HYZ24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1141

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 24 September 2024, affirming a decision made by a delegate of the First Respondent (the delegate) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (the visa).
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of Malaysia. The applicant arrived in Australia on 3 July 2018 as the holder of an Electronic Travel Authority visa.
2. On 27 September 2018, the applicant applied for the visa, claiming to fear harm on the basis of economic hardship.
3. On 24 April 2019, the delegate refused to grant the visa. On 8 May 2019, the applicant applied to the Tribunal for review of the delegate's decision.
4. The applicant was invited to attend a hearing on 18 October 2024, as the Tribunal was not satisfied that it could decide the review in the applicant's favour on the basis of the material before it.
5. On 5 September 2024, the applicant wrote to the Tribunal and advised that she did not wish to participate in the hearing and that she consented to the Tribunal making its decision on the papers.
6. On 11 September 2024, the Tribunal confirmed with the applicant, in writing, that it would act on that indication.
7. On 24 September 2024, the Tribunal affirmed the delegate's decision.

1. The Tribunal was satisfied that the hearing invitation met the requirements found in ss 425A and 426 of the Migration Act 1958 (Cth) (the Act) [11]. The Tribunal was satisfied that the applicant consented to the Tribunal deciding the review without the applicant appearing for a hearing, as such the hearing scheduled on 18 October 2024 was vacated pursuant to s 435(3).
2. The Tribunal summarised the relevant law to be assessed in considering this application.
3. The Tribunal had regard to the criteria for a protection visa in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) and the Ministerial Direction No. 84. The Tribunal took into account 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT).
4. The Tribunal noted s 5AAA of the Act, which encourages applicants to provide all claims and evidence in support of their application.
5. The Tribunal accepted that the applicant held no other citizenship or right to enter or reside in any other country.
6. Information in the applicant's protection visa application form reveals:

(a) She was born in Malaysia;

(b) She is Malaysian Chinese and of the Buddhist faith;

(c) Her relationship status is 'separated'; and

(d) She has no children.

1. Further, the applicant had never been formally employed in Malaysia, however, she had engaged in farming to financially support herself.
2. The applicant stated she left Malaysia because of "the economic problem in the country", but she did not experience harm, and did not think she would be harmed or mistreated if returned to Malaysia. The applicant stated on her visa application form: "worst come to worst I will be back at the village and farming."
3. In a pre-hearing information form, the applicant advised the Tribunal of her claims for protection, which are as follows [30]:
   1. They left Malaysia due to the economic problems in the country.
   2. They did not relocate as they did not have any education and it would not help with the economic problem.
   3. Authorities cannot protect them from low incomes or economic problems.
   4. If they returned to Malaysia, they would go back to the village and continue farming.
4. In determining whether the applicant is a refugee, the Tribunal had regard to s 5J(1)(a) of the Act. The Tribunal was not satisfied the applicant identified a subjective fear of persecution for any of the reasons such as race, religion, nationality, political opinion or because she was a member of a particular social group.
5. Economic hardship can constitute a form of serious harm however, whilst the applicant has identified economic problems as the reason why she left Malaysia, economic hardship 'must actually threaten the person's capacity to subsist', that is, to continue to exist or remain in being: See SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 at [23]; MZYPB v Minister for Immigration & Anor [2012] FMCA 226 at [13]. The applicant never asserted that her capacity to subsist is at threat, but rather that she would return to farming. The applicant failed to identify how the economic problems would affect her in a way that is systematic or discriminatory, as opposed to the circumstances that affect the Malaysian population as a whole.
6. The Tribunal was not satisfied on the material before it that the applicant had a well-founded fear of persecution if returned to Malaysia. It therefore followed that the Tribunal concluded that the applicant was not a refugee and therefore not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.
7. The Tribunal was required to determine whether the applicant was owed complementary protection under s 36(2)(aa) from [36] to [50], and concluded that there was no basis upon which it could be satisfied she faced a real risk of suffering significant harm if she was removed from Australia to Malaysia. This was in circumstances where the applicant had conceded that if she were required to go back to Malaysia, she would resume farming.
8. The Tribunal affirmed the decision under review

