AKA24 v Minister for Immigration and Multicultural Affairs - [2024] FedCFamC2G 1434

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKA24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1434

File number: PEG 32 of 2024

Judgment of: JUDGE KENDALL

Date of judgment: 23 December 2024

Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – where applicant identifies as a lesbian Muslim and claims to fear harm on that basis – where country information identifies widespread discrimination and harm against those who are LGBTQ identified – where Tribunal concludes that applicant lived “discreetly” and “privately” – where Tribunal determines that no harm would arise if applicant returns to Malaysia – whether the Tribunal failed to properly address the question of whether the applicant’s fear of persecution was well-founded as per the principles in Appellant S395/2002 – Tribunal found to have constructively failed to exercise its jurisdiction – jurisdictional error established – writs issued.

Legislation:
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16

Migration Act 1958 (Cth), ss 5AAA, 5J, 5L, 36, 476,

Cases cited:
AJS18 v Minister for Home Affairs & Anor [2019] FCCA 1108

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

Applicant LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211

ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

CRP16 v Minister for Immigration & Anor [2017] FCCA 2957

DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

DKM22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 504

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZKRT [2013] FCA 317

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45

Minister for Immigration & Border Protection v Singh [2014] FCAFC 1

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

Re GJ [1995] Refugee Appeal 1312/93 (Unreported, 30 August 1995)

Re XMU [1995] CRDD No 146 (QL)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

The National Coalition for Gay and Lesbian Equality v The Minister of Justice (1990) (1) SALR 6 (CC)

W133/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 395

Division: Division 2 General Federal Law

Number of paragraphs: 89

Date of hearing: 27 September 2024

Place: Perth

Applicant: Applicant appeared in person

Counsel for the First Respondent: Ms H Cormann

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

PEG 32 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AKA24

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

23 DECEMBER 2024

THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 5 January 2024 in Case Number 1720166.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Introduction

