BPM23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 518
•14 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPM23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 518
File number(s): BRG 285 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 14 April 2025 Catchwords: MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – error of fact – jurisdictional fact – illogicality or irrationality – procedural fairness – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H; 5J; 36; 65; 424A; 425; 426; 427; 476
Migration Regulations 1994 (Cth) Schedule 2
Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280
CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 40 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALD 224
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703
XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of last submission/s: 11 March 2025 Date of hearing: 11 March 2025 Place: Brisbane Counsel for the Applicant: Mr Hii Solicitor for the Applicant: Taylor Rose Counsel for the First Respondent: Mr Freeburn Solicitor for the First Respondent: Sparke Helmore Second Respondent: The second respondent filed a submitting appearance, save as to costs. ORDERS
BRG 285 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPM23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
14 April 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 $6,500.00
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 Immigration and Border Protection, (as the Minister was then called), (“the delegate”) to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Malaysia. On 21 September 2017, the applicant made an application for a Protection (Class XA) (subclass 866) visa (“the visa”) (Court Book (“CB”) 1‑28). The applicant’s claim for protection was that she is a lesbian, she was in exile from her family, society did not respect lesbians, she was mocked and criticised, that she was depressed because of that and if she returned to Malaysia she would be criticised and possibly physically abused (CB 24-26).
On 14 November 2017, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria on the basis that she 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 has protection obligations under s 36(2)(aa) of the Act as it 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) of the Act (CB 41-44) (“the delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 20 November 2017, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 49-50).
On 23 November 2017, the Tribunal acknowledged receipt of the application and advised the applicant that should she wish to provide material or written arguments for consideration that she should do so as soon as possible (CB 52-53).
On 13 May 2019, the applicant notified the Tribunal of a change in circumstances (CB 64-66). The applicant told the Tribunal “I would like to change the details as you know the application visa I had previously claimed about LGBT. The new details I would like to give is that I was married a man on 10/2/2018 and on 16/4/2019 I have given birth to a child at [location] Hospital. I want to update this detail, and I hope you can accept this.” (CB 65).
On 28 April 2023, the Tribunal invited the applicant to attend a hearing on 23 May 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 68-70).
On 17 May 2023, the applicant responded to the hearing invitation stating that she would attend the hearing. The applicant provided documents in support of her application for review being an extract from Wikipedia titled “LGBT rights in Malaysia” (CB 71-162).
On 23 May 2023, the applicant attended the hearing (CB 163-165). The Tribunal’s Hearing Record records that the applicant was assisted by an interpreter in the Malay and English languages (CB 163).
On 24 May 2023, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 168-174). On 26 May 2023, the applicant was notified of the decision and provided with a copy of the Tribunal’s written reasons (CB 167).
THE TRIBUNAL’S DECISION
The Tribunal 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”) ([6]-[10]) and the mandatory considerations including the requirement to consider country information ([11]).
The Tribunal accepted that the applicant is a national of Malaysia and stated that it assessed her claims against that country in relation to s 36(2)(a) and s 36(2)(aa) of the Act ([13]).
The Tribunal stated that it had the following documents before it: the Department file; the Tribunal Folio; a copy of the Wikipedia page on LGBTIQ+ in Malaysia provided to it by the applicant; and a birth certificate for the applicant’s child ([15]). The Tribunal also stated that at the hearing the applicant had shown the Tribunal two photographs she said were of herself and her [female] partner Gee ([15]).
The Tribunal set out the applicant’s claims as set out in the visa application as follows ([16]):
(a)She is a lesbian, and her relatives did not accept her, and society did not respect her;
(b)She did not face any physical harm but was mentally disturbed and people mocked her;
(c)She moved to south Malaysia but experienced the same problems;
(d)Authorities don’t help people with gender or sexual preference problems.
The Tribunal stated that the applicant had added the following claims at the hearing before the Tribunal ([17]):
(a)She owes money to the bank for a loan;
(b)She owes money for her motorcycle;
(c)Her pay was low, and she had financial issues.
The Tribunal then summarised the applicant’s evidence about her sexuality, her relationships and her reason for coming to Australia as follows:
(a)The applicant was born in Johor Malaysia in 1995. In 2012 she moved to Kuala Lumpur and remained there until she came to Australia in 2017 ([12]; [18]);
(b)She is divorced with a 4-year-old son. She lives with her mother and works doing food deliveries. She has a sister who is also in Australia and a sister who is in Malaysia ([12]);
(c)She became friends with Gee on Facebook. They started talking and doing video calls. At the time the applicant was in Malaysia and Gee (who is Malaysian) was in Australia. They formed a relationship. The applicant said this is when people started talking bad about her. She said she would comment on Gee’s posts that she loves her, and people would say things to her about it ([19]);
(d)The applicant then came to Australia and met Gee in Sydney. They moved to Queensland and lived together. They were together physically for one year and six months. When they moved to Queensland the applicant said that Gee changed and they eventually broke up. In the meantime, one of her friends introduced her to a man who would later become her husband, Ahmad ([20]);
(e)Ahmad said he would marry her, and this would get rid of Gee and block her from the applicant’s life and so she married him. The applicant said she got drunk and told him she didn’t want sex with him and told him she wasn’t ready because of her sexuality. But she did sleep with him only once and she got pregnant ([21]);
(f)The Tribunal stated that it asked the applicant if she was bisexual to which the applicant said that she said she was, but she preferred women ([22]);
(g)The Tribunal stated that it asked the applicant if when she was living in Malaysia, she had same sex relationships, and the applicant said she only had the online relationship with Gee. She said the people at her work knew she was a lesbian because of the comments on her Facebook page. The Tribunal asked if her Facebook page was private, and she said it was. When asked how many friends she had on Facebook she told the Tribunal 3,000 or 4,000. The applicant said her comments to Gee made her aunts make comments and she was stressed out as it was emotional abuse ([22]);
(h)The Tribunal asked the applicant when she realised she was a lesbian or bisexual, to which the applicant said she realised she was a lesbian or bisexual at around the age of 18 when she realised she preferred women. After that she went to Kuala Lumpur but being a lesbian is still illegal ([23]);
(i)She came to Australia as it was better to be in Australia than Malaysia and she was relaxed when she came here. She has not had any other relationships besides her ex-husband and Gee as she is working and raising her son who is in kindy now ([24]).
