DYA18 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 751

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).

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AGLC
DYA18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 751
Case
[2025] FedCFamC2G 751
Decision Date

CaseChat Overview and Summary

In DYA18 v Minister for Immigration and Citizenship, the applicants, citizens of Malaysia, sought judicial review of the Tribunal's decision to deny their application for a Protection (Class XA) (Subclass 866) visa. The applicants argued they faced persecution in Malaysia due to their third child's gender dysphoria, necessitating protection in Australia. The court was tasked with determining whether the Tribunal had made a material jurisdictional error by considering irrelevant evidence or failing to account for material facts. The applicants contended that the Tribunal erred by not adequately considering their claims of discrimination and persecution, particularly regarding their child's gender dysphoria.

The central legal issue was whether the Tribunal had erred in its assessment of the applicants' claims of persecution based on their child's gender dysphoria. The court examined if the Tribunal appropriately considered the evidence presented, including medical reports, country information assessments, and the applicants' own testimonies. It was necessary to ascertain whether the Tribunal had overlooked critical evidence or misconstrued the applicants' claims. Additionally, the court scrutinized whether the Tribunal's decision-making process adhered to the principles of legality and if the Tribunal had correctly applied the relevant statutory provisions and ministerial directions.

The court found no material jurisdictional error in the Tribunal's decision. It concluded that the Tribunal had properly considered all relevant evidence and country information, and had correctly applied the applicable legal standards. The Tribunal's assessment of the credibility of the applicants' claims and the evidence supporting those claims was deemed sound. The court found that the Tribunal's conclusion that the applicants' claims of persecution were unconvincing was reasonable and supported by the evidence. Consequently, the application for judicial review was dismissed, and the Tribunal's decision to deny the visa was upheld.

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 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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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]).

Ratio Decidendi

Legal Principle Established

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.”