Federal Court of Australia

DBA17 v Minister for Immigration and Multicultural Affairs [2025] FCA 438

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be changed to the Minister for Immigration and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore; revised from transcript)

WIGNEY J:

1    The appellant in this matter has appealed a judgment of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)). In that judgment, the primary judge dismissed the appellant’s application, which sought judicial review of a decision of the (then) Administrative Appeals Tribunal: DBA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1418 (J). In that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs not to grant the appellant a protection visa.

2    For the reasons that follow, the appellant’s appeal has no merit and must be dismissed with costs.

Visa application and refusal

3    The appellant is a citizen of Malaysia. He arrived in Australia in March 2016 on a visitor’s visa. On 31 May 2016, he lodged an application for a protection visa. In support of that application, the appellant claimed that he had a well-founded fear of persecution in Malaysia, and that he would suffer serious harm if he returned to Malaysia, on account of the fact that he was of Tamil ethnicity and because he was a supporter of, and had attended, protests organised by a Hindu activist organisation known as HINDRAF (the Hindu Rights Action Force) and a coalition of organisations known as Bersih.

4    On 26 July 2016, a delegate of the Minister refused to grant the appellant a protection visa.

Merits Review in the Tribunal

5    The appellant applied to the Tribunal for a review of the decision of the Minister’s delegate. The Tribunal conducted an in-person hearing in respect of that review. That hearing was attended by the appellant.

6    In a decision recorded on 14 June 2017 (Decision Record or DR), the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The Tribunal was not satisfied that the appellant met the criteria for the grant of a protection visa: DR [34]-[35]. While the Tribunal accepted that the appellant was a HINDRAF supporter, it did not accept his claim that he had attended any HINDRAF or Bersih protests or rallies: DR [18].

7    The Tribunal gave two main reasons for not accepting those claims. First, the Tribunal noted that there were inconsistencies in the appellant’s account of having attended any such protests. The Tribunal put those inconsistencies to the appellant during the hearing and invited the appellant to provide any comments he wished to make in relation to them. The appellant gave the Tribunal an explanation in respect of the inconsistencies, however the Tribunal did not accept that explanation: DR [14]-[16]. Second, the Tribunal observed that it was apparent that the appellant had little knowledge about HINDRAF or Bersih: DR [17]-[18].

8    The Tribunal also did not accept that the appellant had been arrested or threatened by any government authorities in Malaysia as a result of him having attended any HINDRAF or Bersih rallies or protests: DR [13] and [18].

9    The Tribunal had regard to “country information” about Malaysia that had been published by the Department of Foreign Affairs and Trade (DFAT) about the then current political and security situation in Malaysia. That information indicated, in summary, that while high profile leaders of political organisations such as HINDRAF might be the subject of adverse action by government authorities, that was not the case in respect of low-level supporters of such organisations: DR [21]. The Tribunal considered that the appellant was no more than a low-level supporter of HINDRAF. The Tribunal was accordingly not satisfied that the appellant had a well-founded fear of persecution, or that he was at risk of serious harm in Malaysia, as a result of having been a supporter of either HINDRAF or Bersih: DR [24].

10    The Tribunal was also not satisfied that there was a real chance that the appellant or his family would be discriminated against or suffer serious harm in Malaysia on account of being of Indian ethnicity: DR [25]. In reaching this conclusion, the Tribunal had regard to country information published by DFAT and the United States Department of States in respect of Malayia which indicated that persons of Indian ethnicity do not experience any serious discrimination or violence in Malaysia on account of their ethnicity.

Judicial Review in the Circuit Court

11    The appellant relied on two grounds of review in his judicial review application in the Circuit Court.

12    The first ground of review asserted, in effect, that the Tribunal had not complied with section 424AA of the Migration Act 1958 (Cth). That was said to be because the Tribunal did not provide the appellant with “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.” The appellant also asserted that the Tribunal failed to advise the appellant that he could seek additional time to comment on or respond to that information as required by section 424AA(1)(b)(iii) of the Migration Act. The appellant did not provide any details of the “clear particulars” of the information that he alleged the Tribunal was required to, but failed to, give him. It would appear, however, that the appellant alleged that the Tribunal failed to give him clear particulars of the inconsistencies in his account of having attended HINDRAF and Bersih protests.

13    The second ground of review was, in effect, that the Tribunal had failed to consider the correct social group to which the appellant claimed to belong. That social group was said to be one or more of the following: ethnic Indians of Tamil origin, Hindu middle-aged men who participated in rallies against the government, and failed asylum seekers who return to Malaysia after stating and demonstrating that the ruling government and police in Malaysia are ineffective and corrupt. The particulars to that ground also included a nonsensical reference to the “failure of police to take action against criminals”.

