AKF25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 369

1. The applicant is a citizen of Malaysia who applied for a protection visa in Australia. In her protection visa application, she claimed that she would be harmed or killed by loan sharks if she returns to Malaysia due to debts owing to loan sharks. A delegate of the Minister refused to grant the applicant a protection visa.
2. The applicant applied to the Administrative Review Tribunal (Tribunal) for merits review of the delegate's decision. She provided further information and advanced one or more further claims to the Tribunal. The applicant attended a hearing before the Tribunal on 6 December 2024. The Tribunal affirmed the delegate's decision on 19 December 2024. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
3. The applicant asserts that the Tribunal did not consider all her claims and failed to explore all relevant matters with her at the hearing. There is no dispute between the parties that the Tribunal considered the applicant's central claim for protection that she would face harm from money lenders after she was forced to go guarantor on a loan taken out by her former partner. Rather, the main issues that arise for determination in this judicial review application relate to:

(a) whether the Tribunal considered a claim raised by the applicant that she feared further domestic violence from her former partner;

(b) whether the applicant raised a claim to fear harm as a member of a particular social group, described as either single women in Malaysia or single women who have experienced gender-based violence; and

(c) whether the Tribunal properly explored these matters with the applicant at the hearing.

1. For the reasons explained below, I find that the Tribunal made a jurisdictional error by failing to consider the applicant's claim to fear harm in the form of domestic violence from her former partner. I therefore issue a writ of certiorari to quash the Tribunal decision and a writ of mandamus to require the Tribunal to reconsider the matter according to law.

1. In an amended application filed on 28 January 2026, the applicant raises a single ground:

1. The Tribunal's decision is affected by jurisdictional error due to:

1. failing to consider claims and/or critical issues clearly arising in the review; and

2. failing to explore all relevant issues bearing upon its exercise of power with the applicant at the hearing.

Particulars

1. a. The applicant claimed to have been in an abusive de facto relationship with (A), who forced her to guarantee his loan, leaving her to make the loan repayments before she fled, and claimed she is afraid to return to her home country due to:

i. "my personal details been use to get debt from loan shark.

ii. Domestic violence.

1. Family violence I received includes sexual abuse and mental abuse": CB 64.

2. The applicant claimed A "was abusive, and she ran away once but he found her" (CB 93 at [15]) and that A had punched her and splashed her with hot water, as evinced by a medical certificate dated 15 November 2024 certifying that she "has a well healed and fading scar ... from a scald when her ex-boy friend allegedly threw hot water at her": CB 78.

3. The applicant also detailed having been abused by family members, and subject to an attempted rape in a hostel, in response to which a police report was made: CB 75.

4. At the hearing, the Tribunal fixated on the applicant's claim to fear harm from loan sharks and bypassed meaningful exploration of other relevant claims and issues arising in the review.

5. The Tribunal also failed to meaningfully consider, or make findings in respect of, the applicant's claims to fear harm from:

i. A (domestic violence); and/or

1. Non-state actors based upon her gender, which clearly arose from the applicant's claims and the review material, including the DFAT report before the Tribunal: see DFAT Country Information Report Malaysia dated 24 June 2024 at [3.115] - [3.125].

2. Each of the errors particularised at (d), (e)(i) - (e)(ii) constituted a discrete jurisdictional error.

(a) the court book filed on behalf of the Minister, which was marked as Exhibit 1; and

(b) an affidavit of Walid Babakarkhil filed on behalf of the applicant on 28 January 2026 which annexes a transcript of the hearing convened by the Tribunal on 6 December 2024 and a copy of a country information report about Malaysia published by the Department of Foreign Affairs and Trade on 24 June 2024 (DFAT report).

The applicant's claims based on domestic violence

1. It is not in dispute between the parties that the applicant raised a claim that she feared domestic violence if returned to Malaysia. It is also not in dispute that the Tribunal's obligation to consider any claim raised by the applicant correlates to how the claim is put, having regard to its quality and clarity. As the High Court explained in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [25] (footnotes omitted):

