LBB24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 242

1. The first and second applicants are husband and wife respectively who are both citizens of Malaysia. They applied for protection visas in Australia, claiming to fear harm from illegal money lenders. A delegate of the Minister refused to grant the applicants protection visas and that decision was affirmed by the Administrative Review Tribunal (Tribunal). The applicants seek judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.

1. The applicants applied for protection visas on 2 July 2018. In their protection visa application, the first applicant claimed that debt was an overwhelming factor explaining why he left Malaysia. He claimed that he gave permission for his cousin to obtain a personal loan from illegal money lenders using the first applicant's name, but his cousin did not repay the loan and the money lenders are searching for the first applicant to settle the debt. The first applicant claimed he is unable to pay the debt and that the money lenders might kill the first applicant or hurt him and his family if they find him.
2. On 12 February 2019 a delegate of the Minister refused to grant the applicants protection visas.
3. On 16 February 2019 the applicants applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate's decision.
4. The review was still pending before the AAT in October 2024 when the AAT ceased and was replaced by the Tribunal. The review continued before the Tribunal as required by the transitional provisions in Sch 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
5. The applicants attended a hearing before the Tribunal on 6 December 2024. They both presented evidence at the hearing and the first applicant's sister also gave evidence.
6. On 11 December 2024 the Tribunal affirmed the delegate's decision.

1. The Tribunal did not accept that the claims made by the applicants in relation to loan sharks or unlicensed money lenders were credible. The Tribunal's reasons for this included that:

(a) the Tribunal did not accept the first applicant's explanation as to why he did not bring any documentary evidence to support his claims;

(b) the Tribunal did not consider it was plausible that, despite intending to come to Australia to seek protection, spending two weeks visiting family and preparing to depart to Australia and managing to make a trip to Thailand, the first applicant would not have arranged to bring copies of the written contracts entered when obtaining the loans or any other document to support his claims;

(c) the Tribunal placed weight on the absence of any claim in the protection visa application that the first applicant travelled to South Korea to work and try and make the repayments and the Tribunal considered it significant that the first applicant was willing to voluntarily return to Malaysia from South Korea on two separate occasions despite the harm he claimed to have feared;

(d) the Tribunal considered the second applicant's reluctance to travel to South Korea with the first applicant suggested a lack of genuine impending fear on her part in Malaysia; and

(e) the Tribunal did not consider that the consistency in the applicants' evidence overcame its concerns about the credibility of the claims and rather expressed the view that the consistency of the claims reflected the evidence having been rehearsed or prepared.

1. The Tribunal did not accept that the first applicant borrowed money from one or more loan sharks or unlicensed money lenders and did not accept that the applicants or another person had been harassed, tortured or harmed for those reasons or for any other reason. The Tribunal did not accept the first applicant's claim that loan sharks or persons associated with them took his motorbike or physically harmed him and the Tribunal did not accept that the first applicant travelled to South Korea to work and pay off debts to unlicensed money lenders. The Tribunal did not accept that the applicants would face a real chance of harm if they were returned to Malaysia because they had borrowed money or because they owed money to loan sharks or unlicensed money lenders.
2. The Tribunal accepted that when the first applicant came to Australia, he stopped making repayments on his motorbike and consequently was subject to a bankruptcy notice from the bank. The Tribunal did not consider that the applicants would face a real chance of harm serious harm if they returned to Malaysia with the first applicant being an undischarged bankrupt.
3. Having regard to these findings of fact, the Tribunal did not accept that the applicants met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) the Migration Act.

1. The grounds in the applicants' judicial review application filed on 18 December 2024 read:
   1. The decision made to refuse my Protection Visa application by the decision maker has a jurisdictional error.
   2. The decision maker's statement about the applicant not facing harm when returned to Vanuatu is purely based on his/her personal opinion and not on any facts.
2. Pursuant to an Order made by a Registrar of this Court on 22 May 2025, the applicants were required to file written submissions, any amended application, and any additional evidence upon which they wish to rely 28 days prior to the hearing. They did not file any documents in accordance with this Order.
3. At the commencement of the hearing, the applicants sought an adjournment of the hearing. I refused to grant the adjournment and gave oral reasons for that decision. In the course of making the application for an adjournment, the applicants explained that the grounds in the application were not prepared by them and they wanted an opportunity to start again to present their case.
4. At the hearing, I gave examples to the applicants of some of the categories of jurisdictional error that sometimes arise in migration cases. I gave them an opportunity to explain to the Court why they believe the Tribunal made a jurisdictional error, unconfined by their grounds of application. The upshot was that the applicants did not rely on ground 1 and did rely on ground 2, acknowledging that the reference to Vanuatu was an error given that they are citizens of Malaysia.
5. The evidence before the Court comprises:

(a) an affidavit of the first applicant filed with the judicial review application, which repeats the grounds and annexes a copy of the Tribunal decision;

(b) the court book filed on behalf of the Minister on 4 June 2025; and

(c) an affidavit of service of Margarita Carmen Woollett filed on behalf of the Minister on 4 February 2026.

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 applicants' 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 applicants if they establish 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].

Was the Tribunal decision based on personal opinion and not fact?

1. After the applicants indicated at the hearing that they relied on ground 2, I explained that the Minister has interpreted their ground as an allegation of bias and briefly referred to the requirements to establish actual or apprehended bias. The applicants confirmed that the ground should be interpreted as an assertion of bias.
2. The applicants are required to clearly prove any claim of bias. To establish apprehended bias, they will need to show that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: 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]. To establish actual bias, the applicants will need to show that the Tribunal approached its task with a mind closed to persuasion and incapable of alteration: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71]- [72], [127].
3. In considering the applicants' assertion of bias, it is important in the context of this matter to recall that the Tribunal was not required to uncritically accept the applicants' claims and evidence: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451. A finding by the Tribunal that it did not accept some or all of an applicant's evidence, or that it preferred other evidence, does not, of itself, show that a Tribunal made a decision based on personal opinion rather than evidence, or that the Tribunal was biased in any way.
4. When invited to better explain their assertion of error, the applicants submitted that the Tribunal misunderstood parts of their evidence in finding inconsistencies and rejecting their claims. In particular, the applicants referred to the Tribunal's rejection of the first applicant's explanation for not bringing documentary evidence to support his claims, and submitted that the Tribunal misunderstood:

(a) their evidence that the first applicant went to South Korea twice to try to find a solution to pay the loan, and then the applicants came here to try to find another solution; and

(b) that, in discussing the contact the applicants had with their family before coming to Australia, the applicants used the word 'visiting' but the Tribunal used the word 'spending time'.

