DYA18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 751
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYA18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 751
File number(s): MLG 2251 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 23 May 2025 Catchwords: MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review –– Gender dysphoria claims for protection - Whether material jurisdictional error by the Tribunal – Whether Tribunal considered irrelevant evidence or failed to consider any material facts – No error – Application dismissed - Related proceedings. Legislation: Migration Act 1958 (Cth), ss 36(2), 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 476(1), 499
Migration Regulations 1994 (Cth), Sch 2, cl 866.221
Cases cited: 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) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Border Protection v Streeton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission/s: 3 March 2025 Date of hearing: 3 March 2025 Place: Melbourne Solicitor for the Applicants The first and second applicant appeared in person on behalf of the third applicant, self-represented Solicitor for the Respondents Mr J Macaulay, Clayton Utz ORDERS
MLG 2251 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYA18
First Applicant
DYB18
Second Applicant
DYC18
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The name of the second respondent is amended to ‘Administrative Review Tribunal’;
3.The application for judicial review filed 31 July 2018 is dismissed; and
4.The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,467.00.
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
JUDGE CORBETT
The applicants seek judicial review of a decision of the second respondent (Tribunal) made on 4 July 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 outcome of the application for judicial review is also relevant to claims for protection visas in related proceedings in this Court in which the applicants have been given the pseudonym FGC18 and FGD18. In those proceedings, the first applicant in this proceeding (DYA18) is the appointed litigation guardian of FGC18 and FGD18. The related proceedings have the designated court file numbers MLG 3000 of 2018 and MLG 3001 of 2018 (related proceedings).
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
The applicants are citizens of Malaysia. They first arrived in Australia in November 2012 on ETA Tourist Visitor visas. In June 2013, they returned to Australia, again on Visitor visas (CB 14, 45-8 and 311-2).
On 7 November 2014, the first applicant applied for the visa, the second and third applicants are members of the first applicant’s immediate family unit being the first applicant’s husband and son (CB 1-45). The application for the visa claims protection on the basis that, should the applicants return to Malaysia, they claim that they will suffer discrimination and persecution due to the third applicant’s gender dysphoria (CB 45).
In the related proceedings, the applicants are the second son of the first and second applicants (FGC18) and their daughter (FCD18), both of whom were born in Australia but claim to be Malaysian citizens.
In the present case, the first applicant claimed that her first son, the third applicant, had been demonstrating “girly behaviours” and subsequently the family had and will continue to experience discrimination in Malaysia (CB 45). Attached to the application for the visa were copies of the applicants’ passports, photos of the third applicant taken in 2013, the third applicant’s birth certificate and a claims statement dated 5 November 2014 (Statement) prepared by the first applicant in response to the visa application questions regarding the reasons for claiming protection (CB 45-8).
The Statement explains that in 2012, the applicants first arrived in Australia on a Visitor visa when the third applicant was fifteen months old. Before returning to Malaysia in May 2013 their son began exhibiting “girly behaviours” including refusing to get a haircut, demonstrating a preference to wear headbands and watch “girly cartoons” (CB 45). When the applicants returned to Malaysia in May 2013, their immediate family and neighbours noticed the child’s “unusual behaviour” (CB 47). The first applicant claimed that the family was then persecuted. The examples given were that strangers asked that the child leave a playground, the child was picked up by strangers and thrown at the first applicant and harmed and red paint was thrown on the first applicant mother’s home causing the first applicant, her husband and child to leave her mother’s home and move into a motel (CB 46-7). This aggravation and forced displacement prompted the applicants to return to Australia in June 2013 again on a Visitor visa before making the visa application in November 2014 (more than twelve months after arrival) (CB 47).
The Statement records that the first and second applicants fear harm if they return to Malaysia including loss of custody of their child, further discrimination perpetrated against the third applicant and general perceived harm (CB 48).
On 2 April 2015, the delegate of the Minister refused to grant the applicants the visa. The delegate of the Minister was not satisfied that the first applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act) and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 76-9). The notification letter attached information regarding review rights (CB 82-6) and a decision record dated 2 April 2015 (CB 87-95).
