COL18 (as Litigation Guardian for CJI23) v Minister for Immigration and Citizenship

[2025] FedCFamC2G 746

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

COL18 (as Litigation Guardian for CJI23) v Minister for Immigration and Citizenship [2025] FedCFamC2G 746

File number(s):

ADG 316 of 2023

Judgment of:

JUDGE GERRARD

Date of judgment:

23 May 2025

Catchwords:

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a claim clearly emerging on the material – membership of a particular social group – illogicality, irrationality or unreasonableness – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5J, 5L, 5L(c)(iii), 36(2)(a), 36(2)(aa), 36(2A), 36(2)(b), 36(2)(c), 424A, 476

Cases cited:

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387

AYY17 v Minister for Immigration & Border Protection (2018) 261 FCR 503

DBA17 v Minister for Immigration and Multicultural Affairs [2025] FCA 438

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

EHJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 683

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Division:

Division 2 General Federal Law

Number of paragraphs:

67

Date of last submission/s:

24 March 2025

Date of hearing:

25 March 2025

Place:

Adelaide

Counsel for the Applicant:

Dominic Wilcox

Solicitor for the Applicant:

Ray Turner Immigration Lawyers

Counsel for the First Respondent:

Jade Birman

Solicitor for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 316 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

COL18 (AS LITIGATION GUARDIAN FOR CJI23)

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	23 MAY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The application be dismissed.

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 GERRARD:

INTRODUCTION

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant her a Protection (Class XA) (subclass 866) visa (the visa). For the applicant to succeed in this Court, she must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, her application cannot succeed.

   BACKGROUND

3. The applicant first arrived in Australia on 21 May 2017 as the holder of an Electronic Travel Authority (Subclass 601) visa (Court Book (CB) 60). She is a Malaysian Tamil and was 10 years old when she arrived in Australia (CB 28-30).

4. On 26 June 2017, the applicant’s mother applied for a protection visa on her behalf (CB 15-51). The basis of the application was that the applicant (and her mother) feared her father would kidnap and/or sexually exploit her if they returned to Malaysia (CB 46-48).

5. On 23 August 2017, a delegate of the Minister refused to grant the applicant the visa (CB 60-73). The delegate found that, if returned to Malaysia, the applicant would be in her mother’s care and would have access to adequate protection from criminal behaviour by the Malaysian authorities, and further assistance from NGOs who assist vulnerable women and children (CB 68). Accordingly, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act) (CB 68-69).

6. On 4 September 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 74-80).

7. On 13 July 2023, the applicant was invited to a hearing scheduled for 3 August 2023 (CB 90-92). On 16 July 2023, the applicant (aged 16 at that time) responded to the hearing invitation indicating that she would attend the hearing along with her mother (CB 94-96).

8. On 3 August 2023, the applicant attended the Tribunal hearing. The applicant was unrepresented but was accompanied by her mother. Her mother gave oral evidence at the hearing with the assistance of a Tamil interpreter (CB 147).

9. On 31 August 2023, following the hearing, the Tribunal wrote to the applicant pursuant to s 424A of the Act and invited her to comment on or respond to information which had been provided by the applicant’s mother in her own protection visa application and review before the Tribunal, namely, police reports and a letter from the applicant’s grandmother and uncle (CB 108-109).

10. On 13 September 2023, the applicant responded to the s 424A invitation with a written statement and a number of supporting documents (CB 110-142).

11. On 18 September 2023, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 146-156).

12. On 4 October 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.

    THE TRIBUNAL’S DECISION

13. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.

14. The Tribunal began by identifying the visa under review (at [4]). The Tribunal noted that the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. The applicant and her mother were assisted by a Tamil interpreter (at [5]).

15. The Tribunal set out the applicant’s background, including that her mother had arrived in Australia in 2012 and applied for her own protection visa in 2016 (at [9]). The applicant herself arrived in Australia on 21 May 2017 and applied for a protection visa on 23 June 2017 (at [10]). The Tribunal noted that the applicant was 16 years old at the time of the Tribunal decision and that her mother was listed as her representative (at [13]).