1. The Tribunal's rejection of the first applicant's explanation of the reasons he did not bring documentary evidence to Australia was addressed at [59]-[61] of the Tribunal's reasons, where the Tribunal said:
   1. I do not accept the PRA's [primary review applicant's] explanation that he did not bring any documentary evidence to support his claims because, after returning from South Korea on the second occasion, he 'could not think' and was trying to survive or that there is any other reason that might cause me not to place weight on this matter. Such a contention is inconsistent with the PRA spending two weeks visiting family, travelling to Thailand and voluntarily returning from Thailand.
   2. I do not accept that it is plausible that despite intending to come to Australia to seek protection, spending two weeks visiting family and preparing to depart for Australia and managing to make a trip to Thailand, regardless of whether it was to save money on luggage for their travel to Australia or a honeymoon, that the PRA would not have arranged to bring copies of the written contracts he entered into when obtaining these loans or any other documentary records that might support his claims, including but not limited to bank statements and documents evidencing the work he undertook in South Korea to obtain funds to repay the loan sharks.
   3. While I accept that persons fleeing a country may not always be able to bring documents with them, the applicant had a not insignificant period while preparing to leave during which he could have made arrangements to bring this material with him, particularly in circumstances where the PRA intended to apply for protection after he arrived in Australia.
2. In relation to the Tribunal's references to the first applicant's travel to South Korea, the applicants submitted that what they were trying to say to the Tribunal is that the first applicant went to South Korea to try to find another solution to make the payment on the loan, but the Tribunal misunderstood what they were trying to say. The first applicant went to South Korea two times, the first time for two months and the second time for one month. They then decided to come to Australia to find another solution. The applicants referred to the Tribunal's finding that the second applicant's reluctance to accompany the first applicant to South Korea indicated a lack of fear and submitted that the first applicant only went to South Korea to look for solutions for payment.
3. The applicants' complaint about the Tribunal's consideration of their evidence relating to the first applicant's time in South Korea appears to extend beyond the Tribunal's finding at [59] as to the reason the first applicant did not bring documentary evidence to support his claims.
4. The Tribunal summarised the applicants' oral evidence about the first applicant's travels to South Korea at [37], [38] and [47], including that the first applicant travelled to South Korea to work but voluntarily returned to Malaysia after two months having earned an amount which he said was insufficient to cover the interest repayments on the loans. The Tribunal also noted that the protection visa application suggested that the first applicant's trips to South Korea were for 'travel' and nothing about South Korea was included in his employment history. The Tribunal recorded that the first applicant attributed this to the second applicant completing the protection visa application form. The Tribunal also recorded that the second applicant explained that she was unsure when completing the form whether she was required to give truthful information or random details and that she did not realise the form required a comprehensive account of the first applicant's activities: Tribunal's reasons at [42], [47].
5. The Tribunal made findings about the first applicant's travel to South Korea at [62]-[63] of its reasons and said:
   1. I place weight on the absence of any claim in the protection visa application that the PRA travelled to South Korea to work to try and meet the repayments. The absence of any such claim is even more concerning given that the travel to South Korea was expressly disclosed, but no claim was made to have engaged in employment there.
   2. Significantly, the PRA was willing to voluntarily return to Malaysia from South Korea on two separate occasions despite the harm he claimed to have feared. I also consider the secondary applicant's expressed reluctance to accompany the PRA to South Korea suggestive of a lack of genuine or impending fear on her part in Malaysia. The combination of both adds to my concerns as to the credibility of the claims made.
6. I accept the Minister's submission that this shows that the Tribunal did not misunderstand the applicant's evidence about the first applicant's travel to South Korea, but rather considered the evidence and did not accept that the first applicant travelled to South Korea because of problems with a loan shark. The Tribunal's approach does not demonstrate apprehended or actual bias and does not suggest that the Tribunal made a decision based on 'personal opinion' rather than evidence. Rather, the Tribunal's reasons demonstrate that it carefully considered the evidence before it and made findings after having considered the evidence that were open to it.
7. There is also no apprehended or actual bias apparent from the Tribunal's expressed concerns that the first applicant did not provide documentary evidence of the work he did in South Korea to, on his evidence, repay the amount owing to loan sharks (see Tribunal's reasons at [60]) or its rejection of the first applicant's more general claim not to have brought the documentary evidence that he claimed he had because of being unable to think or trying to survive after returning from South Korea the second time. Again, these findings were made after careful consideration of the evidence and were open to the Tribunal on the evidence before it.
8. The second concern the applicants raised based on the Tribunal's reasoning at [59] relates to the Tribunal using the phrase 'spending time' rather than using the word 'visiting' when discussing the applicants' contact with their family prior to travelling to Australia. The applicants submitted to the Court that they were saying goodbye to people because they did not know when they would meet again and that they were going to their hometown to see their parents, not visiting for a holiday. When I invited the applicants to explain why the Tribunal's use of 'spend time' rather than 'visit' might cause a fair-minded lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to the review the first applicant submitted that he just went back to ask for permission.
9. I accept the Minister's submission that the Tribunal treated the phrases 'visiting' family and friends and 'spending time' with family and friends as analogous.
10. The Tribunal used both phrases in its reasons. In particular:

(a) at [39] of its reasons, the Tribunal summarised the first applicant's evidence as being that after he returned to Malaysia in March 2018, he 'spent time' with his and his wife's families before departing for Australia; and

(b) at [59] and [60] of its reasons, the Tribunal referred to the first applicant 'spending two weeks visiting family...'.