On 13 May 2015, the applicants applied to the Refugee Review Tribunal for a merits review of the delegate’s decision (CB 96-111).
On 27 May 2016, the applicants appointed a solicitor and migration agent to act on their behalf in relation to the application to review the delegate’s decision (CB 120-1).
On 21 December 2016, the Tribunal notified the applicants and their representative that the Tribunal was preparing their application for hearing. The applicants were invited to send any additional evidence to the Tribunal as soon as possible (CB 126).
On 27 February 2017, an invitation to attend a hearing was sent to the applicants and their representative. The hearing was scheduled for 21 March 2017. The invitation invited the applicants to submit any further evidence and written submissions by 14 March 2017 (CB 131-4).
On 10 March 2017, the applicants’ representative requested an adjournment of the scheduled hearing, noting that the applicants are currently waitlisted to attend an appointment to see a specialist at the Royal Children’s Hospital Gender Dysphoria Service (CB 146-8). The hearing was adjourned (CB 154).
On 26 July 2017, the Tribunal invited the applicants to attend a hearing scheduled on 17 October 2017 (CB 168-9).
On 2 October 2017, the applicants’ representative provided the Tribunal with further documents (CB 180) including:
(a)AAT appointment of representative form dated 2 October 2017 (CB 207-8);
(b)Response to hearing invitation form, dated 2 October 2017 (CB 188-90);
(c)Statutory Declaration by the first applicant, dated 2 October (Declaration) (CB 184-7);
(d)Report from a Clinical Psychologist from the Royal Children’s Hospital, dated 25 September 2017 (Clinical Report) (CB 181-3); and
(e)Sixteen photographs of the third applicant (CB 191-206).
The Clinal Report details that the third applicant, then age five, had been seen by a Clinical Psychologist on four occasions between 29 May 2017 and 4 September 2017 (CB 181-3). The Clinal Report provided an assessment summary of these sessions concluding that the frequency and intensity of the third applicant’s gender dysphoria fluctuates providing no determinative diagnosis (CB 183). It was recommended that the third applicant return in six months for further assessment.
The Declaration provided a summary of claims for protection, noting that the first applicant continues to rely on statements made in the Statement dated 5 November 2014 (CB 184-7).
On 13 October 2017, the applicants’ representative provided extensive written submissions to the Tribunal. The submissions recorded the birth of two additional family members who were also making claims for protection in the related proceedings (CB 212-7).
On 16 October 2017, the hearing scheduled on 17 October 2017 was adjourned on a date to be fixed due to the unavailability of the Tribunal member (CB 220). The hearing was re-scheduled to be heard on 8 May 2018 (CB 225-6).
On 8 May 2018, the first and second applicants attended a hearing before the Tribunal assisted by their migration agent. They were also assisted by a Malay interpreter (CB 247-253). At the hearing, the applicants provided copies of their passports and a newspaper article regarding discrimination of LGBT people in Malaysia (CB 254-9).
On 9 May 2018, the applicants’ representative wrote to the Tribunal seeking clarification as to whether further submissions and evidence were required, because the Tribunal member indicated at the hearing that country information supported the applicants’ claims (CB 261-2).
On 10 May 2018, the Tribunal replied to the 9 May 2019 email, as follows (CB 263):
…It appears that this email does not accurately reflect the tribunal’s position in relation to this case and related cases 1711264 and 1722963.
The hearing for this case has been postponed for over 12 months from March 2017 to enable a gender dysphoria assessment to be undertaken and the Clinical Psychologist had indicated she had seen the child on four occasions and the report seemed clear, the Tribunal indicated that it was not seeking an additional or updated report. The Tribunal also put to the applicants at the hearing that they say they feel their son is transgender but there seems to be little in the Clinical Psychologist’s report to support that conclusion and quoted from the report in support of this view.
In relation to DFAT country information, the Tribunal noted DFAT’s assessment that transgender individuals, especially biologically male Muslims who either cross-dress or identify as transgender, face a high risk of official and societal discrimination and a moderate risk of societal violence. The Tribunal noted the information indicated that ‘a few’ state governments had run programs aimed at rehabilitating suspected LGBTI youth and the Terengganu Government has run a re-education boot camp for ‘effeminate’ teenage males, which had been criticised by a government Minister, and commented that there was nothing in the DFAT report to indicate such measures had been taken in relation to pre-teenage children.
