EWY18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 695
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EWY18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 695
File number(s): SYG 2666 of 2018 Judgment of: JUDGE MCCABE Date of judgment: 15 May 2025 Catchwords: MIGRATION – protection visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider the risks faced by the applicant’s family as forming a basis for the fear of persecution faced by the applicant – whether the claim of vicarious harm to the applicant was articulated or suggested on the material before the Tribunal – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss 5AAA, 36, 476, 499 Cases cited: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
NBCY v Minister for Immigration and Multicultural Affairs [2004] FCA 922
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 30 April 2025 Place: Sydney Counsel for the Applicant: Ms F McNeil (direct brief) Solicitor for the First Respondent: Mr Fyfe, Minter Ellison Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2666 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EWY18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing its decision dated 7 September 2018.
2.A writ of mandamus be issued directed to the second respondent requiring it to determine the applicant’s application for review according to law.
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 MCCABE:
Section 5AAA of the Migration Act 1958 (Cth) makes clear that non-citizens seeking a protection visa are responsible for (a) specifying all the particulars of their claim, and (b) providing sufficient evidence in support. This case demonstrates the difficulty which might arise when the particulars of the claim and evidence are supplied to the Administrative Appeals Tribunal but the case is poorly articulated by the applicant. At the Tribunal hearings and in submissions and materials, the applicant in this case focused on the risk of him experiencing direct harm or persecution if he returned to Malaysia on account of a domestic relationship that was likely to be frowned on. He did mention – but made relatively little of – a concern that his partner and daughter might also experience persecution or harm. As we shall see, the Tribunal dealt with the applicant’s claim without considering the implications of what might be characterised as the risk of vicarious harm to the applicant that could arise out of adverse treatment of his relatives. The Tribunal apparently assumed the risks faced by the applicant’s partner and child would fall to be considered in their separate applications for a protection visa; the Tribunal assumed those risks were otherwise irrelevant to the applicant’s case. By approaching the case in this way, the Tribunal may have misapprehended the relevance of some potentially important claims and evidence that were said to be apparent in the record. In any event, the Tribunal concluded the applicant was unable to satisfy the criteria applicable to protection visas set out in s 36(2) of the Act.
The applicant now contends the Tribunal failed to engage with an important (if poorly articulated) aspect of his claim. I must consider whether there is a material jurisdictional error if the Tribunal decided the case without squarely addressing a claim and evidence that were not highlighted in the applicant’s presentation of his case. The first respondent (the minister) denied the claim of vicarious trauma was squarely raised. In those circumstances, I was told, the Tribunal was not at fault in failing to consider it. The minister says the Tribunal engaged sufficiently with the claim in any event.
I am satisfied the decision under review is affected by material jurisdictional error. It is appropriate to issue (a) a writ of certiorari quashing the Tribunal’s decision, and (b) a writ of mandamus directing the Administrative Review Tribunal to reconsider the matter according to law. I explain my reasons for that conclusion below.
The background
The applicant is a citizen of Malaysia who was born in that country. He is of the Hindu faith. He claimed he met his partner, a Malaysian citizen, in Malaysia in 2015. The applicant said the pair began a relationship in secret. The secrecy was prompted by the fact the applicant’s partner was born and raised as a Muslim. The applicant said his partner’s family expected she would marry a Muslim. Indeed, the applicant said his partner’s family arranged for her to marry a Muslim man in early 2016. The applicant said his partner fled to Australia in March 2016 to escape the arranged marriage. The applicant joined her in this country in July 2016, and they began to cohabit.
