FIX17 v Minister for Immigration and Citizenship [2026] FCA 259

1. The first appellant is married to the second appellant and together they have one child, born 2 February 2019.
2. The appellants are Malaysian citizens, of Tamil ethnicity. The first appellant arrived in Australia on 4 January 2017 and her husband, the second appellant, followed about a month later, on 15 February 2017. Both held Tourist (Subclass 601) visas.
3. The first appellant contended that she and her husband feared harm because they borrowed money from a money lender and were unable to repay the money lender. The appellants claimed that the money lender had threatened them with physical assault and that they could not return to Malaysia because of the fear of physical assault and threats to the first appellant's family members. On 29 March 2017, the appellants applied for the Protection Visas and on 17 May 2017, a delegate of the first respondent refused to grant those visas on the basis that the appellants had failed to meet the relevant criteria.
4. On 11 June 2017, the appellants applied to the Tribunal for review of the delegate's decision. In a letter dated 6 September 2017, the Tribunal informed the appellants that it was unable to make a decision in their favour based on the material then before it. The appellants were invited to attend a hearing on 4 October 2017, which they did, and on 2 November 2017 the Tribunal affirmed the delegate's decision not to grant the appellants the Protection Visas.
5. On 6 December 2017, the appellants commenced proceedings in the FCFCOA seeking judicial review of the Tribunal's decision. The matter came before the primary judge on 26 July 2021, and the appellants appeared there in person. The sole ground of appeal in the application in the FCFCOA was:

Ground 1

Tribunal has denied procedural fairness as they did not request documents to prove physical harm they suffered from money lenders, but dismissed evidence as "contradictory evidence"; and also made irrelevant conclusions

1. The primary judge took the view that no duty arose in the circumstances for the Tribunal to request documents to "prove physical harm". His Honour found that there was no denial of procedural fairness, that the findings of the Tribunal were logical and rational, and so no jurisdictional error had been made out and dismissed the appellants' application.

1. Under s 65 of the Act, the Minister may grant a visa to a non-citizen. A person may apply for a protection visa under s 36 of the Act. The Minister may grant an applicant a protection visa if certain criteria in s 36(2) of the Act are met. The power conferred on the Minister may be delegated under s 496 of the Act.
2. Section 36(2) of the Act is as follows:

36 Protection visas--criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

1. Under s 36(2A), a non-citizen will suffer "significant harm" for the purposes of s 36(2)(aa) 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. Under s 5H(1)(a), a person who has a nationality is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. The definition of "well-founded fear of persecution" is set out at s 5J(1):

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

1. A person is to be treated as a member of "a particular social group" if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution (s 5L).

1. The reason the person fears being persecuted must be the "essential and significant reason", and must involve serious harm to the person and systematic and discriminatory conduct (s 5J(4)).

1. In its decision, which is summarised at paragraphs [5] to [11] of the primary judgment, the Tribunal identified that the appellants were ethnic Tamil Indians and considered their claims, including the circumstances in which money was borrowed from the money lender and the harm the appellants contended they had suffered before leaving Malaysia and would suffer if they returned. Among other things, the appellants contended that the Malay Police would not protect them, as they only protect Malays and are unable to do anything against money lenders.
2. At paragraphs [6] to [24] of the Tribunal decision, the member set out the evidence brought by the appellants about their circumstances at the hands of money lenders, and raised with the appellants the content of country information for Malaysia in relation to money lenders.
3. At paragraphs [25] to [54] the Tribunal member considered the information as to money lending by ah long or loan sharks in Malaysia and Singapore, and considered whether the appellants belonged to a "particular social group" because of their having borrowed money. While the Tribunal accepted that the appellants might be required by the lender to repay money owing, it did not accept that this amounted to serious harm for reasons of race, religion, nationality, membership of a particular social group or political group: s 5J of the Act. It also did not accept that Malaysian authorities would withhold protection to ethnic Tamil Indians; rather, it found that effective protection measures were available and that the Malaysian state was willing and able to offer such protection. In the Tribunal member's view, the appellants came to Australia in order to work and earn money to repay their debts. Ultimately, the Tribunal member was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants being returned to Malaysia, there was a real risk that they would suffer significant harm: s 36(2)(aa) of the Act. Having regard to the evidence, which it referred to as "vague, unpersuasive and contradictory", the Tribunal affirmed the delegate's decision.

