HOU24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1111
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
HOU24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1111
File number(s): PEG 349 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 27 May 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether Tribunal erred in considering the applicant’s claim to experience harm as a result of her sexual identity – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal denied the applicant procedural fairness - jurisdictional error not established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J(5), 36
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Abebe v Commonwealth of Australia [1999] HCA 14
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 27 May 2025 Place: Perth Counsel for the Applicant: The Applicant appearing in person Counsel for the First Respondent: Ms Ismailjee Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 349 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HOU24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application filed by the applicant on 24 September 2024 be dismissed.
3.The applicant pay the Minister’s costs fixed in the sum of $6,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Malaysia. She arrived in Australia on 10 May 2016 pursuant to a UD-601 Electronic Travel Authority visa.
Between 2016 and 2018, the applicant departed and re-entered Australia, and on 23 April 2018, she applied for a Class XA Subclass 866 protection visa. She claimed that she was living under a shadow and pressure because she is homosexual, and people around her, her neighbours, schoolmates, villagers and colleagues became very upset about this, and they discriminate, despise and humiliate her.
She said that she was being mistreated by them. She also said that she had no choice but decided to come to Australia for a holiday and, in the meantime, seek a peaceful place to move on with her life.
On 18 January 2019, the delegate refused to grant the applicant a protection visa. On 14 February 2019, the applicant sought review of the delegate's decision in the Tribunal. On 2 July 2024, the Tribunal invited the applicant to attend a hearing that was set for 23 July 2024. During that month of July, there was some communication between the applicant and the Tribunal, with the applicant applying for, and being granted, an extension of time to provide documents, and also seeking an extension of time for the hearing. Ultimately, the Tribunal granted the applicant some procedural indulgences and adjourned the hearing until 30 July 2024.
On that day, she attended the Tribunal hearing, assisted by a Malay interpreter. The applicant provided the Tribunal with further submissions and evidence that included articles, newspaper articles, Wikipedia entries and other captioned photographs. Some of that material went to the circumstances in Malaysia more broadly for gay and lesbian people, rather than, strictly speaking, the applicant per se. On 26 August 2024, the Tribunal affirmed the delegate's decision. In forming, or in reaching, that conclusion, the Tribunal set out that the issue in the case was whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or, alternatively, under the complementary protection criterion.
The Tribunal correctly set out the applicant's claims made in the visa application, and that included, in broad compass, that the culture within Malaysia is very traditional and conservative. It is hard to change peoples’ mindsets about homosexuality, especially elder people. The applicant did not think that the authorities in Malaysia could protect her, as she does not want to disclose to them that she is a lesbian. The Tribunal noted the material that was supplied by the applicant, including the documents I mentioned, and also a four-page submission written by the applicant about her overall life experiences in Malaysia that set out in some detail the factual narrative that underpinned her claims.
That document also referred to the applicant's mental health. The Tribunal pointed out that it received a letter from a registered clinical psychologist going to the applicant's presentation for anxiety over two years. In assessing the applicant's claims, the Tribunal found that her evidence in relation to her claim to be a lesbian to be vague and generally unconvincing. The Tribunal noted that it understood, based on country information, that it may be difficult for a person to express herself as a lesbian in Malaysia. But the Tribunal did not accept the applicant's explanation that she did not explore her sexuality in Australia because she was just focused on working and bringing her son here.
The Tribunal pointed out that in over six years that the applicant has lived in Australia, where there is an overall greater acceptance of LGBTQI people than there is in Malaysia, that the applicant has not made any effort to explore her sexuality, including socialising within the LGBTQI community, engaging in any lesbian relationships, or engaging in any activities to assist her to explore her sexuality. The Tribunal found that the applicant had not joined any LGBTQI groups, including online groups or through dating apps. The Tribunal said that as the applicant had claimed to have come to Australia because she is a lesbian, and Australia is a safe place for lesbian people, the Tribunal observed that it would expect that the applicant would in some way explore her sexuality at some time over the past six years.