The applicant applied for a Protection (Class XA) (Subclass 866) visa on 27 October 2016. His application documents are reproduced in exhibit one (the court book) at pp 1ff. When asked in that document to explain his reason for leaving Malaysia (in the section headed ‘Your reasons for claiming protection’), the applicant referred (at p 35) to concerns about how his relationship would be treated in Malaysia given he was a Hindu and his partner was Muslim. Asked in question 90 what he thought would happen if he returned to Malaysia, he answered cryptically:
If I back Malaysia is nothing for me because I don’t have family again my family never see to me and my partner. [sic]
A delegate of the minister formally refused to grant the visa on 24 November 2016. The delegate’s protection visa assessment is reproduced in the court book at pp 63ff. In summary, the delegate had concerns over whether the relationship between the applicant and his partner was genuine. The delegate was also not satisfied the applicant had demonstrated he was at risk of harm or feared persecution on account of his relationship if he returned to Malayasia.
The Tribunal’s review
The applicant lodged a timely application for review of the delegate’s decision. After the usual pre-hearing steps, the Tribunal held a hearing on 11 August 2017 that was resumed on 27 August 2018. The applicant was legally represented at the first hearing but his representative withdrew before the second hearing. The material before the Tribunal included the relevant contents from the departmental file together with a document titled ‘Statement of Claims’ dated 9 August 2017 (reproduced in exhibit one, the court book, at pp 139ff), and a ‘post-hearing’ submission and statement that were both lodged on 21 August 2018. The applicant also provided the Tribunal with a certificate recording his relationship status with his partner, and he advised the Tribunal of the birth of their child.
In his statement dated 21 August 2018, the applicant spoke of his fear that he would be harmed if he returned to Malaysia. He also noted his partner and child had applied for protection visas because they feared harm were they to return. After briefly describing their fears, he concluded the statement by saying (court book at p 196):
Considering all these circumstances and the risk my child is going to face, I request the member to consider my refugee application.
The applicant also discussed his fears in the statement of claims lodged on 9 August 2017. He said he feared being killed by members of his partner’s family because of their relationship. He said the family members would think he had ruined his partner’s life and brought shame on the family. He said he feared persecution at the hands of religious authorities: court book at pp 142-143 at paras [63]-[66]. But he also said:
67.I fear that [the applicant’s partner] will be accused of having an illegal relationship with a non-muslim man and committing “Khalwat” under the Sharia law. She will be arrested and charged under the Syariah law. The strict enforcement of Sharia Law has placed additional restrictions on the Muslim population that has been marked by Sharia Courts handing down canning sentences for actions such as Khalwat.
68.I fear that [the applicant’s partner] will be harmed because she has failed to adhere to Muslim customs and observances.
69.I fear harm because I will be mistreated by the Malaysian police and Islamic Religious Council for having a defacto relationship with a Muslim girl.
70.I fear that [the applicant’s partner] will be arrested by the Religious Authority as she has committed a crime under Syariah law as she has been practicing Hinduism and going to temple with me.
71.I fear that [the applicant’s partner] will be harmed if her family is aware that she has been practising Hinduism in Australia.
72.My own community would isolate me and I will face discrimination and stigmatization.
73.I fear that [the applicant’s partner] will not be able to practise her believe as a Hindu in Malaysia. Religious converts, particularly those converting from Islam, may face severe stigmatization and serious consequences from the Islamic Religious Department and the Islamic Council.
In the post-hearing submission document, the applicant’s representative spoke of the applicants’ claims for a protection visa – which is to say he was apparently making submissions on the assumption the Tribunal would also deal with the separate applications made by the partner and their child. The submission, which was prepared after the first hearing, sought to address the Tribunal’s apparent concerns over whether the partner was really a Muslim: court book at p 156 at [9]. While the submission spoke of the applicant’s perception of the risk that he would be the victim of harm or persecution, the submission also referred to the risks posed to the partner and child: court book at p 161 at [30].
The representative’s decision to advocate on behalf of the partner and child as if those applications were before the Tribunal appears to have had an unfortunate consequence. The Tribunal pointed out in its reasons (reproduced at pp 205ff of the court book) that the review application before the Tribunal was only valid insofar as it related to the applicant. The Tribunal noted it had no jurisdiction in relation to the other applications: at [3]. As I understand the applicant’s case in the proceedings before me, the Tribunal’s (technically correct) decision as to jurisdiction caused it to misapprehend the relevance of the evidence about harm to the other individuals.