The applicant in this matter seeks judicial review of a decision of the Administrative Appeals Tribunal dated 5 January 2024 pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).
In that decision the Tribunal affirmed a decision of a delegate of the Minster for Immigration, Citizenship and Multicultural Affairs not to grant the applicant a protection visa.
To succeed before this Court the applicant must show that the Tribunal fell into jurisdictional error.
For the reasons that follow, this Court has determined that the Tribunal has fallen into error. The decision will, accordingly, be set aside and the matter remitted to the Tribunal for reconsideration.
Amendments to the Migration Act 1958 (Cth)
The Act was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). The decision the subject of this judgment is dated 5 January 2024 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Court notes that the Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, proceedings will continue in accordance with the new law. By continuing with a proceeding, anything the court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
As such, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicant’s migration history
The applicant is a citizen of Malaysia. On 13 April 2017, she was granted a tourist visa for travel to Australia. That visa was valid until 13 April 2018.
The applicant arrived in Australia on 2 May 2017.
On 11 May 2017, the applicant lodged an application for a Protection (Class XA) (Subclass 866) visa (the “visa”). Relevantly, she claimed to fear harm as a lesbian Muslim (which is forbidden under secular and Islamic law in Malaysia).
On 30 August 2017, a delegate of the first respondent refused to grant the applicant the visa. The delegate determined that the applicant was not a person in respect of whom Australia had protection obligations pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.
The applicant lodged an application for a merits review of the delegate’s decision at the Tribunal on 1 September 2017.
On 4 May 2022, the applicant was invited by the Tribunal to provide further information in relation to her review application to the Tribunal.
On 16 May 2022, the applicant provided further information in relation to her application to the Tribunal.
On 13 December 2022, the applicant appeared at a Tribunal hearing to give evidence and present arguments.
On 5 January 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
On 31 January 2024, the applicant sought judicial review of the Tribunal’s decision in this Court.
THE TRIBUNAL’S DECISION
The application to this Court was brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in detail.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly useful when (as was the case here) the applicant appeared before the Court without legal representation and struggled to some degree to articulate her concerns in relation to the Tribunal’s approach and ultimate findings.
In this matter, the Tribunal began by outlining the applicant’s migration history, noting that the applicant had applied for a protection visa in May 2017 and had claimed that she had left Malaysia because she is a lesbian Muslim (which is forbidden under secular and Islamic law in Malaysia) (at [3]).
The Tribunal noted that, on 30 August 2017, a delegate for the Minister had refused the applicant’s claims as the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2) of the Act (at [5]).
The Tribunal explained that on 1 September 2017, the applicant had applied for a review of the delegate’s decision (at [7]) and, on 4 May 2022, the Tribunal had written to the applicant inviting her to provide further information in support of her application (at [7]). In her response to that request for information, the applicant:
(a)indicated that she did not wish to call any witnesses to give evidence before the Tribunal;
(b)identified five internet articles regarding Islamic law in Malaysia, LGBTQ+ rights in Malaysia; and
(c)advised that she had a new claim, namely that she wanted to become a transman, and was in the process of saving enough money to start her journey of becoming transman (at [8]).
The Tribunal explained that the applicant appeared before the Tribunal to give evidence and present arguments on 13 December 2022 (at [9]). At that hearing, the applicant did not require the assistance of an interpreter and was not represented. Further, the applicant did not call any witnesses and did not provide any additional documents in support of her protection claims (at [10]).
The Tribunal then explained that the core issue before it was whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk she will suffer significant harm, pursuant to s 36(2)(aa) of the Act. (at [12).
The Tribunal then outlined the criteria for a protection visa and current legal principles relevant to s 36(2)(a), s 5H(1)(b), s 5J(1), s 5J(4), s 36(2)(aa), s 36(2A) and s 36(2B) of the Act, the requirements of Ministerial Direction No. 84 and s 5AAA of the Act (in relation to credibility assessments) (at [14]-[36]).
The Tribunal then detailed the applicant’s claims for protection (at [37]), highlighting that the applicant claimed to fear persecution in Malaysia because:
(a)she is a lesbian which is forbidden under law in Malaysia;
(b)as a Muslim she is forbidden to be a lesbian under Islamic law;
(c)Malaysian society is against homosexuality and she cannot live the way she wants to;
(d)her family hates her for being a lesbian so she became depressed, isolated and mentally unwell.
The Tribunal then explained that at the commencement of the hearing, the Tribunal asked the applicant if she had any other claims for protection. The applicant answered that “she wanted to become a transman, and was saving money for her journey to become a transman” (at [38]).
The Tribunal then proceeded to analyse the evidence before it, noting that the applicant provided the following evidence:
(a)the applicant was born into a Muslim family, was raised as a Muslim and practised her faith until shortly after coming to Australia. She does not practice Islam now. She is not married, and does not have any children (at [41]);
(b)the applicant’s mother and stepfather (whom she calls parents), live in Malaysia. She has an older brother and a younger half-brother from her mother’s second marriage (at [42]);
(c)the applicant and her older brother never got along. She grew up acting very boyish and quite rough, was always playing with boys and her older brother didn’t like that. By comparison, the applicant gets along well with her younger half-brother. She and her younger half-brother are close to her stepfather. She has not been speaking to her mother recently as they had an argument (at [43]);
(d)growing up, the applicant was not close with her parents, but she was close to her maternal grandmother who she and her older brother lived with in [place omitted] from a time after she was born until she was 12 years old. The applicant described her grandmother as a very strict and religious Muslim (at [44]);
(e)when she was 12 years old in her last year at primary school, the applicant first realised that she liked girls (at [45]);
(f)the applicant returned to live with her parents at age 13. She didn’t understand why she felt attracted to girls, but she later learned that lesbians were women who liked other women. Her closest friends at high school were not lesbians. The applicant said she would get letters from other girls at the school saying they liked her. There were also girls who asked to be her “sister” and then they would end up kissing each other in the toilets. Throughout high school, the applicant was not involved in any romantic relationships other than the kissing;
(g)the applicant had her first romantic relationship with a female outside her high school for a couple of months when she was 16 to 17 years old. Her family thought she and the applicant were just good friends. They hid their relationship from their families (at [47]);
(h)the applicant lived with her parents from 13 to 17 years old. After finishing school at age 16, she went to work in a retail shop and a small restaurant before moving to [place omitted]. The applicant claimed that she didn’t have any personal romantic relationships during this time (at [48]);
(i)after working on a farm, the applicant went to live and work in [place omitted] for about 2.5 years. The applicant had her first adult same-sex relationship with a woman named [partner one] in [place omitted]. The applicant was 20 years old, and [partner one] was 19. [Partner one] moved in with the applicant and they lived together as a couple. The applicant was working in a coffee shop as a barista at the time. The relationship lasted almost a year. The applicant described it as a good relationship (at [49]);
(j)after the relationship ended, the applicant returned to [place omitted] for a few months before moving to [place omitted], where she lived for approximately 1.5 years. She lived on her own. She had a romantic intimate relationship with a female student, and eventually the applicant moved in with her. The relationship lasted for a bit less than a year. They only socialised as a lesbian couple in private. When they went out in public, they acted like friends only. The applicant told her close friends about this relationship (at [50]);
(k)after this relationship ended, the applicant returned to live with her family in [place omitted] in 2012 and remained there until she came to Australia (at [51]);
(l)when she was 23 or 24, the applicant had a relationship with a woman named [partner two], that lasted for 6 to 7 years. The applicant and [partner two] always lived separately. [Partner two] was always around, and the applicant introduced [partner two] to her parents as her “girlfriend”, but they just said “whatever” because they knew that the pair were not going to get married. The applicant described this as a serious relationship because it lasted so long. At one stage they even talked about getting married, but they knew they would have to take a risk and move somewhere else where no one would know them, because their families would not accept their relationship (at [52]);
(m)when asked by the Tribunal whether she had told her parents that she was a lesbian, the applicant answered in the negative, but said she thought that maybe they knew. The applicant said that her family didn’t know about the nature of her relationship with [partner two]. When the Tribunal queried why they didn’t know the nature of her relationship with [partner two] if (as the applicant believed) that they knew she was a lesbian, the applicant said she thought her father was aware of it, but he did not care (at [53]);
(n)the applicant’s six closest friends (who are not lesbians) were aware of her relationship with [partner two], and together they socialised with those friends. The applicant said she did have other lesbian friends, but most of them lived in [place omitted]. She socialised with them when she could (at [54]);
(o)the applicant and [partner two] socialised together in public but only went to places where they knew no one would know them. When they went out in public, they acted like best friends, not a couple in a romantic relationship because if they did, they would be discriminated against and called out. The applicant read an article in the media that says if you get caught doing LGBT things, like holding hands, or doing stuff outside of marriage, you will get a fine and go to jail and even get caned. Most of the time they just ate takeaway food at home. If they went to the movies, they were last to enter the cinema. The applicant said she and [partner two] did not go to any public places for lesbians because she did not know of any such places in [place omitted]. She said she was aware of private events for gay people, but she did not attend them (at [55]);
(p)when asked if she had told her work colleagues about her sexual orientation, the applicant said she did not tell them but assumed that they knew about the nature of her relationship with [partner two] because they were always together and would hold hands or hug each other. The applicant said that people don’t talk seriously about lesbian relationships in Malaysia. She and [partner two] didn’t socialise with the applicant’s work colleagues, but they did socialise with two of [partner two]’s work colleagues, because they were part of the applicant’s group of best friends (at [56]);
(q)the applicant said [partner two]’s family did not approve of her, and she believed that [partner two]’s father realised they were more than friends so there was a big argument with him as he didn’t want the [partner two] continuing to see the applicant. The applicant and [partner two] continued to see each other secretly (at [57]);
(r)the applicant claimed she wanted a new life in Australia to start from the beginning where no one knew her and she could be free. She claimed the plan was for the applicant to come to Australia first and see what it was like, not just listen to what others said, and then she and [partner two] could get married. This, the Tribunal determined, seemed inconsistent with the applicant’s evidence that [partner two] didn’t come to Australia because of her family. When the Tribunal raised that with the applicant, she claimed that she wanted to have the money and be set up in Australia in case [partner two]’s family disowned her and then they could be together. [Partner two] didn’t come with the applicant because she didn’t know if it would turn out (at [58]);
(s)this relationship ended abruptly in February or March 2019 (at [59]);
(t)the applicant has been open about her sexual orientation and her previous relationships with her friends and work colleagues in Australia (at [59]);
(u)the applicant stopped practising as a Muslim in 2018, the year after she arrived in Australia (at [60]);
(v)according to her protection visa application, the applicant left Malaysia because of her personality as a lesbian. She claimed in her country this kind of personality is forbidden, that society is very anti lesbian, and she always isolated all the people surrounding her. She has had depression for many years because she has to face all the people around her and her relatives hate her so much because of her personality and appearance. Also, as a Muslim this kind of personality is forbidden (at [63]); and
(w)when asked during the hearing why she left Malaysia to come to Australia, the applicant claimed that she wanted to live a normal life. She wanted to have a relationship openly and be able to do what she wanted and dress how she wanted (at [64]).

