GKS24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1097

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 on 26 July 2024. 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 raises two grounds in his application, which allege that the Tribunal did not consider country information and that the Tribunal did not accept the fact that the Chinese minority were discriminated against in Malaysia.
3. For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. His application for judicial review is therefore dismissed.

1. On 22 June 2018 the applicant applied for a protection visa. The applicant claimed that he had been involved in a gang in Malaysia, with the gang's activities including collecting protection fees, robberies and assassinations. He claimed that he decided to leave the gang, which does not allow its members to leave, and that his life would be in danger from the gang if he were to return to Malaysia.
2. On 11 February 2019 a delegate of the Minister refused to grant the applicant a protection visa and the applicant applied to the Tribunal for merits review of the delegate's decision on the same date.
3. On 12 April 2024 the Tribunal emailed the applicant and invited him to complete a pre-hearing information form. The applicant did not complete this form.
4. On 11 July 2024 the Tribunal wrote to the applicant and invited him to attend a hearing before the Tribunal on 26 July 2024. The Tribunal indicated in the hearing invitation that it had considered the material before it but was unable to make a favourable decision on this information alone.
5. On 24 July 2024 the applicant sent an email to the Tribunal attaching a response to the hearing invitation indicating that he would not participate in the hearing and consenting to the Tribunal making a decision on the papers. The applicant did not appear at the hearing on 26 July 2024.
6. On 26 July 2024 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

1. The Tribunal recorded that the applicant claimed in his protection visa application that he left Malaysia because he decided to leave, for a second time, a gang involved in protection rackets, robberies and assassinations, which was not allowed, and further that he had been found and tortured by the gang when he tried to leave previously and if he returned anywhere in Malaysia the group would find and kill him. The Tribunal noted that the applicant had not specified many particulars of his claim, including that he did not name the gang, say when he joined or first left the gang, what he did after he left, how he was found by the gang, how he was tortured, how long he stayed with the gang, how he left the gang a second time, what he did after he left again other than travel to Australia and he did not provide evidence of his claim to be a person in respect of whom Australia has protection obligations.
2. Based on country information, the Tribunal accepted that gangs continue to operate in Malaysia and that many street-level gang members were Indian Malaysians but that high-level crime was more typically associated with Chinese Malaysian gangs. The Tribunal accepted that some gangs engage in extortion and loan sharking. The Tribunal also accepted that the applicant is of Chinese ethnicity.
3. The Tribunal did not accept the applicant's claims were genuine by reason of:

(a) the lack of detail about the applicant's claims for protection;

(b) the lack of detail about what happened in the applicant's life over the six years since he arrived in Australia or his current circumstances; and

(c) the applicant's failure to provide any information after making the protection visa application and, in particular, after being advised that the Tribunal could not make a favourable decision on the information before it.

1. The Tribunal was therefore not satisfied that there is a real chance that the applicant will be harmed in the reasonably foreseeable future if he returned to Malaysia because he had left a gang, because it did not accept the claim as genuine.
2. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a) of the Migration Act or the alternative complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. The applicant filed his application for judicial review on 22 August 2024. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
2. The application for judicial review contains the following grounds:
   1. The country information supported my claim, but the Department and the AAT did not consider it. Gangs continue to operate in Malaysia, and in 2022, local media reported that police were monitoring 72 underworld gangs as potential threats to the country. High-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are challenging to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation. The quality of Malaysian police's responses varies depending on levels of training, capacity, and engagement in corruption. Malaysians perceive the police as one of the most corrupt institutions in the country.
   2. The Chinese minority was discriminated against in Malaysia, but the Department and the AAT did not accept this fact. The Chinese minority continue to feel they are victims of discrimination through the actions of public authorities who continue to favour Bumiputeras in terms of employment and education, the use of an exclusive Malay-language policy for state schools, and various other measures that are still in place in order to enhance the position of Malays in many areas of society. In 2015, a violent mob of two hundred people attacked a group of ethnic Chinese over an accusation that a Chinese man had sold a counterfeit phone to a Malay when, in fact, the Malay had stolen the phone. Such an incident demonstrates how fragile the peace is between communities.
3. Pursuant to an Order made by a Registrar of this Court on 6 November 2024, the applicant was required to file and serve, at least 28 days before the hearing, written submissions, any amended application and any additional evidence upon which he seeks to rely. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing, as required by the Order.
4. The evidence before the Court comprises:

(a) the court book filed on behalf of the Minister on 1 November 2024; and

(b) an affidavit of the applicant filed with his judicial review application annexing a copy of the Tribunal decision.