The Tribunal asked the applicant if she knew about the LGBTIQ+ community in Malaysia, or the bars and nightclubs to which she said no. She told the Tribunal she thought it might be okay for Chinese Malays but not for Muslims ([25]).
The Tribunal asked the applicant about her religion and as a Muslim knowing that it was illegal to be gay and that she still considers herself a Muslim. She told the Tribunal that she cannot change herself ([26]).
The Tribunal asked the applicant to see a picture of Gee which the applicant showed to the Tribunal. The Tribunal observed that it was a picture of the two of them sitting. She showed another one with their faces together ([29]).
The Tribunal then summarised the applicant’s evidence about her financial issues ([27]).
The Tribunal asked the applicant about her fears of going back to Malaysia. The applicant told the Tribunal that people will talk bad about her and discriminate against her. She said she knows her relatives disapprove and she can tell by their body language when she is around them. She also has no house. The only house left is her grandmother’s house ([28]).
The Tribunal said it did not find the applicant to be a credible witness and that for the following reasons it did not accept that the applicant is a lesbian or a bisexual, that she suffered any harm from her relatives or society at large in Malaysia or will suffer harm in the future ([30]):
(a)The applicant claimed in her protection visa application that she was a lesbian. She then said at the hearing she was bisexual, but later in the hearing she said she didn’t like men and that she only had sex once with her ex-husband and got pregnant ([31]);
(b)The applicant claimed she was in a relationship with Gee in Australia for a year and a half. She first arrived in September of 2017 which would have taken the relationship to mid-2018. However, she told the Tribunal in her oral evidence that she got married in 2018, had a baby in 2019 and got divorced in 2020. This did not align with her having a same sex relationship with Gee at the same time ([32]);
(c)Despite her claims of a lengthy 18-month physical relationship in Australia with Gee and stating she lived with her, apart from two photographs the applicant had no other evidence. The applicant had no rental agreements, correspondence, no Facebook posts and no witness accounts ([33]);
(d)The applicant stated her extended family mock her since she posted on Facebook. She later said that the entire family had a WhatsApp group that they are all in. When the Tribunal asked her about the WhatsApp group, she said her family and her remain silent on the WhatsApp group. The Tribunal said that this made no sense as to why the applicant would be in a group and not say anything, and in a group where the people in the group have mocked her. The Tribunal said it also suggested that the applicant has an ongoing relationship with her extended family including those who she claims have mocked her. The Tribunal observed that if they truly were mocking her or saying things about her then she wouldn’t engage with them and be in a group with them. Further, the applicant stated that her motorcycle is still at her grandmother’s home in Malaysia which indicates an ongoing relationship with her grandmother ([34]);
(e)When asked about her mother and how she feels about the applicant being in same sex relationships she said people told her mother to make her daughter normal. She stated that her mother accepts her. The applicant did not relay in any way that her mother has a problem with her sexuality and the applicant’s mother is living with her in Australia and has also applied for a protection visa. Further, the applicant did not have her mother as a witness to give evidence about her knowledge that the applicant was a lesbian or bisexual, nor did she provide any written documentation ([35]);
(f)The applicant was married and had a child. She said that her ex-husband said he would marry her to get rid of Gee bothering her. She stated they only had sex one time, and she got pregnant. She reiterated that the applicant’s ex-husband suggested this as a way to get rid of Gee. She said Gee was violent with her. The Tribunal considered that it would have been an easier solution to go to the police about the violence than to get married to stop Gee ([36]);
(g)The applicant did not have any other relationships with women apart from Gee. When asked about her relationships in Malaysia she said she didn’t have any. When asked about any relationships in Australia she has not had any same sex relationships since she married and divorced ([37]).
The Tribunal concluded that the applicant is not a lesbian or bisexual and that she does not face a real chance of serious harm on return to Malaysia as a lesbian or bisexual or for any reason related to her sexuality. The Tribunal said it was not satisfied that the applicant has a well-founded fear of persecution as required by s 5J of the Act and therefore found the applicant is not a refugee within the meaning of s 5H ([38]).
As to the applicant’s claims related to financial instability, the Tribunal stated that it accepted the applicant’s claims and concerns about finances but said that her concerns about finances and her loans do not amount to serious harm or significant harm as defined in s 36(2A) of the Act ([10]; [39]).
The Tribunal concluded that it did not accept that the applicant is a credible witness, does not accept the applicant’s claims to be a lesbian, a bisexual or that she was in a relationship with Gee for 18 months. The Tribunal said it followed that it did not accept that the applicant was mocked by her relatives or anyone on Facebook ([40]).
The Tribunal said that given those findings it did not accept that if the applicant returns to Malaysia, she will face a real chance of persecution from her relatives or society at large. The Tribunal found that the applicant does not face a well-founded fear of persecution as per s 5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s 5H(1) ([41]).
The Tribunal said that, nor did it accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from her relatives, society at large, the authorities or anyone associated with them. The Tribunal said it accepted that the applicant has loans to pay but this does not constitute significant harm. The Tribunal said it was therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa) ([42]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa ([44]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 22 June 2023.
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.
The applicant filed an amended application on 11 February 2025. The applicant also filed an affidavit on 11 February 2025 annexing a copy of the Tribunal’s decision and the transcript of the Tribunal’s hearing (“Tribunal Transcript”).
The material before the Court was the amended application, the applicant’s affidavit filed on 11 February 2025 annexing the Tribunal Transcript, the first respondent’s response, the applicant’s written submissions, the first respondent’s 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.