The Tribunal then asked the applicant to describe any specific incidents of harm, noting as follows:
65.When asked whether she had experienced harm in Malaysia, the applicant said she had experienced harm on account of being a lesbian. When asked to provide details of the harm she experienced, the applicant described an incident when she was living in [place omitted] in a flat with her girlfriend. She had finished work at 1am and upon arriving at her apartment complex, a male resident who lived there, followed her into the lift and began speaking aggressively to her with a mocking tone, saying “You’re the lesbian” and “You’re with the girl”. Then he started pushing the applicant. When the lift door opened, the applicant ran to her flat. The man didn’t follow. The applicant said she thought he was drunk. She reported it to the local security guard at her building, and a burger stall holder nearby who said he would speak to the man about it. After that, there was another occasion when the same man called out to her “You the lesbian” and made snide remarks to the applicant’s girlfriend as they were walking to their car.
66.The applicant described another occasion when she was harassed on the bus between [place omitted] and [place omitted]. When the bus stopped at the first stop, most people got off leaving only 3 to 5 people left. The applicant always sits at the front of the bus so she can get off quickly. On this occasion the bus driver and another person started saying things like “You a tomboy” and making lewd comments like “You like pussy” and “You should try the dick”. The applicant did not report this conduct to the police because she claimed to that she had experienced this kind of harassment daily on account of her dressing and looking masculine. People think she is a tomboy and probably a lesbian.
67.The applicant also recounted how one time she went to a nightclub and was hanging around with some females. Certain people didn’t like that and came over and pushed her with their hands to provoke her. The applicant just stayed silent as she knew what these people were doing. The applicant wanted to say what she was thinking but was afraid if she did, they would come back at her, so she just kept quiet.
68.The applicant also recounted how relatives on her mother’s side of the family (an aunt and uncle) who are very religious would say things like “If you like girls, you’re not in the family anymore”. They didn’t say anything else, but it was said in a threatening manner. The applicant did not elaborate on how the manner was threatening.
When asked by the Tribunal whether she sought help in relation to these incidents, the applicant told the Tribunal that she did not seek help from the authorities because “there is no one to fight for the rights of lesbians in Malaysia” (at [69]).
The Tribunal further noted that when asked if there was anywhere within Malaysia where she could live without fear, the applicant answered in the negative, saying “You can live but you are hiding sexual identity”. This, the Tribunal emphasised, needed to be juxtaposed against the applicant’s evidence that she had lived in [place omitted], [place omitted] and [place omitted] within Malaysia, including living with her same-sex partners in [place omitted] and [place omitted], and being able to socialise – albeit, as she said, mostly with friends or discreetly (at [70]).
The Tribunal continued:
71.When she lived at the horse farm in [place omitted] as a youth, the applicant said that no one really bothered her because she spoke differently to the locals and was a known outsider. Mostly she was working with males then and they were protective of her. She was not in a lesbian relationship at that time and didn’t go around saying she was a lesbian. Although she dressed like a boy people were more interested in her being from outside [place omitted].
72.When I asked the applicant about her time living in [place omitted], she claimed that she experienced harassment and negative sentiments towards her in her daily life, but because it is a big city people can blend in. The applicant claimed that there were people in [place omitted] who did not accept her being a lesbian, but they were generally not that interested in her being lesbian. She took care not to say things to provoke others.
73.According to her protection visa application, the applicant claimed that she experienced harm in Malaysia because she was mentally down, suffering depression and isolated by people around her who could not accept her as a lesbian. If she returned to Malaysia, she believes she would have depression once again and would be mentally down because Malaysian people cannot accept someone who is lesbian and she would have difficulty having a good life. The applicant did not elaborate on being mentally down and depressed except that was how she felt.
74.When asked during the hearing what she thought would happen to her if she returned to Malaysia now or in the foreseeable future, the applicant claimed that she would live like she did before because nothing had changed there. The sharia law is still the same. Malaysians still do not accept lesbians. She would find it hard to find a job because now she has tattoos on her arm and that is also forbidden. She will not be able to be open about being a lesbian the way she has been able to do since coming to Australia. She is afraid of being caught by the “jakim”, or local sharia law officer, who looks out for people who break the sharia law. If they want to catch her, they will identify her as a Muslim, for which she will get a fine and go to jail, and in some of the cases, get caned under sharia law.
The Tribunal then assessed a new claim raised by the applicant – ie, her desire to become a transgender man (transman) in the future (at [75]-[79]) but ultimately determined that this new claim did not need to be assessed as the Tribunal could not “decide the applicant’s claim for protection based on a future wish that may not eventuate” (at [88]).
The Tribunal then assessed the country information before it (at [82]-[85]). The contents of that material is outlined by the Court below at [73].
The Tribunal then scrutinised whether, on the basis of the information before it, the applicant “is a refugee”. The Tribunal determined as follows in this regard:
87.The applicant did not call any witnesses to support her claim that she is a lesbian or that she identifies as a transgender male. Given that the applicant referred to having been involved in numerous same sex relationships, including one of considerable length, it would have been expected that the applicant would have provided some supporting evidence, given she admitted sharing her sexual orientation with her half-brother with whom she has a good relationship and her current non-lesbian friends and colleagues with whom she has been open about such matters, as well as past same-sex partners.
89.On the basis of the evidence before the Tribunal, I accept the applicant’s evidence that:
a.she is a lesbian person who was born a Muslim, and is therefore subject to both state and Islamic law in Malaysia;
b.when she was 20 years old she had her first adult same-sex relationship lasting for about 1 year whilst living in [place omitted] for work. She lived with this girlfriend for a period of time;
c.when she moved to [place omitted] at age 21 or 22, she had another same-sex relationship with a female lasting less than a year, and they lived together as a couple;
d.when she was 23 or 24, she had a same-sex relationship with [partner two] that lasted for 6 to 7 years whilst living in her hometown of [place omitted], although they did not live together. This relationship was serious and they discussed marriage but realised they would have to move elsewhere. [Partner two] did not want to move to Australia with the applicant so they continued the relationship long-distance after the applicant came to Australia in 2017. The relationship ended in 2019;
e.she has never told her parents that she is a lesbian, however she believes her stepfather is aware and she gets on well with him, and her younger half-brother knows she is a lesbian;
f.she has shared with her 6 closest friends (who are not lesbian) in Malaysia that she is a lesbian, and she and past partners have socialised with her closest friends;
g.she has gone out in public with past partners but they either went to places where no one would know them, or they didn’t act like a couple in a same-sex relationship in public;
h.she experienced harm in Malaysia in the form of verbal and minor physical harassment from unknown individuals in public places on 4 occasions, because she is a lesbian. She did not seek help from any authorities on these occasions. She has 2 relatives who have made unpleasant comments to her.
Accepting that lesbians are a particular social group in Malaysia within the meaning of s 5L of the Act and that lesbian Muslims are a particular social group in Malaysia the Tribunal was satisfied that the applicant fears persecution if she is returned to Malaysia for reasons of being a member of the particular social groups, namely lesbians or lesbian Muslims in Malaysia, and that this is the essential and significant reason for her fear of persecution (at [95]).
The Tribunal continued:
96.In determining whether the applicant would suffer persecution involving serious harm on return to Malaysia by reason of her membership of a particular social group, namely lesbians and/or lesbian Muslims, I have considered the applicant’s evidence about her past adverse experiences in Malaysia as a lesbian and a lesbian Muslim.
97.Apart from the very small number of incidents outlined by the applicant and referred to above, the applicant claimed that she experienced harassment and negative sentiment towards her in her daily life whilst living in [place omitted]. The applicant’s evidence about the harassment and negative sentiment was lacking in any details. However, the applicant also said that because [place omitted] was a big city it was easier to blend in, and people cared less there about her being a lesbian. She avoided problems by not saying things to provoke others. This vague and non-specific conduct was not identified by the applicant as a reason for any loss of employment or other societal discrimination or as a reason for leaving [place omitted] to return to [place omitted].
