FQJ18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 623

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 24 October 2018, the applicants lodged, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 September 2018. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (subclass 866) visas under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. On 17 October 2016, the applicants, citizens of Malaysia, entered Australia on travel visas. The first applicant (Applicant) is the mother of the second applicant.
2. On 11 January 2017, the applicants applied for protection visas. The Applicant is the primary applicant. The second applicant was a member of the Applicant's family unit.
3. On 20 July 2017, a delegate of the first respondent refused to grant the applicants protection visas on the basis that the applicants did not engage Australia's protection obligations under s 36(2) of the Act.
4. On 10 August 2017, the applicants applied to the Tribunal for review of the delegate's decision.
5. On 12 July 2018, the Tribunal wrote to the applicants and invited them to appear before the Tribunal to give evidence and present arguments on 20 September 2018. The hearing invitation stated:

After the hearing the member may hand down an oral decision. Consequently, it is important that all information/submissions are submitted a full 7 days before the hearing date.

1. On 11 September 2018, the Applicant provided a letter to the Tribunal which set out a more detailed version of her claims (September 2018 Letter).
2. On 20 September 2018, the Applicant appeared before the Tribunal to give evidence and present arguments. She was assisted by a Tamil interpreter. On the same day, the Tribunal made an oral decision affirming the delegate's decision to refuse to grant the applicants protection visas.
3. On 31 October 2018, the Tribunal provided the applicants with a written statement of its decision and reasons.

1. The Applicant claimed that she incurred a debt through her drug addicted husband who she married in 2000 and allegedly divorced in 2015 and, as a result, she faced a real chance of serious harm if required to return to Malaysia. In connection with this claim, as recorded by the Tribunal at [12], the Applicant claimed that a policeman initially protected her from the debt loan sharks, but then forced her to become a Christian because he was a Christian, tried to have her daughter marry a Muslim and later attempted to rape her daughter.
2. The Tribunal at [13] noted that the Applicant's claims lacked detail, such as "details surrounding the debt, date of divorce or dissolution of the marriage to the husband", and asked the Applicant to provide supporting details. The Applicant was unable to provide any supporting details.
3. The Tribunal at [20] recorded its concerns that "given [the Applicant's] overall superficial and non-credible replies and the total lack of any supporting, independent or corroborative information ... [the Tribunal] had a preliminary opinion that these events and documents were fictional inventions" and "the Tribunal believed that [the Applicant] had never converted to Christianity forced or otherwise, never made any complaints to police about herself and the debt or the attempted rape of her daughter ... and that they were nothing more than untruths to enhance her application". The Tribunal put these concerns to the Applicant and recorded at [20] that "there was a long pause but no further information was forthcoming".
4. The Tribunal at [27] "repeated that so far [the Applicant] had only made many unsupported, uncorroborated assertions but had produced no independent, supporting or corroborative evidence to support her claim".
5. The Tribunal at [30] found "that the applicant's claim is a fictional story" and "there has been no evidence to support her claim as to any aspect of the assertions she has made in her claim for protection".
6. In relation to some documents provided by the applicants to the Department or the Tribunal, the Tribunal at [31] found that the documents "are not genuine but have been specifically created to create a fictional basis for an otherwise completely implausible claim".
7. The Tribunal at [36] was "not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion". Nor was "the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm".
8. It followed from the above that the Tribunal was not satisfied that the applicants were persons in respect of whom Australia had protection obligations.

Judicial review application and procedural orders

1. On 24 October 2018, the applicants lodged an application in this Court seeking judicial review of the Tribunal's decision (Application). The Application, which was prepared by a lawyer, contained two grounds as follows (reproduced as written):
   1. The Second Respondent failed to discharge its obligation under subparagraph 424AA(l)(b)(iii) of the Migration Act 1958 in advising the Applicants that they may seek additional time to comment on or respond to the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

Particulars

1. On 11 January 2017, the First Applicant and Second Applicant ("the Applicants") applied for a Subclass 866 Protection Visa on the basis of harm they face in Malaysia ("receiving country").

