EQP19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 586

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. 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 (Tribunal) made on 22 October 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made 9 November 2017 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
2. Reference 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 14, 38).
2. On 9 July 2017, the applicant arrived in Melbourne on a Visitor (Class UD) (Subclass 601) visa (CB 21, 51).
3. On 12 September 2017, the applicant applied for the visa (CB 1-37). He claimed that he borrowed money from an illegal money lender for his business that he could not repay, and that he and his family were threatened with physical harm if he did not repay the loan when due (CB 32). The applicant claimed he moved to other regions of Malaysia but felt unsafe because 'they nearly traced me'. He did not report his fears to police 'because nobody wants to get involved with loan shark' (CB 33-4).
4. On 9 November 2017, a delegate of the Minister refused to grant the applicant the visa (CB 51-5). The delegate found that the applicant did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act which requires the applicant to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person (CB 51).
5. On 20 November 2017, the applicant applied to the Tribunal for review of the delegate's decision (CB 61-2).
6. On 24 June 2019, the Tribunal invited the applicant to attend a hearing in Griffith, New South Wales listed on 18 July 2019 (CB 66-8).
7. On 18 July 2019, the applicant attended the hearing before the Tribunal in person with the assistance of an interpreter of the English and Malay languages (CB 70-4).

1. At the beginning of the hearing, the applicant was put on notice of the issues to be considered by the Tribunal, which were identified as follows (CB 80 [17]):

a. Whether there was evidence that the applicant would, if returned to Malaysia, be targeted because of his race, religion, nationality, membership of a particular social group or political opinion;

b. If the applicant was returned to Malaysia, would he receive effective protection from the Malaysian authorities such that there would be no real risk he would suffer significant harm if returned to Malaysia;

c. The effectiveness of the Royal Malaysian Police;

d. Whether it would be reasonable for the applicant to re-locate to another area in Malaysia where there would not be a real risk that he would suffer significant harm;

e. Whether the account of events which the applicant was giving of events that led him to leave Malaysia is a truthful account.

1. Pursuant to s 424AA of the Act, the Tribunal also put adverse information to the applicant that his visa application responses to questions 94-6 were identical to four other Malaysian nationals that were living in Griffith at the time the application was prepared, and that this information would be the reason or part of the reason for affirming the decision (CB 80-1 [18]-[22]).
2. The Tribunal invited the applicant to comment or respond, or to take additional time to comment or respond. The applicant elected to respond immediately that he had paid someone to fill out his visa application form and the only question they asked was why he was applying for protection. He told the person that he 'would like to get a job and get some wages so I could repay debts in Malaysia' and that he was threatened by a loan shark, so had to move from one place to another (CB 81 [24]-[27]).
3. On 22 October 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa (CB 77-86) (Decision).
4. In the Decision, the Tribunal set out the procedural background to the application for review (CB 78 [1]-[2]) and then a summary of the delegate's decision, including country information relied upon (CB 78-9 [3]-[11]). The Tribunal set out its considerations, including the rules of natural justice in Div 4 Pt 7 of the Act (CB 83 [29]-[33]). The Tribunal also referred to the guidelines for decision-makers in Ministerial Direction No. 84, made under s 499 of the Act (CB 83-4 [34]).
5. The Tribunal then assessed the applicant's claims against the statutory criteria required to be met to qualify for the visa under s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 84-5 [35]-[46]), including additional evidence provided during the course of the hearing and which the Tribunal recorded in detail (CB 81-3 [28]).
6. The applicant's fears of harm were not for reasons of race, religion, nationality, membership of a particular social group or political opinion, and accordingly the Tribunal was not satisfied the applicant met the refugee criterion (CB 84 [39]-[40]). Further, the Tribunal was of the view that most of the visa application information was manufactured for the purposes of formulating a protection visa claim, and that the applicant was not providing truthful answers from his own knowledge, but rather providing pro-forma answers given to him by a third party to maximise his prospects of receiving a visa (CB 84-5 [42]).
7. The Tribunal did not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Malaysia (CB 84 [41]). The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Act (CB 85-6 [47]-[48]). The decision of the delegate to refuse the visa was affirmed (CB 86 [49]).

