FYB24 v Minister for Immigration and Citizenship

1. The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
2. The applicant asserted in his judicial review application that the Tribunal did not provide him substantial justice.
3. For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.

1. In May 2018 the applicant arrived in Australia on a UD-601 Electronic Travel Authority.
2. The applicant applied for a protection visa on 26 July 2018. The applicant claimed that he had left his country because of difficulties in securing employment and paying his daily expenses.
3. On 24 December 2018 a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied to the Tribunal for merits review of the delegate's decision on 11 January 2019.
4. On 13 February 2024 the Tribunal sent an email to the applicant requesting that he complete a pre-hearing information form. The applicant provided a completed pre-hearing information form to the Tribunal on 19 February 2024. In this form, the applicant claimed that he borrowed money from an illegal money lender, using his home as collateral, in response to getting cut by his company, his family's debt and medical expenses for his daughter.
5. On 7 May 2024 the applicant was invited to attend a hearing before the Tribunal on 10 June 2024 to give evidence and present arguments relating to the issues arising in the review.
6. On 31 May 2024 the applicant provided a further pre-hearing information form in which he claimed that:

(a) his parents accumulated significant debts, which he inherited;

(b) he borrowed money from a loan shark to settle the debts but was unable to repay the loan;

(c) the loan shark started to threaten him with severe harm, including physical violence, kidnapping and threatened to harm his family, which created a constant state of fear and danger for the applicant; and

(d) the applicant made a police report but received no response or protection from the authorities.

1. On 10 June 2024 the applicant attended a hearing convened by the Tribunal.
2. Following the hearing, on 11 June 2024 the Tribunal wrote to the applicant and invited him to provide further information and evidence in support of the claims he made at the hearing. The applicant provided additional evidence to the Tribunal on 18 June 2024.
3. On 25 July 2024 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. The Tribunal summarised at length the applicant's claims for protection, as made in his protection visa application, in his pre-hearing information forms and orally at the hearing, and the evidence provided in support of those claims.
2. The Tribunal accepted that the applicant was a citizen of Malaysia.
3. In addressing the applicant's claims for protection, the Tribunal noted that s 423A of the Migration Act required it to draw an inference unfavourable to the credibility of the claim or evidence if it was satisfied that the applicant did not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
4. The Tribunal applied s 423A of the Migration Act in considering the applicant's claim to fear harm from a loan shark. The Tribunal identified that the applicant's claims and evidence in relation to the harm he feared from a loan shark were not made or presented prior to the primary decision being made. The Tribunal considered the applicant's explanation for not raising these claims before the primary decision, namely, that the friend who helped him with the protection visa application told him that economic reasons was one of the categories for the visa and that he should not mention the loan shark, and did not consider this explanation to be reasonable. The Tribunal considered it inherently implausible that the applicant would fail to include the main reason for his need for protection in the application form.
5. The Tribunal did not accept that the applicant was indebted to a loan shark. The Tribunal recorded that the totality of the evidence supplied by the applicant was of insufficient weight to overcome the inference that the involvement of a loan shark was invented by the applicant to strengthen his claims.
6. The Tribunal found that the applicant's main motivation for a protection visa was economic. The Tribunal accepted that the applicant was married with three children and that his eldest daughter had been diagnosed with a medical condition. The Tribunal also accepted that the applicant has a medical condition which may impact on his ability to secure employment as a chef. Taking into account country information, the Tribunal found that there would be a range of employment options available to the applicant in Malaysia and that the remuneration he would receive would be sufficient for his subsistence.
7. The Tribunal found that:

(a) there was not a real chance that, if the applicant returned to Malaysia, he would suffer serious harm; and

(b) there was not a real risk that, as a necessary and foreseeable consequence of the applicant been removed from Australia to Malaysia, he would suffer significant harm,

either because of his indebtedness to a loan shark, or because of his medical condition in combination with the economic situation Malaysia.