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

1. It is therefore necessary to carefully consider how the applicant's claim was advanced.
2. On 31 August 2024 the applicant provided a pre-hearing information form to the Tribunal. In response to a question about whether there was any more information the applicant wanted to give about her claims for protection, or any other reason why she is afraid to return to her home country, the applicant provided three reasons she was afraid to return to her home country. The first of these related to her claim based on loan sharks. The second and third reasons given by the applicant were:
   • domestic violence
   • family violence i received includes sexual abuse and mental abuse.
3. The applicant provided a statement to the Tribunal on 29 November 2024 which addressed a range of topics. This included information about sexual assault and harassment of the applicant when she was a child by an uncle and a cousin and information about the family violence or domestic violence she experienced from her former partner, with whom she had two children. The domestic violence from her former partner included that she was punched and splashed with hot water on her arm, that she was beaten and that she tried to run away but was found by her ex-partner and beaten more severely. The applicant did not indicate in this document that she feared further domestic violence if she returns to Malaysia and instead focused on her fears from the money lenders.
4. At her hearing before the Tribunal, the Tribunal asked the applicant whether she still feared her former partner finding her, and she responded 'yes'.
5. Earlier in the hearing, the Tribunal explored with the applicant why the loan sharks would not use their resources to find the applicant's former partner to make him repay the loan. The applicant responded:

Maybe [the former partner] is not in Malaysia anymore. Maybe he's dead. Yeah. I don't know where he is. I waited for him for three months. I don't have any way to contact him or track him, albeit I lived. with him for 10 years.

1. The applicant subsequently said, in addressing a similar issue:

I don't know like I said before, if [the former partner] is Still in Malaysia or he could have died in the hands of a drug dealer, drug lord, drug person.

Did the Tribunal consider the applicant's claims based on domestic violence from her former partner?

1. The dispute between the parties in relation to this aspect of the applicant's judicial review application relates to whether the Tribunal considered the claim raised by the applicant, having regard to how the claim was advanced.

1. The Tribunal's reasons for decision commence with a summary of the background to the application and the evidence given by the applicant at various stages of the decision-making process and country information that the Tribunal discussed with the applicant at the hearing. The Tribunal then set out the relevant criteria for the grant of a protection visa and some general paragraphs about how it is required to approach its task.
2. The Tribunal's specific consideration of whether the applicant satisfies the refugee criterion commences at [36] of its reasons, in which the Tribunal identified the applicant's claim based on a fear of harm from loan sharks.
3. At [37] of its reasons, the Tribunal said (emphasis added):

The Tribunal accepts the applicant had a traumatic childhood and experienced abuse from her children's father. The Tribunal accepts the applicant's evidence that she went guarantor for a loan taken out by her children's father when they were together. The Tribunal accepts that he then disappeared, leaving her to make repayments. The Tribunal accepts the loan shark took a photograph of her half naked with her ID card and threatened to post it if she disappeared or failed to make repayments. The applicant was quite distressed when recounting the experience. The Tribunal accepts the applicant's evidence that her children's father left her and the children and is not part of their lives.

1. The Tribunal then immediately proceeded to consider country information about illegal money lenders before finding at [39] that the applicant did not face a real chance of harm from loan sharks. Notwithstanding this finding, the Tribunal from [40]-[47] addressed whether the applicant could access effective state protection if she returned to Malaysia. The focus of the Tribunal's consideration of effective state protection was on protection from loan sharks.
2. At [46]-[47], the Tribunal expressed the conclusion that there was effective state protection in Malaysia and therefore the applicant did not have a well-founded fear of persecution 'as a victim of a loan shark or for any related claim'. At [48], the Tribunal concluded that there was no real chance the applicant would face serious harm should she return to Malaysia 'on the basis of this claim'. In the context of the Tribunal decision, 'this claim' can only meaningfully be understood as the loan shark claim. At [49], the Tribunal expressed the conclusion that the applicant would not face a real chance of serious harm for a reason in s 5J(1)(a) of the Migration Act and this finding was said to have been based on the Tribunal '[h]aving considered all of the applicant's claims, individually and cumulatively, and country information, as well as having considered the personal circumstances of the applicant as contained in her application'.
3. In considering whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act, at [53] of its reasons the Tribunal found, pursuant to s 36(2B)(b) of the Migration Act, that the applicant could obtain protection from the Malaysian authorities such that there was no real risk she would be significantly harmed 'due to loan sharks or for any other associated reason'. At [54], '[c]onsidering the applicant's circumstances, and having regard to the findings of fact' made earlier in its decision, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk she would suffer significant harm for reason of 'her race, religion, nationality, membership of a particular social group, political or imputed political opinion or because of a debt to a loan shark'. It is unclear why the Tribunal referred here to the five reasons in s 5J(1)(a) of the Migration Act, which relate to the refugee criterion and not to the complementary protection criterion but I do not need to consider that further. What is relevant for present purposes is that the Tribunal did not include domestic violence in its list of reasons in relation to which it was not satisfied the applicant would face a real risk of significant harm.
4. At [55], the Tribunal expressed a general conclusion to the effect that the applicant did not meet the requirements of the complementary protection criterion. This finding was expressed to be made with the Tribunal '[h]aving considered all of the applicant's claims, individually and cumulatively, and country information, as well as having considered the personal circumstances of the applicant as contained in her application'.

