DGP18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 586

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DGP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 586

File number(s):

MLG 1826 of 2018

Judgment of:

JUDGE J YOUNG

Date of judgment:

24 April 2025

Catchwords:

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of first respondent – whether Tribunal failed to comply with Ministerial Direction No 56 – found the Tribunal expressly referred to Direction 56 and considered country information to the extent it was relevant – whether the Tribunal erred by discounting the third applicant’s evidence on the basis of its adverse credibility findings in respect of the primary applicants – found it was open for the Tribunal to give no weight to the evidence of the third applicant – whether the Tribunal was required to put adverse credibility findings about the primary applicants to the third applicant pursuant to s 424A of the Migration Act 1958 (Cth) - found adverse credibility findings is not “information” for the purposes of s 424A – found no jurisdictional error on behalf of the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5H(1), 5J(1), 36(2), 65, 424A, 474, 476, 499

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2

Migration Regulations 1994 (Cth) cl 1.12(4)

Cases cited:

BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485

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

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549

Division:

Division 2 General Federal Law

Number of paragraphs:

69

Date of hearing:

13 March 2025

Place:

Melbourne

Solicitor for the Applicants:

Self-represented litigants

Counsel for the First Respondent:

Mr Barrington

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 1826 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DGP18

First Applicant

EBX19

Second Applicant

EBY19 (and others named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE J YOUNG
DATE OF ORDER:	24 APRIL 2025

THE COURT ORDERS THAT:

1.The First Respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”.

2.The Second Respondent’s name be amended to “Administrative Review Tribunal”.

3.The Application filed on 22 June 2018 be dismissed.

4.The Applicants pay the First Respondent’s costs fixed in the sum of $8,371.30.

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 J YOUNG

1. Before the Court is an Application filed on 22 June 2018, in which the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 31 May 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Protection (subclass 866) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

   BACKGROUND

2. The first applicant, DGP18, is the step-father of the wider family unit. The second applicant, EBX19, is the mother. The third applicant, EBY19, is the mother’s eldest daughter from a prior relationship. The fourth and fifth applicants, EBZ19 and ECA19 respectively, are daughters of the mother from a previous relationship.

3. The applicants are citizens of Malaysia.

4. On 12 August 2015, DGP18 entered Australia on a visitor visa.

5. On 8 September 2015, EBX19 entered Australia on a visitor visa.

6. DGP18 and EBX19 are married (Applicants).

7. On 11 November 2015, the Applicants applied for the Visa (Visa Application). The Applicants relied upon EBX19’s claims to fear harm upon return to Malaysia from her ex-husband. Attached to the Visa application was also a written submission provided by the Applicants’ representative which further set out their claims for protection. Relevantly, those claims can be summarised as:

   (1)EXB19 came to Australia to join her husband (DGP18) who was on holidays for three months;

   (2)EXB19 was threatened by her ex-husband since their divorce in 2010. The ex-husband has been both physically and verbally abusive towards EXB19;

   (3)EXB19 sustained injuries when her ex-husband hit her car in an attempt to kill her;

   (4)EXB19 fears for her life should she be required to return to Malaysia as her ex-husband may find her and attempt to kill her again;

   (5)EBX19 was granted an intervention order against her ex-husband, however the ex-husband will not comply with it, stating that the power of the authorities in Malaysia will not be enough to protect her;

   (6)EXB19 tried to seek protection of the authorities but it did not work and her ex-husband did not fear the authorities because he knows they can be bribed; and

   (7)EXB19 attempted to relocate but her ex-husband would not leave her alone and he became very jealous when she remarried and claims he recently became more abusive when he discovered her pregnancy.

8. On 21 December 2015, the Applicants gave birth to a child (DGQ18).

9. On 5 March 2016, EBX19’s three children from a previous relationship (EBY19, EBZ19 and ECA19) arrived in Australia on visitor visas (the Children).

10. On 29 April 2016, the Children and DGQ18 made separate applications for a Visa, each relying on the protection claims of their mother as set out in the Visa Application. The applications were accompanied by a statutory declaration of the applicants’ mother dated 27 April 2016. On 3 May 2016, these applications were incorporated into the Visa Application as members of EBX19’s family unit.

11. On 29 April 2016, DGQ18 applied for a Visa separately. This application was subsequently joined to the Visa Application and DGQ18 made no separate claims.

