ISS24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1234

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 9 October 2024, affirming a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) refusing 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 June 2019 as the holder of an Electronic Travel Authority (ETA) visa.
2. On 6 July 2019, the applicant applied for the visa. The applicant claimed the following in her protection visa application:

She is seeking protection because her friend, Mr N, invited her into an 'investment plan' which she promoted to her family and friends before Mr N disappeared. Those who invested demanded a refund and attended her business place and harmed her, came to her house with a pistol and reported her to the police. One of the investors had a powerful connection in government, and his bodyguard harmed her very badly and warned they would kill her if she could not repay the money invested.

1. On 30 August 2019, the delegate refused to grant the applicant the visa. On 26 September 2019, the applicant sought merits review of the decision with the Tribunal.
2. On 28 August 2024, the applicant submitted a pre-hearing information form. The applicant provided similar information about her claims as that contained in her visa application.
3. The applicant was invited to attend a Tribunal hearing listed on 15 November 2024. The Tribunal also requested further information to be submitted by 30 October 2024 in relation to her visa application and whether the applicant or her family were still being contacted by investors.
4. On 1 October 2024, the applicant advised the Tribunal in writing that she did not wish to participate in a hearing, and that she consented to the Tribunal making a decision on the papers.
5. On 2 October 2024, the Tribunal confirmed with the applicant that it would act on her advice and proceed to cancel the hearing.
6. On 3 October 2024, the Tribunal sent the applicant an email to confirm whether she intended to reply to the request for information. The applicant did not respond to that email.
7. On 9 October 2024, a Tribunal Officer rang the applicant and asked her if she would be submitting any further documents or information. The applicant informed the Tribunal Officer that she would not be doing so.
8. On 9 October 2024, the Tribunal affirmed the decision not to grant the applicant the visa.

1. The Tribunal summarised the relevant law to be assessed in considering this application.
2. The Tribunal had regard to the criteria for a protection visa in s 36 of the Migration Act 1958 (Cth) (the Act), 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, as well as country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT).
3. The Tribunal was satisfied that the applicant was a national of Malaysia and that Malaysia was the receiving country [25].
4. Information in the applicant's protection visa application form reveals:

a. she is Malaysian Chinese and of the Christian faith;

b. she was born in Pulau Pinang, Malaysia;

c. she has not lived anywhere else in Malaysia; and

d. her relationship status is 'never married'.

1. As to why the applicant left Malaysia, she stated the following in her 2019 visa application form:

[In early] 2017, I have managed my own business retail shop with selling consumers health products. One of the days, my friend Mr N come to visited me and selling high return investment plan with monthly return 20% margin. At that time, I have made an investment almost RM 70,000 and continuously 6 month I have received the profit return from my friend.

[M]y friend ask[ed] me to be the sales agent for promote the investment plan to my other friends. I have start to promote the investment plan to my relative and other friends. There are many closed deals, and all my customers received their profit return on time.

[In] August 2018, my friend suddenly disappears and his company closed down. All of my investors come to my business place and ask for refund their investment and harm me.

Some of the investors have make a report to police department and the authority department have call me up for investigation. They lodge a report to the authorities and I'm the only one who was convicted. The investors come to my house to harm me and family member.

One of the investors having "DATO S" title Mr K with very powerful network in government department, his bodyguard harmed me very badly and warning will kill me if I not to settle by refund all the money.

My family member advises me to leave a country for security purpose because some of the investor they come to my house with pistol and mention that if I cannot make a fully refund then they will kill me. I have report to police department, but there are no action or news reply from the police department.