1. The applicant advances three grounds of judicial review contained in an Originating Application filed with the Court on 2 October 2024. They are as follows (errors as in the original):
   1. I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced harm from discrimination and harassment in Malaysia because of Malaysia economy down turn. If I return to Malaysia, I will facing mental stress and depression abused by jobless and unable to survive. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia. However, the case officer failed to investigate the applicant's claims by misconstruing the details as set out in s36(2)(a), s36(2C), s36(3), s5H(1) of the Act and Schedule 2 to the Migration Regulations 1994. The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia.
   2. I believe that the AAT case officer made a jurisdiction error by affirming the decision not to grant the applicant a protection visa. The AAT case officer failed to consider my claim or integer of a claim and made an unreasonable decision.
   3. I seek for my claims to be given a second chance for me to provide more details to straighter my claims but not just to concern.

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent's written submissions had been translated for her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.
2. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
3. The applicant filed written submissions on 30 June 2025. The submissions consisted of four paragraphs accompanied by subheadings. They are as follows:
   1. Introduction and Background

I, CHT, respectfully make these submissions in support of my judicial review application concerning the decision by the Department of Home Affairs about my Bridging Visa A (Subclass 010). I am currently living in Australia and working for the Hoang Huy Nguyen Family Trust. I have complied with all visa conditions and laws during my time here. I am requesting the Court for the permission to stay in Australia, so I can continue to support my family and manage my ongoing health issues.

1. Personal and Family Circumstances

I am the sole provider for my daughter, CPS, who started university in Malaysia in November 2024. I also support my elderly mother. I send financial support home regularly to cover their daily expenses and education costs. If I am required to return to Malaysia, I would struggle to find work because I have limited formal education and there are fewer job opportunities available to me. This would make it very difficult for me to support my loved ones.

1. Medical and Financial Considerations

I am currently managing thalassemia, carpal tunnel syndrome, and severe iron deficiency. These conditions affect my energy and concentration and require ongoing care. I have access to proper medical support and employment here in Australia, which helps me stay healthy and self-sufficient. I am also repaying debts from earlier financial hardship. My work in Australia allows me to meet those obligations in a responsible way without placing more pressure on my family.

1. Conclusion and Relief Sought

With deep respect, I ask the Court to:

• Set aside the decision made by the Department of Home Affairs regarding my Bridging Visa A (Subclass 010); and
• Allow me to continue living and working lawfully in Australia so I can support my daughter, my mother, manage my health, and meet my financial responsibilities.
• I remain committed to obeying all laws and visa conditions and I am truly grateful for the Court's time and consideration of my request.
• I am currently managing thalassemia, carpal tunnel syndrome, and severe iron deficiency. These conditions affect my energy and concentration and require ongoing care. I have access to proper medical support and employment here in Australia, which helps me stay healthy and self-sufficient.
• I am also repaying debts from earlier financial hardship. My work in Australia allows me to meet those obligations in a responsible way without placing more pressure on my family.

1. Along with her written submissions, the applicant also attached:
   • A pay slip dated 16 June 2025 to 22 June 2025 confirming the applicant's employment with Hoang Huy Nguyen Family Trust.
   • Birth certificate and Malaysian ID showing her relationship with her daughter, and documents showing her daughter's university enrolment and quarterly tuition payments.
   • Medical certificate from Batavia Health outlining the applicant's current health conditions and confirming her fitness to work.
2. The respondent objected to these documents being before the Court on the basis that they were either not before the Tribunal or post-dated the Tribunal decision. Accordingly, the Court ignored these documents and only considered the applicant's written submissions.