At the hearing, the applicant sought and was given leave to amend the amended application to amend ground one to clarify particular (c)(iii) and to amend ground three. The grounds of review set out in the amended application including the amendments made at the hearing are (without alteration but excluding the paragraphs that were struck through, any bold type and underlining):
1.The Tribunal’s Decision is affected by jurisdictional error and/or legal error in that the primary facts it relied on in making the impugned decision dated 24 May 2023 (the Decision) is not supported by any evidence before it.
Particulars
(a)The Tribunal found at [38] of the Decision that the Applicant “is not a lesbian or bisexual”.
(b)The Tribunal arrived at the conclusion by finding that:
(i.)the Applicant “first arrived in September of 2017 which would have taken the relationship to mid-2018”. However, she told the Tribunal in her oral evidence that the (sic) got married in 2018, has a baby in 2019 and got divorced in 2020. This does not align with her having a same sex relationship with Gee at the same time” at [32] of the Decision.
(ii.)The Applicant “came to Australia [in September 2017] and met (her partner) Gee in Sydney. They moved to Queensland and lived together. They were together physically for one year and six months…” at [20] of the Decision”.
(iii.)it “it “did not accept the applicant’s claims to be a lesbian, a bisexual or that she was in a relationship with Gee for 18 months.” at [40] of the Decision.
(c)The Tribunal’s findings are contrary to the Applicant’s evidence as:
(i.)the Applicant’s evidence (both orally, and in her Application for a Protection Visa) was that she arrived in Australia in July 2017.
(ii.)the Applicant’s oral evidence was she had met Gee online and commenced a relationship with her approximately one year prior to coming to Australia in July 2017.
(iii.)the Applicant’s oral evidence was that after she came to Australia, she and Gee moved to Queensland after a 6 month period. She then lived in Queensland with Gee for about two or three months before their relationship came to an end.
(iv.)the Applicant’s oral evidence was to the effect that after her relationship with Gee came to an end in or about January 2018.she commenced a new relationship with her now ex-husband in February 2018, and then married in 2019.
2.The Tribunal’s Decision is affected by jurisdictional error and/or legal error in that it proceeded on a mistaken view about the existence of a particular jurisdictional fact that is necessary for the valid exercise of the power to affirm the decision not to grant the Applicant a protection visa.
Particulars
(a)The jurisdictional fact necessary for the Tribunal ‘s valid exercise of its power is whether or not the Applicant is a person who has a well-founded fear of persecution in her home country due to, inter alia, her membership of a particular social group, and are unwilling or unable to avail themselves of the protection of her home country.
(b)The Applicant identities as being a member of the LGBTIQ+ social group. She is a woman and identifies as bisexual, with a preference for women. Her evidence that she has a well-founded fear persecution on the basis of her sexual orientation.
(c)However, the Tribunal found at [38] of the Decision that the Applicant was not a lesbian, bisexual or in a relationship with a woman, holding principally that the Applicant’s evidence to not be credible because it had found:
(i.)the Applicant “first arrived in September of 2017 which would have taken the relationship to mid-2018”. However, she told the Tribunal in her oral evidence that the (sic) got married in 2018, has a baby in 2019 and got divorced in 2020. This does not align with her having a same sex relationship with Gee at the same time” at [32] of the Decision.
(ii.)The Applicant “came to Australia [in September 2017] and met (her partner) Gee in Sydney. They moved to Queensland and lived together. They were together physically for one year and six months…” at [20] of the Decision”.
(iii.)it “it “did not accept the applicant’s claims to be a lesbian, a bisexual or that she was in a relationship with Gee for 18 months.” at [40] of the Decision.
(d)The Tribunal’s findings are erroneous and contrary to the evidence before it, as particularised in First Amended Ground.
(e)The Tribunal’s mistake about jurisdictional fact was a material one which, if had been avoided, could have led to a different decision.
3.The Tribunal’s decision that the Applicant is “not a lesbian or bisexual and does not face a real chance of serious harm on return to Malaysia as a lesbian or bisexual or for any reason related to her sexuality” due to adverse credibility findings is in infected by illogicality or irrationality.
Particulars
(a)The Applicant repeats and relies on the particulars set out in the Second Amended Ground.
(b)The Tribunal’s decision that the Applicant is not a lesbian or bisexual is not open to it, and there is no logical connection between the evidence and the Tribunal conclusion.
4.The Tribunal’s Decision in [sic] infected by jurisdictional error and/or legal error in that the interpretation provided by the Tribunal was wholly inadequate and therefore failed to afford her natural justice.
5.The Tribunal’s Decision was affected by jurisdictional error and/or legal error in that the learned member failed to afford the Applicant procedural fairness to deal with the adverse inferences it drew at [40] of the Decision that she was not a credible witness because inter alia it found at [34] that “the Applicant’s motorcycle is still at her grandmother’s home in Malaysia. This indicates an ongoing relationship with her grandmother.”
Grounds one, two and three
It is not in contention that the Tribunal found that the applicant was not a lesbian or bisexual ([38]; [40]). The Tribunal said that it followed that it did not accept that:
(a)The applicant had suffered any harm from her relatives or society at large in Malaysia or had been mocked by her relatives or anyone on Facebook ([30]; [40]);
(b)The applicant faced a real chance of serious harm on return to Malaysia as a lesbian or bisexual or for any reason related to her sexuality and accordingly was not satisfied that the applicant had a well-founded fear of persecution as required by s 5J of the Act and that therefore the applicant was not a refugee within the meaning of s 5H of the Act ([38]; [41]);
(c)There were grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from her relatives, society at large, the authorities or any one associated with them and so was not satisfied that the applicant met the alternative criterion on s 36(2)(aa) of the Act ([42]).
The applicant contends that the Tribunal’s findings of fact as to the applicant’s sexuality and her relationship with Gee were not supported by the evidence (ground one); proceeded on the basis of a mistaken view of the jurisdictional fact necessary for the exercise of the Tribunal’s valid exercise of power as to whether the applicant is a person who has a well-founded fear of persecution in Malaysia based on her sexual orientation (ground two); and was infected by illogicality or irrationality (ground three).
