JQV24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1665
•10 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JQV24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1665
File number: PEG 429 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 10 October 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Review Tribunal affirming a decision not to grant the applicant a protection visa – whether the ART failed to consider, or gave insufficient weight to, the applicant’s evidence and claims – whether the ART denied the applicant procedural fairness – whether the ART failed to comply with s 367A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) Sch 16, item 24
Migration Act 1958 (Cth) ss 367A, 423A, 476Cases 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) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
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
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 6 October 2025 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 429 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JQV24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
10 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. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Administrative Review Tribunal (ART). The applicant seeks judicial review of the ART decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant asserts that the ART made jurisdictional errors:
(a)in failing to give sufficient weight to the ongoing risk from her ex-husband, who perpetrated domestic violence against the applicant in the past, and in failing to fully assess the inadequacy of protection in Malaysia; and
(b)by denying her procedural fairness in circumstances where she had limited English skills and was unable to fully articulate her claims and address legal issues effectively.
For the reasons explained below, the applicant has not established that the ART made a jurisdictional error. Therefore, the application to this Court is dismissed.
THE PROTECTION VISA APPLICATION AND RELATED DECISIONS
The protection visa application and decision of the delegate
The applicant applied for a protection visa on 3 January 2018. In her application form, she claimed to face harm because she participated in protests to get compensation in circumstances where the government tried to take land belonging to her grandfather.
On 17 December 2018 a delegate of the Minister refused to grant the applicant a protection visa. The applicant was not invited to attend an interview with the delegate before this decision was made.
Merits review of the delegate’s decision
On 20 December 2018 the applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision.
The applicant attended a hearing before the AAT on 27 September 2024. At the hearing, the applicant told the AAT that someone else completed the protection visa application form for the applicant because she did not know English well and she did not know what claims were made on her behalf. The applicant told the AAT that none of the claims in her protection visa application were true. The applicant raised a new claim before the AAT relating to an ongoing fear of harm from her ex-husband, who would threaten her.
On 14 October 2024 the AAT was abolished and, pursuant to transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), the proceeding was to be continued and finalised by the ART in a manner that the ART considered to be efficient and fair: see Sch 16, item 24(2).
On 17 October 2024 the ART affirmed the delegate’s decision.
The ART’s reasons
The ART accepted that the applicant was a victim of domestic violence on at least three occasions and that her then husband was the perpetrator. The domestic violence took the form of battery and threats to kill the applicant and members of her family. The ART also accepted the applicant’s evidence that she was chased from the matrimonial home by her ex-husband in 2017 and that she never returned. The ART accepted that the ex-husband said to the applicant that he never wanted to see her again. The ART accepted that the applicant and her ex-husband are now divorced and found that there had not been any contact between them since 2017.
The ART also found that if the applicant returned to Malaysia she would live in a place that is different from the place where the ART found her ex-husband lives.
In assessing the risk of harm to the applicant, the ART said at [38] of its reasons:
Having considered all the evidence, I find that the applicant’s ex-husband no longer has any interest in pursuing the applicant. Given the facts that the applicant’s ex-husband chased her from the house, said he never wanted to see her again, initiated divorce proceedings, and lives in a different city from that which the applicant would return to, I find that there is no real risk that the applicant will suffer harm at the hands of her ex-husband. While I accept that the protections available from the authorities are sometimes ineffective, I find that in the applicant’s circumstances, the domestic violence legislation and the police would act as a deterrent and the risk of any further violence from the applicant’s ex-husband would be remote.
The ART found that there was not a real chance that the applicant would suffer serious harm if she returned to Malaysia. The ART also found that there was not a real risk that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, she would suffer significant harm.
JUDICIAL REVIEW APPLICATION
The applicant relies on the following grounds, set out in her application filed on 5 November 2024:
1. The Tribunal acknowledged my past experiences with domestic violence but failed to give sufficient weight to the ongoing risk from my ex-husband, dismissing this as unlikely due to our separation and distance. This overlooks evidence of his violent, unpredictable behaviour and the real challenges I would face in obtaining police support if he pursued me. By not fully assessing my fear and the inadequacy of protection in Malaysia, the Tribunal has made a jurisdictional error.
