Federal Court of Australia

ETS19 v Minister for Immigration and Citizenship [2026] FCA 1434

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first respondent’s name be amended to “Minister for Immigration and Citizenship”.

3.    The appellant pay the respondent’s costs fixed in the amount of $7,000 within 21 days of this order.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (the PJ) dismissing the appellant’s application for judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse the appellant’s application for a permanent Protection (Class XA) (subclass 866) visa. I will refer to the Tribunal’s decision as TD. The appellant seeks orders setting aside the PJ, quashing the decision of the Tribunal, and remitting it for determination according to law. For the reasons set out below, the appeal should be dismissed.

Background

2    The appellant is a citizen of Malaysia who arrived in Australia on 3 May 2017: Appeal Book at 9 (AB). On 16 July 2017, he applied for a Subclass XA-866 (Permanent Protection) visa: TD [3]. In general terms, the appellant claimed that he faced a real risk of harm from gangsters in Malaysia after he was involved in a truck accident which killed members of a gangster leader’s family: TD [5]. On 11 December 2017, the Minister’s delegate refused the appellant’s visa application: TD [12].

3    On 23 October 2019, the Tribunal heard an application for review of that decision. On 5 November 2019, the Tribunal affirmed the delegate’s decision: AB 84. At the Tribunal hearing, the appellant accepted that the original basis for his protection visa, being the threat of reprisal from gangsters was false, and indicated that he instead intended to rely upon new grounds first raised at the Tribunal hearing: TD [33]-[37]. These new claims were summarised by the Tribunal at paragraph [36] as follows:

In 2007 the applicant was working as a cashier at what he described as a table-tennis bar. Some customers lost money in a game and hit the applicant. As a result, the applicant suffered a broken leg and was hospitalised for a few weeks. After he was discharged from hospital the applicant wanted to negotiate proper compensation from the customers but they wouldn't pay. The applicant then made some kind of trouble for the customers which he was unable to specify and then he left for Singapore. The applicant never explained, despite being given a number of opportunities, what it was he feared these customers would do to him if they found him. However, he did say that from that point he couldn't stay in one place. The applicant claimed that if he stayed in one place for a long time that `the gang make trouble for me so I move'. The gang referred to were the customers he had a dispute with in 2007.

4    The Tribunal found that there were “good reasons to be sceptical about the applicant’s new evidence”, but that even if it were accepted as true, “they fall short of establishing any basis for a protection visa”: TD [53]. On that basis, the Tribunal affirmed the delegate’s decision.

5    On 2 December 2019, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2). On 27 February 2025, the primary judge dismissed the application for judicial review with costs. In the Court below, the appellant advanced three grounds of review, as noted at PJ [15]:

1.    Tribunal member did not correctly understand what had happened to me in Malaysia, which caused adverse decision against me.

2.    Tribunal member did not correctly consider what would happen to me if l return to Malaysia.

3.    Relevant regulations related to serious harm were not applied properly.

6    The primary judge dismissed ground one on the basis that the appellant conceded at the hearing below that no such error was established: PJ [26]. Ground two was dismissed on the basis that the Tribunal had in fact considered (at paragraphs [65]-[69]) what would happen to the appellant if he returned to Malaysia: PJ [28]. Ground three was dismissed after the primary judge held that the Tribunal correctly engaged in the statutory task and applied the relevant facts to the law: see PJ [29], [31].

7    On 18 March 2025, the appellant filed a notice of appeal in this Court as well as a supporting affidavit dated 11 March 2025.

Grounds of appeal

8    In his Notice of Appeal (NoA), the appellant advances three grounds of appeal.

1.    The Tribunal did not consider my previous and new claims fully during the hearing, nor did it correctly understand what had happened to me in Malaysia.

2.    The relevant regulations pertaining to complementary protection and the well-founded fear of persecution were not properly applied in my case. The way the Tribunal deal with my case in this aspect undermines the Tribunal's decision-making process.

3.    The Judge failed to consider my claims and grounds properly and adequately during review my case, and then made adverse decision against me.

9    As can be seen from the above, the appellant’s grounds of appeal were vague and unparticularised.

Submissions

10    The appellant did not file written submissions. At the hearing before me, the appellant (assisted by an interpreter) did not seek to advance any substantive oral submissions. I was therefore essentially left with the appellant’s bare grounds of appeal. I drew those to the appellant’s attention and asked whether there was anything further he wished to say about them and he said he did not.

11    The Minister was represented by Mr M Al Rifai of Clayton Utz and also relied upon written submissions. For the reasons below, I accept the Minister’s overarching submission that the appeal should be dismissed.

