FEDERAL COURT OF AUSTRALIA

ACL17 v Minister for Home Affairs [2019] FCA 753

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the Minister for Home Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 21 December 2018, which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), made on 6 December 2016. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs) (the Minister), not to grant the appellant a protection visa.

2    The appellant is a citizen of Malaysia. He arrived in Australia on 15 March 2011 holding an Electronic Travel Authority (Class UD) visa, which ceased on 15 June 2011, after which he remained in Australia without a valid visa. On 29 January 2015, the appellant made his application for a protection visa. This was refused on 25 August 2015. On 7 September 2015, the appellant applied to the Tribunal to review the delegate’s decision. On 30 November 2016, the appellant appeared before the Tribunal and, on 6 December 2016, the Tribunal affirmed the decision under review.

3    The appellant based his application for a protection visa on a claimed fear of harm by reason of his race, political opinion, religion and his status as an HIV-affected person. The present appeal concerns the appellant’s claim as an HIV-affected person and how the Tribunal, and then the Federal Circuit Court, dealt with that claim.

The Tribunal

4    It is necessary to start with the way in which this particular claim came before, and was put to, the Tribunal. At [14] of its Decision Record, the Tribunal said:

14.    The applicant appeared before the Tribunal on 30 November 2016 to give evidence and present arguments. The applicant had previously attended a case conference before the Tribunal (differently constituted to the current Tribunal) on 22 September 2016 in an effort to ascertain if the applicant wished to provide further information to the Tribunal. The applicant was allowed until 13 October 2016 to provide any further written statements to the Tribunal in support of his claims. The applicant provided a one page document on 28 November 2016 to the Tribunal. In summary in that document the applicant said that he feared harm if he returned to Malaysia on the basis of his Chinese and Indian ethnic extraction. He also claimed that he had been wrongly identified as a Muslim Malay in Malaysia and suffered harm and as a Malay Chinese he had been treated as a second-class citizen in Malaysia. He also raised some new claims and they were that he intended to become a Roman Catholic and as such feared harm if he returned to Malaysia. He also claimed to fear harm because he was a supporter of the Bersih movement in Malaysia. He also claimed to fear harm if he returned to Malaysia because he had been recently diagnosed with HIV and feared harm on the basis that he would be severely discriminated against because of that condition and he would not be able to afford treatment in Malaysia.

    (Emphasis added.)

5    Dealing specifically with the appellant’s claim to fear harm by reason of his HIV status, the Tribunal recorded the following at [23] of its Decision Record:

23.    The Tribunal asked the applicant about his claims to fear harm on the basis of being HIV positive. He told the Tribunal that he did not know how he became infected and that he had only been diagnosed in October 2016. He said he thought he may have become infected when he had a tattoo done in Malaysia. He said people were afraid of HIV in Malaysia and he said he would be abandoned and looked down upon in Malaysia. He referred to a friend of his who had contracted AIDS in Malaysia and he said that person could no longer be contacted. He told the Tribunal that his treatment for HIV in Australia does not cost him anything and he provided information about where he obtains treatment in Sydney. The Tribunal asked him about being treated in Malaysia and what he knew about treatment in Malaysia for HIV. The applicant said he had searched the Internet and found an article about the cost of treatment in Malaysia. The Tribunal asked if he had a copy of the article or if he could tell the Tribunal any details about the article. The applicant was unable to produce a copy of the article or to provide any details. The Tribunal referred to the DFAT country report for Malaysia in relation to health services in Malaysia. The Tribunal noted the country report indicated that Malaysia spends approximately 4% of GDP per annum on health and has experienced significant improvements in health standards in recent decades. The Report indicates that Malaysia has well established and extensive healthcare services that include nationwide public healthcare centres administered by the Ministry of health, hospitals and a growing number of private services predominately in urban areas.

