DSL18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1318
•19 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DSL18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1318
File number(s): MLG 2085 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 19 August 2025 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa - Application for judicial review –Related proceeding – Proceedings heard concurrently – Reliance on country information – Typographical errors – No jurisdictional error – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5H(1)(a), 5H(1)(b), 5J(1), 5J(1)(a), 5J(2), 5J(4)(a), 5K, 5LA, 36, 36(2A), 36(2B), 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 499
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200
ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426
AWU15 v Minister for Immigration and Border Protection [2019] FCCA 496
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
MZAIB V Minister for Immigration and Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submission/s: 11 June 2025 Date of hearing: 11 June 2025 Place: Melbourne Solicitor for the Applicants The first applicant appeared in person, self-represented Counsel for the Respondents Ms L Mills Solicitor for the Respondents Mills Oakley
Table of Corrections 25 August 2025 In paragraph 3, the letter “L” in “DSL18” has been replaced with “G”. ORDERS
MLG 2085 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSL18
First Applicant
DSN18
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
19 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The application for judicial review filed 18 July 2018 be dismissed; and
3.The first applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Final judgment and Corrigendum)JUDGE CORBETT
The applicants seek judicial review of a decision of the second respondent (Tribunal) made on 29 June 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection (Class XA) (Subclass 866) visa (visa).
The applicants in this proceeding are a mother (DSL18) and daughter (DSN18). The outcome of the application for judicial review is also relevant to claims for protection in related proceeding MLG 2078 of 2018 in this Court, in which the applicant has been given the pseudonym DSG18 (related proceeding). In that proceeding, DSG18 is the husband of the first applicant (DSL18) and father of DSN18.
The applicants in this proceeding applied for the visa as members of the immediate family of DSG18 and seek to rely on his claims for protection under s 36 of the Migration Act 1958 (Cth) (the Act).
The hearing of this proceeding and the related proceeding were heard concurrently. The evidence in the related proceeding was relied on by the applicants in this proceeding to support their claims for judicial review and vice versa.
Reference in these reasons to ‘CB’ pages are references to the Court Book prepared for this proceeding that was tendered and admitted as evidence at the hearing and designated exhibit ‘R1’. The Court Book in the related proceeding was also tendered as evidence in this proceeding and references to evidence in that Court Book is footnoted where relevant.
BACKGROUND
The applicants are citizens of Malaysia. They arrived in Australia on 6 September 2016 holding Electronic Travel Authority visas (CB 23, 46).
DSG18 claims that in or around November 2015 he borrowed 10,000.00 Malaysian ringgits from an unlicensed money lender in Malaysia. DSL18 also asserts that her husband borrowed money from a money lender but neither husband nor wife have produced any documentary evidence to confirm receipt of the funds borrowed. DSG18 claims that he could not repay the loan and both DSG18 and DSL18 claim that the money lender employed intimidatory tactics through vandalism (red paint) and public humiliation (throwing a pig’s head at the applicants’ home) to recover payment. DSG18 also claims that he received death threats from the money lender.[1]
[1]See CB 32 in related proceeding and paragraphs [46] and [47] of the decision of the Tribunal at CB 136 in the related proceeding.
DSL18 says that her husband DSG18 first arrived in Australia on 23 June 2016 to work and send money back to Malaysia to repay the loan (CB 150). On 25 August 2016, DSG18 applied for a Protection visa claiming fear of persecution and serious harm from the money lender.[2]
[2] See CB 1-64 in the related proceeding (emphasis on CB 32).
On 2 December 2016, DSL18 and DSN18 applied for the visa claiming that they also feared harm from the money lender if they were to return to Malaysia (CB 1-63).
On 7 December 2016, DSG18 sent an email to the Minister requesting that the applicants be included in his visa application (CB 94).
On 29 August 2017, the applicants (DSL18 and DSN18) were notified that a delegate of the Minister refused to grant them the visa (CB 99-106). The delegate refused to grant the visa on the basis that the applicants’ written claims were vague and they are not persons in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 99-102, 110-6). A similar decision was reached by a different delegate in relation to the application made by DSG18.[3]
[3] See CB 66–83 in the related proceeding.