14    The primary judge rejected both of the appellant’s grounds of review: J [16] and [19].

15    In relation to the first ground of review, section 424AA(1) of the Migration Act at the relevant time provided as follows:

424AA    Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

16    The primary judge found, in effect, that the appellant had not established that the Tribunal had failed to comply with section 424AA of the Migration Act. While his Honour’s reasoning was, to say the least, brief and cursory, he essentially gave four reasons why the appellant had failed to make out his case in that regard. First, putting to one side the confusing and obviously erroneous reference to section 359A of the Migration Act, the primary judge pointed out that the appellant had not identified the information particulars of which he alleged the Tribunal was required to, but failed to provide to him in compliance with section 424AA of the Migration Act: J [14]. Second, his Honour found that the ground could not be made out given that the appellant had not tendered the transcript of the Tribunal hearing: J[14]. Third, his Honour said that it could not be inferred that the Tribunal gave the appellant additional time to respond because the Tribunal had said in its reasons that it had complied with section 424AA: J[14]. His Honour also noted that there was no evidence to suggest that the appellant had requested an adjournment to respond to the information: J[15]. Fourth, his Honour found, apparently on the basis of the material before the court, that the appellant had been given a “real and meaningful hearing in compliance with section 425 of the Migration Act”: J [15].

17    In relation to the second review ground, the primary judge found that the Tribunal had expressly dealt with all the appellant’s claims. His Honour reasoned that, contrary to the premise underlying the review ground, the appellant had not claimed to be a member of any of the social groups particularised in the ground, save for the group comprising ethnic Indians of Tamil origin. His Honour held that the Tribunal had expressly dealt with the appellant’s claims arising from the fact that he was of Indian and Tamil ethnicity and had, therefore, not failed to consider any claims that the appellant was a member of any such social group: J[17].

18    So far as the other social groups referred to in the review ground were concerned, his Honour found, in effect, that the material before the Tribunal did not indicate that the appellant had claimed to be part of any of those other social groups: J [18]. The primary judge also noted that the Tribunal was not satisfied that the appellant had participated in protests and rallies against the government. It followed that the Tribunal had effectively found that the appellant was not a member of any social group that included that characteristic or criterion: J [18].

19    Having rejected the appellant’s two grounds of review, the primary judge concluded that the appellant had failed to establish that the Tribunal had made any jurisdictional error: J [20] The appellant’s application was accordingly dismissed with costs.

20    It should perhaps also be noted that the primary judge delivered his judgment orally and made an order dismissing the application on the day of the hearing, being 24 June 2021. Regrettably, however, his Honour did not publish his written reasons until 23 September 2021. The question whether that three-month delay in publishing written reasons gives rise to any appealable error is considered later in these reasons.

Grounds of Appeal and submissions

21    The appellant’s notice of appeal in this Court contains two grounds of appeal. Those grounds of appeal effectively repeat or replicate the review grounds that the appellant relied on in the Circuit Court. The grounds of appeal do not refer to or identify any appealable error said to have been made by the primary judge. In fairness to the appellant, who was not legally represented, the grounds of appeal should be read as if they involved the assertion that the primary judge erred in failing to accept either of his two grounds of review.

22    The appellant did not file any written outline of submissions in compliance with orders that had been made by a Registrar of this Court. In his oral submissions in support of his appeal, the appellant did not directly refer to his appeal grounds. Nor did he identify any error which he alleges was made by the primary judge. Rather, his oral submissions essentially focused on what he said was the current situation faced by Tamils in Malaysia. He maintained that Tamils in Malaysia continued to suffer a lot of problems. He claimed that temples have been damaged or broken into, and that the authorities were treating Tamils “like slaves”. He said that Tamils were leaving Malaysia because of the way they were treated there.

23    As can be seen, the appellant’s oral submissions were at best addressed to the merits of the decision to refuse his application for a protection visa. His submissions were also unsupported by any evidence.

24    Despite the absence of any meaningful submissions directed at the appeal grounds, the merits of those appeal grounds should nevertheless be briefly addressed.

The merits of the appeal

25    In short, neither of the appellant’s grounds of appeal have any merit. Nor is there any indication of appealable error on the part of the primary judge, notwithstanding the somewhat cursory and conclusionary nature of his Honour’s reasons.

26    As has already been noted, the two grounds of appeal effectively re-agitated the review grounds that the appellant pursued before the primary judge. I will approach the two appeal grounds as if they were grounds to the effect that the primary judge erred in not finding in the appellant’s favour and respect of those appeal grounds.

27    In relation to first ground, the primary judge’s reasons for rejecting the appellant’s contention that the Tribunal failed to comply with section 424AA of the Migration Act are far from cogent or compelling. Indeed, they are somewhat inadequate and unsatisfactory. I am nonetheless satisfied that the primary judge was correct to reject the appellant’s contention, albeit not for the reasons given by his Honour.

