AAL24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 429

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).

1. The applicants are citizens of Malaysia who applied for protection visas. A delegate of the Minister refused to grant the applicants protection visas and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision. The applicants seek judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
2. By an amended application, the applicants assert that the Tribunal failed to consider claims of the minor female applicants that clearly emerged from the materials relating to a risk of being harmed from societal violence in Malaysia as young Muslim girls.
3. For the reasons explained below, the applicants have not established that the Tribunal made a jurisdictional error and I therefore dismiss the application to this Court.

1. The first applicant and the second applicant are husband and wife and the other five applicants are their children. The first to sixth applicants entered Australia in 2015 and the seventh applicant was subsequently born in Australia.
2. The applicants lodged an application for protection visas on 21 June 2016. The first applicant was the primary visa applicant and the other applicants were included in the application as members of his family unit. The first applicant claimed in the application to fear harm in Malaysia because he was raised as a Sunni Muslim but now practised Shia Islam. The other applicants did not, in the visa application, raise their own protection claims.
3. A delegate of the Minister refused to grant the applicants protection visas on 26 September 2017.
4. The applicants applied to the Tribunal for merits review of the delegate's decision on 20 October 2017.
5. The first and second applicant attended a hearing before the Tribunal on 17 November 2023 to give evidence and present arguments in relation to the review application.
6. On 11 December 2023 the Tribunal affirmed the delegate's decision not to grant the applicants protection visas.

1. The Tribunal identified and had regard to 'significant inconsistencies and deficiencies' in the accounts given by the first applicant, and to a lesser extent by the second applicant, regarding their claimed Shia faith, including when the first applicant first started to practise Shia Islam.
2. The Tribunal had serious concerns about the credibility of the first applicant as a witness, observing that he could not provide a coherent narrative of his circumstances. The Tribunal rejected his claim that the inconsistencies in his accounts were 'minor' and was concerned about the overall credibility and reliability of his evidence. The Tribunal considered that the first applicant's explanations for the inconsistencies were implausible and did not accept them.
3. The Tribunal found that it was implausible that, if the first applicant was assaulted because of his faith as claimed, he would tick 'no' in his visa application in response to a question relating to whether he had ever been harmed in Malaysia.
4. The Tribunal did not consider that the second applicant was a credible or reliable witness, observing that although her evidence was broadly consistent with that given by the first applicant at the hearing, it was otherwise inconsistent with the evidence given by the first applicant in the visa application. The Tribunal observed that it would have expected the second applicant to know how her husband's faith came to the attention of his family, and considered that her evidence was inconsistent with the position taken in the post-hearing submission that it was a friend of the first applicant who told his family about his Shia faith.
5. The Tribunal rejected that the first applicant was assaulted at a mosque in 2011 and that he was ever attacked at a mosque on account of his faith or for any reason. Based on these findings the Tribunal had significant doubts about the credibility and reliability of the evidence given by the second applicant which supported these claims.
6. The Tribunal was not satisfied that the first applicant's family learned of his faith in 2015 as claimed, observing that he had given two inconsistent accounts about the circumstances which lead to his family learning of his faith. The Tribunal did not accept that the first applicant's family were made aware that he was a Shia, whether by himself or his friend. Accordingly, the Tribunal rejected the first applicant's claims that he was at any risk of harm from his family, or his in-laws, because he was a Shia. The Tribunal did not accept that any family members had attempted to have the second applicant and their children leave the first applicant.
7. The Tribunal did not accept that the first applicant nor the second applicant was or had ever been a Shia Muslim as claimed. The Tribunal also did not accept that the first applicant ever participated in Shia ritual or would for any reason be imputed as a Shia. The Tribunal was also not satisfied that the other applicants were Shia Muslims as claimed.
8. Based on these findings of fact, the Tribunal found that the applicants did not satisfy the criteria in s 36(2) of the Migration Act.