6    It was not suggested before the Federal Circuit Court, and it is not suggested in this appeal, that this paragraph of the Tribunal’s Decision Record is an inaccurate or incomplete statement of the way in which the appellant advanced this aspect of his claim to a protection visa. It is apparent from the quoted paragraph that the appellant’s claim was expressed at a high level of generality without supporting evidence. Leaving to one side the claim about cost, it is a claim whose focus is societal reaction or, as the appellant put it, discrimination from the community at large: people in Malaysia are afraid of HIV and that, for this reason, the appellant would be abandoned and looked down on. The appellant made no claim about his family’s reaction or their likely reaction if informed of his condition.

7    In its consideration of the appellant’s various claims and the evidence in support of them, the Tribunal made the following finding in respect of his HIV positive status at [50] of its Decision Record:

50.    The applicant also claimed that he feared harm if he returned to Malaysia because he had been diagnosed with HIV. As indicated he produced a medical document to the Tribunal in relation to that and other medical issues. He told the Tribunal that he had been diagnosed with HIV in October 2016. He claimed to fear harm if returned to Malaysia on this basis because he would be discriminated against in Malaysia because people in Malaysia are afraid of HIV and he would be abandoned and looked down on in Malaysia. He told the Tribunal he was not gay and did not use drugs when asked about his HIV condition. He claimed to have found an article on the Internet in relation to receiving treatment for HIV in Malaysia. He not produce that article to the Tribunal or provide any details to the Tribunal about that article. As indicated the Tribunal noted the DFAT country report information in relation to the Malaysian health system. That report indicates that Malaysia has a well established and extensive healthcare services sector that includes nationwide public healthcare centres and including hospitals and a growing number of private services predominantly in urban areas. The Tribunal also notes that Malaysia developed a national strategic plan (administered by the Ministry of Health) for dealing with HIV/AIDS and that plan was for the period 2011 to 2015. That plan in part refers to treatment for people diagnosed with HIV/AIDS being heavily subsidised by the Malaysian government. A Wikipedia search indicates that the Ministry of Health Malaysia provides a highly active antiretroviral treatment/therapy [in] Malaysia free to HIV/AIDS sufferers and has done so since 2006. The Tribunal's overall assessment of the country information that has been referred to is that the Malaysian government actively pursues a policy of attempting to manage and eradicate HIV/AIDS and provides significant assistance to sufferers. The DFAT country report information as indicated provides that Malaysia has a well established and extensive healthcare services sector. The applicant apart from claiming that he would be discriminated against and abandoned on the basis of his HIV condition in Malaysia provided very little evidence in support of that claim. The Tribunal finds that the country information referred to does not support the applicant's claims. The Tribunal also notes that the applicant has family in Malaysia and he said that he stays in touch with that family about once a month and that evidence indicates that the applicant could reasonably be expected to enjoy some family support if he returned to Malaysia.

    (Emphasis added.)

8    At [55] of its Decision Record, the Tribunal found:

55.    The Tribunal has considered the applicant's claims that he fears harm on the basis of being HIV positive if he returned to Malaysia. The Tribunal accepts that the applicant is HIV positive based on the medical document provided to the Tribunal by the applicant. The Tribunal has referred to country information in relation to HIV issues in Malaysia. The applicant claimed that he would be discriminated against and abandoned because he has HIV if he returned to Malaysia. The Tribunal in assessing the applicant's claims and the relevant country information that has been referred to does not accept that the applicant would be discriminated against or abandoned because he has HIV if he returned to Malaysia. The relevant country information that has been referred to indicates that the Malaysian government has a well developed policy in relation to the treatment of HIV/AIDS patients and that Malaysia has a well developed health system and provides government support in relation to medical treatment for HIV patients. That information does not support the applicant's claims.

The Federal Circuit Court

9    In his application for judicial review, the appellant advanced four grounds dealing specifically with the Tribunal’s findings and conclusions in respect of the claim based on his HIV positive status: Grounds 2, 3, 4 and 6.

10    Ground 2, as relevantly particularised, was:

2.    The Second Respondent fell into jurisdictional error by not providing procedural fairness to the Applicant in relation to certain findings it made.

