Federal Court of Australia

CPC19 v Minister for Immigration and Citizenship [2025] FCA 940

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to the ‘Minister for Immigration and Citizenship’.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The appellant is a citizen of Malaysia who arrived in Australia on 26 June 2016 on an Electronic Travel Authority (Class UD) (Subclass 601) visa.

2    On 22 September 2016, the appellant applied for a Protection visa.

3    On 28 February 2017, a delegate of the Minister refused the visa. The delegate found the appellant did not meet the criteria for protection under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).

4    On 10 March 2017, the appellant sought a review of the delegate’s decision.

5    On 6 June 2017, the appellant failed to attend the Administrative Appeals Tribunal hearing. The Tribunal proceeded under s 426A(1A)(b) of the Act, affirming the delegate’s decision in the appellant’s absence.

6    On 14 February 2019, the Federal Circuit Court of Australia (as it then was) quashed the Tribunal’s decision, finding the Tribunal’s exercise of discretion was legally unreasonable, and remitted the case for reconsideration.

7    On 20 June 2019, a newly constituted Tribunal hearing took place. The Tribunal again affirmed the delegate’s decision (decision).

8    On 2 August 2019, the appellant sought judicial review of the decision.

9    On 9 June 2023, the Federal Circuit and Family Courts of Australia (Div 2) FCFCoA gave an ex tempore decision dismissing the appellant’s application for judicial review. Settled reasons were published on 22 June 2023.

10    The appellant now appeals from the decision of the FCFCoA by notice of appeal filed 7 July 2023.

Grounds

11    The appellant appeals on a single ground in the following terms:

Its Clear from the judgment that Tribunal member after looking at DFAT country information made the decision that there is no threat to my life. This is a jurisdictional error. No looking into my personal circumstances and just looking at company (sic country) profile in making decision clearly shows there is error in judgment. Tribunal should have looked into my case and asked relevant questions and then made a decision. Tribunal failed to do that.

12    It is apparent that there are three components to that single ground:

(a)    Not looking into the appellant’s personal circumstances;

(b)    Relying on DFAT’s country information; and

(c)    Not asking relevant questions;

all of which are said to amount to a jurisdictional error and/or procedural unfairness.

The primary judge’s decision

13    The appellant’s principal argument before the FCFCoA was that the Tribunal had no actual “proof” or “evidence” to support its findings. The primary judge rejected this contention, observing that the Tribunal’s findings were grounded on its evaluation of the appellant’s claims, which the Tribunal member considered to be “vague, inconsistent and lacking in detail”, and not supported by DFAT country reports.

14    The primary judge explained to the appellant the types of error the FCFCoA would consider before setting aside a decision of the Tribunal.

15    The onus is on the appellant to establish jurisdictional error. However, the appellant’s contentions before the primary judge did not present any basis for such an error such that the primary judge dismissed the application.

Consideration of the ground of appeal

16    The appellant was self-represented. He made his submissions on appeal with the aid of an interpreter.

17    At the hearing of the appeal, I explained to the appellant the type of error the court considers before considering whether to allow an appeal from the primary judge’s decision.

18    The appellant’s principal argument on appeal was the same before the primary judge. Before the primary judge, the appellant had contended that the Tribunal had overlooked the seriousness of the appellant’s case. On appeal, the same argument was advanced, this time in relation to the primary judge.

Personal Circumstance

19    As to personal circumstances, the Tribunal had referred to several aspects of the appellant’s life – including his food business, debts to loan sharks, and family – indicating that these factors were not ignored. The primary judge found that the Tribunal was not satisfied the applicant was telling the truth about his claim, clarifying them as “vague, inconsistent and lacking in detail”. The Tribunal’s reasons demonstrated that the Tribunal had inquired into the appellant’s personal circumstances. The primary judge noted the appellant was unable to point to any relevant error, contending only that the Tribunal had overlooked the seriousness of his case.

20    The primary judge observed that the appellant’s claim was typically one of disagreement with the Tribunal’s finding that he was not telling the truth.

21    The primary judge was correct to find no jurisdictional error on this ground.

Country profile

22    As to the appellant’s contention that by using DFAT’s country information to conclude that the appellant’s claim that police in Malaysia were unable to offer him effective protection, a consideration of the Tribunal’s reasons demonstrates that the Tribunal considered the country information before reaching its conclusion.

23    The primary judge noted the selection and use of such country information is well-established as a factual matter for decision-makers to evaluate: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [81]; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8].

24    The primary judge was correct to find no jurisdictional error.

Relevant Questions

25    On the issue of asking relevant questions, the Tribunal hearing lasted some two hours, during which the Tribunal questioned the appellant thoroughly. The summary of those proceedings indicated that the Tribunal had sought substantial evidence from the appellant about his claims. The appellant was given “an opportunity to provide [the Tribunal with] as much details as [he] could”.

26    The primary judge noted the appellant simply disagreed with the Tribunal’s finding that he was not telling the truth.

27    That finding was open to the Tribunal and the primary judge was correct to find no jurisdictional error on this ground.

Procedural Fairness

28    The contention of procedural unfairness is inherent in the three components of the ground advanced.

29    No procedural unfairness has been demonstrated.

Conclusion

30    The appellant has not demonstrated any appellable error on the part of the primary judge such that the appeal must be dismissed.

31    The appellant is to pay the first respondent’s costs fixed in the amount at $5,000.

32    There will be an order amending the name of the first respondent to the Minister for Immigration and Citizenship.

Associate:

Dated:    11 August 2025