Federal Court of Australia

AHN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 572

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal, as agreed or assessed by a Registrar of the Court.

3.    The name of the First Respondent be amended to read “Minister for Immigration and Citizenship”.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    This is an appeal from the judgment and orders of the Federal Circuit and Family Court of Australia (Division 2) delivered on 24 April 2024 (Primary Judgment). The primary judge dismissed an application made under s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal) dated 22 December 2017 (Tribunal Decision). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (the Delegate) not to grant the appellant a subclass 866 Protection visa (the Visa).

Background

2    The appellant is a male citizen of Malaysia. He first arrived in Australia on 1 September 2015 as the holder of a subclass 601 visitor visa. The appellant departed Australia on 15 November 2015 and returned on 10 January 2016 as the holder of a further subclass 601 visitor visa.

3    On 17 March 2016, the appellant applied for the Visa. His claims were set out in response to questions on the visa application form. The appellant claimed that he was a member of a “group” or “triad” which did “bad things”, that he left the group and fears harm from them for leaving, and that the authorities would blame him for being a member of the group.

4    On 29 April 2016, the application was refused by the Delegate.

5    On 29 April 2016, the appellant applied to the Tribunal for review of the Delegate’s decision.

6    The appellant failed to attend a hearing scheduled for 13 July 2017, and the Tribunal dismissed the application for non-appearance. However, the appellant subsequently explained his failure to appear, and the Tribunal reinstated the application.

7    On 14 December 2017, the appellant attended a hearing before the Tribunal.

8    At the hearing, the appellant expanded on his written claims. He claimed that he was a member of a gang called the 08 Gang, which had 30 or 40 members, but that he did not know any of their names and did not know who they were: Tribunal Decision (TD) at [24] and [26]. He said he would go to Thailand to collect drugs to bring to Malaysia and was also involved in smuggling guns: TD at [25]. The appellant claimed that he decided to come to Australia after his friend, also a member of the gang, was captured by the police, because he was afraid that his friend would tell the police about him: TD at [26]. The appellant claimed that he could not go back to Malaysia because he would get caught by the police, and the gang would harm him because he knew where the guns and drugs were: TD at [26]-[27].

9    The Tribunal told the appellant that it was forming a view that his entire account lacked credibility and that he did not have anything to fear from anyone if he returned to Malaysia. It put to him that unless he could provide convincing details of his activities in Malaysia, it would form a view that he was untruthful: TD at [30]. The Tribunal explained that the appellant could seek an adjournment to consider these matters, or could put on a written submission. The appellant told the Tribunal to make its decision on the basis of the evidence he had already provided: TD at [30].

10    On 22 December 2017, the Tribunal affirmed the decision not to grant the appellant the Visa. The appellant was notified of the Tribunal’s decision by email sent at 2.53 pm on 22 December 2017.

11    On 29 December 2017, the appellant sent two emails to the Tribunal. His emails referred to the “decision issued”, set out a number of claims, and attached evidence of a traffic fine he had incurred which he claimed to be unable to pay.

12    On 2 January 2018, the Tribunal wrote to the appellant and explained that it had no power to take any further action on the review, and had decided not to reopen the appellant’s case. On 19 January 2018, the appellant emailed the Department of Home Affairs setting out a number of claims and asking for his visa to be extended.

Tribunal decision

13    The Tribunal found that the appellant was not a credible witness: TD at [32]. It did not accept that he was a member of a criminal gang, that he smuggled drugs or guns, that he had ever been threatened with harm or sought out by the Malaysian authorities or members of a gang, or that he would be sought out or harmed by the authorities or a gang if he returned to Malaysia: TD at [32]-[34].

14    The Tribunal concluded that the appellant did not satisfy ss 36(2)(a) or (aa) of the Act: TD at [35]-[37]. It accordingly affirmed the decision under review: TD at [41].

Before the federal circuit court

15    On 19 January 2018, the appellant applied to the (then) Federal Circuit Court for judicial review of the Tribunal’s decision.

16    The application was heard by the primary judge on 18 April 2024.

17    The appellant relied on the grounds of review set out in the application filed on 19 January 2018, which are set out in the Primary Judgment (PJ) at [9] as follows:

1.    Firstly, I escaped from the triad group because I dont want to become a victim of this gang anymore. I repent to change and start a new life with my wife with a clean lifestyle. They still looking for me because they thought im still keep all the private and confidential of the group which is all inside the phone that already lost. I Really hope they could find me at Malaysia especially to persuade me to join the group again.

2.    I unsatisfied with the previous result of the hearing department because I just need the protection and live legally in your country and working legally to earn the halal income here. I cant earn any income in Malaysia because of this triad group. They will non-stop finding and persuade me.