Particulars

    a.    The Applicant contended that he would be abandoned because of his HIV status.

    b.    The Second Respondent found that the Applicant could reasonably be expected to enjoy some family support in Malaysia based solely on the information that the Applicant stays in touch with his family once a month.

    c.        At the hearing, the Second Respondent did not inquire from the Applicant:

i.    Who he feared would abandon him because of his HIV status; or

ii.    Whether his family in Malaysia were aware of his HIV status; or

iii.     Whether his family would support him if they discovered he was HIV positive; or

iv.    What beliefs his family held about HIV and/or people living with HIV.

    d.    The Second Respondent did not put to the Applicant any information that it relied on to make the finding that the Applicant would enjoy the support of his family and therefore fell into error.

    e.    The Second Respondent failed to deal with the claim that the Applicant would be abandoned because of his HIV status by not affording the Applicant the opportunity to be heard on this issue.

    …

11    In relation to this ground, the primary judge found at [26]:

26.    I accept that, to the extent that this ground contends that the Tribunal failed to give the applicant an opportunity to be heard in respect of his HIV claims, the transcript evidence reveals that the applicant was plainly questioned and given an opportunity to articulate his claims to fear harm in respect of his HIV status. In response to the Tribunal's question as to why he would be discriminated against, the applicant simply responded that, "If you have this disease in Malaysia, people will be afraid of you and you will be abandoned and you will be looked down on". The applicant did not give any further detail despite being on notice that the "purpose of the hearing" was for the applicant to "give evidence in support of [his] case" and that this was his "opportunity to raise any other matters" that the applicant considered relevant. It is well established that contrary to the assertions raised by this ground, it was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts. The Tribunal was not required to make the applicant's case for him nor deal with claims which were not articulated or did not clearly arise from the materials before it. The evidence before the Court reveals that the applicant was given a real and meaningful hearing in accordance with s.425 of the Migration Act 1958 (Cth) (Migration Act) and no breach of the procedural fairness requirements in Part 7, Division 4 of the Migration Act has been identified by the applicant.

12    At [27], after dealing with a matter unrelated to the grounds of appeal before this Court, the primary judge made the following observation:

27.    … The applicant might have advanced a case on judicial review that the Tribunal's finding at [50] that he "could reasonably be expected to enjoy some family support if he returned to Malaysia" was irrational. It was based only upon the applicant's evidence that he contacted his family about once a month. The finding took no account of the fact that his family apparently are unaware of his HIV status and his evidence of social ostracism of persons with HIV in Malaysia. That, however, was not how the case was put. Ground 2 as put does not establish any jurisdictional error.

13    Ground 3, as relevantly particularised, was:

3.    The Second Respondent fell into jurisdictional error by failing to consider relevant information that was central to the Applicant's claims.

Particulars

a.    The Applicant claimed at the hearing that he would be discriminated against on account of his HIV condition, that people would be scared of him and that he would be looked down upon. The Second Respondent made a general finding that the Applicant would not face discrimination in Malaysia because of his HIV condition based on country information it cited about the Malaysian government's attitude towards HIV sufferers and because the Applicant provided very little evidence of this discrimination. The Second Respondent in its decision referred to information from Malaysia's National Strategic Plan for Dealing with HIV/AIDS for the period of 2011 to 2015 however failed to consider or mention in its decision information in the same plan that stated that stigma and discrimination continues to be an issue for people in Malaysia.

…

14    In relation to this ground, the appellant contended that the Tribunal failed to consider information from the Malaysia National Strategic Plan on HIV and AIDS 2011 – 2015 (the first strategic plan) that stated that stigma and discrimination continued to be an issue. At [30] – [31], the primary judge found:

30.     Before the Tribunal, the applicant claimed to fear harm as a result of his HIV status on the basis that he would be discriminated against and would not be able to afford treatment costs. The applicant provided no country information to support his claim that he would be discriminated against on his return to Malaysia. It is trite to recall that the choice and assessment of country information is a factual matter for the Tribunal.

31.     While the Tribunal did not expressly refer to the particular part of the Malaysia National Strategic Plan on HIV and AIDS 2011-2015 about social stigma and discrimination, the Tribunal identified the document in its written reasons, and there is no support for the contention that the Tribunal overlooked the particular excerpt to which the applicant now points. On the material before it, including the Malaysia National Strategic Plan, it was reasonably open to the Tribunal to conclude that the applicant did not face a risk of serious harm on return. Further, the applicant has not identified anything in the country information before the Tribunal which, if not considered, would have amounted to jurisdictional error because the Tribunal had failed to consider centrally important evidence which resulted in the Tribunal failing to consider the applicant's claims.