2. As a self-represented applicant with limited English skills, I was unable to fully articulate my claims, but the Tribunal did not provide adequate assistance to help me navigate the process. This disadvantaged me in presenting critical evidence and addressing legal issues effectively. The Tribunal’s lack of support in ensuring I could fairly present my case led to procedural unfairness, 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 repeats her grounds and annexes a copy of the ART decision; and
(b)the court book filed on behalf of the Minister on 27 November 2024.
CONSIDERATION 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 ART 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 ART 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 ART 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].
The applicant’s oral submissions relating to the merits
In her oral submissions to the Court, the applicant submitted:
(a)She does not know what visa she is applying for. When she came to Australia her friend applied for a visa using the 866 form. He proceeded to apply for the visa for the applicant and did not tell her the reasons for her visa application. When she came back and he completed the application, then he informed her. He applied for the visa for reasons relating to the applicant’s grandfather and a land conflict. He said the government wanted to arrest the applicant and that is why she ran away.
(b)At the first hearing, the applicant informed the presiding member that this is not her reason and she was not aware of the criteria.
(c)She came to Australia because her husband forced her and said he wants to kill her. She had no choice but to come to Australia to survive and live in Australia.
(d)She hopes the Court can understand her situation. She had no choice but to come here to live. She has evidence to prove that her ex-husband is trying to kill her and she submitted relevant evidence to the ART.
(e)She has become used to the lifestyle in Australia and likes Australia. She hopes that the Court can help her to stay here.
(f)She asked her sister to read and a friend helped her to translate.
After the applicant made these submissions, I referred her again to the grounds in her application and asked her specifically if she wanted to address each ground. I address the applicant’s submissions that specifically relate to the grounds in the consideration of the individual grounds.
Otherwise, the oral submissions advanced by the applicant relate to the merits of her protection visa application and the ART decision. As I explained to the applicant at the hearing, the Court does not have jurisdiction to consider for itself whether she meets the requirements for the grant of a protection visa and the Court cannot grant her any visa. The Court is unable to consider the factual merits of the ART decision.
Insofar as the applicant has again raised the issue of not knowing the claims in her protection visa application, the ART considered the applicant’s evidence on this issue and her acknowledgement that the claims in her protection visa application were prepared by someone else and were not true. The ART considered the new claims raised at the hearing and did not make any adverse inference against the applicant based on the content of her protection visa application.
The matters raised in the applicant’s oral submissions do not establish jurisdictional error.
Ground 1: Did the ART fail to sufficiently consider the ongoing risk from the applicant’s ex-husband and the inadequacy of protection in Malaysia?
By this ground, the applicant asserts that the Tribunal failed to give sufficient weight to the ongoing risk from her ex-husband and instead dismissed it as unlikely due to their separation and distance. The applicant asserts that, in so finding, the Tribunal overlooked evidence of her ex-husband’s violent and unpredictable behaviour and the challenges she would face in obtaining police support if her ex-husband pursued her.
When I specifically invited the applicant to explain this ground in her oral submissions, the applicant submitted:
(a)She feels that the law in Malaysia is not strict enough and it can be bent by bribes. If a criminal or someone pays any money, the police will release them.
(b)Previously, her ex-husband beat her up and just paid some money and was released.
(c)On one occasion, her ex-husband had an affair with a 16 year old girl. The girl’s parents wanted to report the matter but her ex-husband said it was unnecessary as he would bribe the police department, and paid them about 30,000 ringgit.
(d)Her ex-husband was looking for her and threatened to kill her when he knew that she wanted to come to Australia. Her mother asked her to quickly leave and head to Australia, otherwise she would be killed by her ex-husband.
(e)She had no choice but to come to Australia. She does not want to obtain any visa by lying. She was not aware that her friend helped her to apply for a subclass 866 visa and found out about that later.
The applicant’s ground gives rise to two interrelated issues. The first relates to the adequacy of the ART’s findings relating to whether the applicant’s ex-husband has any ongoing intent to harm her. The second issue relates to the adequacy of the ART’s consideration of state protection.
I accept the Minister’s submission that the ART’s reasons clearly demonstrate that it actively and intellectually engaged with the applicant’s evidence about her ex-husband. The ART considered the oral and documentary evidence advanced by the applicant and it considered country information that addressed, amongst other things, the prevalence of domestic violence in Malaysia.