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) 98 ALJR 610; [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].
4. To the extent that the applicant's grounds refer to the decision made by the 'Department', which I will treat as a reference to the decision of the Minister's delegate, they cannot succeed because it is beyond the jurisdiction of the Court to review the delegate's decision. That is because the delegate's decision is a 'primary decision', within the meaning of s 476(4)(a) of the Migration Act, as it applied at the time of the judicial review application, and pursuant to s 476(2)(a) of the Migration Act, this Court does not have jurisdiction to review primary decisions.
5. To the extent that the applicant's grounds assert jurisdictional error in the Tribunal decision, they are addressed below.

The applicant's oral submissions at the hearing before the Court addressing the merits of the Tribunal decision

1. At the hearing before the Court, after I explained to the applicant the role of the Court in judicial review proceedings and referred him to the grounds in his application, the applicant was invited to make oral submissions to the Court.
2. The applicant submitted that:

(a) previously he was a gangster;

(b) he left the gang and then they were looking for him;

(c) because he knows a lot of their secrets, if he does not leave the country they will hurt him;

(d) the police in Malaysia usually have connections with the gangsters;

(e) over the past two years, Malaysia has a lot of gunshot matters and cases and all those happen in the applicant's home town; and

(f) the Malaysian gangsters are controlling everything and therefore he feels unsafe.

1. After the applicant made these submissions, I observed that the submissions relate to the reasons he believes he is entitled to a protection visa and, as I explained to him at the start of the hearing, the Court does not consider whether he meets the requirements for the grant of a protection visa. I then asked the applicant specific questions about his grounds of application and I address the submissions he made in response to my questions in the consideration of the grounds below.
2. Toward the end of his oral submissions in chief and in his reply submissions, the applicant made further submissions addressing the merits of why he believes he is entitled to a protection visa. The applicant submitted that he cannot return to Malaysia because he will be hurt and, having been a gang member, he knows how they deal with matters. If they have done something illegal, they can bribe the police. The applicant further submitted that even though it has been many years, they will still harm him because they always remember the bad things. He submitted that discrimination against the Chinese is real and is all over the website. He submitted that the killing with firearms is real and those that were killed were previous gang members. If he goes back, they will require him to follow their instructions and if he does not, they will have revenge against him.
3. As I explained to the applicant at the hearing, the Court cannot consider for itself whether he meets the criteria for a protection visa and can only consider whether the Tribunal made a jurisdictional error in its decision. The applicant's submissions as summarised above relate to why he believes he is entitled to a protection visa. They do not assert or establish jurisdictional error in the Tribunal decision.

1. By ground 1, the applicant asserts that the Tribunal failed to have regard to country information in relation to the existence of gangs in Malaysia. This ground needs to be considered in the context of [22] and [35] of the Tribunal's reasons for decision. In those paragraphs, the Tribunal said:
   1. According to the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Malaysia on 24 June 2024:

[2.30] Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street-level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability. In-country sources also reported high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation.

[5.5] ... Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members' responses varies depending on levels of training, capacity, and engagement in corruption.

[5. 6] ... Malaysians perceive the police as one of the most corrupt institutions in the country.

...

1. The Tribunal accepts that gangs continue to operate in Malaysia and that many street-level gang members were Indian Malaysians but that high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs and some gangs engage in extortion and loan sharking, based on the country information above. The Tribunal also accepts that the applicant is of Chinese ethnicity, based on what was claimed in the protection visa application.