12. On 2 June 2016, the Delegate refused to grant the Applicants, the Children and DGQ18 the Visa.

13. On 20 June 2016, the Applicants applied to the Tribunal for review of the Delegate’s decision and included the Children, but not DGQ18, in this application. On the same day, a separate application for review was lodged with the Tribunal on behalf of DGQ18.

14. On 10 April 2017, the Applicants gave birth to another child (DGR18).

15. On 11 August 2017, the Tribunal emailed the Applicants inviting the Applicants to attend an in-person hearing on 15 September 2017 at 9.30am.

16. On 15 September 2017, the Applicants, the Children and DGQ18 attended the hearing and gave evidence with the assistance of an interpreter in the Malay and English languages.

17. On 14 December 2017, DGR18 applied for a Visa separately.

18. On 17 May 2018, the Tribunal granted the Applicants and Children an extension of time until 30 May 2018 to lodge a post-hearing written submission.

19. On 29 May 2018, the Applicant’s appointed representative provided a post-hearing written submission.

20. On 31 May 2018, the Tribunal affirmed the decision of the Delegate not to grant the Applicants and the Children the Visas.

21. On 1 June 2018, the Tribunal affirmed the decision of the Delegate not to grant DGQ18 and DGR18 the Visas.

    TRIBUNAL DECISION

22. The Tribunal issued its statement of decision and reasons on 31 May 2018 (Tribunal Decision).

23. At paragraph [9] of the Tribunal Decision, the Tribunal noted that in accordance with Ministerial Direction No 56 (Direction 56), made under s 499 of the Act, the Tribunal had taken into account policy guidelines and relevant country information to the extent that they were relevant to the decision under review.

24. At paragraphs [11] – [39] of the Tribunal Decision, the Tribunal summarised the applicants’ claims and evidence.

25. At paragraphs [42] – [48] of the Tribunal Decision, the Tribunal considered the structure of the family unit. The Tribunal accepted that the Applicants are in a genuine spousal relationship and thus the first applicant satisfies cl 1.12(4) of the Migration Regulations 1994 (Cth) (Regulations) as he has membership of the same family unit as the second applicant. While the Tribunal accepted that the second applicant is the biological mother and the first applicant is the step-father of the third, fourth and fifth applicants, the Tribunal found that the third applicant did not satisfy being wholly or substantially dependent on the Applicants as required by sub-reg 1.12(4)(d)(c). The Tribunal found that the third applicant did not have a membership in the same family unit and thus could not satisfy ss 36(2)(a) or 36(2)(aa). The Tribunal was satisfied that the fourth and fifth applicants satisfied sub-reg 1.12(4)(b) and therefore may be eligible to satisfy ss 36(2)(b) or 36(2)(c), if one of the applicants in the review application were found to satisfy s 36(2)(a) or 36(2)(aa).

26. At paragraphs [49] – [59] of the Tribunal Decision, the Tribunal stated that it had considerable credibility concerns of the Applicants and only accepted limited personal circumstances including that the Applicants were born in Malaysia, were practicing Muslims and are ethnically Malay Malaysians.

27. At paragraphs [61] – [65] of the Tribunal Decision, the Tribunal indicated that its concerns regarding credibility were related to the Applicants critical or dispositive claims pertaining to fears of domestic violence by the second applicant’s ex-husband whom she divorced in 2010. The Tribunal found that the second applicant’s evidence regarding a number of incidents were inconsistent, in particular, the evidence given about an incident in November 2010, the subsequent frequency of physical harm, the intervention order, the characterisation of the ex-husband both prior and following the divorce and the second applicant’s travel and residential history.

28. At paragraphs [65] – [72] of the Tribunal Decision, the Tribunal noted that the Applicants’ credibility was fundamental to its determination of the review application before it and noted that it exercise caution in the weight that it placed on inconsistencies and other credibility concerns. The Tribunal referred to a DFAT report which provided guidance pertaining to domestic violence in Malaysia. The Tribunal accepted that the second applicant’s first marriage was unhappy but did not accept her characterisation that the marriage was one of persistent verbal and physical abuse, nor did it accept the claim that the ex-husband would be likely to harm the applicants in the future. The Tribunal did not accept that the authorities would not provide effective protection. The Tribunal noted that the second applicant did not seek an intervention order over a five year period during which she claimed intimidation.