As the applicant’s counsel explained, grounds one, two and three are interrelated. All three grounds are premised on contentions of jurisdictional error with respect to the Tribunal’s findings of fact with respect to the applicant’s claimed sexuality. In written submissions and orally, the applicant’s submissions effectively rolled grounds one and two into ground three.
Ground two
It is convenient to first deal with ground two.
In ground two, the applicant contends that the Tribunal’s decision is affected by jurisdictional error because the Tribunal proceeded on a mistaken view about the existence of a particular jurisdictional fact necessary for the valid exercise of the power to affirm the decision not to grant the Applicant a protection visa. The jurisdictional fact was pleaded as - whether the applicant is a person who has a well-founded fear of persecution in her home country due to, inter alia, her membership of a particular social group, and who is unwilling or unable to avail themselves of the protection of her home country.
Pursuant to s 65(1) of the Act, the Minister (and Tribunal), after considering a valid visa application, if satisfied that the criteria for the grant of a visa have been satisfied, must grant the visa and, if not so satisfied, must not grant the visa. The formation of the requisite state of mind is a jurisdictional fact that is a precondition to the grant of the visa or, in the absence of that requisite state of mind the refusal to grant the visa. The prescription of a state of mind as the pre-condition to the exercise of a power is referred to as a subjective jurisdictional fact (EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409 at [55] per Derrington J).
The Court agrees with the first respondent’s submission (first respondent’s submissions (“FRS”) [23]) that in articulating ground two, the applicant has conflated the subjective jurisdictional fact in s 65(1)(b) of the Act with that of an objective jurisdictional fact in contending in ground two that “the jurisdictional fact necessary for the Tribunal’s valid exercise of its power whether to not the applicant is a person who has a well-founded fear of persecution …”. It was not the Tribunal’s objective fact of the applicant not having a well-founded fear of persecution but the Tribunal’s subjective non-satisfaction that this was the case on the material before the Tribunal (FRS [24]).
Accordingly, the complaint as to jurisdictional error as pleaded in ground two is misconceived. To be clear, the Tribunal’s finding that the applicant is not lesbian or bisexual is not a finding on a jurisdictional fact nor are the findings of fact upon which that ultimate finding of fact was based. Accordingly, as framed, ground two of the application cannot establish jurisdictional error. As noted above, in any event, the applicant’s contention that the Tribunal made factual errors, that are said to be jurisdictional errors, is dealt with in ground three based on illogicality or irrationality.
Ground three
It is next convenient to deal with ground three as the consideration of ground three will dispose of ground one.
The Court understands the applicant’s overarching submission in ground three is that the Tribunal’s adverse credit finding was premised on four factual errors. The applicant contends that the adverse credit finding in turn led to the Tribunal’s finding that the applicant was not lesbian or bisexual and therefore did not face a real chance of serious harm on return to Malaysia as a lesbian or bisexual or for any reason related to her sexuality. The applicant submits that the Tribunal’s decision was therefore illogical or irrational.
In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 40 CLR 611 (“SZMDS”), Crennan and Bell JJ (at 647-648) said that illogicality or irrationality sufficient to found jurisdictional error in relation to the formation of a statutorily required state of mind must mean that the decision to which the Tribunal came, is one to which no rational or logical decision maker could arrive on the same evidence and is of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction that could be formed by a reasonable person. Their Honours said as to the approach to be applied at (648):
But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The evaluative process the Tribunal was required to engage in was to make findings on the material before it prior to determining whether it was satisfied or otherwise that the applicant had a well-founded fear of persecution because the applicant is a refugee as defined or, alternatively it was satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Malaysia there is a real risk she will suffer significant harm. If the Tribunal’s findings were not supported by probative material or not based on logical grounds an error will have occurred (EHF17 at [75] per Derrington J referring to the observations by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (“Eshetu”) at [147]).
As to adverse credibility findings, the Full Court of the Federal Court said in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (at [50]) that adverse credibility findings are not immune from judicial review but, to establish jurisdictional error it is ordinarily necessary to show that the findings were legally unreasonable, for example by being based on illogical or irrational findings or inferences of fact (referring to Eshetu; Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB; [2004] HCA 32; (2004) 78 ALD 224). The Full Court then went on to say that it was not enough for the question of fact to be one on which reasonable minds might differ (referring to SZMDS ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109). At [51] the Full Court said that the principles which guide judicial review of adverse credibility findings include the following:
(a) Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae.
(b) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).
(c) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review: SZMDS at [96]. Even emphatic disagreement with the Tribunal’s reasoning is not sufficient to make out illogicality: SZMDS at [124].
The applicant referred the Court to a recent decision of Needham J in CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97 in which those principles were referred to. At [38] her Honour said that even where a finding of fact is made in error, the error needs to be material to establish jurisdictional error (referring to Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123) and the consideration of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (at [6]-[7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ with Beech-Jones agreeing at [38] and at [14]-[17] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
The first respondent took the Court to a decision of the Full Court of the Federal Court in XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 in which the Court said at [63] that a finding of fact made without a “skerrick” of evidence will amount to an error of law but whether such error of law amounts to jurisdictional error will depend on the nature and significance of the finding of fact. The Court further said (at [63]) that:
On any view, in order to amount to jurisdictional error, the relevant finding must have been at least a ‘critical step” on which the ultimate decision was based, if not a precondition to the exercise of jurisdiction (references omitted).
Then at [64], the Court said that:
An absence of evidence or a lack of logical grounds for a particular finding or inference of fact might be such that “it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically and rationally on the available material”: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [35] (Allsop CJ, Besanko and O’Callaghan JJ). However, any such irrationality in the course of making a particular finding of fact would only amount to jurisdictional error if the fact was “critical” to the ultimate decision: see Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277 at [54] (Markovic, Meagher and Kennett JJ).
Before turning to deal with each alleged factual error in turn, it is also important to bear in mind that in scrutinising the reasons of the Tribunal for the purpose of discerning whether there is error, it is well settled that a court should not be “concerned with looseness of language … nor with unhappy phrasing” and that the 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 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ referring to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280).
