DGR18 (by their litigation guardian DGP18) v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 588
•24 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGR18 (by their litigation guardian DGP18) v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 588
File number(s): MLG 1845 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 was required to put adverse credibility findings it had made in respect of the applicant’s mother and father to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – found adverse credibility findings is not “information” for the purpose of s 424A – found no jurisdictional error on behalf of the Tribunal – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 424A, 474, 476, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2
Cases cited: Craig v South Australia (1995) 184 CLR 163
DGP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 586
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 13 March 2025 Place: Melbourne Solicitor for the Applicant: Self-represented litigant 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 1845 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGR18 (BY THEIR LITIGATION GUARDIAN DGP18)
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 25 June 2018 be dismissed.
4.The Applicant 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
Before the Court is an application filed on 25 June 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 1 June 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (Visa).
The applicant is a minor. He is aged seven years old, having been born on 10 April 2017. The first (DGP18) and second (EBX19) applicants in MLG 1826 of 2018 are the applicant’s father and mother, respectively. DGP18 has been appointed as litigation guardian of the applicant.
CONTEXT
The applicant is a citizen of Malaysia but was born in Australia.
On 12 August 2015, the applicant’s father arrived in Australia on a visitor visa.
On 8 September 2015, the applicant’s mother arrived in Australia on a visitor visa. DGP18 and EBX19 are husband and wife, respectively.
On 11 November 2015, the applicant’s parents applied for a Protection (Subclass 866) visa (Visa Application). They relied upon EBX19’s claims to fear harm upon return to Malaysia from her ex-husband. Attached to the Originating Visa Application was also a written submission provided by EBX19 and DGP18’s 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.
On 21 December 2015, DGP18 and EBX19 had a child (DGQ18). DGQ18 is the applicant in MLG1844/2018.
On 5 March 2016, EBX19’s three children from a previous relationship (EBY19, EBZ19 and ECA19) arrived in Australia on visitor visas (half-sisters).
On 29 April 2016, the applicant’s biological sister (DGQ18) and his three half-sisters 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 Originating Visa Application as members of EBX19’s family unit.
On 2 June 2016, a delegate refused to grant DGP18, EBX19, DGQ18 and the half-sisters the Visa.
On 20 June 2016, the applicant’s mother and father applied to the Tribunal for review of the delegate’s decision and included the three half-sisters, but not DGQ18, in this application. On the same day, a separate application for review was lodged with the Tribunal on behalf of DGQ18.
On 10 April 2017, the applicant was born. DGP18 and EBX19 are the applicant’s parents. DGQ18 is the applicant’s biological sister and the applicant in MLG1844/2018.
On 15 September 2017, the Tribunal held a hearing with respect to DGP18, EBX19, DGQ18 and the applicant’s three half-sisters’ application for review.
On 14 December 2017, the applicant applied for a Visa, again relying on the protection claims of his mother as set out in the Visa Application. On 19 January 2018, the Delegate refused to grant the applicant the Visa. On 14 February 2018, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 17 April 2018, the Tribunal held a hearing with respect to the applicant’s application.
On 31 May 2018, the Tribunal affirmed the delegate’s decision with respect to DGP18, EBX19 and the half-sister’s application.
On 1 June 2018, the Tribunal affirmed the Delegate’s decision with respect to the applicant and his biological sister (DGQ18).
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 1 June 2018 (Tribunal Decision).
At paragraph [8] of the Tribunal Decision, the Tribunal noted that in accordance with Ministerial Direction No 56 (Direction 56), the Tribunal had taken into account policy guidelines and relevant country information to the extent that they were relevant to the decision under review.
At paragraphs [9] – [27] of the Tribunal Decision, the Tribunal summarised the applicant’s claims and evidence.
At paragraph [31] of the Tribunal Decision, the Tribunal notes that the applicant was included in the Visa Application, but that the applicant was omitted from his parents and half-sisters review application.
At paragraphs [32] – [34] of the Tribunal Decision, the Tribunal accepted that the applicant is the dependent child of DGP18 and EBX19 and that if a protection visa were granted to one of the applicant’s parents, then the Tribunal would be obliged to consider that the applicant’s review application also be remitted for reconsideration on the basis that the applicant would satisfy ss 36(2)(b) or (c) of the Migration Act 1958 (Cth) (Act).
At paragraphs [35] – [37] of the Tribunal Decision, the Tribunal accepted that the applicant is the “step-brother” of EBY19, EBZ19 and ECA19 and that they share EBX19 as their biological mother.
At paragraphs [38] – [39] of the Tribunal Decision, the Tribunal accepted that DGQ18 is the applicant’s biological sister.
