HUH24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1614
•3 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
HUH24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1614
File number: PEG 356 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 3 October 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to consider the evidence given by the applicant – whether the Tribunal failed to consider all of the claims advanced by the applicant – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) s 476
Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 11 September 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms I Macdonald Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: The Australian Government Solicitor ORDERS
PEG 356 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HUH24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
3 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa in Australia on 3 July 2018. In her protection visa application, she claimed that her ex-boyfriend invited her to join a gangster club, and they hit her, destroyed her things and wanted her to do illegal business. She claimed that if she returned to Malaysia, they would come to her home and harm her.
On 13 February 2019 a delegate of the Minister refused to grant the applicant a protection visa. The applicant then applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. She attended a hearing before the Tribunal on 6 September 2024 and on 16 September 2024 the Tribunal affirmed the delegate’s decision. The Tribunal did not accept that the applicant’s ex-boyfriend would pursue or harm her if she returned to Malaysia. The Tribunal was therefore not satisfied that the applicant would face a real chance of persecution or a real risk of significant harm if she returned to Malaysia.
The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act). The applicant alleges that the Tribunal made a jurisdictional error because:
(a)the Tribunal failed to fully consider the applicant’s oral evidence given at the hearing;
(b)the Tribunal failed to consider the applicant’s claims cumulatively, and failed to consider the applicant’s mental health, in assessing whether she would face a real risk of significant harm; and
(c)the applicant did not have a fair opportunity to present her case, because sometimes she did not fully understand the Tribunal’s questions.
[1]Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
For the reasons below, I have found that the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.
JUDICIAL REVIEW APPLICATION
In her judicial review application filed on 25 September 2024, the applicant raises the following grounds:
1.The Tribunal failed to give full consideration to my evidence, including the threats from my ex-boyfriend. Although I lacked certain supporting documents, my oral testimony was important given the difficulty of obtaining proof in such situations. The Tribunal’s disregard for this evidence constitutes a jurisdictional error.
2. The Tribunal incorrectly concluded that I do not face a “real risk of significant harm” if returned to Malaysia. It failed to consider the cumulative risk of harm from my ex-boyfriend and the gang, as well as the psychological trauma I might endure. The lack of consideration for my mental health and the potential for significant harm under section 36(2)(aa) amounts to a jurisdictional error.
3. While I chose to speak in English, there were moments when I didn’t fully understand the Tribunal’s questions. The Tribunal didn’t ensure that I fully grasped everything discussed, which deprived me of a fair opportunity to present my case, amounting to a jurisdictional error.
The evidence before the Court comprises:
(a)an affidavit filed by the applicant with her judicial review application, in which she repeated the grounds of review and annexed a copy of the Tribunal decision;
(b)a court book filed on behalf of the Minister on 22 November 2024; and
(c)an affidavit of service of Isabelle Terese Macdonald filed on behalf of the Minister on 4 September 2025.
CONIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if she establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … 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.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Ground 1: Did the Tribunal fail to consider evidence given by the applicant?
By ground 1, the applicant alleges that the Tribunal failed to fully consider her evidence, and in particular, her oral evidence about the threats from her ex-boyfriend.
When invited to address this ground in her oral submissions, the applicant submitted that the Tribunal said that if she goes back, there will be no harm. The applicant submitted that the Tribunal said that she had been in Australia for a few years, so her ex-boyfriend will not harm her.
The applicant’s oral submissions suggest that she is inviting the Court to engage in impermissible merits review of the Tribunal decision. To the extent that the applicant’s submissions address the factual merits of the Tribunal decision, they do not establish jurisdictional error.
The Tribunal decision demonstrates that the Tribunal considered the evidence provided by the applicant, both written and oral, including her oral evidence about threats from her ex-boyfriend.
The Tribunal summarised the applicant’s written claims at [5] of its reasons, recording that the applicant claimed:
(a)she left Malaysia because her ex-boyfriend, who was a member of a gang, wanted her to join his gang and participate in illegal activities;
(b)she was beaten when she refused to join the gang;
(c)she did not go to the police because she was threatened that she would be killed if she did so; and
(d)she feared her ex-boyfriend would ask her to join the gang and harm her if she returned to Malaysia.
The Tribunal discussed the applicant’s oral evidence given at the hearing from [22] of its reasons. The Tribunal summarised the applicant’s evidence about her past relationship with her ex-boyfriend at [27]-[28] of its reasons, where it said:
27.When asked about her reasons for not wanting to return to Malysia, the applicant stated that her ex-boyfriend, who was a member of a gang and involved in selling illegal drugs and organising online gambling, used to force her to engage with illegal activities. When asked which gang her ex-boyfriend was a member of, the applicant said that she was not sure. In response to my questioning, the applicant stated that she met her ex-boyfriend through friends in 2017 and that although she was unaware that he was involved with gangs initially, she subsequently found out and tried to get away from him. She stated that in March 2017, she run away to another suburb in [place omitted], where she travelled to by bus and stayed at a hotel, but her ex-boyfriend found her and forced her to return to [place omitted].