15    At [33], the primary judge also found:

33.    With respect to the reference in the DFAT country report to official discrimination of Muslims/ethnic Malays, this information had no relevance to the applicant's individual circumstances. The DFAT country report stated that ethnic Malays were Muslims at birth and their Muslim status was recorded on their birth certificate and national identification card. As such, the information about the government compelling individuals attempting to convert from Islam to attend rehabilitation programs simply did not apply to the applicant.

16    At [32], the primary judge again offered the following observation:

32.    It is true that the Tribunal at [50] dealt with the claim of discrimination and abandonment by reference to assumed family support. As noted above, the applicant might have challenged that finding on the basis of asserted irrationality but he has not done so. If he had done so, that issue would have impacted also on the Court's consideration of this ground.

17    Ground 4 was:

4.    The Second Respondent fell into jurisdictional error by making findings based on no evidence.

a.    The Applicant claimed that he would be subjected to discrimination and abandoned on account of his HIV condition.

    b.    The Second Respondent in its decision states that the country information it refers to suggested that the Malaysian government actively pursues a policy of attempting to manage and eradicate HIV/AIDS and provides significant assistance to sufferers. The Second Respondent also referred to the DFAT report indicating that Malaysia has [a] well established and extensive health care sector. Based on this country information the Tribunal found the Applicant would not face discrimination if he returned to Malaysia on account of HIV status.

    c.    While the country information cited by the Second Respondent to make its finding may have been relevant to whether the Applicant would face discrimination from the Malaysian government, the Tribunal had no evidence to make a finding that the Applicant would not suffer discrimination from non-state actors and/or the Malaysian community.

    d.    The Second Respondent also made the findings in paragraphs 2(a)-(e) above that the Applicant would have support from family available to him based on no evidence.

18    In relation to this ground, which was a “no evidence” challenge in relation to the appellant’s claim that he would be abandoned and looked down on because of his HIV condition, the primary judge noted that the Tribunal did not make a positive finding that the appellant would not suffer discrimination from non-state actors. Further, after noting that the Tribunal was not required to accept uncritically any claims made by the appellant and that the Tribunal itself was not obliged to provide evidence in support of its conclusions, the primary judge also noted that it was the appellant’s own evidence at the hearing before the Tribunal that he was in regular contact with his family in Malaysia and that this evidence led the Tribunal to conclude that the appellant could reasonably be expected to enjoy some family support if returned to Malaysia. The primary judge concluded, therefore, that the appellant had not shown that there was no evidence upon which the Tribunal’s finding, in this regard, was based: see at [35] – [36].

19    Ground 6 was:

6.    The Second Respondent fell into error by taking into account irrelevant considerations in relation to central elements of the Applicant's claims and failed to deal with the claim that the Applicant would suffer discrimination on account of his HIV status.

a.    In rejecting the Applicant's claim that he would suffer discrimination on account of his HIV status and that he would not be able to access treatment for his condition, the Second Respondent relied upon Malaysia's National Strategic Plan for Dealing with HIV/AIDS for the period of 2011 to 2015.

b.    At the date of the decision, this plan was outdated and the relevant plan for the period was the "National Strategic Plan for Ending AIDS 2016-2030." Given that the Second Respondent was required to apply a forward looking test, the Second Respondent erred in relying on the older irrelevant plan in making its finding where the new relevant plan was publically available.