16. The Tribunal noted that the applicant was invited to provide information before the hearing about her current claims but did not respond to this invitation (at [14]). The Tribunal also wrote to the applicant’s mother as her representative and advised that the Tribunal may wish to speak to the applicant separately from her mother and that the applicant could bring a support person to the hearing for that purpose (at [15]). At the commencement of the hearing, the applicant and her mother were reminded that they could have a support person present at the hearing while the applicant gave evidence, and that they could ask for an adjournment at any stage for that purpose, but this was not taken up by the applicant (at [16]).

17. The Tribunal summarised the applicant’s claims at [17]-[28], noting that her mother had completed the protection visa application. The applicant’s mother claimed that the applicant needs to be protected from being kidnapped by her father. The mother fears that the father will sexually exploit the applicant because he will do anything to get drugs (at [17]).

18. The Tribunal noted an incident in 2017 during which it is said the applicant’s father attended at her school (at [19]). The applicant was living with her grandmother at this stage, as her mother was in Australia awaiting the outcome of her protection visa application. The applicant did not initially know it was her father, having been estranged from him since she was six weeks old, but he was later identified by the school (at [18]-[20]). The applicant said her father was still waiting with three or four other men when she went to leave at the end of the day, but she ran to the bus and told her grandmother about this when she got home (at [21]). The school discussed the incident with the applicant’s family and it was decided that the applicant would stay at her aunt’s house (at [22]-[23]). The father found out where the applicant was and contacted the aunt, saying he was coming to the house. The applicant did not feel safe because she was aware of her father’s history with drugs, and went to stay with a different aunt (at [23]). Her father again located her and came to the house, threatening the aunt, but left when he was told that the applicant was not there (at [24]).

19. The family made a police report and the applicant returned to stay with her grandmother. Less than two weeks later, the applicant left Malaysia to be with her mother in Australia (at [25]). The applicant claims her father continued to visit and threaten her grandmother after she left (at [26]). She says she cannot return to Malaysia because she will not be safe and she does not think the police will protect her because her father knows everyone in the town (at [27]-[28]).

20. The Tribunal noted the applicant had provided a number of documents, including (but not limited to) copies and translations of police reports, and a statement said to be from her grandmother and uncle (at [29]). In response to the s 424A invitation, the applicant provided a further written submission, various photographs and documents pertaining to the health of family members in Malaysia, a document which purports to be her father’s police report, a statement from the applicant’s former school teacher, and identity cards of her grandmother and uncle (at [30]).

21. The Tribunal had regard to the various police reports and statements, as well as to the applicant’s mother’s own oral evidence (at [32]-[39]). The Tribunal noted that some of the material was from her mother’s file and had not been provided by the applicant, but was put to her under s 424A of the Act (at [38]). The Tribunal explained that these police reports do not state that her father attempted to enter the property and try to take her, and that if relied upon, the Tribunal would find that he simply left the property after speaking or arguing with the mother or grandmother, and that the applicant would therefore not be at risk of harm from her father if she returned to Malaysia (at [38]).

22. The Tribunal accepted that the applicant’s father went to her school when she was 10 years old and wanted her to go with him. The Tribunal found that the father left the school after being given a few minutes with the applicant. The Tribunal accepted that the teacher then came to the grandmother’s house because they were concerned about the father attending the school (at [40]-[41]). The Tribunal did not accept that the teacher was afraid of the father because he appeared drunk, or that he punched a teacher as had been previously claimed, as this was not reported to the police (at [41]). The Tribunal did, however, accept that the father has a criminal history due to drug and alcohol use (at [42]).

23. The Tribunal accepted that the father went to the grandmother’s house and that it is possible he went to the aunt’s house (at [43]). However, the Tribunal did not accept that he entered the grandmother’s house or attempted to enter the house to access the applicant in 2017, as this was not recorded in the police reports and was inconsistent with the applicant’s own evidence (at [44]).

