JAZ24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 971

1. The applicant is a citizen of Malaysia. He first arrived in Australia on 1 May 2017 pursuant to a UD 601 electronic travel authority visa. That visa ceased on 1 August 2017, and the applicant became an unlawful non-citizen. He applied for a Protection (Class XA) Subclass 866 visa on 8 November 2018, and an associated bridging visa was granted to him.
2. In the visa application, the applicant said that he left Malaysia because of the economy issue. He said that he experienced harm in Malaysia, being that he cannot support his family and himself because he has no job. He said that he sought help within Malaysia and his friend told him to come to Australia. He said that the economic issue is occurring throughout Malaysia, but has failed because of the economy issues in Malaysia. He said that if he is required to return to Malaysia, he will have no job and cannot support himself or his family.
3. On 25 February 2019, the delegate refused to grant the applicant a protection visa. On 7 March 2019, the applicant sought a review of the delegate's decision in the Administrative Appeals Tribunal.
4. On 21 May 2024, the Tribunal sent the applicant a prehearing information form. The applicant returned the form the next day. The form provided the applicant with the opportunity to give any more information about his claims for protection or whether there were any other reasons why he was afraid to return to his home country. In answer to that question, the applicant wrote:

They departed Malaysia because of economic reasons. They are unemployed and cannot support themselves and their family. They do not believe the authorities can protect them because the Malaysia economy has affected the whole country.

1. The Tribunal received that remark in the third person and drew a conclusion that the applicant uses the pronouns they/them. However, what occurred was that the applicant extracted those elements of the answer from the delegate's decision, which explains the confusion. In any event, the applicant confirmed in the hearing before me today that he uses male pronouns and is referred to as "Mister".
2. On 4 September 2024, the Tribunal sent the applicant an invitation to attend a hearing that was scheduled for 8 October 2024 to give evidence and present arguments relating to the issues in his case. The applicant returned the form on 1 October 2024. He completed the form to state that in answer to the question of whether he will take part in the hearing that had been scheduled, answered:

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

1. On 4 October 2024, the Tribunal affirmed the delegate's decision.
2. The Tribunal set out the applicant's claims and considered his election for the Tribunal to make a decision on the papers. The Tribunal satisfied itself, with reference to the applicant's engagement with the Tribunal and the evidence that he was able to read, speak and write English, that he genuinely consented to the Tribunal making a decision without his participation in the hearing.
3. The Tribunal set out the country information that it deemed relevant to the applicant's claims and set out the criteria for a protection visa under both the refugee criterion and the complementary protection criterion. In considering the applicant's claims and evidence, the Tribunal found that the applicant made the visa application approximately 18 months after arriving in Australia and observed that there was no explanation for the delay.
4. The Tribunal also noted the claim made by the applicant that he will not be able to find work if he returns to Malaysia and that he will be unable to support himself and his family. It noted the claim that he had applied for many jobs in Malaysia and that the authorities would not protect him because the economic issues are countrywide. The Tribunal noted the applicant did not specify any other particulars or give any evidence in support of his employment history or his job applications, nor with respect to his claim to be a person in respect of whom Australia has protection obligations.
5. The Tribunal assessed that the applicant did not include any details of living family members in the visa application, but he did say that there were no members of the same family unit, and he was not in contact with any family members back in Malaysia. The Tribunal considered this against the applicant's claims that he was supported financially by family in Malaysia.
6. The Tribunal noted that the applicant had not provided any information about his life since arriving in Australia over seven years ago, or about his current circumstances. The Tribunal did not accept the applicant's claim was genuine, by reason generally of the unexplained delay in making the visa application, the reference to the claim of harm in being unable to support family, who the Tribunal considered either do not exist because they were not listed in the application, or are no longer alive, or with whom the applicant was not in contact, and also the lack of details in his personal history and his claims for protection.
7. With reference to country information about the unemployment rate in Malaysia and labour shortages, the Tribunal did not accept that the applicant unsuccessfully applied for many jobs and failed, nor that in the reasonably foreseeable future he will be unable to obtain work in Malaysia because of the economy. The Tribunal noted that these allegations were bare and that the Tribunal was not required to accept uncritically everything put forward.
8. The Tribunal was accordingly not satisfied that there was a real chance that the applicant will be harmed on economic grounds in the reasonably foreseeable future if he returned to Malaysia. The Tribunal accepted that the applicant may wish to remain in Australia for economic reasons, but it found that there is nothing to indicate or suggest that he would be denied the opportunity to work, or would be unable to find any work in Malaysia at all.
9. The Tribunal accepted that the applicant would have to resettle in Malaysia, including finding employment, and that he may even have less disposable income than if he were to remain in Australia, but the Tribunal did not accept that the applicant faces a real chance of suffering persecution involving serious harm due to economic issues or circumstances if he was to return to Malaysia.
10. The Tribunal then considered the complementary protection criteria and found that there are not substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. It found that the economic situation in Malaysia is one faced by the population generally, as the applicant in the visa application and the prehearing information form acknowledged, and found that the applicant does not face any risk personally. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth).
11. On 24 October 2024, the applicant applied for judicial review of the Tribunal's decision in this Court. He has been self-represented throughout these proceedings. He referred today to being assisted by a migration agent in drafting the judicial review application and, I think to an extent, in preparing for the hearing today, but there has not been any legal representative on the record for the applicant in the proceedings and I have proceeded on the basis that he is a self-represented party.
12. There are three grounds of review that are pleaded in the judicial review application. As the applicant was not represented, it is ordinarily appropriate for that person to be given an opportunity to explain orally the matters that they say go to the grounds of review. Further to the observations made by Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the consequences of failing to particularise a ground depend on their circumstances, and it will rarely be appropriate to dismiss an appeal or a review ground in a migration case for lack of particularisation where there is an application for relief arising out of an application for a protection visa and the person is self-represented.
13. With this in mind, I asked the applicant whether there were any amendments or additions to the grounds of review that he has pleaded, or to otherwise expand upon them, including to give particulars to help me understand the errors that I was being asked to consider. In my view, that was also appropriate because there is a language barrier, and the fact that the applicant did not file and serve any written submissions, amended application or additional evidence in accordance with the orders that were made by the Registrar on 21 January 2025.
14. I also set out for the applicant, in an overview sense, the limitations on the Court's jurisdiction, that it is not permitted to conduct a review of the merits of the Tribunal's decision and that it did not have the power to consider whether he met the criteria for the grant of a visa and the power to grant him a visa.
15. I set out for the applicant some of the more commonly pleaded categories of jurisdictional error and explained to him that in order to be entitled to the relief he is seeking, that he must establish the Tribunal's decision is affected by jurisdictional error. I told the applicant that such an error is made out if the Tribunal exceeds the limits of its decision-making authority that is conferred on it, and is material in the sense that it could have realistically deprived him of a successful outcome.
16. When I asked the applicant to expand upon his grounds of review if he wished, he explained to me that the economic situation in Malaysia is not so good, that he has no skills, that the pay scale in Malaysia is low, and in the context of a claim made that he will be facing mental stress, he said that his age and the competitive employment market in Malaysia were relevant to that matter.
17. Notwithstanding the broad proposition, of course, that in general terms an applicant has the onus of establishing jurisdictional error, I have endeavoured to assess the categories of jurisdictional error that are contained within or are apparent in the grounds of review, and consider them based on the materials that I have and the materials that are evident in the court book, and the submissions that the applicant was able to make for me. In doing that, I took the applicant through each ground, one by one, and identified for him the jurisdictional errors that I considered were apparently as pleaded within those grounds. I will speak to those in turn now.

1. Ground 1 makes an assertion or an allegation of broad jurisdictional error as:

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 economic hardship. If I return to Malaysia, I will facing mental stress, because high unemployment rate and high living cost. 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.

1. I took the applicant through a number of aspects of ground 1: firstly, the part where it is alleged that the case officer, which I took to be the Tribunal, failed to investigate the applicant's claims. As I have pointed out, it is an applicant's responsibility to advance evidence and arguments in support of their claims. The applicant was not able to, or did not provide to me any greater particulars, or say what investigations the Tribunal should have made, or the basis upon which it would have been required to make investigations.
2. I accept the Minister's submission that the Tribunal has no general duty to inquire, and that the role is a review role, not an inquisitorial one. The circumstances in which there may be a constructive failure to exercise jurisdiction by not making an obvious inquiry about a critical fact are limited. The principles that apply were set out by Judge Forbes in EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs[1] as:

The Tribunal operates in an inquisitorial, rather than adversarial, fashion and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision.

However, the Tribunal is under no general duty to use, or to consider using, its investigative powers to obtain information relevant to the review. Although the Act confers on the Tribunal wide discretionary powers to investigate an applicant's claims, the legislation does not impose on the Tribunal a general duty to make inquiries in addition to the information provided to it by the applicant.

It is well-established that a decision-maker has no duty to make his or her own inquiries in order to make out an applicant's case.

However, in Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], Kenny J observed (citations omitted):

[...] On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal[...] On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

The circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are " a confined category of case ".