1. On 22 November 2019, the applicant applied for judicial review of the Decision. The application for judicial review was supported by an affidavit sworn by the applicant on 22 November 2019. The affidavit annexed a copy of the Decision and the following statement:

4. IT'S VERY UNFAIR FOR ME BECAUSE MY REVIEW WAS DECIDED AND FINALISED AT THE FIRST HEARING ITSELF BEFORE I COULD PRESENT MY ARGUEMENTS WITH EVIDENCES TO VALIDA TE MY APPLICATION FOR PROTECTION VISA SUB 866. I DID SEEK FOR A SECOND HEARING TO PREPARE EVIDENCES FOR THE QUESTIONS MENTIONED AT FIRST HEARING BUT WAS NOT CONCERNED AND CONSIDERED. I SEEK NOW FOR A REVIEW ACCORDING TO THE LAW.

5. TRIBUNAL MUST PROVIDE A REVIEW PROCESS WHICH IS FAIR ACCORDING TO (Administrative Appeals Tribunal Act 1975 (Cth) WITH PROPER CONSIDERATION OF MT MATTER BEFORE PERMIT A FINAL DECISION .

1. The originating application included the following seven grounds of review:
   1. THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION TO FINALISE MY APPLICATION NOT TO GRANT A PROTECTION VISA ON 22nd OCTOBER 2019 BECAUSE NOT BEING SATISFIED THAT I'M A PERSON WHOM AUSTRALIA HAS OBLIGATIONS TO MEET THE REFUGEE CRITERIAN s36(2)(A) OR s36(2)(aa) OF THE MIGRATION ACT 1958.
   2. ACCORDING TO MIGRATION ACT 1958 - SECT 414 , TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HA VE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A COCLUDED DECISION.
   3. I WAS NOT GIVEN A CHANCE TO MAKE A ASESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(l) OF THE ACT TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUEMENTS TO VALID MY APPLICATION FOR PROTECTION VISA .
   4. THE DELEGATE'S DECISION HAS STATED AND DETERMINED THAT I DID NOT CLAIM FEAR OF HARM IN MALAYSIA, THE QUESTION WAS NOT ASKED TO ME AND IT WAS A ASSUMPTION WITHOUT PROVE SAID BY THE DELEGATE AND THE DELEGATE DID NOT COMPLY WITH THE REQUIREMENT OF DIVISION 4 OF PART 7 OF THE ACT.
   5. THEREFORE THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID'NT GET THE RIGHTS TO PRESENT MY ARGUEMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM .
   6. I SEEK THE COURT FOR JUDICAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.
   7. THIS TIME AFTER FILING MY APPLICATION AT COURT FOR THE JUDICAL REVIEW, I WILL GET A REPRESENTATIVE TO REPRESENT ME FOR ALL LEGAL AND COURT MATTER BECAUSE I HA VE NOT MUCH KNOWLEDGE AND ADVISE IN THIS RELATED FIELD . ALSO THE MATTER IS BEING HEARD IN THE COURT THAT I HA VE TO GIVE RESPECT BY ADDRESSING THE RIGHT ETHICS AND PRACTICE.
2. On 13 October 2021 and 22 April 2025, registrars of this Court ordered that the applicant file and serve any amended application with proper particulars, any affidavits, any supplementary court book and written submissions at least 28 days before the final hearing.
3. At the hearing before the registrar on 22 April 2025, the registrar noted in the orders made that the applicant would need to prepare, file and serve a transcript of the Tribunal hearing recording if they wished to prove any complaints about the conduct of the Tribunal and the interpreter at the hearing. The applicant did not comply with any of the registrars' orders.
4. The Minister prepared a Court Book filed 26 October 2021 and an outline of written submissions filed 6 March 2026. The Court confirmed that these documents were received by the applicant.
5. The application for review was listed for final hearing before this Court in person at Melbourne on 23 March 2026. At the hearing, the applicant appeared self-represented, assisted by an interpreter of the Malay and English languages.
6. Mr Mangos, solicitor, appeared for the Minister.
7. 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).
8. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to inform the Court of the basis on which the Tribunal made any error.