1. The applicant stated the following in regard to what she expected to happen if she returned to Malaysia:
   • I may [be] harm[ed] again by the investors or kill[ed] by them.
   • I will be harmed [or] captured by those investors although it was none of my mistake.
2. The applicant stated that she would not be able to move to a different part of Malaysia to avoid harm as " ....the authorities can easily track me. The investors mention to kill me with showed pistol, so I no want to take a risk." Further that, "the investors had wide network in whole Malaysia state. I will certainly be caught by them if I return to home country." The applicant stated that the police in Malaysia would not be able to give her 24-hour protection, and that she had made a report to the police department, however they were unable to catch the offenders.
3. In a pre-hearing information form provided to the Tribunal on 28 August 2024, the applicant mainly repeated a summarised version of the original protection visa claims. On 18 September 2024, the Tribunal sent a more detailed request for information to the applicant.
4. In relation to the applicant's claim that she received a conviction, the Tribunal requested the applicant to:
   1. Please explain what offence you were convicted of, when you received the conviction, and the penalty imposed on you.
   2. Please provide evidence of your conviction - for example, a Police Clearance Certificate issued by the Royal Malaysian Police which records the conviction.
5. In relation to the applicant's claim that investors came to her house and harmed her, the Tribunal requested the applicant to:
   1. Please provide information about who came to your home and when.
   2. Please explain what harm you personally experienced.
6. As to the report the applicant made to the police department, she was further requested to:
   1. Please provide information about when you made the report and to which police station.
   2. Please explain whether you took any steps to follow up with the police when you did not receive a reply.
7. The Tribunal also requested information regarding whether, as of 2024, the applicant or her family in Malaysia were still being contacted by investors about what happened in 2018.
8. The applicant did not respond to this request and told a Tribunal Officer who contacted her on 9 October 2024 that she did not intend to submit any further information or documents.
9. 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 is a member of a particular social group [36]. Rather, the applicant had identified a set of circumstances arising from an 'investment plan' and feared harm related to the angry investors who were demanding refunds from her, which she could not pay.
10. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution. The Tribunal found that the applicant was not a refugee or a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
11. The Tribunal considered whether the applicant was owed complementary protection and made the following findings:
    • If the applicant were to be physically assaulted by an angry investor, as she claims has happened in the past and of which she fears may happen again, the Tribunal was satisfied this would constitute a type of 'significant harm' per s 36(2A). The Tribunal considered that this type of harm would fall under the term 'cruel treatment', which is further defined under s 5(1) of the Act [42].
    • In considering whether there were substantial grounds for believing that there is a real risk, the Tribunal was not prepared to accept that the applicant had experienced any harm before departing Malaysia and was not satisfied that there was a real risk she would suffer significant harm, in the reasonably foreseeable future, if she returned to Malaysia. This was in circumstances where the applicant had provided vague information and no corroborative evidence, where she had refused to give the requested particulars to substantiate her claims or further explain the claims that she had made regarding her conviction and police report. Further, the applicant did not confirm whether the angry investors remained a threat to her as of 2024 [43].
    • The Tribunal concluded that the combination of the following aspects meant it was not satisfied that that the applicant was owed protection obligations under s 36(2)(aa) of the Act:
      • the generalised nature of the applicant's claims in the visa application and the prehearing information form;
      • the lack of corroborating evidence of any kind;
      • the applicant's deliberate decision not to subsequently provide additional information or evidence to bolster her claims, either in response to a request for further information or by attending a hearing to expand upon them in person; and
      • the passage of several years since the claimed events took place.
12. The Tribunal affirmed the decision under review not to grant the applicant a visa.

