DQY18 v Minister for Immigration and Multicultural Affairs

Case •

[2025] FedCFamC2G 97

•

7 February 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DQY18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 97

File number(s): MLG 2039 of 2018
Judgment of: JUDGE CORBETT
Date of judgment: 7 February 2025
Catchwords: MIGRATION – application for judicial review – protection visa – whether well-founded fear of harm – complementary protection – whether Tribunal considered applicant’s child in context of claims – application dismissed.
Legislation:

Migration Act 1958 (Cth), ss 5J(1)(a), 5J(2)-(6), 5H(1)(a), 5H(1)(b), 36, s 36(1)(a), 36(2)(b), 36(2)(c)

Migration Regulations 1994 (Cth), Sch 2

Cases cited:

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

Division: Division 2 General Federal Law
Number of paragraphs: 63
Date of last submission/s: 18 December 2024
Date of hearing: 18 December 2024
Place: Melbourne
Solicitor for the Applicant Applicant appeared in person
Advocate for the Respondents Mr J Barrington
Solicitor for the Respondents Sparke Helmore Lawyers

ORDERS

MLG 2039 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DQY18

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNALS

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs;

2.The name of the second respondent is amended to Administrative Review Tribunal;

3.The application for judicial review dated 13 July 2018 be dismissed; and

4.The applicant pay the first respondent’s costs and disbursements of and incidental to this proceeding 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 CORBETT

  1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 5 July 2018. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).

  2. Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.

    BACKGROUND

  3. The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 5 June 2016 on an Electronic Travel Authority visa (CB 25-6).

  4. On 24 August 2016, the applicant applied for the visa (CB 1-45). At question 89 of the application which asked, ‘why did you leave that country(s)?’, the applicant responded (CB 36) (verbatim):

    I LEFT MY OWN COUNTRY BECAUSE THE GOVERMENT OF MALYSIA IS SEEKING THE GROUP MEMBER OF BERSIH. I'M THE ONE OF BERSIH MEMBER (GROUP THE CAUTION FOR CLEAN AND FAIR ELECTION). OUR MINISTER OF HOME AFFAIR AHMAD ZAHID HAMIDI SAID " MALAYSIAN WHO ARE UNHAPPY WITH THIS COUNTRY POLITICAL SYSTEM SHOULD LEAVE THIS COUNTRY(MALAYSIA) ". THIS STATEMENT WAS AFTER SERIES OF STREET DEMONSTRATION LED BY OPPOSITION PARTIES. MANY GROUP PRISSIONED. MEDIA HIDDEN THIS SENSITIVE ISSUE. I DECIDE TO SEEK REFUGE AND SAFELY LIFE MATTER. THANK YOU TO AUSTRALIAN GOVERMENT.

  5. At question ninety of the application which asked, ‘what do you think will happen to you if you return to that country(s)?’, the applicant responded (CB 36) (verbatim):

    RETURN TO MY OWN COUNTRY, THE POLICE WILL CAUGHT ME AND PUT ME IN THE JAILED, SO MY LIFE OF COURSE IN DANGEROUS. I HOPE THAT AUSTRALIAN GOVERMENT WILL HELP ME. THANK YOU.

  6. On 4 January 2017, a delegate of the Minister refused to grant the visa (CB 47-62). The delegate of the Minister was not satisfied that there was a real chance that if the applicant returned to Malaysia, the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Migration Act 1958 (Cth) (Act) (CB 60). The delegate was also not satisfied that if the applicant returned to Malaysia, there was a real risk that the applicant would suffer significant harm (CB 61).

  7. On 19 January 2017, the applicant filed an application with the Tribunal to review the delegate’s decision (CB 63-4).

  8. On 27 September 2017, the Tribunal invited the application to a hearing to be held on 10 November 2017 (CB 89-90).

  9. On the 2 November 2017, the applicant requested an adjournment of the hearing due to sickness related to her pregnancy (CB 104). Attached to that request was a statutory declaration dated 2 November 2017 (Declaration) which sought to clarify the claims of political persecution and make further claims for protection (CB 105-111). The Declaration was prepared with the assistance of the Asylum Seeker Resource Centre.