As to the circumstances where a failure to inquire might give rise to jurisdictional error, the High Court held in Minister for Immigration & Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429 ( SZIAI ) at [25] that:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a duty to inquire, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case [...]" (emphasis added)

Further, in SZIAI Heydon J observed at [52]:

The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve.

1. In my view, it is clear that the circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are very confined. I do not consider in this case and in all of the circumstances there was any obvious matter that was apparent that required any further inquiry, or any inquiry at all by the Tribunal.
2. The Tribunal set out the claims made in the applicant's visa application and clearly considered those claims on the information that was before it, together with the country information against both the refugee criterion and the complementary protection criterion. This occurred in circumstances where the applicant had elected to not attend before the Tribunal to give evidence and present arguments in support of the review.
3. Ground 1 also makes reference to a number of provisions of the Act and the Migration Regulations 1994 (Cth), under the general allegation that the Tribunal misconstrued those provisions. I asked the applicant to clarify what those particular references meant and where the Tribunal is said to have misconstrued those provisions. The applicant was not able to advance those submissions in any real way. I have reviewed the Tribunal's reasons, of course, and in my opinion ss 36(2)(a) and 5H are the subject of a detailed analysis in the Tribunal's reasons.
4. The other provisions set out in ground 1 do not appear to me to be relevant to the matters that were the subject of the review, and I do not consider that the Tribunal made any errors or mistakes or misapplications of the law in setting out or applying the relevant provisions of the legislation that are referred to in the decision record.
5. Ground 1 also asserts an error by misconstruing the existence of the risk of life or significant harm to the applicant upon his return to Malaysia. I do not find that this aspect of the complaint in ground 1 is made out either. In my view, the Tribunal correctly set out that if a person is found not to meet the refugee criterion, then they may nonetheless still meet the criteria for the grant of a visa under the complementary protection criterion, and then the Tribunal went on to consider that alternative criterion at the point in time immediately following when it concluded that the applicant did not meet the refugee criterion.
6. In doing so, the Tribunal set out the complementary protection criteria, and also the meaning of "significant harm" within the context of the Act. It set out the circumstances in which a person will be taken not to face a real risk of significant harm, and the relevant provisions of the legislation were set out as an annexure to the Tribunal's decision.
7. The Tribunal also referred to the test of significant harm in its analysis of the question of whether the applicant was entitled to complementary protection with reference to the Full Court of the Federal Court in GLD18 v Minister for Home Affairs [2020] FCAFC 2. The Tribunal accepted that authority to construe the language in s 36(2A) as concerning, and only concerning, how a visa applicant might be treated by another person.
8. The Tribunal found that there was no agent of harm in relation to the Malaysian economy, and based on country information that the economic situation in Malaysia is one faced by the population generally, which the applicant acknowledged, the Tribunal was not satisfied that the complementary protection criteria was made out or met by the applicant.
9. I do not consider there is any merit in the allegation that there was any erroneous construction or misapplication of the law, including as to significant harm, or of any other of the statutory provisions that apply to the Tribunal's assessment of the applicant's claims in either the refugee criterion or the complementary assessment criterion.
10. Ground 1 also asserts that if he were to return to Malaysia, the applicant will face mental stress because of high unemployment and living costs, and as I said, the applicant expanded that in submissions to me to really touch upon what that meant for him at his age and in a competitive employment market in Malaysia and him being, as he said, not skilled. The applicant suggests in the grounds that "the threat is real and significant" which would cause a fatal influence on him, and therefore he would like to apply for protection in Australia.
11. To the extent that that aspect of the ground raises a failure to consider the claim of mental stress, a jurisdictional error will only arise if the Tribunal fails to consider a claim that is not expressly articulated but squarely arises on the materials. The applicant did not make a claim based on mental stress as a result of economic harm, and in my view there is nothing to suggest that such a claim arises on the materials in such a way that required the Tribunal to consider it. I do not consider that there was any error by the Tribunal in the way in which it approached this aspect in this regard.
12. Further, and to the extent that some of the remarks made in ground 1 invite the Court to consider a visa application, or perhaps undertake a review of the merits of the Tribunal's decision, as I have set out, that is not permissible. I consider that the Tribunal's findings were open on the evidence and that it explained its reasoning. I do not consider that there is anything legally illogical or unreasonable in the Tribunal's analysis.
13. To the extent that the ground may take issue with factual findings and errors in the Tribunal concluding that the applicant did not face a real risk of significant harm from discrimination and harassment, for example, it is not expressly referred to, but to the extent that it may take issue with the way in which the Tribunal assessed the evidence, the degree of weight that the Tribunal gives to evidence is a question for it, and as I explained to the applicant, a person must show more than emphatic disagreement with a conclusion of the Tribunal to make out jurisdictional error. I do not consider that there is any jurisdictional error made out in ground 1 or its various components that I have spoken to.

