CKY25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 318

1. Before the Court lies an application seeking judicial review of a decision of the Administrative Review Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant the applicants a Protection (Class XA) (Subclass 866) visa (the visa). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal's decision. On that basis, the application cannot succeed.

1. The applicants are both citizens of Malaysia (Court Book (CB) 20, 51). The first applicant (the applicant) is the mother and legal guardian of the second applicant, a minor (CB 53, 89). They last arrived in Australia on 28 November 2019 as the holders of a UD-601 Electronic Travel Authority (CB 57-58).
2. On 15 February 2020, the applicants applied for a protection visa (CB 12-73). In that application, the applicant claimed to have left Malaysia because she was unable to repay money she borrowed from her family and from a financial institution. The applicant claimed that her inability to pay resulted from Malaysia's economic situation. She further claimed that if she returned to Malaysia in the current economic climate, she would be unable to collect and repay the sum of money within the given period (CB 35). The second applicant claimed protection on the basis that she had to leave Malaysia and come to Australia with her mother as there were no family members willing to care for her in Malaysia (CB 66).
3. On 9 February 2021, a delegate of the Minister refused to grant the applicants the visa (CB 85-93). The delegate was not satisfied that the applicants were persons in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) (CB 92).
4. On 20 February 2021, the applicants applied to the Tribunal for review of the delegate's decision (CB 102-109).
5. On 5 November 2024, the applicant completed a pre-hearing information form in which she reiterated her claims of economic harm and expressed concern about her child's future, as she claimed the second applicant was in therapy with a specialist for suspected ADHD and was awaiting an autism evaluation (CB 114-119).
6. On 28 November 2024, the applicants were invited to attend a hearing scheduled for 30 January 2025 (CB 121-123).
7. On 4 December 2024, the applicants responded to the hearing invitation by indicating that they would participate in the hearing and attaching a 'progress report' from the second applicant's occupation therapist and speech pathologist (CB 129-133).
8. On 30 January 2025, the applicants attended the scheduled hearing with the assistance of a Malay interpreter and advanced further claims on behalf of herself and the second applicant (CB 138-140). Following the hearing, the department granted the applicant's request to provide further documentary evidence in relation to the second applicant's protection claims (CB 141-142).
9. On 4 and 5 February 2025, the applicant submitted supporting documents including various articles and a paediatric report with respect to the second applicant (CB 143-154, 156-160).
10. On 14 February 2025, the Tribunal affirmed the delegate's decision not to grant the applicants a protection visa (CB 161-178).
11. On 25 February 2025, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Act.

