FFK20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2154

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 30 November 2020, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa (the visa).
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of Malaysia.
2. The applicant first arrived in Australia on 16 October 2016 as the holder of an Electronic Travel Authority (subclass 601) visa.
3. On 20 December 2016, the applicant applied for the visa, claiming that his parents took out a loan from a loan shark, and when his parents were unable to may repayments, the loan shark had gangsters disturb and threaten his family.
4. On 26 May 2017, the delegate refused to grant the applicant the visa on the basis that they were not satisfied that s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) were met.
5. On 15 June 2017, the applicant lodged an application for review with the Tribunal.
6. On 1 December 2020, the Tribunal affirmed the decision not to grant the applicant the visa.

1. At [1] - [3], the Tribunal set out the application for review and the background of the matter.
2. At [4] - [6], the Tribunal set out the relevant criteria for a protection visa.
3. At [16] - [19], the Tribunal considered the applicant's written claims for protection provided by his visa application. At [19], the Tribunal listed the applicant's written claims for protection raised in his visa application (without alteration):

89. Why did you leave that country(s)?

I left my country because my parents made a business loan for RM 25,000.00 in March 2016 to a shark loan owner named Mr. G H/P012- 9019111. Due of the downfall Malaysia economic crisis, my parents business were running very slow. Repayment of loan became unstable and started to skip for a few months. The loan owner started asking for repayment. He used his gangster to disturbed, mistreat my family. They want to harm our family. I seek for protection because my life is in danger.

90. What do you think will happen to you if you return to that country(s)?

They will mistreat, harm and offensive me and my family.

91. Did you experience harm in that country(s)?

Yes- my house was attacked several times by gangsters.

92. Did you seek help within that country(s) after the harm?

Yes- the local authority had lack of seriousness about the incident because there was no concrete proof and evidence.

93. Did you move, or try to move, to another part of that country(s) to seek safety?

No- the gangsters were everywhere and they have big connections in the country and that should not be a problem for them to find me.

94. Do you think you will be harmed or mistreated if you return to that country(s)?

Yes- they will kill me.

95. Do you think the authorities of that country(s) can and will protect you if you go back?

No-there is no proof or evidence for the authorities to protect me. They [the gangsters] will find me.

96. Do you think you would be able to relocate within that country(s)?

The situation will remain the same.

1. At [21], the Tribunal summarised the applicant's oral claims for protection provided at the hearing (without alteration):

The Applicant arrived in Australia on 16 October 2016 with his father. His mother and two sisters remained in Malaysia. However, the Applicant's mother and one of his sisters have since come to Australia. According to the Applicant, they arrived in January 2019 and have since applied for protection visas. The other sister is now working in Qatar.

The Applicant confirmed that the reason for coming to Australia was because of a loan his parents had taken from the loan shark, Mr G.

The Applicant stated that he wishes to remain in Australia because of work and study opportunities. He also said that his mother is in Australia to receive medical treatment.

When the Tribunal inquired of the Applicant about his knowledge of the status of the loan owed by his parents to Mr G, the Applicant stated he thought his parents had settled this loan some time last year.

Upon further inquiry by the Tribunal, the Applicant said that he now had no fear of returning to Malaysia, although he said the situation would have been different last year.

1. At [22], the Tribunal summarised the evidence given by the applicant's father at the hearing as follows (without alteration):

The Applicant's father confirmed that he left Malaysia because of money borrowed from Mr G and the threats that had been made because of his inability to meet repayments.

The Applicant's father travelled with the Applicant to Australia so that they could earn money to repay the loan. To this end, they have been working since arriving in Australia.

Repayments to Mr G have been made since they have been in Australia. When the Tribunal asked the Applicant's father how much was left owing on the loan, initially he said that he did not know the exact amount that was owing. After further questioning, he then said he believed there was RM 100,000 owing as a 'rough calculation'.

Pursuant to the procedure set out in s 359AA of the Act, the Tribunal put to the Applicant's father (for the purposes of the father's own case) that his son had given evidence to the Tribunal that suggested there was no money owing to Mr G. The Applicant's father responded by suggesting that the Applicant did not know what was left owing on the loan.

The Applicant's father fears returning to Malaysia because he believes he may be unable to service the loan, which may lead to further threats being made against him.