  10. At paragraph [4] of the Declaration, the applicant made further claims that she would be “forced out of [her] marriage” by her husband’s family should she return to Malaysia. The applicant claimed that her marriage is considered interracial as she is of Indonesian descent and that the cultural discrimination towards Malays who are of Indonesian descent meant that her marriage had to be kept a secret from his family (CB 108 [11]). Furthermore, the applicant fears that her unborn child will also be “treated badly” due to such prejudice (CB 108 [12]).

  11. At paragraph [14] onwards of the Declaration, the applicant mentions that she was a victim of sexual abuse as an early teen and could not access counselling or support services in Malaysia (CB 108-9 [14]-[18]). The applicant claimed that she suffers from depression and suicide ideation as a result (CB 109 [22]-[23]).

  12. On 10 November 2017, there was a hearing before the Tribunal at which the applicant appeared in person with the assistance of a Malay interpreter (CB 165-8). The hearing was adjourned to provide time for the applicant’s husband to provide information to the Tribunal (CB 167). On 13 November 2017, the Tribunal invited the application to the resumed hearing to be held on 19 December 2017 (CB 170-1).

  13. On 7 December 2017, the Tribunal sent a letter to the applicant requesting that the applicant submit any further documentation intended to be relied upon at the resumed hearing by 18 December 2017 (CB 177). The request included a request for any medical or psychological reports to be relied on by the applicant.

  14. On 15 December 2017, the applicant provided the Tribunal with medical reports and a letter from a counsellor/social worker from whom the applicant had sought counselling (CB 178-181).

  15. On 19 December 2017, the Tribunal hearing resumed. The applicant appeared in person with her husband and was assisted by a Malay interpreter (CB 182).

  16. On 6 April 2018, the applicant was invited to another hearing before the Tribunal to be held on 26 April 2018 (CB 187-8). On 12 April 2018, the applicant sought an adjournment of the hearing due to her pregnancy (CB 196-8). The adjournment was granted and the hearing rescheduled to 7 June 2018 (CB 202).

  17. On 7 June 2018 the applicant and her husband appeared before the Tribunal assisted by an interpreter (CB 218).

  18. On 5 July 2018, the applicant was notified that the Tribunal affirmed the delegate’s decision not to grant the visa and provided written reasons to the applicant (Decision) (CB 229-245).

    TRIBUNAL’S DECISION

  19. In the Decision, the Tribunal considered the criteria for the visa set out in s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal identified the criteria for refugee status in s 36(1)(a) of the Act and considered whether the applicant was a person to whom Australia has protection obligations under the refugee criterion (CB 230 [5]-[6]). The Tribunal also considered the mandatory considerations under Ministerial Direction No. 56, relevant country information assessments provided by the Department of Foreign Affairs and Trade, and the applicant’s claims for protection (CB 231-3 [12]–[17]).

  20. The Tribunal considered the definitions of a refugee under ss 5H(1)(a) and 5H(1)(b) and the meaning of a well-founded fear of persecution (CB 230 [8]). The Tribunal also referred to the circumstances in which a person will be taken not to have a well-founded fear of persecution in ss 5J(2)-(6) of the Act (CB 230 [9]).

  21. The Tribunal then considered the evidence of the applicant’s personal background and circumstances in which she left Malaysia and sought protection in Australia (CB 231-3 [17]-[32]).

  22. In the Decision, the Tribunal referred to and considered the applicant’s Declaration and each of the claims raised by it (CB 232 [18]). The Tribunal also considered the oral evidence given by the applicant at the hearings, particularly, that the cost of living in Malaysia was prohibitive and that she travelled to Australia to find stable employment and access to affordable health care (CB 232 [19]). The applicant also gave evidence that she and her husband came to Australia to marry as it was cheaper to do so in Australia (CB 233 [24]).

  23. The Tribunal then considered the applicant’s claims of persecution because of support for the Berish movement and the applicant’s claims of trauma, sexual abuse and inability to access counselling and support services in Malaysia (CB 233-4 [26]-[29]). The claims in relation to forced divorce, discrimination and racism were also addressed (CB 234 [30]-[32]).

  24. The Tribunal then considered country information supplied by the Department of Foreign Affairs and Trade prepared in April 2018 and available country information regarding the essential requirements for Islamic marriage and modern Malaysian cultural norms (CB 235-6 [35]–[38]). Domestic violence in Malaysia was considered and so too the resources available in Malaysia to victims of domestic violence (CB 236-7 [38]–[39]).