The Tribunal did not accept that, having reference to the applicant's detailed statement, that having short hair, being comfortable in the role of a boy in the school play, or having a girl as your best friend in school, indicate that you are homosexual. The Tribunal also did not accept that kissing another woman whilst drunk is evidence that a person is lesbian.
The Tribunal accepted the applicant's evidence that she did not have a good experience at high school and was often bullied, but it did not accept that this was because she was a lesbian or considered to be a lesbian. The Tribunal considered that the applicant may have been bullied and teased, especially after other students read her diary in school, which she expressed how much she was missing her friend, but it found that calling her a lesbian does not mean that the students believed she was a lesbian but was meant as more of an insult.
The Tribunal took account of country information that indicated it may have been difficult for the applicant to express her claimed sexuality in Malaysia, and it again referred to the opportunities that it observed the applicant had had to express her claimed sexuality in Australia in the years that had followed, and where the applicant had not done so. After considering the applicant's evidence, the Tribunal did not accept as credible her claim that she is a lesbian. The Tribunal had earlier pointed out that in assessing claims of sexual identity, the UNHCR Guidelines on International Protection No. 9 states that assessing an applicant's LGBTI background is essentially an issue of credibility that needs to be undertaken in individualised and sensitive way.
But ultimately, the Tribunal concluded that the applicant has not come out as a lesbian, and did not accept that she was a lesbian. And in those circumstances, it did not accept that a protection visa will enable the applicant to come out as a lesbian, because it did not accept that she is a lesbian. The Tribunal found that there is not a real chance that the applicant would suffer persecution involving serious harm from the Malaysian authorities or from any other person, for the reasons of her membership of a particular social group, being lesbians in Malaysia, should she return to Malaysia. The Tribunal did, however, accept the applicant's evidence that she had an unhappy childhood and did not feel loved by her family.
It also accepted the evidence given by the applicant that she was physically beaten on occasions by her father, and that her mother favoured her brother over her. It was also accepted that the applicant had pressure put on her to perform by her parents, who had high expectations of her, and that she was unhappy in secondary school and was bullied. It also accepted that she had unhappy experiences in the workforce, even though she was able to complete schooling, and obtain promotions in the workforce, although it noted she did ultimately resign her job.
The Tribunal did not accept that these factors - having an unhappy childhood, not feeling loved by family, friends and colleagues - equates to serious harm as set out in section 5J(5) of the Migration Act 1958 (Cth).
The Tribunal pointed out that the applicant would now be returning as an adult, and did not accept that she will face serious harm from her parents or other family members or friends in the way that she has been in the past on return to Malaysia. The Tribunal accepted that it will be difficult for the applicant to return to Malaysia, considering her claim that her social networks have been broken over time, and that it will be difficult for her to find work and start afresh. But the Tribunal pointed out that the applicant left the family home at the age of 17, and she managed to find employment and accommodation. And in 2018, she left to come to Australia in a culturally and linguistically different country, and she also found employment and accommodation.
The Tribunal considered that while she may experience some difficulty on her return to Malaysia, the applicant has the skills and determination to re-establish social networks, find employment and accommodation. The applicant told the Tribunal that she wished to stay in Australia so that she can give her son a better education. The Tribunal accepted that the applicant may prefer for her son to be educated in Australia, but it did not accept that there is a real chance that her son will be denied an education in Malaysia for any reason. It also accepted that the applicant would prefer to remain in Australia, that she enjoys the weather and the lifestyle. The Tribunal accepted the differences in culture and lifestyle between Australia and Malaysia. The Tribunal found that while the applicant has been in Australia, she has paid off debts, as well as her husband's debts, and continues to pay the mortgage on a house in Malaysia. However, the Tribunal did not accept these as being reasons for seeking protection and found that there is not a real chance that the applicant will face any harm on her return Malaysia because she would prefer to live in Australia and has paid off her and her husband's debts.
