AUK19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1170

1. By way of Application filed on 28 February 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 15 February 2019 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she is a person in respect of whom Australia has protection obligations as outlined in s36(a) or s36(aa) of the Migration Act.
3. The hearing of the Application took place at the Melbourne Registry of the Court on 23 July 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act or that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa), including by reason of misinterpretation at the hearing before the Tribunal.

1. The Applicant is a citizen of Malaysia.
2. On 1 April 2015, the Applicant arrived in Australia as the holder of a Visitor (Subclass UD 601) visa.[2]
3. On 14 September 2015, the Applicant applied for the Visa, the subject of this proceeding.[3] The Applicant claimed to fear harm to her life from her husband if she were to return to Malaysia. Her claims can be summarised as follows:[4]

(a) The Applicant's husband was abusive, alcoholic and tortured her almost every week;

(b) Her husband brought home another woman, and when the Applicant asked for a divorce she was hit badly;

(c) If she returned to Malaysia she might be beaten or killed;

(d) She did not seek help in Malaysia as her husband had threatened to kill her if she made a police complaint;

(e) She could not move to another part of Malaysia because her husband could trace her;

(f) Her husband's near relative was a person with influence in the government; and

(g) She was unable to run away because Malaysia is too small.

1. On 23 March 2016, a Delegate of the Minister requested that the Applicant attend an interview.[5]
2. On 6 April 2016, the Applicant attended the interview with the assistance of an interpreter.[6]
3. On 8 April 2016, a Delegate of the Minister refused to grant the Visa and notified the Applicant on date same (Delegate's Decision).[7]
4. On 13 May 2016, the Applicant sought review of the Delegate's Decision before the Tribunal (Review Application).[8]
5. On 16 May 2016, the Tribunal wrote to the Applicant acknowledging receipt of the application.[9]
6. On 20 September 2018, the Applicant was invited to attend a hearing before the Tribunal on 17 October 2018.[10]
7. On 8 October 2018, the Applicant returned a completed response to the hearing invitation.[11]
8. On 17 October 2018, the Applicant attended the Tribunal hearing with the assistance of an interpreter.[12] The Applicant wrote to the Tribunal and requested a copy of the audio recording of the hearing on date same.[13]
9. On 21 October 2018, the Tribunal wrote to the Applicant and provided a copy of the audio recording by email.[14]
10. On 28 October 2018, the Applicant wrote to the Tribunal and provided a certified translation of her marriage certificate.[15]
11. On 15 February 2019, the Tribunal affirmed the Delegate's Decision under review.[16]
12. On 18 February 2018, the Tribunal provided written reasons and notified the Applicant of its decision.[17]

1. The Tribunal's Decision is at 95 to 112 of the Court Book.
2. The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [4] to [9].
3. The Tribunal assessed whether the Applicant had a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) and if not, whether the Applicant had substantial grounds for believing that being removed from Australia would cause her significant harm.[18]
4. The Tribunal accepted that the Applicant was a citizen of Malaysia.[19]
5. The Tribunal accepted that the Applicant was in an abusive marriage from January 2015 until her departure to Australia. The Tribunal accepted that the Applicant's husband was manipulative, used threats, physical intimidation including hitting her and forcing her to have sex against her will.[20]
6. The Tribunal did not accept that the Applicant's husband has connections and influence, that enabled him to know where the Applicant was and what she was doing all the time throughout Malaysia. The Tribunal found the Applicant's evidence on this issue to be vague and speculative when asked further about why she thought her husband had this ability. The Tribunal was not satisfied with the Applicant's explanation of how her husband would be able to know if she returned to Malaysia, not her hometown.[21]
7. The Tribunal did not accept the Applicant's evidence that the Applicant's husband stalked or threatened her on Facebook after she left Malaysia and that her husband would still be interested in pursuing her for revenge four years after she left him. The Tribunal found that they have had no contact while the Applicant has been in Australia and on the Applicant's evidence that he formed a relationship with another woman shortly before the Applicant left Malaysia.[22]
8. The Tribunal found that the Applicant would be able to support herself should she return to Malaysia. The Tribunal also considered country information from DFAT, noting that Malaysia's laws prohibit domestic violence and women who face threats of violence can seek an interim protection order or a protection order after lodging a police report. The Tribunal also noted that the most recent DFAT Country Information Report suggests domestic violence is a continuing problem in Malaysia and a lack of awareness of individual's rights creates difficulties for women to gain adequate state protection or safely leave violent relationships.[23]
9. The Applicant submitted that she did not seek assistance from specialised domestic violence support services and reiterated that she went to the local police only once; no report was written or action taken by the police. The Tribunal accepts that it is not possible to guarantee absolute protection from domestic violence, however, the Tribunal is satisfied that the protection offered amounts to effective protection measures as outlined in s 5LA and therefore, the Applicant does not have a well-founded fear of persecution as outlined in s 5J(2).[24]
10. The Tribunal held that the Delegate's Decision should be upheld. The Tribunal found that the Applicant does not meet the refugee criterion in s 36(2)(a) and 36(2)(aa) of the Migration Act.[25]