At paragraph [40], the Tribunal accepted that the applicant had an interest in the outcome of the review application of the applicant’s parent’s and step-sisters as the applicant was a member of the same family unit.
At paragraph [41] the Tribunal noted that the applicant’s parents had made claims on the applicant’s behalf at two separately scheduled hearings, being that the applicant faces a real chance of serious harm and a real risk of significant harm arising from claims about fear of violence from the ex-husband of the applicant’s mother.
At paragraphs [42] – [43] of the Tribunal Decision, the Tribunal noted that it had already made a decision on the review application of the applicant’s biological parents and step-sisters. The Tribunal attached a record of the Tribunal decision in that matter and noted that the Tribunal was not satisfied that those applicants were persons in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act.
At paragraphs [ 44] – [50] of the Tribunal Decision, the Tribunal made a number of findings and ultimately disposed of the applicant’s protection claims by reference to its adverse credibility findings in his parents case.
Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act. Further, the Tribunal found there was no suggestion that the applicant satisfied s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfied ss 36(2)(a) or (aa) and who held a protection visa.
APPLICATION FOR JUDICIAL REVIEW
On 22 June 2018, DGP18 lodged an application for judicial review (MLG1826/2018). On 16 October 2019, the Court made orders adding EXB19, as well as her three children (EBY19, EBZ19 and ECA19) to the application.
On 25 June 2018, DGQ18 and DGR18 lodged separate applications for judicial review.
The Application presently before the Court contains the following ground for judicial review:
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.
The applicant also filed an affidavit on 25 June 2018 which annexed the Tribunal Decision.
No other material was filed by the applicant in support of the Application.
The Minister filed a Response on 1 August 2018 seeking that the Application be dismissed with costs on the ground that the Tribunal Decision is not affected by jurisdictional error.
The Minister also filed written submissions on 26 February 2025 and a list of authorities on 6 March 2025.
The hearing
The hearing took place on 13 March 2025.
The applicant is the son of the first applicant (DGP18) in the matter MLG1826/2018. DGP18 has been appointed as litigation guardian of the applicant.
The applications for judicial review in MLG1826/2018 and MLG1844/2018 were heard concurrently with the present Application.
STATUTORY FRAMEWORK
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].
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
By Ground 1 the applicant contends 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 applicant submits that by omitting any reference to the relevant DFAT country report, the Tribunal failed to take into account a relevant consideration.
I reject that submission.
At paragraph [8] 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. Further, as submitted by the Minister, the reasons of the Tribunal were heavily dependent upon adverse credibility findings made in relation to the applicant’s mother and father’s applications, noting that at paragraph [66] of that decision the Tribunal did expressly reference the most recent DFAT report on domestic violence in Malaysia. In those circumstances, I accept the Minister’s submission that there was no obvious need for the Tribunal to consider the DFAT country report in relation to DGR18’s application and that the better inference is that the Tribunal simply did not consider it “relevant”.
Ground 1 does not disclose any jurisdictional error on the Tribunal’s behalf.
Model litigant obligations
In its written submissions, the Minister raises a further issue relating to whether the Tribunal was required to put the adverse credibility findings it had made in respect of the mother and father’s reviews (EBX19 and DGP18) to this applicant for comment under s 424A of the Act.
The Minister submits that the above issue does not give rise to jurisdictional error.
The Tribunal disposed of the protection claims for the applicant by reference to its adverse credibility findings in his mother and father’s case. At paragraph [46] of its decision the Tribunal said:
… based on the Tribunal’s adverse credibility findings outlined in 1609136 [the Tribunal’s decision relating to EBX19, DGP18, EBY19, EBZ19 and ECA19], the Tribunal does not accept the applicant faces any real chance of serious harm based on his mother’s ex-husband targeting harassment or harm towards the applicant or any other family member, or that the applicant’s mother is a domestic violence victim, or arising from their religion as Muslims, or any other reasons relating to s 5J(1)(a), if he were to return to Malaysia into the foreseeable future.
As identified by the Minister, the Tribunal attached a copy of its decision in relation to the applicant’s mother and father to this review application.
For the reasons set out in DGP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 586 the adverse credibility findings in relation to EBX19 and DGP18 are not “information” for the purposes of s 424A of the Act and were therefore not information required to be put to DGQ18.
Oral Submission
For completeness, at the hearing, the applicant’s litigation guardian sought to raise a further ground in relation to the applicant’s circumcision should he be returned to Malaysia. This claim was not before the Tribunal (either in this matter or in MLG18426/2018 in relation to DGP18) and therefore is not a matter that can lead to jurisdictional error.
DISPOSITION
For the above reasons, the Application must be dismissed.
The Minister seeks the applicant pay its costs in the amount of $8,371.30. I note that this is in accordance with 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 fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2025
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