20    In relation to this ground, which concerned an allegation that the Tribunal erred in relying on the first strategic plan and not the National Strategic Plan for Ending AIDS 2016 – 2030 (the second strategic plan), the primary judge found that the choice and assessment of country information was a factual matter before the Tribunal to determine: see, in this regard, NAHI v Minister for Immigration [2004] FCAFC 10 at [11] – [13]. The primary judge said that it could not be said, as a matter of law, that the first strategic plan was irrelevant to the Tribunal’s consideration. Further, his Honour held that, absent a Ministerial direction, the Tribunal was not obliged to enquire into more recent country information than was before it: VTAG v Minister for Immigration (2005) 141 FCR 291 at [41]; VWFW v Minister for Immigration [2006] FCAFC 29. At [42], the primary judge held:

42.        I accept from Minister for Immigration v MZYTS, ARG15 v Minister for Immigration and MZYXP v Minister for Immigration, that where the Tribunal has various pieces of country information before it, it may fall into error by not considering the most recent or cogent information. That does not mean, however, that the Tribunal has to go hunting for information it does not have. There is no general duty to inquire and nothing in this case triggered an obligation to inquire.

21    The primary judge concluded that the appellant had failed to establish that the Tribunal’s decision was affected by jurisdictional error, and dismissed the application for judicial review.

The Appeal

The grounds of appeal

22    The notice of appeal contains the following grounds:

1.    The primary judge erred at paragraph 26 in finding that the Appellant was …afforded procedural fairness.

a.    As a self-represented litigant, the Second Respondent was required to exemplify a practice which gives due consideration and proper regard for the needs of the Appellant. The Second Respondent failed to do so, causing an injustice to the Appellant for failure to conduct a fair and meaningful hearing.

b.    Further, the Second Respondent did not afford procedural fairness to the Appellant however made a finding that the Appellant “could reasonably be expected to enjoy some family support if he returned to Malaysia” where there was no basis to make such a finding. Such a finding is simply irrational or illogical.

2.    The primary judge erred at paragraph 29 in finding that there was no jurisdictional error in the Second Respondent’s decision where the Second Respondent failed to consider relevant country information central to the Appellant’s claims that was squarely before it.

a.    In the court below, the Appellant pleaded that the Second Respondent failed to consider information from the Malaysia National Strategic Plan on HIV and AIDS 2011-2015 (the Plan) that stated stigma and discrimination continued to be an issue for people with HIV in Malaysia.

b.    The Second Respondent referred to other aspects of the Plan in its decision and the Plan was therefore squarely before it.

c.    The Second Respondent makes no reference in its decision to the information in the Plan.

d.    The fact that the Tribunal did not specifically refer to the information in its decision and then made a finding that the Appellant would not suffer stigma and discrimination in Malaysia indicated that the Tribunal had not considered the relevant information.

e.    The Primary Judge erred in finding that given that the Tribunal identified the Plan in its written reasons, that there was no support for the contention that the Tribunal overlooked the information referred to in paragraph 1(a).

3.    The primary judge erred at paragraph 42 in concluding that the obligation of the Second Respondent to inquire was not triggered. As a matter of law, the cogency and most up to date information in the National Strategic Plan for Ending AIDS 2016-2030 required the Second Respondent to inquire.

4.    The primary judge erred at paragraph 36 in finding that the Appellant was in “regular contact” with his family and that there was evidence that the Appellant “could reasonably be expected to enjoy some family support if he returned to Malaysia” and there was therefore no jurisdictional error.

a.    The Appellant gave evidence in hearing before the Second Respondent that he was in touch with his family “once in a while” and “once a month”. There was no evidence that the Appellant had family support regarding his HIV status as a result of that contact with his family, given the Appellant’s family were not aware of his HIV status. Such a finding is simply illogical or irrational.

b.    Further, there was no basis for the Second Respondent to make the finding that the Appellant “could reasonably be expected to enjoy some family support if he returned to Malaysia” and this submission was put before the primary judge in the hearing in the Federal Circuit Court of Australia.

5.    The Second Respondent fell into jurisdictional error by making illogical or irrational findings in its decision.

a.    The Appellant specifically stated at the hearing before the Second Respondent that he feared that he would be abandoned because of his HIV status in Malaysia.

b.    In its decision, the Second Respondent made a finding that the Appellant “could reasonably be expected to enjoy some family support if he returned to Malaysia”.

c.    The finding took no account of the fact that the Appellant’s family are unaware of his HIV status and his evidence of social ostracism of person with HIV in Malaysia.

d.    The Tribunal therefore illogically or irrationally dealt with the Appellants claim of discrimination and abandonment by reference to assumed family support falling into error.