98.Despite the claims in her protection visa application suggesting that her family hated her, this was not supported by the applicant’s evidence. She described a generally good relationship with her parents, and a very close and supportive relationship with her younger half-brother. Despite a poor relationship with her older brother, and the possibility that her parents and older brother were unaware that she was a lesbian, there is no evidence that she suffered any harm of the kind contemplated by the Act from her family as a result of her being a lesbian.
99.According to the protection visa application, the applicant also claimed that she had suffered from depression in Malaysia because of how she was treated. In her evidence before the Tribunal, apart from indicating that if she were returned to Malaysia, she would again feel depression, the applicant provided no other evidence in support of her written claim that she experienced depression in Malaysia or sought treatment for it.
100.The applicant’s evidence about enjoying her life in [place omitted] and being able to blend in [place omitted] where people care less about her being a lesbian contradicts the applicant’s evidence that there is nowhere in Malaysia where she can live without facing persecution as a lesbian and/or lesbian Muslim.
101.Over a period of 7 years, the applicant was involved in several same-sex relationships of considerable length in different parts of Malaysia, including cohabitation in [place omitted] and [place omitted]. During that time the applicant was employed and maintained relationships with family and friends, socialised with her partners in public, albeit discreetly, and recounted the details of only 4 incidents of harassment and discrimination.
102.In the same period of time, from commencing her first same-sex relationship as a 20 year old until she left Malaysia aged 27, the applicant’s evidence is that she was practising her Muslim faith throughout that time without any issues arising. The applicant did not give any evidence suggesting that she had been unable to practice her Muslim faith in Malaysia on account of being a lesbian. Whilst I acknowledge that the applicant conducted her relationships mostly in private, she did live with at least 2 partners during that time when she was a practising Muslim. She did not give any evidence suggesting that she had experienced any form of harassment or systematic and discriminatory conduct from religious leaders, or society, or from any government authorities on account of her being a lesbian Muslim. She also shared her sexual orientation with family and friends.
103.The DFAT report indicates that the level and frequency of such risks faced by lesbians and lesbian Muslims in Malaysia depends on a number of factors, including social, economic and religious status, and geographic location. Some Malaysians who are educated, not impoverished and who live in urban areas such as [place omitted] and [place omitted] are open about their sexuality within their family and community circles. Many LGBTI individuals, particularly Muslims, continue to hide their identity to avoid harassment. The country information presents a range of perspectives on the situation for the LGBTI community.
104.When the DFAT Report risk assessment for lesbians and lesbian Muslims in Malaysia was put to the applicant, she agreed with the assessment and did not offer any further commentary.
105.I accept that lesbians (along with other members of the LGBTI community) in Malaysia are at moderate risk of official and societal discrimination based on the DFAT Report, and the risks are higher for Malay/Muslim individuals and transgender individuals. I accept that they may face discrimination and harassment within their families and community, and in their interactions with the Malaysian authorities. I also accept that the Malaysian Government’s tolerance towards members of the LGBTI community has declined since 2018, based on the articles referred to by the applicant.
106.However, the available media articles and DFAT risk assessment alone is insufficient to constitute the ultimate finding about whether there is a real chance of serious harm to the applicant if she is returned to Malaysia. In determining whether there is a real chance of serious harm to the applicant on return to Malaysia by reason of her being a lesbian and/or a lesbian Muslim, I have considered all the applicant’s evidence, including the adverse experiences she recounted in Malaysia.
107.I find that the applicant lived in a number of different places in Malaysia. She did not claim that she moved to these places to avoid facing discrimination as a lesbian or lesbian Muslim. Instead, they were places she went to for work, and ended up in happy same-sex relationships in those places. The applicant loved living in [place omitted], and equally found that people in [place omitted] didn’t really care about her being a lesbian. The applicant did not give any evidence consistent with her claim that would support objectively her fear of being persecuted by the jakim (religious authorities) or anyone else for any reason.
108.Whilst the incidents of harassment and negative sentiments described by the applicant are regrettable, they do not amount to evidence of past serious harm as contemplated in s 5J(5) of the Act. They do not evidence systematic and discriminatory conduct against the applicant on account of being a lesbian or a lesbian Muslim as required by s 5J(4)(c) of the Act. It follows that I am not satisfied that the applicant experienced serious harm in the past in Malaysia as defined in the Act.
On the basis of the above, the Tribunal determined that the applicant does not face a real chance of persecution involving serious harm on account of being a lesbian and/or lesbian Muslim, or for any reason under s 5J(1) of the Act if she were returned to Malaysia, now or in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any of the reasons in s 5J(1) of the Act, if she returned to Malaysia, now or in the reasonably foreseeable future (at [109]).
The Tribunal then assessed whether the was applicant entitled to complementary protection, stating as follows:
111.Taking into account my findings above, I find that the applicant did not experience significant harm in Malaysia in the past, as defined in the Act.
112.The applicant claimed that she would find it hard to find a job because now she has tattoos on her arm and that is also forbidden. She did not provide any information in support of this claim.
113.On the evidence before me, I find that there is no real risk that the applicant will be subjected to any form of significant harm resulting from an act or omission by which she will suffer arbitrary deprivation of her life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.
Overall, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that she would suffer significant harm pursuant to s 36(2)(aa) of the Act (at [114]).
On the basis of the above, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act (at [115]-[116].
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 31 January 2024 contains six particularised grounds of review as follows (without alteration):
1.The Tribunal erred in finding at [107] that the applicant did not claim that she moved to different places to avoid facing discrimination as a lesbian or lesbian Muslim when regard had to the applicant's evidence as a whole, including
a.The applicant is a vulnerable person who finds it difficult to talk openly about her sexuality and gender identity,
b.Commented on country information regarding the treatment of homosexuals and transgender people in Malaysia, including the impact of civil and Syariah law provisions and government statements and initiatives.
c.There is a significant level of private violence against LGTB people, which often goes unreported because it is from family members.
d.The Malaysian police will refuse to enforce laws to protect the applicant against violence on the basis of the applicant’s sexuality, gender identity and religion and that this in and of itself amounts to prosecution.
2.The Tribunal’s erred in finding at [97] the applicant had not provided ‘a reason for leaving [place omitted]’ or other societal discrimination when regards had to
a.The country information, and
b.The applicant having experienced ‘harassment daily on account of her dressing and looking masculine. People think she is a tomboy and probably lesbian’ and calling her ‘‘tomboy’ and ‘you like pussy’ and ‘you should try the dick’.
c.The risk of facing criminal prosecution given the applicant was involved in several same-sex relationships of considerable lengths in different parts of Malaysia [at 101].
3.The Tribunal erred in failing to find that the applicant would likely to suffer significant harm based on the applicant’s membership as a lesbian in Malaysia; and greater risk as a lesbian Muslim in Malaysia and the applicant's activities as a lesbian in Australia.
4.The Tribunal did not give proper weight to the applicant’s having experienced daily harassment as being ‘very small number of incidents’ and ‘vague and non-specific conduct’ when:
a.The applicant has expressed many specific incidents of harassment and negative sentiment toward her in her daily life whilst living in [place omitted] [at 97] consistent with country information
b.The applicant experienced lew comments and harassment daily on account of her dressing and looking masculine [at 66].
c.The applicant gave examples of 4 specific incidents of harassment and discrimination and could have provided more examples had the Tribunal made further enquiries of the applicant. In this regard, the Tribunal had failed to make proper enquiries to discharge its obligation when it considered there was vague and non-specific conduct.
5.The Tribunal erred in finding that applicant’s evidence was contradictory at [100] by failing to give proper consideration to the applicant’s evidence as a whole:

On 27 March 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
The applicant appeared before the Court (on 27 September 2024) without legal representation but with the assistance of a Malay interpreter. Noting the applicant’s grounds of review, the Court asked the applicant to identify her preferred pronouns. The applicant informed the Court that she preferred to be identified as “she/her”. The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 31 January 2024 (the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 149 pages (marked as Exhibit 1), written submissions filed by the applicant on 13 September 2024, an affidavit of the applicant filed on 13 September 2024 (also taken as read and in evidence at the hearing of this matter), written submissions filed on behalf of the Minister on 13 September 2024 and an affidavit of service of Ms Madisen Anne Scott (affirmed and filed on 24 September 2024 and taken as read and in evidence at the hearing of this matter).
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what she thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that she now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant told the Court that the Tribunal had not considered her future or “other outcomes or possibilities” if she were to return to Malasia. The applicant stressed that she feared she would face significant harm if she were to return to Malaysia and “live the way she now lives in Australia”.
CONSIDERATION
Having considered all of the materials before the Court (including the applicant’s grounds of review, the information included in the applicant’s affidavit and his oral submissions before this Court) and noting that the applicant was unrepresented in this matter, the Court has interpreted the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
It is clear that the applicant’s grounds of review were not written by her and, to some extent, seek no more than an impermissible merits review. However, noting that the applicant was unrepresented, it is helpful to read these grounds of review within the context of the applicant’s written submissions to this Court. In those written submissions, the applicant places considerable emphasis on the fact that, as a lesbian woman in a Muslim state, she felt it necessary to hide her sexual identity in order to avoid physical and social harm and discrimination. This, she claims, had consequences for her mental health as it denied her the opportunity to be herself.
Relevantly, the Court notes the following paragraphs from the applicant’s written submissions:
•The story of me hiding my identity publicly as a lesbian in fear of getting caught, of going to jail or getting publicly lashed
•[Partner two]’s family knows and her dad didn’t allowed her to see me so we would have to see each other secretly
•I proudly and openly state to my friends and workmates regarding my sexual orientation in Australia.
•When I say I stopped practising Muslim, I mean I stop praying five times a day, not that I converted to other religion. I am still a Muslim. I cannot simply change my religion. Therefore, if I have to go back to my country, I am still Muslim and the Syariah law still applies to me.
•I did mention how my mental health is very much affected by the way I live as a lesbian Muslim woman in my own country.
•The strong claim of my life goal to seek shelter from this country so I could have a new beginning as a person and as a human, as this country understands basic human rights, and it not discriminatory to race or religion.
•The evidence of me living in multiple places because the society is not accepting of lesbian Muslim in public and therefore I hide it. Yes, I do have a few partners that lived with me but we live secretly and that’s not normal as a human being, to hide a normal, consensual relationship.
•I truthfully believe in everything that I said. As a Muslim and also a lesbian and a part of the LGBTQ+ community, I can never feel safe to live in my country due to the Syariah law as the laws are only enforced on Muslim people.
•The member mention and accepted my evidence that I am a lesbian person who is born a Muslim and subject to both state and Islamic law in Malaysia.
•The member did know how serious I take my same sex relationship that I even mention to one day get married to my ex-girlfriend but the dream is destroyed because the Malaysia and syariah laws do not allow same-sex marriage.
•The member said that I never told my parents that I am a lesbian, but I believe the member should already understand how high risk it is for me to tell them or to be true to myself that’s why I never tell them in the first place.
•The member understand how difficult it is for me to fit into society, for being a Malay Muslim lesbian that I have to not be true to myself and pretend that we (as a couple) have to act like best friend just to fit in the society.
•The member was aware of the incident and harassment that I get on a daily basis and she understand that I avoided getting myself into trouble by being quiet and keep things to myself, that is one of the reasons I believe the member failed to understand that this behaviour affected my mental health and well-being.
•The member states that my claim and my evidence is contradictory as I shared my life story. The member is aware that mentions how I loved living in [place omitted] because it was cultural but that doesn’t mean that I can live there without facing persecution, also as I mention that when I live in [place omitted] I got harassment on daily basis and I try minding my own business by staying quiet to not provoke others is also evidence that I think the member should look at before commenting on this matters.
•The member believe I did not experience significant harm in Malaysia in the past as define in the act. In my defence, I do believe any harassment is harmful and I do believe that the reason I did not involve in serious significant harm experience in Malaysia before because I was hiding my identity, my sexual orientation from the public and not to be true to myself in public.
Reading the above as broadly as possible, the Court interprets the applicant’s core concern to be that the Tribunal erred by failing to properly consider whether the applicant held a well-founded fear of harm. This error arises, it is arguable, because the Tribunal relied too heavily on the fact that the applicant avoided harm, and will avoid harm, by “acting discreetly” – that is, by hiding her sexuality when in public. The applicant arguably suggests that the Tribunal assumed that the applicant would act discreetly but did not ask why she did so and what would happen if she did not do so if she returned to Malaysia.
As explained by this Court to counsel for the Minister during the hearing of this matter, this raises the possibility of jurisdictional error of the sort assessed by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (“Appellant S395/2002”).
Ms Cormann, for the Minister, indicated that she understood the Court’s reading of the applicant’s concerns and indicated further that she was content to address this issue in court (without the need for further written submissions).
The Court thanks Ms Cormann for her considerable assistance in this regard. Matters of this sort raise complex legal and social issues which, in the wrong hands, can make legal proceedings alienating for an unrepresented applicant. Ms Corman addressed all issues with clarity and a degree of compassion that exceeds what this Court expects of a model litigant. Others would do well to emulate her efforts in this regard.
Relevant legislation
This Court has previously addressed many of the legal issues, relevant legislation, legal principles and jurisprudence relevant to this matter in its decision in DKM22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 504 (“DKM22”) at [23]-[30] and [39]-[50].
The Court repeats, and adopts, the summary provided in DKM22 below, as follows.
The eligibility criteria for a protection visa were succinctly summarised by the Federal Court in ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426 as follows:
5…Particular criteria for a protection visa are set out in s 36 of the Act. Section 36 provides that a non-citizen in Australia will be eligible for that visa if the Minister is satisfied that Australia has protection obligations to that person for one or other of the following reasons:
(1)The person is a refugee (s 36(2)(a)). This is known as the “refugee criterion”.
(2)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 (s 36(2)(aa)). This is known as the “complementary protection criterion”.
(3)A person is a member of the same family unit as a non-citizen referred to in ss 36(2)(a) or (aa) (s 36(2)(b)–(c)).
6The term “refugee” is relevantly defined in s 5H of the Act to mean a person who is outside his or her country of nationality and “owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”. A person has a “well founded fear of persecution” if the person “fears being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion”; there is a “real chance” that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the receiving country (s 5J(1)). For a person to have a “well-founded fear of persecution” under s 5J(1)(a), the reason for that fear must “be the essential and significant reason” for the persecution, the persecution must involve “serious harm” to the person, and it must also involve “systematic and discriminatory conduct” (s 5J(4)).
7Without limiting what constitutes serious harm, the Act provides in s 5J(5) some “instances” of “serious harm”.
(a)       a threat to the person’s life or liberty;
(b)       significant physical harassment of the person;
(c)       significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
8In order to suffer “significant harm” for the purpose of satisfying the complementary protection criterion, s 36(2A) provides:
A non-citizen will suffer significant harm if:
(a)       the non-citizen will be arbitrarily deprived of his or her life; or
(b)       the death penalty will be carried out on the non-citizen; or
(c)       the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Appellant S395/2002
As in DKM22, the applicant in this matter arguably contends that the Tribunal fell into error of the sort described by the High Court in the decision of Appellant S395/2002.
In AppellantS395/2002, the Tribunal found that, whilst living in Bangladesh, the appellants had suffered no serious harm by reason of their being gay because they had “clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now” (at [21]). On that basis, the Tribunal determined that the appellants had no well-founded fear that they would be persecuted if they returned to Bangladesh and the appellants were, accordingly, not refugees (at [21]).
The High Court ultimately quashed the Tribunal’s decision, with Justices McHugh and Kirby (in the majority) finding that the Tribunal had erred by failing to consider why the appellants would live discreetly and whether that “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly”: Appellant S395/2002 at [35].
Appellant S395/2002 does not represent the first time a Court (both in Australia and overseas) has addressed the issue of what has elsewhere been referred to as “forced or assumed discretion” and its effect on those seeking protection on the basis of their sexual identity (see, for example, The National Coalition for Gay and Lesbian Equality v The Minister of Justice (1990) (1) SALR 6 (CC); Re XMU [1995] CRDD No 146 (QL); Re GJ [1995] Refugee Appeal 1312/93 (Unreported, 30 August 1995); Applicant LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211; The National Coalition for Gay and Lesbian Equality v The Minister of Justice (1990) (1) SALR 6 (CC); Re XMU [1995] CRDD No 146 (QL); Re GJ [1995] Refugee Appeal 1312/93 (Unreported, 30 August 1995) and Applicant LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211).
The academic writing on this issue is similarly impressive (see, for example, Catherine Dauvergne and Jenni Millbank, “Before the High Court: Applicants S396/2002 and S395/2002 – a gay refugee couple from Bangladesh” [2003] Sydney Law Review 6 (2003); James Hathaway, The Law of Refugee Status, (Toronto, Butterworths, 1991); Stuart Grider, “Sexual Orientation as Grounds for Asylum in the United States” (1994) 35 Harvard International Law Journal 1; Helene Lambert , Seeking Asylum: Comparative Law and Practice in Selected European Countries (1995); Michael Haran, “Social Group For the Purposes of Asylum Claims” (1995) 9 Immigration and Nationality Law and Practice 66; Shannon Minter, “Sodomy and Public Morality Offences Under US Immigration Law: Penalizing Lesbian and Gay Identity” (1993) 26 Cornell International Law Journal 771 (1993); Donald Caswell, Lesbians , Gay Men and Canadian Law (Edmond Montgomery Publications, 1996) and Kristin Walker, “The Importance of Being Out: Sexuality and Refugee Status” (1996) 18 Sydney Law Review 568.
Appellant S395/2002 does, however, offer what is arguably the comprehensive analysis of this issue.
Essentially, as set out previously by this Court in DKM22 and AJS18 v Minister for Home Affairs & Anor [2019] FCCA 1108, Appellant S395/2002 enshrined the principle that a person claiming harm as a refugee because of a central part of their personal identity (such as their sexuality or political opinion) should not be denied protection because they are seen to have the “option” of hiding that part of their identity. Hence, it should not be assumed, for example, that a lesbian or gay male can avoid harm by acting “discreetly” – a finding which is in and of itself harmful to the individual.
In Appellant S395/2002 the High Court determined as follows:
34.Much of the appellants’ argument in this Court was directed to the claim that the Tribunal had required them “to be ‘discreet’ about their membership of a group.” In answer, the Minister submitted that the Tribunal had imposed no such requirement. He contended that it merely found that the appellants would live discreetly in the future, as they had done in the past, because “there is no reason to suppose that they would not continue to do so if they returned home now.” It was for that reason, so the Minister contended, that the Tribunal found the appellants had no well-founded fear of persecution. In our view, these contentions of the Minister are correct.
35.The reasons of the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal’s findings that they do. Nor did the Tribunal’s reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution. If the Tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error and the Federal Court should have set aside the Tribunal’s decisions.
…
40.The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
41.History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention. As Simon Brown LJ stated in Secretary of State for the Home Department v Ahmed:
“It is one thing to say ... that it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities – if, in other words, it is established that he would in fact act unreasonably – he is not entitled to refugee status.” (original emphasis)
42.Simon Brown LJ went on to say:
“[I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in this country, however unreasonable.”
43The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