12    Ground one does not refer to any error made by the primary judge nor does it squarely reflect the grounds argued before the primary judge – although it might be said to be some variant on grounds one and two below. In any event, the Minister fairly did not object to that ground being argued before me and I would give leave to do so to the extent necessary.

13    To the extent it was necessary to do so, the Tribunal considered the appellant’s claims, including those raised orally at the Tribunal hearing. Some of those claims (as I have noted above) were abandoned by the appellant as being “positively untrue”: see PJ [9] and TD [30]-[34]. The Tribunal properly disregarded those claims in light of the appellant’s disavowal of them: TD [34]. No error lies in that approach.

14    Others were dealt with by the Tribunal in the way aptly summarised at PJ [12]-[13]:

The Tribunal found ‘good reasons to be sceptical about the applicant’s new evidence’, but found even taking the new evidence at its highest, it did not establish any basis for protection ([53], [60] of the reasons). This was for the reason, the persecution the applicant claimed to fear was in relation to a dispute over the alleged events in 2007 which could not establish the applicant had a ‘well-founded fear of persecution’ as required by s 5J of the Act for reasons of ‘race, religion, nationality, membership of a particular social group or political opinion’ ([55] and [56], [58] of the reasons).

Further, the applicant did not have a ‘well-founded fear of persecution’ as he would not be seriously harmed if returned to Malaysia ([59] of the reasons). Similarly, the Tribunal found the applicant was not entitled to complementary protection under s 36(2)(aa) of the Act, as there was not a ‘real risk’ he would face ‘significant harm’ as a ‘necessary and foreseeable consequence of… being returned to Malaysia’ ([65], [67] of the reasons).

15    The reasons of the Tribunal referred to by her Honour sufficiently reveal the Tribunal’s consideration of the appellant’s claims and the material he advanced as to what had occurred to him in Malaysia: see generally the principles summarised in RDYQ v Minister for Immigration and Citizenship [2026] FCA 645 at [31].

16    None of that involved any error of the kind alleged in ground one on the part of the Tribunal (let alone any error on the part of the primary judge, insofar as that argument was put to her Honour below).

17    Ground two is likewise not a ground that appears to have been squarely argued before the primary judge (although ground three below did make reference to “[r]elevant regulations related to serious harm” not being “applied properly”). But, in any event, the primary judge approached ground three below on the basis that it raised for consideration whether “the Tribunal did in fact properly construe the relevant law, which it identified at [46] to [52] of the reasons and correctly applied the law to the facts of the applicant’s case at [53]-[67] of the reasons”: PJ [31] read with [29].

18    The primary judge concluded that it had: PJ [31].

19    The appellant identifies no specific error in that conclusion, nor have I detected any. I reject ground two for those reasons.

20    In relation to ground three, the appellant argued that the primary judge failed to properly consider his claims prior to issuing a decision adverse to his interests. Again, neither the manner in which that was said to have happened nor the specific asserted error(s) in her Honour’s reasoning or approach were further identified by the appellant.

21    While I did not have the transcript of proceedings below before me, it appears from what is recorded at PJ [20]-[24], [27] that her Honour carefully sought to draw the appellant’s attention to aspects of the Tribunal’s reasons to better understand the case he was putting before the Court (and also sought to understand his case in other ways – eg PJ [19]). I also note that the primary judgment engaged with all three grounds of judicial review raised by the appellant at paragraphs [16]-[33] (taking a very charitable view of the grounds as articulated in the application – see again her Honour’s approach to ground three).

22    There is nothing in the material before me to suggest that the primary judge did not “properly consider” the appellant’s claims, and accordingly I reject this ground of appeal.

23    For completeness, and noting that the appellant is legally unrepresented, I have considered whether the decision of the primary judge (and that of the Tribunal) contains any self-evident error: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J). I am satisfied that neither decision contains any obvious legal error.

Conclusion

24    I will dismiss the appeal.

25    The Minister sought an order that, if successful, the appellant pay its costs fixed in the sum of $7,000. In support, it relied upon the affidavit of Mahmoud Al Rifai affirmed 11 September 2026. That affidavit deposes that, prior to the hearing, the Minister had incurred $7,268.91 in legal costs exclusive of GST. Noting that the Minister has likely incurred additional costs in the course of attending to the hearing on 14 September 2026, I am persuaded that $7,000 is an appropriate amount for a lump sum costs order. Further, noting the overarching purpose of civil proceedings, and the relatively low value of the costs order, I am persuaded that it is in the interests of justice to avoid the process of taxation.

26    For those reasons, I will order that the appellant pay the Minister $7,000 in costs within 21 days of this order.

Associate:

Dated:    6 October 2026