24. The Tribunal accepted that the father had approached the applicant at school and at the places she was living, but found that he had left when she refused or when the teachers intervened (at [46]). The Tribunal also accepted that the father may have approached the grandmother since the applicant departed Malaysia, but did not accept that he threatened to kill or harm her (at [47]).

25. While the Tribunal accepted that the applicant feared her father would continue to seek contact with her and that he may be intoxicated or under the influence of drugs when he does so, it did not accept that the father would forcibly take the applicant or sell her to fund his drug habit. The Tribunal found this would be inconsistent with the evidence that he had attempted to see the applicant but that he left once she refused or when the teachers intervened (at [48]-[49]).

26. The Tribunal found that the applicant would reside with her grandmother if returned to Malaysia and that she would be supported by her family there, although it was accepted that she may face some difficulties reintegrating into the Malaysian school system having been in Australia since 2017 (at [50]-[51]).

    Refugee criterion

27. The Tribunal then set out the relevant criteria for the grant of a protection visa and considered whether the applicant met the definition of ‘refugee’ for the purpose of s 36(2)(a) of the Act.

28. The Tribunal set out the criteria for ‘well-founded fear of persecution’ as prescribed by s 5J and considered whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (at [57]-[64]). With respect to ‘membership of a particular social group’, the Tribunal considered whether the applicant may fear harm as a person seeking to reintegrate into the Malaysian school system, or as a person under the age of 18 (at [62]-[63]). The Tribunal accepted that the applicant may face some difficulty reintegrating at school but concluded that such fear would not amount to serious harm (at [62]). Similarly, as a person under 18, the applicant could live with her grandmother and would not face a threat to her capacity to subsist (at [63]).

29. The Tribunal found that the applicant would not face serious harm because of her membership of these particular social groups, or for any of the prescribed reasons under s 5J (at [64]).

30. The applicant therefore did not meet the refugee criteria in s 36(2)(a).

    Complementary protection criterion

31. The Tribunal then considered the applicant’s claims against the complementary protection criterion in s 36(2)(aa), including setting out the meaning of ‘significant harm’ under s 36(2A) (at [65]-[71]).

32. The Tribunal did not accept the applicant’s claims that her father would kidnap her, exploit her sexually for money, or sell her (at [72]). The Tribunal did, however, accept that the applicant had suffered mental stress and fear as a result of her father’s attempts to contact and communicate with her, but that any such stress or fear she would face on return to Malaysia would not meet the threshold for ‘significant harm’ as defined by the Act (at [72]-[73]).

33. The Tribunal found that the applicant therefore did not meet the complementary protection criterion in s 36(2)(aa).

34. The Tribunal was also required under ss 36(2)(b) and (c) to consider whether the applicant was a member of the family unit of a person who holds a protection visa (at [74]). Noting that the applicant’s mother had been refused a protection visa and was presently seeking review of that decision in this Court, the Tribunal found that the applicant was not a member of such a family unit pursuant to ss 36(2)(b) or (c) (at [75]).

35. Having regard to the above, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (at [76]).

    APPLICATION TO THIS COURT

36. On 4 October 2023, the applicant filed an application in this Court seeking review of the Tribunal’s decision.

37. The applicant now relies on a further amended application which was filed on 10 March 2025. That further amended application contains the following two particularised grounds of review:

    1.The Tribunal’s decision that the applicant was not a refugee for the purposes of s 36(2)(a) of the Migration Act 1958 (the Act) was affected by jurisdictional error as the Tribunal mischaracterised, or alternatively failed to give genuine consideration to the applicant’s claims as to her fear of persecution due to her membership of a particular social group:

    Particulars

    i.The Tribunal assessed the applicant’s claims as a member of the following particular social groups:

    •persons who have been away from the Malaysian education system for a period of time (at [62]);

    •persons under 18 years of age (at [63])

    ii.The Tribunal failed to have regard to the applicant’s fear of persecution due to her membership of the following social groups:

    •child victims of attempted kidnapping;

    •children of drug addicts

    iii.The applicant’s fear of persecution due to her membership of the particular social groups particularised above was clearly raised on the applicant’s evidence and in her application;

    iv.The Tribunal’s mischaracterisation of the applicant’s claims, or alternatively its failure to consider her claims, amounted to a material jurisdictional error.