1. Before the primary judge, as noted at [2] above, the appellants pleaded one ground of review, which was expressed in the same terms as ground 1 of their notice of appeal in this Court. In rejecting this ground, the primary judge said (at paragraphs [18]-[23]) that there was no jurisdictional error on the basis that:

(a) The Tribunal had complied with its statutory obligations in the conduct of the review; the appellants had had a "real and meaningful hearing before the Tribunal" and the Tribunal had genuinely engaged with their claims and evidence.

(b) The Tribunal did not deny procedural fairness by not requesting documents to prove physical harm; the Tribunal has no duty to make such an inquiry, and the appellants did not identify any obvious and easily ascertainable inquiry that could have been made.

(c) The Tribunal's adverse findings on the appellants' credibility were open to it for the reasons given.

1. In their notice of appeal, the appellants rely on the following grounds:

Tribunal has denied procedural fairness as they did not request documents to prove physical harm they suffered from money lenders, but dismissed evidence as "contradictory evidence"; and also made irrelevant conclusions

The applicant misapplied the law or test in relation to particular social group.

Particulars

The applicant claimed that they belonged to a particular social group, namely 'borrowers from loan shark'. The tribunal erroneously determined that 'borrowers from Loan shark' is not a particular social group.

The Tribunal failed to consider applicant's claims cumulatively.

Particulars

1. The Tribunal formed the view that the repossession of a car does not amount to serious harm. However, it failed to cumulatively the claim which include the following:

   1. They are from Malaysian Indian ethnicity.

   2. The primary applicant is a female.

   3. They belong to Hindu minority.

   4. The Tribunal failed to consider applicants' claim that they would face ransom demand.

1. At the hearing, the applicants sought to rely on an affidavit which, while not filed, had been provided to the Minister by email and which detailed incidents in Australia which were said to be further grounds for a need for protection (including the "ransom demand" issue). I disallowed leave to rely on this affidavit because it raised issues which occurred after the relevant decisions of the Tribunal and by the primary judge.
2. After I had reserved my decision, the appellants sent a further affidavit to the Migration team at the Court seeking to have it relied upon in these proceedings. The email to the Court was not, on its face, sent to the representative of the Minister. Accordingly, the Minister's views were sought and a short submission received objecting to the affidavit on the grounds that "the evidence is incapable of demonstrating error in either the Tribunal's decision or the primary judgment because it relates to matters which occurred after both of those decisions".
3. I decline to grant leave to the appellants to re-open their case to rely upon the affidavit. It cannot assist me in determining whether there are errors in the approaches taken below.

1. The appellants, through an interpreter, were asked to make oral submissions because they did not file any written submissions as directed. The first appellant repeated much of the factual material dealt with above, including the circumstances of the money lending and the harm she and the second appellant had suffered before leaving Malaysia and would suffer if they returned. The first appellant said that they were unable to provide further documents, as loan sharks did not provide statements or written records of interest repayments.
2. The first respondent submitted that ground 1, being identical to the ground considered and rejected by the primary judge, should be dismissed by this Court on the same bases. The first was that the Tribunal did not deny the appellants procedural fairness by 'not requesting documents to prove physical harm'. The Minister relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), at [25]-[27] to underline that the Tribunal was not under any duty to request that the appellants produce further documents.
3. I agree that the onus to provide material on which the appellants' claim is based lies on the appellants. They did provide information to the Tribunal, which was considered carefully. In addition, they were on notice that they needed to provide further evidence to the Tribunal. A letter of 6 September 2017 sent to the appellants by the Tribunal said:

I am writing about your application for review of a decision to refuse to grant 866 (Protection) visas.