3.    I refuse to make a police report in Malaysia because if they do the investigation, im sure the case will never close since there is a lot of corruption and make the case delayed. So I decided to come Australia and hope that the responsible party will give me opportunity to me to prove that my case is true.

(Sic).

18    At the hearing, the appellant sought to tender documents which he said were relevant to his claims to fear harm in Malaysia. The primary Judge refused to receive those documents on the basis that the Court was not able to engage in a review of the merits of the Tribunal’s decision: PJ at [13].

19    On 24 April 2024, the primary Judge dismissed the application for judicial review, with costs.

20    Her Honour understood ground one to contend that the appellant “is owed protection because of his fear that, on return, he would be subject of harm by a gang in Malaysia of which he was formerly a member and that he had evidence in support but could not produce on account of a phone which had been lost”: PJ at [16].

21    Her Honour noted that the appellant raised his claim that he had been unable to produce supporting evidence because he had lost his phone in his emails to the Tribunal on 29 December 2017: PJ at [17]. Her Honour summarised the appellant’s oral submissions to the effect that after receiving the Tribunal’s Decision he came to realise that the interpreter who assisted him at the Tribunal hearing had not interpreted his evidence accurately, because he had given evidence to the Tribunal regarding his inability to provide supporting evidence due to losing his phone but that the Tribunal did not mention this claim in its reasons: PJ at [18].

22    The primary judge found that, on a beneficial reading, the claim was within the scope of ground one: PJ at [18]. However, the primary judge found there was insufficient evidence before the Court to support a finding that the interpreter inaccurately interpreted the appellant’s submissions and evidence before the Tribunal: PJ at [19]. The primary judge found that the essence of ground one was that the appellant assumed the interpreter had not accurately interpreted his submissions and evidence because the Tribunal’s Decision did not mention his claim regarding the evidence on the lost phone: PJ at [20].

23    The primary judge found that this conclusion does not logically or reasonably follow in circumstances where the Tribunal was not required to refer to every piece of evidence put to it by an applicant or give a line by line refutation of his claims: PJ at [20]. The primary judge found that it could be inferred that the appellant’s lost phone claim and associated lost evidence claim was not mentioned by the Tribunal because it did not consider those matters to be material to its decision. The primary judge found that ground one was not established: PJ at [22]-[23].

24    With respect to ground two, the primary judge summarised the ground as a claim by the appellant that he would be unable to earn an income in Malaysia because the gang of which he was formerly a member would pursue him, and that he otherwise disagreed with the Tribunal Decision: PJ at [24]. The primary judge noted that the appellant’s emails of 29 December 2017 and 19 January 2018 raised claims in respect of the appellant’s income on return to Malaysia, but found that the claims were not raised prior to this; that is, after the date of the Tribunal Decision: PJ at [25]. Her Honour found that to the extent these claims were not before the Tribunal, the Tribunal was accordingly neither empowered nor required to consider the claim: PJ at [25]. The appellant did not allege inaccurate interpretation in respect of this claim, and given the primary judge’s finding as to the insufficient evidence founding any such claim, ground two was not established: PJ at [26]-[28].

25    Her Honour found that ground three sought to respond to the reasons of the delegate, and did not relate to the Tribunal’s reasons: PJ at [29]-[30]. This ground accordingly could not succeed: PJ at [31].

The appeal

26    On 2 May 2024, the appellant filed a notice of appeal from the judgment and orders of the primary judge given on 24 April 2024.

27    The appellant’s notice of appeal relied on four grounds of appeal, as follows:

1) My visa was refused by AAT and I appealed to Federal Circuit Court.

2) Federal Circuit Court refused my case as I am not satisfied how my case was reviewed.

3) I am [not] able to go back to my country.

4) I am appealing for my visa to be considered again.

28    However, in his written submissions the grounds of appeal were expressed as follows:

(a)    whether the Tribunal failed to afford the Appellant procedural fairness due to interpreter errors;

(b)    whether the Tribunal failed to properly consider material evidence; and

(c)    whether the Tribunal made illogical or irrational findings.

29    In relation to the grounds of appeal in the notice of appeal, the Minister contended that the grounds of appeal are new grounds, not raised before the primary judge, and so the appellant requires leave to raise them on appeal. The Minister submits that leave to raise the new grounds should be refused on the basis that they are entirely lacking in merit and impermissibly seek to engage the Court in merits review of his claims.

30    In relation to the additional grounds of appeal raised by the appellant in his written submissions, the Minister, noting the appellant is unrepresented, did not oppose the appellant relying on these additional grounds.

Appellant’s submissions

31    The appellant’s written submissions only addressed the additional grounds, and not the four grounds contained in the notice of appeal.

