ASJ24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 631
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASJ24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 631
File number(s): BRG 82 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 7 May 2025 Catchwords: MIGRATION – Protection (Class XA) – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – unreasonableness – illogicality – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5CA; 5G; 5H; 5J; 36; 476
Migration Regulations 1994 (Cth) r 1.04; Schedule 2
Cases cited: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
DWN027 v Republic of Nauru [2018] HCA 20; (2018) 92 ALJR 548
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); (2013) 230 FCR 431
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 9 April 2025 Date of hearing: 24 March & 9 April 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 Second Respondent: 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: ASJ24
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 83 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. On 30 November 2017, the applicant made an application for a Protection (Class XA) (subclass 866) visa (“the visa”) (Court Book (“CB”) 22-44). The applicant’s claim for protection was that he is the main suspect in a murder case in Malaysia. The applicant said that he was robbed on his way home from work and during the altercation the robber had fallen and stabbed himself with his own knife. The applicant claimed, “the police or family of that guy will find me and will do anything to me because I am [the] cause [of] the death [of] her son” (CB 37-39).
On 17 March 2020, 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 he was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) 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 72-78) (“delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 24 March 2020, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 83-84).
On 20 December 2023, the Tribunal invited the applicant to attend a hearing on 16 January 2024 before it to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 104-106). The hearing was adjourned to 23 January 2024 at the request of the applicant (CB 117-128).
On 22 January 2024, the applicant provided the Tribunal with a written submission which made new claims to protection (CB 147-156). The thrust of the applicant’s new claims to protection was that the related applicant’s family had tried to prevent them from getting married; had abused and threatened the applicant and so they fled to Australia (where they got married); that if they returned to Malaysia the related applicant’s family would force them to end their marriage; he would face fines and imprisonment because the marriage was not recognised by the Malaysian government; and that he and the related applicant would be separated from a child (“baby S”) who is not their biological child but who they have been looking after since the child’s birth.
On 23 January 2024, the applicant provided the Tribunal with supporting documents (CB 161- 203) including: news articles about the punishment for marriage without permission in Thailand and Malaysia; the Queensland marriage certificate between the applicant and the related applicant; a statement by the mother of baby S giving permission to the applicant and the applicant in the related proceedings to take care of baby S; and the Queensland birth certificate of baby S.
On 23 January 2024, the applicant attended the hearing (CB 208-210). The applicant was assisted by an interpreter in the Malay and English languages. After the hearing, the applicant provided the Tribunal with a statutory declaration containing biographical information and attesting to his desire to stay in Australia and a letter from his employer confirming his employment as a casual employee at a farm in [town in Queensland] (CB 212-215).
On 9 February 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 223-236). On 14 February 2024, the applicant was notified of the decision and provided with a copy of the written reasons (CB 219).
THE TRIBUNAL’S DECISION
The Tribunal said the issue in the case was whether the applicant meets the refugee criterion, and if not, whether he is a person in respect of whom Australia has complementary protection obligations ([4]).
The Tribunal set out the criteria for a protection visa in s 36 of the Act and Schedule 2 of 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 about Muslim marriages ([31]-[35]).
The Tribunal identified that the receiving country for assessing the applicant’s claim was Malaysia ([12]).
The Tribunal summarised the applicant’s claims to protection as set out in his protection visa application and the delegate’s reasons for decision ([13]-[15]). The Tribunal then referred to the applicant’s submission to the Tribunal of 22 January 2024 (CB 147-156) in which the applicant sought to abandon the claims made in his protection visa application ([16]). The Tribunal stated that at the hearing, the applicant confirmed that the claims in his protection visa application were not true and said that he had been manipulated by a protection visa agent. The applicant told the Tribunal that everything in his written submission to the Tribunal was true and correct ([16]; [21]). The Tribunal said that it accepted as reasonable, the applicant’s explanation as to why his new claims were not presented to the Department earlier and said that it had not drawn an inference unfavourable to the credibility of the new claims ([36]). The Tribunal did not consider the abandoned claims ([37]).
