JLN24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1220

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 (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. On 28 May 2019, the applicant entered Australia on an Electronic Travel Authority (ETA) visa.
2. On 26 July 2019, the applicant applied for the protection visa, claiming to fear harm on account of a group of gangsters forcing him to join them, which he refused. The applicant claimed he was beaten by the gangsters many times and that if he returned to Malaysia he would be found.
3. On 1 September 2019, the applicant applied to the Tribunal for review of the delegate's decision.
4. On 26 July 2024, the applicant was invited to complete a pre-hearing invitation form, to which he did not respond. On 7 August 2024, the applicant emailed the Tribunal to update his address for service.
5. On 7 October 2024, the Tribunal invited the applicant to attend a hearing on 18 November 2024. The applicant was invited to provide all documents upon which he intended to rely upon by 11 November 2024.
6. On 8 October 2024, the applicant returned the hearing invitation form and informed the Tribunal by email that he did not want to attend a hearing and consented to the Tribunal making a decision on the papers.

1. The Tribunal identified the issue under review as whether there was a real chance that, if the applicant returned to Malaysia, that the applicant would be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) and, if not, whether there were substantial ground for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
2. The Tribunal had regard to the criteria for a protection visa in s 36 of 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).
3. In relation to his claims for protection, the applicant identified in his visa application that the reason he left Malaysia was [8]:

...a group of gangster [had] been forcing me to join them...but I refused. [They have]

been threatening me if not they bully my family. I have been beaten by them many

times seriously. I cannot take it anymore so I have to runaway. No one want to help

me because afraid to challenge them.

1. The Tribunal explored the issue of credibility as it related to the applicant's claims. The Tribunal relevantly noted s 5AAA of the Act and the applicant's responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations.
2. In assessing whether the applicant is a refugee, the Tribunal made the following findings [31]:

• It did not accept, on the evidence, that the applicant was approached, threatened, intimidated and assaulted by a gang in Malaysia as part of a recruitment exercise. Even where the Tribunal could give the applicant the benefit of the doubt in this respect, it did not consider that the claim rose to the level of considering the applicant a member of a particular social group. The Tribunal was not provided with any further information about the gang which would support such a finding.
  • In relation to the applicant's claim that he could not seek help from Malaysian authorities because no one wants to challenge the gang, the Tribunal had regard to the DFAT Country Information Report for Malaysia dated 24 June 2024 (DFAT Report) at [36] - [41]. The DFAT Report alluded to the operation of underworld gangs operating in Malaysia and the presence and enforcement of justice by law enforcement entities such as the Royal Malaysian Police (RMP). The Tribunal specifically noted that the RMP made an increasing number of criminal-gang related arrests as per other sources of country information.
  • The Tribunal considered further information from the DFAT Report based on the ethnic make-up of the Malaysian population, noting that Article 8(2) of the Malaysian Constitution forbids discrimination against citizens based on religion or race. The Tribunal noted that Chinese Malaysians remain one of the largest overseas Chinese communities in the world (DFAT Report at 3.11; [38]). Further, the Tribunal noted that Buddhism made up 18.7% of the Malaysian population (DFAT Report).
  • DFAT Country information reproduced at [40] of the decision, and referenced at [41], highlighted that although freedom of speech, assembly and expression are guaranteed in the Constitution, these rights are restricted by federal security laws. The DFAT Report revealed that there is 'sensitivity' around criticism of race, religion, or reality. However, the Tribunal noted that there is no evidence to suggest that the applicant engaged in any adverse activity with regard to race or religion, or that he would be imputed with any such adverse profile [42].
  • The Tribunal was not satisfied that there was a real chance that the applicant would face serious harm in Malaysia for reasons of his Chinese ethnicity or Buddhist faith [43].
  • The Tribunal was satisfied that even if the applicant belonged to a particular social group on account of being targeted by a criminal gang, effective protection measures existed in Malaysia, and this would provide effective, durable protection against the claimed persecution. The Tribunal ultimately concluded at [45] that the applicant was not a person who was owed protection obligations under s 36(2)(a).
  • As to whether the applicant meets the complementary protection criterion, the Tribunal was prepared to accept, based upon the DFAT Report, that the applicant may be at risk of harm from gangs if returned to Malaysia, however, given the lack of evidence, it considered that prospect to be unlikely.
  • The Tribunal alluded to s 36(2B)(c), which proscribes that there is not a real risk that a non-citizen will suffer significant harm in a country if the decision-maker is satisfied the non-citizen could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm.
  • At [53], it was satisfied that there is adequate protection available to the applicant for the following reasons:

1. The applicant fears harm from a gang which is presumably based in his home

state of X.

1. Malaysia has a functional system of state protection in place;
2. The nature and degree of protection afforded by the Malaysian authorities in respect of gang violence, throughout the country, is reasonably effective and the RMP have recently increased their efforts to disrupt gang activity including within X (see Footnote 8);
3. The applicant can obtain protection from the Malaysian authorities because of his factual circumstances and the RMP's willingness to investigate gang crimes. Specifically, there is nothing in the country information before the Tribunal to indicate that such protection would be withheld from the applicant.

1. The Tribunal concluded that the applicant did not meet the alternative criterion in s 36(a)(aa).
2. The Tribunal affirmed the decision under review.