32    In relation to additional ground one, the appellant submits the Tribunal failed to afford him procedural fairness due to inaccurate interpretation by the interpreter during the hearing before the Tribunal. The appellant submits he relied entirely on the interpreter to communicate his claims and the inadequate interpretation during the hearing meant the seriousness of his situation, in particular his evidence regarding the real and ongoing threats to his safety, was not clearly or accurately conveyed to the Tribunal. The appellant submits this resulted in the Tribunal forming an incorrect view that the appellant was not in danger and making its decision based on that incomplete and inaccurate understanding of his claims.

33    In relation to additional ground two, the appellant submits that the Tribunal failed to properly consider material aspects of his claims. Specifically, the appellant contends that the Tribunal did not properly consider his claim that important supporting evidence in relation to his fear of harm upon return to Malaysia was previously stored on a mobile phone that he had lost by the time of the hearing before the Tribunal. The appellant submits the failure to consider these matters affected the Tribunal’s assessment of credibility and risk.

34    These two grounds appear to be in substance, a reformulation, at least in part, of the appellant’s oral articulation of ground one of his appeal before the primary judge, albeit now grounded in allegations of a denial of procedural fairness and a failure to consider a relevant consideration.

35    In relation to his amended ground three, the appellant submits the Tribunal failed to properly engage with his claims and evidence regarding the existence of ongoing threats of harm, and reached conclusions that were not reasonably open on the material before it. During the hearing, the appellant also made an informal application for the Court to accept new evidence that was not before the primary judge (or the Tribunal) in relation to his claims that the threats against him are real and ongoing.

36    In oral submissions, the appellant emphasised that the Tribunal made the decision without considering all of the facts of his case, because he did know how to send the evidence via email and “did not know how to use the email”: [T4.44-47]-[T5.1-8]. The appellant then sought to rely on the additional evidence mentioned above: [T5.19-21]. I took the appellant’s submission to be an explanation that he sought to rely on additional evidence because he did not know how to provide the evidence to the Tribunal via email. The Minister opposed the appellant’s application to adduce fresh evidence on appeal.

Consideration

Fresh evidence not to be adduced

37    First, I will not allow the appellant to adduce fresh evidence on appeal.

38    The Court has a discretionary power pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth) to allow fresh evidence to be adduced on appeal.

39    The relevant principles which guide the exercise of the Court’s discretion were stated by the Full Court in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16], per Griffiths and White JJ (and see also TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 at [36] (Lee, SC Derrington and Cheeseman JJ):

…Drawing on authorities including CDJ v VAJ [1998] HCA 67 ; 197 CLR 172 ; Cottrell v Wilcox [2002] FCAFC 53 ; Sobey v Nicol and Davies, Re Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389 ; Watson Australian Community Pharmacy Authority [2012] FCAFC 142 ; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows:

(1)    The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.

(2)    The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry.

(3)    The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of “fresh evidence”

(4)    The following two considerations will normally be relevant to the exercise of the discretion:

(i)    the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and

(ii)    the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence;

(5)    The interests of third parties and the public at large may outweigh a party’s interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally.

40    The first respondent opposes the tender of the appellant’s statement and evidence on the basis that it is not relevant to the Court’s task on judicial review, and is not capable of establishing any error on the part of the Tribunal or the Court below.

41    The solicitor appearing for the Minister described the evidence as commencing with a statement by the appellant in which he sets out his claims to protection and includes events said to have occurred since the Tribunal Decision. Following the statement are a number of documents said to support the facts that are put in the statement. The documents all post-date the Tribunal Decision and some are not in English and have not been translated. The appellant did not dispute this characterisation, except to say that only one document had not been translated from Malaysian into English.

42    The appellant submitted that the evidence demonstrates the risk he would face in Malaysia is far more serious than it was before.

43    I will not allow the appellant to adduce the fresh evidence. The evidence is not relevant to the Court’s task. The evidence was not before the Tribunal, and in fact could not have been before the Tribunal given the dates on the documents; the appellant cannot demonstrate the factors set out by the Full Court above are satisfied, and I am not satisfied this is an appropriate case for the exercise of the Court’s discretionary powers in s 27 of the FCA Act and r 36.57 of the FC Rules.

Leave is only granted to raise additional grounds one and two from the submissions

44    The grounds of appeal contained in the notice of appeal are new grounds, not raised in the Court below, and the appellant accordingly requires leave to raise them on appeal: VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48] (Kiefel, Weinberg and Stone JJ). The Court should only grant leave to rely on new grounds of appeal if satisfied that it is in the interests of justice to do so, and leave should generally be refused where a proposed ground is of doubtful merit. I am of the view that leave to raise the new grounds in the notice of appeal should be refused on the basis that they are entirely lacking in merit. The grounds of appeal express dissatisfaction with the decision of the Tribunal but do not point to any error in its reasoning or its processes. The appellant impermissibly seeks to engage the Court in merits review of his claims.

