Federal Court of Australia

DIL18 v Minister for Immigration and Citizenship [2026] FCA 285

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The name of the second respondent be amended to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs fixed in the sum of $4,100.00.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is a Malaysian Tamil and an adherent of the Hindu faith. He came to Australia in 2016 on a Visitor visa that was issued to him under the Migration Act 1958 (Cth). On 5 August 2016, he made an application for a Protection visa (the “Visa Application”), which a delegate of the first respondent (the “Minister”) refused on 3 October 2016 (the “Refusal Decision”). Thereafter, he made an application to the second respondent (or to its predecessor, the Administrative Appeals Tribunal—hereafter, the “Tribunal”) for a review of the Refusal Decision (the “Review Application”). On 26 April 2018, the Tribunal resolved the Review Application by affirming the Refusal Decision (the “Tribunal’s Decision”). An application for judicial review of the Tribunal’s Decision was then filed with what was then the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia, Div 2). On 28 September 2023, it was dismissed with costs: DIL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 860 (Judge Champion; hereafter, the “Primary Judgment”).

2    By a notice lodged on 13 October 2023, the appellant now appeals from the whole of the Primary Judgment. For the reasons that follow, the appeal will be dismissed with costs.

3    The appellant’s Visa Application was premised upon asserted concerns that, if he were returned to Malaysia, he would be relevantly persecuted or subjected to relevant harm (the latter arising from interactions that he claimed—albeit only at the point that matters had progressed to the stage of the Review Application—to have had with local gangs or other disreputable characters prior to his departure from Malaysia). Particulars of those concerns are recorded without controversy in the Primary Judgment (at [5]). In affirming the Refusal Decision, the Tribunal accepted that the appellant held the fears that he said that he held. It did so notwithstanding the concerns that it expressed about the appellant’s credibility. It was nonetheless of the view that his fears did not warrant the granting of protection because the appellant would, upon return to Malaysia, be able to avail himself of the protections afforded by local police and the Malaysian judicial system.

4    With respect, the Tribunal’s Decision was an orthodox rejection of familiar claims. Its reasons for preferring the conclusions that it reached—which I do not need to replicate here—were properly founded in the evidence and material that were before it. Although the appellant continues to take issue with its findings, he does so on their merit, rather than in any way that might disclose any relevant jurisdictional error. The learned primary judge was minded to reach equivalent conclusions and, with respect, he did not err in doing so.

5    Tempting though it is to conclude these reasons there, I shall descend nonetheless upon the grounds of appeal that are pressed. Some do not obviously marry with the contentions that were agitated before the primary judge. Insofar as new points are sought to be agitated on appeal, the appellant requires leave, the granting of which is conditioned by familiar criteria. It is unnecessary that I should lengthen these reasons by recording them; it suffices to note that of principal significance (at least for present purposes) is whether their agitation on appeal would be attended by sufficient merit that leave in that regard should be granted.

6    As it happens, none of the appellant’s grounds has merit. I can address them all at that level (whether the appellant requires leave to agitate them or not).

7    Appeal ground one posits that the Tribunal failed to consider relevant material, specifically that the Malaysian police would be “unwilling to provide sufficient protection” because the appellant is a non-Islamic ethnic Indian of Tamil origin and (potentially) a failed asylum seeker who has voiced concerns about the effectiveness and corruption of the ruling Government and police. That suggestion is wrong. On the basis of the independent country information that it had to hand, the Tribunal was minded to conclude that the Malaysian legal system and criminal law operate “reasonably effectively and without discrimination”. There was no failure to consider anything that the Tribunal was obliged to consider and, therefore, no related error of jurisdiction. As much was (at least to an extent) the conclusion of the primary judge and, with respect, his Honour was right to reach it.

8    In saying so, I acknowledge the submission with which the appellant ably persisted at the hearing of his appeal: that Hindu Tamils are a minority in Malaysia and are subjected to various discriminatory practices, which government and law enforcement agencies do not police (or, worse, in which they are actively involved). Submissions of that nature invite the court to review the Tribunal’s Decision on its merit. They are not directed to the only question in respect of which the court’s appellate jurisdiction is engaged: namely, whether the Tribunal’s Decision was a product of jurisdictional error. Not without appropriate deference to him, I offer no observation about the veracity or otherwise of the appellant’s submission.