The Tribunal set out the applicant’s background and claims to protection as follows (in summary) ([18]-[27]):
(a)Shortly after his arrival in Sydney, the applicant and the related applicant moved to [a town in Queensland] where he commenced working on a farm where he still works. The applicant also runs his own business which he opened in 2022;
(b)The applicant and related applicant married in [town in Queensland] on 4 May 2019 at a Mosque and in accordance with Islamic rites;
(c)The applicant claimed that he had to flee Malaysia because of his relationship with the related applicant whom he met in 2013 ([22]). He told the Tribunal that the related applicant’s family had arranged for her to meet and marry a man they had chosen. This was against the wishes of the related applicant. In February 2017, the applicant sought permission from the related applicant’s family for him to marry her. Her father did not approve of his daughter marrying the applicant, because of the applicant’s background and job. The applicant stated he received insults and abusive words from the related applicant’s family ([23]). Following the family’s rejection of the applicant’s marriage proposal, the applicant said he received a threatening call from the brother of the related applicant who is a policeman. He said the brother warned him to stay away or be beaten, and insulted and verbally abused the applicant;
(d)The Tribunal asked the applicant whether, apart from the verbal insults and threatening call from the related applicant’s brother, he had suffered any other harm from the related applicant’s family between February 2017 and his departure in September 2017. The applicant said nothing had happened but because the related applicant’s brother was a policeman he often felt like someone was following him;
(e)The applicant and the related applicant decided to get married abroad and so they came to Australia;
(f)The Tribunal put to the applicant that it might find that he had not suffered serious or significant harm and that may suggest he would not face serious or significant harm if he returned to Malaysia. The applicant told the Tribunal that the related applicant’s family would try to split them up by “all means possible” and that if he had to return to Malaysia his marriage with his wife would end because her family would separate them;
(g)The applicant said that the related applicant had contacted her family in 2022, and they had advised her to leave the applicant. He said that prior to 2022, the related applicant had not had any contact with her family;
(h)The applicant said he fears facing legal punishment because he has married abroad, and his marriage will not be recognised by the Malaysian government. He claimed that the punishment he would receive includes a fine and imprisonment and fears that if convicted, it would affect his employment prospects as no employer will hire him;
(i)The Tribunal put to the applicant the country information which suggested that his marriage to the related applicant could be registered upon their return to Malaysia and the likely penalty was a fine, not imprisonment. The applicant said laws vary by state and where his wife is from, both a fine and imprisonment apply.
The Tribunal then considered the circumstances of baby S ([28]-[30]). The applicant gave evidence about the related applicant’s friend from [another country] who had given birth to baby S [in Australia] but who could not take the baby back to that country with her. The applicant said that the friend had arranged for the related applicant to look after baby S and that he and the related applicant have been looking after her since birth. The applicant told the Tribunal that he and the related applicant have approached the Child [Welfare] Department to enter formal care arrangements, but they have yet to receive a response to their application. The applicant said that baby S means everything to him and the related applicant, and that separation might cause him to “do something beyond his imagination”.
The Tribunal then went on to make the following findings with respect to the applicant’s refugee claims. In doing so, the Tribunal accepted that the applicant was in a relationship with the related applicant in Malaysia and that she had chosen to be in that relationship against her family’s wishes; that they had married in Australia under Islamic rites; they continue to be in a relationship and live together; and are caring for baby S and have done so since her birth ([38]).
As to the applicant’s claim to refugee status based on forced separation by the related applicant’s family, the Tribunal accepted the applicant was verbally abused by her family following the failed marriage proposal; that the related applicant’s brother threatened him verbally; and that he believed he was being followed by the related applicant’s brother who is a policeman. However, the Tribunal found that those experiences did not rise to the level of serious harm contemplated by the Act. The Tribunal referred to the applicant’s own evidence that he and the related applicant had remained in Malaysia from February 2017 to September 2017 without enduring any harm from the related applicant’s family or their making any attempts to separate them ([39]).