The applicant’s representative withdrew after lodging the post-hearing submission but before the second hearing. That meant the applicant and his partner appeared at the resumed hearing on their own, albeit with the assistance of an interpreter.
The Tribunal’s reasons for decision begin with a conventional explanation of the criteria governing protection visas in s 36(2) of the Act. After dealing with a disclosure issue that is not relevant for present purposes, the Tribunal turned to the evidence. It summarised the contents of the applicant’s written statements and the post-hearing submissions. It also summarised the oral evidence provided by the applicant and his partner at the hearing. As the Tribunal began weighing that evidence, it said (at [43]) the applicant was not a reliable witness. It went on to find:
·The applicant was indeed Hindu as he claimed (at [44]);
·The applicant’s partner was born and raised a Muslim but she had begun following Hinduism since she lived in Australia and now regarded as herself as a Hindu (at [48]);
·The applicant and his partner lived together as a de facto couple and have a child (at [49]); and
·The claim that the applicant and his partner intended to marry was not true (at [51]-[52]).
The Tribunal also explored the applicant’s claims about harm he experienced in Malaysia in the past: at [53]ff. After discussing perceived discrepancies in the applicant’s account over time, the Tribunal rejected much of that evidence. It explained (at [61]):
In light of the above issues I do not accept that the applicant met and commenced a relationship with [the applicant’s partner] in Malaysia, that he went to see [the applicant’s partner]’s mother to seek her approval to marry [the applicant’s partner], that [the applicant’s partner]’s mother refused, or that he and [the applicant’s partner] were threatened or harmed by [her cousin] or [her cousin]’s friends because the applicant and [the applicant’s partner] had any kind of relationship in Malaysia. I reject entirely the claims the applicant made in his protection visa application and on review for leaving Malaysia and coming to Australia including the claim that he had come to Australia to follow Islam. I conclude that those claims were invented and find that the applicant and [the applicant’s partner] met and commenced their relationship in Australia. Further, the above flaws in the applicant’s evidence seriously undermine his credibility generally and led me to conclude that he was not credible.
Having discounted the applicant’s credit, the Tribunal concluded (at [62]-[63]) the evidence did not establish the applicant faced any risk of serious or significant harm or persecution were he to return to Malaysia in the future. The Tribunal observed in relation to the risk of future harm from family or the community (at [62]):
… I do not accept that merely because a person or community disapproves of certain conduct for religious or cultural reasons that gives rise to a real chance that the person or community will subject those who engage in the conduct to serious harm or significant harm nor is there credible independent evidence before me that disapproval of the applicant’s relationship with [his partner], her conversion and the birth of their child would give rise to a real chance that the applicant would be subjected to serious harm or significant harm by any community in Malaysia. I thus find on the evidence before me that there is not a real chance that the applicant will be subjected to serious harm or significant harm as defined in s.36(2A) if he returns to Malaysia from his family, [his partner]’s family, family friends or persons acting on behalf of any family member, or any community group because of his relationship with [his partner], [his partner]’s conversion and their child. [Emphasis added]
The extracted passage makes clear the Tribunal was focused on the (unlikely) prospect of the applicant being directly targeted where he to return. This focus on the applicant’s direct exposure to adverse consequences was also apparent in the Tribunal’s assessment of the attitudes of the Islamic religious authorities. The Tribunal found (at [63]):
There is no credible independent evidence before me that Islamic religious authorities in Malaysia apply sharia law to non-Muslims in response to reports by others or that the police are involved in assisting or cooperating with others to punish non-Muslims under sharia law.