On 3 September 2017, the applicants lodged an application for review of the delegate’s decision in the Tribunal (as it then was) (CB 107-124). DSG18 lodged an application for review of the delegate’s decision regarding his application with the Tribunal on 24 November 2016.[4]
[4] See CB 84–5 in the related proceeding.
On 27 October 2017, the first applicant appeared at a Tribunal hearing as a witness for DSG18 (CB 145-6). The first applicant claimed that her claims for protection were reliant on her husband’s claims for protection (CB 187 [22]).
On 12 December 2017, the applicants were invited to attend a hearing before the Tribunal on 15 January 2018 in Melbourne (CB 128-9). On 12 January 2018, DSL18 completed the ‘Response to hearing invitation’ and confirmed that she would appear before the Tribunal, with DSG18 as a witness at the hearing scheduled for 15 January 2018 (CB 132-4).
On 15 January 2018, DSL18 attended a hearing before the Tribunal with her husband and was assisted by a Malay interpreter (CB 135-7).
On 16 January 2018, the applicants were invited by the Tribunal to comment on or respond to information about apparent discrepancies between the witness testimonies given on 27 October 2017 and 15 January 2018 and lack of documentary evidence regarding their claims (CB 145). A response was required by 30 January 2018.
On 22 January 2018, DSL18 responded to the invitation to comment via email (CB 149-150). In that email DSL18 said that she was confused about when her husband first borrowed money from the money lender and omitted to mention in her evidence in October 2017 that their family home in Malaysia had been vandalised by red paint. This omission was due to her inexperience with the Tribunal process, nervousness and depression.
On 6 March 2018, the first applicant provided the Tribunal with a letter from DSG18’s former employer and photos of a house which DSL18 and DSG18 claimed was their home in Malaysia allegedly vandalised with red paint (CB 152-7).
On 29 June 2018, the applicants were notified in writing that the Tribunal affirmed the delegate’s decision to not grant the applicants the visa (CB 158-171) (Decision). On the same day, the same member delivered written reasons for decision in relation to the application for review made by DSG18. In that decision, the Tribunal also affirmed the delegate’s decision not to grant a protection visa to DSG18.
TRIBUNAL DECISION
In the Decision the Tribunal considered and applied the criteria for the visa in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). An applicant must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class (CB 161 [4]).
In accordance with Ministerial Direction No. 56, made under s 499 of the Act, the Tribunal took into account policy guidelines prepared by the Department of Immigration (PAM3 Refugee and humanitarian - Complementary Protection Guidelines; PAM3 Refugee and humanitarian - Refugee Law Guidelines) and relevant country information assessments prepared by the Department of Foreign Affairs and Trade, expressly for protection status determination purposes, to the extent that they are relevant to the Decision (CB 162 [9]).
In assessing the claim, the Tribunal considered the following:
•Country information
•Country of nationality
•Third country protection
•Membership of the same family unit
•Credibility findings
•Applicants’ Accepted Personal Circumstances
•Claims for Protection
•Effective Protection Measures
•Residual claims
•Cumulative Findings
•Other Findings
The Tribunal noted that in the submitted 866C forms for the visa application, there were no written claims about the reasons why DSL18 and DSN18 were owed protection obligations or feared serious harm, and no documents to support their claims were attached to the application or provided at a later date (CB 162 [19]).
The Tribunal gave the applicants the benefit of the doubt regarding the discrepancies identified by the Tribunal in the oral evidence given at the hearing on 27 October 2017 and at the further hearing on 15 January 2018. The Tribunal accepted the overall oral, written and limited documentary evidence that DSG18 did borrow money from an illicit money lender, that the money lender employed intimidatory and illegal tactics through vandalism and the pig’s head incident, that the applicants had genuinely personally held fears the police would not take their complaints seriously, and although there was no physical harm to DSG18 or DSL18, they feared the illicit money lender would use violence against them for debt recovery purposes and they will not be protected by local authorities (CB 167 [48]).