  25. The Tribunal addressed known information regarding political protest in Malaysia and the Bersih movement (CB 238-9 [41]–[43]). The Tribunal gave detailed consideration to and assessment of the applicant’s claims and evidence (CB 240–5 [44]–[73]). The member set out each of the claims under subheadings and assessed the merit of each claim raised. Each claim was considered separately and the cumulatively and the Tribunal concluded that the applicant did not satisfy the criteria in ss 36(2)(a) or 36(2)(aa) of the Act (CB 245 [74]–[76]). Further, ss 36(2)(b) and (c) of the Act did not apply. The Tribunal affirmed the delegate’s decision not to grant the visa (CB 245).

    PROCEEDINGS IN THIS COURT

  26. The application for judicial review was filed in this Court on 13 July 2018 and identified six grounds of review (verbatim):

    (1)The Administrative Appeals Tribunal (the Tribunal) failed to take into account the real threats from my husband family. The tribunal argued that we could simply move somewhere else in Malaysia or cease contact with my husband’s family. My husband’s family are deeply religious and believe Indonesians are racially impure and should be eradicated.

    (2)I have genuine fear that my husband’s family will physically harm me and my baby if we return to Malaysia.

    (3)I believe the Malaysian authorities will not support us. Particularly if my husband’s family force him to divorce me.

    (4)The Tribunal downplayed the discrimination and violence I have suffered as an ethnic Indonesian in Malaysia. I acknowledge that I have received an education and obtained a qualification in Malaysia but I have also experience regular violence and discrimination in Malaysia. This doesn’t stop because of my educational opportunities.

    (5)My child is also likely to face similar discrimination if she is forced to return to Malaysia.

    (6)The tribunal also failed to take my post natal depression into consideration. I am currently receiving support from a doctor in Australia at the South Eastern CASA. I am unlikely to receive the same support in Malaysia.

  27. The application for judicial review was supported by an affidavit of the applicant sworn on 13 July 2018 that annexed a copy of the Decision.

  28. On 27 November 2019, a Registrar of this Court ordered that the applicant file and serve any amended application with proper particulars, any supplementary Court Book and written submissions 28 days before the date fixed for the final hearing. The final hearing was later fixed for 18 December 2024 at Melbourne. The applicant did not file or serve any amended application, further affidavit evidence or written submissions. The Minister prepared a Court Book and an outline of submissions.

  29. At the hearing before this Court on 18 December 2024, the applicant appeared in person assisted by an interpreter fluent in the English and Malay languages who appeared via video link. The Court confirmed that the applicant and interpreter understood each other and that the applicant had received the Court Book and the Minister’s outline of written submissions.

  30. Mr Barrington of counsel appeared for the Minister.

    APPLICANT’S SUBMISSIONS

  31. The Court gave the applicant an opportunity to elaborate on, and further articulate, the grounds of review and to inform the Court of the basis on which the Tribunal fell into jurisdictional error. The Court explained that it could not grant the applicant a visa but could send the application back to the Tribunal for reconsideration if there was a significant legal or factual error that meant the Tribunal acted contrary to law.

  32. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)).

  33. The applicant was asked if there were any other documents or evidence that she wished to rely on to support the application for judicial review. The applicant sought to tender a statutory declaration from a treating psychologist that referred to the applicant’s mental health including symptoms of depression and anxiety associated with returning to Malaysia. The declaration also referred to the applicant’s internal conflict with same-sex attraction and subsequent fear of being discriminated for it in Malaysia. The statutory declaration dated 15 December 2024 was received as evidence and tendered under objection as to relevance by the Minister and marked exhibit “A1”.

  34. The Court asked the applicant to explain why she believed the Tribunal’s Decision was wrong. The applicant submitted that she did not believe that the Tribunal had accepted all the evidence provided or the applicant’s claim that she had suffered mental trauma in Malaysia. The Court took the applicant to the first ground of review in the application for judicial review and asked the applicant to explain what “real threats” from the husband’s family the Tribunal failed to consider (CB 250 [1]). The applicant was unable to answer but then claimed that she had received threats from her husband’s family and elaborated that she was very worried her husband would be forced by his family to leave her.