The Tribunal said that looking into the reasonably foreseeable future, it did not accept that the related applicant’s family would now try to split them up “by all means,” as the applicant claimed. The Tribunal stated that the applicant had not elaborated on how the related applicant’s family would force them to separate. The Tribunal said that the applicant’s evidence was that the related applicant had not communicated with her family until 2022 and when she did, they told her to leave the applicant. The Tribunal came to that conclusion having regard to the finding it had made that the applicant was able to live in Malaysia for some seven months after the failed marriage proposal without experiencing any serious harm from the related applicant’s family; coupled with the fact that the related applicant rarely keeps in touch with her family; the risk that her family would intervene and physically separate them upon return to Malaysia was remote. Accordingly, the Tribunal said it found that the applicant faces no real chance of persecution from the related applicant’s family if he returned to Malaysia now or in the reasonably foreseeable future ([40]).
As to the applicant’s claim to refugee status based on his claim that his marriage in Australia would not be recognised in Malaysia and that he would be imprisoned because of this, the Tribunal had regard to the country information and concluded that every marriage must be registered according to state laws or enactments but that the law did not prevent the applicant from applying to register his marriage and that there was nothing in the country information which suggested that the applicant would be imprisoned ([42]). The Tribunal found that the requirement to pay a penalty for late registration would not amount to serious harm and that as there was no risk of imprisonment, the applicant’s job prospects in Malaysia would not be affected as claimed. Accordingly, the Tribunal found that the applicant’s claims to fear persecution on that basis were not well-founded ([43]).
As to the applicant’s claim to refugee status based upon his separation from baby S, the Tribunal noted that the child is not a party to the review and not a part of the applicant’s family unit under the Act, as she is not his child or adopted child under ss 5G, 5CA and reg 1.04 ([44]). The Tribunal found that there was no formal or recognised adoption arrangement made in accordance with, or recognised under, the law of a State or Territory of Australia or adoption arrangements entered into outside Australia. The Tribunal concluded that this would dictate that if returned to Malaysia the applicant would be forced to separate from baby S ([45]). The Tribunal went on to consider whether this separation amounts to persecution. It found that it did not meet s 5J(1)(b), which requires that the person be at risk of persecution in the receiving country. The Tribunal found that it did not, as the claimed persecution of being separated from baby S does not relate to any agent of persecution in the receiving country. The Tribunal also found that the claim did not involve any systematic or discriminatory conduct ([46]).
Considering the applicant’s claims individually and cumulatively, the Tribunal found that the applicant is not a refugee and is not owed protection under s 36(2)(a) of the Act ([47]).
The Tribunal then went on to consider the applicant’s claim to complementary protection. The Tribunal said that it found that, for the same reasons, the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia ([50]).
Having rejected the applicant’s claim that he would be imprisoned because the Malaysian government will not recognise his marriage, the Tribunal found that the imposition of a penalty does not constitute “significant harm” under s 36(2A), as it would not result in arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman, or degrading treatment or punishment ([51]).
The Tribunal said that it accepted the applicant would suffer emotional and psychological distress if separated from baby S. The Tribunal referred to relevant authorities which 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 serves to protect non-citizens from harm in the receiving country and that being separated 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 concluded that separation from baby S does not amount to significant harm ([52]).
Accordingly, the Tribunal said it was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia there is a real risk that the applicant will suffer significant harm and that accordingly the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act ([53]-[54]).
The Tribunal then considered the circumstances of baby S should the applicant be returned to Malaysia and the ongoing and irreversible harm it said would be caused to the applicant by being separated from her. Having regard to those matters, the Tribunal said that it considered this was a case that should be referred to the Department for Ministerial intervention ([57]-[65]).
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa ([66]).
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 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 he 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.
The applicant filed an amended application on 24 February 2025.
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 errors said to have been made was left to the applicant’s submissions.
In the applicant’s written submissions ((“AS”) [36]), the crux of the applicant’s claims of jurisdictional error was that the Tribunal failed to:
(a)consider the applicant’s marriage to the related applicant when giving weight to the period of seven months without contact. This was the period between February 2017 and September 2017 when the applicant came to Australia;
(b)engage with the applicant’s belief that the related applicant’s brother was following him was well-founded or true, despite accepting the applicant genuinely held that belief.
