KMO24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2073

1. The Tribunal did not accept that the applicant had a well-founded fear of persecution from his father or from the police in Malaysia, having regard to the vague nature of the applicant's claims, the lack of evidence and the inconsistent evidence provided by the applicant.
2. The Tribunal accepted that there was a domestic violence incident when the applicant's father was out on bail and that the applicant, who was 14 or 15 years old at the time, and his mother were victims of domestic violence at the hands of the applicant's father. However, the Tribunal considered that future harm was unlikely given that the applicant had not seen his father or brother for many years, they are evading the police and do not live in the family home. There was no evidence that the applicant's father continued to threaten the applicant when he lived at the family home from 2015 to 2018. The Tribunal found the applicant's mother had not suffered from any physical violence since the one domestic violence incident and that she continued to live in the family home.
3. The Tribunal considered that there was no evidence that the applicant was at risk of harm by the police. The police interviewed the applicant because they were interested in the applicant's father, who was evading police and had pending criminal charges. Because of the limited evidence before the Tribunal, the Tribunal did not accept that the police would continue to interview the applicant as it had been nearly 10 years since his father and brother were arrested and absconded.
4. The Tribunal did not consider that the applicant's evidence at the hearing supported his written claim that he had been bullied by neighbours and family. The Tribunal noted the assistance that had been provided to the family by the applicant's grandparents and noted that there was no evidence that the applicant or his mother had been bullied by neighbours or family since 2015.
5. The Tribunal also found that the applicant could rely on state protection, referring to country information that suggested that the Royal Malaysian Police are a professional outfit. There was no updated evidence of any continuing threats to the applicant and his family for the last six years while he lived in Australia.
6. Based on the applicant's evidence and the country information, the Tribunal found that there was not a real chance the applicant would be seriously harmed if he returned to Malaysia. It therefore found that he did not meet the refugee criterion in s 36(2)(a) of the Migration Act.
7. The Tribunal did not accept that the applicant would suffer significant harm if returned to Malaysia. The Tribunal found, based on the applicant's own experiences and available country information, that he would not be significantly harmed as a necessary and foreseeable consequence of being removed from Australia to Malaysia. Therefore the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. The applicant raised the following grounds in his judicial review application (reproduced without alteration):
   1. THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FROM SOME OTHER CASE.
   2. THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELAVANT IN MY CASE.
   3. THE TRIBUNAL MEMBER DID NOT UNDERSTAND THE MEANING OF MY EXPLANATION REGARDING MY CASE IS A LEGIT CASE (PLEASE REFER PAGE 10 PARAGRAPH 39).
   4. THERE ARE INCORRECT OR MISUNDERSTANDING BETWEEN INTERPRETER AND TRIBUNAL MEMBERS (PLEASE REFER PAGE 7 PARAGRAPH 32-33 AND PAGE 9 PARAGRAPH 35-37).
2. The evidence before the Court comprises:

(a) an affidavit of the applicant which was filed on 29 November 2024 with his judicial review application, and which annexes a copy of the Tribunal decision;

(b) the court book filed on behalf of the Minister on 11 February 2025; and

(c) an affidavit of service of Alexander John Mowbray filed on behalf of the Minister on 21 November 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 he 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 he is not satisfied with the decision because the Tribunal did not believe what he was trying to say and did not have a rational basis for making the decision. When I invited the applicant to explain why he believed that, he submitted that he tried to explain to the Tribunal for over an hour and the Tribunal just made a decision and did not believe him.
2. These submissions do not establish jurisdictional error. At face value, they appear to simply express disagreement with the Tribunal decision. As noted above, disagreement with the Tribunal decision is not, of itself, sufficient to establish jurisdictional error.
3. Counsel for the Minister interpreted the applicant's oral submissions as an allegation of bias. An allegation of bias must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. I accept the Minister's submission that there is nothing before the Court to show that the Tribunal approached its task with a mind that was not open to persuasion, no matter what arguments or evidence were presented, or that it prejudged the review: see, for example, Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [18]; Jia Legeng at [72]. Further, there is no evidence to support a conclusion that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [37], [67], [221], [274].
4. The Tribunal was not required to uncritically accept the applicant's claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451; DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [26]. The Tribunal in its reasons summarised the evidence given by the applicant and demonstrated careful consideration of that evidence. The findings reached by the Tribunal were open to it on the evidence before it, in the sense that a logical or rational decision-maker could have come to same conclusion as the Tribunal: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135]. The Tribunal decision is not illogical or irrational.
5. The general submission made by the applicant at the start of the hearing does not establish jurisdictional error.
6. The submissions the applicant made about each specific ground are considered below.
7. In his reply submissions, the applicant submitted that the Tribunal and the Court do not know his father and there is now another factor that arises based on money. He appeared to suggest that his father has a drug addiction and does not have money, and that his mother will face harm as a result. The applicant submitted that his father and brother went to prison for one or two years and came out the same. He submitted that, at the moment, he does his best for his mother, but if he returns to Malaysia, because of the money, there is not going to be a life for him or his mother. He submitted that his mother urged him to let the Court know that he needs to stay in Australia permanently and not return to Malaysia. He knows his family well and everything he said is the truth.
8. These reply submissions address the merits of the Tribunal decision and why the applicant believes he should be granted a protection visa. These are not matters that the Court has any power to consider. The applicant's reply submissions do not assert or establish jurisdictional error in the Tribunal decision.