The Tribunal considered the applicant's claims individually and cumulatively, together with the evidence and country information it received, and it found that there is not a real chance that the applicant will suffer persecution if she returns to Malaysia now or in the reasonably foreseeable future.
The Tribunal went on to consider the complementary protection criteria and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. Taking into account the applicant's circumstances and having regard to the findings of fact that it made in the refugee assessment, the Tribunal found that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
The Tribunal re-emphasised that it had found that there is no real chance that the applicant will face any harm on return to Malaysia because she would prefer to live in Australia and has paid off her and her husband's debts, and found that there are not substantial grounds for believing that there is a real risk that she will suffer significant harm.
Against that background, on 24 September 2024, the applicant applied for judicial review of the Tribunal's decision. There is one ground of review pleaded, which says:
The 3 annexures (Annexure 3, 4 and 5) provided herewith has demonstrated the Tribunal (AAT) has made a jurisdictional error by not taking factual information into account in making the decision. The applicant will in fact face a real chance of serious harm from the Authorities on her return to Malaysia, for reason of being a member of a homosexual group.
The three annexures referred to in the ground - annexures 3, 4 and 5 - are annexures to the applicant's affidavit that is dated 24 September 2024.
I have earlier given reasons for why I did not receive those annexures, being the following.
The application filed on 24 September 2024 pleads a ground that talks about three annexures - annexures 3, 4 and 5 – to demonstrate that the Tribunal has made jurisdictional errors by not taking factual information into account in making the decision.
The three annexures referred to are, firstly, a Wikipedia article dated - it seems extracted 23 September 2024 - also, an article from Amnesty dated 3 September 2018 entitled ‘Six Strokes of Caning Carried Out in a Courtroom Against Two Women Having Consensual Same-sex Sexual Relationship’ - and annexure 5, which is an article from Reuters that is dated 7 November 2019 titled ‘Malaysia Sentences Five Men to Jail, Caning, and Fines For Gay Sex.’
The Tribunal hearing took place on 30 July 2024. The applicant supplied to the Tribunal, amongst other things, a Wikipedia article and a number of publications from news outlets going to the generalised treatment of homosexuality - LGBTI in Malaysia. The applicant seeks to admit the three annexures in this proceeding on the basis, broadly speaking, to provide evidence as to what is happening in Malaysia and what has happened in Malaysia, not to her personally but to the community at large in relation to homosexuality, and she says, as the ground suggests, that it is additional proof that it is really occurring in Malaysia though the articles, the applicant says, of course, do not relate to her specifically.
I have attempted to explain to the applicant the limits on this court's jurisdiction and the caution that must be exercised in not entering into impermissible merits review of the Tribunal's decision. The Minister has opposed the receipt of the documents, broadly on the basis that the Wikipedia article was before the tribunal, though an earlier version, and the Tribunal had regard to it and it is reflected in the Tribunal's reasons. The Minister opposes the other two documents being received because they do not go to the process of identifying, proving or substantiating jurisdictional error but rather, as additional evidence - additional articles that go to the broad reports of treatment of gay and lesbian people in Malaysia - are not admissible on that basis.
Given the limits of the court's function in determining whether a material jurisdictional error has been made by the Tribunal, in my view, the documents are not admissible as going to that question, and they should not be received on that basis.
I will not admit annexures 3, 4 and 5 to the applicant's affidavit but will otherwise again emphasise and note that the earlier version of the Wikipedia article and the documents that were supplied to the Tribunal are before the court as being included in the court book.
Ground of Review
Ultimately, the jurisdictional error pleaded by the applicant goes to a claim that the Tribunal erred by not taking factual information into account in making the decision, and restates that she will face a real chance of serious harm from the authorities on her return to Malaysia because she is a member of a homosexual group.
As the applicant was not represented, I am mindful of the remarks of Colvin J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, including that the consequences of failing to particularise a ground depend on the circumstances, and that it will rarely be appropriate to dismiss an appeal or review ground in a migration case for lack of particularisation where the applicant applies for relief out of an application for a protection visa, and the person is self-represented.