A further point the Court makes in undertaking this task relates to the applicant’s affidavit. In paragraph 13 of the affidavit, the applicant deposes to what evidence she says she gave to the Tribunal about her relationship with Gee and as to when she married her now ex-husband. It is not for the Court to assess the applicant’s evidence to the Tribunal by reference to what the applicant now deposes as to what she says her evidence was. The Court is required to have regard to the Tribunal Transcript of the hearing before the Tribunal which is annexure NF-2 to the applicant’s affidavit.
The amended application and the applicant’s written submissions contend that the Tribunal made two factual errors:
(a)The length of the applicant’s ‘physical’ relationship with Gee which the Tribunal said was 18 months ([20]; [33]); and
(b)The date of the applicant’s arrival in Australia which the Tribunal said was September 2017 ([32]).
In oral submissions, the applicant contended that the Tribunal had made two further incorrect factual findings. These were not identified in the amended application or in the written submissions. They were the Tribunal’s findings that:
(a)The applicant’s mother accepted her sexuality (at [35]); and
(b)The applicant did not like men (at [31]).
The applicant’s arrival in Australia and the duration of her relationship with Gee
The applicant’s evidence of her relationship with Gee was central to the applicant’s claim that she was lesbian or bisexual. The Tribunal said that the applicant gave evidence that she did not have any other relationships with women apart from Gee, did not have any relationships in Malaysia and had not had any same sex relationships in Australia since she had married and divorced ([37]).
It is useful to set out the relevant passages in the Tribunal’s decision with respect to its findings as to the duration of the applicant’s relationship with Gee:
20. The applicant then came to Australia and met Gee in Sydney. They moved to Queensland and lived together. They were together physically for one year and six months. When they moved to Queensland the applicant said that Gee changed and she was beating her up, she broke her phone and one time in the car she was pulling the applicant’s hair out. The applicant eventually broke up with her. In the meantime, one of her friends introduced her to a man who would later become her husband, Ahmad.
…
32. The applicant claimed she was in a relationship with Gee in Australia for a year and a half. She first arrived in September of 2017 which would have taken the relationship to mid-2018. However, she told the Tribunal in her oral evidence that the got married in 2018, has a baby in 2019 and got divorced in 2020. This does not align with her having a same sex relationship with Gee at the same time.
33. Despite her claims of a lengthy 18-month physical relationship in Australia with Gee and stating she lived with her, apart from two photographs the applicant had no other evidence. No rental agreements, correspondence, no Facebook posts, no witness accounts.
…
40. Given these concerns, the Tribunal does not accept that the applicant is a credible witness. For the reasons set out above the Tribunal does not accept the applicant’s claims to be a lesbian, a bi-sexual or that she was in a relationship with Gee for 18 months. It follows that the Tribunal does not accept that the applicant was mocked by her relatives or anyone on Facebook.
The applicant contends that those findings are contrary to the applicant’s evidence because it is submitted (applicant’s written submissions (“AS”) [23]) that the applicant’s:
(a)Evidence both orally and in her application for a Protection Visa was that she arrived in Australia in July 2017;
(b)Oral evidence was she had met Gee online and commenced a relationship with her approximately one year prior to coming to Australia in July 2017;
(c)Oral evidence was that after she came to Australia, she and Gee moved to Queensland after a 6-month period. She then lived in Queensland with Gee for about two or three months before their relationship came to an end;
(d)Oral evidence was to the effect that after her relationship with Gee came to an end in or about January 2018, she commenced a new relationship with her now ex-husband in February 2018 and then married in 2019.
The first respondent accepts (FRS [15]) that the Tribunal (at [32]) erred in stating that the applicant arrived in Australia in September 2017. It is not in dispute that the applicant arrived in Australia on 6 July 2017 (CB 41). The relevance of the error is that the Tribunal went on in [32] to state that this would have taken the applicant’s relationship with Gee to mid-2018. The Tribunal then observed that this did not align with the applicant’s evidence that she got married in 2018. It was not in contention that, prior to the hearing, the applicant had told the Tribunal that she married a man on 10 February 2018 (CB 65). Accordingly, if the applicant’s relationship with Gee had continued to mid-2018 – as stated by the Tribunal – there would have been overlap. This overlap was one of the findings that was relevant to the Tribunal’s non-acceptance of the applicant’s claim to be a lesbian or bisexual. There were other reasons why the Tribunal did not accept that the applicant had been in an 18-month relationship with Gee to which the Court will refer later in these reasons.
The first respondent also accepts (FRS [7]) that the Tribunal erred in describing (at [20] and [33]) the applicant’s relationship with Gee as being an 18-month “physical” relationship. It is not in contest that the evidence was that the applicant had been in a virtual relationship with Gee for a year prior to the applicant’s arrival in Australia. The relationship commenced as a virtual relationship because the applicant was in Malaysia and Gee was in Australia. It is evident that the Tribunal appreciated that the relationship began as a virtual relationship. At [19] the Tribunal recounts the applicant’s evidence that she became friends with Gee on Facebook and that at that time the applicant was in Malaysia and Gee was in Australia. The Tribunal then goes on (at [20]) to recount that the applicant came to Australia and met Gee in Sydney and that they moved to Queensland and lived together.
The first respondent contends that the Tribunal’s finding at [32] that the relationship ended in ‘mid-2018’ reflects a correct understanding of the material (FRS [11]). The first respondent also submitted that if the Tribunal had proceeded under a misunderstanding that there was an 18-month physical relationship that commenced in September 2017 then the Tribunal would not have concluded that the relationship ended in mid-2018. The Court agrees. The Tribunal would have concluded that the relationship ended in March 2019.
It is useful to set out the applicant’s evidence at the Tribunal hearing about the length of her relationship with Gee (Tribunal Transcript p-8, lines 5-29; 39-47):
Member: So you met her on Facebook and she was already living in Australia? So you never physically met her?
Applicant: No never.
Member: And then when you arrived in Australia, did you meet her?
Applicant: Yes.