Ground 1: Did the Tribunal rely on incorrect information or make its decision based on facts from a different case?

1. Ground 1, as it appears in the judicial review application, asserts that the Tribunal relied on incorrect information and decided the applicant's case based on facts from another case. However, it does not identify what information relied on by the Tribunal was incorrect or which facts were from a different case. At the hearing, I invited the applicant to identify the incorrect information or facts from a different case. The applicant submitted that he feels like he tried to explain to the Tribunal, but he does not think the Tribunal considered it too much or cared.
2. I accept the Minister's submission that the evidence considered by the Tribunal comprised the applicant's protection visa application and his oral evidence given at the Tribunal hearing. This was the only information about his claims that the applicant provided. There is no indication in the Tribunal's reasons that it considered facts from any other case. The Tribunal also had regard to country information which it considered to be relevant to its assessment of the applicant's claims.
3. The Tribunal's reasons demonstrate that it carefully considered the applicant's evidence and do not support the applicant's submission that the Tribunal did not consider his evidence or did not care.
4. The applicant has not established that the Tribunal relied on incorrect information or based its decision on facts from a different case. Ground 1 is therefore dismissed.

Ground 2: Did the Tribunal fail to ask the applicant questions about the types of harm relevant to his case?

1. By ground 2, the applicant asserts that the Tribunal failed to ask him questions about the type of harm relevant to his case, but he has not provided details to explain with greater specificity what he believes the Tribunal was required to do. When I invited the applicant to specifically address this ground at the hearing, the applicant acknowledged that the Tribunal asked him a lot of questions and he explained to the Tribunal about the harm.
2. A transcript of the Tribunal hearing is not in evidence before the Court, so I am unable to ascertain the precise questions that the Tribunal asked the applicant. However, having regard to the summary of the applicant's oral evidence set out at [20]-[36] of the Tribunal's reasons, it appears that the Tribunal asked the applicant about, or the applicant otherwise gave evidence about, his background, the harm he faced in the past and the harm he fears in the future. This is consistent with the applicant's acknowledgement at the hearing before the Court that the Tribunal asked him a lot of questions and he explained about the harm. The applicant's assertion in the ground that the Tribunal failed to ask him questions about harm is therefore not supported by the evidence before the Court or the applicant's oral submissions at the hearing.
3. In any event, as noted in the Minister's submissions, it was the responsibility of the applicant, as a person seeking to engage Australia's protection obligations, to specify the particulars of his claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA of the Migration Act; see also Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187].
4. The applicant has not established that the Tribunal made any jurisdictional error based on any failure to ask him questions at the hearing. Ground 2 is dismissed.

Ground 3: Did the Tribunal fail to understand the applicant's explanation that his case is legitimate?

1. By ground 3, the applicant asserts that the Tribunal did not understand the meaning of his explanation that his case is a legitimate case. He expressly referred to [39] of the Tribunal's reasons. In this paragraph, the Tribunal said:

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside of the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

1. When the applicant was invited to address this ground in his oral submissions, he submitted that he tried to explain about his dad and his brother and what he said was true but the Tribunal did not care.
2. Having regard to the ground, the paragraph referred to in the ground and the applicant's oral submissions, it appears that the applicant's assertion is that the Tribunal made a jurisdictional error by failing to find that the applicant was a 'refugee' as defined in s 5H of the Migration Act and therefore met the refugee criterion in s 36(2)(a) of the Migration Act. Understood in this way, the ground is a mere expression of disagreement with the Tribunal decision, which does not establish jurisdictional error. The applicant has not otherwise identified any aspect of his evidence that the Tribunal did not understand.
3. Ground 3 is not established.

