FRO24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 930

1. These proceedings were commenced by the applicant in this Court on 1 August 2024. The applicant seeks a constitutional writ, which is a form of order potentially within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)("the Act"), in respect of a decision of the second respondent, the then Administrative Appeals Tribunal ("the Tribunal") dated 16 July 2024 that affirmed a decision of a delegate ("delegate") of the first respondent ("Minister") not to grant the applicant a protection (subclass 886) visa ("protection visa").
2. The applicant was found to be a citizen of Malaysia. The applicant arrived in Australia on a UD601 electronic travel authority on 5 April 2018. The applicant applied for a protection visa on 24 June 2018. The applicant alleges that he had to borrow money from loan sharks, that he was unable to repay the loan sharks and that he was physically assaulted and that they set fire to his car and his house. The applicant said that he did not relocate to another part of the country because of financial issues. The applicant alleged that the authorities could not help him because the authorities are corrupt.
3. On 10 December 2018, a delegate found the applicant failed to meet the criteria for the grant of a protection visa. On 10 December 2018, the applicant applied to the Tribunal for review of the Minister's decision. On 11 December 2018, the Tribunal wrote to the applicant notifying the applicant of the receipt of the application for review. On 17 June 2024, the Tribunal wrote to the applicant informing the applicant that it had considered the material before it but was unable to make a favourable decision on that information alone. On 24 July 2024, the Tribunal invited the applicant to attend a hearing. That invitation also invited the applicant to provide information to the Tribunal about the loan, the threats and the debt within seven days.
4. On 18 July 2024, the applicant completed a response to hearing invitation form and in response provided:

No, I will not participate in the hearing, hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear

confirming that he would not take part in the hearing on 24 July 2024 and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.

1. On 16 July 2024, the Tribunal sent to the applicant its decision on the application for review.
2. The Tribunal identified the background to the review application and set out the relevant law. The Tribunal identified the applicant's background and the claims that he had made. The Tribunal also identified the applicant's failure to respond to the specific questions asked by the Tribunal. The Tribunal was prepared to accept that the applicant borrowed money from loan sharks, that they set fire to one of his cars and his house, that he ran away to Australia, that the loan sharks threatened to harm him if he returned, and that he never tried to negotiate with the loan sharks or relocate within Malaysia.
3. The Tribunal identified and took into account certain country information in relation to both loan sharks in Malaysia and internal relocation. The Tribunal accepted that Country information as to the current state of affairs in Malaysia. The Tribunal identified that it was the applicant's responsibility to provide sufficient evidence to establish his claims under s 5AAA of the Act.
4. The Tribunal identified that it could not be certain as to whether the applicant remained fearful of harm in Malaysia by the loan sharks because the applicant had not attended a hearing or responded to the requests for information. The Tribunal identified that the applicant had been in Australia for more than six years and that it may be that the loan shark debt had been completely repaid and/or that it may be the case that the loan sharks have written off the debt and will not harm him in the future. The Tribunal found the applicant's failure to answer the direct questions about the debts was entirely unsatisfactory and that the applicant provided the Tribunal with a complete lack of evidence as to whether there were current debts. The Tribunal also found that the applicant had not explained why he could not live in another part of Malaysia. The Tribunal found the applicant has not clarified the basis upon which he alleges his fear persists as at 2024 and into the reasonably foreseeable future. The Tribunal took into account that the claimed events took place so long ago and that the applicant had failed to provide information when he was given the opportunity to do so.
5. The Tribunal found it could not be satisfied that the applicant is genuinely fearful about going back to Malaysia. The Tribunal was not satisfied that there is a real chance that the applicant will face serious harm in the reasonably foreseeable future if he returns to Malaysia. The Tribunal also did not accept that the applicant's claimed fear of harm related to all areas of Malaysia. The Tribunal found the applicant does not have a well-founded fear of persecution. The Tribunal found that the applicant is not a refugee within s 5H of the Act. The Tribunal found that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
6. The Tribunal turned to the issue of complementary protection and was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. The Tribunal found that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.
7. The two grounds in the application are as follows:
   1. The Tribunal erred in its assessment by not giving proper weight to the evidence provided regarding the threats and harassment I faced from loan sharks in Malaysia. Despite accepting the occurrence of past events, the Tribunal dismissed the severity and ongoing nature of these threats. The DFAT report itself acknowledges that victims of loan sharks in Malaysia face significant consideration given the specific threats against my life and well-being.
   2. The Tribunal's decision heavily relied on minimal evidence and assumptions about my ability to seek protection and relocate within Malaysia. The decision did not fully consider the context and specificity of my situation, particularly the ongoing risk of severe physical harm from loan sharks. This overreliance on limited evidence without a thorough examination of the broader context led to a flawed decision.
8. The applicant maintained that there were people who would be violent to him if he returned to Malaysia. The applicant alleged the Tribunal had not considered his circumstances in Malaysia. The applicant's submissions, in substance, invited a merits review by this Court. This Court has no power to review the merits of the application.
9. It is apparent from the Tribunal's reasons that it carefully considered the applicant's circumstances as they had existed in the past and took into account the deliberate decision by the applicant not to provide current information and to not to attend the hearing. There is no substance to the contention that the Tribunal did not give a genuine and realistic consideration to the applicant's circumstances as identified on the material before the Tribunal. Nothing said by the applicant orally identified any jurisdictional error.
10. Ground one is a challenge to the adverse finding of fact by the Tribunal. It was a matter for the Tribunal what weight to give the evidence. The applicant's disagreement with the adverse findings by the Tribunal does not identify any relevant error. The Tribunal correctly identified the relevant law in determining, at the date of the hearing, whether the applicant had a well-founded fear of persecution in Malaysia.
11. Given the failure of the applicant to respond to the Tribunal's written request and failure to attend the hearing, the Tribunal's adverse finding that it was not satisfied there is a real chance that the applicant will face serious harm in the reasonably foreseeable future if he returns to Malaysia cannot be said to lack an evident and intelligible justification. This means that the adverse finding was open to the Tribunal for the reasons it gave. No jurisdictional error is made out by ground one.
12. Ground two is again a challenge to the adverse findings of fact by the Tribunal. The Tribunal, in its reasons, identified that the applicant never tried to re-negotiate with the loan sharks or relocate within Malaysia. The Tribunal identified the country information about the risks to victims of loan sharks and that state protection is available but not always effective. The Tribunal also identified the information about internal relocation and the information about opportunities for work and higher salaries in Sarawak and Sabah.
13. The Tribunal identified Country information about the ability to relocate internally. The Tribunal found that it was feasible for the applicant to live in the peninsula of Malaysia instead of his own country, or elsewhere in Sarawak. The Tribunal did not accept the applicant's claimed harm relates to all areas of Malaysia. The adverse finding in relation to the claimed fear of harm not relating to all areas of Malaysia was open to the Tribunal. On that ground alone, the Tribunal was entitled to find that the applicant did not have a well-founded fear of persecution in Malaysia and was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act. The disagreement in ground two by the applicant does not identify any relevant error. The Tribunal did consider the applicant's particular circumstances and the absence of his evidence as to whether there was any ongoing risk. No jurisdictional error is made out by ground two.
14. It is for these reasons the Court makes the above orders.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.