The Tribunal was also prepared to accepted that DSG18 and the applicants had been threatened in the past by an illicit money lender and that there was a chance of threats continuing if they were to return to Malaysia and also the possibility of ill-treatment (CB 167 [49]).
The Tribunal did not accept that the applicants were targeted based on their Malay ethnicity, their religion or for any other reason mentioned in s 5J(1)(a) of the Act (CB 167 [50]). The Tribunal did not accept that the applicants’ ethnicity was the essential and significant reason for targeting the applicants as required by s 5J(4)(a) of the Act (CB 169-170 [63]). Therefore, the applicants do not satisfy s 5J(1) of the Act and their fear of persecution was not well-founded (CB 167 [50]). The Tribunal also found that the applicants would not be denied effective protection measures in Malayasia if they were to return (CB 168 [56]).
Having considered the applicants’ claims, both individually and cumulatively, the Tribunal found that the applicants do not have a well-founded fear of persecution that satisfies s 36(2)(a), and the applicants were not refugees as defined in s 5H of the Act (CB 170 [68]).
The Tribunal was not satisfied that DSL18 and DSN18 were persons in respect of whom Australia has protection obligations. Therefore, the applicants did not satisfy the criterion set out in ss 36(2)(a) or (aa) for the visa. The Tribunal also found that the applicants were unable to satisfy the criterion set out in ss 36(2)(b) or (c) and cannot be granted the visa (CB 171 [74]).
The Tribunal affirmed the decision not to grant the visa (CB 141 [75]).
PROCEEDINGS IN THIS COURT
On 18 July 2018, the applicants (DSL18 and DSN18) lodged an application for judicial review of the Decision in this Court. The grounds of application were as follows:
1.The member of the Tribunal failed to consider the provided reports on the situation I am facing in Malaysia.
2.The member of the tribunal against all the information I told them and also the evidence I have submited to them.
3.The Member of Tribunal not taken seriously about my claim that my family and I will be harmed at Malaysia.
4.The member of Tribunal don’t know about the real situation that we facing in Malaysia. They just believe to what they get from the internet, which is the case that they refer already past for a few years ago.
The application for judicial review was supported by an affidavit by DSL18 affirmed on 18 July 2018 that annexed a copy of the Decision.
The grounds of review in the related proceeding were in exactly the same terms and did not identify, with any particulars, those aspects of the Decision and the decision of the Tribunal in the related proceeding that were said to constitute jurisdictional errors.
On 27 November 2019, a Registrar of this Court made orders that DSL18 file and serve any amended application with proper particulars of the grounds of application, a supplementary Court Book and written submissions 28 days before the final hearing of their application for judicial review. The Registrar also ordered that DSL18 be appointed litigation guardian of DSN18 for the proceeding.
On 18 February 2025, a Registrar of this Court made further orders that the first applicant file and serve any amended application with proper particulars of the grounds of application, supplementary Court Book and written submissions 28 days before the final hearing.
The final hearing was fixed for 11 June 2025 to be heard in person at Melbourne. The applicants did not file or serve any amended application, further affidavit evidence or written submissions as ordered by the Registrar on 18 February 2025. The Minister prepared a Court Book and an outline of submissions.
At the hearing before this Court on 11 June 2025, DSL18 and DSG18 appeared in person self-represented. They were both assisted by an interpreter fluent in the Malay and English languages. The Court confirmed that DSL18 and DSG18 received the Court Book in relation to both proceedings and the Minister’s outline of written submissions.
Ms Mills of counsel appeared for the Minister.
Because the applicants were unrepresented the Court gave DSL18 and DSG18 the opportunity to explain orally the reasons why the Decision should be remitted to the Tribunal because of a material jurisdictional error. The Court explained the possible categories of jurisdictional error and that the role of the Court is to rule on the legality of the Decision, but it is not permitted to undertake merits review or to grant the visa.
APPLICANT’S SUBMISSIONS
DSG18 asked to rely on written submissions prepared. The submission was titled ‘Applicant’s Submissions in Reply to the Minister’s Response and Tribunal Findings’ and was marked for identification as ‘MFI-A1’.