1. The applicants filed their application for judicial review on 29 December 2023. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
2. At the time the application first came before the Court for hearing on 11 October 2024, the application contained the following grounds:
   1. The Tribunal made an error because they made a mistake by saying my faith was not credible.
   2. The Tribunal focused too much on the minor inconsistencies in my history and did not appreciate that the events happened a long time ago and I can't remember everything one hundred percent accurate.
   3. The Tribunal incorrectly expected my wife to explain inconsistencies in my evidence when she shouldn't be expected to do so. This is my claim and my wife can't be expected to know everything about it.
3. The applicants did not file any amended application or submissions ahead of the hearing on 11 October 2024, despite having an opportunity to do so. The Minister filed written submissions ahead of the hearing addressing the grounds in the application as it stood at that time.
4. The first applicant appeared on behalf of the applicants at the hearing on 11 October 2024. As a self-represented litigant, the first applicant was given an opportunity to make submissions addressing any jurisdictional error he alleged the Tribunal made and was not confined to addressing the grounds in the application. As a consequence of subsequent developments in the case, it is not necessary to summarise the whole of the first applicant's oral submissions at the hearing. For present purposes, it is sufficient to note that the first applicant submitted that there was not a detailed discussion at the Tribunal hearing about the differences between Sunni and Shia Islam and there were claims about the children that were not discussed. The first applicant submitted that the Court could listen to the audio recording of the Tribunal hearing to check.
5. I advised the first applicant that the audio recording of the hearing before the Tribunal was not in evidence before the Court. To afford the applicants procedural fairness, I afforded the applicants an opportunity after the hearing to provide evidence of a transcript of the Tribunal hearing and to file written submissions.
6. The applicants obtained legal representation after the hearing. The applicants filed an affidavit annexing a transcript of the Tribunal hearing and provided written submissions which asserted that the Tribunal made a jurisdictional error by failing to address a claim which arose on the materials to the effect that the child applicants were at risk of gender-based violence or harm in conservative Sunni-dominated Malaysia. The Minister filed submissions in response and the applicants filed reply submissions.
7. After I considered the submissions of both parties, I invited the parties, via an email sent by my associate, to advise the Court whether they wished to have the opportunity to attend a further hearing before the Court. The parties requested an opportunity to attend a further hearing and the Court convened a further hearing on 5 February 2025.
8. At the hearing on 5 February 2025, the applicants sought leave to file an amended application. The Minister did not oppose leave being granted and I made an order granting leave to the applicants to file and rely on the amended application dated 4 February 2025 and the applicants read further affidavits.
9. The amended application abandons the previous grounds and instead raises the following new ground:

The Tribunal failed to consider the claims of the Third, Fourth, Fifth and Sixth Applicants that clearly emerged from the materials.

Particulars

1. The Second Applicant advanced fears of the Third, Fourth, Fifth and Sixth Applicants (her daughters) being harmed in Malaysia as young Muslim girls;
2. Country information before the Tribunal indicated that young Muslim girls in Malaysia are at risk of harm in Malaysia due to a high risk of societal violence;
3. The Second Applicant's fears and the country information before the Tribunal saw a claim that the Third, Fourth, Fifth and Sixth Applicants were at risk of societal violence arose on the materials.
4. The Tribunal failed to consider the Second Applicants fear and the country information before it despite a claim for the Third, Fourth, Fifth and Sixth Applicants emerged on the material.

1. As a consequence of the amended application being filed, it is no longer necessary to address the grounds that appeared in the application as originally filed or the first applicant's oral submissions made on 11 October 2024.
2. The evidence before the Court comprises:

(a) the court book filed by the Minister on 2 April 2024;

(b) an affidavit deposed by the first applicant and filed on 29 December 2023, annexing a copy of the Tribunal decision;

(c) an affidavit of the first applicant filed on 21 November 2024, annexing a transcript of the Tribunal hearing; and

(d) an affidavit of Munashe Rusamo filed on behalf of the applicants on 5 February 2025, annexing a copy of a report published by the Department of Foreign Affairs and Trade (DFAT) titled 'DFAT Country Information Report Malaysia' and dated 29 June 2021 (DFAT report).

1. The error asserted by the applicants is that the Tribunal overlooked and failed to consider claims for protection that emerged on the materials in the way described in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47]. In that paragraph, the Full Court of the Federal Court said:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. The Tribunal is required to consider claims that are expressly articulated by an applicant or which clearly emerge on the materials before the Tribunal: 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 (AYY17) at [18].
2. In AYY17, the Full Court of the Federal Court summarised the applicable principles and relevantly said at [18]:

• The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
  • The Tribunal is only required to consider such claims where they are either:

(a) the subject of substantial clearly articulated argument, relying on established facts; or > > (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

• ...
  • As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

1. While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
2. Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on "established facts". At [35], the primary judge found, relying on NABE and Dranichnikov [v Minister for Immigration, Multicultural Affairs and Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26] that, as the threshold point the claim must "emerge clearly from the materials before the Tribunal and should arise from established facts". I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

1. The parties have referred to the following information that was before the Tribunal in this matter.
2. In his visa application form, the first applicant said, in response to the question, 'What do you think will happen to you if you return to [Malaysia]?', the first applicant responded:

As a knowledgeable person, I have done my research on Malaysian law and those who is caught practicing Shiahs will be prosecuted and it has been declared through Shariah (Islamic law) that Shiah is prohibited in Malaysia.