1. The applicant advances three grounds of judicial review contained in an Originating Application filed with the Court on 22 October 2024. They are as follows:
   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 illegal debt collectors sent by investors because I was invested investors money into multi level marketing company but end up the multi level marketing company closed. My family and I shall face harm from illegal debt collectors if found that I return to Malaysia. If I have return to Malaysia may face harm or kill by illegal debt collectors, because local authorities cannot help or protect me for 24 hours. 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 for parts of the hearing. The Court was satisfied that the applicant was able to fully participate in the hearing with the assistance of the interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books, that the first respondent's written submissions had been given to her and that she understood them.
2. 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 wish to.
3. 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.
4. The applicant filed a document with the Court on 30 June 2025, which purports to be her outline of submissions. The document annexes a variety of documents, including:
   • A report from Lay Peng Tee, a registered psychologist, dated 25 June 2025. This report indicated the applicant is suffering from clinically significant distress, which manifests as severe anxiety, intrusive thoughts, emotional dysregulation and difficulties concentrating. The applicant is in need of ongoing therapeutic intervention to support her safety and well-being.
   • A personal statement that included previously undisclosed domestic violence, which she says was an additional reason to flee Malaysia, notwithstanding the fact that she has three children who are still in Malaysia.
   • A letter dated 29 June 2025, stating she regrets not attending the Tribunal hearing, however, she was not mentally well enough to do so.
   • Photographs, she states, are from Facebook that show her previous partner.
   • Photographs showing the applicant and her three children.
   • A certificate of baptism dated 10 December 2019.
   • Two Birth certificates.
   • A Letter from Southcare dated 23 June 2015, confirming the applicant is employed as a Community Support Worker.
5. The Court explained to the applicant that it was unable to consider material or claims that were not before the Tribunal. This was due to the fact that the Court was undertaking judicial review, not merits review. Accordingly, the documents that were not before the Tribunal and those part of her submissions that made new claims were ignored by the Court.
6. In her oral submissions, the applicant reiterated that she did not attend the Tribunal hearing due to mental health issues. The Court accepts this is the case based on the psychologist's report and the applicant's presentation during the hearing before the Court.
7. The applicant reiterated her fears that if returned, she would be seriously harmed by angry investors, and in particular Mr K, who is a powerful man in Malaysia. The applicant would have to live with her parents, and it would not take long for her presence in Malaysia to become known.

1. As to Ground One, the first respondent argues that to the extent that the ground disagrees with the Tribunal's findings, the applicant seeks impermissible merits review. However, where the applicant refers to the delegate ('case officer'), this ground can similarly not be reviewed by the Court.
2. The argument that the Tribunal misconstrued various legal provisions must be rejected for the following reasons:
   • In relation to ss 36(2)(a) and 5H(1), the Tribunal correctly summarised the legal principles and applied them to the applicant's claim. The applicant's claims were personalised to her as an individual and did not relate to her race, religion, nationality, political opinion or a membership of a particular social group. Therefore, the applicant could not be a refugee within the meaning of the term.
   • Section 36(2C) (referred to by the applicant in her grounds of judicial review) has no application to the applicant's current case.
   • The Tribunal correctly found that s 36(3) was inapplicable as the applicant had not provided any evidence to show that she had a right to enter and remain in a third country.
   • The Tribunal correctly assessed whether the applicant satisfied the refugee or complementary protection criteria at the time of its decision and was not satisfied that she did, therefore, they it did not go any further.
3. The applicant claims that there was a failure to investigate her claims. The relevant legal authorities accept that it is not for the Tribunal to investigate an applicant's claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]. The Tribunal referenced s 5AAA of the Act, which provided that it is the responsibility of the applicant, advancing their claims, to identify them and provide supporting evidence.
4. The Tribunal invited the applicant to comment on matters that it required further clarification on. The applicant did not avail herself of this opportunity. The Tribunal took an active role in seeking further information from the applicant and giving her the opportunity to fully participate; however, it was not obligated to go any further. The first respondent submits that there was no further investigation, which was so obvious that it required the Tribunal to make an enquiry.
5. As to Ground Two, the Tribunal addressed the applicant's claims raised in the application from at [29] - [33], and had regard to all of the evidence. It cannot be said that the Tribunal failed to consider a claim or an integer of a claim as advanced by the applicant in its grounds.
6. Where the ground alleges that the Tribunal's reasons were unreasonable, this is a ground of impermissible merits review. The Tribunal could not be satisfied on the face of bare claims and in an absence of information, that the applicant was at chance or risk of harm. In circumstances where the applicant did not provide anything more than a completed protection visa application form and another form which repeated its content, then it cannot be said that a different decision-maker acting on the same materials could not have come to the same conclusion.