1. The Tribunal was therefore not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. The applicant filed an application for judicial review on 14 August 2024. The application was made within 35 days of the Tribunal decision as required by s 477(1) of the Migration Act.
2. In his judicial review application as filed, the applicant sought an order that the decision of the Tribunal be quashed, but did not seek any writ of mandamus, prohibition or an injunction. This is insufficient to invoke the Court's jurisdiction in this matter. Section 476(1) of the Migration Act provides that the Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution, being where a person seeks a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth. At the hearing I made an order allowing the applicant to orally amend his application to seek a writ of mandamus. I am satisfied that the Court now has jurisdiction to consider the application.
3. The applicant raises three grounds in his application (reproduced without alteration):
   1. I, [name of the applicant], THE APPLICANT OF PROTECTION VISA (SUB 866) HAVE APPLIED FOR A PROTECTION VISA ON 26/07/2018 WHICH WAS REFUSED ON 24/12/2018
   2. MY TRIBUNAL HEARING WAS CONDUCTED BY THE ADMINISTRATIVE APPEALS TRIBUNAL ON 25/07/2024
   3. SUBSTANTIAL JUSTICE WAS NOT PROVIDED AND THAT IS THE REASON I WOULD LIKE TO APPLY FOR A JUDICIAL REVIEW IN THE FEDERAL COURT OF AUSTRALIA
4. Pursuant to an Order made by a Registrar of this Court on 6 November 2024, the applicant was required to file and serve 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of application and any additional evidence on which the applicant seeks to rely. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions before the hearing as required by the Registrar's Order.
5. On 27 May 2025, some 9 days before the hearing, the applicant filed an application in a proceeding, supported by an affidavit, seeking an adjournment of the hearing so that he could seek legal advice. The Court heard the application in a proceeding on 5 June 2025 and dismissed the application, giving oral reasons for that decision: see FYB24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 980. The Court then proceeded to hear the judicial review application.
6. The evidence before the Court, for the purposes of the substantive judicial review application, comprises:

(a) an affidavit made by the applicant that accompanied his judicial review application; and

(b) the court book filed on behalf of the Minister on 20 November 2024; and

(c) an affidavit of service of Aneesha Satyendra filed on behalf of the Minister on 29 May 2025.

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

1. At the hearing, I explained to the applicant the role of the Court and I gave him examples of types of jurisdictional error that often arise in migration cases. I then stood the matter down to allow the applicant an opportunity to consider his submissions to the Court, in the light of the explanations I made.
2. When invited to make oral submissions, the applicant submitted that the Tribunal made a mistake in its decision because it relied on incomplete and incorrect information in the applicant's protection visa application. The applicant submitted that he did not complete the application himself as he did not understand the process and the person who assisted him with his protection visa application did not ask him for any details about his circumstances. Instead, they wrote down what they thought was reasonable. Later when he found out what was in his application, he gave clear evidence to the Tribunal that this did not reflect the truth of his situation and gave evidence to support his case, but the Tribunal did not consider the new information and made the decision based on the old information.
3. The applicant's oral submissions potentially give rise to two issues:

(a) whether the Tribunal's application of s 423A of the Migration Act gives rise to jurisdictional error; and

(b) whether the Tribunal failed to consider a claim advanced by the applicant or an integer of a claim.

The Tribunal's application of s 423A of the Migration Act

1. In response to the applicant's oral submissions, Counsel for the Minister submitted that insofar as the alleged error is directed to s 423A of the Migration Act, this section requires the Tribunal to consider whether the applicant's explanation for not raising the claim earlier is reasonable. The Tribunal found that the applicant did not have a reasonable explanation for not raising the claim before the delegate's decision, and in particular found the explanation implausible. The Minister submitted that the Tribunal's findings in relation to s 423A would not have materially impacted on the decision in any event, given that the harm claimed and the reasons for harm did not meet the relevant thresholds under the Migration Act. Counsel for the Minister submitted that even if s 423A was applied differently, it would not have materially affected the Tribunal's decision at all.
2. Section 423A of the Migration Act provides that (emphasis in original):

(1) This section applies if, in relation to an application for review of a Part 7‑reviewable decision (the primary decision), the applicant:

(a) raises a claim that was not raised before the primary decision was made; or

(b) presents evidence in the application that was not presented before the primary decision was made.