On 21 May 2018, the applicant’s representative provided comprehensive post-hearing written submissions and a pamphlet from the Royal Children’s Hospital regarding gender dysphoria (CB 283-298).
On 5 July 2018, the Tribunal notified the applicants of its decision to affirm the delegate’s decision not to grant the visa (CB 299-324). Attached to the notification was a copy of the Decision dated 4 July 2018 (CB 305-324) (Decision).
TRIBUNAL DECISION
In the Decision, the Tribunal identified the relevant criteria to be satisfied for the grant of a Protection visa under ss 36(2)(a), (aa), (b), and (c) of the Act and in Sch 2 to the Regulations. The Tribunal also referred to the 1951 Refugee Convention relating to the Status of Refugees and Ministerial Direction No. 56 made under s 499 of the Act which provide guidance in the assessment of applications for protection (CB 306-7 [6]-[10]).
The Tribunal also noted the requirement to consider country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) (CB 307 [10]).
The Tribunal summarised the first applicant’s claims for protection in the visa application and the additional matters raised in the Declaration (CB 307-8 [12], 309 [16]). The Tribunal then considered the evidence of the applicants’ personal background and circumstances in which all applicants left Malaysia and sought protection in Australia (CB 311-2 [29]).
The Tribunal determined that the key issue on review of the application was whether there was a real chance that the applicants, particularly the third applicant, who is a person who does not conform to traditional gender stereotypes, would be persecuted and suffer serious harm if returned to Malaysia. The Tribunal then considered the available evidence (CB 311 [26]).
The Tribunal considered the first and second applicants’ evidence of their first visit to Australia and the duration of that stay. The Tribunal found that the applicants stayed in Australia from 15 November 2012 to 15 May 2013 which was a breach of the terms of their ETA Tourist Visitor visa (CB 312 [30]-[33]). The Tribunal considered the evidence of how the first and second applicants supported themselves during their stay as visitors in Australia and found their evidence to be unconvincing (CB 312 [33]). The Tribunal then considered the first and second applicants’ evidence about their return to Malaysia and the alleged persecution, discrimination and harm they claimed to suffer (CB 313 [34]-[42]). The Tribunal also found that evidence to be unconvincing (CB 316 [43]).
The Tribunal did not find that the applicants’ claims of extreme behaviour by members of their family in Malaysia, neighbours and wider community to be credible as there was no corroborating evidence to support those claims (CB 316-8 [43]-[46]).
In the assessment of the applicants’ claims for protection, the Tribunal considered the medical evidence provided by the applicants including; the Clinical Report, photographs, the child’s age, relevant country information reports provided by DFAT and media articles provided by the applicants (CB 310 [26], 319 [51]-[52]). The Tribunal found the evidence of the third applicant’s emerging gender dysphoria to be unconvincing and did not accept that the Clinical Report supported the first applicant’s claims that the third applicant was transgender or a person who did not conform to gender stereotypes (CB 319-322 [51]-[58]).
The Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act. The decision of the delegate to refuse the visa was affirmed (CB 324 [70]).
PROCEEDINGS IN THIS COURT
On 31 July 2018, the applicants filed an application for judicial review in this Court under s 476 of the Act citing two grounds of review (CB 325-30). The application for judicial review was accompanied by an affidavit affirmed by the first applicant on 31 July 2018. The affidavit annexed a copy of the decision of the delegate dated 2 April 2015, a letter from the Tribunal dated 15 July 2018 that was provided to the second applicant providing notification of the Decision and the Decision (CB 331–365).
The applicants’ application for judicial review raised two grounds:
(1)The decision was affected by jurisdictional error and is not a ‘privative clause decision’ within the meaning given by subsection 474(4) of the Migration Act 1958.
(2)I believe that the decision was unfair and unreasonable (CB 328).
On 22 January 2020, a Registrar of this Court made orders appointing the first and second applicants as joint litigation guardians of the third applicant and directed that the applicants file and serve any amended application with proper particulars, supplementary Court Book and written submissions at least 28 days before the final hearing date (CB 369-70).
