Federal Court of Australia

EET20 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 659

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal be dismissed.

2.    The appellant is to pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1    The appellant is a citizen of Malysia who arrived in Australia on 21 December 2014 on an Electronic Travel Authority visa.

2    On 19 March 2015 the appellant applied for a TU 572 (student) visa (student visa) that was issued on 20 April 2015.

3    On 21 January 2017, the student visa was cancelled and the appellant ceased to have any legal right to remain in Australia.

4    On 20 September 2017, the appellant applied to the first respondent (Minister) for a XA-866 Protection visa (protection visa).

5    On 23 February 2018, a delegate of the Minister (delegate) refused the application for the protection visa.

6    On 6 March 2018, the appellant applied to the second respondent (Tribunal) for a review of the decision of the delegate. His claims for protection before the delegate and the Tribunal were based on fear of harm from a Malaysian entity who he described as a loan shark from whom he alleged he borrowed money but has been unable to repay in full.

7    On 19 August 2020, the appellant attended a hearing before the Tribunal and was interviewed by the Tribunal. The Tribunal exercised its discretion to hold the hearing by telephone as it was conducted during the COVID-19 pandemic. The hearing was conducted with the assistance of a Mandarin interpreter.

8    On 21 August 2020, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa and provided written reasons in a decision record (Decision Record or DR).

9    On 17 September 2020, the appellant filed an application for judicial review to the Federal Circuit Court of Australia, (now the Federal Circuit and Family Court of Australia (Division 2)) (Federal Circuit Court).

10    On 3 August 2022, the application for judicial review was dismissed and the primary judge provided ex tempore reasons that were subsequently published on 5 October 2022: EET20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 726 (PJ).

11    By a notice of appeal dated 24 August 2022, the appellant appeals the primary judge’s dismissal of the judicial review application.

12    On 9 September 2022, the Tribunal filed a submitting notice, save as to costs.

13    The following grounds of appeal are advanced in the notice of appeal:

1.    There exists unfairness.

I did not receive the notification for final court hearing. I was not given more time to make preparation for the hearing.

2.    Tribunal considered irrelevant facts.

Tribunal doubted my credibility because I did not apply for protection earlier.

3.    Tribunal did not apply complementary protection criteria properly.

The risk that I will be harmed if I return to Malaysia is not properly considered.

14    Grounds 2 and 3 mirror the first and second grounds of review advanced before the primary judge.

15    The appellant appeared on the appeal as a litigant in person with the assistance of an interpreter. The appellant was asked to address each of the grounds of appeal that he had advanced in his notice of appeal and respond to the Minister’s submissions. The appellant’s submissions were limited to a restatement of his broadly expressed grounds and assertions that he did not know what errors the Tribunal made because “the case was handled by my lawyer” and likewise he did not know what “irrelevant facts” were considered by the Tribunal because he did not “remember what [his] lawyer told [him]”. When pressed as to whether he had notified his lawyer about the hearing of the appeal, he initially responded that he thought the hearing of the appeal was limited to why he had not applied for a protection visa earlier for which he did not need his lawyer. When he was asked whether he wanted to apply for an adjournment so that his lawyer could act for him on the appeal, he responded that he was content to proceed as a litigant in person because he could not afford to pay what his lawyer had asked to appear for him.

16    The relevant reasoning of the Tribunal and the primary judge is addressed in the consideration below of each appeal ground.

B.     Legislative framework

17    As the Tribunal observed, the criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (Act) and sch 2 to the Migration Regulations 1994 (Cth).

18    At the relevant time, s 36(1) of the Act provided that an application for a protection visa must satisfy both of the criteria in ss (1B) and ss (1C), and at least one of the criteria in ss (2). There was no issue concerning ss (1B) or ss (1C).

19    Subsection (2) was relevantly in the following terms:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …

20    Ground 3 of this appeal concerns the appellant’s claim to complementary protection under s 36(2)(aa) of the Act.

C.     There was no relevant unfairness

21    Before turning to the decision of the Tribunal and grounds 2 and 3, it is convenient to address first the contentions advanced in ground 1 that the appellant was not notified of the final hearing before the primary judge and was not given more time to prepare for the hearing.

