JJE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1219

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 10 October 2024, affirming a decision of a delegate of the first respondent (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.
2. The applicant last arrived in Australia on 6 February 2015 as the holder of an Electronic Travel Authority (ETA). The ETA ceased on 6 May 2015, and the applicant thereafter became an unlawful non-citizen.
3. On 18 April 2018, the applicant applied for the visa with the assistance of a Migration Agent.
4. On 6 December 2018, the delegate refused the applicant the visa.
5. On 24 December 2018, the applicant sought review of the delegate's decision with the Tribunal. The applicant denied an invitation to appear before the Tribunal to give evidence and present arguments.
6. On 10 October 2024, the Tribunal affirmed the delegate's decision.

1. 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) (the Regulations) 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) [38] - [50].
2. The Tribunal relevantly defined the issues in the case as:

(a) whether the applicant had a well-founded fear of persecution in Malaysia for reasons of race, religion, nationality, membership of a particular social group, or political opinion and, if not;

(b) whether there is a real risk that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, he will suffer significant harm.

1. The applicant's claims are stated as per his protection visa application at [12] of the decision:
   1. The applicant sought protection in Australia so that he did not have to return to Malaysia.
   2. The applicant had fled to Australia to avoid being seriously harmed by loan sharks.
   3. The applicant was misled by the loan sharks and gambled to make money.
   4. After realising he could not afford to repay the money, he had borrowed from the loan sharks, the applicant went into hiding.
   5. The loan sharks had been looking for the applicant everywhere.
   6. The applicant's family could not afford to repay the loan sharks.
   7. The loan sharks had visited the home of the applicant's parents, assaulted family members and threatened them with severe harm.
   8. The applicant had come to Australia to avoid being harmed and to prevent the loan sharks from visiting his parent's home and inflicting violence on his family.
   9. The applicant feared he would suffer physical harm and mental abuse and his parents would be assaulted and threatened if he returned to Malaysia.
   10. The applicant had been assaulted, followed and threatened with severe violence when he failed to make the repayments.
   11. The applicant was too afraid to tell the police because the loan sharks would kill him if he did so.
   12. The applicant could not relocate within Malaysia to avoid harm because he would be exposed to 'the loan sharks' violence, pursuit and revenge' everywhere in Malaysia.
   13. The applicant did not believe the Malaysian authorities could protect him.
2. At [16], the Tribunal took into account and reproduced country information from the DFAT Country Information Report: Malaysia, 24 June 2024. The Country Information detailed the experiences of loan shark victims in Malaysia, the risks of harm they face, and the protection available.
3. The Tribunal considered the information before it and on 4 September 2024 wrote to the applicant advising that it would be unable to make a favourable decision on the information before it alone and invited the applicant to a hearing. On 5 September 2024, the applicant refused the invitation to give oral evidence. The Tribunal, on the same date, invited the applicant to provide written submissions and evidence that the applicant wished to be considered. The applicant did not respond to the invitation.
4. On this basis, the Tribunal made the following findings at [20] and [21]:

[20] Given the lack of detail provided by the applicant about the circumstances of his borrowing, the amount borrowed, the interest rate, the harm experienced by the applicant, the steps taken to seek protection or re-negotiate the loan, or the other potential options open to the applicant, it is not possible to determine the risk to the applicant of his return to Malaysia. I note that according to DFAT, there is generally only a low risk of violence from loan sharks; without further details, it is not possible to say whether, in the applicant's circumstances, there is a real risk of serious or significant harm. Despite being given the opportunity to appear before the Tribunal and to provide submissions and evidence in writing, the applicant has not provided any further details about his claim.

1. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.

1. The Tribunal concluded that the applicant did not meet the refugee criterion under s 36(2)(a) and the alternative criterion in s 36(2)(aa) [22] - [23].

1. The applicant advances two grounds of judicial review contained in an Originating Application filed with the Court on 26 October 2024. The grounds are as follows:
   1. The Tribunal did not assess my well-founded fear of persecution under section 36 of the Migration Act. Despite evidence of severe threats and violence from loan sharks, the Tribunal wrongly concluded that my fear of persecution was not well-founded. This failure to fully examine the ongoing risk of physical harm and mental abuse amounts to a jurisdictional error.
   2. The Tribunal erred by relying on generalized country information, failing to consider my specific circumstances. The DFAT report may suggest a low risk of violence, but in my case, I have experienced threats, assaults, and harassment, which were not fully addressed. This reliance on generalizations instead of my individual risk assessment is a jurisdictional error.