  35. In relation to ground two, the Court asked the applicant if she was worried that the husband’s family would physically hurt her and her child. The applicant submitted that she had previously suffered from physical abuse perpetrated by the husband’s family and that she was worried it would happen again. When asked about ground three, which contended that the Malaysian authorities could not support the applicant and her child from such harm, the applicant was asked why she believed she would not be afforded protection. The applicant could not elaborate on this ground saying, “that I don’t know, I can’t think”. When asked about ground four regarding her allegations of discrimination for being of Indonesian ethnicity, the Court asked the applicant what discrimination she believed she would suffer if she returned to Malysia. The applicant said, “maybe bullying”. When referring to ground five about her fears of her child being discriminated because of Indonesian ethnicity, the Court asked the applicant to explain how her child would suffer. The applicant submitted one example, that her sister had been isolated from her friends. The applicant could not elaborate on any other types of potential harm that her or her child would suffer from.

  36. In relation the ground five, the Court asked the applicant to explain how the Tribunal failed to consider her post-natal depression. The applicant withdrew the claim, stating that “someone” from the union incorrectly filled out the form on her behalf. The applicant clarified that she is receiving medical support for her depression only, not post-natal depression. The Court asked why she would not receive access to treatment for her depression in Malaysia. The applicant replied that she could only access counselling in Malaysia, not medication. When asked if there was anything else in the Decision that the applicant believed was wrong, the applicant said that the Tribunal said she could “relocate and return to Indonesia”. This statement was confusing as the Tribunal did not make a finding that the applicant could relocate or return to Indonesia and found that Malaysia was the receiving country for the purpose of the application for review (CB 231 [16]).

  37. The applicant was otherwise unable to assist the Court regarding the grounds of review or any material jurisdictional error in the Decision.

    MINISTER’S SUBMISSIONS

  38. On behalf of the Minister, Mr Barrington submitted that ground one of the application for judicial review should be rejected. The Decision record demonstrated that the Tribunal did consider the applicant’s claim that she had been verbally threatened and discriminated by her husband’s family due to her Indonesian ethnicity (CB 240, 241-2 [53]-[61]). Mr Barrington submitted that the applicant’s Declaration makes additional claims of protection including fear of being divorced due to her marriage being considered interracial, fear of becoming a single mother and fear that she will continue to self-harm due to inadequate mental health care in Malaysia (CB 107). This Declaration was provided to the Tribunal after the delegate’s Decision. The applicant’s original claims for protection (stated in her visa application) related to political opinion claims only, specifically to the issue of being a member of the Bersih group (CB 36). Mr Barrington submitted that the Tribunal responded squarely to the claims made (CB 234 [30]-[31], [53], 240) and considered the applicant’s additional claims in the Decision (CB 241 [54], [57], [60]). It was submitted that the Tribunal only has an obligation to consider claims that are substantial and clearly articulated by the applicant or which clearly emerged from the material before the Tribunal. On this basis, Mr Barrington submitted that ground one should be rejected.

  39. In relation to ground two, Mr Barrington reiterated that this claim relates to the applicant’s fears of divorce and fear of verbal abuse perpetrated by her husband’s family as stated at paragraph [24]-[26] of the Declaration. The allegation lacks particulars, and no evidence was presented to the Tribunal to substantiate such claims that the applicant and her child would be physically harmed by her in-laws upon return to Malaysia. Therefore, the Tribunal wasn't required to consider whether there was a risk of physical harm from the family. However, at paragraph [60] of the Decision the Tribunal did consider the risk of significant harm and found that there was no real risk if the applicant and her husband relocated to one of the larger cities in Malaysia (CB 242 [60]). It was submitted that this ground should be dismissed.

  1. Ground three was submitted to be misconceived. Mr Barrington submitted that, on the basis that the Tribunal did not establish that there was a fear of harm in the first place, there was no need to consider whether the applicant could obtain protection from State authorities in Malaysia. Mr Barrington referred to the Decision record and accepted that there was ambiguity in the Tribunal’s reasoning at paragraph [56] (CB 241):

    Clearly, a family’s ‘private reasons’ in a ‘purely private matter’ may well relate to one or more of the Convention grounds. The point is that familial rejection, for any reason, is not the kind of detriment against which the state can be expected to provide protection. It is unlikely that any state would accept the responsibility of affording any person in the applicant’s shoes either civil redress against his family or other amelioration of such a personal rift.

  2. However, paragraph [60] onwards provides clarification of the Tribunal’s reasoning and characterisation of the applicant’s claims to be of familial disputes or familial rejection, which does not afford protection obligations from the Australian Government (CB 242 [60]-[61]). This ground of review appears to seek merits review which the Court has no power to consider and should therefore be rejected.