I am sure if I go back to Malaysia they will separate my wife and children from me as it is a major crime in religion to practice Shiah.

1. In response to the question, 'Do you think you will be harmed or mistreated if you return to [Malaysia]?', the first applicant responded:

As a whole, the society will boycott me in terms of unfair treatment in getting a job or a place to live and this would lead to mental distress. This will also affect my wife and children. ...

1. In response to the question, 'Do you think you would be able to relocate within Malaysia?', the first applicant said:

Because majority Muslims in Malaysia are Sunni and also I have families scattered all over Malaysia and it would be difficult to practice and also I'm worried about my family and the safeness of our life.

1. Before the Tribunal, the first applicant provided the following information in writing:

In my original claims I mentioned that when I arrived in Australia in 2015, I decided to declare myself and my family as Shia Muslim to my parent and my family. I received many phone calls and they threaten me saying that they would take my children from me and would send them for counselling in order to become a Sunni Muslim again. My wife's family have ask her to leave me and take the children with her and fled to Malaysia so that my wife and children would practice Islam in a way that her family wanted. That is the Sunni Islam.

...

To conclude my stories, I experienced life threatening moments when I was in Malaysia. Basically I and my family has to live a different life in Malaysia in order to be safe. There's always a threat in our own family or even in the community. I and my family is always vigilant of our surrounding because we know if we start declaring that we are Shia Muslim and practice what we believe in, it would definitely be against the Malaysian law and we would definitely be separated from our children. Imagine being separated from your wife and children. Our children is given no choice in practice what they think what is right for them. Children has the right to choose in what they believe in, they should not be force to do something they don't want to do.

Thus, I have attached the evidences that the government of Malaysia is against the Shia Muslims together with my life experiences that I faced while I was in Malaysia. I would seek refuge in Australia because of the safety of me and my family. My children can choose what they want in this country ( Australia ) because Australia practices equality rights for all the people who lives in this country. Australia is a safe country for my children to grow up in. They will not fear of their safety and for obvious reason they don't need other people to decide what they can practice and not practice in terms of religion practice. They can even choose not to have any religion in Australia and it would be fine. My children have come to me and said if they choose not to practice any religion in their lives because they think religion is just complicated. This would only be possible in such a country like Australia but not in Malaysia.

1. In his oral evidence to the Tribunal, the first applicant said:

... I was born and raised in Malaysia, so basically what happened is that I was raised in a Sunni household. So both my parents are Sunni. So while growing up I see a lot of double standards or bias, especially towards my mom. And she's a woman. So I can see that even though you - a lot of Sunni Muslims in Malaysia, they claim that they follow the books, they follow the religion, but actually they do the opposite. And we were actually taught, or impose, to follow the regime. It's like a regime that you have to follow. You do not question anything. You just follow.

When you say the regime, that is, are you referring to the Sunni things? --- Yes. So by saying the regime, I'm saying about the ritual, the ritual - the Sunni practices. Like, along the way, along the line, I can see that the women in my family are oppressed. So without their own willing, so there's no equality, there's no equal rights. Like, without their own willing, they were forced to cover themselves. They were forced to do whatever the man wants them to do.

1. The second applicant, in her oral evidence to the Tribunal, confirmed that she did not raise any separate claims and then said:

... I need to explain that that I need this protection as a woman, as you know, like I don't know whether you know about Islam rules. But in Sunni rules it more to - the rules more to men - like go to men. When it comes to woman, there are so many restrictions which I think - I have four daughters. I don't want them to grow up like how my parents - like because I tried to get away from all these things so that I can have a lot more freedom as a woman and I don't want to be like my mother and also my mother-in-law. Because I can see how they treat a woman in that area. So that's why when I have four daughters, I feel like I need to do - I need to protect them. I need them to have freedom, to have a choice on their own to do whatever they want without anyone telling them this and that.