23    Ground 5 was not raised in the appellant’s application for judicial review in the Federal Circuit Court and leave is required to rely on it now. The same may be said of the last sentence of Ground 1(b).

Should leave be granted to rely on Ground 5?

24    I am not persuaded that leave should be granted.

25    First, no explanation has been proffered as to why this ground was not raised in the application for judicial review in the Federal Circuit Court, where the appellant was legally represented. He has the same representation in this appeal.

26    Secondly, in light of the grounds of review raised below and the way in which the appellant’s case was argued in the Federal Circuit Court, it is apparent that detailed consideration had been given to the Tribunal’s decision at that time and that all grounds of review, which were then considered to be viable, had been considered and raised by the appellant’s legal representatives. It is apparent that the Tribunal’s decision on this and other aspects was not considered to be illogical or irrational in any respect, let alone in the respect identified in Ground 5.

27    Thirdly, the impetus for raising this ground now seems only to be the various observations made by the primary judge in his reasons for judgment, which I have quoted at [12] and [16] above. The fact that those observations were made does not mean that the Tribunal’s decision was affected by jurisdictional error on this basis. The primary judge made no finding to that effect.

28    Thirdly, I am not persuaded that Ground 5 has merit. The appellant made no claim that his family would abandon or look down on him. His only claims in respect of his HIV positive status were his claim based on the societal reaction to which I have referred, and his claim that he could not afford treatment in Malaysia.

29    On the question of discrimination, the relevant passages of the transcript are:

MEMBER JOLLIFFE: And so you say that you will be severely discriminated as a HIV positive person in Malaysia and you cannot afford the treatment cost.

INTERPRETER: Correct.

MEMBER JOLLIFFE: Why would you be discriminated against?

INTERPRETER: If you have this disease in Malaysia, people will be afraid of you and you will be abandoned and you will be looked down on.

MEMBER JOLLIFFE: How do you know that?

INTERPRETER: Because I also heard a friend of mine had aids and we cannot find this person anymore. We don't know his whereabouts.

MEMBER JOLLIFFE: But he may have died or he may have moved somewhere else. How do you know - what does that mean? That doesn't mean he's been discriminated against if you can't find him and you don't know what's happened to him.

INTERPRETER: Because many people laugh at him and he could not survive there.

30    As the primary judge correctly observed at [26], it was for the appellant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts. The Tribunal considered and dealt with this particular claim responsively to the generalised way in which the appellant advanced it. Having disposed of the claim that was advanced (in the preceding sentences of [50] of the Decision Record), the Tribunal merely added the qualified observation that the evidence indicates that the appellant could reasonably be expected to enjoy some family support if the he returned to Malaysia.

31    This qualified finding was more in the nature of an aside. As such, it was, as the Minister submitted, subsidiary to the Tribunal’s rejection of the appellant’s claim of societal discrimination by the community at large, which the Tribunal had already dealt with. So viewed, this finding was not material to the Tribunal’s ultimate decision on this aspect of the appellant’s claim, in the sense that, if illogical or irrational, it deprived the appellant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [30] - [31]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [2], [3], [48] and [49]; CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [59].

32    Even so, I do not accept that this particular finding was illogical or irrational in the sense in which those words have been used to denote jurisdictional error. As the Full Court observed in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47]:

47     Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

33    As the primary judge concluded in the present case, it cannot be said that there is no evidence for the Tribunal’s finding. It proceeded from the appellant’s own evidence that he remained in monthly contact with his family (his father, mother and a brother). Given this continuing contact, and absent any reason to think to the contrary (because the appellant did not, and does not now, provide any reason to do so), it was not irrational or illogical for the Tribunal to proceed on the assumption that the appellant would enjoy sufficient familial affection and support to lead to the qualified expectation the Tribunal expressed.