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 first,

... 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 of 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 well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant_: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs_ [1994] FCA 1253; (1994) 52 FCR 437 at 451.
2. Nor does the Tribunal Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
3. It is well settled that country information and the weight given to that information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
4. 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].
5. 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 Lay 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].
6. First, the Court is satisfied that the Tribunal complied with all procedural fairness requirements. The Tribunal actively sought to obtain further information from the applicant. The Tribunal invited the applicant to attend a Tribunal hearing to give evidence and make submissions. Whilst the Court accepts that the applicant, due to her mental health issues, felt that she was unable to attend the Tribunal hearing and provide further information as requested, this denied her the opportunity to make further claims about the domestic violence she claims she suffered at the hands of her previous partner. As a result, the Court is unable to consider this claim further.
7. The only claim that the Court can consider is that the applicant may suffer harm from investors whom she convinced to engage with a fraudster who took their money in what appears to have been a 'Ponzi Scheme'. This claim was considered in detail by the Tribunal at [29] - [38]. The Tribunal correctly found that the applicant did not have a well-founded fear of persecution insofar as that legal concept is defined in the Act.
8. The Tribunal then went on to consider whether or not the applicant was owed complementary protection. The Court is satisfied the Tribunal correctly found, noting the paucity of the evidence that was before it, that the applicant had not experienced any harm before departing Malaysia and it was not satisfied there was a real risk that she would suffer significant harm in the reasonably foreseeable future if she returned to Malaysia.

1. Ground One consists of a recitation that the applicant will face harm and will be killed by illegal debt collectors if she returned to Malaysia. The applicant states the 'case officer' failed to investigate her claims. The Court notes that it has no jurisdiction to review the decision of the delegate, if that is who the applicant is referring to as a 'case officer'.
2. If the applicant is referring to the Tribunal, the Court notes that the Tribunal made multiple attempts to seek further information from the applicant, which she did not respond to. Further, the applicant failed to attend the Tribunal hearing to give evidence and present arguments. As set out above, there was no duty on the Tribunal to allow the applicant every opportunity to present his or her best possible case. This aspect of Ground One has no merit.
3. In relation to the broad-brush claim and the balance of Ground One, that the Tribunal misconstrued the details set out in ss 36(2)(a), 36(2C), 36(3), 5H(1) of the Act and Schedule 2 of the Regulations, no particulars have been provided as to what error the Tribunal made. For this reason alone, this aspect of the grounds of judicial review can be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
4. The Court is not satisfied that in relation to ss 36(2)(a) and 5H(1), the Tribunal correctly applied these provisions. The applicant's claims related to a personal matter, rather than a claim to seek protection based on her race, religion, nationality, political opinion or membership of a particular social group. The applicant's claims related to fear in the hands of disgruntled investors who had lost their money.
5. The Court is satisfied that s 36(2C) has no application in this matter as the applicant had not claimed or provided evidence she had a right to enter and remain in the third country. Further, as required by Schedule 2 to the Regulations, the Tribunal correctly assessed whether the applicant satisfied the refugee complementary protection criteria at the time of its decision. The Tribunal was not required to go further on the basis that it was not satisfied the applicant was owed protection. Ground One has no merit.

1. Ground Two is a claim that the Tribunal failed to consider the applicant's claim, an integer of her claim, or made an unreasonable decision.
2. First, the Court is satisfied that the Tribunal properly considered all of the applicant's claims that were before it. The Court is satisfied that it properly took into account all the evidence that was before it, actively engaged with it, and considered that, but for the reasons it gave, it was unable to come to a conclusion that favoured the applicant.
3. Second, the Court is not satisfied that there was anything irrational, illogical or otherwise legally unreasonable in the decision arrived at by the Tribunal. As noted by the first respondent, this claim goes no higher than seeking the Court to engage in impermissible merits review. Ground Two has no merit.
4. As the applicant is unrepresented, the Court has carefully perused the relevant Court books and Tribunal decision record. The Court is unable to ascertain any un-articulated jurisdictional error.

1. While having some considerable sympathy for the applicant, given her clear and documented mental health issues, the Court is obliged to review the Tribunal's decision on the law, and not on the basis of any sympathy for the applicant. As there is no merit in the applicant's claims that there was a jurisdictional error in the Tribunal's decision, the Court has no option other than to dismiss the application.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.