BZO18 v Minister for Immigration and Citizenship - Protection Visa Appeal Dismissed

Original Word Document (81.5 KB) Federal Court of Australia

BZO18 v Minister for Immigration and Citizenship [2026] FCA 513

| Appeal from: | BZO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1174 |

| File number: | VID 10 of 2024 |

| Judgment of: | MOSHINSKY J |

| Date of judgment: | 27 April 2026 |

| Catchwords: | MIGRATION – appeal from Federal Circuit and Family Court of Australia – protection visa – where the appellant stated in the Tribunal hearing that the claims in her visa application were not correct and that they had been contrived by a third person – where the appellant relied on a single ground before the primary judge based on irrelevant considerations – where the appellant relied on three new grounds on appeal relating to her lack of legal representation before the Court below – appeal dismissed |

| Legislation: | Migration Act 1958 (Cth), s 36 |

| Cases cited: | ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 |

| Division: | General Division |

| Registry: | Victoria |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 31 |

| Date of hearing: | 3 March 2026 |

| Counsel for the Appellant: | The Appellant appeared in person with the assistance of an interpreter |

| Solicitor for the First Respondent: | Mr C Orchard of Sparke Helmore Lawyers |

| Solicitor for the Second Respondent: | The Second Respondent filed a submitting notice, save as to costs |
ORDERS

| VID 10 of 2024 |

| BETWEEN: | BZO18

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | MOSHINSKY J |
| DATE OF ORDER: | 27 APRIL 2026 |
THE COURT ORDERS THAT:

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

2. The second respondent’s name be amended to “Administrative Review Tribunal”.

3. The appeal be dismissed.

4. The appellant pay the first respondent’s costs, to be determined on a lump sum basis.

5. Within 21 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

6. In the absence of any agreement:

(a) within a further 14 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b) within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1 The appellant, who is from Malaysia, appeals from a judgment of the Federal Circuit and Family Court of Australia (Div 2) (Federal Circuit Court): BZO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1174. The Federal Circuit Court judge (the primary judge) dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 March 2018 (the Tribunal’s Decision). The Tribunal affirmed a decision of a delegate (the Delegate) of the first respondent (the Minister) to refuse to grant the appellant a protection (subclass 866) visa (the Visa).

2 The appellant was self-represented in the proceeding in the Federal Circuit Court and is self-represented in the appeal to this Court.

3 In the proceeding in the Federal Circuit Court, the appellant relied on a single ground of appeal, which was that the Tribunal fell into jurisdictional error by taking into account irrelevant considerations. The primary judge held that this ground was not made out.

4 On appeal to this Court, the appellant relies on three grounds of appeal, which relate to her lack of legal representation in the proceeding in the Federal Circuit Court. She contends that the proceeding was unfair because she was not legally represented.

5 For the reasons that follow, the grounds of appeal are not made out. It is established that a lack of legal representation is not enough on its own to constitute procedural unfairness. There is nothing additional in this case that made the proceeding in the Federal Circuit Court unfair – procedurally or otherwise. Accordingly, the appeal is to be dismissed.

Background

6 The following statement of the background facts and matters is substantially based on the primary judge’s reasons. I am satisfied that it is an accurate summary.

7 The appellant was born in Malaysia and arrived in Australia on 6 November 2016 as the holder of a UD-601 Electronic Travel Authority visa. The appellant’s family, including her husband and son, continue to reside in Malaysia.

8 On 5 December 2016, the appellant applied for the Visa (the Visa Application). In the Visa Application, the appellant set out her claims for protection, which included fearing harm from the Malaysian authorities as a result of her previous support for the Sabah and Sarawak Union (SSU) and having left Malaysia after being verbally and physically threatened.

9 On 10 March 2017, the Department of Immigration and Border Protection notified the appellant that her Visa Application had been refused (the Delegate’s Decision). In summary, the Delegate did not consider that the appellant was a person of interest to the Malaysian authorities on account of her claimed support of the SSU, noting that she was able to obtain a passport and exit the country without issue, suggesting she has no political profile. The Delegate also found that the appellant’s protection claims were vague and “extremely similar or identical” to claims made by other recent protection visa applicants from Malaysia. As such, the appellant was found not to be owed protection obligations under s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).

10 On 19 March 2017, the appellant applied to the Tribunal for review of the Delegate’s Decision. A hearing before the Tribunal was held on 6 February 2018, which the appellant attended and at which she received assistance from a Malay interpreter (the Tribunal Hearing).

11 On 19 March 2018, the appellant was notified of the Tribunal’s Decision, affirming the Delegate’s Decision.

Tribunal’s Decision

12 The following summary of the Tribunal’s Decision is substantially based on the primary judge’s reasons. I am satisfied that the summary is accurate.

13 The Tribunal summarised the relevant background to the matter and legislative framework for the grant of the Visa. The Tribunal noted that it had taken into account relevant country information and policy guidelines in making its decision.

14 The Tribunal accepted the identity of the appellant.

15 At the Tribunal Hearing, the appellant was asked to confirm that her protection claims as made in the Visa Application were correct and formed the basis of her claims for protection before the Tribunal. In response, the appellant gave oral evidence which the Tribunal recorded at [21] of its reasons:

… the [appellant] told the Tribunal that what had been written and submitted to the Department as part of her application for Protection was not correct. The [appellant] admitted that she was not under any threat or subjected to attention by the Malaysian government or security and police forces for any political activities concerning the [SSU] political dispute. The [appellant] also admitted that these claims as submitted were contrived by a third person ([who] she did not name) to whom she paid AUD$350.00. The purpose for the [appellant’s] claims was (as she was advised by this third person) to gain the ‘right’ to ‘…work legally…’ in Australia.