As set out above, the ART accepted that the applicant had experienced domestic violence from her ex-husband in the past, but found that the applicant’s ex-husband had no interest in pursuing the applicant in the reasonably foreseeable future. The finding that the applicant’s ex-husband had no ongoing interest in pursuing the applicant, and the consequent finding that there was not a real risk she would suffer harm at his hands, was based on a number of reasons. These include that the ex-husband chased the applicant from the matrimonial home and said he never wanted to see her again, that he initiated divorce proceedings against the applicant and that he lives in a different city from that to which the applicant would return.
I accept the Minister’s submission that these findings were open to the ART.
In relation to state protection, the ART referred to the applicant’s evidence about past reports to the police. This evidence differed somewhat to the facts referred to in the applicant’s submissions to this Court. The applicant submitted to the Court that, when her ex-husband had an affair with a 16 year old girl, the ex-husband said that it was unnecessary to report the matter to the police because he would bribe the police department and paid approximately 30,000 ringgit. The ART recorded at [26] of its reasons that the applicant’s evidence was that the girl’s parents found out and went to the police to try and have the applicant’s then husband arrested, but the matter was resolved with her then husband offering to pay 30,000 ringgit in compensation. The applicant’s submission to the Court suggested that when her ex-husband beat her up in the past, he just paid some money and was released. By way of contrast, the ART recorded at [27] of its reasons that the applicant said she made a report to the police, who said they would take the applicant’s then husband to the police station for questioning, but the applicant did not know whether this had happened.
The ART also considered country information about the availability of state protection in Malaysia. This country information included a 2024 report prepared by the Department of Foreign Affairs and Trade (DFAT). The ART extracted a number of paragraphs from this report in its reasons, including:
3.117 State protection for women and girls experiencing gender-based violence (GBV) is mixed. There are special police units that deal with child abuse and GBV; however, in-country sources told DFAT that these services were inadequate to meet demand. Women who approach police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.
3.118 According to in-country sources, police often failed to follow up on reports of GBV. It was not uncommon for a woman who has experienced GBV to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process. In-country sources said specialist GBV investigative units (Branch D11 of the RMP’s Criminal Investigation Department) tended to respond to GBV more sensitively and effectively than regular front-line police officers.
…
3.125 DFAT assesses that women and girls in Malaysia face a moderate risk of GBV in the form of domestic violence… State protection is available but often inadequate or ineffective in practice…
The ART also considered information from the same DFAT report about the introduction of the Domestic Violence (Amendment) Act 2017, which strengthened protections for individuals who experience domestic violence.
The ART accepted that protection available from the authorities is sometimes ineffective. However, in the applicant’s circumstances, the ART found that the domestic violence legislation and the police would act as a deterrent and considered the risk of any further violence from the applicant’s ex-husband to be remote. These findings were open to the ART on the evidence before it.
In circumstances where the ART was not satisfied that the applicant’s ex-husband had any ongoing interest in pursuing her, it was not necessary for the ART to further address the effectiveness of state protection.
Ground 1 is not established.
Ground 2: Was the applicant denied procedural fairness?
The applicant asserts that as a self-represented applicant with limited English skills, she was unable to fully articulate her claims. She asserts that the AAT did not provide adequate assistance to help her navigate the process, which disadvantaged her in presenting critical evidence in addressing legal issues effectively.
When I specifically invited the applicant to address this ground at the hearing, the applicant did not address the ground and instead submitted that she hopes the Court can help her to stay because she really likes Australia.
In her application to the AAT, the applicant indicated that she would require an interpreter in the Mandarin language. In her pre-hearing information form, she indicated she would need an interpreter in the Chinese language. The AAT’s hearing record indicates that a certified interpreter in the Mandarin language was available to assist the applicant at the hearing and this is also recorded at [3] of the ART’s reasons.
There is no evidence before the Court to suggest that the applicant raised any concerns about the adequacy of the interpretation at the hearing convened by the AAT. There is no evidence before the Court to suggest that the applicant raised any concerns to the AAT about her ability to effectively present her evidence or address any legal issues because of her limited English skills.
Neither the AAT nor the ART was required to articulate the applicant’s case for her. The AAT appropriately invited the applicant to attend a hearing and arranged an interpreter to assist the applicant at the hearing.