22    The primary judge provided the following explanation of the notification provided to the appellant of the final hearing and the circumstances in which the hearing proceeded at PJ [3]-[5]:

On 31 May 2022, the Registry notified the Applicant and the Minister that the matter would be listed before me as a final hearing at 2.15 on Wednesday, 3 August 2022. The notice said that the hearing would be conducted in person in a courtroom. The Applicant was not here at 2.15 pm and my Associate both called the matter and searched the building for him. This caused my Associate and the Minister to check their records to ensure that the Applicant had been properly notified.

The notice sent to him by the Registry, by my Chambers and by the Minister were all sent to the email that was the email given by the Applicant when he filed his application. Having that information before me, I was about to conduct the hearing without the Applicant, having been satisfied that he had been properly notified.

To ensure that the Court had given the Applicant every opportunity, the Court then telephoned the phone number that was on the application that had been filed in this Court. To my relief, the Applicant answered the telephone and the matter has been able to have been conducted with him on the telephone and an interpreter here in Court.

23    The decision to proceed with the hearing with a litigant in person on the telephone, once the primary judge had determined the appellant had been notified of the hearing date and time at the email address he had used when he filed his application might well be thought to be robust and relatively uncompromising exercises of judicial discretion. I am not satisfied, however, that the decision to proceed with the hearing constituted any denial of procedural fairness to the appellant.

24    There was no discernible error in the notification provided to the appellant of the date and time of the hearing. The appellant submitted at the hearing before me that he had not received any notification of the hearing before the Federal Circuit Court. It is readily apparent from evidence before me that at least the Minister’s solicitors notified the appellant of the Federal Circuit Court hearing on 18 July 2022 of the date and time of the Federal Circuit Court by an email sent to the email address that the appellant had inserted on his application for judicial review to the Federal Circuit Court.

25    The appellant was notified at the email address and the appellant appeared at the hearing, albeit sub-optimally by telephone, with the assistance of an interpreter. Further, the Minister submitted that the appellant had not made an application for an adjournment to the primary judge on the basis that he needed more time to prepare for the hearing of his application for judicial review, and there is nothing before me to suggest that any such application had been made.

D.     The Tribunal did not consider irrelevant facts

26    Taking into account an irrelevant consideration is a recognised ground of judicial review.

27    Although somewhat unclearly expressed, it is apparent that the appellant contends in ground 2 that any delay in his application for a protection visa was not a matter that the Tribunal was permitted to take into account in forming any view as to his credibility.

28    This ground of appeal generally corresponds to the first ground of review advanced before the primary judge in the following terms:

Tribunal considered irrelevant facts which affected the Tribunal’s unfavourable decision.

29    The primary judge rejected the ground on the basis that the Tribunal had not considered any facts that it was prohibited from considering and the appellant had not identified any irrelevant facts that the Tribunal was prohibited from considering: PJ [38].

30    It is readily apparent from the Decision Record that the Tribunal placed significant weight on the appellant’s delay in applying for a protection visa. The Tribunal relevantly reasoned:

54.    The Tribunal has strong reservations about the credibility of the applicant's claims.

55.    The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MJEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

The applicant complained of the tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution….”

56.    A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant’s fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J, 10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

57.    The Tribunal discussed these concerns with the applicant at length.

58.    The Tribunal noted the applicant’s amended claim that the loan was taken out in 2014. It noted that the applicant came to Australia on 21 December 2014. Of further significance is the fact that the applicant applied for a student visa on 19 March 2015 which was cancelled by the Department on 21 January 2017 and that the applicant lodged a Protection Visa application on 20 September 2017.

59·.    The Tribunal asked the applicant why there was a delay of some three years between his arrival in Australia and his making of the Protection Visa application. The applicant explained that his parents told him to escape Malaysia. When he arrived in Australia, he met some people from Hong Kong who advised him to get a student visa so that he could earn money to repay his debt and study at the same time. The Tribunal noted the explanation but queried why one would escape from a country and then not seek the protection available to it in another country and not do so immediately. The applicant replied that he didn’t know about protection visas. The Tribunal expressed some surprise at this given that he was at university and that visas could generally be a topic of interest between international students. He replied that he was at an institute in Melbourne and was attending online. The Tribunal noted however that he borrowed money from a Hong Kong couple and visa options were. discussed at that time.