1. The applicant repeated his claim to have borrowed money from the 'A' and his fear of physical harm and fear for the safety of his family. The applicant explained that at the hearing in Griffith, the presiding Tribunal member said that his claims were the same as other claims made by other Malaysian asylum seekers from the region. The applicant claimed that the others copied his claims. He was assisted in completing his application by an English-speaking friend because his written and spoken English was poor at that time. He did not provide proof of his claims or that he borrowed money to the Tribunal because he did not know that he was required to do so.
2. The applicant also claimed that the interpreter provided was Indonesian and not Malaysian. He found it difficult to understand the interpreter. The applicant claimed that he and a friend listened to the recording of the hearing but found it difficult to understand. The recording, or a transcript of it, was not produced to the Court by the applicant. The Court reminded the applicant of the orders made by the registrar on 22 April 2025 regarding production of a transcript. The applicant conceded that he had since forgotten.
3. The applicant repeated that he did not provide evidence of the debts he owed in his application or at the Tribunal hearing because he did not know that he should do so. However, his wife and children made a police report in Malaysia regarding threats made to them, but he was unable to obtain evidence of it from Australia. The applicant explained that he did not know that he needed proof of his debts at the time of leaving Malaysia and was focused on moving from Malaysia to Australia.
4. The applicant requested more time to bring his wife and provide evidence to the Court. The Court explained that the time for that was before the Tribunal, and that the Court cannot review the merits of the Decision.

1. Mr Mangos relied on the outline of written submissions prepared on behalf of the Minister filed 6 March 2026.
2. Mr Mangos submitted that the application and the applicant's oral submissions fail to establish any material jurisdictional error in the Decision and must be dismissed.
3. In response to the applicant's oral submissions, Mr Mangos submitted that in restating his protection claims and requesting more time to submit documentation to the Court, the applicant is requesting impermissible merits review of the Decision. Furthermore, the application was first filed on 22 November 2019, and the applicant was ordered by registrars on 13 October 2021 and 22 April 2025 of the need to file any further evidence before the hearing, and that a transcript and identification of the interpretation errors would need to be provided. To date, the applicant has not filed a transcript, amended application or further evidence to support his arguments. The applicant did not identify any error in the interpretation of his evidence so as to effectively prevent the applicant from giving evidence, or that were material to the conclusions reached by the Tribunal.
4. Mr Mangos then addressed the grounds of review in the originating application. Grounds one, six and seven were not sufficiently particularised to be meaningful and should be dismissed on that basis alone (WZATH v Minister for Immigration [2014] FCCA 612 at [60]; WZATH v Minister for Immigration and Border Protection [2014] FCA 969).
5. Grounds two to five are complaints that the Tribunal denied the applicant procedural fairness because the applicant did not get an opportunity to provide evidence. That was not the case. To the extent ground four makes a complaint about the delegate's decision, the Court has no jurisdiction to review the delegate's decision as it is a primary decision (s 476 of the Act).
6. Mr Mangos submitted that the Tribunal complied with its obligations under Div 4 Pt 7 of the Act and that the applicant was invited to a hearing, pursuant to ss 425 and 425A of the Act, where he gave evidence and presented arguments. Therefore, his allegation that he did not get an opportunity to provide evidence cannot succeed. The applicant was on notice from the Tribunal's questioning at the hearing and from the delegate's decision that the credibility of his claims would be the determinative issue on review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152).
7. The Tribunal also complied with its obligations under s 424A of the Act by putting adverse information to the applicant for comment (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]). The Tribunal complied with each element of s 424AA of the Act at CB 80-1 [18]-[24] as it gave clear particulars to the applicant (s 424AA(1)(a)), and explained why the information was relevant to the review and the consequences of it being relied on, namely that it led the Tribunal to believe his claims were untruthful and copied from other applications (s 424AA(1)(b)(i)). The Tribunal orally invited the applicant to comment on or respond to the information and offered the applicant time to do so (s 424AA(1)(b)(ii)). The applicant elected to respond immediately (CB 81 [24]).
8. The Decision was otherwise based on the applicant's written evidence to the Department and oral evidence provided to the Tribunal, which also fell within the exceptions in ss 424A(3)(b) and (ba) of the Act.
9. It was submitted that the application for judicial review should be dismissed with costs.

1. In reply, the applicant reiterated that he did not know that he needed to present evidence to the Tribunal or the Court. He claimed that he did not understand the process because he had no prior knowledge or experience. He enquired as to where to now file evidence to show that the Tribunal made a mistake, but the Court explained that the evidence should have been provided to the Tribunal and Court before the hearing date. The applicant also enquired about the process should his application be unsuccessful, and expressed concern about what would happen with his family and children, including his youngest child, now living in Australia.