1. The applicant's grounds of judicial review are contained in an Originating Application filed on 31 October 2024. The two grounds are as follows:
   1. The Tribunal did not give sufficient weight to my account of the threats and violence I experienced at the hands of a criminal gang in Malaysia. Despite providing clear information about my personal experiences of persecution, the Tribunal dismissed these claims without offering a valid explanation for discrediting my account. The lack of additional evidence does not diminish the reality of my fear, yet the Tribunal failed to take my personal statements seriously, which constitutes an error in the assessment of my credibility.
   2. The Tribunal did not properly assess whether I might face significant harm if returned to Malaysia under the complementary protection criteria. It failed to fully consider the risk of cruel or inhuman treatment I could face due to the gang's previous violent behaviour towards me and their ability to locate and harm me even after I had relocated within Malaysia. By not giving due consideration to the risk of significant harm, the Tribunal committed a jurisdictional error in its application of the law concerning complementary protection.

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 first respondent's written submissions had been translated to him. The Court also ensured that the applicant had access to a pen and paper to 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 the risks he faces in Malaysia were real. The applicant stated that he was hoping not to be involved with gangsters in the future. The applicant said that he had stayed in Singapore for six years for the same reason as to why he had come to Australia.
4. The applicant was taken to ground one of his application. The applicant was asked if there was a legal error in the Tribunal's decision. The applicant said there was not.
5. The applicant was taken to ground two of his application. The applicant told the Court that if he were returned to Malaysia, the 'risks are real'. The applicant again stated there was no legal error, but that he would face harm if returned to Malaysia.
6. At the conclusion of the first respondent's oral submissions, the applicant was asked if he wished to state anything in reply. He answered "No".

1. Ground one cannot be made out on the basis that the Tribunal identified and set out the applicant's claims at [8],[32] - [33] and [35] of the decision record. There is no material before the Court to suggest that the Tribunal misconstrued any relevant provisions of the Act or failed to investigate his claims.
2. Sections 65 and 36(2) of the Act provide for the Tribunal to reach a requisite level of satisfaction in respect of the relevant criteria for the visa to be granted, with s 65(1)(b) requiring the Tribunal to refuse to grant the visa if it is not so satisfied. The Tribunal in the present case was not satisfied, based on the lack of detail in the applicant's claims, the lack of information and evidence he provided in support of his claims, and the applicant's refusal to attend the hearing, despite being warned in the hearing invitation that the Tribunal considered it could not make a favourable decision based on the papers.
3. Ground two is an allegation that the Tribunal did not properly assess whether the applicant would face significant harm if returned to Malayia. As in ground one, the Tribunal could not reach the level of satisfaction required based on the evidence before it, given that the applicant did not attend the hearing or provide any additional information. The applicant was responsible for specifying all particulars and providing sufficient evidence, and in the absence of specification and sufficient evidence, the Tribunal reached an inevitable conclusion on account of the applicant electing not to attend the hearing: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] per French, Emmett and Dowsett JJ.
4. The first respondent notes for completeness that the constituted Tribunal complied with its procedural obligations as provided for in Division 4 of Part 7 of the Act. Specifically, on 7 October 2024, the Tribunal invited the applicant under s 425 and in compliance with s 425A to attend a hearing on 18 November 2024, which he declined to attend and instead elected for the Tribunal to make a decision on the papers. There was also no information that the Tribunal was required to put to the applicant under s 424A AS its decision was based on the limited information before it.

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 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 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 his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to "afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence": Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [82].
6. Firstly, the Court notes that the applicant provided details of his claims for protection in his Original Application to the Department. The applicant declined to provide any further information to the Tribunal in the pre-hearing form he was sent. The applicant further declined to attend the Tribunal hearing in order to give evidence and present arguments. It is unsurprising in those circumstances, that the Tribunal affirmed the delegate's decision to refuse the applicant the visa.
7. The Court is satisfied that the Tribunal complied with all of its procedural fairness requirements. The applicant was properly invited to attend the Tribunal hearing, but he declined to do so. The applicant was advised that in the absence of him attending a Tribunal hearing, a decision would be made on the papers. No error arises from the manner in which the Tribunal conducted its review.

1. Ground one is a claim that the Tribunal did not give sufficient weight to the applicant's account or threats of violence experienced in Malaysia. The Court is satisfied that the Tribunal correctly identified and set out the applicant's claims, such as they were. There is nothing to indicate the Tribunal misconstrued any relevant provision of the Act. Further, there was no obligation on the Tribunal to investigate the applicant's claims or make his case for him: Minister for Immigration and Multicultural Affairs v SLGB (2004) 207 ALR at [43].
2. If anything, this ground merely expresses vehement disagreement with the factual conclusions arrived at by the Tribunal and seeks the Court to engage in impermissible merits review. Ground one has no merit.

1. Ground two is again an assertion that the Tribunal failed to assess whether or not the applicant may face significant harm such that the complementary protection criterion is met. Again, this ground cannot be made out as the Tribunal properly considered, based on country information, issues relating to gang activity in Malaysia. This is set out in detail at [36] of the Tribunal decision record. The Tribunal also considered whether or not the applicant might face harm on the basis of his ethnic Chinese background. Again, the Tribunal relied on country information which is set out at [39] - [40]. Given the lack of any additional evidence before it, the Tribunal properly concluded that the applicant was not owed protection under s 36(2(a) or (aa). Ground two rises no higher than a request for the Court to undertake impermissible merits review. Ground two has no merit
2. As the applicant is unrepresented, the Court has carefully perused the Tribunal decision record the Court book. The Courtis unable to detect any articulated jurisdictional error.

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

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.