Ms Mills on behalf of the Minister, objected to reference in the submission to ‘country information’ in the section headed ‘Annexure A’, as this was not actual country information considered by the Tribunal and appeared to be expressing uncorroborated opinions that were not in evidence before the Tribunal. No reports were produced by the applicants to the Tribunal or in evidence before this Court. The Court permitted DSL18 and DSG18 to rely on the document as an outline of submissions and not evidence or proof of the assertions therein.
The submissions were also said to be in response to the Minister’s submissions dated 28 May 2025 and in response to the findings of the Tribunal in both this proceeding and the related proceeding. The submissions merely sought to address perceived factual errors in the findings of the Tribunal but did not identify material jurisdictional errors. At best, DSL18 and DSG18 sought to revisit the merits of the Decision and the findings of the Tribunal as to the risk of serious harm if the applicants were to return to Malaysia.
DSG18 submitted that in the Decision, the date and reason for his marriage to DSL18 was incorrect. DSL18 agreed and said that the reason for their marriage was not because she was pregnant but because they were caught in a relationship by the “Department of Islamic Authorities”. DSL18 also submitted that the Tribunal also made an error when referring to DSN18’s first name.[5] DSL18 submitted that the country information considered by the Tribunal did not reflect their personal experience of life in Malaysia.
[5] This was an error in the decision of the Tribunal in the related proceeding and not an error in the Decision of the Tribunal under review in this proceeding.
DSG18 submitted that the Tribunal erred in not giving sufficient weight to the incident involving the pigs head which was submitted to be designed to humiliate and intimidate DSG18 in a religious context. This was said to be a religiously motivated incident and not merely criminal intimidation.
When asked by the Court to explain ground one of the application for judicial review, where the applicants said that the Tribunal “…failed to consider the provided reports on the situation”, DSG18 submitted that the Tribunal “wasn’t able to see our point of view” that by placing the pigs head on their doorstep, this was an “insult” to them. The Tribunal did not properly consider the insult that was intended by that incident or consider it from their point of view.
In relation to ground two of the application for judicial review, DSL18 said that the Tribunal did not consider that they were too fearful to make a police report and that the Tribunal did not properly consider the “resignation letter”. This was a reference to the translated letter from the former employer of DSG18 (CB 156). DSG18 and DSL18 both asserted that the Tribunal took the country information prepared by DFAT more into consideration than “what they went through personally” and that this was wrong.
When addressing ground three of the application for review, it was submitted by DSG18 that the Tribunal did not take seriously the shame and fear that he and his wife felt by “what has happened to us”. DSG18 asserted that they did not want to involve their family in their personal financial affairs and that no family members could help them out and were not involved in borrowing from the money lender so that they “don’t get in trouble”.
Finally, to ground four that the Tribunal ‘don’t know about the real situation’ and ‘just believe what they get from internet, which is the case that they refer already past for a few years ago’, it was submitted that this was a reference to the Tribunal considering country information which DSG18 and DSL18 believed was incorrect or inaccurate. It was submitted by DSL18 that Malaysian police enforcement and protection was not effective to protect the family from harm and persecution. It was submitted that the police “won’t do anything” and it was a mistake to think that the Malay police were effective.
The elaboration or explanation of the grounds of review by DSG18 and DSL18 was confusing and circular. It did not assist in identifying material jurisdictional error and could best be described as empathic disagreement with the factual findings of the Tribunal regarding the claims for protection in both applications.
MINISTER’S SUBMISSIONS
Ms Mills tried valiantly to address the broad assertions made by DSG18 and DSL18 in their oral and written submissions and sought to identify each submission in an orderly way.
Firstly, it was submitted that contrary to ground one of the application for judicial review, no country information or “reports” were provided to the Tribunal by the applicants about the “situation [they] [were] facing in Malaysia”. The Tribunal considered country information prepared by DFAT as it was required to do under Ministerial Direction No. 56. The Tribunal expressly referred to the photographs provided by DSL18 (CB 154-5) and to the letter from DSG18’s former employer (CB 156). There was no other evidence identified by DSG18 or DSL18 that the Tribunal failed to consider or address.