29. Accordingly, at paragraphs [72] – [77], the Tribunal stated that on a cumulative basis of the abovementioned adverse findings, the Tribunal did not accept that the applicants had any genuine personally held or actual fears of persecution arising from domestic violence, religion or for any other reasons pursuant to s 5J(1)(a) now, or in the foreseeable future, even if required to return to Malaysia. The Tribunal also found that there were no substantial reasons to indicate that the applicants would face a real risk of significant harm arising from claims of past domestic violence should they be required to return to Malaysia.

30. At paragraphs [78] – [84] of the Tribunal Decision, the Tribunal considered whether the third applicant would face a real chance of serious harm for any reasons pursuant to s 5J(1)(a) of the Act or whether she was eligible for complementary protection visas having found that she was not a member of the same family unit. The Tribunal noted that the third applicant claimed that she feared her biological father may harm her, although he had not in the past, she claimed he had made threats in the past and that he may harm her if she returned out of spite. The Tribunal found based on the prior adverse credibility findings of the first and second applicant that it could not accept the third applicant’s claims and found that she did not have any genuine personally held fears of persecution on such claims which the Tribunal found to be fabricated. The Tribunal noted that the third applicant did not provide any other reasons that would indicate she would be harmed pursuant to s 5J(1)(a), nor was there any residual claims to consider, but for her concern that she would struggle to re-join formal training to complete a trade certificate, which the Tribunal did not consider would cause her significant or serious harm.

31. At paragraph [85] of the Tribunal Decision, the Tribunal found that there were no residual claims that would indicate that the applicants would face a real chance of serious harm on the basis of their religion as Muslims, their ethnicity as Malays or their political opinion, imputed or otherwise or any other reason that would satisfy s 36(2)(a). The Tribunal also found there to be no other reasons that the applicants would face a real chance of significant harm of any kind which would satisfy s 36(2)(aa).

32. At paragraph [86] of the Tribunal Decision, the Tribunal noted that as a result of the adverse credibility findings, the Tribunal did not accept that the applicants faced any real chance of serious harm from domestic violence or for any further reasons provided by s 5J(1)(a) of the Act in the reasonably foreseeable future, should they be required to return to Malaysia.

33. At paragraph [87] of the Tribunal Decision, the Tribunal found that the applicants do not have a well-founded fear of persecution that would satisfy ss 5J(1)(a), (b) or (c) nor are they persons with respect of whom Australia has protection obligations under s 36(2)(a) or fall within the refugee requirements pursuant to s 5H(1).

34. At paragraph [88] of the Tribunal Decision, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being required to return to Malysia, that they would suffer the kind of harm required by s 36(2)(aa).

35. At paragraph [89] of the Tribunal Decision, the Tribunal accepted that DGQ18 and DGR18 have interests in this review application but found that although it is also accepted that the first, second, fourth and fifth applicants were part of the same family unit, DGQ18 and DGR18 will not satisfy ss 36(2)(b) or (c) on account of the members of the same family unit not satisfying ss 36(2)(a) or (aa).

36. Accordingly, the Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act.

37. Accordingly, at paragraph [91] the Tribunal affirmed the decision of the Delegate not to grant the applicants protection visas.

    APPLICATION FOR JUDICIAL REVIEW

38. The applicants applied for judicial review of the Tribunal Decision on 22 June 2018. The Application contained the following ground for judicial review (without amendment):

    1.The tribunal did not take a relevant matter into consideration when making an assessment of the protection visa, therefore resulting in a decision affected by jurisdictional error.

    a.Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act 1958 states that: Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision.

    b.The Tribunal in its capacity to review omitted any reference to the DFAT report throughout the decision record.

    c.The Tribunal did not exercise its capacity to review under Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act

    d.Thus failing to take in a relevant consideration.

39. An affidavit annexing a copy of the Tribunal Decision was also filed in support of the Application.

40. No other material was filed by the applicants in support of the Application.

41. The Minister filed a Response on 29 August 2018 seeking orders that the Application be dismissed and orders as to costs on the ground that the Tribunal Decision is not affected by jurisdictional error.

42. The Minister also relied on written submissions filed on 26 February 2025 and a list of authorities filed on 27 February 2025.

    The hearing

43. The hearing took place on 13 March 2025

44. As set out above, the Applicants and the Children in this matter are the family unit of DGQ18 (MLG1844/2018) and DGR18 (MLG1845/2018).