60.    The Tribunal then noted that the applicant was unlawful for eight months after the cancellation of his student visa and enquired why he hadn’t done anything to regularise his residency in Australia. The applicant again replied that he didn't know about Protection Visa applications. The Tribunal was concerned by the fact that he had been in Australia for some three years before making a Protection Visa Application. The Tribunal was equally concerned that the applicant had been unlawful for eight months and had not applied for a protection visa during that period especially given the concerns that he claimed to have and his keenness to remain in Australia.

61.    The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true.

62.    However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.

(Footnotes omitted and emphasis in original.)

31    There is no discernible error in the Tribunal’s approach to the delay in the appellant making a claim for a protection visa and its significance to the Tribunal’s consideration of the credit of the appellant. The approach was consistent with established authority, as cited by the Tribunal: see Zhang v Refugee Review Tribunal [1997] FCA 423; Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305; Kavun v Minister and Multicultural Affairs [2000] FCA 370. The Tribunal squarely put to the appellant its concerns about the delay and provided the appellant with an opportunity to explain the delay.

E.     There was no error in the application of complementary protection criteria

E.1.     Overview

32    In the third ground of appeal, the appellant contends that the Tribunal did not apply complementary protection criteria properly. This ground corresponds with the second ground of review advanced before the primary judge.

33    The primary judge found that there was no merit in this ground. His Honour concluded that the Tribunal “went above and beyond” what it needed to in considering complementary protection. He reasoned that:

Having made the finding that there was no loan ever entered into with an Ah Long, there was no evidence that could have enlivened the criteria for complimentary protection. But the Tribunal did more than that and actually considered whether there would be any danger if the Applicant had actually entered into a loan agreement with a loan shark. There is no merit in ground number two.

E.2.     The reasoning of the Tribunal

34    The Tribunal provided the following summary in the Decision Record of the evidence given by the appellant:

64.    The Tribunal discussed with the applicant the details about his loan. The applicant reconfirmed that the loan amount was 30,000 RM. Asked why his Statutory Declaration and Protection Visa application stated that the loan was 3,000 RM, he could not explain the inconsistency. The Tribunal put to him that he had used a lawyer in the preparation of his application and that the lawyer would have been acting on his instructions and would most likely have read back to him his claims before asking him to sign the application. The applicant replied that he couldn't remember.

65.    The applicant also reconfirmed the-date of the loan as 2014, and not 2016 as stated in his claims.

66.    The applicant also restated that the purpose of the loan related to his business in Malaysia. He said that he did borrow some money from the Hong Kong couple but that was in Australia, it was for $5,000.00 and that was for his tuition.

67.    The Tribunal asked the applicant what the interest rate was on his loan. He replied that it was 10% per month and that if he defaulted, it would double.

68.    The Tribunal asked the applicant whether he had a copy of the Loan Agreement. He did not. He replied that it was a personal matter and not put in writing.

69.    The Tribunal asked the applicant what his repayment schedule was. He replied that he only made two repayments. The repayments were meant to be 3,000 RM per month and if he was late, then there was a penalty of 300 RM per day.

70.    The Tribunal asked the applicant what happened after he stopped making the repayments. The applicant said the lender called him and went to his house and put photos of the applicant everywhere around the house and around his neighbour’s house. The lender also went to his workplace and harassed him.

71.    The Tribunal noted the applicant’s claim that he received 30 to 40 phone calls a day. The applicant did not confirm the number of calls but said there was daily harassment. He stated that the lender told him that they would follow him and he claims that they did.

72.    The Tribunal asked the applicant about h.is claims that he feared that the lender would burn his home or tie the doors with cable ties, send pig heads to intimidate him and his family and break into his home and steal from him and his family. The applicant confirmed that none of that actually happened.

73.    The Tribunal noted the applicant’s claim that he was afraid to let the lender know that he had a family and a girlfriend in Malaysia, yet later in his claims he states that the lender threatened his family because they found out where his parents lived. The Tribunal asked the applicant how the lender found out where they lived. He replied that the lender checked out the house before his loan was approved and that the lender had a copy of his identity card.

74.    The Tribunal asked the applicant whether the lender had in fact harassed his family. He replied that there is continuous harassment, with the most recent being one month ago when the lender appeared at his brother's workplace with 20 to 30 other people to demand repayment of his loan. No evidence of that harassment was produced. There was no statement from his brother corroborating that statement.