(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

1. In its reasons, the Tribunal summarised the evidence the applicant gave at the hearing in relation to the preparation of his protection visa application. To this end, the Tribunal said at [18] of its reasons:

At the hearing, the applicant told me that he remembered completing his protection visa application on a laptop. He was 'kind of confused' by the form. He had the assistance of a Malaysian friend, who had been in Australia longer than him and who, as far as the applicant knew, was the holder of a protection visa. His friend told him to put economic reasons in his application; she said it was one of the categories for the visa. It was true he couldn't get a job but his real problem was with a loan shark. Economics was only part of the problem. The applicant's friend had told him not to mention the loan shark. The applicant, who spoke fluent English, said he had been taught English by his mother from a young age. The applicant had typed the information into the form himself.

1. The Tribunal correctly identified at [40] of its reasons that s 423A of the Migration Act requires it to draw an inference unfavourable to the credibility of the claim or evidence if it is satisfied the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. The Tribunal noted that it discussed this with the applicant.
2. The Tribunal then said at [41]-[42] of its reasons:
   1. In this case, the applicant's central claim before the Tribunal, which he supported with oral evidence at the Tribunal hearing, was that he feared harm at the hands of a loan shark because of his indebtedness to that loan shark. He claims that he was threatened with violence and that his house was splashed with paint. These claims were not raised, and the evidence was not presented, before the primary decision was made. In fact, the applicant, in his protection visa application, did not claim to be in debt, let alone to be in debt to a loan shark. Instead, the applicant claimed to be unable to secure employment sufficient to meet his daily expenses. In his protection visa application form, the applicant indicated that he had not suffered harm in Malaysia and did not think he would be harmed or mistreated if he returned to Malaysia.
   2. The applicant's explanation for why these claims were not raised, and the evidence not presented before the primary decision was made, was that the friend who had helped him with his application had told him that economic reasons was one of the categories for the visa. This friend had told him not to mention the loan shark. I do not find this explanation to be reasonable. I find the suggestion that the applicant, with or without assistance, would fail to include the main reason for his need for protection on his protection visa application form, to be inherently implausible. The unfavourable inference I draw is that the applicant did not raise these claims in his application because they are not true, and that he invented them after his visa had been refused in order to bolster his claim. I put this to the applicant and he responded by saying that he would be able to get evidence supporting his claims, if I gave him the chance.
3. On the evidence before the Court, the Tribunal was correct to find that the applicant did not raise claims regarding the loan shark prior to the primary decision made by the Minister's delegate. The claims regarding the loan shark were raised for the first time in the pre-hearing information forms completed by the applicant and provided to the Tribunal. The Tribunal's reasons for decision reflect that the applicant then reiterated the claim regarding the loan shark, and provided oral evidence in support of this claim, at the hearing before the Tribunal. At least one of the evidentiary documents the applicant provided after the hearing, namely, an email from his mother, related to his claim to fear harm from a loan shark.
4. The circumstances specified in s 423A(1) were therefore met and the Tribunal was correct to identify that s 423A of the Migration Act applied.
5. The Tribunal's summary in its reasons of the effect of s 423A of the Migration Act was accurate. The Tribunal considered the reasons presented by the applicant as to why the claims and evidence were not presented earlier and was satisfied that the applicant did not have a reasonable explanation for not raising the claims or presenting the evidence before the delegate's primary decision. The finding that the applicant did not have a reasonable explanation was open to the Tribunal on the evidence before it.
6. The Tribunal was therefore required to draw an adverse inference in respect of the applicant's claims and evidence regarding his fear of harm from a loan shark. The applicant has not established that the Tribunal misapplied s 423A of the Migration Act.