1. To obtain assistance in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is therefore necessary to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa decision under review (at [1]-[2]). The Tribunal confirmed that only the applicant mother was required to appear before the Tribunal to give evidence and present oral arguments at hearing, as the second applicant was a minor (at [3]).
3. The Tribunal outlined the applicants' procedural history and their protection claims as set out in their visa application (at [4]-[13]).
4. The Tribunal then summarised the applicant's evidence as detailed on the 'Pre-hearing information form' and as advanced at the Tribunal hearing, as follows (at [15]-[16], [28]):
   • Her housemate completed and lodged the protection visa application on behalf of both applicants but the applicant was unaware at the time as to which visa the housemate applied for.
   • The applicant borrowed 31,000 MYR from her mother to help pay for study and a car loan, but never borrowed 190,000 MYR from the bank for her business as claimed in her visa application. She claimed her housemate embellished the story on her protection visa application, but that she provided the correct information in her 'Pre-hearing information form'.
   • She still owes her mother 20,000 MYR. Her mother is not charging her interest, nor does she threaten or otherwise seek to harm the applicant in order to repay the debt.
   • She has not experienced any harm in Malaysia to date, and if required to return to Malaysia, she does not fear harm.
   • It is hard to find a job in Malaysia and she needs to repay her debts to provide for her children's future.
   • The second applicant suffers from a speech impediment and requires ongoing occupational therapy to aid in developing her motor skills. Whilst she has not been formally diagnosed with autism or ADHD, the applicant believes her child has a "problem" as she exhibits symptoms in line with the aforementioned conditions and will therefore be at risk of increased bullying and abuse because of this if they are required to return to Malaysia.
   • If she fails to make the repayments towards her study loan, she would not be able to apply for a passport and would have difficulties in obtaining future loans.
5. The Tribunal then set out the relevant legislative criteria for a protection visa under s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth), including the refugee and complementary protection criteria, and the mandatory considerations contained within Ministerial Direction No. 84 (at [19]-[24]).
6. The Tribunal accepted that the applicants were Malaysian nationals who had remained in Australia since their arrival date in November 2019 (at [26]).
7. The Tribunal also accepted the applicant's clarification in her oral evidence that she did not have any outstanding debts, nor had she taken out any loans, with the bank. The Tribunal accepted that the only loan the applicant had taken out was the loan from her mother totalling 31,000 MYR, and aside from her mother being angry with her, there have not been any threats of harm from her mother to repay the money (at [29]). The Tribunal therefore did not accept that the applicants would face a real chance of serious harm if they returned to Malaysia now or in the reasonably foreseeable future, on account of the applicant's outstanding debt (at [30]).
8. In relation to the second applicant's claims of protection, the Tribunal accepted that, being a minor, she had to follow her mother to Australia as there was no family member in Malaysia able to care for her (at [31]).
9. The Tribunal then set out the additional claims submitted at the hearing on behalf of the second applicant as follows (at [32]) (verbatim):
   1. While the applicant child may still be able to access the same medical treatment in Malaysia as she does in Australia, it will be more expensive and the applicant child may have longer waiting times to access the treatment;
   2. The applicant child faces an increased risk of being bullied on account of her medical and/or health condition(s) if she returns to Malaysia;
   3. The applicant mother believes the applicant child has ADHD and autism and that this places her at greater risk of being "sexually disturbed" if she returns to Malaysia;
   4. Being autistic and having ADHD and a speech condition would also make it more difficult for the applicant child to "yell" for safety in the event she is raped; and
   5. If they return, they would likely reside with the applicant mother's mother and the applicant child may be at risk while living with the applicant mother's mother and her boyfriend.
10. The Tribunal outlined the medical evidence with respect to the second applicant's health care and ongoing treatment (at [33]-[36]). In that regard, the Tribunal accepted the applicant's medical evidence that the second applicant had a speech impediment which, at times, resulted in the child becoming easily frustrated and upset if unable to effectively communicate what she wants. The Tribunal also accepted that the second applicant is likely to benefit from ongoing occupational therapy, speech pathology and social work input (at [37]-[38]).
11. The Tribunal had regard to DFAT country information and found that Malaysia had a well-established universal health care system which is accessible to most of the country's population (at [40]). On the basis of that country information, the Tribunal accepted that the second applicant would be entitled to similar medical treatment in Malaysia as that received in Australia, albeit with the possibility that it may be at a greater financial cost and associated wait list time (at [41]). The Tribunal found that there was no information before it to suggest that the second applicant would be denied access to the treatment she requires in Malaysia, and it therefore followed that the Tribunal was not satisfied the second applicant faced a real chance of serious harm if returned to Malaysia now or in the reasonably foreseeable future, or a well-founded fear of persecution for the reasons claimed.
12. The Tribunal then outlined the applicant's claims with respect to the second applicant's ADHD, autism and increased risk of sexual assault. In the absence of any formal medical diagnosis in that respect, the Tribunal did not accept that the second applicant suffered from ADHD or autism, nor was there any information to indicate that the second applicant would be prevented from accessing health care or treatment for her current conditions in Malaysia (at [42]-[43]).
13. The Tribunal outlined the applicant's claim in relation to the second applicant's risk of being sexually assaulted owing to not being able to shout for help because of her autism and speech impediment (at [44]). The Tribunal considered the evidence submitted by the applicant but ultimately found that persons with disabilities are at greater risk of being victims of sexual violence generally and not just in Malaysia, and in the absence of any formal diagnosis of ADHD or autism, did not accept that the second applicant faced an increased risk of being harmed on return to Malaysia because of any medical or health condition (at [45]-[46]).
14. Furthermore, the Tribunal did not accept the claim in relation to the second applicant being at greater risk of being bullied if she attends school in Malaysia because of her speech impediment and/or other medical conditions. The Tribunal considered the applicant's evidence in that respect but found that the evidence did not suggest that children in Malaysia are more likely to be bullied than in Australia, even if they have a medical or health condition. Whilst the Tribunal accepted the second applicant had a speech impediment, it did not accept that the child suffered from ADHD or autism. The Tribunal was not satisfied, based on the information before it, that the second applicant would face serious bullying or discrimination in school if returned to Malaysia at a level that would constitute serious harm, nor would she be denied an education on account of her speech impediment or any other medical condition (at [47]-[48]).
15. The Tribunal then addressed the applicant's claim that the second applicant would face an increased risk of harm upon return to Malaysia if compelled to reside with the applicant's mother and her boyfriend. In support of her claim, the applicant provided a report detailing 387 cases of abuse involving children as recorded by the Royal Malaysian Police, in which caregivers and biological parents constituted the highest perpetrators (at [50]). However, the Tribunal found there was no information before it which indicated that the second applicant would be at risk of harm if she were to be cared for by a caregiver, or by members of her extended family upon returning to Malaysia (at [51]).
16. The Tribunal was not satisfied that the applicants had a well-founded fear of persecution for the reasons claimed for the purposes of s 36(2)(a) of the Act (at [30], [41], [46], [48] and [51]).
17. The Tribunal further concluded that there was not a real chance the applicants would experience serious harm on account of the applicant's financial circumstances or the second applicant's medical and health conditions if they were returned to Malaysia, now or in the reasonably foreseeable future, or that there was a real risk they would face significant harm if they were returned to Malaysia (at [53]-[55]).
18. The Tribunal affirmed the delegate's decision not to grant the applicants a protection visa (at [57]).