  3. In relation to ground four, Mr Barrington submitted that the Tribunal gave logical consideration to the applicant’s claims of racial discrimination and violence and referred to the applicant’s employment history (CB 242-3 [62], [64]). The Tribunal concluded that, while there may be low level discrimination when attempting to get a tertiary education or employment in the civil service, there was no real chance of the applicant or her child suffering serious harm by reason of being of Indonesian descent. Mr Barrington submitted that the applicant provided no evidence to the Tribunal in support of her claims and this ground of review amounts to simple disagreement with the Tribunal’s reasoning and does not reveal jurisdictional error. So too ground five should be rejected as the Tribunal’s consideration was not limited to the applicant but also included findings about the welfare of her child (CB 242 [62]-[65]).

  4. Mr Barrington submitted that the applicant had made inconsistent statements in her oral submission regarding ground six. The applicant submitted to the Court that her mental health claims did not relate to post-natal depression rather depression and anxiety generally. It was submitted that the Tribunal did consider the applicant’s mental health claims, particularly the availability of services in Malaysia that the applicant could access and accordingly found that such services would be available to be utilised (CB 233-4 [28]-[29], 244 [70]-[71]). Ground six did not disclose jurisdictional error and the application for judicial review should be dismissed with costs.

    APPLICANT’S REPLY

  5. The applicant addressed the Minister’s submission to ground six and informed the Court that though she did not have any evidence to provide to the Tribunal, she received treatment from Refugee Health and the Tribunal found that she did not suffer from mental health trauma. The applicant said that she has a GP referral she can provide to the Court to prove this. The Court asked if this referral letter was given to Tribunal to which the applicant responded that it wasn't.

  6. When asked if the applicant had anything else to say about the Tribunal Decision, the applicant responded that she did not.

    CONSIDERATION

  7. The function of this Court is to review the Decision and determine whether the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the application for the visa in accordance with law.

  8. In Wu Shan Liang the High Court said at 272:

    In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):

    “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

  9. Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings. The weight to be given to the evidence was in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Nicholson J).

  10. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12 (LPDT), Nicholson J said at [3]:

    “Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.”

  11. The Decision contains a very thorough and detailed analysis of the applicant’s claims and evidence. In Wu Shan Liang at 272 the Court warned against construing the decision under review “minutely and finely with an eye keenly attuned to the perception of error”. The applicant’s grounds of review in the application for judicial review seek to revisit the merits of the Decision, assert new claims but do not identify any material jurisdictional error.

  12. There has been no failure to consider a material claim, or any material fact raised by the applicant on the review. The Decision was not unreasonable or illogical nor does it disclose any error of law or failure to perform the statutory task.

    Ground one

  13. The Tribunal did consider the applicant’s claim that she had been verbally threatened and discriminated by her husband’s family due to her Indonesian ethnicity (CB 240, 241-2 [53]-[61]). The applicant did not assert or establish before the Tribunal that there were threats of physical harm. In the Declaration, the applicant referred to her fear of her husband’s family forcing her to separate or divorce and referred to “verbal abuse” (CB 109). These claims were considered by the Tribunal in the Decision as was the credibility of the applicant’s evidence. At paragraph [48] the Tribunal made general findings about the applicant’s personal history and marriage (CB 240 [48]). At paragraph [54] the Tribunal addressed the applicant’s evidence of her fears and concluded at paragraph [55] that rejection and ostracism by one’s family did not constitute persecution (CB 241 [54]-[55]). The Tribunal posed the hypothetical that if there was a real chance of serious harm then that harm did not relate to all areas of Malaysia (CB 241 [57]). This was consistent with the statutory task of considering the criteria for protection. There was no evidence of the religious or other beliefs of the husband’s family upon which the Tribunal could assess whether there was risk of harm to the applicant or her child, but the Tribunal did consider the “mixed marriage” and ethnicity claims made as then articulated by the applicant. This ground of review does not disclose material jurisdictional error and is rejected.