Whether the Tribunal otherwise failed to consider the applicant's claim

1. Counsel for the Minister submitted that, insofar as the applicant's assertion of error is that that the Tribunal did not consider the applicant's claim or evidence, the Tribunal did consider the claims regarding the loan shark and found that there was no corroborative evidence provided by the applicant, even when the applicant was given an opportunity after the hearing to provide such evidence.
2. The Tribunal accurately and comprehensively summarised the applicant's written claims including, relevantly, the claims set out in his two pre-hearing information forms. It also provided a summary of the oral evidence the applicant gave to the Tribunal. I am unable to express any view of the accuracy and comprehensiveness of the Tribunal's summary of the oral submissions, as there is no transcript of the Tribunal hearing in evidence before the Court. However, there is no suggestion by the applicant that the summary is inaccurate or incomplete and nothing before the Court to suggest that the summary is inaccurate or incomplete.
3. I have interpreted the applicant's oral submissions generously as amounting to an allegation that the Tribunal failed to consider all of the additional claims raised by the applicant when his matter was before the Tribunal, and not simply the loan shark claim the subject of the s 423A inference.
4. The Tribunal's findings in relation to the loan shark claim were based not only on the s 423A inference, but also on its assessment of the evidence that was, and was not, before it. The Tribunal considered the email from the applicant's mother, and accepted that this reflected the oral evidence she would give. However, the Tribunal placed little weight on this evidence because of the lack of detail in it and because it considered that the letter differed in key aspects from the applicant's evidence. The Tribunal then said at [45] of its reasons:

The totality of the evidence supplied by the applicant is of insufficient weight to overcome the inference that the involvement of a loan shark was invented by the applicant to strengthen his claims. Despite being invited to do so, the applicant had not provided evidence of the discharge of his parents' mortgage, which he says was effected by the MYR 100,000 borrowed from the loan shark, or the transaction records of the Wise app on his phone, which would show the claimed regular repayments to the loan shark's bank account.

1. It is apparent from this that the Tribunal carefully considered the applicant's claims based on the loan shark and the evidence he provided in support of these claims. The Tribunal was not required to uncritically accept the applicant's claims. I accept the Minister's submission that the Tribunal has not failed to consider the applicant's claims and evidence relating to loan shark.
2. The Tribunal also considered other matters raised by the applicant in his written documents and oral submissions provided to the Tribunal. In particular, I note that:

(a) the Tribunal identified the oral and documentary evidence provided by the applicant in relation to his family and accepted that the applicant was married with three children, notwithstanding that he did not refer to them in his protection visa application;

(b) the Tribunal accepted that the applicant's eldest daughter had been diagnosed with a medical condition, which was an issue raised by the applicant for the first time before the Tribunal in explaining some of his financial hardship; and

(c) the Tribunal accepted that the applicant had a medical condition, which may impact his ability to work as a chef, but also had regard to other work the applicant had performed in recent years, the medical treatment he could seek and relevant country information, and found that there would be a range of employment options available to the applicant in Malaysia.

1. The applicant has not identified with any specificity the precise claims or evidence that he believes the Tribunal failed to consider. Having reviewed the pre-hearing information forms, the documentary evidence the applicant provided to the Tribunal and the Tribunal summary of the applicant's oral submissions, I have not identified any claim or evidence that the Tribunal was required to, but did not, consider. In reaching this finding, I am mindful that the Tribunal has summarised some evidence that it did not expressly refer to in its reasons under its heading, 'Consideration'. However, I am satisfied that the evidence that was not expressly referred to under the heading, 'Consideration' relates to matters that are either subsumed into findings of greater generality or in relation to which I do not draw an inference that they have been overlooked. For example, it was unnecessary for the Tribunal to make specific findings about whether the applicant's debt was inherited from his parents or arose from his daughter's medical expenses or some other reason, in circumstances where it rejected his claim to have borrowed money from a loan shark. Likewise, it was unnecessary for the Tribunal to expressly evaluate the applicant's evidence about the availability, or lack of availability, of protection from the police in relation to his claim to fear harm from a loan shark, or other assistance that may or may not be available to people with loan shark debts, in circumstances where the Tribunal rejected the applicant's claim to have borrowed money from a loan shark. Some of the evidence summarised by the Tribunal relates to the applicant's history and was not the subject of a finding on a material question of fact or evidence that was the basis of a finding on a material question of fact and therefore was not required to be referred to in the reasons given under s 430 of the Migration Act.
2. I accept the Minister's submission (advanced in relation to ground 3, but apposite also to the applicant's oral submissions) that the Tribunal considered all of the applicant's claims and evidence and that it was open to the Tribunal to engage in the process of reasoning it did and to make the findings it made on the material before it.
3. The matters raised in the applicant's oral submissions do not establish jurisdictional error.