The hearing of the application for judicial review was listed before this Court at Melbourne on 3 March 2025. The applicants did not file or serve any documents or materials as ordered on 22 January 2020 and appeared self-represented, with the assistance of an interpreter fluent in the English and Malay languages.
Mr Macaulay, solicitor, appeared on behalf of the Minister. The Tribunal filed a submitting appearance.
At the hearing, the Court confirmed that the applicants received the Court Book prepared by the solicitors for the Minister and the outline of written submissions filed on behalf of the Minister.
APPLICANTS’ SUBMISSIONS
Noting that the applicants were unrepresented, the Court explained that the Court cannot review the merits of the Tribunal’s Decision to grant the visa, rather, the role of the Court is restricted to determining whether the Tribunal made a jurisdictional error. The Court explained that the applicants needed to demonstrate that a significant legal or factual error was made in the Tribunal’s Decision. The Court asked the applicants to explain why the Tribunal made a significant mistake in the Decision.
The first applicant made three submissions in support of the grounds of review. The first was to refer to the Minister’s outline of submissions at paragraph [18] which provided a summary of the Tribunal’s findings in the Decision. The first applicant then addressed the finding summarised in paragraph 18(g) of the submissions and asserted that, insofar as the Tribunal found that discrimination did not happen to transgender children in Malaysia, the Tribunal was wrong. It was submitted that even Wikipedia refers to discrimination against transgender people in Malaysia.
Secondly, at paragraph 18(e) of the Minster’s submissions, it was submitted that the Tribunal was not persuaded by the applicants’ claims that they did not work when visiting Australia on a Visitor visa. The Tribunal found inconsistencies in the first and second applicants’ evidence that they were able to fund their stay in Australia from savings (CB 312-3 [30]-[33]). The first applicant submitted that they did fund living in Australia from their savings. It was submitted that the first and second applicants were not able to provide evidence of the full extent of their savings at the hearing before the Tribunal because they used mixed methods of paying including cash and card.
Thirdly, at paragraph 18(f) of the Minister’s submissions, the Tribunal did not accept the applicants’ claims that the third applicant had been forcibly removed from a playground or that the first applicant’s mother’s home was vandalised with red paint (CB 316-7 [44]). The first applicant submitted that the lack of evidence was due to limited access to internet and technology which prevented the applicants from taking photos. The first applicant contended that it was highly probably that further instances of discrimination will happen if the applicants return to Malaysia, especially discrimination perpetrated from their own family.
The Court referred to the Tribunal’s Decision, noting that it was made in 2017. At that stage the third applicant was then starting primary school and noted that the third applicant would now be thirteen years of age. The Court asked if the applicants had retained any further medical or psychological reports regarding their child’s dysphoria. The first applicant responded that no advice had been given to the applicants regarding how to proceed with their claim for protection therefore they have not obtained further reports.
Regarding the Tribunal’s consideration of the delay by the applicants in applying for the visa (i.e. from June 2013 to November 2014) (CB 318 [49]), the first applicant submitted that the first and second applicant were not aware that a Protection visa existed when they returned to Australia in June 2013. It was not until November 2014 that they discovered that they may be eligible for protection. This was because the applicants had limited access to the internet at that time.
The Court referred to the Decision and asked the first applicant to comment on the Tribunal’s conclusion that the Clinical Report provided was inconclusive as to the third applicant’s gender identity issues (CB 319-22 [51]-[58]). The first applicant submitted that they were not asked by the Tribunal to provide further reports. The first applicant noted that the child was still young and “in the between stage”. It was submitted that the Tribunal should have given the applicants more time for the third applicant to be assessed rather than solely relying on the singular Clinical Report. The first applicant claimed that the clinician only spent an hour with the child whereas the parents live with the third applicant. More time was needed to determine whether the child would “conform to what a boy likes”. When asked if there was anything they believed the Tribunal should have considered but did not consider, the first applicant reiterated that the child is still young, and the Tribunal should have given them more time to have the third applicant further assessed.
