JKL24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1694

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 that decision was affirmed by the Administrative Appeals Tribunal (Tribunal). 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 alleges that the Tribunal made jurisdictional errors by:

(a) failing to consider, or give proper weight to, evidence regarding the financial difficulties and personal circumstances of the applicant; and

(b) incorrectly applying legal tests by failing to fully consider how the applicant's specific circumstances intersect with the broader situation in Malaysia.

1. For the reasons explained below, the applicant has not established that the Tribunal made any jurisdictional error in this matter. The application for judicial review is therefore dismissed.

THE PROTECTION VISA APPLICATION AND RELATED DECISIONS

1. The applicant applied for a protection visa on 11 April 2019. The applicant provided a copy of her Malaysian passport to the Minister's Department but otherwise did not provide evidence in support of her protection visa application. On 23 May 2019 a delegate of the Minister refused to grant the applicant a protection visa.
2. On 24 May 2019 the applicant applied to the Tribunal for merits review of the delegate's decision.
3. On 26 July 2024 the Tribunal invited the applicant to complete a pre-hearing information form. However, the applicant did not complete the form or otherwise provide any information in response to this.
4. The Tribunal invited the applicant to attend a hearing to be held on 6 September 2024. The notice of the invitation to attend the hearing was sent to the applicant on 14 August 2024. The hearing invitation stated in part:

We have considered the material before us but we are unable to make a favourable decision on this information alone.

1. On 15 August 2024 the applicant sent a response to the hearing invitation to the Tribunal. In this response, she indicated that she would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.
2. On 23 August 2024 the Tribunal sent to the applicant an invitation to provide information. The invitation stated:

On the 'Hearing Response' form that you provided on 15 August 2024, you indicated that you do not wish to attend a hearing to give evidence and present arguments about the decision under review and that you consent to the Tribunal making a decision on the papers without conducting a hearing. The Member has accepted your consent.

We note the Tribunal has considered the material before us but are unable to make a favourable decision on this information alone.

To assist the member, you are invited to provide the following information in writing:

• - any submissions and evidence you want to be considered by the Member when the Member is making a decision on the papers.

1. The applicant was required to provide any further information by 6 September 2024, but she did not provide anything further.
2. On 10 October 2024 the Tribunal affirmed the delegate's decision.

1. The Tribunal identified that the applicant's claims for protection were set out in her protection visa application and accurately summarised the claims in the following way:
   1. The applicant was seeking protection and could not return to Malaysia.
   2. The applicant left the country because she had difficulty surviving, and the scandal there affected her insurance.
   3. The applicant was an orphan, there were increasing taxes in Malaysia and the applicant couldn't find a job.
   4. The applicant had no income except for a little insurance.
   5. The applicant did not know where to go for help and did not want trouble.
   6. The applicant changed states three times with her insurance payment and food money, but all states were the same.
   7. If the applicant returned to Malaysia, she would have no money to support her life.
   8. The economy in Malaysia has slowed because of scandal.
2. The Tribunal noted that the applicant provided a copy of her Malaysian passport to the Department but did not provide any other material in support of her claims.
3. The Tribunal then set out country information published by the Department of Foreign Affairs and Trade (DFAT) in relation to Malaysia's politics and political system, economy and employment.
4. The Tribunal referred to the hearing invitation, the applicant's consent to the Tribunal making a decision without taking further action to allow the applicant to appear and the Tribunal's further invitation to the applicant to provide written submissions and evidence, noting that the applicant did not respond. The Tribunal proceeded to consider the application on the limited evidence available to it.
5. The Tribunal said at [20]-[21] of its reasons:
   1. Given the lack of detail provided by the applicant about her economic and financial circumstances, and how the political situation in Malaysia impacts upon her, it is not possible to determine the risk to the applicant of her return to Malaysia. I note that according to DFAT, Malaysia has a growing upper-middle income economy with low unemployment and decreasing levels of poverty, and the government has changed since the applicant left; 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 if she returns to Malaysia. 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 her claim.
   2. 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.
6. The Tribunal therefore found that the applicant did not meet the requirements for the grant of a protection visa set out in s 36(2)(a) and (aa) of the Migration Act.

1. The applicant raised the following grounds in her judicial review application:
   1. The Tribunal has failed to take into account or give proper weight to certain evidence provided, including financial difficulties and personal circumstances. For example, there was insufficient attention given to the economic and personal challenges faced in Malaysia, such as the inability to find stable employment, increasing taxes, and lack of support, which are critical to the protection claim.
   2. The Tribunal incorrectly applied the legal tests for persecution and complementary protection by failing to fully consider how my specific circumstances intersect with the broader situation in Malaysia. While the Tribunal relied on generalized country information about Malaysia's economic growth and stability, it did not assess the regional disparities and political instability that particularly affect vulnerable individuals like me, an orphan without support. The Tribunal also narrowly interpreted the types of harm, focusing on my financial situation rather than the overall risks I face, including political corruption, lack of family support, and economic instability, which collectively pose a real risk of significant harm upon my return.
2. The evidence before the Court comprises:

(a) an affidavit filed by the applicant on 29 October 2024 with her judicial review application, in which she repeats the grounds of application and annexes a copy of the Tribunal decision and related correspondence;

(b) the court book filed on behalf of the Minister on 25 November 2024; and

(c) an affidavit of service of Benjamin Mayne filed on behalf of the Minister on 15 September 2025.

CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION

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 she 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) 280 CLR 321; [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].

The applicant's oral submissions at the hearing

1. When invited to make oral submissions at the hearing, the applicant submitted that it is difficult to find a job in Malaysia, she feels challenged about the future and she does not want to go back.
2. These submissions address the merits of the protection visa application and the Tribunal decision. They do not assert or establish any jurisdictional error in the Tribunal decision.
3. I then asked the applicant specific questions about her grounds of application and, where relevant, her submissions in relation to the grounds are addressed below.

1. This ground asserts that the Tribunal failed to take into account or give proper weight to evidence including the applicant's financial difficulties and personal circumstances. In particular, the ground asserts that there was insufficient attention given to the economic and personal challenges faced in Malaysia, including the applicant's inability to find stable employment, increasing taxes and lack of support.
2. The applicant was invited to make oral submissions in relation to this ground but did not make any meaningful submissions.
3. A failure by the Tribunal to consider critical evidence provided by an applicant can sometimes amount to jurisdictional error: see, for example, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111]. The weight to be afforded to evidence is generally a matter for the Tribunal as part of its fact-finding function: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24].
4. The evidence before the Tribunal in this matter was exceptionally limited. The only evidence provided by the applicant to the Department or the Tribunal was her protection visa application and a copy of her passport. As indicated above, the applicant declined the opportunity to attend a hearing and she did not respond to the Tribunal's invitation to provide additional information. The applicant was twice put on notice, prior to the Tribunal's decision, that the Tribunal was unable to make a favourable decision on the information before it.
5. The Tribunal accurately summarised in its reasons the applicant's claims set out in her protection visa application and it is apparent from the Tribunal's reasons that it considered the information in those claims. As can be seen from the summary of the Tribunal decision set out above, the Tribunal considered that the applicant provided insufficient detail to establish her claims.
6. In addressing this ground, I have considered the level of detail provided in the applicant's protection visa application relating to the specific issues to which, by this ground, the applicant claims the Tribunal afforded insufficient weight or otherwise failed to consider.
7. In relation to the applicant's inability to find stable employment, the following parts of the applicant's description of her claims in her protection visa application are relevant:

(a) in response to a question about past harm, the applicant said in part:

if my country keep going with that the same tax or other,i cant find a job.and i will get big trouble with this

(b) in response to a question about whether she sought help in Malaysia after the harm, the applicant said in part:

1. The claim referred to above at [32(a)] is one of two references the applicant made to taxes in Malaysia. The other reference was made in response to a question about the harm or mistreatment the applicant fears if she returns to Malaysia, where the applicant said in part:

This country is going be hard.They keep increased our people tax and all.

1. In relation to the claimed lack of support, the closest the applicant came to raising this is to say that she is an orphan and did not have family and, as part of her response about whether she sought help within Malaysia after any harm, she said:

1. Given the lack of any meaningful detail in the applicant's protection visa application, and the absence of any other evidence elaborating on these claims, it was open to the Tribunal to find that the applicant had failed to establish that she faced a real chance of serious harm or a real risk of significant harm. As a person claiming to engage Australia's protection obligations, it was the applicant's responsibility to specify all particulars of her claim to be such a person and to provide sufficient evidence to establish the claim: s 5AAA of the Migration Act. There is nothing unreasonable in the weight that the Tribunal attributed to the information in the applicant's protection visa application.
2. The Tribunal considered country information and noted that Malaysia has a growing upper-middle income economy with low unemployment and decreasing levels of poverty. It was open to the Tribunal to consider this country information and place weight on it in assessing the applicant's claims.
3. The applicant has not established that the Tribunal failed to consider her financial difficulties and personal circumstances, including the specific matters identified in her ground, or that the Tribunal made any jurisdictional error by failing to give sufficient weight to these matters.
4. Ground 1 is not established.

1. This ground asserts that the Tribunal incorrectly applied the relevant legal tests and failed to fully consider how the applicant's specific circumstances intersect with the broader situation in Malaysia. The ground asserts that the Tribunal relied on generalised country information about Malaysia's economic growth and stability but did not assess the regional disparities and political instability that affects orphans without support. The ground also asserts that the Tribunal focused on the applicant's financial situation rather than the overall risks she faces, including political corruption, lack of family support and economic instability. The ground asserts that these matters collectively pose a real risk of significant harm to the applicant upon her return.
2. When invited to address this ground at the hearing, the applicant submitted that it can be seen that Malaysia is growing economically, but people never know about other people in rural families. What you can see from the surface is not what you see from rural citizens in Malaysia. In some villages, they are living a very tough lifestyle.
3. The Tribunal accurately summarised the criteria for a protection visa in its reasons. The Tribunal noted that the applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Migration Act. The Tribunal accurately summarised those criteria and the relevant definitions of 'refugee' in s 5H and 'well-founded fear of persecution' in s 5J. The Tribunal correctly noted that the meaning of 'significant harm', and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in s 36(2A) and (2B) respectively and extracted those sections at the end of its reasons.
4. There is nothing in the Tribunal's reasons to indicate that it misapplied the sections. The applicant's ground asserts that the way in which the Tribunal misapplied the relevant tests is:

(a) because it failed to consider how her specific circumstances intersect with the broader situation in Malaysia; and

(b) by narrowly interpreting the types of harm she faces by focusing on her financial situation instead of the overall risks posed by political corruption, lack of family support and economic instability.