In making those observations, the Tribunal was plainly focused on the prospect of the applicant, a non-Muslim, being the subject of adverse interest. But the Tribunal went on to expressly contrast the applicant’s position with the potential for adverse action against his partner and child. The Tribunal noted (at [63]):
While [his partner] may face punishment under sharia law in Malaysia because she would still be viewed as a Muslim and their child would face consequences in Malaysia as a child born outside marriage, based on the independent evidence before me I find that as a non-Muslim there is not a real chance that the applicant will be subjected to serious harm or significant harm as defined in s.36(2A) under sharia law by any Muslim religious body or authority or the police in Malaysia due his relationship with [his partner], her conversion to Hinduism, or their child. [Emphasis added]
While the Tribunal acknowledged the applicant’s partner and daughter might be at risk, its reasons make clear the Tribunal did not regard that risk as something to be considered in the assessment of the applicant’s claims. The Tribunal found that in the absence of evidence the applicant faced a real chance of serious or significant harm:
·The applicant was unable to establish that he had a well-founded fear of persecution. That meant he could not be regarded as a refugee and could not satisfy the criterion in s 36(2)(a) of the Act (at [64]); and
·he was unable to satisfy the alternative criterion in s 36(2)(aa) (at [65]).
The application for judicial review
The applicant made an application for judicial review pursuant to s 476 of the Act in September 2018. An amended application was filed in April 2025. There are two grounds set out in the amended application for review. I will deal with each in turn.
Did the Tribunal miss something?
The first ground contends the Tribunal fell into error because:
it did not consider the risks faced by the applicant’s family as forming a basis for the fear of persecution faced by the applicant and therefore failed to consider a relevant matter …
and because it:
failed to address an essential part or ‘integer’ of the applicant’s claim as presented to the Tribunal by and on behalf of the applicant …
Ms McNeil, Counsel for the applicant, relied on the Federal Court’s decision in NBCY v Minister for Immigration and Multicultural Affairs [2004] FCA 922. In that case, a citizen of the Democratic People’s Republic of North Korea sought a protection visa. A delegate of the minister concluded the applicant could find refuge in South Korea where he would be regarded as a national, so the protection visa was refused. The applicant told the Tribunal that Communist authorities in the north would almost certainly learn of his return to South Korea. He said those authorities would respond to this development by persecuting family members who still lived in North Korea. While he feared for his own safety if he were returned, he told the Tribunal he was also worried for the safety of his family. The Refugee Review Tribunal accepted the applicant’s family in the north would face reprisals if he returned to South Korea but affirmed the delegate’s decision. The Tribunal said it was not appropriate to consider the risk to the family members when assessing the applicant’s claim because “their circumstances do not fall within the Tribunal’s jurisdiction”. Tamberlin J concluded (at [24]):
In my view, on a fair and reasonable reading of that sentence, the member has elected to give no weight to the likely danger to the applicant’s family. It is evident that the RRT member did not take into account the impact on the applicant of the suffering of his family on the basis that the family members were not applicants “before the Tribunal” and that considerations relating to them are not relevant to the decision of the RRT on the application. I consider this to be a serious error of law on an important question which goes to the RRT’s jurisdiction in that the RRT has elected to ignore a relevant matter. It is also a refusal to address an essential part or “integer” of the applicant’s claim as presented to the RRT by and on behalf of the applicant: …
His Honour went on to explain (at [25]):
Both in principle and on authority “persecution”, in the sense of serious detriment or harm to a person, can arise from a threat to their family and those to whom that person is strongly attached by bonds of kinship, love, friendship or commitment. In El-Merhabi v Minister for Immigration and Multicultural Affairs [2000] FCA 42; [2000] 96 FCR 375 at [16]-[17], for the reasons there stated by Burchett J, severe harm to a member of an applicant’s family can amount to persecution of an applicant and is clearly relevant to the question of whether an applicant can be said to be in danger of persecution. Threats and harm to family members, as a matter of common sense, may cause considerable injury and harm to close members of that family.
It seems the applicant in NBCY did not present their claim at the Tribunal hearing as clearly as they could have done. Even so, Tamberlin J said it was apparent from a reading of the submissions and the transcript that the claim was “raised with sufficient clarity for it to be an important part of the applicant’s claim”.