MINISTER’S SUBMISSIONS
On behalf of the Minister, Mr Macaulay sought to rely upon the outline of written submissions filed on 17 February 2025. For the assistance of self-represented applicants, Mr Macaulay recited a summary of the procedural history of the application to the Tribunal and this application for judicial review.
Mr Macaulay on behalf of the Minister, emphasised that the applicants were provided several opportunities to provide information to the Tribunal regarding their child’s gender dysphoria. The Tribunal adjourned the first hearing scheduled on 21 March 2017 for eight months to allow the applicants to provide a clinical report. The Clinical Report obtained was the only professional evidence of an assessment of the third applicant’s gender identity. The Tribunal considered that Report as important and highly relevant information. The Tribunal also considered the fact sheet or pamphlet, that was provided by the applicants from the Royal Children's Hospital after the hearing when reaching the conclusions about the third applicant’s gender identity. It was submitted that there was no error by the Tribunal in the way in which it considered and applied the information available to it.
In response to the first applicant’s oral submission that the Tribunal should have waited for the child to “develop”, the Minister submitted that the Tribunal is not required to further delay decision-making to allow the applicants to obtain further medical or clinical evidence regarding the third applicant. The Tribunal granted an adjournment to allow the applicants to obtain the Clinical Report. The request for more time would be to postpone any decision for several years to allow the third applicant to “develop”. Further, in response to the first applicant’s claim that the Clinical Report was not an accurate assessment due to the limited time spent with the Clinician, the Minister submitted that this does not identify jurisdictional error by the Tribunal. It was open and appropriate for the Tribunal to consider the evidence as it pertained to gender identity at the time of the hearing.
Mr Macaulay sought to clarify a possible misunderstanding of the first applicant’s oral submission about the Clinical Report and submitted that the Tribunal carefully considered and made reference to the Clinical Report in the Decision (CB 319-322 [55]-[58]). Four paragraphs were dedicated to the consideration of the Clinical Report and it is not an accurate submission that it was not accepted by the Tribunal. To the contrary, the Tribunal considered the Report and concluded on the evidence and opinion expressed in the Report that the third applicant was not a child that did not conform to traditional gender stereotypes (CB 322 [59]).
In relation to ground two of the application for judicial review, the Minister submitted that the Decision was not unfair and unreasonable. The Tribunal did not accept that there was a real chance of serious harm, or a real risk of significant harm based on a logical and thorough consideration of the evidence. There was no evidence to support or confirm the alleged instances in the playground and vandalism of the mother's house. There was also a significant delay in making the visa application which was inconsistent with a genuine fear of persecution and harm. The applicants spent only 34 days in Malaysia after their first visit to Australia and the Tribunal identified that it was this period that was critical to the consideration of the alleged incidents of discrimination, and these were discussed in detail in the Decision. The Tribunal weighed the applicants’ evidence and claims but was ultimately not persuaded that they were credible (CB 318 [49]).
Finally, it was submitted that the applicants’ first ground of review was not contentious. The Minister accepts the general statement of principle that if a jurisdictional error is found, the Decision is not a decision made under the Act and does not fall within the definition of a “privative clause decision” and therefore may be the subject of judicial review by this Court. However, the Decision was not affected by jurisdictional error.
REPLY
The Court summarised and explained the Minister’s submissions to the applicants.
The first applicant referred to the second last sentence of the Minister’s written submissions at paragraph [18](i) where it is submitted that the Tribunal:
…did not accept that the report supported the claim that the third applicant is a transgender person…
The first applicant submitted that the Minister’s contention that the first applicant’s oral submission that the Tribunal did not accept the evidence as “not an accurate submission” is incorrect, when it plainly states in the Minister’s written submissions that the Tribunal did not accept the evidence.
The first applicant repeated her oral submission that the third applicant is still very young and had the Tribunal provided more time for further assessments, the outcome of the Decision would have been different.
The first applicant submitted that the applicants believed that after the Decision was made, they were not allowed to provide further evidence, contending that getting a report after the Decision “wouldn't make any sense”. The Court asked why that would not make sense? The first applicant said that because the Decision had been made, obtaining a further report does nothing to change the outcome since a Decision was made on the first Clinical Report.