1. On 28 February 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 14 April 2021, Orders were made by Registrar Carney for the First Respondent's name to be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. That the Applicant file: any amended application, written submissions and any Supplementary Court Book. That the Respondent file and serve written submissions and one hard copy of the Court Book no earlier than 8 weeks and no later than 6 weeks prior to the hearing.
3. On 18 February 2025, Orders were made by Registrar Foster for the First Respondent's name to be amended to the Minister for Immigration and Multicultural Affairs. That the Applicant file: any amended application, written submissions and any Supplementary Court Book. That the Respondent file and serve written submissions and any affidavit evidence on which they seek to rely on. The Court noted that the Applicant confirmed she had retained a copy of the Court Book and advised that she has a new physical address which she filed a new Notice of Address for Service form within 7 days.
4. This matter was heard on 23 July 2025 for a Final Hearing before me.
5. The Applicant relied upon the following documents:

(a) The Application filed 28 February 2019; and

(b) The Affidavit of the Applicant sworn and filed 28 February 2019 (Applicant's Affidavit).

(a) The Response, filed 24 April 2019;

(b) The Minister's Outline of Submissions filed 9 July 2025;

(c) Affidavit of Sophies Alexandra Ward filed 16 July 2025; and

(d) List of Authorities filed 21 July 2025.

1. Both parties relied on the Court Book.
2. The Application contains the following grounds of review (Grounds of Review):
   1. During my hearing session, I was dissatisfied with the interpreter because he did not speak well with what I said. (Ground 1).
   2. The Member also expresses verbally during the hearing session which she was not sure of my statement. I feel that Member made a decision through emotion over that statement. However, I am eligible in section 31(1) of the Act provides that there are to be prescribed classes of visa. The are set out in schedule 1 to the regulations 5 in addition, there are classes provided for in the Act. Including protection visas 6. (Ground 2).
   3. I feel there is jurisdiction error by Tribunal because over tht statement with the emotion and the Tribunal state one of the reasons they do not grant this protections visa. (Ground 3).
   4. According in - of the 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) there is description and authorizing me to make such action and appeals to Federal Court of Australia from decision of the Tribunal. (Ground 4).

1. The Applicant did not file written submissions.
2. At the Hearing, I refused the Applicant's application for an adjournment for an indefinite period which was sought on the basis of a medical certificate which identified that the Applicant had symptoms "suggestive of Major Depressive disorder, Anxiety and Panic Disorder".
3. The Applicant indicated that she did not wish to make oral submissions and was content to rely on the documents that had been filed, in particular the Grounds of Review in her Application.
4. At the conclusion of the Hearing, I offered the Applicant the opportunity to file written submissions, but she indicated that she did not seek to file any written submissions.

1. The Applicant expressed disappointment in the interpreting service during her Tribunal hearing. While the Minister acknowledges that inadequate interpreting services may give rise to procedural unfairness or jurisdictional error, an interpretation related error will only amount to a jurisdictional error if it relates to a matter of significance for the Applicant's claim or Tribunal decision.
2. The Minister notes that the Applicant has not provided any particulars of any interpreting errors, despite having requested and received a copy of the Tribunal hearing audio recording.
3. The Minister submits that there is nothing in the decision record that indicates the Applicant's answers as interpreted did not rationally follow the Tribunal's questions, or that the Applicant was denied an opportunity to give evidence and present arguments before the Tribunal.
4. The Minister submits that Ground 1 is not made out.

1. The Applicant alleges that the Tribunal member expressed that "she was not sure of [the applicant's] statement" and that the Tribunal "made a decision through emotion". The Applicant has not particularised this allegation or provided evidence as to the Tribunal having a pre-existing mind to the decision.
2. The Minister holds that if taken to be an allegation of bias, this must be firmly and clearly proven.
3. The Minister notes that the Tribunal obtained a substantial amount of oral evidence from the Applicant during the hearing. Although the Tribunal had concerns about the plausibility and credibility of some of that evidence, such concerns do not suggest bias. Rather, they indicate close engagement with the Applicant's evidence and that the Tribunal was conscious to notify the Applicant of issues of concern to afford the Applicant an opportunity to respond. The Minister contends that the Tribunal is entitled to vigorously test evidence where credibility is an issue.
4. The Minister notes that if this ground otherwise expresses disagreement with the Tribunal's finding, the Applicant may be inviting the Court to engage in impermissible merits review.
5. The Applicant correctly identifies that s 31 of the Migration Act provides that there are to be prescribed classes of visas. The visa classes are set out in Schedule 1 to the Regulations and the Migration Act, including Protection Visas.[26] However, the Minister submits that these matters do not identify any jurisdictional error in the Tribunal's Decision.
6. The Minister submits that Ground 2 is not made out.