1. Grounds 1 and 2 of the judicial review application merely assert factual matters about the procedural history relating to the protection visa application. They do not assert or establish any jurisdictional error in the Tribunal decision and are not addressed further.

1. Ground 3 of the judicial review application asserts that substantial justice was not provided to the applicant. The Minister submitted that in the absence of any particularisation, ground 3 is incapable of revealing any error in the Tribunal's decision. The Minister submitted that insofar as ground 3 can be interpreted as the Tribunal failing to comply with its procedural fairness obligations it must fail.
2. In circumstances where the applicant is self-represented, I have endeavoured to understand the ground the best I can notwithstanding that the applicant has not provided particulars. I do not dismiss the ground on the basis that it is not particularised.
3. I accept the Minister's submission that the Tribunal complied with its procedural fairness obligations as exhaustively defined within Division 4 of Part 7 of the Migration Act. The applicant was invited to attend a hearing before the Tribunal, as required by s 425 of the Migration Act, and I am satisfied that the notice of the invitation to attend a hearing complied with the requirements of s 425A of the Migration Act. There is no evidence before the Court to suggest that the invitation to attend the hearing was not a real and meaningful one.
4. The applicant had opportunities to provide the Tribunal with additional claims and evidence, which he did on 19 February 2024 and 31 May 2024. Following the hearing, the Tribunal also invited the applicant to submit additional information and evidence, which the applicant did on 18 June 2024. Further, the Tribunal discussed its specific concerns in conjunction with relevant country information with the applicant at the Tribunal hearing, and its reasons indicate that the applicant did not provide satisfactory responses to several of its concerns. Despite numerous opportunities, the applicant failed to provide sufficient material for the Tribunal to be satisfied that he had established his claims for protection.
5. The Minister further submitted, and I accept, that it was for the applicant to make his case before the Tribunal: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187]; see also s 5AAA of the Migration Act.
6. The Minister submitted that there was no information before the Tribunal which gave rise to any obligations under s 424A of the Migration Act. On consideration of the evidence before the Tribunal, I am satisfied that no obligations arose under s 424A of the Migration Act. I am satisfied that the Tribunal has complied with its procedural fairness obligations.
7. To the extent that ground 3 might be interpreted as an assertion that the Tribunal failed to comply with its procedural fairness obligations, it is not established.
8. The assertion that substantial justice was not provided to the applicant may also amount to an expression of disagreement with the Tribunal decision. As noted above, disagreement with the Tribunal decision does not, of itself, establish jurisdictional error. The applicant has not expressly asserted that the Tribunal decision was illogical, irrational or unreasonable. However, if this is what he intended to assert by claiming he was denied substantial justice, he has not established jurisdictional error. As indicated above, I accept the Minister's submission that the Tribunal considered all of the applicant's claims and evidence and that it was open to the Tribunal to engage in the process of reasoning that it did and to make the findings that it did. The Tribunal decision is not illogical, irrational or unreasonable.
9. Ground 3 is not established.

1. In circumstances where the applicant has not established that the Tribunal made a jurisdictional error, the application for judicial review must be dismissed.
2. For the avoidance of doubt, and noting the concerns the applicant raised when he sought an adjournment of the hearing, I also confirm that I have reviewed the Tribunal decision independently and do not identify any self-evident or obvious jurisdictional error in the Tribunal decision. Such an approach is consistent with the Court's obligation where an applicant is self-represented, as outlined in cases such as COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] and MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [100] and [112].

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.