Ultimately, as explained previously by this Court in DKM22, the Tribunal in Appellant S395/2002 was found to have misdirected itself by failing to appreciate that the definition of who is and is not a refugee is someone who has a well-founded fear of persecution, even if they would or could be expected to live discreetly. That an individual could or would live discreetly is not an answer to the question of whether they did so and might again do so because of a fear of persecution.
Whether the Tribunal in this matter relied on the applicant’s perceived “discretionary conduct” and, in so doing, failed to properly consider whether there is a real chance of persecution
In the matter now before this Court, the Tribunal rejected the applicant’s evidence that she was assaulted or discriminated against in Malaysia – ie, that she was “harmed”. The Tribunal did so on the basis that the applicant failed to provide sufficient evidence to support that assertion.
In and of itself, that determination doesn’t strike this Court as legal unsound. The applicant’s evidence about particular incidents of abuse or discrimination was limited and, without witnesses, vague.
However, context matters.
Here, the Tribunal’s ultimate findings in this regard need to be read within the context of the country material cited at length by the Tribunal. As summarised by the Tribunal that information provided as follows:
82.On 3 September 2018, the NBC published an online article entitled “Malaysian Muslim lesbian couple caned in public punishment”. The two women were sentenced to six strokes of a cane and a fine after pleading guilty and being convicted of attempting to have sexual relations. The rare public caning was carried out in the Terengganu Sharia Court in front of 100 witnesses. A women’s support group said it was a regression of women’s rights in Malaysia whilst Amnesty International condemned the caning as a form of cruel, inhuman and degrading treatment and may amount to torture.
83.On 25 January 2021, Human Rights Watch published an online article entitled “Malaysia: Government steps up attacks on LGBT”. The article refers to the latest attempt to strengthen criminal penalties against LGBT Malaysians, with the proposed amendment allowing state Sharia (Syariah) courts to establish harsher sentences for same-sex conduct than the current maximum Sharia sentence permitted under federal law. The article notes that Malaysia’s state Sharia laws, which punish consensual same-sex relations as well as gender nonconformity, are among the many laws and policies in Malaysia that discriminate against LGBT people. The author also notes that before 2018, according to Malaysian human rights activists, Malaysian courts had never actually imposed caning sentences, which are a form of torture under international law, for same-sex conduct. But in September 2018, Terengganu State carried out a caning sentence against two women accused of attempted same-sex relations. And in November 2019, the Selangor Sharia court sentenced five men to fines, imprisonment, and caning, while others who pled not guilty are awaiting trial. The Selangor case spurred a constitutional challenge pending before the Federal Court. LGBT people in Malaysia told Human Rights Watch and the Malaysian trans rights group Justice for Sisters that hostile government rhetoric contributes to violence against LGBT people by members of the public.
85.I have also considered the Department of Foreign Affairs and Trade Country Information Report on Malaysia dated 29 June 2021 (DFAT Report) which notes as follows:
a.Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent. Penal Code offences are penalised with imprisonment of between five and twenty years, along with whipping. Numerous state-level syariah based laws also prohibit both same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional, with the power to make laws with respect to such offences being reserved to the Malaysian Parliament. (para 3.134);
b.While successive governments’ stances on LGBTI issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI behaviours constitute syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.;
c.JAKIM and other state religious authorities have occasionally conducted raids on LGBTI events (similar raids reportedly target unmarried heterosexual couples and those suspected of other ‘non-Islamic behaviour’). In August 2018, for example, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men. JAKIM subsequently ordered the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that the raid would ‘mitigate the LGBTI culture from spreading in our society’. While the majority of such raids have occurred in public places, state religious officials have also reportedly conducted raids on private premises on occasion, sometimes accompanied by members of the RMP. In-country sources have suggested that authorities conduct such raids as a means of creating income through extorting or blackmailing those targeted;
d.There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI;
e.The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah. Sources told DFAT most transgender individuals from Sarawak and Sabah relocate to Kuala Lumpur for employment (almost exclusively in the private sector) and to escape discrimination;
f.DFAT assesses that, in general, LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re- education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas. (para 3.147).
That material, in turn, needs to be read within the context of the applicant’s evidence before the Tribunal which, it is noted, the Tribunal did not seem to dispute. That evidence provided as follows (emphasis added):
(a)the applicant had her first romantic relationship with a female outside her high school for a couple of months when she was 16 to 17 years old. Her family thought she and the applicant were just good friends. They hid their relationship from their families (at [47]);
(b)… the applicant returned to [place omitted] for a few months before moving to [place omitted], where she lived for approximately 1.5 years. She worked in a bar and lived on her own. She had a romantic intimate relationship with a female student, and eventually the applicant moved in with her. The relationship lasted for a bit less than a year. They only socialised as a lesbian couple in private. When they went out in public, they acted like friends only. The applicant told her close friends about this relationship (at [50]);
(c)when she was 23 or 24, the applicant had a relationship with a woman named [partner two], that lasted for 6 to 7 years. The applicant and [partner two] always lived separately. [Partner two] was always around, and the applicant introduced [partner two] to her parents as her “girlfriend”, but they just said “whatever” because they knew that the pair were not going to get married. The applicant described this as a serious relationship because it lasted so long. At one stage they even talked about getting married, but they knew they would have to take a risk and move somewhere else where no one would know them, because their families would not accept their relationship (at [52]);
(d)the applicant and [partner two] socialised together in public but only went to places where they knew no one would know them. When they went out in public, they acted like best friends, not a couple in a romantic relationship because if they did, they would be discriminated against and called out. The applicant read an article in the media that says if you get caught doing LGBT things, like holding hands, or doing stuff outside of marriage, you will get a fine and go to jail and even get caned. Most of the time they just ate takeaway food at home. If they went to the movies, they were last to enter the cinema. The applicant said she and [partner two] did not go to any public places for lesbians because she did not know of any such places in [place omitted]. She said she was aware of private events for gay people, but she did not attend them (at [55]);
(e)the applicant said [partner two]’s family did not approve of her, and she believed that [partner two]’s father realised they were more than friends so there was a big argument with him as he didn’t want the [partner two] continuing to see the applicant. The applicant and [partner two] continued to see each other secretly (at [57]); and
(f)when asked during the hearing why she left Malaysia to come to Australia, the applicant claimed that she wanted to live a normal life. She wanted to have a relationship openly and be able to do what she wanted and dress how she wanted (at [64]).
This evidence, in turn, needs to be read within the context of the Tribunal’s ultimate findings, which, relevantly, provide (emphasis added):
100.The applicant’s evidence about enjoying her life in [place omitted] and being able to blend in [place omitted] where people care less about her being a lesbian contradicts the applicant’s evidence that there is nowhere in Malaysia where she can live without facing persecution as a lesbian and/or lesbian Muslim.
101.Over a period of 7 years, the applicant was involved in several same-sex relationships of considerable length in different parts of Malaysia, including cohabitation in [place omitted] and [place omitted]. During that time the applicant was employed and maintained relationships with family and friends, socialised with her partners in public, albeit discreetly, and recounted the details of only 4 incidents of harassment and discrimination.
102.In the same period of time, from commencing her first same-sex relationship as a 20 year old until she left Malaysia aged 27, the applicant’s evidence is that she was practising her Muslim faith throughout that time without any issues arising. The applicant did not give any evidence suggesting that she had been unable to practice her Muslim faith in Malaysia on account of being a lesbian. Whilst I acknowledge that the applicant conducted her relationships mostly in private, she did live with at least 2 partners during that time when she was a practising Muslim. She did not give any evidence suggesting that she had experienced any form of harassment or systematic and discriminatory conduct from religious leaders, or society, or from any government authorities on account of her being a lesbian Muslim. She also shared her sexual orientation with family and friends.
Contextually, and in light of Appellant S395/2002, these findings are problematic.
The Court notes that when Appellant S395/2002 was first before the Federal Court, Justice Lee rejected the suggestion that the ability to act “discreetly” could be used to deny fundamental refugee protections as no harm had resulted: W133/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 395. His Honour determined as follows:
26.Properly instructed, on the evidence before it the Tribunal could have found that there was a real chance that a homosexual could suffer persecution at the hands of the Basiji if he continued to frequent a place such as Daneshjoo Park for the purpose of seeking the company of other homosexuals.
27.Influenced by the foregoing misunderstanding of the applicant’s case, the reasons of the Tribunal disclosed a significant internal inconsistency. The Tribunal stated that the applicant’s account of his conduct in Iran showed that in the past he had been “discreet in relation to his sexual activities”. By that the Tribunal must have included within the description “discreet” the conduct of the applicant in meeting other homosexuals at Daneshjoo Park otherwise the Tribunal would have described that conduct as an overt declaration of homosexuality by the applicant, placing him at severe risk of persecution. The Tribunal then stated the applicant did not claim that the need to be discreet caused him any significant detriment or disadvantage. If the first proposition of the Tribunal was correct, then the second was plainly wrong and inconsistent with the finding made by the Tribunal. The applicant claimed, and the Tribunal accepted, that when apprehended by the Basiji at Daneshjoo Park, he had suffered significant detriment and disadvantage by being detained and flogged for being homosexual. The Tribunal accepted that the applicant had been taken to a Basiji station, blindfolded, and bashed by three or four men wielding an electric cable, who told him he was being bashed for being a homosexual. To secure his release the applicant had to sign a document renouncing his homosexuality.
28.If the Tribunal had held, contrary to its actual finding, that it was reasonable to expect the applicant not to conduct his homosexual lifestyle by attending Daneshjoo Park, or like places, to meet other homosexuals, such a finding, in itself, may have involved an error of law, given that the Tribunal had accepted that the practice of a homosexual lifestyle was protected by the operation of the Convention. To deny the applicant the means of meeting other men of homosexual orientation, similarly oppressed, would be to deny an essential activity integral to the definition of the social group. (See: Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211 per Ryan J at [28].)
29.The foregoing misstatement, or misunderstanding, of the applicant’s case was relied upon by the Tribunal to reach its ultimate conclusion that “the chance that the applicant faces persecution in Iran because he is a homosexual is remote and insubstantial”. Central to that conclusion were the preceding conclusions of the Tribunal, based on misapprehension of the material before it, that the need for the applicant to be discreet in his conduct in Iran had not caused him detriment or disadvantage in the past and, therefore, it was not unreasonable to expect the applicant to continue to be discreet and to continue to be safe from harm.
30.The actual case the applicant put before the Tribunal was that if the past conduct of the applicant could be described as “discreet” then he had suffered a significant act of persecution despite the exercise of such discretion, and that there was a real risk that such persecution could occur in future. The applicant’s case was that he was at risk of being identified as a homosexual and being persecuted by groups such as the Basiji, in particular if he attended places known to be areas of assignation for homosexuals.
31.Having accepted that homosexuals in Iran constituted a social group, and having accepted that past events had occurred as described by the applicant, the Tribunal had to put all of that material in the balance when assessing whether there was some degree of probability that an event could occur in future involving persecution of the applicant. (See: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 574-575).
In assessing the applicant’s arguments now before this Court, the Court again highlights the findings made by Justices McHugh and Kirby in S395/2002 as follows:
43…In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
Further, Justices Gummow and Hayne characterised the error made by the Tribunal in Appellant S395/2002 as follows:
88.This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well‑founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention…
As this Court emphasised in its previous decision in DKM22, it is also useful to highlight (then) Justice Gageler’s summary of the issue in Appellant S395/2002 in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 as follows (citations omitted):
35.The definition of “refugee” in Art 1A(2) of the Refugees Convention contains four cumulative elements: (1) the person concerned must fear “persecution” in the country of his or her nationality; (2) the persecution so feared must be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”; (3) that fear of persecution for one or more of those Convention reasons must be “well-founded”; and (4) the person must be outside the country of his or her nationality “owing to” that well-founded fear.
36.Appellant S395/2002 v Minister for Immigration and Multicultural Affairs was concerned with the third element of the definition. The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:
“If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.” (emphasis in original)