1. At [23], the Tribunal had regard to evidence given by telephone from the applicant's mother claiming that the family still owed ~ MYR 15,000 to the loan shark.
2. At [32], the Tribunal accepted that the applicant's parents had borrowed money from a loan shark and that threats were made to the applicant's safety as a result of this loan. However, at [34], the Tribunal found the applicant's parents had provided inconsistent, self-serving, and uncorroborated evidence.
3. At [33] - [35], the Tribunal was not satisfied that there was any money outstanding on the loan. The Tribunal was not satisfied that the applicant or his parents had any fear of returning to Malaysia because they felt threatened by the loan shark: at [35].
4. At [43] - [44], the Tribunal concluded it did not accept the applicant had a well-founded fear of persecution and as such, he did not meet the refugee criterion pursuant to s 36(2)(a) of the Act.
5. At [48], the Tribunal considered the complementary protection criteria pursuant to s 36(2)(aa) of the Act. The Tribunal was not satisfied there was a real risk the applicant would suffer significant harm if he returned to Malaysia and did not find the applicant to be a person in respect of whom Australia had protection obligations under s 36(2)(aa).
6. At [51], the Tribunal affirmed the decision not to grant the applicant the visa.

1. The applicant advances five grounds of judicial review contained in an Originating Application filed with the Court on 16 December 2020. They are as follows (without alteration):
   1. THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE
   2. THE TRIBUNAL DEPRIVED ME OF PROCEDUR FAIRNESS
   3. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;
   4. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABAOUT THE TYPES OF HARM RELEVENT IN MY CASE.
   5. ACCORDING IN SECTION 44 OF THE ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AND AUTHORIZING ME TO MAKE SUCH ACTION APPEAL TO FEDERAL CIRCUIT COURT.

1. On 3 July 2025, Registrar Munro made orders which, amongst other things, required the applicant to file and serve submissions, any amended application and affidavit evidence 28 days before the hearing, that is by 18 November 2025. As at the date of today's hearing, no further documents have been filed or served by the applicant.
2. The applicant appeared before the Court unrepresented. At the hearing, he was assisted by a Malaysian interpreter. Prior to the hearing commencing, the Court ensured the applicant was in possession of a copy of the relevant Court Book, and that the first respondent's written submissions had been provided to him, translated to him, and that he understood them. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing, should he wish to.
3. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
4. In his oral submissions, the applicant took the Court to a number of paragraphs of the Tribunal's written decision and complained that the Tribunal did not accept evidence that money was still outstanding to the loan shark in Malaysia. It was explained to the applicant that these submissions did not actually go to any jurisdictional error; rather, they simply went to vehement disagreement with the factual conclusions arrived at by the tribunal and invited the Court to undertake impermissible merits review.
5. Although invited to, the applicant, unsurprisingly, was unable to say anything in respect of the grounds of judicial review which were filed in the Originating Application.

1. Ground One alleges the Tribunal failed to consider vital integers of the applicant's case.
2. The Tribunal outlined the applicant's claims for protection provided in his visa application (at [19]) and summarised the evidence he gave before the Tribunal at [21]. The Tribunal considered the applicant's claims and evidence he provided for the purposes of the review, without further particulars, it is difficult to ascertain what integer the applicant is referring to.
3. The Tribunal was not required to consider any claim the applicant failed to expressly raise or that did not clearly arise on the material before the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [61].
4. Ground Two alleges that the Tribunal denied the applicant procedural fairness.
5. The Tribunal complied with its procedural fairness obligations; the applicant was invited to, and attended, a hearing before the Tribunal where he was given the opportunity to give evidence and present arguments. The Tribunal's decision demonstrates that the applicant responded to the Tribunal's questions and was otherwise engaged with the Tribunal. The Tribunal accepted the evidence provided by the applicant, acknowledging it was candid and truthful, placing greater weight on the applicant's evidence than that provided by his parents, noting that evidence was self-serving, inconsistent, and uncorroborated at [34].
6. The Tribunal was entitled to, accept or reject, or give greater or lesser weight, to the evidence before it, as it considers appropriate in the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]; DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87].
7. Ground Three alleges the Tribunal relied on incorrect information and relied on facts from an unrelated matter.
8. The applicant has failed to particularise what incorrect information he refers to by this ground, nor has the Minister been able to independently identify any information which could indicate the Tribunal relied on information from an unrelated matter. Further, the Tribunal did not have regard to any information that can be properly characterised as irrelevant.
9. Ground Four alleges the Tribunal failed to ask questions concerning the type of harm relevant to the applicant's protection claim.
10. It is well established that here is no general duty imposed on the Tribunal to inquire: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]. The applicant was obliged to advance their own claim for protection, not the Tribunal: Abebe v The Commonwealth (1999) 197 CLR 510. The Tribunal informed the applicant that it was his responsibility to specify all the particulars relevant to his claim for protection, and to provide evidence in support at [31].
11. Ground Five alleges the applicant can appeal to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Ground Five is misconceived in circumstances where the applicant can (and has) sought judicial review of the Tribunal's decision pursuant to s 476 of the Act. Ground Five does not allege a jurisdictional error.