The first applicant referred to the Minister’s submissions regarding the 34 days spent in Malaysia being a critical period of assessment of their claims of persecution. The first applicant submitted that the fact that the events occurred in such a short period of time when they returned to Malaysia was significant and rhetorically stated to the Court - “how can this happen in a short period of 34 days?”.
Finally, the first applicant reiterated that they did not know of the existence of a Protection visa, therefore they should not be accused of intentionally delaying making the application when “[they] did not know about it”.
CONSIDERATION
In Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [10], French CJ described the role of the Tribunal conducting a merits review under the Act as follows:
[10] The review function of the tribunals created by the Act is sometimes called “inquisitorial”. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears.” As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate.
The role of this Court is different. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic), 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 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (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:
“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.”
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality 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.
These statements of principle establish the basis upon which this Court must consider the application now made. It is not the role of this Court to reconsider the merits of the Decision but to consider if the Tribunal has erred in a material way.
The grounds upon which the first applicant seeks to establish error are as follows:
·Jurisdictional error at large.
·The Decision was unfair and unreasonable.
·The Decision was based on improper consideration of the evidence available.
·The Tribunal should have adjourned or delayed making the Decision to allow the first applicant to gather additional expert evidence.
These grounds are contained or to be inferred from the application for judicial review and the oral submissions made by the first applicant at the hearing before this Court.
It was properly conceded by the Minister that the statement contained in the first ground of review in the application for judicial review was a correct statement of an accepted legal principle. A decision of the Tribunal that is affected by jurisdictional error is not a “privative clause decision” and is capable of review by this Court under s 476(1) of the Act. The issue to be determined is whether there has been a material jurisdictional error by the Tribunal. This ground of review does not identify any jurisdictional error or provide a reason to quash the Decision and remit the proceeding to the Tribunal to be reconsidered.
The Decision was very detailed and showed the logical consideration of all the evidence available to the Tribunal at the date of the hearing. The Tribunal gave the applicants an opportunity to present expert opinion evidence as to the third applicant’s gender dysphoria. They did so after an adjournment of the first hearing date. The evidence obtained was inconclusive. The Tribunal considered the opinions expressed in the Clinical Report but also the evidence of the first and second applicants in response to questions asked by the Tribunal about the third applicants observed behaviour at the time of the hearing. The Tribunal found that, based on the available evidence, the third applicant was not a young boy who does not conform to traditional gender stereotypes. That finding was clearly open to the Tribunal. The Tribunal also identified two other relevant facts leading to that finding. They were that the third applicant attends an Islamic school in Australia without fear and has expressed no distress or sadness at being a boy. The Tribunal accepted the concerns and fears expressed by the first and second applicants but found them to be misplaced (CB 319-20 [53]-[54]).
The Tribunal also found the evidence of the first and second applicants to be unconvincing on important parts of their claims for protection. The Tribunal was entitled to so find, and it is not apparent from the Decision that the Tribunal considered irrelevant evidence or failed to consider any material facts. The applicants do not identify any material facts that were wrongly considered or any irrelevant evidence that resulted in an erroneous conclusion or finding.
The first applicant submitted in her oral submissions at the hearing before this Court that the Tribunal should have found that transgender children (or children with gender identity issues) are discriminated against in Malaysia. This submission reflects a misunderstanding of the Decision and the Minister’s outline of submissions. The Minister summarised the findings of the Tribunal at paragraph 18(g) of the written outline of submissions. In that paragraph, the Minister said that the Tribunal did not accept that the claimed persecution and discrimination occurred in the manner alleged. That was recorded in the findings made at paragraphs [43]–[46] of the Decision (CB 316-8). In those paragraphs, the Tribunal explained why it did not accept the first and second applicants’ evidence of discrimination and fear of serious harm. The Tribunal did not find that discrimination does not occur in Malaysia, rather found that the applicants’ claims of discrimination and fear of harm were unconvincing.