Member: And where did you meet her?
Applicant: In Sydney.
Member: And then what happened? Did you have a relationship with her?
Applicant: Yes. So when we meet in Sydney, she gave me to her house, she loved me and we were together and yes. We living together (indistinct).
Member: And how long did you have this relationship with her for?
Applicant: How long?
Member: Yes?
Applicant: So after our - before I count one year, and then (indistinct). Like, one year six months. After (indistinct), only six months, and then we move into Queensland. We move into Queensland. She's changed after that.
Member: So when I was talking to you earlier and you said that you were married, you said you got married in 2018?
Applicant: Yes. That's what I (indistinct)
Member: Then how come you've had a relationship with this woman for one year and six months when you only had been in Australia for one year?
Applicant: Actually, I said - so when I live here in Sydney and we come into Queensland – we move to Queensland and the reason why I get married because she's changed a lot […]
Member: So how long did you live with her in Queensland?
Applicant: Around two or three months.
Member: And so then what? You broke up with her and moved out?
Applicant: Yes. So I just - I just want to distance myself, and I meet some of my friends, and then – and she introduce me to her son (indistinct), I don't feel interest with her son. And he is- and actually, we both make a promise to- I asked him to help me about this woman. So she - so he approve. He say, 'Okay, I will help you out'. That's why we get married. Yes.
The applicant’s counsel submitted that the applicant’s evidence made it “very clear” that she had already broken up with Gee before her marriage to Ahmad on 10 February 2018. The Court understands the applicant’s counsel to be referring to the applicant’s answer to the last question in the above extract of the evidence. The Court is being asked to find that it was open from that answer for the Tribunal to conclude that the applicant’s evidence was that her relationship with Gee ended sometime in January 2018 after which the applicant then met Ahmad and married him on 10 February 2018. That is the chronology of events the applicant’s counsel submitted is “very clear” from the applicant’s evidence.
Of course, the role of the Court on judicial review is not to form its own view of the evidence but to consider whether the view taken by the Tribunal was reasonably open to it and was neither illogical nor irrational.
The Court considers that it was reasonably open on the evidence, calculating the commencement of the relationship in Australia from the applicant’s arrival on 6 July 2017, for the Tribunal to have concluded that the applicant’s relationship with Gee ended in Queensland in either early March 2018 or early April 2018 depending upon whether the applicant and Gee lived in Queensland together for two months or for three months. That means that on the applicant’s own evidence, there was an overlap with the applicant’s relationship with her now ex-husband who, as noted above, she married on 10 February 2018. That overlap was relevant to the Tribunal’s ultimate finding in [32] that the marriage in 2018 did “not align with her having a same sex relationship with Gee at the same time”.
Accordingly, reading the Tribunal’s reasons as a whole and having regard to the applicant’s own evidence, the Tribunal’s conclusion that there was overlap between the applicant’s relationship with Gee and her marriage to the man, Ahmed was neither illogical nor irrational.
It follows that the Tribunal’s error in describing the relationship as a “physical relationship” for 18 months, whilst incorrect, was not a critical step upon which the ultimate finding of overlap was based. Similarly, the Tribunal’s incorrect reference to the applicant’s arrival date did not give rise to a jurisdictional error as it was not a critical step upon which the ultimate finding of overlap was based. As already explained above, on a correct understanding of the applicant’s arrival date, the conclusion that there was overlap was one which was reasonably open to the Tribunal on the applicant’s evidence.
Further, as noted above, there were other reasons why the Tribunal did not accept that the applicant had been in a same sex relationship with Gee. These are set out in the Tribunal’s reasons at [33] to [37]. For example, the Tribunal said that despite her claims to a lengthy relationship with Gee apart from two photographs that there were no rental agreements, correspondence, Facebook posts and no witness accounts ([33]).
Further, the Court agrees with the first respondent’s submission that the alleged errors related to one aspect of why the Tribunal did not believe the applicant’s claim to be a lesbian or bisexual and it was open to the Tribunal to reach its conclusion as to the applicant’s credibility on the bases of those other aspects to which the Tribunal referred (FRS [20] referring to W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703). How the Tribunal weighed those aspects was a matter for it.
The mother’s acceptance of her sexuality
The applicant contends that the Tribunal erred in its finding at [35] that her mother accepts her. The Tribunal said at [35]:
35. When asked about her mother and how she feels about the applicant being in same sex relationships she said people told her mother to make her daughter normal. She stated that her mother accepts her. The applicant did not relay in any way that her mother has a problem with her sexuality and the applicant’s mother is living with her in Australia and has also applied for a protection visa. Further, the applicant lives with her mother but she did not have her as a witness to give evidence about her knowledge that the applicant was a lesbian or bi-sexual, nor did she provide any written documentation.
The applicant’s evidence to the Tribunal about her mother’s response to her sexuality commenced with the Tribunal member asking the applicant what her mother’s reaction was to what the applicant said her family members were saying about her sexuality. The applicant said (Tribunal Transcript p-11, line 46; p-12, lines 1-14):
Member: And what did your mother say about this?
Applicant: My mother don't say anything.
Member: What do you mean she didn't say anything?
Applicant: Because
Member: I mean, if people were harassing you and saying horrible things, how come your mother didn't say anything?
Applicant: My mum - my mum - my mum she always (indistinct). She never - she don't talk too much. Even though - even though they doing something to her, she doesn't talk.
Member: But I take it your mother knows that you're a lesbian or a bisexual, and what does she say about this?
Applicant: She always - she always - she - sometimes she said, 'Come back to the normal' - she try to advise me, but I say to her, 'Mum, it's me, who I am. I want to be myself. I tried to convince her. Right?---And then hopefully now she accept me. That's why- why she accept me.
The applicant’s counsel, in oral submissions, submitted that the applicant did not actually say that her mother accepts her. The first respondent’s counsel submitted that the question for the Court is not what the preferable interpretation of that passage in the evidence is but whether the Tribunal’s finding was open to it on the evidence. The Court agrees. To approach the matter otherwise would require the Court to engage in merits review.