45. The applications for judicial review in MLG1844/2018 and MLG1845/2018 were heard concurrently with the present Application.

    STATUTORY FRAMEWORK

46. A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

47. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].

    CONSIDERATION

    Ground 1

48. By Ground 1 the Applicants contend that the Tribunal erred by failing to comply with Direction 56 which required the Tribunal to have regard to relevant country information, and thereby failed to comply with s 499 of the Act. The Applicants submit that by omitting any reference to the relevant DFAT country report, the Tribunal failed to take into account a relevant consideration.

49. As correctly submitted by the Minister, at paragraph [9] of the Tribunal Decision, the Tribunal expressly referred to Direction 56 and said that it had considered relevant country information prepared by DFAT to the extent relevant to the decision under review.

50. Further, the Tribunal had regard to the most recent DFAT country information report on Malaysia in relation to the prevalence of domestic violence in Malaysia, stating at paragraph [66]:

    The Tribunal must be very careful in placing much weight on inconsistencies and other unfavorable credibility concerns in making adverse findings, where domestic violence against women is a serious problem in Malaysia. According to the most recent DFAT report on Malaysia issued in April 2018, in 2015 there were 5,014 reported cases of domestic violence, and in 2014 there were 4,807. However, credible local sources suggested there was significant under-reporting because of traditional beliefs in the sanctity and privacy of marriage. In this regard, there are were plausible elements to the applicants’ dispositive claims that the first applicant's marriage was violent and her divorce was acrimonious leading to further acts of violence, threats and intimidation.

1. At paragraph [68] of the Tribunal Decision, the Tribunal made the following adverse credibility findings:

   However, in this review application, the Tribunal’s adverse credibility concerns are so extensive and significant, when cumulatively considered, that it is unable to provide the applicants’ the benefit of the Tribunal’s doubt that the written and oral evidence about critical aspects of their claims had been credible. The first and second applicants’ written and oral claims were significantly inconsistent, implausible and undermined by the first applicant's changed testimony and the absence of taking any convincing or sufficient action to protect herself or her children by relocating within Malaysia or resettling in a third country for almost five years after her divorce in 2010.

2. It is clear that the Tribunal was aware of and explicitly referenced relevant country information however, due to its thorough rejection of the factual claims advanced by the Applicants, a more extensive reference to country information was not required. At paragraph [75], the Tribunal ultimately found that:

   In short, the Tribunal finds that the first and second applicants have elaborately fabricated their critical claims based on the limited evidence that the first applicant's acrimonious divorce in 2010, solely for migration purposes and not because they had any well-founded fears of persecution based on their critical claims for protection.

3. Accordingly, Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.

   Model litigant obligations

4. In its written submissions, the Minister raises two additional issues which may arise from the Tribunal’s determination to consider the claims made by EBY19 independently of her family.

5. At paragraph [46] of the Tribunal Decision, the Tribunal found that EBY19 was not a member of the same family unit as the other applicants because she was over 18 years old at the time of the Visa application and was not wholly or substantially dependent on EBX19 and/or DGP18 for financial, psychological or physical support. At paragraph [79] of the Tribunal Decision, the Tribunal noted EBY19’s claim to fear harm from her biological father “although he has never harmed her in the past” and that he had made threats in the past “but not directly to her”. At paragraphs [78] – [84], the Tribunal made a number of findings and ultimately disposed of EBY19’s claims by reference to its adverse credibility findings made with respect to her mother and step-father. At paragraph [80], the Tribunal found:

   Based on the adverse credibility findings regarding the third applicant's biological mother (the first applicant) and her step father (the second applicant) not facing any real chance of serious harm or any real risk of significant harm, the Tribunal is not satisfied that the third applicant was a reliable witness of truthfulness regarding her father. The Tribunal finds that the third applicant participated in augmenting the first and second applicants’ fabricated claims. The Tribunal finds that the third applicant has not further interest in maintaining an ongoing familial relationship with her biological father. Nevertheless, in the context of the Tribunal's adverse credibility findings against the first and second applicants, the Tribunal is not able to provide the third applicant the benefit of the doubt about her dispositive claims that she fears harm arising from her estranged biological father.