Ms McNeil noted the Full Federal Court agreed an individual may have a well-founded fear of persecution based upon threats to family members: see DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [28]-[29] per Beach, O’Callaghan and Anastassiou JJ.
Mr Fyfe, who appeared for the minister, pointed out the applicant in DCP16 was ultimately unsuccessful because “the material before the [Immigration Assessment] Authority did not disclose a claim based on a perceived risk of harm to the wife at the time the delegate or the Authority was considering the matter”: at [52]. In those circumstances, the Court said the decision-maker could not be criticised for failing to dwell on that (unarticulated) possibility. Mr Fyfe said the same analysis applies in this case: the claim of vicarious harm was not articulated or suggested on the material before the Tribunal, and the Tribunal referred to evidence about the potential risk facing the partner and child in any event.
While I accept the submissions and a good deal of the evidence in this case were directed to the possibility of the applicant experiencing direct harm, the extract from the statement of claims at p 143 of the court book that I reproduced above makes clear the applicant was also concerned about the risk to his partner and child. (The other statement dated 21 August 2018 reproduced at pp 195-196 of the court book also emphasises the fate of the applicant’s family as a concern.) While the Tribunal acknowledged the applicant’s partner and child might face adverse consequences if they returned to Malaysia, its discussion of that possibility at [63] of the reasons for decision makes clear it did not regard the applicant as being at risk if he returned – and that was all that was relevant for the purposes of the Tribunal’s decision on his case. That analysis and finding does not address the possibility of vicarious harm to the applicant. That was likely because:
(a)the Tribunal had already ruled at [3] of its reasons for decision that it did not have jurisdiction to consider the separate claims made by the partner and their daughter; and
(b)the decisions in NBCY and DCP16 which would have explained the relevance of vicarious harm were not drawn to the attention of the Tribunal.
While the applicant’s representative in the Tribunal could be criticised for failing to expressly articulate and develop the claim arising out of vicarious harm, the substance of the claim was nonetheless evident in the material – most obviously in the statement of claims document that I have quoted above. That claim should have been squarely addressed by the Tribunal. I am not satisfied the possible fate of the applicant’s family was addressed as a claim of vicarious harm because the Tribunal concluded the risk to the partner and daughter were ultimately matters to be discussed in different proceedings. It focused instead on the risk of direct harm to the applicant. While that might be understandable given the way the applicant and its representative conducted the case, the Tribunal was still required to perform its statutory function. It did not.
I am satisfied this ground is made out.
Did the Tribunal have regard to the relevant country information as required?
I will deal briefly with the second ground of appeal. The applicant notes Ministerial Direction No 56 made pursuant to s 499 of the Act requires that the Tribunal have regard to the assessments in country information reports in the course of its deliberations to the extent those assessments are relevant. Ms McNeil points out in her submissions that the country information report in relation to Malaysia which applied in this case did refer to the experience of apostates in Malaysia. In particular, the report highlighted the difficulties that might be faced by a person of the Islamic faith converting to Hinduism, as the applicant’s partner appears to have done.
Mr Fyfe pointed out the Tribunal did refer to the relevant country information report and the discussion of apostasy therein. The Tribunal acknowledged those difficulties in the course of its discussion at [62] of the reasons. The discussion at [62] nonetheless focused on what the Tribunal understood the case to be: that the applicant’s partner’s conversion would create risks for the applicant. I have already explained the Tribunal misunderstood the claim when it failed to have regard to the possibility of vicarious harm, but it is not otherwise at fault in its handling of the country information report. I am not satisfied this ground has been made out.
Conclusion
The Tribunal’s decision is affected by jurisdictional error. The error I have identified is material in the sense described in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ in the sense there is a realistic possibility the decision might have been made differently if the Tribunal had considered the claim of vicarious harm. (The minister certainly did not contend otherwise.)
In the circumstances, it would be appropriate to issue a writ of certiorari quashing the Tribunal’s decision and a writ of mandamus directed to the Administrative Review Tribunal requiring it to reconsider the matter according to law.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 15 May 2025
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