2. On 20 July 2017, the Subclass 866 Protection Visa was refused by the First Respondent and the Applicants made a review application to the Second Respondent on 11 August 2017.

3. On 12 July 2018, the Second Respondent invited the Applicants under section 425 of the Migration Act 1958 to a review hearing on 20 September 2018.

4. At the review hearing, the Second Respondent gave the Applicants orally clear particulars of the information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.

5. However, the tribunal failed to advise the Applicants that they may seek additional time to comment on or respond to the information.

6. The Second Respondent failed to exercise its discretion reasonably to adjourn the review, despite the request made by the First Applicant to seek additional time to comment on or respond to the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

a. Particulars (a) to (e) of Ground 1 are repeated.

1. When the First Applicant requested for additional time to comment on or respond to the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, the Second Respondent rejected the First Applicant's request and failed to adjourn the review.
2. The Second Respondent misunderstood the law and misstated that it had discharged its duty under section 424 and/or 424A of the Migration Act 1958 and hence, it was no longer obligated under subparagraph 424AA(l)(b)(iv) of the Migration Act 1958 to consider a request for additional time.
3. The Second Respondent misunderstood the legal position of subparagraph 424AA(l)(b)(iv) of the Migration Act 1958, in that, it erred in stating that the Applicants had ample amount of time to prepare the supporting documents as they were put on notice in July 2017, by way of a standardized information booklet the Second Respondent provides each review applicant, thus rejecting a request for additional time.

1. In January 2019, the lawyer who prepared the Application filed a notice of withdrawal of lawyer.
2. On 24 January 2025, a registrar made orders that, upon the matter being listed for hearing, the applicants file and serve at least 28 days before the hearing a written submission and any amended application with proper particulars of the grounds of the application.
3. Following a period of inactivity, on 18 February 2025 the parties were notified that the matter was listed for hearing on 31 March 2025.
4. On 14 March 2025, the first respondent filed a written submission.
5. The applicants did not file a written submission or amended application before the hearing.

1. At the hearing in this Court on 31 March 2025, the applicants appeared in person, aided by an interpreter in the Tamil language. While both applicants sat at the Bar table, the Applicant spoke on behalf of herself and the second applicant. Matthew Wong, solicitor at HWL Ebsworth, appeared for the first respondent.
2. The applicants brought to the hearing a copy of the Court Book prepared by the first respondent's solicitor in January 2019 which contained the Tribunal's decision and documents before the Tribunal.
3. I directed the applicants' attention to the Tribunal's decision in the Court Book. I explained to the applicants that the Court's role is limited to considering whether there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal's decision. I explained to the applicants the main categories of jurisdictional error. I told the applicants that, if they want to win their case in this Court, they must persuade the Court that there is a jurisdictional error in the Tribunal's decision.
4. I then offered the applicants a break for 15 minutes so that they could consider oral submissions they wanted to make to the Court. The applicants took up this opportunity.
5. After the 15-minute break, in circumstances where the Application was prepared by a lawyer but the lawyer subsequently ceased to act, I ensured the applicants had a copy of the Application and that, assisted by the interpreter, they read the Application.
6. Mr Wong tendered the Court Book (CB).
7. Accompanying the Application filed in October 2018 was an affidavit sworn by the Applicant in which she gave evidence concerning events at the hearing before the Tribunal on 20 September 2018. Presumably, the affidavit was prepared with the assistance of the applicants' lawyer at the time. During the hearing in this Court on 31 March 2025, the Applicant vacillated as to whether she wanted the Court to read the affidavit. She initially stated that she did not want the Court to read the affidavit. However, during closing submissions, she changed her mind. Mr Wong did not object to the affidavit being read at this stage of the proceeding. Mr Wong did not formally object to the admissibility of any paragraphs of the affidavit, although noted that many paragraphs were submissions rather than evidence.
8. I invited the applicants to make oral submissions concerning an error in the Tribunal's decision. The Applicant referred to a police report, baptism certificate and marriage register extract at CB 42-46. The Applicant said the documents were genuine and the Tribunal's finding at [31] that some documents were not genuine was wrong. The Applicant stated that, if the Tribunal had given her more time, she would have submitted further documents to the Tribunal to prove that all her documents were genuine. I asked the Applicant if, during the hearing, she asked the Tribunal for more time. At this point during the hearing in the Court, the Applicant sought to rely on her affidavit filed on 26 October 2018 at [5] where it is stated:

However, I did request the Tribunal member to allow me to submit additional information twice. Both requests were refused outright, and she proceeded to make an oral decision.