1. When asked what aspects of the Sunni faith the second applicant was referring to when she said that the rules are pro-men and she did not wish to be like her mother or mother-in-law, the second applicant responded:

They're like you know like - they cannot raise their opinions, and also the man actually like can tell them what to do and not to do. Say, like, they not really - they cannot have their own decision and sometimes what I don't like the most is nothing can protect them if anything happen. Like, if they mentally or physically abused, when they go to Islamic court, they're not really being protected properly. You know, like my mother - I know she was not happy for the whole marriage, but she still have to be in that marriage because you know like they have grown up like that - like they have to be like you have to obey your husband and you cannot have interaction with other men. Something like that. Like as far as I know from - yes, like I said the community. Like you as a wife, you cannot interact with any other man at all. Like, you are not permissible to do that. But in Shia it's more flexible. You can even choose yourself to be in a contract marriage. Then if you don't feel happy about it, you can just out from the contract. Like not only man can do that. The woman as well can do that. If I don't feel happy with this marriage, I can just go out from this marriage, and nobody will talk about it. Nobody will judge you. Something like that. Like yes, it's actually more to my - I want to do this for my children, for my girls. I have four girls. Now, my girls like in their teenage age, yes, I want them to have freedom to choose what they want.

1. The DFAT report before the Tribunal contained the following information in a section regarding Violence Against Women (emphasis added):

3.127 Despite the enhanced legal protections available to victims, NGOs report violence against women in the form on rape, domestic violence, and family sexual abuse remains a significant problem. According to RMP statistics, there were almost 5,000 cases of domestic violence against women reported in 2018, and 5,513 cases of domestic violence and 1,582 cases of rape reported in 2017. A study conducted in 2020 which compared five domestic violence surveys found that the prevalence of intimate partner violence against women ranged between 5 and 36 per cent, with the wide range partly attributable to the difficulty in measuring this form of violence. Local sources believe that domestic violence, rape and family sexual abuse remain under-reported because of traditional beliefs in the sanctity and privacy of marriage, the level of shame involved, and reluctance to expose a perpetrator within the family. While there was reportedly a significant increase in reports of cases of domestic violence immediately following the passing of the amendments, reporting rates subsequently tapered off due to a perceived lack of support and resources for victims. The government does not separate domestic violence deaths from other forms of unlawful killing, so it is difficult to ascertain accurate statistics. No statistics or government reports identify whether so called 'honour killings' (murders committed to punish individuals perceived to have brought shame upon their family or community) occur.

...

3.130 Malaysia saw a significant spike in violence against women in 2020 during the COVID-19 pandemic lockdown. The Women's Aid Organisation reported a 150 per cent increase in calls to its hotline and an 80 per cent increase in messages to its WhatsApp distress channel compared to the same period in the previous year. The situation was particularly bad for domestic workers, who are predominantly migrant women. Due to the travel and mobility restrictions, live-in domestic workers were reportedly faced with increased workloads while having to stay indoors throughout the day with their employers, some of whom were already abusive before the lockdown. Malaysia's Ministry for Women, Family and Community Development issued a series of online posters on Face book and lnstagram with the hashtag #WomenPreventCOVID19, and advised the nation's women to help with the country's partial lockdown by not 'nagging' their husbands. The ministry also advised women to refrain from being 'sarcastic' if they asked for help with household chores. The Malaysian government later apologised for its advice.

3.131 A 2009 JAKIM fatwa ruled that 'female circumcision', better described as female genital mutilation (FGM), was obligatory for Muslim women and girls, unless harmful to their health. Although no Malaysian state has gazetted the 2009 fatwa, the Ministry of Health subsequently introduced guidelines in 2012 that reclassified FGM as a medical procedure, permitting it to occur legally in health care facilities. In its last Universal Periodic Review in 2018, Malaysia claimed that female circumcision was a 'cultural obligation' though there are different interpretations of what constitutes female circumcision in the Malaysian context. According to the World Health Organization, the most common form in which FGM is practiced in Malaysia is Type I, involving the partial or total removal of the clitoris, although some women undergo Type IV, a ritual form which includes a symbolic pricking or nicking of the genitals. An academic study conducted in 2020 found that the prevalence of doctors performing FGM might be as high as 20 per cent, and that such doctors were increasingly performing Type I rather than the Type IV that midwives traditionally performed. The procedure is often performed during infancy. In-country sources report that, while public hospitals do not conduct the procedure, private hospitals do.

3.132 There are no recent verifiable statistics available in relation to the prevalence of FGM, but a 2012 university study found that 93 per cent of Muslim women surveyed had undergone 'circumcision'. According to the 2012 study, more than 80 per cent of respondents said religious obligations were behind the decision to be 'circumcised', while 16 per cent said the 'circumcision' was performed 'to control sexual drives'. Although international organisations such as CEDAW have urged the government to abolish FGM, officials have sought to draw a distinction between FGM and 'female circumcision'.