In relation to ground two, the Tribunal did consider the evidence relied on by DSG18 and DSL18 and gave that evidence some weight. The consideration of the evidence is addressed at paragraphs [18], [27], [28]and [29] of the DSG18 decision and paragraphs [19], [28], [29] and [30] of the Decision. The Tribunal also addressed the claims in relation to religious persecution and the pigs head incident at CB 167 [46], [47], [48] and [51] of the Decision. The Tribunal considered the personal circumstances of DSG18 and DSL18 at CB [40],[41],[42] and [43] of the Decision and their claims for protection (CB 166-7, [45] and [46]). The Tribunal considered and accepted each of the claims made and gave DSG18 ‘the benefit of the doubt’ in relation to discrepancies in his evidence.[6] Similarly, the Tribunal accepted that DSG18 and DSL18 had been threatened and did owe money to a money lender and that there was a chance that they may be threatened if the return to Malaysia (CB 167 [49]).
[6] CB 136 [49] of the decision in the related proceeding
The written claims of the application were very limited and no documents to support the claims or application were provided to the Tribunal until after the hearing on 15 January 2018. However, those documents were considered and accepted as genuine by the Tribunal.
In relation to ground three, the Decision clearly reflected that the Tribunal accepted the seriousness of the claims for protection and gave both DSG18 and DSL18 the benefit of the doubt regarding the absence of evidence. The Tribunal also accepted that DSG18 and DSL18 had been threatened and may be threatened in the future. The Tribunal concluded (based on country information) that there were effective protection measures available to them in Malaysia. The Tribunal was entitled to rely on that information and there was no error in doing so (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (NAHI)).
The Tribunal could not have failed to consider any country reports produced by the DSG18 and DSL18 because they did not produce any to the Tribunal or this Court. At no stage did the applicants submit alternative or supplementary country information, such as media reports, to contradict the country information relied on by the Tribunal.
Further, contrary to ground of review four, the Tribunal did consider country information regarding arranged and forced marriages, policing and loan sharks (CB 163-4 [31]-[32]).[7]
[7]See also CB 130 [30]–[32] of the decision in the related proceeding.
The Tribunal did consider all of the information submitted, with respect to claims of protection and the factual claims.
In response to the applicant’s submissions regarding DSN18’s name error in the DSG18 decision, the Minister submitted it was a typographical error, and the correct details are noted in the preceding paragraph. It was submitted that the error did not affect the Tribunal decision and was not a material jurisdictional error. This typographical error also does not occur in the DSL18 decision, and DSN18 is correctly referred in paragraph [3] of the Decision.
It was submitted that the grounds of review and the written submissions do not disclose any jurisdictional error and that the application for judicial review in both proceedings should be dismissed with costs.
REPLY
In response, the applicants stated that they realised they did not have enough evidence and were not able to document when they were in that situation and “in that time, [they] never thought to apply for protection”. The applicants wished to note that their child has “grown up” in Australia “from kindergarten” and they “have lived here safely”, offering to provide a letter of evidence that their child studies in Australia.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, at [17] Allsop CJ, Besanko and O’Callaghan JJ described the role of a Court exercising judicial review as follows:
[17]…an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, the Court said at [3]:
[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.
The criteria for a Protection visa are set out in s 36 of the Act and Sch 2 to the Regulations. An applicant for a Protection visa must satisfy one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or for other complementary protection grounds, or is a member of the same family unit of such a person.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country (s 5H(1)(a) of the Act). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country (s 5H(1)(b) of the Act).
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of; race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K to 5LA, of the Act. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (s 36(2)(aa) of the Act). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and 36(2B) of the Act.
In ARV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 426 at [5]–[8] Justice Katzman described the eligibility criteria as follows:
[5] Particular criteria for a protection visa are set out in s 36 of the Act. Section 36 provides that a non-citizen in Australia will be eligible for that visa if the Minister is satisfied that Australia has protection obligations to that person for one or other of the following reasons:
(1) The person is a refugee (s 36(2)(a)). This is known as the “refugee criterion”.
