ASG24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 629
•7 May 2025
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
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.
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
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).
On 24 November 2023, the applicant attended the hearing (CB 191-192). The applicant was assisted by an interpreter in the Malay and English languages.
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.
The Tribunal stated that the applicant claimed that if she returned to Malaysia, her family members would continue to harass her as they do not approve of her relationship. The applicant told the Tribunal that since her father’s death last year, they have told her on and off that she caused her father’s death. They have told her that she has gone against the wishes of her family and society would have a negative perception of the family because of this. She claimed that she could not relocate elsewhere in Malaysia because she has family members throughout the country. She stated that, of the siblings that have a negative impression of her, one lives in Panang, two in Kedah and two in Perak ([28]).
The Tribunal recounted that when asked if, during the period from February 2017 until her departure in September 2017, her family had done anything to her or the related applicant other than her brother’s threatening telephone call, the applicant stated that nothing else had happened ([28]).
The Tribunal also stated that the applicant claimed that her marriage abroad will not be recognised as valid by the Malaysian Government and that she may be prosecuted because of this. The Tribunal stated that it put to the applicant the gist of the country information which suggests that she could register her marriage and pay a fine and that the applicant responded that she would be happy to pay any fee associated with registration of the marriage, but she feared imprisonment ([29]).
The Tribunal then turned to consider the applicant’s evidence that while in [town in Queensland] she became friends with a national of another country who had fallen pregnant to a man who was in Australia on a visa as a seasonal worker. The applicant said that the friend could not take the baby (“baby S”) back home because she had her own family back in [her country]. The applicant explained to the Tribunal that she and the related applicant had made an agreement with the mother of baby S for them to look after her and that they had been caring for her since her birth ([31]). The applicant explained that she had been in contact with the Queensland Child [Welfare] Department about formalising care arrangements. The Tribunal noted that in her pre-hearing submission, the applicant stated that she was waiting to hear from the Child [Welfare] Department for the next steps, as she and the related applicant had applied to register as kinship parents. She told the Tribunal that she has been advised that a statement is required from the biological mother of the baby to proceed to the family court and that the Child [Welfare] Department had advised her to keep caring for baby S until the matter is resolved ([32]).
The applicant claimed that if she returned to Malaysia, the “greatest impact” would be that she would be separated from baby S and both she and the related applicant were concerned about who would look after baby S ([33]).
The Tribunal then went on to make findings with respect to the applicant’s refugee claim.
The Tribunal said it accepted the applicant was in a relationship with the related applicant in Malaysia, and that she had chosen to be with him against her family’s wishes. The Tribunal further said that it accepted the evidence that the applicant and the related applicant were married in Australia under Islamic rites and that they live together and continue to be in a relationship. The Tribunal also accepted the applicant’s claims that, if returned to Malaysia the related applicant would return with her as they do not want to be separated. The Tribunal also accepted that the applicant and the related applicant are currently caring for baby S and have done so since her birth ([41]).
The Tribunal accepted as credible the applicant’s account of her relationship with her family, that her family have tried to control aspects of her life and that this has caused her some amount of emotional distress. The Tribunal also accepted that the applicant may not feel loved and supported by her family as she wishes, and that some, but not all, of her siblings are supportive of her. The Tribunal accepted that her family disapproved of her relationship with the related applicant and that they preferred her to marry someone else. The Tribunal also accepted that she was slapped by her brother at her family home when she declined the marriage proposal in December 2016 ([42]). The Tribunal also accepted that the applicant’s brother threatened to physically harm the related applicant after his proposal in February 2017 ([43]). However, the Tribunal found that the applicant’s experiences, individually and cumulatively, did not amount to serious harm as contemplated by the Act. The Tribunal found that the applicant and the related applicant were able to remain in Malaysia for a period of seven months after the failed marriage proposal without experiencing any harm or attempts from her family to separate them ([43]).