3.133 DFAT assesses that, while the situation is generally improving, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. These factors include: ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, lack of awareness of rights, and, in 2020-21, the economic and social impacts of the COVID-19 lockdown. Young Muslim girls face a high risk of societal violence in the form of being subjected to some form of FGM.

Did a claim clearly emerge based on the materials before the Tribunal?

1. The claim that the applicants allege emerged clearly from the materials before the Tribunal is that the third, fourth, fifth and sixth applicants were at a risk of, or feared, gender-based violence or harm in a conservative Sunni-dominated Malaysia.
2. In their written submissions, the applicants submitted that the claim emerged from the following established facts:

(a) the applicants are young Muslim girls who were raised in a household opposed to the practices of conservative Sunni Islam;

(b) the first and second applicants did not want their daughters raised in Malaysia, as they felt that their daughters needed to be protected from the way conservative Sunni Muslims in Malaysia treat women and girls;

(c) the second applicant told the Tribunal that she did not want her daughters returning to a Sunni-dominated Malaysia because she felt her daughters would not be properly protected from being 'mentally and physically abused'; and

(d) the existence of country information before the Tribunal that referred to young Muslim girls facing a high risk of societal violence in the form of being subjected to female genital mutilation, and a driver of female genital mutilation was religious obligation.

1. In their written reply submissions, the applicants contended that their objections to Sunni Islam were two pronged: the first relating to religious ideology and the second relating to the treatment of women in Sunni Islam. The applicants submitted that the claim was advanced by the second applicant at the hearing.
2. In oral submissions at the second hearing, Counsel for the applicants raised three aspects to their assertion that a claim emerged on the materials.
3. First, Counsel for the applicants submitted that the applicants had an expectation that the concerns they had for their daughters would be considered. Counsel submitted that the applicants had an expectation that the Tribunal would consider their claims relating to the family as a whole and not just the first applicant. A significant part of the first applicant's case as advanced was about wanting his children to have a choice about what they do and to be protected from Sunni Islam and its practices. The second applicant specifically said that she has four daughters that she wishes to protect from Sunni Islam rules. Counsel for the applicants submitted that it is clear from the comments made by the first and second applicants that they wanted claims regarding their daughters to be considered and expected them to be considered. Although they did not express their concerns with precision, their constant messaging and consideration of their daughters in their submissions indicate that they wanted claims relating to their daughters to be heard.
4. Second, Counsel for the applicants submitted that the claims that were articulated by the first and second applicants indicate that the Tribunal should have turned its mind to the potential claim in relation to the daughters. At the hearing before the Tribunal, the first and second applicants made clear that they had concerns about the treatment of women. Counsel for the applicants submitted that those concerns were supported by country information which should have raised flags for the Tribunal that a claim may emerge from the material provided.
5. Third, Counsel for the applicants submitted that the claim said to emerge does not require any creativity on the part of the Tribunal. As part of the Tribunal's assessment of whether the applicants are owed protection, the Tribunal was required to assess the applicants' claims under the complementary protection criterion in s 36(2)(aa) of the Migration Act, which requires the Tribunal to assess whether, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. Counsel for the applicants submitted that, in the present case, there was a foreseeable harm as a consequence of removal, because, on the facts before the Tribunal, there was a real cause for concern that as a necessary and foreseeable consequence of returning to Malaysia, the third, fourth, fifth and sixth applicants would be at risk of harm as young Muslim girls. Although the Tribunal found the applicants were not Shia Muslims, there was information before the Tribunal to suggest that they were otherwise Muslim. Counsel for the applicants submitted that the Tribunal ought to have considered, when making its complementary protection assessment, whether as a necessary and foreseeable consequence of the applicants being removed from Australia, there was a real risk that they would suffer harm as Sunni Muslims or just Muslims. In circumstances where the third, fourth, fifth and sixth applicants are young Muslim girls, their parents had an expectation that their daughters' claims would be considered, their parents had particular objections to Sunni Muslim practices and rules and were of the view that Sunni Islam oppressed women, the parents expressed concerns about the treatment of women in Malaysia and the DFAT report states that young Muslim girls in Malaysia are at a high risk of societal violence in the form of female genital mutilation, the claim emerged on the materials.