6. The Minister identifies two issues which may arise from this reasoning:

   (1)whether it was permissible for the Tribunal to discount EBY19’s evidence on the basis of its adverse credibility findings in respect of EBX19 and DGP18; and

   (2)whether the Tribunal was required to put its adverse credibility findings with respect to EBX19 and DGP18 to EBY19 for comment under s 424A of the Act.

7. The Minister submits that neither issue gives rise to jurisdictional error.

8. In relation to the first issue, I accept the Minister’s submission that it was permissible (or rational) for the Tribunal to not accept EBY19’s evidence given its adverse credibility findings in respect of her mother and step-father.

9. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (Applicant S20/2002), McHugh and Gummow JJ said at [49]:

   In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that the case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task present by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

10. Nothing in Applicant S20/2002 relieves a decision-maker from its obligation to consider corroborative evidence, nor can a decision-maker “ignore the allegedly corroborative material”: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [37] – [39]; BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515 at [8].

11. At paragraph [68] of the Tribunal Decision, the Tribunal made the following adverse findings about EBX19 and DGP18:

    However, in this review application, the Tribunal’s adverse credibility concerns are so extensive and significant, when cumulatively considered, that it is unable to provide the applicants’ the benefit of the Tribunal’s doubt that the written and oral evidence about critical aspects of their claims had been credible. The first and second applicants’ written and oral claims were significantly inconsistent, implausible and undermined by the first applicant's changed testimony and the absence of taking any convincing or sufficient action to protect herself or her children by relocating within Malaysia or resettling in a third country for almost five years after her divorce in 2010.

12. At paragraph [75] of its decision, the Tribunal found that EBX19 and DGP18 elaborately fabricated their claims solely for migration purposes. Accordingly, it was open for the Tribunal to give no weight to the evidence given by EBY19 as her claims rested on the evidence given by her mother and step-father which the Tribunal found to be wholly lacking in credibility and thereby “poisoned beyond redemption”. Moreover, the Tribunal cannot be said to have ignored or overlooked EBY19’s evidence as it explicitly identified and had regard to her evidence at paragraphs [79] – [81].

13. In relation to the second issue, being whether the Tribunal was required pursuant to s 424A of the Act to put the adverse credibility claims in respect of EBX19 and DGP18 to EBY19, I also accept the Minister’s submission that the Tribunal had no such obligation.

14. At the relevant time, s 424A of the Act provided as follows:

    Information and invitation given in writing by Tribunal

    (1)      Subject to subsections (2A) and (3), the Tribunal must:

    (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)invite the applicant to comment on or respond to it.

    (2)      The information and invitation must be given to the applicant:

    (a)except where paragraph (b) applies — by one of the methods specified in section 441A; or

    (b)if the applicant is in immigration detention — by a method prescribed for the purposes of giving documents to such a person.

    (2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

    (3)      This section does not apply to information:

    (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)that the applicant gave for the purpose of the application for review; or

    (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c)that is non-disclosable information.

    (4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

15. As submitted by the Minister, the Tribunal had no obligation to put the adverse credibility findings to EBY19 because “adverse credibility findings” made in respect of witnesses (including applicants to the review) is not “information” for the purposes of s 424A of the Act. “Information” is not capable of extending beyond “knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [28] (Bell, Gageler and Keane JJ), citing SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (SZBYR) at [18], which in turn cited VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 (VAF) at [24]. “Information” “does not encompass the Tribunal’s subjective appraisals, thought process or determinations” and does not include “the existence of doubts, inconsistencies or the absence of evidence”: SZBYR at [18], citing VAF at [24]. Accordingly, the adverse credibility findings of EBX19 and DGP18 is not information which was required to be put to EBY19.

16. Accordingly, neither of the two matters raised by the Minister establish jurisdictional error.

    Oral Submission

17. At the hearing, the second applicant sought to raise a further ground in relation to his son’s circumcision should they be returned to Malaysia. This claim was not before the Tribunal (either in this matter or in MLG1845 of 2018 in relation to DGR18) and therefore is not a matter that can lead to jurisdictional error.

    DISPOSITION

18. For the above reasons, the Application must be dismissed.

19. The Minister seeks the Applicants pay its costs in the amount of $8,371.30. I note that this is in accordance the scale provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       24 April 2025

SCHEDULE OF PARTIES

MLG 1826 of 2018
Applicants
Fourth Applicant:	EBZ19
Fifth Applicant:	ECA19