The Tribunal said that looking into the reasonably foreseeable future, if the applicant and the related applicant were to return to Malaysia as a married couple to her home state, members of the applicant’s family may continue to vocalise their disapproval of her marriage, particularly as some members blame her in some way for her father’s death. The Tribunal accepted that members of her family perceive that her marriage would give her family a bad perception within the community ([44]). However, the Tribunal said that it did not accept that the applicant’s family will force her and the related applicant to separate, because the marriage might reflect badly on them, or for any other reason. The Tribunal said that while her family had been a strong presence during her childhood, the applicant’s evidence suggested that since completing her university degree, she has been able to make independent decisions despite her family’s wishes. The Tribunal noted that the applicant stated that she largely ignores her family and rarely contacts them. The applicant did not articulate exactly how her family would separate her and the related applicant now that they are married. The Tribunal concluded that given the passage of time since she has left Malaysia, and the Tribunal’s findings with respect to instances of past harm, it found it remote that the applicant’s family would now, or in a reasonably foreseeable future, take actions to force her to separate from the related applicant. Accordingly, the Tribunal found that the applicant faces no real chance of persecution from her family, by way of forced separation from the related applicant, if returned to Malaysia ([45]).
The Tribunal then considered the applicant’s claim with respect to the recognition of her marriage in Malaysia. The Tribunal said that it put weight on the country information related to the applicant’s home state, as it was more relevant to her circumstances ([46]). The Tribunal said that the country information suggests that every marriage must be registered according to state laws or enactments, although registration is not determinative of the validity of the marriage, and that the relevant legislation suggests that the applicant can apply to register her marriage subject to a payment of a penalty for late registration. The Tribunal concluded that nothing in the country information suggests that a marriage solemnised in accordance with Islamic principles would not be considered valid, or that she would face imprisonment because she has married abroad ([47]). Accordingly, the Tribunal found that if the applicant were to return to Malaysia and register her marriage, the requirement to pay a penalty for late registration would not amount to serious harm and that her fears of persecution in this respect are not well-founded ([48]).
The Tribunal then considered the applicant’s claim with respect to her fear of being separated from baby S if she were to return to Malaysia. The Tribunal noted that baby S is not a party to the review, and at present, is not a member of the same family unit of the applicant for the purposes of the Act because she is not the applicant’s child or adopted child for the purposes of the Act ([49]). The Tribunal noted that the agreement signed with the mother of baby S did not appear to have legal effect as an adoption agreement and that there was no formal adoption arrangement made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children or other arrangements entered into outside Australia that are taken to be in the nature of adoption. The Tribunal said that the present circumstances would dictate that if returned to Malaysia, the applicant could not take baby S with her, and the applicant would be forced to separate from baby S ([50]).
The Tribunal considered whether potential separation from baby S could be persecution for the purposes of the Act and found that it did not because s 5J(1)(b) requires that the person be at risk of persecution in the receiving country. The Tribunal said that the claimed persecution of being separated from baby S, who would remain in Australia, does not relate to any agent of persecution in the receiving country, be it from a state or non-state actor and nor does the claim involve any systematic and discriminatory conduct ([51]).
The Tribunal said that having considered the applicant’s claims individually and cumulatively and for the reasons given, the applicant is not a refugee and that it was not satisfied that the applicant is a person to whom Australia owes protection obligations under s 36(2)(a) of the Act ([52]).
Having found that the applicant is not a refugee, the Tribunal went on to consider whether the applicant meets the criteria for complementary protection under s 36(2)(aa), namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) and referred to the “real risk” test ([53]-[55]).
The Tribunal said that having found that there is not a real chance that the applicant’s family would forcibly separate her and the related applicant upon return to Malaysia, for the same reasons it also found that the applicant does not face a real risk of significant harm as a necessary of foreseeable consequence of being removed from Australia to Malaysia ([55]).
The Tribunal also found, referring to the fact that the applicant can apply for late registration of her marriage, that the imposition of a penalty to register the marriage does not amount to “significant harm” under s 36(2A) ([56]).
The Tribunal accepted that the applicant would be emotionally and psychologically distressed if she were forced to separate from baby S. The Tribunal referred to relevant authorities that confirm that separation from one’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definition of significant harm in s 36(2A). The Tribunal stated that the complementary protection criterion is to protect non-citizens from harm faced in the receiving country and that being removed from a child in one’s care who remains in Australia, cannot be characterised as a harm faced in the receiving country. Accordingly, the Tribunal found that separation from baby S does not amount to significant harm as defined in s 36(2A) ([57]).
The Tribunal concluded that it was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm ([58]).