1. In Wu Shan Liang at 272, the High Court said:

...In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quin:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

1. In the Decision, the Tribunal very carefully recorded the issues to be considered on the review, the statutory criteria to be considered, the ministerial guidelines and the applicant's evidence. This included the applicant's response to the adverse information provided to the applicant by the senior presiding member pursuant to s 424A of the Act. The Tribunal did not accept the evidence of the applicant as credible and clearly explained why. No complaint from the applicant regarding the adequacy of the interpreter provided or the quality of interpreting was recorded by the Tribunal in the Decision or the Tribunal record.
2. No complaint regarding the quality of the interpreter provided at the hearing before the Tribunal was raised in the originating application for judicial review or the affidavit in support. The applicant was also clearly put on notice of the need to provide any further evidence that he had to the Tribunal before the hearing. In the invitation letter dated 24 June 2019, the Tribunal told the applicant that based on the material before it, the Tribunal was unable to make a favourable decision on that information alone (CB 67-8). The invitation letter also invited the applicant to attach additional information for the Tribunal to consider to the 'Response to hearing invitation form'. Attached to the invitation was an information leaflet 'Information about Hearings - MR Division'.
3. It is understandable that the applicant may not have understood the need to provide evidence to support his claims for protection because he did not understand the English language and was not familiar with Tribunal or Court procedures, but that does not mean the applicant was denied an effective or fair hearing, or the opportunity to advance his claims for protection. For the reasons that follow, the Decision does not disclose a material jurisdictional error and each of the grounds of review identified by the applicant are dismissed.

1. This is simply a narrative of the fact that the applicant's application for review was rejected by the Tribunal and that the delegate's decision was affirmed on review. It does not identify jurisdictional error.

1. The Tribunal did undertake a review in accordance with the statutory requirement to do so. The applicant was given the opportunity to present evidence and arguments, and did so at the hearing. The Tribunal also gave the applicant particulars of adverse information held by it and permitted the applicant time to consider that information and comment. The applicant did so. The Decision reflects a thorough consideration of the statutory criteria and the applicant's evidence, but the Tribunal was not persuaded that the applicant was entitled to protection under ss 36(2)(a) or 36(2)(aa) of the Act.

1. Notwithstanding the applicant's assertion that he was not provided an opportunity to present evidence, the Tribunal record and the Decision suggest that he was. The applicant conceded that he was not prepared for the hearing or the application to this Court, but that was not a matter for the Tribunal or a failure to extend procedural fairness by the Tribunal that amounted to a jurisdictional error by the Tribunal. The Tribunal provided the applicant with the services of an interpreter and as noted above, there was no contemporaneous complaint regarding the services provided and none made in the originating application for review.
2. The onus is on the applicant to establish material errors in the interpretation of his evidence (Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (Appellant P119/2002) at [17] per Mansfield and Selway JJ). The applicant has not discharged that onus. No errors were identified. In Appellant P119/2002, the Court also said at [17]:

[17] The claimed obligation upon the Tribunal under s 425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented on by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at 6 [27] (Singh); Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (Perera). In its written submissions the respondent, after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:

(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or

(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.

1. No jurisdictional error is established by the applicant under this ground.

1. This is a complaint about the conduct of the delegate, and not a complaint about the Tribunal or the Decision. The Court is not permitted to undertake judicial review of the delegate's decision or what occurred before the delegate. The Minister is correct to submit that the Court has no jurisdiction under s 476 of the Act to review the delegate's decision. This ground does not establish error by the Tribunal.

1. For the reasons explained above, the applicant was given an opportunity to present evidence and arguments to the Tribunal and there was no denial of procedural fairness or natural justice by the Tribunal. The complaints made about the quality or adequacy of the interpreter provided have not been established and there is nothing apparent from the reasoning or conduct of the Tribunal in the Decision or the Tribunal record to reveal a material jurisdictional error.
2. Grounds six and seven are narrative and commentary but do not identify jurisdictional error in the Decision.
3. The Court has also scrutinised the originating application for review, 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 & Border Protection [2015] FCA 1392 at [58], [77], and [100], [112]-[114]. No error is found.

1. The application for judicial review filed 22 November 2019 is dismissed.

1. The name of the first respondent is to be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025.

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, 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 fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.