9    There is an additional dimension to appeal ground one, which concerns other information that the Tribunal is said not to have properly considered: in particular, the content of a report authored by the Department of Foreign Affairs and Trade in 2021. That report purported to make some observations about the operation of gangs in Malaysia. It is not obvious what significance the appellant seeks to attach to that report but it can, in any event, be addressed swiftly. The report was authored in 2021, several years after the Tribunal’s Decision. The latter cannot be impugned as a product of jurisdictional error inhering in a failure to consider information that, at the time, did not exist.

10    Appeal ground two—which, perhaps to some degree, overlaps with ground one—posits that the Tribunal failed to consider the social group to which the appellant belongs; and, in particular, that he was somebody who would return to Malaysia as a failed asylum seeker “…who had blamed the Government and Police of callousness and practice”. It was no part of the appellant’s case before the Tribunal that he was owed protection because he would be denied effective protection in Malaysia on account of his status as a failed asylum seeker who had been critical in the ways now adumbrated. No such claim arose for the Tribunal’s consideration and any failure to consider it cannot be impugned as jurisdictional error. It would seem, in any event, to have been addressed by the Tribunal’s findings of greater generality: namely, that Malaysian criminal law operates more or less effectively and free from discrimination. The Tribunal’s Decision cannot be impugned in the manner in which appeal ground two seeks to impugn it.

11    Appeal ground three is oddly worded. Intending no disrespect, it was likely drafted with some external assistance (I say acknowledging that the appellant was otherwise self-represented). It repays to replicate it in full (errors and formatting original):

Ground 3

The Tribunal made jurisdictional error in that it did not provide "clear particulars' as required under section 424 AA of the Migration Act. Further, the Tribunal failed to advise the applicant that he may seek additional time to comment on or respond to the information as required under section 424 AA (1) (b) (iii).

Particulars

The Tribunal at the time of hearing failed to provide "clear particulars" as required under law in relation to inconsistency in evidence. In a matter related to disclosure under Sec 424 A (similar to 424 AA) Flick J in SZNKO v Minister of Immigration & Citizenship & Anor (2010) 184 FCR 505; [2010] FCA 297 at [23] states to the effect that information "cannot in all cases be clinically divorced from context in which it appears. How much of that surrounding context must also disclosed must necessarily depend upon the facts and circumstances of each individual case". It was pointed out that his Honour suggested that s424A requires the disclosure 'of so much as to ensure that the opportunity to comment ... or respond ... is meaningful" (at [23]) am it is submitted that no such meaningful information was provided to the applicant.

The Tribunal itself observed in paragraph 41-45 in its decision record that "Even allowing for nervousness, confusion of dates and tension" ... which indicates that the applicant was tense and nervous at the time of hearing. This being the case, the Tribunal should have advised that applicant that he can take additional time or seek an adjournment o reply to the adverse put to him under section 424 AA. The Tribunal' failure to provide the advice to the applicant that he had an opportunity to seek additional time amounted to miscarriage of justice.

12    By his written submissions on the appeal, the Minister contended as follows (references omitted):

The decision record…indicates the Tribunal at the hearing put to the appellant a number of concerns that it had with his evidence. For example, it noted that: the appellant did not appear to have included his family in the protection visa application, despite indicating at the hearing that he had done so…; it was unclear as to who the gangs were and why they were so angry with him…; and the gangs did not appear to have prevented the appellant or his family from leaving Malaysia... The Tribunal also put independent country information to the appellant about the treatment of Hindus in Malaysia and the effectiveness of the Royal Malaysian Police... The Tribunal also asked the appellant for written evidence of his termination of employment at the Hilton, which he said he did not have...

Whilst the Tribunal did not purport to put any of these concerns to the appellant pursuant to s 424AA, no s 424A obligations arose in respect of this information because it comprised independent country information and information provided by the appellant to the Tribunal for the purpose of the application for review, and therefore fell within the exceptions in ss 424A(3)(a) and (b) respectively. Further, this “information” encompassed the Tribunal’s thought processes and subjective appraisals, which it is well-established does not constitute s 424A information.

13    There is no answer to those contentions and I accept them. Appeal ground three cannot succeed.

14    The appeal must be dismissed. There is no reason why the appellant should not pay the Minister’s costs, which are sought to be fixed in the sum of $4,100.00. That figure is appropriate and I will order accordingly.

Associate:

Dated:    19 March 2026