6. The Minister submitted that there was no general claim made for the children's safety in returning to a Sunni dominated Malaysia and, instead, the evidence relied on by the applicants related to the differences that the first and second applicants perceived between Sunni and Shia Islam. The Minister submitted, in response to the first submission addressing this issue filed by the applicants, that the Tribunal considered the claims as they were advanced by the applicants and that the Tribunal's rejection of the claims that the family were Shia Muslims dealt with all claims at a higher level of generality.
7. In her oral submissions, Counsel for the Minister submitted that the claim the applicants now suggest arose on the materials did not arise and was not expressly made, and the Tribunal considered the claims that the applicants made and which did arise on the materials. Counsel for the Minister submitted that the Tribunal considered the claims relating to the children as they arose on the materials, namely, the claims that the first applicant would face harm within the community, which would also affect his wife and children, and that the second applicant's family would take the children, which was specifically considered and rejected by the Tribunal.
8. Counsel for the Minister submitted that the suggestion that the applicants' objections to Sunni Islam were two-pronged - namely that they did not believe in the religious tenets and objected to the treatment of women - was not borne out on the material before the Tribunal. Rather, the first applicant claimed that he became interested in Shia Islam because he perceived that the Sunni religion created double standards for men and women, his mother was oppressed, not allowed to say anything in the house, not allowed to work, beaten by his father and not allowed to visit his siblings, that Shia Islam allowed for choice and was more flexible, in that you had to pray less times a day, women could have a say and have equal rights, there were marriage contracts and women could get a divorce. When one looks at what the first applicant said about his religion, it was the perceived flexibility that drew him and his wife toward the Shia religion and conversion.
9. Counsel for the Minister submitted that the applicants seek to place reliance on small portions of the second applicant's evidence that she needed to protect her daughters and that women were not protected by the Islamic Court if they were physically or mentally abused. Those brief extracts of the second applicant's evidence cannot link with the country information that young Muslim girls face a high risk of societal violence from being subjected to some form of female genital mutilation. Counsel for the Minister submitted that it is clear, when reviewed in context, that the second applicant was not making any additional claim that her children might suffer societal violence in the form of female genital mutilation, but instead was clarifying the reasons that she claimed led her to convert to Shia Islam and wanting her children to grow up with Shia Islam. Further, the context of the protection claims was that the children's religion was listed as Shia Islam.
10. Counsel for the Minister submitted that the country information alone could not have resulted in a claim arising on the material that was before the Tribunal. The extract at [3.132] is a reference to 2012 data and that there were no recent verifiable statistics in relation to the prevalence of female genital mutilation. At [3.131] it was stated that the procedure was usually performed in infancy, being babyhood or early childhood, whereas the children considered by the Tribunal in this matter were over the age of 10 years, and it is in that context that the statement about young Muslim girls facing a high risk of societal violence in the form of being subjected to female genital mutilation must be considered. Counsel for the Minister submitted that it is important that no claim was made by the second applicant that she had been, or would be, at high risk of female genital mutilation, or that she or the first applicant saw it as a religious obligation that their children undergo female genital mutilation or that they would choose for their children to undergo that procedure.
11. Having regard to the submission of both parties and the evidence before the Court, I am not satisfied that a claim that the third, fourth, fifth and sixth applicants faced a risk of harm from societal violence as young Muslim girls was expressly raised by the applicants or clearly emerged from the materials before the Tribunal.
12. The ground as pleaded asserts that the claim clearly emerged from the materials, not that it was expressly articulated by the applicants. Counsel for the applicants did not contradict the submission made by Counsel for the Minister at the hearing that she did not understand there to be any suggestion that the claim was expressly articulated, and the focus of the submissions was on whether a claim clearly emerged from the materials. Nevertheless, there is one paragraph of the applicants' reply submissions (filed before the amended application) that might be interpreted as suggesting that the claim was expressly advanced and I therefore err on the side of caution in this judgment and address that question.
13. The relevant paragraph in the applicants' reply submissions reads (footnotes omitted):

The Second Applicant expressly raised her fears of returning to a Sunni Malaysia as a woman and for her young girls. The Second Applicant expresses fears of mental and physical abuse of her young girls in a Sunni Malaysia. While the claim is not particularised, the claim is advanced by the Second Applicant in the hearing.