The Tribunal's reasoning is not sufficient to amount to having considered the applicant's claim to fear harm from domestic violence

1. The Tribunal did not make any express finding to the effect that the applicant did not face a real chance of serious harm, or a real risk of significant harm, from domestic or family violence if she were to return to Malaysia.
2. The applicant's claim to face a chance of harm from domestic violence was not detailed and the Tribunal was not required to consider it in detail. It was, however, required to consider the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [57]-[58]. It may amount to jurisdictional error if the Tribunal did not consider the claim or if it did 'not engage in an active intellectual process or give proper, genuine and realistic consideration to ... a matter "that is an essential integer to an applicant's claim or that would be dispositive of the review"': Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at [34].
3. In the context of the Tribunal's reasons in this case, there appear to be two main issues relevant to determining whether the Tribunal considered the applicant's domestic violence claim. The first is whether the specific findings made by the Tribunal that touch upon matters related to the domestic violence claim, in particular at [37] of its reasons, are sufficient to dispose of the claim, having regard to the way in which it was advanced by the applicant. The second is whether the Tribunal's general findings are sufficient to encompass consideration of the domestic violence claim.
4. In my view, the Tribunal did not in fact consider the applicant's domestic violence claim.
5. The Minister submitted that the Tribunal's focus on the loan shark claim reflected the emphasis the applicant herself placed in the claim. I accept that that is the case and that the applicant gave very limited evidence about any fear she had of returning to Malaysia because of her former partner. However, the domestic violence claim was clearly raised in the pre-hearing information form and the applicant gave oral evidence that she still had a fear of her former partner finding her.
6. The Tribunal's finding at [37] that her children's father left her and the children and is no longer part of their lives is not sufficient to dispose of the domestic violence claim. I accept the applicant's submission that the Tribunal's finding that the former partner was not currently part of the applicant's or her children's lives did not answer whether she might be at risk from him if she returned, in circumstances where she claimed she had previously run away but had been found and where she had claimed that she still feared that he would find her again.
7. The Minister submitted that it was not to the point that the applicant claimed she had previously run away and her former partner had found her because, unlike before, the former partner had left her, apparently to avoid loan sharks, in 2018. While that might have been something that the Tribunal could have taken into account, had it considered the domestic violence claim, it did not amount to abandonment of the claim and it did not, of itself, answer whether the applicant's fear that her former partner would attempt to find her was well-founded.
8. Likewise, the applicant's speculation as to whether or not her former partner was still in Malaysia or was still alive was something that the Tribunal could have taken into account in considering the domestic violence claim, but it does not amount to abandonment of the claim and it did not otherwise dispose of the claim. In oral submissions, Counsel for the Minister submitted that the relevant question was, having regard to the information about the applicant not knowing the whereabouts of her former partner, where does that leave the applicant's claim that she would have a real chance of being the subject of domestic violence from her former partner if she returned to Malaysia. The Minister submitted that on the information before the Tribunal, and indeed on the applicant's own claims, there was, as the Tribunal found, no real chance of that happening. I do not accept that the Tribunal made that finding, and it is not one which is open to this Court, which does not consider the merits of the Tribunal decision. I do not accept the Minister's submission that the applicant's claim to fear harm from her former partner were subsumed in the Tribunal's findings at [37]: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47].
9. I accept the applicant's submission that the Tribunal's broad statements in its conclusions that it considered all the applicant's claims, individually and cumulatively, are not sufficient to demonstrate that it considered the applicant's domestic violence claim. I accept the applicant's submission that it is more relevant to look at the Tribunal's substantive reasoning process than its conclusory statements: SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723; [2003] FCA 1387 at [30]. While the Tribunal identified at [8] of its reasons that the applicant claimed in her pre-hearing information form that she was unable to return to Malaysia due to domestic violence and accepted at [37] that she experienced abuse from her former partner, it did not in its substantive reasons evaluate whether the applicant would face a real chance of serious harm from domestic violence in the reasonably foreseeable future. The Tribunal's general assertion that it considered the applicant's claims and her personal circumstances does not preclude the Court considering whether the matters were considered in accordance with law: AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [46]. In this case, the lack of evaluation of the applicant's claimed fear of domestic violence (including her claim that her former partner may find her) demonstrates that it was not considered as required by law.
10. For the avoidance of doubt, I also accept the submission advanced by Counsel for the applicant that the Tribunal's findings in relation to state protection do not dispose of the domestic violence claim, as they were clearly focused on state protection from loan sharks. I accept that the failure to consider the claim relating to domestic violence was a material error.
11. The first part of the applicant's ground establishes jurisdictional error and it is appropriate that writs of certiorari and mandamus issue.