1. Ground one consists of a disagreement with the Tribunal's findings and invites the Court to undertake a merits review of the decision.
2. The Tribunal correctly identified the refugee criteria at [14] - [18], and the complementary criterion at [36] - [48], and correctly applied the relevant criteria in undertaking its assessment of the applicant's claims.
3. The Tribunal was not satisfied that the applicant would suffer significant harm based on the limited information before it. This was a finding open to the Tribunal and justified within its written reasons. The Tribunal's decision cannot be taken to be unreasonable in circumstances where the applicant elected not to present any further evidence at a hearing.
4. The applicant's references to ss 36(2C) and 36(3) are misconceived, and there is nothing to suggest that either section is relevant to the applicant.
5. Ground two does not identify which claim or integer the Tribunal failed to consider. The Tribunal set out the claims before the Department and before the Tribunal as taken from the pre-hearing information form. The Tribunal indicated in its decision that it could not find a subjective, let alone objective, fear of persecution, and the applicant acknowledged that if she needed to go back to Malaysia, she would resume farming.
6. The first respondent presses that the Tribunal decision was open, justified in its reasons and cannot be said to have been unreasonable. The applicant's own evidence indicated that she had not experienced any harm in Malaysia and did not think she would face any such harm if returned.
7. The Tribunal was not required to make the applicant's case for her. It was incumbent upon the applicant to provide her evidence and arguments to enable the Tribunal to establish the relevant facts.
8. The applicant's third ground is a prayer to be given a "second chance". The Court cannot remit the matter to the Tribunal unless jurisdictional error is established. The applicant in this case chose not to avail herself of the opportunity to present her claims before the Tribunal.
9. The Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Act. It invited the applicant to attend a hearing in accordance with these obligations. The hearing notice transmitted to the applicant put her on notice of the actions that could be taken should she consent to a decision on the papers.
10. The applicant's choice not to present her claims and evidence resulted in the inevitable consequence of the Tribunal affirming the delegate's decision.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
2. It was for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to "afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence": Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [82].
3. The applicant's written submissions do not articulate any jurisdictional error on the part of the Tribunal, rather, they simply go to the merits of her claim that she wishes to stay in Australia in order to work and support her mother and daughter back in Malaysia. The Court does not doubt the genuineness of the applicant's statements and her reasons for wishing to stay in Australia. However, they do not point towards the applicant meeting the relevant criteria for the grant of a protection visa.

1. The Court agrees with the first respondent's submission that ground one rises no higher than expressing disagreement with the Tribunal's findings and invites the Court to undertake impermissible merits review.
2. The Court is satisfied that the Tribunal correctly identified the refugee criteria and complementary protection criteria, and then correctly applied those criteria when considering the applicant's claims.
3. The applicant conceded that if she were returned to Malaysia, she would resume farming. There was nothing in the evidence before the Tribunal that indicated the applicant was likely to suffer harm on the basis that she had a well-founded fear of persecution and was unable or unwilling to avail herself of the protection of that country. There is nothing to indicate she had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor was there a real risk that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, the applicant would suffer significant harm.
4. The Court is satisfied that the Tribunal complied with all of its procedural fairness requirements, in that it properly invited the applicant to attend a Tribunal hearing for the purpose of giving evidence in making submissions. The applicant declined the opportunity to attend the Tribunal hearing. Further, the Court is satisfied there is nothing illogical, irrational, or legally unreasonable in the conclusion arrived at by the Tribunal. The Court is satisfied it was open to the Tribunal to make findings based on the evidence that was before it and for the reasons it gave. Ground one has no merit.

1. Ground two is a claim that the Tribunal failed to consider the applicant's claim or integer of a claim, and in doing so made an unreasonable decision. No particulars are provided as to what integer of the applicant's claim was not considered.
2. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
3. The Court is not satisfied that the Tribunal failed to consider any part of the applicant's claims. Further, for the reasons set out above, the Court is not satisfied that there was anything legally unreasonable in the Tribunal's decision. Ground two has no merit.

1. Ground three simply asks the applicant to be given a second chance. It does not identify any jurisdictional error and is not a proper ground of review. It has no merit.
2. As the applicant is unrepresented, the Court perused the relevant Court book and satisfied itself that there was no unarticulated jurisdictional error present in the Tribunal decision.

1. Accordingly, the Court has no option but to dismiss the application.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.