I gave the applicant the opportunity to explain, orally, the matters that she said went to the ground of review, including to expand the grounds. I asked her to do so, including giving particulars, to help me understand the errors that I was being asked to consider. I also explained to the applicant the limitation on the court's jurisdiction, and that the inquiry is not one into whether I accept that she is a lesbian or not, or whether I think that the Tribunal made the wrong decision in concluding that she was not a lesbian. That is, that I am not permitted to conduct a merits review of the Tribunal's decision. I do not have the power to grant the applicant a visa.
As the Minister's counsel submitted, the jurisdiction of the Court is an important but confined jurisdiction to conduct an administrative review of the Tribunal's decision. And to that end, I set out for the applicant some of the commonly pleaded and recognised categories of jurisdictional error that the Court sees. I also explained that in order to be entitled to the relief sought, that is, for the decision to be quashed and for the matter to be remitted, that the applicant must establish that the Tribunal's decision is affected by material jurisdictional error. That is, where the Tribunal has exceeded the limits of the decision-making authority conferred by the statute, in making the decision, and that the error could realistically have deprived the applicant of a successful outcome. It is not - as I pointed out - as straightforward a matter as factual disagreements taken with the Tribunal's findings. With all of that in mind, I asked the applicant to break down, and make submissions to me about, her ground.
The applicant has acknowledged, in her submissions, that the problem - the issue, in a sense, confronting her was that the Tribunal simply did not believe her, or it did not accept the central matter to her claim, and that is that she identifies as a lesbian person. The applicant took issue with some other of the factual conclusions and findings of the Tribunal, including its findings about her motivations to be in Australia to work, and pay off debts and her husband's debts, and to provide her son with a greater education, and I think effectively said to me that those factors can co-exist with her claims to fear harm because there are many people in Australia who need to work and live, and that it was not as straightforward as the Tribunal found that it was.
In general terms, an applicant has the onus of establishing jurisdictional error. The applicant's submissions touched on other areas of jurisdictional error which the Minister has been able to address, and I will consider those based upon the materials that I have, and the remarks that both the applicant and the Minister's counsel have made to me, and assess them broadly as follows.
The ground that is pleaded, is - as I said - an error that the Tribunal is said to have made by not taking factual information into account in making the decision. That ground is pleaded by reference to three documents that I have not accepted.
But there was material submitted by the applicant, including a Wikipedia article, effectively as it was at that particular point in time, and other global media reports about the generalised treatment of gay and lesbian people in Malaysia. The issue, however, was not - as the applicant effectively acknowledged to me, whether the Tribunal accepted that homosexuality in Malaysia was not accepted or not, from a societal perspective. It was that the Tribunal did not accept that the applicant herself was homosexual. And that is a matter that brings squarely into focus the limitation of the jurisdiction of this court, and the way in which I think the applicant has framed many of her submissions.
Ultimately, the Tribunal recorded that it had regard to the materials and submissions including the four-page written statement and the supporting documentation that the applicant placed before it. The Tribunal is not required to refer to every piece of evidence in its decision.[1]. Further, a failure to refer to or adequately consider evidence, even where it is probative, does not give rise to jurisdictional error, even if it leads to an erroneous finding of fact. Ultimately, matters of weight to be given to evidence is a factual question for the decision-maker alone.[2] The Tribunal is also not required to accept, uncritically, any and all claims that are made by an applicant.[3]
[1] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship[2013] FCAFC 80.
[2] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; Abebe v Commonwealth of Australia [1999] HCA 14.
[3] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.
There is nothing in the decision record of the Tribunal that shows that it did not consider the materials that were put forward by the applicant. Rather, in my opinion, the Tribunal's record shows that the material submitted by the applicant was dealt with in a detailed and comprehensive way, especially the matters that went to the applicant's own experiences - most centrally, the four-page submission about her life experiences in Malaysia.