1. At the hearing, I drew these paragraphs to the attention of the applicant, requested that they be translated by the interpreter for the applicant's benefit and then invited the applicant to explain to the Court why he believes the Tribunal did not consider the country information referred to in ground 1 in the light of these two paragraphs. In response, the applicant submitted that if the Tribunal had considered the country information, it would not have rejected his protection visa application. If the Tribunal understood that if he goes back he would face harm, it would not have disapproved his visa application.
2. Given that the Tribunal expressly referred to the country information the subject of ground 1 at [22] of its reasons and accepted facts about the operation of gangs in Malaysia based on the country information at [35], the applicant has not established that the Tribunal failed to consider the country information. As indicated in the summary of the Tribunal decision above, the reason the Tribunal did not accept the applicant's claims was not because it did not consider or accept the country information, but rather because it did not consider the applicant's claims to be genuine, having regard to the lack of detail in those claims and the lack of evidence to support those claims.
3. Ground 1 is not established.

1. By ground 2, the applicant asserts that the Tribunal did not accept that the Chinese minority was discriminated against in Malaysia.
2. I explained to the applicant at the hearing that I was unable to identify from the materials in the court book that he had claimed, when his matter was before the Tribunal or the Department, that he would face harm on the basis of his Chinese ethnicity. I invited the applicant to draw to my attention any information to show he had made this claim before the Tribunal. In response, the applicant discussed the 2015 incident of mob violence referred to in ground 2 of his application for judicial review. The applicant did not demonstrate to the Court that he had made this claim before the Tribunal.

As acknowledged by the Minister in his written submissions, the Tribunal was required to consider all claims made by the applicant and those which were not expressly articulated, but which arose squarely on the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60]. Conversely, the Tribunal was not required to consider claims which were not expressly articulated by the applicant and which did not emerge squarely on the material before the Tribunal.

1. The only articulation of the applicant's claims for protection that was before the Tribunal was that set out in his protection visa application dated 20 June 2018. The applicant indicated in that application that the ethnic group he belonged to was Chinese but he did not claim, anywhere in that application, that he would face harm or discrimination on account of his Chinese ethnicity. I am unable to identify any information in the evidence before the Court to suggest that the applicant claimed, before the Department or the Tribunal, harm or discrimination on account of his Chinese ethnicity, or that he put any of the factual information contained in ground 2 to the Tribunal or the Department prior to the Tribunal's decision. The matters referred to in ground 2 were therefore not the subject of an expressly articulated claim for protection advanced by the applicant and I accept the Minister's submission to this effect.
2. I also accept the Minister's submission that any claim to face harm or discrimination on the basis of the applicant's Chinese ethnicity did not arise squarely on the material before the Tribunal. The Tribunal noted in its reasons the information in the applicant's visa application regarding his previous employment and education. Neither party has identified anything else before the Tribunal that could possibly give rise to a finding that a claim on the basis of the applicant's ethnicity clearly emerged on the materials before the Tribunal.
3. In his reply submissions, the applicant referred to the submission advanced by Counsel for the Minister to the effect that it was up to the applicant to provide evidence to the Tribunal to support his claims for protection and questioned how he was supposed to give evidence. The applicant was afforded multiple opportunities before the Department and the Tribunal, including an invitation to attend a hearing before the Tribunal that the applicant declined to participate in, to provide evidence to support his claims and to better articulate his claims. The point made, appropriately, by Counsel for the Minister was that it was not for the Tribunal to try and identify further claims that the applicant could raise or to try to make the applicant's case for him. This submission was based on and consistent with s 5AAA of the Migration Act, which provides that it is an applicant's responsibility to 'specify all particulars of his or her claim' for protection, as well as well-established case law, including Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76] and Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [24].
4. The applicant has not established that the Tribunal had any obligation to consider whether he may face harm on account of his Chinese ethnicity. Ground 2 is therefore not established.

1. Given that the applicant has not established that the Tribunal made a jurisdictional error in its decision, it follows that the application for judicial review must be dismissed.

I certify that the preceding thirty-nine (39) 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.