ASG24 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 629

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ASG24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 629

File number(s): BRG 82 of 2024
Judgment of: JUDGE COULTHARD
Date of judgment: 7 May 2025
Catchwords: MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – unreasonableness – failure to intellectually engage – no jurisdictional error established – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 5H; 5J; 36; 417; 423A; 476

Migration Regulations 1994 (Cth) Schedule 2

Cases cited:

Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280

KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Division: Division 2 General Federal Law
Number of paragraphs: 58
Date of last submission/s: 24 March 2025
Date of hearing: 24 March 2025
Place: Brisbane
Counsel for the Applicant: Mr North
Solicitor for the Applicant: Ms Beach - Holding Redlich
Solicitor for the First Respondent: Ms Black - Minter Ellison
Counsel for the Respondents: The second respondent filed a submitting appearance save as to costs

ORDERS

BRG 82 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ASG24

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE COULTHARD

DATE OF ORDER:

7 MAY 2025

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The applicant is to pay the first respondent’s costs, fixed in the amount of $5,900.

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 COULTHARD

INTRODUCTION

  1. Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa.

  2. These proceedings were listed for hearing concurrently with proceedings in BRG 82 of 2024 (“the related proceedings”/“the related applicant”).

    BACKGROUND

    Application for a visa and the delegate’s decision

  3. The applicant is a citizen of Malaysia. The applicant arrived in Australia on 3 September 2017 on a UD-601 Electronic Travel Authority. The applicant applied for a protection…

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ASG24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 629
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[2025] FedCFamC2G 629
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CaseChat Overview and Summary

In the case of ASG24 v Minister for Immigration and Multicultural Affairs, the applicant, a Malaysian citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that upheld the delegate’s refusal to grant her a Protection (Class XA) (subclass 866) visa. The applicant had initially arrived in Australia on a tourist visa and later applied for the protection visa, claiming that she would face persecution if returned to Malaysia due to a medical incident involving a baby she cared for and her subsequent marriage to another visa applicant. The AAT found that the applicant did not meet the criteria for a protection visa and affirmed the delegate's decision.

The central legal issues before the court were whether the AAT had made a jurisdictional error in its decision and if the AAT’s reasoning was legally unreasonable. The applicant argued that the AAT failed to properly engage with the statutory tests under sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958, and that its findings were not reasonably open or justified. The court examined whether the AAT had correctly understood the law, actively engaged with the statutory tests, and considered all relevant evidence in making its decision.

The court held that the AAT had not made a jurisdictional error in its decision. The AAT had considered the applicant’s new claims and provided detailed reasons for its findings, which were consistent with the statutory requirements. The court found that the AAT had adequately engaged with the relevant legal tests and the evidence presented. Although the court acknowledged that the AAT’s approach could have been more detailed, it concluded that the AAT’s decision was not legally unreasonable as it was based on an evident and intelligible justification.

The court dismissed the application for judicial review, finding no material jurisdictional error in the AAT's decision. Consequently, the delegate's decision to refuse the visa was upheld.