    Ground two

  14. The threat of physical harm was not clearly raised by the applicant in her evidence before the Tribunal and there was no evidence before this Court that there was a failure by the Tribunal to consider this claim. The Declaration provided to the Tribunal did not contain an assertion of fear of physical harm nor did the application for the visa. The applicant’s evidence was summarised by the Tribunal at [17] to [32] of the Decision (in particular [30] in relation to the applicant’s fears should she be forced to return) and there is no mention of a fear of physical harm (CB 231-4). There was no other evidence produced to this Court to suggest that this claim was before the Tribunal and was not considered.  Nevertheless, the Tribunal did consider the threats generally to the applicant from the husband’s family and their apparent prejudices but concluded they did not pose a threat of serious harm (CB 242 [61]). This ground does not disclose jurisdictional error by the Tribunal.

    Ground three

  15. This is a mere statement of belief by the applicant that is not supported by any corroborating evidence. The Tribunal did consider the availability of protections for domestic violence and political activists (CB 236-40 [38]-[42], [41]–[43] and [50]-[53]). The Tribunal also considered discrimination and violence suffered by ethnic minorities in Malaysia (CB 241-3 [53]-[65]). The Tribunal was satisfied that there were protections available to victims of domestic violence and abuse that could assist the applicant if required. However, the Tribunal was not satisfied that there was a real risk of serious harm or persecution (CB 243 [65]). This ground does not establish any material error.

    Ground four

  16. This ground is also an impermissible attempt to review the merits of the Decision and revisit the Tribunal’s evidentiary findings and conclusions. The Tribunal did consider the potential for discrimination as well as the economic opportunities available to the applicant and her husband. The ground does not provide any explanation of how or why the Tribunal “downplayed” the discrimination or violence claimed by the applicant. The Tribunal did not accept that the claims made by the applicant were sufficient to establish the statutory requirement to provide protection. There was nothing illogical or unreasonable apparent in the reasoning of the Tribunal when considering the applicant’s claims about discrimination and serious harm. This ground of review is unclear, and the applicant was unable to assist further at the hearing before this Court.

    Ground five

  17. This ground does not disclose jurisdictional error by the Tribunal. The Tribunal did consider the interests of the applicant’s child in the Decision (CB 242-43 [62]–[65]). The Tribunal also considered the ability of the applicant and her husband to find work and earn a livelihood (CB 244 [73]). There was no failure to consider the claims made by the applicant in her claim for protection and her fears of discrimination were logically and reasonable addressed by the Tribunal. This ground is also rejected.

    Ground six

  18. At the hearing before this Court on 18 December 2024 the applicant clarified this ground by claiming that she did not suffer from post-natal depression but from general anxiety and depression. This was confirmed by the declaration dated 15 December 2024 (Exhibit A1) tendered by the applicant from her treating psychologist. The complaint made by the applicant was that she is unlikely to receive the same support in Malaysia as she receives in Australia.

  19. The Tribunal noted the applicant’s claim to suffer mental health issues arising from historic sexual abuse (CB 232 [18]). The Tribunal also recorded the applicant’s claim that she could not access counselling and support services in Malaysia (CB 233 [28]) and that the applicant was seeking counselling and support services in Australia (CB 234 [29]). The applicant’s claims were then addressed by the Tribunal (CB 243-4 [66]–[71]). The Tribunal was satisfied that the applicant could access counselling and support services if required in Malaysia (CB 244 [71]). The Tribunal did consider these claims based on the evidence provided by the applicant.

  20. The applicant also raised at the hearing before this Court a new claim based on her sexual identity. That was not a claim for protection raised in the application for the visa or before the Tribunal on the application for review. It is not a matter that this Court can now entertain in undertaking the task of judicial review of the Decision (see Wu Shan Liang at [47] above).

  21. The applicant was not represented and therefore the Court has also scrutinised the application for judicial review, the materials before the Tribunal and the Decision to identify any other material jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100] and [112]-[114]. No material jurisdictional error is apparent. The application for judicial review filed 13 July 2018 is dismissed.

    OTHER MATTERS

  22. The Minister sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs which is the current Ministerial title.

  23. As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent should also be amended to the Administrative Review Tribunal.

    COSTS

  24. Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review (including the costs of the first and second hearing) in the sum of $8,371.30 which is the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth). The sum claimed is fair and reasonable given the complexity of this case and will be ordered to be paid by the applicant.

    ORDERS

    1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.

    2.The name of the second respondent is amended to Administrative Review Tribunal.

    3.The application for judicial review dated 13 July 2018 be dismissed.

    4.The applicant pay the first respondent’s costs and disbursements of and incidental to this proceeding fixed in the sum of $8,371.30.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate:

Dated:       7 February 2025

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