The Tribunal then considered the circumstances of baby S should the applicant be returned to Malaysia. The Tribunal said that having regard to the applicant’s circumstances, in particular the potential ongoing psychological harm that separation from baby S would cause, and the importance of the applicant’s visa status on any potential decision related to baby S’s best interests, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, it considered the case to be one which should be referred to the Department to be brought to the Minister’s attention ([69]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by an application filed on 21 February 2024. The applicant also filed an affidavit affirmed on 19 February 2024. The affidavit repeats the grounds of review in the application and annexes a copy of the Tribunal’s decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which she seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
On 24 February 2025, the applicant filed an amended application.
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 error
1. 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.
The amended application sets out several legal principles by reference to relevant authorities. The amended application does not, as it helpfully might have, identify how it was said that the Tribunal – did not have a correct understanding of the law, including applicable statutory provisions; did not engage with the test in s 36(2)(a) or in the alternative with the test in s 36(2)(aa); did not evaluate the evidence (and what that evidence was) in order for the Tribunal to reach a state of satisfaction with respect to whether protection obligations arose; did not engage with the applicant's case, including matters arising from its own findings of fact (and what those findings of fact were); overlooked relevant evidence (and what that evidence was); made findings of fact or engage in reasoning which was not reasonably open or without an evident and intelligible justification (and what those findings of fact and reasoning were); made a finding that was not reasonably open or for which there was not proper justification (and what that finding was).
Identifying the jurisdictional error said to have been made was left to the applicant’s submissions.
In her written submissions, the applicant’s complaint was said to crystallise around two propositions (applicant’s written submissions (“AS”) [1]):
(a)The Tribunal made predictions regarding the future conduct of the applicant’s family premised on their past behaviour and when doing so did not intellectually engage with whether or not, the fact of the applicant’s marriage was a distinguishing fact capable of impacting the weight given to that past conduct;
(b)That engagement was necessary to consider and give weight to the applicant’s claim that her marriage to the related applicant placed her at risk if returned to Malaysia.
The ground of review was said to be that of legal unreasonableness, that is, the Tribunal’s decision was unreasonable because it had not intellectually engaged with the fact of the applicant’s marriage and the applicant’s claim that she feared persecution upon return to Malaysia based on her marriage to the related applicant (AS [8]; [11]-[12]).
At the outset, as the Court observed in the related proceedings, in making a prediction of the risk of future harm from her family (if returned to Malaysia) the Tribunal is required to engage in a predictive exercise involving speculation as to circumstances in the future based on material in the present, and what has happened in the past (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [33]). It is apparent from the Tribunal’s reasons for Decision, set out above, that in engaging in that exercise the Tribunal had regard to the applicant’s evidence as to the past conduct of her family in response to her rejection of the family’s choice of husband for her; the family’s conduct in response to the related applicant’s marriage proposal; the family’s conduct after her family’s rejection of that marriage proposal; the applicant’s evidence that her family blame her for her father’s death; that her family consider she has gone against their wishes and they consider society would have a negative perception of the family because of this. The Tribunal did not err in placing weight on past conduct in assessing future risk of harm. Further, the Court agrees that what weight the Tribunal gave to the evidence in engaging in that exercise was a matter for the Tribunal (first respondent’s supplementary written submissions (“FRSS”) [6] referring to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497 at [24] (“Plaintiff M1/2021”)).
The issue is whether – as the applicant contends – the Tribunal in doing so overlooked the fact of the applicant’s marriage to the related applicant which, it is not in contention, was a marriage against her family’s wishes.
As the applicant correctly submitted, in determining whether the Tribunal overlooked or failed to intellectually engage with a fact, the limited role of the Court must be borne in mind as the Court is not engaging in merits review (AS [9] referring to Plaintiff M1/2021 at [26]). Further, as the first respondent correctly submitted, a conclusion that the Tribunal has not engaged in an active intellectual process is not one which is to be lightly made and must be supported by clear evidence bearing in mind that the judicial review applicant bears the onus of proof (FRSS [9] referring to KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [47]). And, it is well-settled that in examining whether the Tribunal did engage with the fact of the applicant’s marriage as a distinguishing factor in respect of her claim to fear harm, the Court should not be “concerned with looseness of language … nor with unhappy phrasing” and the Tribunal’s reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259at 272-272 per Brennan CJ, Toohey, McHugh and Gummow JJ referring to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280).