75.    The Tribunal confirmed with the applicant that notwithstanding the harassment, neither he nor his family members have actually been physically hurt. The applicant confirmed that, but advised that he had recently been threatened on WeChat that the lender would kill him even if he was in Australia. He confirmed he received that threat on WeChat about a month ago. The Tribunal asked the applicant whether he had a copy or screenshot of that WeChat threat. He replied that he had deleted it.

76.    The Tribunal noted the applicant's claim that he had borrowed money from the family to repay the loan from the lender, but that it was not enough. The applicant confirmed that it was his family that made the two repayments but had not repaid the loan. He didn’t know why he had said that they had and that it wasn't enough.

77.    The Tribunal reminded the applicant of his claim that someone painted 0$P$ in red to threaten his family and would send a pig head lo hang outside his family home. The applicant confirmed that did not happen and was an exaggeration. He said that all that happened was that they put posters of the applicant up around the house. He had no photos or other evidence in support of this claim.

78.    The Tribunal noted the applicant's claim that the lender had broken into his family's house and robbed them. The applicant advised that there had been no break-in, rather his family was interrupted.

79.    The Tribunal noted the applicant's claim that the lender had threatened to burn his parents' property and hurt his younger brothers. He confirmed that no one had been hurt but that the lender had splashed gasoline around his parents' house. This caused his parents to relocate. The Tribunal asked the applicant when this took place. He said he couldn't remember but it may have been about three years ago. The Tribunal asked the applicant why that was not in his claims in his protection visa application. He replied that he couldn't remember.

80.    The Tribunal again asked the applicant whether he or anyone in his family or his girlfriend had actually been physically hurt. He replied no, that there had just been threats and harassment. It confirmed that he had no other evidence of the threats made. It noted that his girlfriend was now in Australia but was not offered as a witness to corroborate his claims.

35    The Tribunal then considered country information in relation to the appellant’s ability to access state protection from loan sharks. The country information considered by the Tribunal, as stated in the Decision Record, included:

83.    The Malaysian state recognises the threat that loan sharks represent and a number of government and non-government agencies are tasked with trying to prevent people engaging loan sharks, or to negotiate with loans sharks to settle debts, or to encourage the reporting of loan shark activities to the police. Anecdotal evidence reported in 2018 that seven out of ten borrowers would either lodge a police report or seek assistance from NGOs when an ahlong attempted to collect payments.

84.    The government's Credit Counselling and Debt Management Agency (AKPK) offers credit counselling on financial status and budgeting to encourage people to use financial institutions under the purview of BNM, rather than loan sharks. The government in some provinces (Penang) has agreed to repay the loans of its own civil servants, minus interest, to the loan sharks.

85.    The non-government Malaysian Muslim Consumers Association (PPIM) has a unit (Ceti Haram Anti-Corruption Unit) dedicated to resolving loan shark debt by renegotiating its terms with the loan shark. It claims to have resolved thousands of cases (for a service fee). …

86.    The NGO Malaysian Chinese Association's (MCA) Bureau of Coordinating Government Affairs provides a similar service to renegotiate the terms of loans with loan sharks on behalf of borrowers.

…

88.    The Malaysian government has acted against illegal money lenders over several decades on diverse fronts, including by legislation, police investigation and prosecution, the removal of loan shark advertisements, and through publicity campaigns. Illegal money lending is an offence under the Moneylenders Act 1951 and punishment includes fines and imprisonment. …

90.    The police do actively investigate and prosecute illegal money lenders. Police actions against individual loan sharks under Section 5(2) are reported on regularly in the Malaysian media. Major operations are undertaken by the police every few years to investigate and prosecute loan sharks. Most recently in October 2019, Inspector-General of Police announced that loan sharks also "could face action under Anti-Money Laundering, Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA)... a multi-prong legal approach". Similar police operations against loan sharks occurred in 2014 and in 2017.

(footnotes omitted)

36    The Tribunal invited the appellant to comment on the country information. The appellant said he was aware of financial counsellors but claimed he thought they were “all Ah Long” rather than government agencies or NGOs. The appellant also said that he had not made any complaint to the police because “there are illegal activities everywhere and that police don’t help with personal matters”.