The first applicant was also critical of the Tribunal’s findings at [30]-[33] of the Decision where the Tribunal expressed concern regarding the motives and intentions of the first and second applicants (CB 312-3). The Tribunal expressed the view that the applicants had decided before they returned to Malaysia in 2013 that they would not return to their former employment in Malaysia and would return to Australia. The first applicant in submissions to this Court disagreed with this finding and submitted it was not open on the evidence. The first applicant claimed that there was additional evidence available to demonstrate that they did in fact fund their first stay in Australia from personal savings. The applicants did not produce that evidence to the Tribunal or adequately explain why it was not produced to the Tribunal. Further, it was not apparent why that information would result in a materially different decision in the circumstances.
Regardless of the availability of further evidence (which was not produced by the applicants), the findings of the Tribunal regarding how the first and second applicants were able to fund their stay as visitors in Australia, was a finding that explained the Tribunal’s concern as to the credibility of the applicants when assessing the credibility of their claims for protection and persecution. The Tribunal’s reasoning shows that, due to a number of facts and claims made by the Tribunal (including the first and second applicant’s explanation of their first stay in Australia as tourists), the Tribunal found their claims for protection unconvincing. Therefore, the Tribunal was unable to accept that the alleged persecution, discrimination and harm claimed by the first and second applicants in fact occurred. That reasoning led to the conclusion in paragraph [61] of the Decision as to the merits of the applicants’ claims (CB 322).
There was nothing erroneous about the approach taken by the Tribunal and it is not for this Court to review the merits of the Decision in that regard. The findings were open on the evidence considered by the Tribunal and the weight given to that evidence is a matter for the Tribunal (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J).
The first applicant also challenged the Tribunal’s finding as to their claims of persecution, discrimination and harm, in particular the findings about the incident in the playground and the alleged vandalism to the home of the first applicant’s mother (CB 313-6 [34]-[42]). The first applicant claimed that there was further evidence available that could not be produced to the Tribunal. The first applicant also expressed concern that further discrimination of this kind was likely to occur in the future. Again, there was no evidence produced to the Tribunal or this Court to support these assertions or fears. The submission identified disagreement with the Decision but not jurisdictional error. The Tribunal explained that it did not accept that there was persecution, discrimination or harm as alleged and found that there was not a real chance of discrimination and significant harm in the future, because the third applicant was not a person who clearly identified as transgender or a young person who does not conform to gender stereotypes.
The first and second applicants were given a reasonable opportunity to present their evidence and were assisted in their application to the Tribunal and at the hearing before the Tribunal by a registered migration agent. Before the hearing at the Tribunal, the first and second applicant sought and obtained an adjournment of the hearing to adduce further evidence. An adjournment of six months was obtained. The first and second applicants then presented further evidence and made further submissions in October 2017. A further adjournment of the hearing was then sought and obtained. The hearing before the Tribunal then took place on 8 May 2018. The representative for the applicants then submitted supplementary submissions and evidence on 21 May 2018 (CB 287-298). In these circumstances, it cannot be found that the Tribunal denied the applicants procedural fairness or an opportunity to be heard. If there was further evidence available to the applicants, then there was ample opportunity to present it. There was no evidence to corroborate the claims of actual discrimination and harm as claimed by the first and second applicants, and the Tribunal was entitled to and did take this into account when assessing the credibility of the applicants’ claims. There was no failure to consider evidence presented to the Tribunal or consideration of irrelevant material by the Tribunal. There was no jurisdictional error by the Tribunal in concluding that the applicant’s claims were unconvincing and therefore the applicants did not satisfy the criteria for the grant of the visa.
UNREASONABLE OR UNFAIR DECISION
The mainstay of the applicants’ claims for judicial review and complaint about the Decision was that it was unreasonable and unfair.
A decision of the Tribunal will be unreasonable or illogical if it is one that no reasonable decision-maker could arrive at on the same evidence, or one that has no evident and intelligible basis (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ).
It is not sufficient to establish illogicality, irrationality or unreasonableness simply because one conclusion has been preferred to another possible conclusion (see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J).
Describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it (see Minister for Immigration and Border Protection v Streeton [2016] FCAFC 11 at [92] and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [40] per Gleeson CJ and McHugh J).