1. The grounds of judicial review advanced in the Application are template grounds to which the applicant was not in a position to make any submissions in respect of them.
2. In Djokovic v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, the Full Court of the Federal Court stated the task of a Court conducting judicial review was this:

...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of a Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is well-established that a Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253. Further, it is for the applicant to satisfy the Tribunal, being the relevant decision-maker, the applicant meets the criteria for being a refugee. It is well-established that a Tribunal enjoys an advantage of fact to test the veracity of evidence given orally or by observing witnesses: Fox v Percy [2003] HCA 22.
2. If grounds of judicial review are not supported by particulars, for that reason alone they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. There is also no duty on the tribunal to investigate an applicant's claims.
3. I now turn to the grounds of judicial review as filed. Ground One is, "The tribunal failed to consider many vital integer of my case." No particulars are provided as to what integer was not considered. As noted by the first respondent, the Tribunal listed the applicant's claims, considered the evidence that was raised before it, and for reasons which I find both rational and logical, concluded that it did not accept certain aspects of the applicant's case. I am not satisfied the Tribunal failed to consider any integer of the applicant's claims.
4. Ground Two is an allegation of a denial of procedural fairness. I do not accept that claim. The Tribunal had properly invited the applicant to attend the hearing, and he was given an opportunity to give evidence and present arguments. The Tribunal's decision, in my view, as submitted by the first respondent, properly indicates that the Tribunal engaged with the applicant by asking questions. I am satisfied that every procedural fairness requirement set out in the Act was complied with by the Tribunal. Accordingly, this ground has no merit.
5. Ground Three is an allegation the Tribunal member relied on incorrect information in deciding the case, using facts from some other case. Again, in the absence of any particulars, and noting further that this was a template ground, the ground has no merit. Clear particulars of any error of the Tribunal member would need to be set out.
6. Ground Four is a claim the Tribunal member failed to ask the applicant questions about the types of harm relevant to his case. Again, an examination of the Tribunal decision record clearly indicates that the Tribunal engaged with the applicant and set out the claims that he had made and the fears he had in his application. The Tribunal noted that the applicant stated that he wished to remain in Australia, not for any protection reason, but because of work and study opportunities.
7. The Tribunal noted the applicant said he had no fear of returning to Malaysia because the loan had been settled, noting that in this case the applicant and his father had been in Australia for some four years and had been working in order to pay off the loan. I am not satisfied the Tribunal failed to make any necessary inquiry, and indeed, it was not required to make inquiries of the applicant. It was for the applicant to make his case. Ground Four has no merit.
8. Ground Five is a procedural description that the applicant has a right of appeal to this Court. It is not a proper ground of judicial review and is misconceived.
9. The applicant, in his oral submissions, raised issues where he took issue with the factual conclusions arrived at by the Tribunal. Being generous, the Court has interpreted this to be raising a ground of legal unreasonableness. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li [2000] FCA 1692, or where a decision has been made that lacks an evident and intelligible justification.
10. The test for legal unreasonableness is stringent and will only arise in rare cases. Unreasonableness is not a means of challenging a decision on the basis the Court disagrees with consideration of matters or the evaluative judgments made by a decision-maker. In this case, I am satisfied that the Tribunal actively engaged with the arguments provided by the applicant and the evidence that was provided by both the applicant, his father, and his mother.
11. I am satisfied that it was open on the evidence that was before the Tribunal for the Tribunal to favour and give greater weight to the applicant's evidence as compared to that of his mother and father, noting that it was the applicant's case, not his father's or his mother's. I am satisfied there was nothing legally unreasonable, illogical, or irrational for the Tribunal to come to the factual conclusions that it did, that the loan taken out by the father had in fact been repaid in full. The assertion of legal unreasonableness cannot be made out.

1. In these circumstances, the Application must be dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.