We have considered the material before us but we are unable to make a favourable decision on this information alone.

You are invited to appear before the Administrative Appeals Tribunal (the Tribunal) to give evidence and present arguments relating to the issues in your case. We have arranged a hearing for:

Date: 4 October 2017

...

1. As to the assertion that the Tribunal made impermissible credibility findings against the appellants, or took into account irrelevant considerations, no identification of the basis for those statements was provided. I infer from the appellants' oral submissions that the weight of the evidence meant that their word should have been accepted; however, the Tribunal member's careful recitation and analysis of the contrast of the appellants' evidence before her and the available country information demonstrates that the findings she made were open to the Tribunal. Nor did the appellants specify the irrelevant considerations alleged to have been "made"; as the Tribunal member observed, she took into account country information, inconsistencies in the appellants' accounts, and that there was no relevant "particular social group" identified which would ground their application for a protection visa (see paragraphs [34] to [36] of the Tribunal reasons). The primary judge was correct to dismiss the appeal on ground 1.

1. Since grounds 2 and 3 were not put before the primary judge, the appellants required leave to raise them in this appeal. As the Minister noted in his submissions, the principles concerning a grant of leave to raise new grounds for the first time on appeal are well-settled. He relied on Sun v Minister for Immigration & Border Protection [2016] FCAFC 52; 243 FCR 220, which says at [89]-[92] (Flick and Rangiah JJ):

In the absence of reason to do so, a court will not allow an appellant to depart from the basis upon which a case has been conducted at first instance: University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483; Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [16]; Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89 at [18] per Gageler J. As a "general rule a party is bound by the conduct of his case": Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317 at [34]. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ there went on to observe that there are nevertheless "circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial". There is, moreover, a legitimate interest in public law matters being resolved in a timely and efficient manner: Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at [62] per Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J.

But an appellate court retains a discretion to allow a new argument to be raised on appeal where it is expedient in the interests of the administration of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48] per Kiefel, Weinberg and Stone JJ.

In the present proceeding, counsel for the respondent Minister opposed the grant of leave to amend - be it the amendment that was embraced within proposed Ground 4 or that which was formulated during oral submissions. Ground 4, it will be noted, is expressed for some reason merely in terms of "an onus of proof"; the reference to "burden of proof" has disappeared.

Leave to amend to raise either new argument is opposed, but not by reason of any prejudice to the Minister if leave were to be granted, or because the new argument is susceptible of being met by evidence which potentially could have been led at first instance. Opposition to the amendment was founded upon one or other of three factors, namely:

• the constant necessity to bear in mind that the Court as presently constituted is exercising appellate jurisdiction and not original jurisdiction and too readily to permit the running of new arguments would undermine the appellate process by rendering the hearing at first instance almost irrelevant (WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106; (2004) 204 ALR 624 at [19] per French J; Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624; (2014) 142 ALD 550 at [28] per Perram J);
• the fact that the appellants in the present proceeding, unlike many appellate cases arising on appeal from the Federal Circuit Court involving decisions made under the Migration Act, were represented by counsel at first instance and no satisfactory explanation has been provided for why either of the two new arguments was not raised for resolution before that Court; and
• the lack of any self-evident merit in the proposed new argument - stripped of its gloss, the argument is an impermissible attempt to cavil with the findings of fact made by the Tribunal or the weight it gave to that evidence it relied upon to support its findings that each of the 11 documents were "bogus documents".

Each of these arguments is accepted. Notwithstanding the initial attraction of a submission that it was a question of general public importance to the administration of the Migration Act whether the Tribunal assumed any "onus or burden of proof", as the argument developed it quickly became a submission devoid of merit.

1. The first respondent submits that leave should not be granted for the following reasons:

(a) The appellants have provided no explanation for why the proposed grounds were not raised before the primary judge.