The Court considers that on a fair reading of the applicant’s evidence, the Tribunal’s finding at [35] was one which was reasonably open to it on the evidence.
The applicant did not like men
The applicant contends that the Tribunal erred in finding at [31] that the applicant does not like men. The submission is that this finding was critical to the Tribunal’s finding that it did not accept that the applicant is a lesbian or bisexual. At [31] the Tribunal said:
31. First the applicant claimed in her protection visa application that she was a lesbian. She then said at the hearing she was bisexual, but later in the hearing she said she didn’t like men and that she only had sex once with her ex-husband and got pregnant.
It is not in contest that in her visa application the applicant said that she was a lesbian (CB 24-26).
At the hearing, the applicant gave the following evidence about her sexuality (Tribunal Transcript p-9, lines 37-47; p-10, lines 1-2):
Member: Are you not bisexual or are you bisexual?
Applicant: Yes, I'm bisexual because I can go with the woman, actually. Like, sometimes I feel I want a man, but I can't go with a man. So I'm more to - I'm more to woman.
Member: You said you didn't want to have sex with him or do anything with him. Was it because of him or because you don't like men?
Applicant: 1 don't like men. I'm more to woman.
Member: Because in your original protection claims, you said that you're a lesbian. Now you're married with a child and telling me that you're bisexual, now you're telling me that you don't like men.
Applicant: Yes.
Member: So I'm a bit confused?---Yes, because for me- because for me the easiest thing bisexual, lesbian, I think it's just, like, they're related, like.
The applicant’s counsel submitted that the Tribunal’s finding that the applicant does not like men was incorrect.
The Court considers, having regard to the passage read as a whole, the Tribunal’s finding at [31] was reasonably open to it.
No jurisdictional error is established on ground three.
Ground one
In ground one, the applicant contends that the Tribunal made a jurisdictional error because the primary facts it relied on in making its decision was not supported by any evidence.
For the reasons set out above in relation to ground three, no jurisdictional error is established on ground one.
Ground four: failure to afford procedural fairness by providing inadequate interpretation at the hearing
Section 425(1)(a) provides that if the Tribunal cannot make a decision favourable to the applicant on the material before it, then it must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In the notice inviting an applicant to a hearing, the Tribunal must notify the applicant that they are entitled to appear before the Tribunal to give evidence (s 426(1)(a)). Section 427(7) provides that:
(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
As Kenny J stated in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (“Perera”) at [20], if an applicant is not proficient in English, the applicant is effectively unable to exercise their right to give evidence unless an interpreter assists them, and the Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter. Kenny J concluded (at [20]) that, if an applicant is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7) that the communication proceeds through an interpreter.
The applicant contends, in ground four of the amended application, that the interpretation provided by the Tribunal was “wholly inadequate” and therefore failed to afford the applicant natural justice. These proceedings were commenced on 22 June 2023. This ground was raised for the first time in the amended application filed on 11 February 2025. In her affidavit filed on 11 February 2025, the applicant states:
4. My primary language is Malay. While I speak, read and write some English, I have difficulty following it and require an interpreter.
…
11. I had difficulty at times following the hearing. Many of the questions were posed directly to me in English and I felt that I had to respond back in English. The interpreter did not translate many of the questions in responses.
In the Response to Hearing Invitation the applicant indicated that she needed an interpreter in the Malay language (CB 73). The Tribunal’s hearing record shows that an interpreter in the Malay and English languages was arranged and was present for the hearing (CB 163-165). Accordingly, the complaint is not that the Tribunal did not provide the applicant with an interpreter in accordance with her request.
This is not a case, like Perera, in which the complaint was that the interpreter was, in effect, incompetent such that the interpretation service provided was inadequate in that sense. The complaint here is that the applicant responded to the Tribunal’s questions directly in English without the assistance or intervention of the interpreter and that the Tribunal Transcript indicates that the applicant was “clearly struggling to understand what is being asked, and at times the learned member is confusing the Applicant’s answers” (AS [38]) and that the “interpreter is effectively silent for much of the hearing, content for the Applicant to struggle her way through answering direct questions” (AS [38]). The applicant submitted that it was this “inadequacy” in the interpretation that led to what was said to be a fundamental misunderstanding of the applicant’s evidence about her relationship with Gee and her sexuality. The submission was that it was evident from the Tribunal Transcript that the applicant struggled to answer questions about those matters.
A review of the Tribunal Transcript shows that the Tribunal commenced by explaining to the applicant the role of the interpreter by saying as follows (Tribunal Transcript p-3, lines 26-37):
Member: Okay. It's important that you understand the role of the interpreter. The interpreter is here only to interpret what I say and what you say. They cannot provide advice or make suggestions to you or me about your claims or any other matters. Please let me know now or at any other stage during the hearing if you're having trouble in understanding the interpreter. It's best if we speak in short sentences, stopping frequently, so she doesn't have to remember as much before being able to interpret. Do you have any objections to the use of this particular interpreter for your hearing today. You need to speak up in a loud, clear voice?
Applicant: Okay.
Member: So, you don't have any objection to the use of this particular interpreter?
Applicant: No, I don't.