Did the applicant raise a claim based on being a member of a particular social group or did such a claim clearly emerge on the material before the Tribunal? Did the Tribunal fail to explore all relevant issues with the applicant at the hearing?

1. The second part of the applicant's ground has two interrelated components. First, the applicant asserts that she raised a claim or a claim emerged on the materials that she was a member of a particular social group and, second, she claims that when she raised this at the hearing, the Tribunal did not explore her claim and instead redirected the issues back to the loan shark claim.
2. I first address whether the applicant made a claim to fear harm described variously as harm 'based on gender-based abuse coupled with an attendant failure of state protection' or harm as a member of a particular social group, being 'single women in Malaysia' or 'single women who have experienced gender-based violence'.
3. It is well-established that the Tribunal was required to consider claims that were expressly articulated by the applicant, as well as claims that were not expressly articulated but which clearly emerged on the material before the Tribunal based on established facts: NABE at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18]. A finding that a claim has clearly emerged should not be made lightly. While there is no precise standard to determining whether a claim has clearly emerged, the Court will be more willing to draw the line in favour of an unrepresented party: AYY17 at [18]. Nevertheless, the Tribunal is not required to engage in creative activity to ascertain a claim: NABE at [58].
4. The applicant primarily relies on two main parts of her evidence as forming the basis of the claim.
5. First, in the statement the applicant provided to the Tribunal on 29 November 2024, referred to at [10] above, the applicant included a heading that read 'Black event in my life'. Under this heading, one of the events that she referred to was an attempted rape in 2013 at an employee hostel and in relation to which she made a police report.
6. Second, the applicant also referred to the oral evidence she gave at the Tribunal hearing, and in particular, parts of the following exchange (emphasis added):

[Tribunal]

Is there anything else you'd like to tell me before I close the hearing? Do you have any other fears returning to Malaysia?

[Applicant]

Like what Member had said I can seek protection from the police. In 2013 I was almost raped. I made a report. Nothing happened.

[Tribunal]

In 2013. I understand that would probably have been the response of the police in 2013. My understanding from the country information is that since 2017, 2018 there have been some improvements and more training in awareness, violence against women. I will accept it's not probably to the same level as what it would be in Australia. But there have been some advances however in relation to loan sharks, which is your claim. There have been advances in loan sharks. You can go to make complaints about police corruption. And the changes have been that if you have an issue with the Police you can seek protection the Police Malaysia.

[Applicant]

But I'm adamant that I do not trust the police in Malaysia. I don't believe that corruption has been eliminated.

[Tribunal]

Is there anything else you'd like to tell me?

[Applicant]

Like I said, I don't have anything more to say but like I said, I'm very scared to be alone. And even though in my sleep I still have this fear because there are a lot of things, bad things that have happened to me.