(b) There is practical injustice to the Minister in these grounds being able to be raised for the first time on appeal. The Minister would be prejudiced by a grant of leave, given that this Court would become a de facto primary court with the only avenue of appeal to the Minister being an application for special leave to appeal to the High Court.

(c) The proposed grounds lack sufficient merit, so that it is not expedient in the interests of the administration of justice for the Court to grant leave to raise them on appeal.

1. I took the course of hearing the parties on the second and third grounds, on the basis of the need to consider the merits of each ground, and the Minister acceded to this approach.
2. In relation to each of grounds 2 and 3, there was no explanation of the failure to bring those grounds before the Tribunal. Accordingly, allowing the appellants to rely upon them would effectively make this Court the primary tribunal of fact, leaving the Minister (if the appellants were to succeed on those grounds) without a right to appeal except by way of special leave to the High Court (see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 (Perram J) at [14]).
3. In any event, I am able to determine to refuse leave on the basis of the lack of merit in each ground.

1. In their notice of appeal, the appellants say that the Tribunal misapplied the law or test in relation to a particular social group by erroneously determining that "borrowers from Loan shark" is not a particular social group.
2. The appellants did not make any submissions as to the legal basis of this submission. They did raise the iniquity of the loan sharks and the fears they had of being pursued for outstanding debts; however, there was nothing in their submissions which indicated that "borrowers from Loan shark" is a relevant group for the purposes of ss 5J, 5K, and 5L of the Act.
3. The first respondent submits that the Tribunal's findings were open to it and revealed no arguable error. It says that while the Tribunal, correctly applying the law, accepted that borrowers were a social group in Malaysia, it was not satisfied that borrowers had a common characteristic or attribute that distinguished them from society at large and so did not satisfy s 5L of the Act. Alternatively, even if it had accepted that borrowers were a particular social group, the first appellant was not harmed because she was a member of that group but for her failure to repay money.
4. In my view there is insufficient merit to ground 2 to allow the appellants leave to rely on it. Being a member of a social group, ie, victims of financial extortion, is a group which is united by a common fear of persecution (see s 5L(d) of the Act). There is no common characteristic or attribute that distinguishes those persons from society at large except for their action of having borrowed money. It is not innate or intrinsic, nor does it meet the other requirements of s 5L(c) of the Act.
5. For those reasons, there is insufficient merit in ground 2 and I refuse leave to the appellants to rely upon it at hearing.

1. Ground 3 asserts that the Tribunal failed to consider their claims "cumulatively", and the appellants gave as particulars the first appellant's gender (being female), her religion (Hindu), and her ethnicity (Tamil).
2. The appellants did not provide any further submissions on this ground apart from citing the fear they had of returning to Malaysia and a reference to the first appellant's mistrust of the Malaysian police.
3. The Minister submitted that the appellants did not, at the Tribunal hearing, claim to fear harm due to their gender or religion, nor did those claims squarely arise on the material before the Tribunal. The first respondent noted that the Tribunal cannot have erred by omitting to consider claims that were not made before it. As for the ethnicity of the appellants, the Tribunal did consider whether they would suffer relevant harm for this reason, and found that there was no information (including country information) to suggest that that was so.
4. The second contention particularised in ground 3 is that the Tribunal failed to consider a claim that the appellants would face a ransom demand. This was not raised before the Tribunal; instead, the appellants claimed they would be sold or attempted to be sold to another person, which the Tribunal considered but ultimately found had not occurred in the past, and there was only a remote chance it would occur in the future (see paragraphs [8], [34] and [47]).
5. It seems to me that ground 3, again, does not have sufficient merit to warrant a grant of leave. There can be no error in failing to consider claims "cumulatively" if those claims were not made before the Tribunal.
6. For those reasons, there is insufficient merit in ground 3 and I refuse leave to the appellants to rely upon it at hearing.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.