The Second Respondent failed to discharge its obligation under subparagraph 424AA(l)(b)(iii) of the Migration Act 1958 in advising the Applicants that they may seek additional time to comment on or respond to the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

1. Particulars (d) and (e) complain that at the hearing on 20 September 2018 the Tribunal gave the applicants "orally clear particulars of the information the Tribunal considered would be the reason ... for affirming the decision under review", but the Tribunal failed to advise the applicants that they may seek additional time "to comment on or respond to the information".
2. Ground 1 seeks to invoke a breach of s 424A of the Act which relevantly stated at the time of the Tribunal's decision:

(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) ...

(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) ... ; or

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

1. Ground 1, including the particulars, does not identify "the information" the subject of the applicants' complaint. This is a critical particular in order for the first respondent and the Court to consider the ground. For this reason, unless the reference to "information" is limited to the meaning suggested in the Applicant's affidavit at [3]-[4] (see paragraphs 37-39 below), this ground is liable to be dismissed for want of particularisation: see NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
2. The Applicant states in her affidavit at [3]-[4]:

The Tribunal member told me that she was not satisfied with my answers and had issues with my credibility which all formed reasons for affirming the decision under review. The Tribunal member never advised me at the hearing that I was entitled to seek additional time to comment on or respond to the information she was not satisfied with.

1. Aided by these paragraphs, the reference to "the information" in ground 1 appears to mean the Applicant's evidence with which the Tribunal member was not satisfied, or perhaps the Tribunal member's comments that the Tribunal "was not satisfied with my answers and had issues with my credibility". The Tribunal, in various paragraphs of its decision, expressed disbelief about the Applicant's story. For example, the Tribunal at [20] stated:

The Tribunal then raised its concerns that given her overall superficial and non-credible replies and the total lack of any supporting, independent or corroborative information at all including the documents and the claim she had been forced to convert to Christianity, the attempted rape of her daughter by Ricky, it had a preliminary opinion that these events and documents were fictional inventions. It continued that given the lack of independent, supporting and corroborative evidence the Tribunal believed that she never converted to Christianity forced or otherwise, never made any complaints to police about herself and the debt or the attempted rape of her daughter by Ricky and that they were nothing more than untruths to enhance her application. There was a long pause but no further information was forthcoming.

1. However, to the extent the applicants rely on information the Applicant gave to the Tribunal, s 424A(3)(b) states that s 424A does not apply to such information. To the extent the applicants rely on the Tribunal member's expressions of concern or disbelief about the Applicant's evidence, "information" for the purposes of s 424AA and 424A does not encompass the Tribunal's disbelief of an applicant's evidence, nor the Tribunal's subjective appraisals, thought processes or determinations, any identified gaps, defects or lack of detail or specificity in evidence, or conclusions arrived at by the Tribunal in weighing up evidence by reference to such gaps: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 147 CLR 297 at [18].
2. Ground 1 does not identify a jurisdictional error in the Tribunal's decision.

The Second Respondent failed to exercise its discretion reasonably to adjourn the review, despite the request made by the First Applicant to seek additional time to comment on or respond to the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

1. The Tribunal recorded the Applicant's request for additional time to respond to the Tribunal's concerns, and the Tribunal's response to that request, at [23]-[25] in the following terms:

[23] The Tribunal asked how the applicant further planned to persuade the Tribunal of the truth and veracity of the story she was telling the Tribunal today and expanded in her written submission above. She replied she thought she could convince the Tribunal through her oral replies. The Tribunal replied that it was disappointed in her response in that given her replies so far they did not reflect a genuine fear of harm in her home country for any reason and, indeed, if anything her approach to not providing any supporting documents or information or properly translated, certified documents reflected a rather cavalier approach to her whole claim of genuine fear of harm because of persecution in her home country. There was a pause. Then she repeated it did not occur to her to worry about that sort of detail. She said she needed more time.