34    For these reasons, Ground 5 should not be accepted and leave to rely on it should be refused.

Ground 1

35    As advanced in submissions, Ground 1 has two aspects. The first concerns procedural fairness where litigants in person are involved. According to the appellant, he was not accorded procedural fairness as a litigant in person because the Tribunal did not make a number of enquiries of him, such as who would abandon him because of his HIV status if he returned to Malaysia; whether his family in Malaysia were aware of his HIV status; and whether his family would, in fact, support him when or if they found out about his HIV status (assuming they did not already know). In essence, the appellant argues that the Tribunal should have provided greater assistance to him in advancing his claim by questioning him more closely on aspects of that claim.

36    I do not accept that submission. I have already quoted part of the transcript of the Tribunal hearing dealing with this claim. There are other parts I have not quoted, which the Minister took me to in oral submissions. I also note that the purpose of the hearing before the Tribunal was explained to the appellant, in particular that it provided him with the opportunity to give evidence in support of his case. It is clear from the transcript that the Tribunal questioned the appellant about his diagnosis and how he came to be HIV positive; why he would be discriminated against in Malaysia and how he knew that would be the case (see the passage quoted above); the appellant’s treatment in Australia; and the cost of treatment in Malaysia. Viewing this section of the transcript in its entirety, I am satisfied that the Tribunal provided the appellant with a fair and adequate opportunity to put before it all that he wanted to say on this aspect of his claim, particularly having regard to the responses he made to the Tribunal’s questions. As I have previously noted, the primary judge correctly observed at [26] that it was for the appellant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts.

37    This aspect of Ground 1 is also closely connected to the Tribunal’s finding at [50] of its Decision Record that the appellant could reasonably be expected to enjoy some family support if he returned to Malaysia. As I have explained above, the claim that the appellant made was directed to societal reaction to his HIV positive status, not familial reaction. Part of the appellant’s case is that he was denied procedural fairness because the Tribunal did not question him on his family’s reaction. In my view, there was no need to do so, given the way in which the appellant advanced this claim. As I have explained, the Tribunal’s finding about the reasonable expectation of family support was no more than an additional and subsidiary finding, which was not dispositive of the appellant’s claim as he formulated it.

38    The second aspect of Ground 1 is the assertion that the Tribunal’s finding about the reasonable expectation of family support was irrational and illogical. This aspect has already been dealt with in the findings I have made at [24] - [34] above.

39    The primary judge did not err in finding that the appellant was accorded procedural fairness. Ground 1 is not established.

Ground 2

40    Ground 2 is concerned with whether the Tribunal failed to consider particular information in the first strategic plan—namely, a statement that “(s)tigma and discrimination continues to be an issue, however it has lessen(ed) now” and similar statements. This part of the strategic plan does not elaborate on the stigma and discrimination to which it refers. It does, however, say that people living with HIV and those around them are affected, and that the stigma and discrimination affects the progress and successful implementation of HIV prevention, treatment, care and support programs with which the report deals. It is, of course, a government report dealing with the Malaysian government’s strategies for dealing with HIV and AIDS, and its implementation of those strategies. As I have indicated, other references to stigma and/or discrimination are made in the report, but the appellant did not suggest in submissions that these other references amplify the point already made in the statement I have quoted.

41    The appellant’s submission is that, because the Tribunal made no explicit reference to this particular part of the first strategic report, even though it referred to and discussed the report in [50] of its Decision Record, the Tribunal failed to engage with that information, which was central to the appellant’s claim that he would suffer discrimination in Malaysia, or did not consider that information to be critical to the appellant’s claim. Relatedly, the appellant submitted that, in [50] of its Decision Record, the Tribunal failed to deal individually with this claim that he would face discrimination from “people” on account of his HIV status as separate from any discrimination from the Malaysian government. The appellant submitted that the relevant country information (i.e., the statement quoted above and like statements) that supported his claim of discrimination was “squarely before it” and the Tribunal did not actively engage with or show any consciousness or consideration of this information at all.