    2.The Tribunal’s decision that the applicant was not entitled to complementary protection was affected by jurisdictional error as it was unreasonable, illogical or irrational.

    Particulars

    i.The Tribunal found that it did not accept the claims that the applicant’s father will kidnap her;

    ii.Accordingly, it did not consider whether the applicant’s fear of kidnapping amounted to significant harm for the purposes of s 36(2)(aa) of the Act.

    iii.The Tribunal gave no reasoning or justification for this finding. It was at odds with earlier factual findings the Tribunal had made that the applicant’s father had attended her school and places she was living and wanted her to go with him;

    iv.The finding was therefore unreasonable, illogical or irrational and amounted to a material jurisdictional error.

38. The materials before the Court include:

    ·The further amended application for judicial review filed by the applicant on 10 March 2025;

    ·The affidavit of the applicant filed on 4 October 2023 (taken as read and in evidence at the hearing on 25 March 2025);

    ·The affidavit of Renee Jane Quinn deposed on 10 February 2025 and filed on 12 February 2025 (taken as read and in evidence at the hearing on 25 March 2025);

    ·The affidavit of Jade Pnina Birman affirmed and filed on 25 March 2025 (taken as read and in evidence at the hearing on 25 March 2025);

    ·A Court Book numbering 157 pages (marked as Exhibit 1);

    ·Written submissions filed on behalf of the applicant on 10 March 2025; and

    ·Written submissions filed on behalf of the Minister on 24 March 2025.

    CONSIDERATION

39. As outlined above, the further amended application for judicial review contains two particularised grounds of review. Ground one relates to the Tribunal’s findings in relation to the applicant’s refugee claim under s 36(2)(a), whilst ground two relates to the Tribunal’s findings in respect of the applicant’s complementary protection claim under s 36(2)(aa).

    Ground one

40. The applicant argues that the Tribunal mischaracterised or failed to give genuine consideration to the applicant’s fear of harm as a member of two distinct particular social groups.  In assessing the applicant’s fear of harm as a member of a particular social group, the Tribunal had regard to two particular social groups, namely, people who would have to reintegrate into the Malaysian education system, and people under the age of 18. However, the applicant argued that the Tribunal failed to assess the applicant’s claimed fear of harm as a member of two further particular social groups, being child victims of attempted kidnapping and children of drug addicts. Counsel for the applicant accepted that the applicant had not claimed before the Tribunal that she was a member of these groups, or that they met the criteria for being a particular social group. However, it was submitted that these were claims that arose on the face of the protection visa application, the applicant’s evidence and the factual findings which had been made by the Tribunal.

1. The applicant submitted that because these claims clearly emerged on the material, the Tribunal’s failure to consider them amounted to a constructive failure to exercise jurisdiction (citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (Dranichnikov) and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE)).

2. This Court recently set out the authorities which guide the principles in respect of the requirement to consider unarticulated claims arising on the material in EHJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 683 as follows:

   [34] It is clearly the case that a “failure to respond to a substantial, clearly articulated argument relying upon established facts” is a breach of procedural fairness (Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24]).

   [35] In NABE, it was explained that this extends to an unarticulated claim which clearly emerges on the materials (at [58]):

   The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it — Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

   [36] The application of the relevant principles to a body such as the IAA were explained by the Full Court of the Federal Court in AYY17 v Minister for Immigration & Border Protection (2018) 261 FCR 503 as follows (emphasis in original):

   [17] By s 473CC of the Migration Act, the IAA is required to “review” the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s 473DB of the Migration Act.

   [18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

   •The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

   •The Tribunal is only required to consider such claims where they are either:

   (a) the subject of substantial clearly articulated argument, relying on established facts; or

   (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

   •These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

   … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]–[61] per Black CJ, French and Selway JJ).

   (Emphasis added.)