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.

1. Ground 2 is not particularised, but as I have said, I have endeavoured to assess it as best as I can, and to the extent the applicant was able to speak to it, he was not able to expand upon the ground, but I discussed with him that the allegation of failing to consider a claim or an integer of a claim, or the Tribunal making an unreasonable decision, can amount to jurisdictional error in certain circumstances that they do touch on or which go to recognised categories of jurisdictional error.
2. The Full Court of the Federal Court restated the principles that the categorisation of a decision or a state of satisfaction as legally unreasonable because of illogicality or irrationality is not an easily made out one.[2] Although the claim is not particularised, I do not consider that there is anything in the Tribunal's reasons to show that its decision to affirm the delegate's decision was legally unreasonable.
3. The Minister's submission is that this ground fails on the facts. I do not consider that there is any substance to the allegation that the Tribunal failed to consider the applicant's claim, or any integer of the claim, and to the extent the Minister's submission goes to the lack of detail and paucity of evidence in the applicant's claims as put to the Tribunal, I agree. The claims put forward by the applicant were not detailed.
4. However, what was raised was considered within the limitations that the Tribunal had, and the Tribunal having satisfied itself that the applicant's election or consent for the Tribunal to make a decision on the papers was a genuinely held intention. The Tribunal's findings were, as I say, in my view, open to be made on the evidence in the context of the briefly put claims. Those claims were restated in the prehearing information form in a way that simply extracted aspects of the delegate's reasons, and so the applicant was on notice of the findings of the delegate and the issues that were likely to be live in the Tribunal.
5. The applicant was consistent in his themes in terms of his claims made in the visa application and those put forward again in the prehearing information form, and they centred around him being unemployed, him being unable to support himself or his family and his lack of belief that the authorities could protect him anywhere in Malaysia because of the economic situation applying to the entire country.
6. In my view, the applicant was on notice that declining to participate in the hearing meant he would lose his entitlement to appear at the hearing and give evidence and present arguments relating to the issues in his case. He was also on notice that the Tribunal's decision would be based on the information and evidence that it had before it, and that the Tribunal may consider issues that were not previously considered by the delegate. He was also on notice that the Tribunal may not make a favourable decision to him, in other words that it may either affirm or set aside the decision that was under review.
7. The Tribunal assessed the applicant's claims and the evidence as best it could in the circumstances and, in my view, the finding that it did not accept the genuineness of the claim by reason of the unexplained delay in the visa application, the reference to the claim of harm relating to people who either did not exist, or were no longer alive, or no longer in contact with the applicant, and the general lack of detail about the claims and his personal history, were open to be made.
8. I also consider the finding that the Tribunal made that the applicant may well wish to remain in Australia was open to be made, but that it did not find the applicant's claims to be established. I do not consider that any of these findings were legally unreasonable, illogical or irrational, or that the Tribunal failed to consider any of the applicant's claim or any integer of it. I will dismiss ground 2 in the circumstances.

1. Ground 3 speaks of a request for a second chance, stating:

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. I discussed with the applicant that this ground is more of a prayer for relief in that he seeks an order quashing the decision of the Tribunal and requiring it to determine the applicant's application according to law. The applicant did not expand upon this ground of review today orally at the hearing or provide any further substance to precisely the nature of the allegation made.
2. As I explained to the applicant that the Court cannot assess whether he is entitled to a visa or consider a merits review of the Tribunal's decision, I asked the applicant at the start of the hearing whether he had any documents or submissions that he wanted me to receive. Noting the limitations on the Court's jurisdiction in any event, and noting the concerns potentially expressed on behalf of the Minister about the invitation to undertake an impermissible merits review, the applicant did not seek to submit any further materials to me. Without anything more, I do not consider that there is any jurisdictional error evident in ground 3 that I can realistically consider, and I will dismiss ground 3 in the circumstances.

1. Overall, I am not able to identify any other or further grounds of jurisdictional error that may be open in the Tribunal's reasons, and I will dismiss the application that was filed on 24 October 2024.
2. Counsel for the Minister has applied for an order that the applicant pay the Minister's costs of the proceedings fixed in the sum of $6,500. The applicant has not made any submission in response to the application.
3. In circumstances where the application filed by the applicant has been dismissed, and the Minister has prepared for and attended the hearing, I will order that the applicant pay the Minister's costs fixed in the sum of $6,500. I consider the sum to be fair and reasonable having regard to the work that has clearly been done, and also the fact that the sum is within the amount specified in Schedule 2, Part 2, Division 1 of the Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris.

[2] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33] - [35].