I accept the Minister’s submission that the AAT (and by extension the ART) afforded the applicant a real and meaningful opportunity to present her case. There is nothing in the evidence before the Court to suggest that the AAT failed to comply with its obligations under the Migration Act as they applied at the time of the hearing, save for one possible question raised by the Minister about the application of s 423A of the Migration Act (or s 367A as it applied at the time of the ART decision), which is addressed separately below.
Ground 2 is not established.
Did the ART err by not applying s 367A of the Migration Act?
In his written submissions, the Minister said:
In this case, contrary to the requirement in s 423A, the Tribunal simply accepted the applicant’s new claims about the past harm she had experienced from her ex-husband, and did not draw any adverse inference in relation to these claims. However, the Minister submits that any error in this regard was immaterial in circumstances where it was to the applicant’s benefit. This is because the Tribunal did not make an adverse credibility finding against the applicant and treated the claim as if it was not new. Therefore, it cannot be said that this error deprived the applicant of the possibility of a successful outcome, where the alternative would have led to an adverse outcome.
Section 423A of the Migration Act, as it applied at the time of the AAT hearing, applies where a protection visa applicant raises a claim that was not raised before the delegate’s decision, or presents evidence that was not presented before the delegate’s decision. The section requires that, in making a decision on the application, the AAT is to draw an inference unfavourable to the credibility of the claim or evidence if the AAT is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the delegate’s decision. By the time of the ART decision, s 423A of the Migration Act was repealed. However, the same requirement imposed on the AAT by s 423A of the Migration Act as it previously applied is now imposed on the ART by s 367A of the Migration Act as in force at the time of the ART decision.
At the hearing, I explored with Counsel for the Minister whether it was more appropriate to have regard to the former s 423A or the current s 367A. Counsel for the Minister submitted that the Court should have regard to s 367A because that is the provision that applied at the date of the ART decision. I agree, but I acknowledge that little turns on this as the obligation is essentially the same in either case.
There are two possible ways that the ART reasons might relevantly be interpreted.
The first possible way in which the ART’s reasons might be interpreted is that the ART overlooked the requirement in s 367A of the Migration Act. This appears to be the assumption which underpins the Minister’s written submissions.
The second possible way in which the ART’s reasons might be interpreted is that the ART did not consider that the requirement to draw an inference unfavourable to the applicant’s new claims and evidence arose, because it did not consider that the applicant did not have a reasonable explanation for not raising the claims and presenting the evidence prior to the delegate’s decision. At the hearing before the Court, Counsel for the Minister acknowledged that it is possible to interpret the ART’s reasons in this way.
In all the circumstances of this case, in my view, this second possible interpretation of the ART’s reasons is the better interpretation. The ART in its reasons did not express any view that the applicant did not have a reasonable explanation why her claims and evidence relating to domestic violence and threats from her ex-husband were not raised before the delegate’s decision. There is also nothing in the ART’s reasons to implicitly suggest that it formed this view. The ART acknowledged the applicant’s evidence that she did not personally prepare the protection visa application and did not know the content of that application. The ART acknowledged at [35] of its reasons that the applicant ‘unambiguously disavowed’ the claims made on her behalf in the protection visa application and therefore the ART did not consider them further. Rather, it proceeded to consider the new claims.
I therefore do not accept that the ART formed the view that the applicant did not have a reasonable explanation for not raising the claims or presenting the evidence regarding domestic violence by her ex-husband prior to the delegate’s decision. It follows that I do not accept that the ART made an error by not drawing an inference unfavourable to the new claims advanced and the new evidence presented to the AAT.
However, if I am wrong in that finding and the correct interpretation is that the ART overlooked the requirement in s 367A of the Migration Act, I accept the Minister’s submission that the error would not be material. As discussed above, the ART proceeded to consider the claims and evidence presented for the first time after the delegate’s decision and accepted those claims insofar as they related to the past harm the applicant had faced. This has been more favourable to the applicant than would have been the case if the ART had drawn an adverse inference in relation to the new claims and evidence as it may have been required to do applying s 367A. If the ART made an error by overlooking s 367A of the Migration Act, that error could not realistically have deprived the applicant of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45], LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14].
CONCLUSION
The applicant has not established that the ART made a jurisdictional error. It follows that the judicial review application must be dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 10 October 2025
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