(2) The Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a “real risk” that the non-citizen will suffer significant harm (s 36(2)(aa)). This is known as the “complementary protection criterion”.
(3) A person is a member of the same family unit as a non-citizen referred to in ss 36(2)(a) or (aa) (s 36(2)(b)–(c)).
[6] The term “refugee” is relevantly defined in s 5H of the Act to mean a person who is outside his or her country of nationality and “owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”. A person has a “well‑founded fear of persecution” if the person “fears being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion”; there is a “real chance” that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the receiving country (s 5J(1)). For a person to have a “well-founded fear of persecution” under s 5J(1)(a), the reason for that fear must “be the essential and significant reason” for the persecution, the persecution must involve “serious harm” to the person, and it must also involve “systematic and discriminatory conduct” (s 5J(4)).
[7] Without limiting what constitutes serious harm, the Act provides in s 5J(5) some “instances” of “serious harm”.
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
[8] In order to suffer “significant harm” for the purpose of satisfying the complementary protection criterion, s 36(2A) provides:
A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The issue to be determined by the Tribunal was whether DSG18, DSL18 and DSN18 were refugees and entitled to a protection visa under s 36(2)(a) of the Act, and if not, whether their circumstances satisfied the complementary protection criteria because there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (in this case, Malaysia), there is a real risk that they will suffer significant harm (s 36(2)(aa)). Alternatively, whether DSL18 and DSN18 were members of the same family unit as a non-citizen entitled to protection under the Act (s 36(2)(c)). The Tribunal addressed these issues in the Decision and considered the limited evidence available to it upon which to satisfy the statutory criteria.
DSG18 and DSL18 make various complaints about the Decision which reflect disagreement with the weight given by the Tribunal to their personal circumstances. Their applications to this Court reflect an attempt to obtain merits review rather than identify jurisdictional error. The Decision shows that the Tribunal gave more weight to the country information prepared by DFAT than to the evidence of DSG18 and DSL18 which was vague and uncorroborated. The Tribunal was entitled to rely on country information as it did (NAHI at [11]). There was no error in so doing.
Further, most if not all, of the failures by the Tribunal to consider the evidence alleged by DSG18 and DSL18 are erroneous because the Tribunal did consider their personal circumstances and gave their evidence the benefit of the doubt despite discrepancies in that evidence. After considering that evidence, the Tribunal was not satisfied that DSG18, DSL18 and DSN18 satisfied the statutory criteria for the visa and this was a conclusion that was open to the Tribunal on the evidence. There was no failure by the Tribunal to apply the correct legal test, no failure to consider relevant material or the consideration of irrelevant material and the Decision was reasonable, logical and rational.
Each of the grounds of review identified in the application for judicial review do not disclose jurisdictional error.
Ground 1
This ground is vague and unclear. The ‘provided reports’ are not identified and there is nothing in the Decision that reflects a failure to consider any evidence available to the Tribunal. The Tribunal did consider “the situation [they] [are] facing” in relation to both DSG18 and DSL18 and their daughter. The Tribunal concluded that there were effective protection measures available in Malaysia. That the applicants disagree with this conclusion, does not mean that the finding was erroneous. This ground is dismissed.
Ground 2
This ground is also vague. The information which the Tribunal failed to consider is not identified nor is any error in consideration of the evidence available to the Tribunal. As counsel for the Minister identified, all the claims and concerns raised by DSG18 and DSL18 were addressed by the Tribunal as were their “residual claims” about the circumstances leading to their marriage and the alleged lack of family support. The Tribunal was not satisfied that this would result in serious harm to DSG18 or DSL18 or their daughter DSN18. This ground is also dismissed.
Ground 3
There is nothing disclosed in the Decision or the decision of the Tribunal in the related proceeding to suggest that the Tribunal did not appreciate the seriousness of the statutory task. This ground is a complaint about the merits of the Decision and the weight given to the evidence of both DSG18 and DSL18. Mere disagreement with the findings is not a basis upon which to quash a decision of the Tribunal and does not establish jurisdictional error (see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [92] per Wigney J). There is no jurisdictional error identified in this ground and it too must be dismissed.