Here, the applicants submitted that the Tribunal was wrong to find that they were not the subject of persecution, discrimination and harm but they do not identify why the Tribunal’s findings in that regard were plainly wrong, illogical or unreasonable. They simply say that the Decision was wrong because the claimed incidents of discrimination and harm did in fact occur. This is a complaint about the findings on the merits into which this Court is not entitled to stray (LPDT at [29]).
The applicants submit that the Tribunal should have provided more time to allow the third applicant to mature and to be reassessed by a psychologist. This, they say, was unfair and a failure to afford procedural fairness. They do not identify a particular time within which they should have been permitted to obtain this further evidence. At the time of the hearing before the Tribunal the third applicant was six years of age (DOB 6/8/2011). He had been assessed by a Clinical Psychologist from the Royal Children’s Hospital on three occasions. There were no apparent signs of gender dysphoria. The Clinical Report is dated 25 September 2017 (CB 181-3). The Clinical Report refers to a further appointment in six months time. The hearing before the Tribunal was on 8 May 2018 (more than six months later) and then a further opportunity was given to the applicants to make supplementary submissions. No further evidence was submitted by the applicants that may cast doubt on the Clinical Report or which was conclusive. No supplementary report from the psychologist was submitted to supplement or contradict the Clinical Report. The applicants did not request further time to obtain any further evidence. The Tribunal did not prevent the applicants from submitting further expert evidence or reports. The Tribunal was not acting unreasonably by reaching a decision based on the evidence produced at and after the hearing. The duty of the Tribunal is to conduct a review and to make a decision without inordinate delay (see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [5] per Gleeson CJ). It was not unreasonable for the Tribunal to refuse to allow the applicants an indefinite period within which to establish the third applicant’s gender identity. There was nothing unfair in the Tribunal performing the statutory task of making a decision based on the available evidence. Procedural fairness was observed and provided. The Tribunal is not “under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and improve on the evidence” (Li at [82] per Hayne, Kiefel and Bell JJ).
The Tribunal assessed the issues to be determined by it and then the evidence and arguments placed before it. The Tribunal also entertained further submissions and evidence after the hearing. Those submissions included further submissions as to the weight that should be given to the Clinical Report and fears of persecution and discrimination. Simply because minds may differ about the conclusions reached by the Tribunal and the weight to be given to the facts identified, does not mean that the decision-maker has acted unreasonably or illogically. The Decision is one which the Tribunal could arrive at based on the evidence and it did have an evident and intelligible basis. That basis was that the evidence of the first and second applicant was unconvincing as to their description of events upon which they sought to rely. Their fears of persecution were found to be not genuine because the third applicant did not display as a person who identified as transgender or a person who does not conform to traditional gender stereotypes. Therefore, protection under s 36(2)(a) of the Act was not available nor did the applicants satisfy the criteria for complementary protection under s 36(2)(aa).
The Decision was not unreasonable, illogical or “unfair”. It was not a Decision that no decision-maker acting on the evidence and arguments could arrive at on the same evidence. It was not unreasonable or unfair to make findings on the evidence available and it was not unreasonable for the Tribunal to determine the review based on the opinion expressed in the Clinical Report.
The Court has also scrutinised the Decision to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114]. No error is apparent. The application for judicial review must be dismissed with costs.
OTHER MATTERS
At the conclusion of the Minister’s submissions, the solicitor for the Minister informed the Court that if the application for judicial was dismissed, the Minister sought costs fixed in the amount of $7,467.00. That sum is the scale amount that may be awarded for a migration proceeding that is finalised after the conclusion of a final hearing (Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth)). That amount is fair and reasonable and should follow the event of this application. The first and second applicants are ordered to pay the Minister’s costs and disbursements of and incidental to this proceeding fixed in the sum of $7,467.00.
On 13 May 2025 the name of the ministerial portfolio responsible for administration of the Act was changed to ‘Minister for Immigration and Citizenship’. The name of the first respondent will be amended accordingly.
Following the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the ‘Administrative Review Tribunal’. An order will be made amending the name of the second respondent and the title to the proceeding.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The name of the second respondent is amended to ‘Administrative Review Tribunal’.
The application for judicial review filed 31 July 2018 is dismissed.
The first and second applicants pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $7,467.00.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 23 May 2025
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