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 to him. The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he 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. Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case. The applicant told the Court that it was his father who was gambling and borrowed money from the loan sharks. The applicant was taken to the Tribunal decision, which recorded that in his protection visa application, it was claimed the applicant was the one who borrowed the money from the loan sharks. The applicant blamed his lawyer for the difference in the recount of events. The applicant asserted that he had not told his lawyer that he had borrowed the money from the loan sharks, rather he told his lawyer that his father had. When asked who the lawyer was, the applicant claimed he had been introduced to lawyer, that the lawyer is Melbourne-based, and that he was unable to recall the lawyer's name or email address.
4. The applicant was asked to confirm why he had not attended the Tribunal hearing. The applicant claimed that he was not aware of the hearing. The applicant was taken to the relevant parts of the Court Book, where he declined an invitation to attend a Tribunal hearing. The applicant claimed his lawyer did this, and that he knew nothing about it. The Court noted that the email address used to respond to the Tribunal's invitation was the same as the one used for the current Court proceedings. The applicant stated that the email address was made up by the lawyer. When questioned if the email address was made up, how he had known to attend the Court hearing, the applicant stated that the lawyer told him about the Court hearing.
5. When asked about the second ground of judicial review, the applicant stated that he remembers the loan sharks coming to his family house and standing outside in a threatening manner, which prevented him from leaving the house.

1. Ground one alleges that the Tribunal failed to assess the applicant's claims of a well-founded fear of persecution under s 36 of the Act. The first respondent submits that the ground must fail, first because the Tribunal engaged with the applicant's claim in making its decision. The Tribunal identified the applicant's claim and noted the statements made in support of it and referred to the lack of supporting material and referenced country information that went directly to the claim.
2. Secondly, the applicant's visa application only provided vague statements which cannot be considered 'evidence' of his claim. To the extent that the ground disagrees with the Tribunal's findings that the applicant did not have a well-founded fear of persecution, this amounts to impermissible merits review.
3. As to ground two, the applicant claims that the Tribunal erred by relying on country information and failing to consider his specific circumstances. The Tribunal relied upon county information, which it was required to take into account as per s 499(2) of the Act. It was a matter for the applicant to provide the Tribunal with other information or explanations as to why he did not agree with that country information. The applicant denied the Tribunal's invitation to attend a hearing, and in doing so, did not avail himself of the opportunity.
4. In taking the country information into account, the Tribunal was aware of its limitations and stated, 'there is generally only a low risk of violence from loan sharks; without further details, it is not possible to say whether, in the applicant's circumstances, there is a real risk of serious or significant harm.'
5. The Tribunal was not in a position to conclude that the general low risk did not apply to the applicant, as it had no information before it to support this 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 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 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 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 the 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. The Court is reasonably satisfied that the Tribunal complied with all necessary procedural fairness requirements. The applicant was properly notified that a Tribunal hearing was necessary and properly invited to attend the Tribunal hearing. The Court does not accept the applicant's evidence that he was unaware of the Tribunal hearing. When challenged, the applicant's answers were unpersuasive. The Court is satisfied that the email address that was used by the applicant to respond to the Tribunal's invitation is the same email address that was used for the Application before this Court. The Court is satisfied the applicant was properly notified and was aware of the Tribunal hearing.

1. Ground one is a claim that the Tribunal failed to assess the applicant's claims, or failed to take into account relevant considerations or evidence.
2. First, the Court is satisfied that the Tribunal properly understood and engaged with the applicant's claims as set out at [12] of the decision record. The Court notes that the applicant declined an invitation to attend the Tribunal hearing to present arguments and give evidence. As a result, the only material the Tribunal had before it for consideration was the matters set out in the applicant's protection visa application. These were appropriately described as vague statements without any detail or evidence to support them.
3. Second, the Tribunal took account of the relevant country information, assessing that victims of loan sharks and their family members face a moderate risk of discrimination due to familial and societal shame. Further, they face a moderate risk of harassment and a low risk of violence from loan sharks. State protection is available, but not always effective.
4. As noted at [20] - [21], given the lack of detail provided by the applicant, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution, nor was there a real risk of serious or significant harm. This was a conclusion that was open to the Tribunal based on the evidence before it and for the reasons it gave. There is nothing legally unreasonable, irrational or illogical in the conclusion the Tribunal arrived at. Ground one has no merit.

1. Ground two is a claim that the Tribunal erred by relying on country information and failed to consider the applicant's specific circumstances. Given the lack of detail in the protection visa application, coupled with the fact that the applicant declined the opportunity to provide any further evidence to the Tribunal as to his specific circumstances, this ground must fail.
2. The Tribunal faithfully recited the country information that was available to it and acknowledged that the applicant's specific circumstances may mean that a general low risk did not apply. However, in the absence of information which might have indicated that there were specific circumstances which meant the applicant did not fall into the general category of low risk, the conclusion reached by the Tribunal was again open to it based on the evidence before it and for the reasons it gave. Ground two has no merit.
3. As the applicant is unrepresented, the Court has carefully perused the relevant Court books and papers. The Court is satisfied there is no unarticulated jurisdictional error.

1. In these circumstances, the application must be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.