It was contended that these facts were not considered in their proper context when the Tribunal found at [40] that:
Looking into the reasonably foreseeable future, the Tribunal does not accept the applicant’s claim that [the related applicant’s] family would want to split them [up] ‘by all means’. The applicant’s evidence was that [the related applicant] had not communicated with her family until 2022, and when she did so, they told her to leave the applicant. While the Tribunal accepts that the [the related applicant’s] family may continue to vocalise their disapproval of the applicant and the marriage. The applicant did not further elaborate on how [the related applicant’s] family would force them to separate now that they are married. Having regard to the Tribunal’s finding above that the applicant was able to live in Malaysia for some 7 months after the failed marriage proposal without experiencing any serious harm from [the related applicant’s] family, coupled with the fact that [the related applicant] rarely keeps in touch with her family, the Tribunal finds the risk that her family would intervene and physically separate them upon return to Malaysia to be remote. The Tribunal finds that the applicant faces no real chance of persecution from his wife’s family if he returned to Malaysia now or in the reasonably foreseeable future.
Ground One: failure to consider the applicant’s marriage to the related applicant when giving weight to the seven-month period without contact
The Court understands that the applicant’s contention here was that the Tribunal made predictions as to the risk of future harm (if returned to Malaysia) from the related applicant’s family based upon their past conduct including that for a period of seven months prior to the applicant and the related applicant leaving for Australia, the related applicant’s family had not had contact with the applicant or the related applicant but that the Tribunal did not engage with whether the applicant’s marriage was a distinguishing fact capable of impacting on the weight given to past conduct.
As the full court of the Federal Court said in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 43 at [33], assessing future risk of harm is a predictive exercise involving speculation as to circumstances in the future based on material in the present, and what has happened to the person in the past. That is clearly the exercise in which the Tribunal engaged. What weight it gave to the different pieces of evidence was, of course, 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) 96 ALJR 497 at [24]). Accordingly, the Court agrees with the first respondent’s submission that the Tribunal did not err in placing weight on the related applicant’s family’s past conduct in assessing future risk of harm (FRSS [7]).
The applicant’s submission was, however, that the Tribunal did not consider or overlooked the fact of the applicant’s marriage to the related applicant – against the wishes of the related applicant’s family – as a factor that was relevant and significant to assessing future risk of harm.
It is first necessary to identify what claim the applicant made to fear harm based upon the fact of his marriage to the related applicant.
The first respondent submitted that even if the Tribunal did not specifically consider the applicant’s marriage as a key distinguishment, it did not err in failing to do so as the applicant did not raise this as a specific claim (FRSS [14]).
In that regard, the first respondent is correct in submitting that the representations of an applicant – whether as originally made to the delegate or as augmented in the Tribunal – are central to the nature of the review by the Tribunal (FRSS [15] referring to KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [51]-[52]). It is accepted though that the Tribunal whilst not having to go beyond the claims articulated by an applicant, is required to consider those claims which are unarticulated, but which are apparent on the face of the material before the Tribunal (FRSS [16] referring to DWN027 v Republic of Nauru [2018] HCA 20; (2018) 92 ALJR 548 at [17], [21]).
In his written submission to the Tribunal, the applicant said that when the related applicant contacted her family (which was in 2022) and told them of the marriage, the family were shocked and angry because they did not accept the applicant as her husband (CB 154). The applicant went on to say in the submission (CB154) that he advised the related applicant that her family will not accept him as her husband and submitted that contacting them makes her sad and emotionally disturbed. Then in addressing the impact on him if he returns to Malaysia, the applicant says that his marriage to the related applicant will end if he has to return to Malayasia because their marriage was never approved, and the related applicant’s family were going to separate them (CB 156). Having regard to those submissions, the Court is satisfied that the applicant’s submission raises his marriage to the related applicant as a relevant factor in his claim to protection. However, the Court tends to agree with the first respondent’s submission (FRSS [17]) that the applicant did not make a representation to the Tribunal that there was a significant difference in the level or nature of harm that he would face if returned to Malaysia because he had married the related applicant against her family’s wishes.