16 The Tribunal continued by addressing the appellant’s oral evidence at the Tribunal Hearing, stating that the appellant had admitted that she chose to leave Malaysia to find work and assist her family financially, as opposed to leaving out of any fear of harm. The Tribunal accepted these claims by the appellant, noting that the Tribunal was assisted by her “display of truthfulness and sincerity” with respect to her “actual claims”.

17 The primary judge noted at [17] of her judgment that the Tribunal made minor errors in [30] and [32] of its reasons. In those paragraphs, reference was made to a male visa applicant and “unlicensed moneylenders in Malaysia”. The primary judge observed that these references plainly did not relate to the applicant in the Federal Circuit Court proceeding.

18 As a result of the appellant’s admissions to the Tribunal, and the Tribunal’s resultant findings, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or 36(2)(aa) of the Migration Act. As a result, the Tribunal affirmed the Delegate’s Decision.

The proceeding in the Federal Circuit Court

19 As noted above, the appellant relied on a single ground in the Federal Circuit Court proceeding. This was set out in the primary judge’s judgment at [20] and was as follows:

The tribunal did not make its decision 19 March 2018 according to law, in that

1.    The tribunal committed jurisdiction error by taking into account irrelevant considerations.

PARTICULAR

a.    in paragraphs 45, the tribunal referred to the Applicant’s willingness to approach the authorities for identity documents being a strong support for the contention that the applicant did not fear harmed in Malaysia.

b.    Whether the applicant was willing to or was able to obtain identity documents is an irrelevant consideration of whether or not the applicant fears being harmed in Malaysia.

(Errors in original.)

20 Although the first particular refers to [45] of the Tribunal’s reasons, there is no such paragraph (as the primary judge noted at [26]).

21 The primary judge considered the ground of review at [25]-[29] of her reasons. Her Honour said that the ground essentially asserts that the Tribunal fell into jurisdictional error by considering an irrelevant matter, “being the fact that the [appellant] was willing and able to contact authorities to obtain identity documents”. The primary judge referred (at [26]) to a submission by the Minister that there was no issue as to the appellant’s identity, which was accepted as claimed. Her Honour referred (at [27]) to a submission by the Minister that all material considered by the Tribunal, including the Visa Application, the Delegate’s Decision, and the appellant’s evidence at the Tribunal Hearing, were relevant matters for the Tribunal’s consideration of the matter. The primary judge referred (at [28]) to a submission by the Minister that the appellant’s evidence at the Tribunal Hearing was to the effect that her protection claims had been contrived by a third person and that she in fact did not fear harm in Malaysia. The primary judge concluded (at [29]):

I do not consider that the Ground of Review in the Application identified any jurisdictional error within the Tribunal’s Decision. Further, I do not consider that the erroneous reference in paragraphs [30] and [32] of the Tribunal’s Decision amounts to a jurisdictional error.

22 Read as a whole, the primary judge accepted the Minister’s submissions and for those reasons held that the asserted jurisdictional error was not made out.

The appeal

23 The appellant appeals to this Court and raises the following grounds of appeal (as set out in her notice of appeal):

1.    The judgement was unfair because the appellant does not have an opportunity to be represented by a law practitioner. Appellant has been miss understood of all legal processes since the beginning.

2.    The judgement does not give appellant the right to understand the process of legal terms for appellant to fight for appellant’s rights.

3.    The legal process misled the appellant until the appellant trusted that there was a legal practitioner represented during the process.

(Errors in original.)

24 In essence, by these grounds, the appellant contends that the proceeding in the Federal Circuit Court was unfair, or she was denied natural justice, because she did not have legal representation.

25 The appellant did not file an outline of submissions in the appeal proceeding. She appeared at the hearing of the appeal and made brief oral submissions with the assistance of an interpreter (who participated by telephone). The appellant said that she admitted her mistake (which I took to be a reference to the inaccuracy of the claims in her Visa Application) and sought forgiveness. The appellant emphasised the importance to her of staying longer in Australia. Perhaps understandably, given her lack of legal knowledge, the appellant did not directly address her grounds of appeal.

26 The Minister was represented by a solicitor at the hearing. In advance of the hearing, the Minister filed and served an outline of submissions. The Minister’s solicitor made brief oral submissions at the hearing.

27 In my view, the appellant’s grounds of appeal are not made out.

28 First, as the Minister submits, it is well established that there is no absolute right or entitlement to legal representation in Australia: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25] per Flick J and the cases there cited.

29 Secondly, and in any event, the appellant does not state how she was treated unfairly or misled, or what she misunderstood. In the absence of any detail about these matters, the appellant’s grounds do not establish unfairness or a denial of natural justice.

30 For these reasons, none of the appeal grounds are made out.

Conclusion

31 It follows that the appeal is to be dismissed. The usual position is that costs “follow the event”. In other words, the usual position is that the unsuccessful party pays the successful party’s costs. There is no apparent reason why the usual position should not apply here. I will therefore make an order that the appellant pay the Minister’s costs, with such costs to be determined on a lump sum basis. Although the Minister sought a costs order in a particular sum, I prefer to order that, in the absence of agreement, the lump sum amount be determined by a Registrar.

| I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. |
Associate:

Dated: 27 April 2026