[24] The Tribunal then referred the applicant to 2 very significant parts of the hearing invitation including the following extracts:

Any documents or written arguments should be in English or be translated by a qualified translator.......

And

After the hearing the member may hand down an oral decision. Consequently, it is important that all information/submissions are submitted a full 7 days before the hearing date.

[25] The Tribunal also, at the same time, reminded the applicant that the departmental decision dated 20/07/17, well over a year ago and which she had attached to her review application, was very clear about why she was refused a protection visa being as it was devoid of any supporting, genuine, independent, corroborative documentation/information together with any well-founded fear of persecution for reasons of race, religion nationality membership of a particular social group or political opinion. She replied she did not think that it was so important. The Tribunal stressed she had been given ample opportunity to prepare her case if she was truly in genuine fear of harm because of persecution in her home country. There was a pause but no reply.

1. In summary, the Tribunal refused to give the Applicant "more time" (last sentence of [23]) because:

(a) The delegate's decision dated 20 July 2017 "was very clear about why she was refused a protection visa being as it was devoid of any supporting, genuine, independent, corroborative documentation/information".

(b) The hearing invitation dated 12 July 2018 (see CB 130-131) warned the applicants that "it is important that all information/submissions are submitted a full 7 days before the hearing date" and "any documents ... should be in English or translated by a qualified translator".

(c) Hence, the Applicant "had been given ample opportunity to prepare her case": at [25].

(d) The Tribunal put the points in (a), (b) and (c) to the Applicant at the hearing and she did not reply.

1. In the circumstances, I consider that it was reasonable, for reasons provided by the Tribunal at [24]-[25], not to give the Applicant "more time". The Tribunal's decision to adjourn the review was not unreasonable. I agree with the first respondent's written submission that "it was open to the Tribunal to decline to exercise its discretionary power to adjourn the review pursuant to s 427(1)(b) of the Act, and this was not a decision that lacked an evident and intelligible justification".
2. Ground 2 does not identify a jurisdictional error in the Tribunal's decision.

Matter raised orally at hearing on 31 March 2025

1. The Applicant contended that the Tribunal's finding at [31], that some documents provided by the applicants to the Department or Tribunal were "not genuine", was wrong. However, disagreement by the applicants with a finding by the Tribunal does not mean the finding contained an error, let alone a jurisdictional error. This matter does not identity a jurisdictional error in the Tribunal's decision.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Two issues arose. First, Mr Wong sought costs in the amount of $5,600. The Applicant appeared to oppose this amount on the basis that she had been a single mother for the past 10 years and the second applicant did not have a job. The Applicant did not contend or provide evidence that the applicants were unable to pay, or would have difficulty paying, $5,600. Even if the applicants have difficulty paying $5,600, in circumstances where the scale amount is $8,371.30, which is "a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case" (Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12 (Gehlert) at [69]), I consider the amount of $5,600 sought by the first respondent is reasonable. Indigence of a losing applicant who, by making and progressing the application to hearing, has forced the respondent to incur legal costs does not affect a determination of an amount which is "fair and just in the circumstances" (Gehlert at [67]) in the present matter: see also Al-Mamun v Minister for Immigration and Multicultural Affairs [2000] FCA 1058 at [5]. I will make an order in this amount.
2. Second, Mr Wong sought a costs order against both applicants. The second applicant, born in June 2002, was 16 years old at the time the Application was filed in October 2018, and 22 years old at the time of the hearing in March 2025. On 19 November 2018, a registrar of the Court ordered by consent that the Applicant be appointed as the litigation guardian of the second applicant. It "is the litigation guardian ... who will be liable under any adverse costs order": Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 at [10]. The first respondent did not take steps to revoke the litigation guardian order once the second applicant ceased to be a minor.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.