gang while residing in Johor Bahru where he was only involved in community activities. It also accepted that he did not attract any attention from the authorities as a result of such involvement and did not face any adverse attention from the gang members after he left. Accordingly, the Tribunal accepted that the applicant did not fear any harm on this basis (at [31]).
6. In assessing the applicant's claims for protection, the Tribunal noted the applicant's oral evidence that he came to Australia to find work, and the only reason he did not wish to return was because he will not be able to find work that will pay him as much as Australia and that his "life will be difficult". The Tribunal accepted that the applicant came to Australia to work and earn more than what he was earning in Malaysia (at [33]).
7. The Tribunal explained the criteria for grant of a protection visa to the applicant, as well as referring to country information regarding Malaysia's economy and unemployment rate. The Tribunal set out country information indicating that Malaysia was classified as having an upper middle-income economy, that economic performance over several decades has led to a significant reduction in poverty, and that the unemployment rate in 2024 was approximately 3.3%. The applicant confirmed he understood this information (at [34]).
8. In considering the applicant's past employment history in Malaysia, Singapore and Australia, the Tribunal observed that it did not appear the applicant would not be able to find employment to support himself, would face economic hardship, or would be denied capacity to support himself in Malaysia. The applicant agreed he would find a job but that he would not earn as much as in Australia. However, the Tribunal explained that earning less money does not engage Australia's protection obligations (at [35]).
9. The Tribunal was not satisfied that the applicant would face a real chance of serious harm due to any economic challenges he may face in Malaysia, or that he would be persecuted for one or more reasons specified in s 5J(1) of the Act. The Tribunal was not satisfied that the applicant faced a real chance of persecution in the reasonably foreseeable future if returned to Malaysia (at [36]).
10. The Tribunal then considered the applicant's evidence in relation to having attended a rally once while he was in college. However, the applicant did not refer to any attendance, or any intention to attend, at any other rallies or involvement in politics in Malaysia or Australia. He confirmed he did not fear any harm on this basis (at [37]).
11. When the Tribunal asked the applicant whether he had come to the attention of the authorities in Malaysia, he referred to an incident of being threatened by a police officer while in Johor Bahru. When asked to provide details, he said that he formed a friendship with a police officer's wife (who was his boss), which the police officer did not like and threatened to harm him. He confirmed that nothing further happened as he ended this friendship and did not see the police officer or his wife again (at [38]).
12. Noting the applicant confirmed that he did not face any harm on the basis of attending a rally some years ago, or the incident involving a police officer who was the husband of his boss in Johor Bahru, the Tribunal accepted his evidence in this regard and found that he does not face a real chance of any harm for these reasons if returned to Malaysia now or in the foreseeable future (at [39]).
13. The Tribunal was ultimately not satisfied that the applicant is a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (at [41]-[45]).
14. The Tribunal affirmed the decision not to grant the applicant a protection visa (at [46]).

1. The application for judicial review filed by the applicant on 21 June 2024 contains five grounds of review as follows (without alteration):
   1. The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.
   2. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Malaysia from current economic situation, conflict with family members, past gang membership and his other activities in Malaysia.
   3. 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.
   4. The Tribunal has failed to investigate applicant's claim, especially the grounds of persecution in Malaysia.
   5. 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 understood 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.
2. The applicant appeared before the Court on 1 May 2025 without legal representation but with the assistance of a Malay interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
3. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 21 June 2024 (the affidavit being taken as read and in evidence at the hearing on 1 May 2025), a Court Book numbering 74 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 22 April 2025.
4. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal's decision and/or procedure.
5. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]);

(f) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(g) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
2. The Court asked the applicant whether he had prepared the grounds to his application and he confirmed that a friend had assisted him. However, he also confirmed that he understood the grounds pleaded. When invited to address the Court as to what was wrong with the Tribunal's decision, the applicant briefly stated that the police officer had threatened to shoot him and that he could not survive in Malaysia because of the length of time he had spent in Australia. The Court reminded the applicant that he needed to address whether there were any errors in the Tribunal decision and that the Court could not consider the merits of his protection claims. However, the applicant indicated that he did not wish to make any additional submissions.

1. As outlined above, the application for judicial review contains five grounds asserting jurisdictional error, although the applicant did not address these grounds further at the hearing. Noting that the applicant was unrepresented in this matter, the Court has considered these grounds notwithstanding they were not supported by any substantive argument. The Court has endeavoured to interpret the applicant's grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

1. Grounds one and two contend that the Tribunal misconstrued the "risk and fear of significant harm" as set out in s 36(2A) of the Act, particularly in relation to the claims about the economic situation in Malaysia, conflict with family members, past gang membership, and other activities.
2. Section 36(2A) of the Act relevantly provides that:

(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. As submitted by the Minister, the Court agrees that the Tribunal clearly demonstrates within its reasons that it had regard to the correct test in considering the complementary protection criterion in s 36(2)(aa). In any event, the applicant conceded at the Tribunal hearing that he did not fear harm on any of the bases of the economic situation in Malaysia, conflict with family members, past gang membership or other activities. The applicant confirmed that his only concern was that he would earn less money working in Malaysia compared to Australia. The Tribunal correctly explained to the applicant that this would not engage Australia's protection obligations, especially after considering that he would be able to find a job, would not face economic hardship, and would not be denied the capacity to earn a livelihood such that his capacity to subsist would be threatened. The Tribunal was within its right to adopt the factual findings in its assessment of the refugee criterion to conclude that there was no real risk that the applicant would suffer significant harm if returned to Malaysia. These findings in respect of its statutory task were not misconstrued and were open to the Tribunal on the information and evidence before it.
2. No jurisdictional error arises in respect of grounds one and two.

1. Ground three contends that the Tribunal had no jurisdiction to make its decision because its "reasonable satisfaction" was not arrived at in accordance with the Act.
2. The Minister submitted that this ground misunderstands the required level of 'satisfied'/'satisfaction' under ss 36(2) and 65 of the Act for the grant of a protection visa, and does it specify how the Tribunal's decision was not lawfully made. Sections 36(2) and 65 of the Act require a protection visa application to be refused if the decision-maker is not "affirmatively satisfied" that the criteria for the visa has been met (citing Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] and SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]).
3. It is the Court's view that the Tribunal did not reach such a requisite level of satisfaction because the applicant confirmed he did not fear any harm on return to Malaysia and did not want to return to Malaysia because he would earn less money than working in Australia. There was no error in the Tribunal's approach in this regard, particularly noting the applicant's concessions at the Tribunal hearing which effectively precluded a finding in his favour.
4. No jurisdictional error arises in respect of ground three.

1. Ground four alleges broadly, and without particularisation, that the Tribunal failed to consider the applicant's claims.
2. It is well established that the consideration of a representation or submission imposes a requirement on the Tribunal to engage in an "active intellectual process" (see Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 495). In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ (at [47]) articulated that, in determining whether a decision-maker has engaged in an active intellectual process, the Court must "conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case". However, a finding that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence (Carrascalao at [48]). The Court must be watchful that it does not slide into impermissible merits review (Carrascalao at [32]).
3. At the hearing of this matter, the applicant contended that he articulated to the Tribunal that he was scared to return to Malaysia for fear of the police, who he claimed had threatened to shoot him.
4. The Minister contended, in written submissions, that the Tribunal's reasons clearly set out the claims raised in the visa application but accepted they did not relate to the applicant, particularly where the applicant himself conceded that these claims did not relate to him. Counsel for the Minister submitted, in particular, that whilst the Tribunal had regard to the applicant's claim in respect of the police, particularly his friendship with a male police officer's wife, the applicant confirmed that he did not fear any harm from this incident.
5. The Court agrees with the Minister's submissions that there was no irrationality evident in the Tribunal's finding where the applicant contended that he faced no harm on this basis. Whilst the Tribunal was not required to uncritically accept any evidence of the applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 at 278), it did indeed accept the applicant's evidence in respect of the incident with the police officer. The Tribunal's reasons demonstrate an active intellectual engagement with the applicant's claims in its assessment of whether ss 36(2)(a) or (aa) of the Act were met.
6. No jurisdictional error arises in respect of ground four.

1. Ground five alleges that the Tribunal failed to comply with s 424A and 424AA of the Act.
2. Section 424A of the Act (as it then was) provides as follows:

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

1. The Minister submitted that the Tribunal's obligation under s 424A to put the applicant on notice of the reason, or part of the reason, for affirming its decision never arose because the Tribunal's decision to affirm was based on the information and claims provided by the applicant in his visa application, his oral evidence at hearing, and the country information before it, all of which fell within the exceptions of s 424A(3)(ba), (b) and (a) respectively. Additionally, the Tribunal did not rely on any of the delegate's reasons for finding that the applicant did not meet s 36(2)(a) or (aa) and instead relied on the applicant's own concessions and evidence at hearing, as well as country information, that he did not fear harm on any basis, and there was no real chance or risk that he would suffer any harm if returned to Malaysia for any reason. There is considerable force to the Minister's submissions in this respect and they are accepted.
2. The Tribunal complied with its exhaustive procedural fairness obligations under Division 4 of Part 7 of the Act in circumstances where it invited him under s 425, in compliance with s 425A, to attend a hearing scheduled for 7 May 2024, which he attended with the assistance of an interpreter.
3. The Court agrees with the Minister's submissions in this regard. The Tribunal complied with its procedural fairness obligations in accordance with the Act, and as such, the applicant was not denied procedural fairness.
4. No jurisdictional error arises in respect of ground five.
5. The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention in terms of any concerns or doubts about the Tribunal's decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision.

1. The application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.