28    There are several fundamental problems with the appellant’s contention that the Tribunal failed to comply with section 424AA of the Migration Act.

29    First, that contention is based on a misconception of the terms and effect of section 424AA. Section 424AA does not require the Tribunal to give an applicant “clear particulars” of any information. Rather, the general effect of the section is that the Tribunal may give oral particulars of certain information to an applicant: s 424AA(1)(a). If the Tribunal does so, it is then not required to give the applicant written particulars of that information as would otherwise be required by section 424A of the Migration Act: s 424A(2A). If the Tribunal does give an applicant oral information in accordance with section 424A, it must, among other things, advise the applicant that he or she may seek additional time to comment on or respond to the information: s 424AA(1)(b)(iii).

30    Second, and more fundamentally, information that must be given pursuant to section 424A, and information that may be given pursuant to section 424AA so as to avoid the requirement in section 424A, does not include information concerning what are said to be inconsistencies in an applicant’s evidence, or doubts or concerns that the Tribunal may have about an applicant’s evidence: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]. The appellant’s apparent contention that the Tribunal was required to provide him with clear particulars of what were said to be the inconsistencies in his evidence is accordingly misconceived. The Tribunal was not required by section 424A to give the appellant any particulars of that information. The terms of section 424AA were also not engaged by the fact that the Tribunal chose to give the appellant particulars of those inconsistencies.

31    Third, I am not persuaded in any event that the Tribunal failed to provide clear particulars of those inconsistencies to the appellant. Similarly, I am not persuaded that the Tribunal failed to advise the appellant that he could seek additional time in which to respond to the information that was given to him about the inconsistencies. The only indication of what the Tribunal said to the appellant during the hearing about the inconsistencies is what is recorded in the Tribunal’s reasons. Those reasons do not purport to be a complete recitation of what the Tribunal said to the appellant. In the absence of any evidence from the appellant, or evidence in the form of the transcript of the Tribunal hearing, the appellant failed to establish that the particulars provided by the Tribunal were deficient, or that the Tribunal did not tell the appellant that he could take more time to respond to that information.

32    It should finally be noted in relation to this ground that there is simply no indication that the appellant was denied a fair hearing by the Tribunal. There is no basis for finding that the Tribunal failed to comply with either section 424A or section 424AA of the Migration Act, or that the Tribunal otherwise failed to afford the appellant procedural fairness.

33    As for the second ground of appeal, the primary judge was correct to reject the appellant’s contention that the Tribunal failed to consider any claims made that had been made by him, or any claims that could be said to have been fairly raised by the material that was before the Tribunal, which related to his membership of any particular social group or groups. The Tribunal clearly considered the appellant’s claim that he feared persecution or would suffer serious harm in Malaysia due to his Tamil or Indian ethnicity. The Tribunal’s findings in respect of that claim effectively dealt with any claim that the appellant could fairly be said to have made concerning his membership of any social group which included “ethnic Indians of Tamil origin” or “Hindu middle-aged men”.

34    Similarly, the Tribunal rejected the appellant’s claims that he participated in HINDRAF or Bersih rallies or protests. That finding essentially disposed of any claim tht the appellant could fairly be said to have made based on his membership of any social group which included persons who “[p]articipated in several rallies and actions against the Government” or “failed asylum seeker[s] who return[ed] to Malaysia after stating and demonstrating that the ruling Government and police in Malaysia are ineffective and corrupt”.

35    The appellant never clearly or explicitly characterised his claims in terms of being a member of any particular social group or groups. In those circumstances, it was not necessary for the Tribunal to make findings about, or frame its reasons in terms of, the appellant’s membership of any social group. The question is whether the Tribunal fairly dealt with the substance of the appellant’s claims. It is clear from the Tribunal’s reasons, read fairly, that the Tribunal did address, and make findings concerning, the substance of all of the appellant’s claims in support of his protection visa application.

36    It should also be noted in that context that the particulars to the appellant’s second ground of appeal suggested that he had made a claim based on his religion and that that claim was separate and distinct from his claims based on his ethnicity and support of political organisations. It is, however, tolerably clear that the appellant made no such separate claim in respect of his religion. His claims based on him being a Hindu were clearly connected or associated with his claims in relation to his political associations. The Tribunal fairly dealt with those claims.

37    I should finally note that, as regrettable as it may be that the primary judge took three months to publish the written version of his reasons, that fact is immaterial to the appeal. The appellant filed his notice of appeal within time and did not seek to amend his grounds of appeal when the written version of the primary judge’s reasons was published three months later. In any event, as has already been noted, none of the appellant’s submissions were directed at any supposed error made by the primary judge in his judgment. The primary judge’s delay in publishing his written reasons is accordingly immaterial to the merits of the appellant’s appeal.

Disposition

38    The appellant’s appeal has no merit and must be dismissed with costs.

Associate:

Dated:    23 April 2025