Ground 4
As submitted by counsel for the Minister, there was no country information relied on by DSG18 or DSL18 when before the Tribunal. There was no attempt to contradict the country information relied on by the Tribunal and this ground of review does not identify how or why the country information relied on was erroneous or unreliable. The complaint in this ground lacks any evidentiary foundation and there is no particularity as to any part of the country information relied on by the Tribunal as inaccurate. Again, this appears to be disagreement rather than the identification of jurisdictional error.
Written Submissions
The written submissions of DSG18 (MFI-A1) (written submissions) refer to the inclusion of ‘relevant country information’ to support the claims for judicial review. No information is included apart from assertions made on page 2 of that document that appear entirely consistent with the country information considered by the Tribunal and identified in the Decision. Insofar as the assertions in the submissions differ to the findings of the Tribunal the assertions are not supported by any evidence. The complaints about country information in the submissions appear to be directed to the merits of the decision and not jurisdictional error.
The written submissions seek to clarify the evidence produced to the Tribunal by DSG18 and DSL18 with the caveat that it was difficult for DSG18 and DSL18 to obtain evidence from their home country. That does not establish jurisdictional error by the Tribunal. The Decision reflects that the Tribunal accepted the claims made but was not persuaded that the statutory criteria for the visa were satisfied. No further evidence was identified as available to DSG18 or DSL18 to further their cause or claims.
The written submissions also raise concerns regarding the weight given by the Tribunal to the pig’s head incident, the forced marriage of DSG18 to DSL18, the absence of family support, financial hardship, risk of harm and persecution on return to Malaysia and the weight given to these claims. Counsel for the Minister identified in her written submissions that each of these concerns was in fact addressed by the Tribunal in the Decision and weight was given to those concerns. Again, this seeks that the Court engage in impermissible merits review.
DSG18 also identifies a typographical error in the reasons for decision in the related proceeding where the Tribunal refers to the name of a person that is not DSN18 or any member of his family.[8] This is clearly a typographical error by the Tribunal but it is not a material error that effects the lawfulness of the Decision or the decision of the Tribunal in the related proceeding.[9]
[8] See CB 134 [36] of the decision in the related proceeding.
[9]AWU15 v Minister for Immigration and Border Protection [2019] FCCA 496 at [37]–[40] per Judge Lucev and Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 at [30] per Bromwich J.
DSG18 also submits in the written submissions that an order for costs against him or his wife would cause severe distress and requests that no costs be made against them. That may be so, but personal distress and financial hardship is not a basis to refuse to make an order for costs against an unsuccessful litigant especially where there is no evidence to support the assertion. In the circumstances of this case, where the parties have participated in a contested final hearing the normal order that costs follow the event is appropriate.
None of the grounds identified by DSG18 and DSL18 in their applications for judicial review or the written submissions identify a material jurisdictional error. Further, nothing submitted at the hearing by DSG18 and DSL18 advance any new or substantial grounds upon which to quash the Decision or the decision in the related proceeding.
The Court has also scrutinised the application, the materials before the Tribunal and the Decision to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB V Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], [100] and [112]-[114]. No jurisdictional error is found. The application for judicial review is dismissed.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’, which is the current Ministerial title which changed on 13 May 2025. An order will be made to that effect.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $8,371.30, in this proceeding and the related proceeding, 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 of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
There was considerable overlap between this proceeding and the related proceeding. The solicitors for the Minister were required to prepared two separate Court Books and respond to two separate applications. However, only one appearance was required at the final hearing and counsel prepared an outline of submissions that addressed the claims in both proceedings. Therefore, it is not appropriate to order that the Minister be awarded the maximum sum prescribed by the Rules in both proceeding. In the exercise of the Court’s general discretion as to costs, an appropriate and reasonable sum in each proceeding is $7,500.00. This represents a reduction of approximately 10% in the scale fee for each proceeding.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The application for judicial review filed 18 July 2018 be dismissed.
The first applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,500.00.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of Judge Corbett. Associate:
Dated: 25 August 2025
0
8
2