1. It was open to the Tribunal to consider country information relevant to the matters raised in the applicant's protection visa application. The Tribunal could not meaningfully consider how the applicant's specific circumstances intersect with the broader situation in Malaysia because the applicant provided such limited information about her specific circumstances. The Tribunal acknowledged this in its reasons by expressly stating at [20] that 'without further details, it is not possible to say whether, in the applicant's circumstances, there is a risk of serious or significant harm if she returns to Malaysia'.
2. The applicant asserted in her ground that the Tribunal did not assess regional disparities and political instability that particularly affect vulnerable individuals like her, being an orphan without support. However, the applicant did not meaningfully explain anywhere in her application what regional disparities were relevant, or how any political instability had any particular or any disproportionate impact on adult orphans who do not have support.
3. The country information extracted by the Tribunal acknowledged that the economic situation in Malaysia was not the same for everyone. The country information acknowledged that persistent inequalities remain for indigenous peoples and the poorest 40% of the population who are recipients of government assistance and it also noted that poverty rates are higher in rural areas. I note that the applicant also referred in her submissions to the Court about the difficulties facing rural citizens in Malaysia. However, there is nothing in the applicant's application form to suggest she was from a rural area and the birthplace and previous address she recorded in her protection visa application are a city. The Tribunal was not required to, and could not meaningfully, address whether the applicant personally may face a risk of harm arising from any economic difficulties facing citizens in rural areas of Malaysia.
4. No jurisdictional error is evident based on the applicant's assertion that the Tribunal failed to consider how her specific circumstances intersect with the broader situation in Malaysia.
5. The applicant's assertion that the Tribunal narrowly interpreted the types of harm she faces, and focused only on her financial situation instead of the overall risks posed by political corruption, lack of family support and economic instability, does not accurately represent the Tribunal's reasons. The Tribunal could not determine the risk to the applicant because of the lack of detail about her 'economic and financial circumstances, and how the political situation in Malaysia impacts upon her': see [20] of the Tribunal's reasons, extracted above. The Tribunal decision was based on the lack of information and not any unduly narrow focus on the applicant's financial situation.
6. The Tribunal was required to consider the claims expressly articulated by the applicant, as well as claims that emerge clearly from the material before the Tribunal based on established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]. The Tribunal was not, however, required to specify or assist in specifying, any particulars of the applicant's claims. The Tribunal considered information relevant to all issues raised by the applicant, but simply did not have enough detail or information provided by the applicant to find that her claims were established.
7. The applicant in her protection visa application alluded to political corruption by referring to the 'scandal of our country' and suggested that it affects 'our insurance'. She also suggested that the 'Scandal trouble is enough to make our country slow down the economic. They wont help us or protect our life as well'. This does not in any way explain how the applicant personally may face a real chance of serious harm or a real risk of significant harm because of any political corruption. The Tribunal considered information about the political system, including a 'multi-billion-dollar 1MDB corruption scandal involving Prime Minister Najib Razak' and some of the instability in the ruling coalitions in government since that time. The Tribunal also noted that the government had changed since the applicant departed Malaysia.
8. The applicant referred in her protection visa application to being an orphan who did not have family but did not claim that her lack of family support would give rise to any chance of serious or significant harm and did not claim that she faced overall risks posed by a lack of family support.
9. The Tribunal considered the country information about the economic situation in Malaysia, including its classification by the World Bank as an upper middle income, export-oriented economy, which has experienced a strong economic performance over the last few decades leading to a significant reduction in poverty. The country information relied on by the Tribunal also noted the major economic impact of the COVID-19 pandemic and its impact on poverty rates and noted that the economy has since recovered. The country information noted that ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt and noted that Malaysia's unemployment rate as at April 2023 was 3.4%.
10. Again, however, the applicant did not explain how any 'overall economic instability' would cause her to face a real risk of serious or significant harm. She did not claim that she faced overall risks posed by economic instability.
11. I am satisfied that the Tribunal considered information relating to the matters the applicant broadly raised in her protection visa application. The Tribunal was not able to consider the more specific circumstances because the applicant did not raise them.
12. The Tribunal did not narrowly interpret the type of harm the applicant claimed to face.
13. Ground 2 is not established.

1. Given that the applicant has not established that the Tribunal made any jurisdictional error, the application for judicial review made to this Court must be dismissed.

I certify that the preceding fifty-six (56) 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.