28. I observed that she remained in Malysia for another year, until April 2018, and asked if she faced any other issues. The applicant vaguely referred to her ex-boyfriend threatening and hitting her to deter her from going to the police. She confirmed that during that year she worked and that her ex-boyfriend knew where she lived and worked and did not refer to any other specific incidents of harm at the hands of her ex-boyfriend or anyone else. She also confirmed that she did not engage in any illegal activities and that neither her nor her boyfriend came to the attention of the authorities or the police for any reason.
The Tribunal considered that the applicant’s evidence at the hearing was presented in a vague and general manner. However, the Tribunal was willing to accept that the applicant was in a relationship and her now ex-boyfriend engaged in illegal activities in which the applicant refused to participate. The Tribunal considered the applicant’s evidence about having been forced to take part in illegal activities and that she ran away in March 2017 to be unpersuasive and noted that some of the information had not been included in her protection visa application form.
The Tribunal then summarised the applicant’s evidence regarding any ongoing threats at [30]-[32] of its reasons. In these paragraphs, the Tribunal said:
30. At the hearing the applicant stated that she had not been in any contact with her ex-boyfriend and is unaware of his whereabouts. In response to my specific questions, the applicant stated that after her arrival in Australia, her ex-boyfriend did approach her relatives in [place omitted] and asked about the applicant’s whereabouts and that they did not tell him where the applicant was. When asked if her ex-boyfriend has made any attempts to contact her after her departure from Malysia, the applicant said that he did at first, but she changed her phone number and has not heard from him. The applicant confirmed that in the 6 years that she has been residing in Australia, she has not heard from her ex-boyfriend and does not know anything about him nor his whereabouts.
31. When asked why she feared returning to Malysia now, the applicant said that she does not feel safe and that her ex-boyfriend will find her. I observed that she has been absent from the country for over 6 years, has had no contact with her ex-boyfriend nor is aware of where he is or what he does, and asked why she thought that he would still be interested in her or pursue her if she returned to Malysia now. The applicant said that maybe he has not moved on and will look for her. When I asked how she knew that he has not moved on, the applicant said that her ex-boyfriend continues to ask about her when he sees her relatives. I referred to her earlier evidence that her ex-boyfriend only made inquiries about her whereabouts in the initial period after her departure in 2018 and that it has been 6 years since, the applicant said she does not know and agreed that she was only speculating that her ex-boyfriend has not moved on and may be interested in locating her if returned to Malaysia.
32. I expressed that on her evidence it did not appear to me that her ex-boyfriend would try to find her or that she is of any interest to him, the applicant agreed and made no further comments.
The Tribunal did not accept that the applicant faced serious harm while she was in Malaysia, noting that she continued to reside and work at the same place during the period she claimed she was in a relationship with her ex-boyfriend. The Tribunal noted that the applicant had been absent from Malaysia for over six years and did not accept that the applicant or her relatives had been approached or harassed by her ex-boyfriend. The Tribunal did not accept that the applicant’s ex-boyfriend continued to have any interest in the applicant or would try to locate or harm her if she returned to Malaysia. The Tribunal was not satisfied that the applicant’s ex-boyfriend would pursue or harm her if she returned to Malaysia. The Tribunal found that the applicant did not face a real chance of serious harm or a real risk of significant harm at the hands of her ex-boyfriend or any other person if she returned to Malaysia now or in the reasonably foreseeable future.
I accept the Minister’s submission that the Tribunal considered the applicant’s evidence and made findings that were open to it on that evidence.
Ground 1 is not established.
Ground 2: Did the Tribunal err in its consideration of the complementary protection criterion?
By ground 2, the applicant alleges that the Tribunal incorrectly concluded that she does not face a real risk of significant harm if she returns to Malaysia. More specifically, the applicant asserts that:
(a)the Tribunal failed to consider the cumulative risk of harm from her ex-boyfriend and the gang and the psychological trauma she may endure; and
(b)the Tribunal’s failure to consider her mental health and the potential for significant harm amounts to jurisdictional error.
At the hearing before this Court, when asked about whether she raised a claim based on psychological trauma to the Tribunal, the applicant responded that she told the Tribunal she ‘has fear’. The applicant did not otherwise make any submissions about this ground.
The Tribunal was required to consider the claims expressly articulated by the applicant, as well as any claims that were not expressly articulated but which clearly emerged from the material before the Tribunal based on established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18].
