DSL18 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1318

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

  1. 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…

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AGLC
DSL18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1318
Case
[2025] FedCFamC2G 1318
Decision Date

CaseChat Overview and Summary

In the case of DSL18 v Minister for Immigration and Citizenship, the applicants, DSL18 and DSN18, citizens of Malaysia, applied for a Protection (Class XA) visa after arriving in Australia on temporary visas. They claimed they were fleeing persecution and serious harm from an unlicensed money lender who had threatened them with violence and public humiliation. Their application was refused by a delegate of the Minister, a decision that was subsequently affirmed by the Tribunal. The applicants sought judicial review of the Tribunal's decision.

The primary legal issues revolved around whether the Tribunal had made a jurisdictional error in affirming the delegate's decision to refuse the applicants a Protection visa. Specifically, the applicants argued that the Tribunal should have considered additional country information and documentary evidence to support their claims of persecution and serious harm.

The Court examined the criteria for a Protection visa as set out in the Migration Act 1958 and the Migration Regulations 1994, focusing on the requirement that applicants demonstrate they are owed protection obligations or face significant harm. The Court noted that the Tribunal had considered relevant country information and policy guidelines but found no jurisdictional error in the Tribunal's decision. The Court held that the Tribunal had properly assessed the applicants' claims and evidence, including their oral testimony and limited documentary evidence, and concluded that the applicants had not met the criteria for a Protection visa.

The Court dismissed the applicants' appeal, affirming the Tribunal's decision. The Court found that the Tribunal had not overlooked any relevant material or made an error in its consideration of the applicants' claims and evidence. The Court also noted that the applicants had not provided sufficient documentary evidence to support their claims, and the Tribunal's findings on credibility and the likelihood of future harm were reasonable and lawful.

Orders

Orders of the court

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Background

Background to the litigation

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]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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]).

Ratio Decidendi

Legal Principle Established

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.