   •As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]–[68]):

   (a) such a finding is not to be made lightly (NABE at [68]);

   (b) the fact that a claim might be said to arise from materials is not enough (NABE) at [68]);

   (c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection per Markovic J (at [37]–[38])). In SZUTM, Markovic J said:

   While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

   Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

   (d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

   (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

3. In this matter, the ‘established facts’ relied upon by the applicant were the Tribunal’s acceptance that the applicant feared her father seeking to contact her at her school and that he may be intoxicated or under the influence of drugs, her father’s criminal history, and that he had previously approached her school wanting her to leave with him which led to the intervention of teachers and the filing of a police report. Those matters, the applicant argued, should have led the Tribunal to consider that the applicant was at risk because she was a member of the particular social groups of child victims of attempted kidnappings and children of drug addicts.

4. ‘Membership of a particular social group other than family’ is governed by s 5L of the Act which provides that:

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)       a characteristic is shared by each member of the group; and

   (b)      the person shares, or is perceived as sharing, the characteristic;

   (c)       any of the following apply:

   (i)        the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)      the characteristic distinguishes the group from society; and

   (d)      the characteristic is not a fear of persecution.

5. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 241, Dawson J stated:

   …A particular social group…is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.

6. In Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 at [36] (per Gleeson CJ, Gummow and Kirby JJ), the High Court described the task for determining whether a group can be classified as a particular social group as follows:

   …First, the group must be identifiable by a characteristic or attribute common to all members of the group. Second, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Third, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.

7. Professor Goodwin-Gill in The Refugee in International Law (Goodwin-Gill GS, McAdam J, Dunlop E (4th ed, Oxford University Press, 2021)) makes the following observation at [117]-[118]:

   There is probably no single coherent definition, but rather a set of variables, a ‘range of permissible descriptors’. These include, for example, (1) the fact of voluntary association, where such association is equivalent to a certain value and not merely the result of accident or incident, unless that in turn is affected by the way it is perceived; (2) involuntary linkages, such as family, shared past experience, or innate, unalterable characteristics; and (3) the perception of others.

8. Goodwin-Gill goes on to observe (at [118]):

   [I]t helps to emphasise, not so much that the group is, as it were, ‘set apart from society’, as that it is essentially a group within society which is faced with persecution within the social context of that very society (including its attitudes, prejudices, and actions).

9. The applicant submitted that s 5L(c)(iii) of the Act is particularly relevant since these groups share a characteristic which distinguishes them from society. Counsel submitted that the group ‘victims of attempted kidnapping’ is “cognate” to some of the more accepted categories of social group for the purpose of s 5L, including victims of domestic violence, being people who have been subjected to some form or force of violence. It is not her fear of persecution that qualifies her, but rather her status as a victim of her father’s conduct. Counsel submitted that the same application of the s 5L definition applies to the particular social group of ‘children of drug addicts’.

10. The Tribunal accepted that the applicant’s father had “some form of criminal history” and that this was due to drug and alcohol use. The Tribunal also accepted that the father had attempted to take the applicant with him from the school and from the places she was staying. The Tribunal accepted that, on both occasions, the father’s conduct required intervention from the school or from a family member. It is the applicant’s submission that, having regard to its extensive quoting of the police reports, the Tribunal implicitly accepted that the incident at the school gave rise to the police report and should be classified as an attempted kidnapping. The applicant submitted that the Tribunal, having made the findings that it did, was required to consider the applicant’s fear of harm as a member of those two further particular social groups.

11. The Minister submitted that this ground should be rejected on the basis that the claims now articulated were not expressly raised and did not arise from the material before the Tribunal, such that the Tribunal was therefore not required to consider them (NABE at [58]). The applicant did not claim before the Tribunal that any such particular social groups existed, nor that she was a member of these particular social groups or feared harm because of her membership of such groups. The applicant’s claims did not raise a “substantial, clearly articulated argument relying on established facts” that she had a fear of being persecuted for reasons of her membership of those particular groups, as required by Dranichnikov. The Minister submitted that ground one is simply an attempt to re-frame the applicant’s claims, such as to bring them within a particular social group in circumstances where the claims were not previously presented to the Tribunal in such a way.