As discussed in the context of ground 1 above, the Tribunal considered the applicant’s claims based on threats from her ex-boyfriend. This consideration included the applicant’s claimed fear, which appears to be the ‘psychological trauma’ she is referring to in this ground. The Tribunal relied on the findings of fact it made for reaching its conclusion in relation to both the refugee and complementary protection criteria.
Aside from her claimed ‘fear’, there is no evidence to suggest that the applicant claimed she would face ‘psychological trauma’ or that her ‘mental health’ would otherwise give rise to significant harm. The only basis upon which the applicant claimed to fear harm in Malaysia was because of threats from her ex-boyfriend. As noted above, the Tribunal found that the applicant would no longer be of interest to her ex-boyfriend. In these circumstances, and as the Minister submitted, there was no basis for the Tribunal to independently identify any risk of psychological trauma or other harm to the applicant’s mental health. The Tribunal was not required to consider whether the applicant would face any ‘psychological trauma’, to the extent that the term might be understood to extend beyond the applicant’s claimed ‘fear’, or other mental health issue if returned to Malaysia.
Ground 2 is not established.
Ground 3: Did the Tribunal deny the applicant procedural fairness by failing to ensure that the applicant properly understood the Tribunal’s questions?
By ground 3, the applicant asserts that she did not have a fair opportunity to present her case to the Tribunal, in circumstances where she chose to speak English and sometimes did not fully understand the Tribunal’s questions.
The Tribunal’s assessment of the applicant’s ability to participate in the hearing was explained at [10]-[11] of its reasons, where it said:
10.The applicant attended the scheduled hearing held on 6 September 2024. The hearing was held in person at the Tribunal’s Perth Registry. The applicant was not represented. The hearing was held with the assistance of an interpreter in the Malay and English languages. At the commencement of the hearing the applicant indicated that she will be communicating in English and that she would use the services of the interpreter when needed. I reiterated that the interpreter was present to assist her. I encouraged her to engage the interpreter if at any time she felt she was unable to clearly communicate or understand what was communicated with her. I also indicated that if at any time she was not understanding my questions or information communicated to her to ask for it to be repeated or reworded. The applicant expressed her agreement.
11. During the preliminary remarks, the applicant and the interpreter confirmed that they understood each other and no issues regarding the interpreting service were raised by the applicant during the hearing. I am satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process and was able to present her claims and evidence and respond to issues raised at the hearing...
The applicant has not provided any evidence to the Court to suggest that the Tribunal’s analysis is not accurate. There is no transcript of the Tribunal hearing before the Court and the applicant has not alleged that the interpretation services were inadequate in any way.
At the hearing, I discussed with the applicant the need for evidence to establish this ground. Counsel for the Minister agreed to provide an audio recording of the Tribunal hearing to the applicant after the hearing. I advised the applicant that if, after listening to the audio recording, she wishes to place before the Court further evidence based on the audio recording, she could contact the Minister’s lawyer to see if the Minister would consent to the applicant having this opportunity. The parties have both communicated with the Court after the hearing. The Minister’s lawyer has confirmed that the audio recording was provided to the applicant and the applicant has confirmed that she does not wish to provide further evidence to the Court.
There is insufficient evidence before the Court to support any conclusion that the applicant was not afforded a fair hearing. It is apparent from the evidence in the court book that the Tribunal invited the applicant to a hearing and an interpreter was available to assist the applicant at the hearing. It appears from the Tribunal’s reasons that the applicant chose to communicate in English, and the Tribunal said that it encouraged the applicant to use the interpreter if she needed to.
If the applicant struggled to understand some questions at the hearing and chose not to ask for them to be interpreted, repeated or rephrased, any difficulties in presenting her case would be the result of the applicant’s own choices. They do not reflect any failure on the part of the Tribunal to afford the applicant a meaningful opportunity to participate in the hearing.
The applicant has not established that the Tribunal did not provide her with a fair hearing. Ground 3 is therefore dismissed.
Other matters raised in the applicant’s oral submissions
In her oral submissions to the Court, the applicant submitted that she cannot go back to Malaysia as her ex-boyfriend will harm her. If she moves to another state, he will still find her and he can hire someone to find her. The applicant submitted that even though she has been in Australia for six or seven years, he will know and she feels afraid.
These matters relate to the merits of the Tribunal decision and the protection visa application. They explain why the applicant applied for a protection visa. This Court does not have jurisdiction to engage in merits review of the Tribunal decision or to consider for itself whether the applicant meets the requirements for the grant of a protection visa. The matters raised in the applicant’s oral submissions do not establish that the Tribunal made a jurisdictional error.
CONCLUSION
Given the applicant has not established that the Tribunal made a jurisdictional error, the application to this Court must be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 3 October 2025
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