In the matter now before this Court, it is certainly the case that the applicant did not present strong evidence that she had, for example, been assaulted or discriminated against. However, the extensive country information before the Tribunal reveals that discrimination in Malaysia against those who publicly identify as lesbian in various parts of Malaysia is extreme. This is “problematic” in light of the Tribunal’s implicit finding that the applicant avoided harm because she lived “discreetly” and/or “privately” or in circumstances where she was able to “blend”.
By assessing how the applicant lived and by implicitly assuming that she could and would do so again if she returned to Malaysia, the Tribunal has failed to consider why the applicant “chose” to live privately, “blend”, “live secretly” – ie discreetly. As per Appellant S395/2002, it is the threat of serious harm (and all that that means and does to those who self-identify and lesbian or gay) that constitutes the persecutory conduct. To determine the issue of “real chance” without determining whether the applicant’s “discreet conduct” was influenced by the threat of harm is to fail to consider that issue properly.
It may well be that the Tribunal believed that the applicant here could, on the county information and on the applicant’s own evidence, return to a different city in Malaysia and live “openly” (and without fear of persecution). Unfortunately, and unusually, the Tribunal failed to outline any assessment of that sort in its decision. Clarity is paramount in a protection visa setting where the consequences of error or oversight can be devastating. That clarity is lacking here and leaves the applicant and this Court speculating about what might have been.
Here, the Tribunal has erred by failing to consider why the applicant lived discreetly as a lesbian identified woman and whether that her actions constitute “a voluntary choice uninfluenced by the fear of harm” should she behave otherwise: Appellant S395/2002 at [35].
By not doing what was required of it, the Tribunal has “failed to [properly] address the question of whether the applicant’s fear of persecution was well-founded”.
On that basis, the Tribunal has “constructively failed to exercise its jurisdiction”: CRP16 v Minister for Immigration & Anor [2017] FCCA 2957 at [30].
Jurisdictional error on the part of the Tribunal has been established.
CONCLUSION
The applicant’s application for judicial review filed in this Court on 31 January 2024 has identified jurisdictional error on the part of the Tribunal.
The Tribunal’s decision will be set aside and the matter remitted to the ART for reconsideration according to law.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 23 December 2024