45    However, the position regarding the grounds of appeal contained in the appellant’s submissions is materially different. By these grounds the appellant does point to jurisdictional error by the Tribunal. Further, grounds one and two are framed respectively as a denial of procedural fairness and failure to consider a relevant consideration, but the essence of the appellant’s claim relates to his allegations of inadequate interpretation services before the Tribunal. This is, in substance, very similar to the ground of appeal advanced orally by the appellant before the primary judge. Given this, and the fact that the appellant was self-represented and required an interpreter to advance his claims in this Court, it is, in my view, in the interests of justice to allow the appellant to raise these grounds of appeal. The third ground alleges that the Tribunal’s findings were not supported by the evidence, and that it reached findings which were not open on the material before it. This ground was not meaningfully explained or advanced by the appellant beyond this assertion. The appellant does not specify which findings are said to be irrational or illogical, or unsupported by the evidence. The Tribunal gave clear and cogent reasons for its decision. The appellant’s complaint goes no higher than to seek impermissible merits review. I will not grant leave for the appellant to raise this ground.

Additional grounds one and two are not made out

46    As I have said, the substance of additional ground one was that the appellant’s evidence regarding the threats to his safety were not clearly and accurately communicated, with the consequence that the Tribunal formed an incorrect view that the appellant did not face a real chance of harm upon return to Malaysia. The appellant alleges this failure gave rise to a denial of procedural fairness. The appellant did not further expand on what specific evidence he alleges was not accurately conveyed, via the interpreter, to the Tribunal. To the extent that by additional ground one the appellant seeks to allege inaccurate interpretation of evidence and/or submissions beyond his contentions regarding the lost phone, the ground is not made out. There is no error in the primary judge finding there was insufficient evidence to support a finding that the interpreter inaccurately interpreted the appellant’s submissions and evidence before the Tribunal: PJ at [19].

47    Before the primary judge and in his oral submissions in this appeal, the appellant referred to the interpreter not interpreting his claims regarding evidence on his lost phone. Therefore, I consider separately the narrower ground of an allegation that the Tribunal did not consider his contentions regarding evidence on his lost phone, due to the alleged inaccurate interpretation by the interpreter before the Tribunal. There is clearly a large degree of crossover with this allegation and additional ground two, by which the appellant claims that the Tribunal failed to properly consider his contentions regarding evidence on the lost phone, including both the significance of the alleged evidence and the explanation of its absence. The appellant mentioned the lost phone contention in his emails to the Tribunal sent on 29 December 2017. This was after the Tribunal had already made its decision, but it was suggested in those emails that this had been mentioned by the appellant in his evidence at the Tribunal hearing. The 29 December 2017 email was before the primary judge. The primary judge found that there was insufficient evidence demonstrating that there were any errors by the appellant’s interpreter before the Tribunal.

48    Further, consistently with the primary judge’s findings, even if the lost phone contention did form part of the submissions and evidence given by the appellant at the Tribunal hearing, this does not establish any error on the part of the Tribunal. It was not necessary for the Tribunal to refer to every piece of evidence relied on by the appellant, nor was it required to give a “line by line refutation” of the appellant’s claims: Re Minister for Immigration & Multicultural Affairs of the Commonwealth; Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1 at [65]-[67] (McHugh J); Minister for Home Affairs v Buadromo; (2018) 267 FCR 320; [2018] FCAFC 151 at [48] –[49] (Besanko, Barker and Bromwich JJ); Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46] (French, Sackville and Hely JJ). It should be inferred that the Tribunal did not mention this part of the appellant’s evidence because it did not consider it material to its decision: Minister for Immigration v Yusuf; (2001) 206 CLR 323; [2001] HCA 30 at [68] (McHugh, Gummow and Hayne JJ). The Tribunal understood the appellant’s claim that he feared harm from the gang because they thought he had information about them. That he claimed to have once had such information in a phone which he had now lost, and which he therefore could not produce to the Tribunal as evidence of his claims, did not materially add to his broader claim. It also did not overcome the Tribunal’s main concern with this claim, which was that the appellant claimed that he did not know the names of the other gang members, and that they did not know who he was or where they could find him. It is therefore unsurprising that the Tribunal would not mention that the appellant claimed to have once had information about the gang, which he had lost. The appellant has not demonstrated any denial of procedural fairness or failure to consider a relevant consideration. The appellant has not demonstrated any error in the primary judge’s reasoning at [20]-[23]. The additional grounds one and two have not been established.

Disposition

49    The appeal is dismissed and the appellant is ordered to pay the first respondent’s costs, as agreed or assessed by a Registrar of the Court.

50    The first respondent also seeks an order that the name of the first respondent be amended to Minister for Immigration and Citizenship. I will make that order.

Associate:

Dated:    11 May 2026