1. There is nothing in the language used by the Tribunal to show that the Tribunal had predetermined the matter and had a mind closed to persuasion. There is also nothing before the Court to suggest that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review because of the choice of phrases 'spending time' or 'visiting' employed by the Tribunal.
2. I do not accept that the Tribunal misunderstood the first applicant's evidence because, in one part of its reasons, it used the phrase 'spent time' when the first applicant says that he used the word 'visit'. Even if I were to assume that the more fulsome explanation offered by the applicants at the hearing before the Court, summarised at [32] above, was before the Tribunal (and there is no evidence of this), that explanation would not support any finding that the Tribunal misunderstood the applicants' evidence or that the Tribunal decision is affected by bias.
3. The applicants also made a more general submission that the Tribunal decision was not consistent with their evidence and that the Tribunal misunderstood the harm they would face if they return to Malaysia. The applicants submitted that the Tribunal thought they would not face harm at all, but a few situations already happened to the second applicant and her family when the first applicant was in South Korea. The Tribunal misunderstood the fear the applicants were facing and thought it was just a small matter. The applicants submitted that the Tribunal based its decision on its own opinion and not on the real situation that they are facing. In this respect, the applicants referred to [65] of the Tribunal's reasons. In this paragraph, the Tribunal said:

Given my findings, I do not accept that the PRA borrowed money from one or more loan sharks or unlicensed money lenders. It follows that I do not accept that the PRA, the secondary applicant or any person has been harassed, tortured or harmed by any person for those reasons or any other reason. I do not accept that the loan sharks or persons associated with them took the applicant's motorbike or physically harmed him in any way. I do not accept that the PRA or the secondary applicant face a real chance of harm if they are to be returned to Malaysia because they have borrowed money or because they owe money to one or more loan sharks or unlicensed money lenders.

1. The applicants referred to the Tribunal's finding that their evidence was rehearsed or prepared as something that suggests that the Tribunal had made its decision based on its personal opinion and not the applicants' situation.
2. I accept the Minister's submission that the Tribunal carefully considered the applicants' claims and engaged with the evidence that the applicants provided. I further accept the Minister's submission that the Tribunal made findings that were open to it on the evidence before it. The Tribunal's rejection of the applicants' claims, having carefully considered the evidence before it, and its view that aspects of the applicants' evidence seemed rehearsed, does not demonstrate that the Tribunal misunderstood the applicants' claims or that the Tribunal decision was affected by apprehended or actual bias. The applicants have not identified anything in the Tribunal's reasons or the other evidence before the Court that might cause a fair-minded lay observer to reasonably apprehend that the Tribunal might not have brought an impartial mind to the review, or that the Tribunal had pre-judged the matter and approached its task with a mind closed to persuasion.
3. The ground relied on by the applicants does not establish jurisdictional error in the Tribunal decision.

Is there any obvious jurisdictional error in the Tribunal decision?

1. Even though the applicants effectively abandoned the general assertion of jurisdictional error in ground 1 of the judicial review application, in circumstances where they are self-represented, I have nevertheless considered whether there is any obvious jurisdictional error in the Tribunal decision. I have not identified any such error.
2. There is nothing in the materials before me to suggest that the applicants were denied procedural fairness in the conduct of the review. As submitted by the Minister, the applicants were invited to attend the hearing before the Tribunal and were assisted by an interpreter at that hearing. The applicants were given a fair opportunity to present their case and the Tribunal took evidence from the first applicant's sister as requested by the applicants. There is nothing in the materials before the Court to suggest that the Tribunal did not comply with any relevant procedures in the Migration Act or the Administrative Review Tribunal Act 2024 (Cth).
3. The Tribunal considered all the claims for protection and the evidence submitted by the applicants in support of those claims. I have not identified any relevant claims or evidence that the applicants provided to the Tribunal but which the Tribunal did not consider.
4. The decision made by the Tribunal was open to it on the evidence before it and there is nothing to suggest that any aspect of the Tribunal's decision was illogical or irrational. I also accept the Minister's submission that there was nothing in the process adopted by the Tribunal that was unreasonable.
5. There is nothing in the material before the Court to suggest that the Tribunal misunderstood or misapplied the relevant law in any way. The Tribunal clearly identified the relevant criteria for the grant of a protection visa and assessed the applicants' claims against those criteria.

Other matters raised in the applicants' submissions

1. The applicants also referred to the possible hardship their children will face if they are required to return to Malaysia. While the Court appreciates that the applicants may wish to remain in Australia and raise their children here, this is not something that the Court may consider in assessing their judicial review application.

1. The applicants have not established that the Tribunal made any jurisdictional error. Their application for judicial review is therefore dismissed.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.