12. Furthermore, counsel for the Minister cast doubt on whether such particular social groups even existed for the purpose of s 5L, however the Tribunal was ultimately not required to make a finding about that because such a claim did not arise on the materials. It is immaterial whether those particular social groups exist or not because the Tribunal had found that the applicant’s claims did not amount to serious or significant harm, and the applicant did not make any express claim as to membership of those particular social groups.

13. As observed, counsel for the applicant appropriately conceded that it was never part of the applicant’s articulated case that she was at risk of harm because she was the member of the particular social groups of children of attempted kidnappings and children of drug addicts. As to the first of these, having regard to the authorities canvassed above, it is difficult to conceive of this as a particular social group. The Court accepts that it is easier to see how the children of Malaysian drug addicts could be seen to be a particular social group. However, the difficulty the applicant faces in respect of both of these is that there was simply no evidence before the Tribunal that these were particular social groups and, importantly, that there was evidence that members of these particular social groups were at risk of harm.

14. There was nothing at all which might lead the Tribunal to consider that these were particular social groups within the meaning of the Act or authorities. It is certainly not the case that a claim arose on the materials before the Court.

15. The Court accepts the Minister’s submission that the applicant’s claimed fear of harm as a member of these particular social groups did not arise on the face of the materials before the Tribunal. In DBA17 v Minister for Immigration and Multicultural Affairs [2025] FCA 438 (DBA17), Wigney J observed at [35]:

    The appellant never clearly or explicitly characterised his claims in terms of being a member of any particular social group or groups. In those circumstances, it was not necessary for the Tribunal to make findings about, or frame its reasons in terms of, the appellant’s membership of any social group. The question is whether the Tribunal fairly dealt with the substance of the appellant’s claims. It is clear from the Tribunal’s reasons, read fairly, that the Tribunal did address, and make findings concerning, the substance of all of the appellant’s claims in support of his protection visa application.

16. The observations made by Wigney J in DBA17 apply here. The question is whether the Tribunal addressed the substance of the claims made by the applicant in respect of the incidents involving the applicant’s father and his conduct. It was not required to expressly consider whether she was at risk because child victims of attempted kidnapping or children of drug addicts were particular social groups at risk, because that was not how the applicant articulated her claim.

17. Ultimately, the Tribunal did not make a finding that the incidents with the father amounted to attempted kidnapping or that the applicant would be at risk of being kidnapped if she returned to Malaysia. As the Tribunal did not consider the applicant to be a child victim of attempted kidnapping, it therefore found that there was not a well-founded fear of persecution in that respect. The Tribunal’s finding that the applicant was not at risk of being kidnapped by her father was rational and open to the Tribunal on the material before it.

18. Similarly, although the Tribunal did not expressly consider whether the applicant was a member of a particular social group in terms of children of drug addicts, the Tribunal nevertheless considered the substance of the applicant’s claimed fears in this respect. The Tribunal accepted that the father had a criminal history due to alcohol and drug use. The Tribunal also accepted that the applicant feared he would attempt to contact her again and that he may be under the influence of drugs at such time, but the Tribunal did not accept that he would forcibly take her or sell her to fund his drug habit. Once again, these were findings that were rational and open to the Tribunal.

19. No jurisdictional error arises in respect of ground one.

    Ground two

20. By ground two, the applicant alleges that the Tribunal made an unreasonable, illogical or irrational finding (specifically at [72] of its decision) by not accepting that the applicant’s father would kidnap her if she returned to Malaysia. The relevant finding is as follows:

    In this case, the Tribunal does not accept the claims that the applicant’s father will kidnap her or exploit her sexually for money or sell her. It does accept that he has attempted to contact her and communicate with her which causes some mental stress and fear.