The first question is whether the applicant raised as a specific claim the fact of her marriage as a distinguishing fact. The first respondent submitted that the applicant did not do so (FRSS [14]). The Tribunal was required to consider all the applicant’s representations as originally made to the delegate and as augmented in the Tribunal. Of course, here, the applicant did not make any claims to the delegate with respect to her marriage to the related applicant. Accordingly, the issue is what representations or claims to fear harm were made to the Tribunal having regard to the applicant’s written submission to the Tribunal and her evidence and arguments at the hearing which are set out in the Tribunal’s reasons for Decision.
The applicant stated in her written submission to the Tribunal (CB 119-120) as to the “family view” on her marriage to the related applicant and “effect/impact on me if I return to Malaysia” that:
After my husband and I got married, my family still did not accept my husband and did not approve of our marriage but my mother did not have any problems with our marriage. My family’s reaction was very surprised because I did not ask my family’s blessing to marry my husband in Australia, because of this my family did not agree with my actions. …
If I have to go back to Malaysia, surely my marriage relationship with [name] (husband) will end because my family will separate both of us. My life will also be controlled by my family because of this unauthorised marriage. I will experience stress and mental torture from my family.
The Court accepts that, on a fair reading of that submission, the applicant did raise with the Tribunal a claim to fear harm if she returned to Malaysia by reason of her marriage to the related applicant. It is not evident though that the applicant was thereby raising – as is now suggested in the submissions to this Court – that there was a significant difference in the level or nature of the harm that she would face in Malaysia as someone who is living with a person whom she had married against her family’s wishes. Indeed, as the first respondent submitted (FRSS [17]), the case the applicant presented to the Tribunal was of a continuation of the previous harm experienced by her (Decision at [28]).
In any event, the Court is satisfied that the Tribunal considered this aspect of the applicant’s claim. The Tribunal was cognisant of the applicant’s marriage to the related applicant (which had taken place in Australia) and appreciated that the marriage was against her family’s wishes ([41]). The Tribunal accepted as credible the applicant’s evidence about her relationship with her family and that they had tried to control aspects of her life; that they disapproved of her relationship with the related applicant and that they preferred her to marry someone else ([42]). The Tribunal accepted the applicant’s evidence as to her family’s conduct in response to the related applicant’s marriage proposal and the applicant’s evidence that she and the related applicant had lived in Malaysia for a period of seven months after the failed marriage proposal without experiencing any harm or attempts from her family to separate them ([43]).
The Tribunal clearly considered the fact of the applicant’s marriage to the related applicant as a relevant factor in looking into the reasonably foreseeable future as to risk of harm if the applicant were to return to Malaysia with the related applicant. The Tribunal did so at [44]-[45]. The Tribunal accepted that the members of her family perceive her marriage would give her family a bad perception within the community. The Tribunal accepted that members of her family would continue to vocalise their disapproval of the marriage. However, the Tribunal did not accept that the applicant’s family would force her and the related applicant to separate. The Tribunal reasoned that the applicant had not articulated exactly how her family would separate her and the related applicant now that they are married; considered that the applicant’s evidence suggested that after completing her university degree she had been able to make independent decisions despite her family’s wishes; and that she rarely contacts her family. Given the passage of time since the applicant had left Malaysia and its findings with respect to past harm, the Tribunal concluded that it was remote that the applicant’s family would now, or in a reasonably foreseeable future, take actions to force her to separate from the related applicant were they to return to Malaysia.
The Tribunal’s reasoning considered the applicant’s claim as put to the Tribunal and its conclusion was one which was rational, logical and had a probative basis.
No jurisdictional error is established.
Ministerial Intervention
As stated above, the Tribunal considered that the case should be referred to the Department to be brought to the Minister’s attention. The Tribunal made the same recommendation in the related proceedings. The Court had before it a copy of the Tribunal’s letter of referral to the Department in respect of these proceedings (CB 219) (“the referral”). The Court expressed the view that an appropriate course of action in these proceedings (and in the related proceedings) might be for the Court to reserve its decision in this matter until the Minister had decided on the referral. The solicitor for the first respondent made enquiries but was unable to say when a decision on the referral might be made. As these judicial review proceedings do not raise the same issues as those raised in the referral, the first respondent submitted that the Court should not, in effect, stay these proceedings. These proceedings and the referral raise different issues. The Court is not in a position to know when the referral might be considered and has not been asked to stay these proceedings. In those circumstances, the Court has decided to deliver its decision in this matter in the normal course.
CONCLUSION
Accordingly, for the reasons given above, the amended application is dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 7 May 2025
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