More generally, the Tribunal accepted - also having regard to country information - about the circumstances in Malaysia for gay and lesbian people, and the social and political situation that exists in that country in respect of the gay and lesbian community. I do not, in those circumstances, find that there is a jurisdictional error made by the Tribunal in relation to the general claim that it failed to take factual information into account in making the decision.
I have gone on to consider, in a more general sense - having regard to the submissions that the applicant has made - matters about irrationality and illogicality in decision-making, and procedural fairness, that have been touched upon.
To the extent that the submissions allege that the conclusions of the Tribunal were legally unreasonable, the characterisation of a decision or a state of satisfaction as legally unreasonable, because of illogicality or irrationality, is not easily made out.[4]
[4] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 [2022] FCAFC 3 at [33] – [35].
There are a number of facts and matters in the decision that the applicant does not agree with but - as I have pointed out - mere disagreement, or even emphatic disagreement, in and of itself is insufficient to establish jurisdictional error. Ultimately, the Tribunal did not believe the applicant in her claim that she was homosexual.
It found the evidence to be vague and generally unconvincing. And whether the applicant agrees with that or not is not the point. And it is also not the point whether I agree with that or not. The real point, in terms of the application, is that in finding that, the Tribunal had regard to the overall facts and circumstances, and the evidence led, the country information, and it found that the claim was not a credible one.
It accordingly found that there was not a real chance that the applicant would suffer serious harm if she returned to Malaysia. I do not find, in the circumstances, that the Tribunal's assessment of that, where there was a - in my view - cogent and methodical analysis of the evidence and the claims made by the applicant, to be unreasonable, in a legal sense. And so I do not find jurisdictional error apparent in that way.
The applicant also referred to procedural fairness or made some submissions that touched upon a denial of procedural fairness. And that was particularly in relation to a submission that said that she did not have the opportunity to talk to the Tribunal. It was said that she did not have the opportunity to talk to the Tribunal in the way that she necessarily did in these proceedings. It is evident, from the Tribunal's decision record, that it asked the applicant to explain her narrative, that there was an engagement between the Tribunal and the applicant about the facts and circumstances set out in her matter, and confirmation given by the applicant to the Tribunal at the hearing about facts and circumstances, including in response to a question as to why she feared returning to Malaysia.
And so the Tribunal gave the applicant that opportunity. The Tribunal also - as I have said at the start - invited the applicant to attend a hearing. It rescheduled the hearing, at the applicant's request. It provided her with the opportunity to submit materials to it, even later than what had been asked for. And she was provided with the assistance of an interpreter at the hearing. There is nothing in the materials that I can see that suggests that the Tribunal failed to comply with its procedural fairness obligations. To the extent that the applicant's submissions went to the fact that the Tribunal did not tell her, at the hearing, that it did not, or was perhaps not inclined, to believe her, the Tribunal is not under an obligation to put its findings to an applicant in advance.[5] Procedural fairness does not require the Tribunal to give an applicant a running commentary of its thought processes as the evidence is given.
[5] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.
There is nothing in the decision record, or the way in which the Tribunal hearing took place, that leads me to the conclusion that the applicant was denied procedural fairness in a way that would establish jurisdictional error.
For these reasons, I am not able to find that jurisdictional error has been made by the Tribunal, and I will dismiss the application.
Costs
Counsel for the Minister has applied for an order that the applicant pay costs fixed in the sum of $6,500.
In making that order, I am satisfied that as the application has been dismissed, it is appropriate that an order for costs be made requiring the applicant to pay the Minister's costs in a fixed sum.
I am also satisfied that the amount of $6,500 sought is reasonable and fair, having regard to factors including the amount of work that has been done in preparing for, and appearing at, the hearing, and also taking into account that the amount sought is less than the total amount that's prescribed in item 3 of Sch 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021, which provides that the cost that can be ordered in a fixed sum under that provision may be fixed in the amount of $8,371.30.
I certify that the preceding fifty-one(51) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 16 July 2025
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