42    It is convenient to repeat the salient parts of [50] of the Tribunal’s Decision Record:

… The Tribunal also notes that Malaysia developed a national strategic plan (administered by the Ministry of Health) for dealing with HIV/AIDS and that plan was for the period 2011 to 2015. That plan in part refers to treatment for people diagnosed with HIV/AIDS being heavily subsidised by the Malaysian government … The Tribunal’s overall assessment of the country information that has been referred to is that the Malaysian government actively pursues a policy of attempting to manage and eradicate HIV/AIDS and provide significant assistance to sufferers …

43    It is clear that, in this part of its reasons, the Tribunal was not attempting to provide a detailed or comprehensive summary of the entire report.

44    The primary judge found that there was no support for the contention that the Tribunal overlooked that part of the first strategic report on which the appellant relied: see [31] of the primary judge’s reasons quoted at [14] above.

45    As a matter of context, it is important to note that the appellant advanced no country information to support his claim of discrimination. He certainly did not advance the first strategic report or draw attention to any part of it as central to his claim of discrimination. Indeed, as the Tribunal remarked, the appellant provided very little evidence to support his claim in this regard. The Tribunal did, however, have access to country information and, in particular, to the first strategic report, which it chose to rely on. The passage I have quoted at [42] above shows that it engaged with that report, including in respect of the strategies of the Malaysian government to assist people living with HIV and vulnerable persons, and the obstacles to implementing the government’s strategies. It is of course true that the Tribunal did not reference in [50] of its Decision Record the particular statement in the first strategic report that I have quoted at [40] above. But I am not persuaded that the mere absence of specific reference to that statement leads to the positive conclusion that the Tribunal failed to have regard to it and like statements in its overall consideration of the report. I am not persuaded, therefore, that the primary judge erred in the conclusion he reached in [29] of his reasons. For these reasons, Ground 2 is not established.

Ground 3

46    Ground 3 is concerned with whether the Tribunal failed to enquire in a way that gives rise to jurisdictional error. The essence of this ground is that the Tribunal did not have regard to the second strategic plan when considering the appellant’s claim of discrimination based on his HIV status. Like the first strategic plan, the second strategic plan is a government report dealing with the Malaysian government’s strategies for dealing with HIV and AIDS, and the implementation of those strategies. The second strategic report refers to the reduction of stigma and discrimination for persons living with HIV as one of the Malaysian government’s priority programs for ending AIDS. I was taken to various passages in the report which, the appellant accepted, were not inconsistent with similar information in the first strategic report.

47    The second strategic report was not before the Tribunal. The appellant did not draw it to the Tribunal’s attention or base any claim on it. As the primary judge found (at [41]), the appellant could have made use of the report had he wished to. He did not. The primary judge concluded that the first strategic report was not irrelevant to the Tribunal’s consideration—a finding which can hardly be in doubt given Ground 2 of this appeal—and that the Tribunal was not obliged, as a matter of law, to enquire into more recent country information than was before it.

48    Ground 3 is without substance. The appellant has not identified anything in the first strategic report or any other circumstance that could trigger the need for the Tribunal to make further enquiries as part of its duty to review: see Minister for Immigration and Citizenship v SZAIA [2009] HCA 39 at [25]. The appellant cannot establish jurisdictional error by showing simply that the Tribunal did not consider later (but, it would seem, not inconsistent) information in a report which the appellant, himself, did not draw to its attention. No error has been demonstrated in the judgment below. Ground 3 is not, therefore, established.

Ground 4

49    Ground 4 concerns a “no evidence” challenge. The appellant submits that there was no evidence to support the Tribunal’s finding at [50] of its Decision Record that the appellant could reasonably be expected to enjoy some family support if he returned to Malaysia. The appellant repeated his contention that the Tribunal’s finding in this regard was illogical or irrational.

50    This ground is also without substance, for the reasons I have given when dealing with Ground 5: see [24] – [34] above. As I have explained, there was some basis for the Tribunal drawing the inference it did: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v MIAHI [2001] FCA 744; (2001) 65 ALD 141 at [34]. No error has been demonstrated in the judgment below. Ground 4 is not, therefore, established.

Disposition

51    Grounds 1 to 4 have not been established. The appellant should not be granted leave to rely on Ground 5. It follows that the appeal should be dismissed. The appellant should pay the Minister’s costs.

Associate:

Dated:    27 May 2019