Ground 4: Is there any jurisdictional error established based on errors in interpretation?

1. By ground 4, the applicant asserts that there was some incorrect information or misunderstanding between the interpreter and the Tribunal member. I infer from this that the applicant is asserting that there were errors in the interpretation at the Tribunal hearing that adversely affected the Tribunal's understanding of his case.
2. In advancing this ground, the applicant specifically referred to [32], [33], [35], [36] and [37] of the Tribunal's reasons. In these paragraphs, the Tribunal said:
   1. He was asked many times a police officer had approached him. He said that they had approached him on many occasions. He said that they came to see him and talk to him in 2015, 5 times when he was at home. He said he was not sure how many times they did it in 2016. He said that in 2017 he saw the police perhaps 2 to 3 times.
   2. He was asked why he was concerned about the police coming to his house. He said his mother had gone to Korea for one week in 2019. She returned to her home because his father had threatened that he might hurt his younger brother. He was then asked by the Tribunal how his father could access his younger brother who was in fact living with his maternal grandmother. He said his father was still hiding from authorities. He was asked how he knew that his father had threatened his mother. He said because his father had returned to the home. The Tribunal notes that the applicant had remained in the home and that he did not suffer from any further harm at the hands of his father after the incident when he was 15 years of age.

...

1. He was asked about his experience in Australia. He said that he arrived in Australia, and he was invited by a friend to work. He met the friend where he was renting a cheap house after he had arrived on 10 January 2018.

2. He said that his friend had invited him to apply for work 2 weeks after he arrived. He said his friend also helped him to apply for protection. He presently works for Mount Barker chickens in [place redacted]. He is paid approximately $29 an hour and works, on some days more than 10 hours. He works for 5 days or weeks and earns approximately $1300-$1400 per week. He does send money back to his family. He said that he sends the money back and that he thinks that this year he sent $10,000-$15,000. He said that he has saved approximately $10,000. He has a Subaru motor vehicle perhaps valued at about $10,000. He has a girlfriend who lives with him, and she is from Malaysia. They are not yet married but they plan to marry. He says that she has probably applied for protection and that she had lived in Australia for 6 years.

...

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

1. At the hearing, the applicant submitted that when the interpreter talked to the Tribunal, there was error between the interpreter and the Tribunal which excluded him. He believes that sometimes he answered a question without understanding what the interpreter said to him, and this applied to most questions. He submitted that a phone interpreter was used. He submitted that it is complicated to explain that he has to send money to his mother, otherwise his father will harm his mother.
2. Amongst other things, I explained to the applicant at the hearing the need to establish any interpretation errors with evidence and that he could request further time to file evidence in relation to any interpretation error. The applicant did not request any opportunity to adduce further evidence. I therefore consider this ground based on the existing evidence before the Court.
3. As set out in the Minister's written submissions, to establish jurisdictional error on the basis of errors in interpretation the applicant must demonstrate, by way of evidence, either that the standard of interpretation of the hearing was so inadequate (in the sense of inaccurate) that he was prevented from giving evidence, or that any interpretation error was material to the conclusion of the Tribunal and adverse to him, such that he was deprived of a real and meaningful opportunity to appear before the Tribunal at the hearing: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [38], [45].
4. In this case, the applicant has done no more than assert that there were interpretation errors, including that he felt excluded during discussions between the interpreter and the Tribunal, that he answered questions without fully understanding them, that he found it difficult to explain one aspect of his evidence and that a telephone interpreter was used. Five of the six paragraphs the applicant referred to in his ground refer to the Tribunal's summary of his oral evidence, but do not indicate in any way the reasons the applicant asserts that the summary is not an accurate reflection of the evidence he gave. The reference to [37] does not relate to any evidence given by the applicant, or anything that the Tribunal said at the hearing, and is rather a paragraph in which the Tribunal summarises the criteria the applicant must meet to be granted a protection visa.
5. There is no evidence before the Court from which I can conclude that there were any errors in interpretation, let alone any errors that were significant enough to give rise to jurisdictional error.
6. Ground 4 is therefore not established.

1. The applicant has not established that the Tribunal made any jurisdictional error in its decision. His application to this Court for judicial review must therefore be dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.