The applicant largely answered the Tribunal’s questions without the assistance of the interpreter. There were, however, the following instances in which the interpreter intervened, or their services were called upon:
(a)The member asked the applicant whereabouts in Malaysia she was born. The interpreter intervened with the answer ‘Johor’: Tribunal Transcript p-4, line 11;
(b)The member asked the applicant about her family moving from Kedah to Kuala Lumpur to which the applicant said: “We just move because I got a job from Kedah to Kuala Lumpur”. The member asked: “You got a job, or your father did?” to which the applicant replied: “No I got a job”. The member then said, “So maybe we should talk in Malay because, I’m confused”. The member asked another question about the move to Kuala Lumpur and the applicant answered the question directly in English: Tribunal Transcript p-4, lines 30-34;
(c)The member asked the applicant if her mother is living with her in Australia to which the applicant replied: “yes”. The member then asked the applicant: “And who else do you live with” to which the applicant asked: “Pardon?” The member repeated the question, and the interpreter interpreted the answer: “Me, my mother and my younger sibling. I’ve got a sibling here”: Tribunal Transcript p-5, lines 32-37. The applicant then continued to answer the questions that followed directly in English;
(d)The member asked the applicant about her employment in Kuala Lumpur. The applicant, describing her employment said: “And in the second one [job] I got a (indistinct) from the half government and half (indistinct)”. The transcript then shows that the interpreter intervened with the answer: “Private. Semi-government”: Tribunal Transcript p-6, lines 34-37. The applicant then continued to answer the questions that followed directly in English;
(e)The member asked the applicant about how she knew that her family disapproved of her and what they did to which the applicant answered: “You know you are a woman, and you can’t go with the woman as well. And they keep – they keep talking like that about me and what to say – how to say. Interpreter here?”. The member said: “Yes, the interpreter’s here”. The interpreter then says: “They traumatised me. They say, ‘You know you shouldn’t be doings this. You shouldn’t behave this way,’ which causes me a lot of stress”: Tribunal Transcript p-11, lines 32-41. The applicant then continued to answer the questions that followed directly in English;
(f)The member asked the applicant about the harm she said she had suffered in Malaysia. The applicant said: “I did not feeling harm or anything, it just – just gave me stress”. The Tribunal said: “Okay?” to which the applicant replied: “They yeah”. The interpreter intervened and said: “Emotional abuse”: Tribunal Transcript p-13, lines 32-36. The applicant then continued to answer the questions that followed directly in English;
(g)The member asked the applicant what she meant by her answer in the visa application to the question as to why she did not seek help from anybody and asked the applicant to explain what she meant by her answer. The member said: “Do you understand” to which the applicant replied: “Yes, I understand. But can I use my interpreter?”. The member replied: “Yes, you don’t need to ask”. The interpreter intervened and said: “She just ask for the question to be repeated, please”: Tribunal Transcript p-15, lines 15-20. The member repeated the question, and the applicant replied in English and then continued to answer the questions that followed directly in English;
(h)The member asked the applicant about what she fears most about going back to Malaysia. The applicant answered in English and at the end of that answer said: “… They (indistinct) same thing, same thing like before because now I can see when I’m here I can see how they, what they call…”. The interpreter intervened and said: “Okay discriminate”: Tribunal Transcript p-18, lines 15-18. The applicant then continued to answer the questions that followed directly in English;
(i)At the conclusion of the hearing, the member asked the interpreter to interpret the members’ explanation of the possible outcomes of the member’s deliberation: Tribunal Transcript p-20, lines 4-5.
It was made clear to the applicant at the commencement of the hearing that an interpreter had been provided, was present at the hearing and the role of the interpreter was explained to the applicant. The Court’s review of the Tribunal Transcript indicates that it was the applicant who chose to answer the member’s questions in English; there is no indication that the applicant was denied or prevented from using the services of the interpreter. On the contrary, when the applicant asked to use the interpreter, the Tribunal confirmed the presence of the interpreter and told the applicant that she did not need to ask to use the interpreter after which the applicant continued to answer the questions directly in English. Nor does the Court consider that it is evident from the transcript that the applicant was – as her counsel submitted – struggling to understand and answer the questions including about her sexuality and relationship with Gee and that the interpreter was “sitting back, allowing the applicant to struggle”. The transcript indicates that the applicant was able to engage at some length about those matters in response to the member’s questions and did not turn to the interpreter for assistance as the applicant had done on other occasions as noted above.
No jurisdictional error is established on ground four.
Ground five: failure to afford procedural fairness by not putting adverse inferences to the applicant
The applicant contends that the Tribunal in drawing the inference it did about the presence of the applicant’s motorcycle at her grandmother’s home in Malaysia, the applicant was denied procedural fairness because the matter was not drawn to the applicant’s attention for her to comment on before the inference was drawn (AS [41]-[43]) referring to Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).
At [34] of its Decision, the Tribunal said:
34.The applicant stated her extended family mock her since she posted on Facebook. She later said that the entire family had a WhatsApp group that they are all in. When the Tribunal asked her about the WhatsApp group, she said her family and her remain silent on the WhatsApp group. This makes no sense as to why the applicant would be in a group and not say anything, and in a group where the people in the group have mocked you. It also suggests that the applicant has an ongoing relationship with her extended family including those who she claims have mocked her. If they truly were mocking her or saying things about her then she wouldn’t engage with them and be in a group with them. Further, the applicant stated that her motorcycle is still at her grandmother’s home in Malaysia. This indicates an ongoing relationship with her grandmother.
The location of the applicant’s motorcycle arose when the Tribunal turned, towards the end of the hearing, to ask the applicant about her protection claims with respect to financial hardship. The applicant told the Tribunal that she owed money on a loan for her motorcycle. The Tribunal asked the applicant how much she still owes on that loan and where the motorcycle is now. The applicant told the Tribunal that the motorcycle was at her grandmother’s home.
The applicant’s contention is that the Tribunal should not have drawn the inference that the presence of the motorcycle at her grandmother’s home indicated an ongoing relationship with her grandmother without first putting that inference to the applicant. The Court disagrees for the following reasons.
It is well settled that procedural fairness does not require the Tribunal to give the applicant a running commentary of what it thinks about the evidence that is given so that an applicant has a further opportunity of criticising the decision maker’s mental processes (SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) at [48]). Prior notice is required where there are new issues or facts upon which a decision is likely to turn (as was the case in SZBEL). This is clearly not such a case. The issues on review were those raised by the applicant in her visa application and included her claim to be exiled from her family. The applicant’s relationship with her family including her grandmother was not a new issue. The evidence about the motorcycle was information the applicant herself gave at the hearing. For that reason, neither were the Tribunal’s obligations under s 424A of the Act enlivened.
No jurisdictional error is established on ground five.
CONCLUSION
Accordingly, for the reasons given above, the amended application is dismissed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 14 April 2025
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