1. The Minister submits that Ground 3 repeats the allegation about the Tribunal's "emotion". The Minister relies upon the submissions set out in Ground 2 above and submits that no error is made out.

1. The Minister contends that Ground 4 does not allege any jurisdictional error and is misconceived. The Court has jurisdiction to hear this Application under s 476 of the Migration Act, not s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In any event, the fact that the Court has jurisdiction to review the Tribunal's Decision does not disclose jurisdictional error.
2. At the Hearing, the Minister relied upon their written submissions.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[27]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The Court neither consider the merits of the decision nor remakes it.[28] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[29]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[30] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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".[31] Different kinds of error may overlap.[32] The categories are not closed.[33]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[34] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[35] It has been described as an "undemanding" standard.[36]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
2. Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term "refugee" is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a "well-founded fear of persecution"[37] as defined by s 5J.
3. Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
4. Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.

1. Ground 1 is that:
   1. During my hearing session, I was dissatisfied with the interpreter because he did not speak well with what I said.
2. The function of an interpreter is to "place the non-English speaker as nearly as possible in the same position as an English speaker", and that the interpreter "provides the means for communication between the applicant, the tribunal and other participants in the tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end".[38]
3. Whether a departure from proper "standards of interpretation" renders a hearing unfair depends upon the circumstances of the case.[39] An interpreter must "convey the substance of what is said" to an applicant so that he or she, in turn, can "communicate the substance of his or her case and to respond to the issues raised".[40] It is critical that the essential elements of what was said by the appellant are communicated to the tribunal.[41]
4. In SZRMQ, Allsop CJ stated (at [9]):

It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

1. There is no evidence before me of any interpretation errors in the hearing before the Tribunal, and no particulars are given of any alleged errors. In the absence of evidence, the Court is "entitled to accept that [Tribunal's] decision records as accurately reflecting the matters to which it refers as taking place at the hearing".[42] Further, there is nothing in the Tribunal's Decision to suggest error in interpreting as alleged.
2. I am not satisfied that jurisdictional error is made out by reference to Ground 1.

1. Ground 2 is that:
   1. The Member also expreddes verbally during the hearing session which she was not sure of my statement. I feel that Member made a decision through emotion over that statement. However, I am eligible in section 31(1) of the Act provides that there are to be prescribed classes of visa. The are set out in schedule 1 to the regulations 5 in addition, there are classes provided for in the Act. Including protection visas 6.
2. It is difficult to understand what complaint is being made in Ground 2. The allegation that the Tribunal member expressed uncertainty during the hearing would not give rise to jurisdictional error. It does not follow, that even if such a statement were made, that the Tribunal member "made a decision through emotion". To the extent that this is an allegation of actual or apprehended bias, the matters alleged fall well short of establishing that.
3. Further the reference to provisions concerning the prescribed classes of visa do not identify any jurisdictional error or arguable jurisdictional error.
4. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

1. Ground 3 is that:
   1. I feel there is jurisdiction error by Tribunal because over tht statement with the emotion and the Tribunal state one of the reasons they do not grant this protections visa.
2. For reasons set out above under Ground 2, I do not consider that jurisdictional error is established by reference to Ground 3.

1. Ground 4 is that:
   1. According in - of the 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) there is description and authorizing me to make such action and appeals to Federal Court of Australia from decision of the Tribunal.
2. The Court's jurisdiction to hear this Application for judicial review is conferred by s 476 of the Migration Act and not s 44 of the AAT Act. The latter provision has no relevance to this Application.
3. I am not satisfied that jurisdictional error is made out by reference to Ground 4.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[43] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,500.00 being less than the scale amount.[44] I am satisfied that costs ought to follow the event,[45] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[46]

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 23 July 2025, Order 3.

[26] See s 31(2) of the Migration Act.

[27] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[28] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O'Callaghan JJ at [17].

[29] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82] (per McHugh, Gummow and Hayne JJ).

[30] Plaintiff S157/2002..

[31] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (LPDT) at [3].

[35] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[36] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).

[37] See s 5H(1)(a) of the Migration Act.

[38] Perera v Minister for Immigration &Multicultural Affairs (1999) 92 FCR 6 at [24].

[39] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 (SZRMQ) at [5].

[40] Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at [28].

[42] Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62.

[43] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[44] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.

[45] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[46] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172.