1. The applicant further submitted that her final comments in the extract above, emphasising that she is scared to be alone, as a lot of bad things have happened to her, reinforces that the applicant's fears were not confined to the loan shark claim and that she also feared returning as a single woman based on her previous adverse experiences.
2. In the alternative, Counsel for the applicant submitted that the combination of those parts of the written statement to the Tribunal and the oral evidence just referred to, read together with the DFAT report, gave rise to an issue that emerged on the material before the Tribunal.
3. DFAT reported that 'discrimination on the basis of sex, and inequality, persist for woman and girls in Malaysia'. The DFAT report contains information about the risk to woman in Malaysia from gender-based violence. DFAT expresses the view that 'violence against women and girls is a significant, albeit underreported, problem'. It also expresses the view that state protection for woman and girls experiencing gender-based violence is mixed and that 'women and girls in Malaysia face a moderate risk of GBV [gender-based violence] in the form of domestic violence'. Much of the analysis focuses on domestic violence and intimate partner violence, but I cannot completely exclude the possibility that the information may have some relevance to the claim the applicant asserts arose on the material before the Tribunal, relating to gender-based violence outside of a domestic relationship.
4. I do not accept that the applicant's oral evidence emphasised above, together with the reference to a past attempted rape in 2013 in her written statement, amounts to a clearly articulated claim before the Tribunal. Nor do I accept that a claim clearly emerged from the material before the Tribunal having regard to the applicant's evidence when read in conjunction with the DFAT report.
5. While I do not downplay the seriousness of the applicant's past experiences, I accept the Minister's submission that the reference to the 2013 attempted rape in her written statement to the Tribunal was a reference to a singular incident in her past. She did not claim in that statement, or in her oral evidence to the Tribunal, that she would be at risk of harm from any similar incident in the future. This can be contrasted to the domestic violence claim discussed above, in relation to which the applicant asserted with sufficient clarity that she could not return to Malaysia because of domestic violence and that she still feared her former partner would find her.
6. Read in the context of the transcript of the Tribunal hearing as a whole, it appears to me that the applicant's comments emphasised in the extract at [38] above are directed to her views that state protection is not available. Shortly before the extract of the hearing transcript set out above, the Tribunal had suggested to the applicant that it needed to consider whether she could obtain protection from the police or whether she could relocate to avoid harm. The applicant had responded insofar as the Tribunal raised relocation. It appears that when asked if there was anything else she would like to tell the Tribunal or any other fears of returning, the applicant took the opportunity to address why she did not believe the police could protect her.
7. Even if I am wrong in that view, the applicant's reference to the 2013 attempted rape in her oral evidence to the Tribunal does not indicate that she feared harm from rape in the future or that her past experience would place her at any particular risk of harm in the reasonably foreseeable future. It does not amount to an articulated claim that she would face a real chance of serious harm because of membership of a particular social group, or a real risk of significant harm from gender-based violence, if she were to return to Malaysia.
8. In this regard, I accept the submission advanced by Counsel for the Minister that the applicant did not articulate the extent to which she claimed the past harm she faced was because of her membership of either of the particular social groups of single women in Malaysia or single women who experienced gender-based violence. Nor did she articulate anywhere before the Tribunal that she would face harm because of her membership of one of these groups in the reasonably foreseeable future. The applicant did not make any claim, expressly or impliedly, that she would face any risk or chance of harm in the form of rape or other sexual assault outside of a domestic relationship in the future that is not faced by the population generally.
9. When read together with the DFAT report, the applicant's evidence does not give rise to an unarticulated claim that clearly emerges from the materials before the Tribunal based on established facts. The primary focus of the country information in relation to gender-based violence is on domestic violence and intimate partner violence. This information would have been relevant to the consideration of the applicant's claim to fear being subjected to domestic violence from her former partner, had the Tribunal addressed that claim. While I have accepted above that some parts of the country information may also be relevant to whether there was a risk to the applicant (or indeed any woman in Malaysia) more generally from gender-based violence, it is insufficient to support a finding that a claim clearly emerged from the materials before the Tribunal that the applicant, in her particular circumstances, may face a real chance of serious harm or a real risk of significant harm due to gender-based violence from any person other than her former partner.
10. Having found that no relevant claim was expressly articulated by the applicant or clearly emerged on the materials before the Tribunal, the balance of this part of the applicant's ground falls away. That was focused on the Tribunal's response to the alleged claim and the Tribunal redirecting the applicant back to her loan shark claim when she referred to the 2013 attempted rape in her oral evidence. The applicant claimed that the Tribunal denied the applicant a proper opportunity to give evidence about the claim and that the Tribunal misrepresented the country information. In circumstances where no relevant claim arose, the Tribunal did not have to ask the applicant the types of questions that may be relevant to whether she would face a real chance of harm as a member of a particular social group or otherwise from gender-based violence.

1. I found above that the applicant made a claim that she would face a chance of harm from domestic violence from her former partner and the Tribunal failed to consider this claim. This amounts to jurisdictional error. It is appropriate for writs of certiorari and mandamus to issue to quash the Tribunal decision and require the Tribunal to reconsider the matter according to law.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.