Orders

Orders of the court

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Background

Background to the litigation

These proceedings were listed for hearing concurrently with proceedings in BRG 82 of 2024 (“the related proceedings”/“the related applicant”). BACKGROUNDApplication for a visa and the delegate’s decision The applicant is a citizen of Malaysia. The applicant arrived in Australia on 3 September 2017 on a UD-601 Electronic Travel Authority. The applicant applied for a protection visa on 17 November 2017 which was rejected on the basis it was deemed invalid. On 22 March 2018, the applicant made a valid application for a Protection (Class XA) (subclass 866) visa (“the visa”) (Court Book (“CB”) 22-45). The applicant’s claims for protection were that in August 2017 whilst working as a babysitter she gave the baby medicine and that the baby later died. The applicant said that the doctor said that the baby was given medicine which did not suit him. She did not know what to do, so she came to Australia. The applicant said she believed that the Malaysian police or the family of the baby will take action against her because she caused the death of the baby, she will be imprisoned and if convicted will be sentenced to hang (CB 38-40). On 25 June 2018, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that she was not a person in respect of whom Australia has protection obligations under s 36(2)(a) as the delegate was not satisfied that the applicant was a refugee as defined in s 5H of the Act, and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act as the delegate was not satisfied that as a consequence of being removed to Malaysia there was a real risk the applicant would suffer significant harm as defined in s 36(2A) (CB 70-75) (“delegate’s decision”).Application for review to the Administrative Appeals Tribunal On 20 July 2018, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 80-91). On 5 October 2023, the Tribunal invited the applicant to complete a pre-hearing information form within 7 days (CB 103). The applicant requested and was granted an extension until 19 October 2023 to provide the prehearing information (CB 105-106). On 19 October 2023, the applicant provided the Tribunal with her pre-hearing information form to which she attached a statement setting out new protection claims (CB 107-120). On 31 October 2023, the Tribunal invited the applicant to attend a hearing on 24 November 2023 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 122-136). On 22 November 2023, the applicant provided the Tribunal with a statement regarding the adoption of a child by her and the related applicant and documents including: a Queensland marriage certificate for her and the related applicant; an extract from the government gazette of the State Legislative Assembly of Kedah Darul Aman regarding the enactment of Syariah Criminal Offences; news articles regarding punishment for marriage without permission; a written statement from the parent of a child granting the applicant and the related applicant permission to look after the child; the passport of the biological mother of the child; the Queensland birth certificate of that child; and a hospital letter confirming a surgical appointment for the applicant (CB 138-190).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 9 February 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 200-213). On 14 February 2024, the applicant was notified of the decision and provided with a copy of the written reasons (CB 196).THE TRIBUNAL’S DECISION The Tribunal identified that the issues on review are whether the applicant meets the refugee criterion, and if not, whether she is a person in respect of whom Australia has protection obligations under complementary protection ([4]). The Tribunal then set out the criteria for a protection visa in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) ([5]-[9]); identified the mandatory considerations including the relevant country information [10]; and summarised the relevant country information regarding the family law system in Malaysia and the registration of marriages [34]-[38]. The Tribunal identified that the receiving country for assessing the applicant’s claim is Malaysia ([12]). The Tribunal summarised the applicant’s claims to protection as set out in her protection visa application ([14]) and summarised the delegate’s decision ([15]-[16]). The Tribunal then referred to the applicant’s submission to the Tribunal on 19 October 2023 in which she sought to abandon the claims made to the Department on the basis that they were not her real claims and that she had been manipulated by a “protection visa agent” ([18]) and referred to the documentary evidence the applicant had provided to the Tribunal on 22 November 2023 prior to the hearing ([20]). The Tribunal found that the applicant’s evidence overcame any unfavourable inference that the Tribunal is required to draw under s 423A of the Act because her new claims were not previously raised before the Department ([39]) and did not consider further the applicant’s abandoned claims ([40]). The Tribunal identified that the applicant raised new claims to fear persecution upon return to Malaysia based on her marriage to the related applicant ([19]). The Tribunal set out the applicant’s background and claims to protection as follows (in summary) ([21]-[27]):(a)Her family circumstances in Malaysia including that her family tried to control every aspect of her life, that she is not close to her family and wants to avoid them where possible;(b)Her meeting the related applicant in 2013 at a clinic where she was working and that they developed a relationship;(c)She asked the related applicant to apply for a job as a delivery driver at a branch of Domino’s Pizza where she was working as assistant manager, and they continued working there together until 2017;(d)She went back to her home village in 2015 and learned that her family wanted her to get married. Later, in December 2016, she was summoned back to the village by her sister and when she arrived home, there was a man present who had come to propose to her. The applicant rejected the man’s proposal as she was already in a relationship with the related applicant. Her family were angry at her response as they considered that she had betrayed her family. The applicant claimed that her brother slapped her face when she declined the marriage proposal;(e)The applicant told the related applicant about the incident, and he said that he would propose to her;(f)In February 2017, the applicant brought the related applicant to her family home to meet her family and for him to propose to her. Her family rejected his marriage proposal, as they were not assured of his background and employment, and whether he could provide for the applicant in the future;(g)After this incident, she and the applicant decided to look for ways to get married, but she needed permission from her father;(h)Her brother called the related applicant and threatened to beat him if the applicant did not come home;(i)The applicant and the related applicant then made plans to get married abroad and they departed together for Australia on 3 September 2017. They arrived in Sydney and shortly after moved to [town in Queensland];(j)They were married on 4 May 2019 in accordance with Islamic principles.

Ratio Decidendi

Legal Principle Established

The material before the Court was the amended application, the applicant’s affidavit, the first respondent’s response, the applicant’s written submissions, the first respondent’s written submissions, the first respondent’s supplementary written submissions and the Court Book. The Court Book was made an exhibit in the proceedings.CONSIDERATION For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error. The grounds of review set out in the amended application are (without alteration but excluding text that was struck through and underlining):Grounds of application (amended)Jurisdictional error1. The second respondent (the Tribunal) made a jurisdictional error in concluding that the applicant is not a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth) (the “Act”);2. Further or in the alternative. the second respondent (the Tribunal) made a jurisdictional error in concluding that the applicant is not a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.Particulars(a)The Tribunal is required to have a correct understanding the law, including applicable statutory provisions: AJN23 v Minister for Immigration. Citizenship and Multicultural Affairs (2024) FCAFC 103, [26]-[29], [30]-[33]:(b)The Tribunal is required to actively engage with the applicable statutory test: SZSZO v Minister for Immigration and Border Protection [2018] FCA 403 at [69];(c) The Tribunal did not engage with the test in section 36(2)(a) of the Act. Further or in the alternative. the Tribunal did not engage with the test in section 36(2)(aa) of the Act. These tests required an evaluation of the evidence in order for the Tribunal to reach a state of satisfaction as to its conclusions with respect to whether protection obligations arose;(d)The Tribunal must engage with the applicant's case, including matters arising from its own findings of fact, and must not overlook relevant evidence: Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165 at [53], [60]; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [26]: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [54]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99;(e)The Tribunal must not make findings of fact or engage in reasoning which is not reasonably open or without an evident and intelligible justification and doing so may give rise to legal unreasonableness: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]; Minister for Immigration v SZRKT [2013] FCA 317; 212 FCR 99 at [148]; BQG21 v Minister for Immigration [2023] FCA 865 at [29], [39]-[44];(f) The Tribunal, in finding that the applicant was not a person in respect of whom Australia has protection obligations under section 36(2)(a) and/or section 36(2)(aa) of the Act, made a finding that was not reasonably open or for which there was not proper justification.