1. The evidence cited in support of the proposition is the extract of the transcript of the evidence of the second respondent given at the Tribunal hearing, set out at [38]-[39] above.
2. I do not accept that any claim that the female child applicants would face a risk of harm from societal violence in Sunni-dominated Malaysia was expressly raised by the second applicant in her evidence at the hearing before the Tribunal. Although she used the words 'I need this protection as a woman' (just after indicating she did not advance any claims for protection of her own), this needs to be understood in the context of the evidence she gave by way of clarification. The second applicant claimed that Sunni Islam rules were more favourable to men and that there were many restrictions on women, and that she would like her daughters to have freedom and choice. When asked to clarify (including in the context of the treatment faced by her mother), the second applicant responded that:

(a) women cannot raise their own opinions and men can tell them what to do;

(b) if they are mentally or physically abused, when they go to Islamic court, they will not be protected properly; and

(c) they have to stay in a marriage even if they are not happy, have to obey their husband and cannot interact with other men.

1. The second applicant then contrasted this with the position under Shia Islam, which she perceived to be more flexible, allowing for contract marriages and for women to leave a marriage if they are unhappy.
2. When the second applicant's evidence is considered in context, she did not expressly raise any claim to fear harm for her female children in returning to Malaysia. Rather, I accept the Minister's submission that the evidence of the second applicant is addressing why she prefers Shia Islam over Sunni Islam. There is no expressed fear of mental or physical abuse of her young girls in Malaysia. The comment made by the second applicant is properly understood as relating to women generally under Sunni Islam rules and is an assertion that if they are mentally or physically abused, they will not be properly protected by the Islamic court. This is a very different proposition from an express claim that the female child applicants face a real chance of serious harm (or a real risk of significant harm) from physical and mental abuse.
3. Having found that the asserted claim was not expressly articulated, I then consider whether it clearly emerged from the materials based on established facts.
4. The claim said to emerge clearly from the materials has been articulated before this Court in slightly different ways, but, as indicated above, it is, in essence, a claim that the female child applicants face a risk of harm from societal violence in Malaysia as young Muslim girls.
5. The Court acknowledges that the applicants were self-represented before the Tribunal and, as set out in the extract of AYY17 above, the courts are usually more willing to find a claim clearly emerges from the materials in the cases of self-represented applicants than in the cases of applicants represented by a lawyer or migration agent. Nevertheless, the claim still needs to be one that clearly emerges from the materials before the Tribunal, and not be a claim that simply might arise or which requires some creativity on the part of the Tribunal or Court.
6. In the present case, I am not satisfied that the asserted claim emerged clearly on the material before the Tribunal based on established facts.
7. I am not satisfied that every one of the 'established facts' relied on in the applicants' written submissions is properly characterised as an established fact. While I accept that the third, fourth, fifth and sixth applicants are girls aged between 10 and 16 years at the time of the Tribunal decision, who are citizens of a Muslim dominated country, and that their parents gave evidence to the Tribunal about their wish for the children to have freedom, choice and safety in the future, I have concerns about some of the aspects of the applicants' written submissions referred to as fact.
8. The Tribunal did not in fact make any finding about the religion of the female child applicants or whether they were raised in the household opposed to the practices of conservative Sunni Islam. Rather, the Tribunal had credibility concerns about the evidence of the first and second applicants and did not accept that the first or second applicants were or had ever been a Shia Muslim. In relation to the child applicants, the Tribunal observed at [122] of its reasons that no credible evidence had been adduced about the religion of the other named applicants beyond the assertion of the first and second applicants who the Tribunal did not find to be credible witnesses. The Tribunal observed that it was for the other applicants to satisfy the Tribunal of their claims and, given they had not done so, the Tribunal was not satisfied that they were Shia Muslims as claimed.
9. I also do not accept that the second applicant raised fears of her daughters being mentally and physically abused in a conservative Sunni-dominated Malaysia. As indicated above, I consider that the second applicant's evidence at the hearing before the Tribunal, considered in its proper context, amounted to an explanation as to why she considered the practices of Sunni Islam to be restrictive to women and why she preferred Shia Islam. The comment about physical and mental abuse is properly understood as a suggestion that if women are physically and mentally abused, they will not be properly protected by an Islamic court, rather than a claim or an assertion that her children face a risk of harm because of physical and mental abuse.
10. Despite these reservations about whether all of the asserted established facts are properly characterised as such, I proceed to consider whether the asserted claim clearly emerges on the materials before the Tribunal, taking into account the evidence before the Tribunal and the manner in which the applicants advanced their claims for protection.