File number:	PEG 32 of 2024
Judgment of:	JUDGE KENDALL
Date of judgment:	23 December 2024
Catchwords:	MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – where applicant identifies as a lesbian Muslim and claims to fear harm on that basis – where country information identifies widespread discrimination and harm against those who are LGBTQ identified – where Tribunal concludes that applicant lived “discreetly” and “privately” – where Tribunal determines that no harm would arise if applicant returns to Malaysia – whether the Tribunal failed to properly address the question of whether the applicant’s fear of persecution was well-founded as per the principles in Appellant S395/2002 – Tribunal found to have constructively failed to exercise its jurisdiction – jurisdictional error established – writs issued.
Legislation:	Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16 Migration Act 1958 (Cth), ss 5AAA, 5J, 5L, 36, 476,
Cases cited:	AJS18 v Minister for Home Affairs & Anor [2019] FCCA 1108 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 Applicant LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211 ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426 BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 Craig v State of South Australia (1995) 184 CLR 163 CRP16 v Minister for Immigration & Anor [2017] FCCA 2957 DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 DKM22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 504 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 Re GJ [1995] Refugee Appeal 1312/93 (Unreported, 30 August 1995) Re XMU [1995] CRDD No 146 (QL) SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 The National Coalition for Gay and Lesbian Equality v The Minister of Justice (1990) (1) SALR 6 (CC) W133/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 395
Division:	Division 2 General Federal Law
Number of paragraphs:	89
Date of hearing:	27 September 2024
Place:	Perth
Applicant:	Applicant appeared in person
Counsel for the First Respondent:	Ms H Cormann
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Australian Government Solicitor

PEG 32 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AKA24 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	23 DECEMBER 2024