37    After considering all the appellant’s evidence and the country information, the Tribunal after noting its concerns about inconsistencies between the evidence given by the appellant during the hearing before the Tribunal and his claims in his protection visa application and related statutory declaration then stated at DR [99]:

The Tribunal did find the applicant's evidence to be vague and uncertain. It has the strongest reservations about the genuineness of his claims as to owing money to a money-lender or being in debt to anyone. The Tribunal noted that the applicant had no corroborative evidence of any description in support of his claims. It noted also that there was a very significant delay in making a protection claim, and that he preferred to seek a student visa and borrow money to seek that rather than make a protection visa application that was of little to no cost. When the applicant became unlawful, he again remained unlawful for a period of eight months before making an application for protection. The Tribunal is satisfied that the applicant has fabricated his claims in relation to owing money to an illegal money-lender or to anyone in Malaysia and that similarly all claims flowing from that have been fabricated. The Tribunal finds that his fears are not well founded.

38    Having found that the appellant’s claims that he owed money to a money lender or anyone else in Malaysia had been fabricated, the Tribunal next considered the appellant’s complementary protection claims:

105.    The Tribunal accepts that the incidence of loan sharks in Malaysia is a problem and that, on occasion, unscrupulous loan sharks or gangs may use violence or threats of violence against debtors to collect debts. However, the Tribunal is not satisfied, based on the evidence before it, that this is what happened to the applicant before he left Malaysia or that there are substantial grounds for believing that there is a real risk of this happening to him on his return.

106.    For the sake of completeness, the Tribunal has considered a scenario whereby the applicant did have a loan with an illegal money-lender. The Tribunal notes from the country information referenced above that the applicant had means by which he could reduce the risk he faced including reporting the threats to police, seeking support from debt support services, including the government's Credit Counselling and Debt Management Agency (AKPK), the non-government Malaysian Muslim Consumer's Association (PPIM) and the NGO Malaysian Chinese Association. The applicant had not attempted any. Had the applicant pursued these options, the Tribunal finds that the applicant would face a level of risk that is less than a real risk. As such the Tribunal finds that the applicant does not face a real risk of significant harm arising from his debt and does not face a real risk of significant harm in the future.

107.    The Tribunal notes that the country information indicates that the Malaysian authorities, including the police and judiciary, are generally considered to be professional and effective and are reasonably effective in combating illegal money-lenders and criminal gangs and there has been a great deal of coverage in Malaysian media regarding the various operations by law enforcement authorities to combat this. The Tribunal also notes that although there is corruption within the system, there is nothing in the independent information to indicate that the state is unable or unwilling to protect him in his particular circumstances.

108.    In relation to the overall effectiveness of authorities in Malaysia, as noted earlier, the Tribunal has relied on country information showing that measures have been put in place to address corruption and police and indeed the government has been making a concerted effort since at least 2013 to combat corruption and money lenders. and gangs and there is no evidence that the police have refused the applicant any assistance. The country information and media reports indicate the government has taken this issue seriously and has committed extensive resources to do so. This, in the Tribunal's view, demonstrates that effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State and that the Malaysian State is willing and able to offer such protection. The Tribunal was not presented with, nor has it found, any country information suggesting that the authorities would not protect him because of his Chinese ethnicity or his non-Islamic religion.

109.    In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future.

39    The Tribunal then concluded that for these reasons it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) because there were no substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia there was a real risk that he would suffer significant harm (at DR [112]-[115]).

E.3.     No error had been established

40    The appellant submits, contrary to the country information relied upon by the Tribunal, that he could not “find any safe place” and that “Malaysia money lenders have strong links with the police”. In the absence of any specific evidence to the contrary, the Tribunal, however, was entitled to give sufficient weight to the country information.

41    The appellant has otherwise asserted but not articulated any error by the Tribunal in addressing the complementary protection requirements in s 36(2)(aa) of the Act. I am satisfied from my review of the reasons of the Tribunal that there is no discernible error in the Tribunal’s reasoning on its application of the complementary protection criteria. The Tribunal’s finding that the appellant did not owe any money to a money lender or anyone else in Malaysia was not challenged on jurisdictional error grounds by the appellant before the primary judge. That finding necessarily had the effect of removing the basis on which the appellant might otherwise have been able to establish his claims for complementary protection under s 36(2)(aa). If there had been no loan from a money lender then there could not be any plausible basis to find that there would be any real risk that the appellant would suffer significant harm from money lenders if he were removed from Australia to Malaysia.

F.     Disposition

42    The appeal is to be dismissed, and the appellant is to pay the costs of the Minister, as taxed or agreed.

Associate:

Dated:    29 May 2026