It is not necessary to come to a final view on the matter as the Court is satisfied, in any event, that the Tribunal did consider the fact of the applicant’s marriage to the related applicant in terms of a risk of future harm from her family in the event the applicant was returned to Malaysia. The Tribunal did this in a manner which demonstrated that it engaged with the impact of the applicant’s marriage in assessing future risk of harm ([39]-[40]). The Tribunal considered the applicant’s claim that the related applicant’s family would want to split them up “by all means” if they were to return to Malaysia but said that the applicant had not elaborated on how they might seek to do that. The Tribunal accepted that the related applicant’s family may continue to vocalise their disapproval of the applicant and the marriage, but did not accept that they would intervene and physically separate them. Accordingly, the Tribunal concluded that the applicant did not face a real chance of persecution from the related applicant’s family ([40]) or that there were substantial grounds for concluding that as a consequence of being removed to Malaysia the applicant will suffer significant harm ([53]). That finding was neither illogical nor irrational having regard to the evidence before the Tribunal. The evidence before the Tribunal was that there had been no threat of harm in the period after the failed marriage proposal, the applicant had not elaborated on how it was contended the related applicant’s family would try to separate them and that the related applicant had had no contact with her family except for one instance of contact in 2022.
The Court agrees with the first respondent’s submission (FRSS [13] referring to DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]) that the Tribunal’s consideration of the applicant’s claimed risk of harm on the basis of his marriage disclosed a proper evaluation of the evidence that was logical, rational and had a probative basis.
No jurisdictional error is established on ground one of the amended application.
Ground Two: failure to engage with the applicant’s belief that he was being followed by the related applicant’s brother
The applicant contends that the Tribunal did not engage with the applicant’s belief that the related applicant’s brother was following him was well-founded or true, despite accepting the applicant genuinely held that belief.
The Tribunal asked the applicant whether, apart from the verbal insults and the threatening telephone call from the related applicant’s brother, he had suffered any other harm from her family between February 2017 and his departure (for Australia) in September 2017. The applicant told the Tribunal that nothing had happened but that because the related applicant’s brother is a policeman, he often felt like someone was following him ([26]).
It is not in contention that the Tribunal accepted that the applicant was under the perception that he was being followed by the applicant’s brother who is a policeman ([39]). The submission is that the Tribunal did not explain the weight, if any, that it gave to the applicant’s perception he was being followed and erred in concluding that the related applicant’s family did nothing in that seven-month period when the applicant gave evidence that he perceived he was being followed by the related applicant’s brother (AS [39]; [45]).
The Tribunal accepted as truthful the applicant’s belief that he was being followed by the related applicant’s brother. It took that into consideration in its assessment of whether the applicant was at risk of harm. That is evident from the Tribunal’s explanation to the applicant as to why it was asking him about what other harm from the related applicant’s brother – apart from verbal insults and the threating telephone call – he had suffered. The Tribunal concluded that the applicant’s past experiences did not reach the threshold of serious harm and was not satisfied that there was a real chance of the applicant experiencing serious harm in the future. The Court agrees with the first respondent’s submission (FRSS [24]) that this conclusion was open to the Tribunal and that the Tribunal’s reasoning in coming to that conclusion was logical, rational and had a probative basis. The Tribunal did not err simply because it did not state what particular weight it attributed to the applicant’s perception he was being followed.
The applicant also submitted (AS [45]), in relation to the applicant’s perception of being followed by the related applicant’s brother, that the Tribunal erred in finding that the applicant had not suffered harm in the seven-month period between February 2017 and September 2017 given that it had accepted as true the applicant’s perception that he was being followed. That submission does not accurately reflect the Tribunal’s findings. The Tribunal found that “the applicant was able to live in Malaysia for some seven months after the failed marriage proposal without experiencing any serious harm” ([40]). It is clear from that finding that the Tribunal did not accept that a perception of being followed reached the requisite degree of harm.
If the Court understands correctly, it may have also been suggested by the applicant’s counsel, in oral submissions, that the Tribunal was required to make a finding on whether the applicant was in fact being followed by the related applicant’s brother. That submission ignores that the Tribunal could not have made any such finding on the evidence before it.
No jurisdictional error is established on ground two of the amended application.
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 same recommendation was made in the related proceedings and in those proceedings the Court had before it a copy of the Tribunal’s letter of referral to the Department in respect of the related applicant (Court Book in the related 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-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 7 May 2025
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