21. The applicant submitted that such a finding was unreasonable and, in fact, at odds with the Tribunal’s earlier factual finding that the applicant’s father had attended at her school and at the places where she was staying, and wanted her to go with him on those occasions. In light of the Tribunal’s earlier finding, the applicant submitted that the Tribunal was therefore required to provide an evident and intelligible justification for not accepting the applicant’s claim (citing Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437). The applicant submitted that the Tribunal’s failure to do so means it did not properly consider whether the applicant’s fear of kidnapping by her father amounted to significant harm for the purposes of s 36(2)(aa), and that the Tribunal’s finding that the applicant did not meet the criteria for complementary protection lacked an intelligible justification.

22. The Tribunal’s finding at [72] must be read in the entire context of the decision. The Tribunal had earlier in the decision carefully considered the evidence before it as to the father’s attempts to see the applicant at her school and at the places where she was staying. It made a series of very clear findings in respect of these attempts. Those findings are set out below:

    [40] The Tribunal accepts that the teacher came to her grandmother’s home because they were concerned about her father attending the school.

    [41] The Tribunal accepts the applicant’s father went to her school when she was 10 years old and wanted her to go with him. As it is not mentioned in the teacher’s statement, the Tribunal rejects the teacher was afraid of him because he appeared drunk. However, he left when the teachers arrived. The Tribunal rejects the claim the applicant’s father punched a teacher as this is not reported to the police by the grandmother, the applicant or the teacher. The Tribunal does not accept that if this occurred it would not have been reported. The Tribunal finds that after being given a few minutes with the applicant he left the school.

    [42] The Tribunal accepts the applicant’s father has some form of criminal history and accepts her account that this is due to drug or alcohol use.

    [43] It is accepted that the applicant’s father went to her grandmother’s house, and that it is possible he went to her aunt’s house.

    [44] The Tribunal does not accept that the applicant’s father entered her grandmother’s house or attempted to enter the house to access the applicant in 2017. This is not consistent with the applicant’s evidence that her father went to her grandmother’s house but left when she would not go out to see him. The applicant gave evidence that he went to her aunt’s house and left. If he had attempted to enter the house, this would be included in the police reports made by the applicant and her grandmother. The letter from the applicant’s grandmother is not supported by the mother’s police report in which she states that he left the house when he became angry. It is written in English and is stated to be written by ‘her mum’ (i.e. the grandmother) and the applicant’s uncle.

    …

    [46] The Tribunal finds that the applicant’s father had approached her school and at the places she was living and wanted her to go with him or to speak with him. When she refused, or the teachers intervened, he went away.

    [47] The Tribunal accepts he may have approached he grandmother since she left Malaysia to ask about her but does not accept he has threatened to kill or harm her.

    [48] While the Tribunal appreciates that the applicant and her mother are concerned about her father’s drug use, it does not accept their assertions that he would forcibly take the applicant or sell her to fund his drug habit. This is not consistent with the evidence that the teachers intervened so that she did not go with her father, and that he left after wanting to see her at her grandmother’s house and aunt’s house when refused.

    [49] The Tribunal accepts that the applicant does fear her father seeking to contact her at her school or where she is living and that he may be intoxicated or under the influence of drugs when he does so.

1. It was a matter for the Tribunal to weigh the evidence as to those events as it saw fit and to make findings of fact. It can be seen from the above that the Tribunal considered the information in the police reports, the teacher’s statement, letters from family members and the applicant’s own evidence and found that, on each occasion where the applicant’s father had attempted to see her, he went away after being refused. The Court accepts the Minister’s submission that the Tribunal’s finding is in no way akin to a finding that the applicant was a victim of attempted kidnapping.

2. In the Court’s view, it was not unreasonable, illogical or irrational for the Tribunal to find that the applicant would not be kidnapped by her father if she were to return to Malaysia. Further, to the extent that the applicant invites the Court to conclude that the Tribunal should have found that her father would kidnap her, this argument rises no higher than a request for the Court to engage in impermissible merits review.

3. No jurisdictional error arises in respect of ground two.

   CONCLUSION

4. The further amended application for judicial review, supporting affidavit, and written and oral submission advanced by the applicant, have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.

5. Accordingly, the application is dismissed.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       23 May 2025