11. The claims in the written documents, insofar as they related to the children, were claims that the children would be affected as a consequence of the harm that the first applicant claimed he would suffer as a Shia Muslim, or on account of the whole family being Shia Muslims. These were not claims that the female child applicants would face harm as a result of being Sunni Muslims (which they did not claim to be) or otherwise from living in a Sunni-dominated society.
12. The oral evidence given at the Tribunal hearing, particularly by the second applicant, did refer to a wish to protect her daughters from what she perceived as the restrictions and lack of freedom for women in Sunni Islam and her desire for them to have choice, and expressed concern that women are required to obey their husbands and if they are physically or mentally abused, they may not receive proper protection from the Islamic court, but did not advance any assertion or reference to the specific circumstances of any of her children that might indicate that there was any particular reason for her children to be at risk of harm.
13. There were two main types of harm referred to in the DFAT report. The one that was given the most attention at the hearing before this Court was the risk of harm of societal violence as a consequence of female genital mutilation. The second was the incidence of rape, domestic violence and family sexual abuse.
14. The DFAT report stated that there is a high risk of societal violence in the form of being subjected to female genital mutilation in Malaysia, with the procedure often performed during infancy and often motivated by religious obligations. I am unable to find that the claimed risk of harm to the female child applicants as young Muslim girls, in the form of female genital mutilation, clearly emerges from the country information before the Tribunal of itself or when considered in conjunction with the other information before the Tribunal about the female child applicants and their parents' articulation of their fears or concerns about Sunni Islam or in relation to the children. There was no suggestion in the evidence before the Tribunal that either parent feared that the daughters may be at risk of female genital mutilation, that this is something that they had any intention of subjecting their daughters to, or that any other person would subject their daughters to this. To the contrary, the evidence that the parents gave to the Tribunal emphasised their desire for their children to have a choice when it came to matters of religion. I accept the Minister's submission that the absence of any material to suggest that the female child applicants or their parents had concerns about female genital mutilation, or any reference by the applicants to the topic at all, is relevant in assessing whether any claim clearly emerged on the material before the Tribunal.
15. The other type of harm to women referred to in the country information was of rape, domestic violence and family sexual abuse. There was no evidence before the Tribunal to suggest that any of the female child applicants was at risk of harm of domestic violence or family sexual abuse based on their current domestic situation, and no information about any anticipated future domestic situation. To the extent that the second applicant's concerns are based on the position of women within marriage, there was no information before the Tribunal to suggest that any of the child applicants was married or had any current specific intention to marry. Again, the absence of any such evidence is relevant and significant in assessing whether the asserted claim clearly emerged on the materials before the Tribunal. If the suggestion is that the female child applicants may face a risk of harm based on some speculative future marriage or domestic situation, that is not a claim that emerges based on established facts and is purely speculative. It would require too much creativity on the part of the Tribunal for such a claim to emerge.
16. While I accept that the applicants made claims before the Tribunal about their wish for their children to be protected, this does not, of itself require the Tribunal to make inquiries about possible further claims of the applicants that are not articulated but which may arise, and it does not mean that that asserted claim emerged on the materials in the present case. While the applicants did not advance their case based on any failure to inquire on the part of the Tribunal, Counsel for the applicant submitted in his reply submissions that, had the Tribunal properly recognised the claim said to have clearly emerged on the materials (in particular, the country information), it could have further inquired about the risk to the applicants. I have found above that no such claim clearly emerged on the material before the Tribunal. There was therefore no need for the Tribunal to make any inquiries. It was up to the applicants to advance all particulars of their claims for protection and to provide the evidence in support of their claims: s 5AAA of the Migration Act. While the Tribunal has an obligation to consider claims which are not expressly articulated but which clearly emerge on the materials before it based on established facts, it does not have an obligation to raise other possible claims with the applicants, which they did not advance and which did not clearly emerge on the materials.
17. Given that I have found that the asserted claim was not expressly articulated and did not clearly emerge on the materials before the Tribunal, the Tribunal was not required to consider it.
18. I accept the Minister's submissions that the claims relating to the children that were expressly articulated by the applicants (which largely stemmed from the first applicant's claimed fear of harm for him and his family as a consequence of his or their practise of Sunni Islam) were addressed by the Tribunal either directly or as matters that were subsumed into findings made at a higher level of generality, such as the Tribunal's rejection of the applicants' claimed practise of Shia-Islam.
19. The ground of application is not established.

1. Given I have found that the applicants have not established that the Tribunal made a jurisdictional error, it follows that the application for judicial review must be dismissed.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[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.