1. The application for judicial review filed by the applicants on 25 February 2025 contains two grounds as follows:
   1. Failure to properly consider the risk of the first applicant will suffer with mental illness due to financial difficulties.
   2. Failure to consider the best interests of the second applicant (child).
      • The tribunal did not properly assess the potential psychological and educational harm to the second applicant, who has undergone speech therapy and occupational therapy in Australia.
      • The tribunal did not properly consider the risk of the second applicant from being bullies and sexual abuse in Malaysia due to her health conditions.
2. The applicant appeared before the Court on 10 November 2025 without legal representation but with the assistance of a Malay interpreter. The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister's written submissions.
3. The materials before the Court include the application for judicial review and supporting affidavit affirmed on 25 February 2025 (the affidavit being taken as read and in evidence at the hearing on 10 November 2025), a Court Book numbering 179 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 29 October 2025.
4. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, ERM18 v Minister for Immigration and Multicultural Affairs [2025] FCA 228 at [18]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal's decision and/or procedure.
5. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]);

(f) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(g) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and she should attempt to tell the Court why she said the Tribunal had fallen into error.
2. When invited to address the Court as to what the Tribunal did wrong, the applicant stated that after reading the Tribunal's summary, she did "not refute that all the statements that were made on [her] behalf in this application indeed do not fit the criteria for the grant of the visa" but she had hoped that the Tribunal would consider her application "for my children".

1. As outlined above, the application for judicial review contains two grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's grounds as broadly as possible (per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

1. Ground one contends that the Tribunal failed to properly consider the risk that the first applicant will suffer as a result of mental illness due to financial difficulties upon returning to Malaysia.
2. The Minister asserted that this ground is without merit on the basis that no such claim came before the Tribunal. The Court agrees. The sole claim advanced in respect of the first applicant was that she would be unable to repay her debt to her mother if she returned to Malaysia as a result of the economic situation in that country. No claims were made in respect of the first applicant's mental health and none arose from the material before the Tribunal. The applicant's statements that she was "scared" that she would not be able to find a job and that her mother was angry with her in respect of her inability to repay the loan cannot be construed as a claim invoking mental health difficulties.
3. No jurisdictional error arises with respect to ground one.

1. Ground two contends that the Tribunal failed to properly assess the best interests of the second applicant in relation to "potential psychological and educational harm" and also failed to properly consider the risk of the second applicant being bullied and sexually abused in Malaysia due to her specified health conditions.
2. The Minister submitted that the Tribunal's role was to assess whether the applicants met the criteria for a grant of a protection visa under the refugee and complementary protection criteria pursuant to ss 36(2)(a) and 36(2)(aa), respectively. In that respect, the Minister submitted that the Tribunal was therefore not bound to consider the best interests of the second applicant with respect to "psychological and educational harm" on account of her possible ADHD and autism diagnoses.
3. The Minister asserted that, whilst the claim of psychological harm to the second applicant was not explicitly put before the Tribunal, the Minister construed this claim to relate to restricted health care access. In that respect, the Tribunal found that the second applicant would be able to access the necessary health care if required to return to Malaysia.
4. Furthermore, in relation to allegations that the Tribunal failed to properly consider or address the potential for bullying or sexual assault in relation to the second applicant, the Minister submitted that the Tribunal duly considered each of these claims and found that she would not be discriminated or bullied in school, nor face an increased chance of being sexually assaulted by reason of any health or medical condition.
5. The Court accepts that the Tribunal carefully considered all of the claims with respect to the second applicant's health conditions and how those conditions might impact upon her in Malaysia. The Tribunal's findings in respect of the second applicant's access to health care services were grounded in country information. The Tribunal's findings in this respect were both cautious and orthodox.
6. Similarly, the Tribunal's finding that there was no evidence before it that the second applicant had been diagnosed with autism or ADHD was reasonable in circumstances where there clearly was no such evidence. The Tribunal had also tested the evidence of the first applicant in respect of whether she held any concerns for her daughter if she was required to live with the first applicant's mother and boyfriend. It is clear from the first applicant's evidence in this respect that this was a tenuous and speculative claim.
7. No jurisdictional error arises in respect of ground two.
8. The Court also asked counsel for the Minster whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw the Court's attention in terms of any concerns or doubts about the Tribunal decision. There were none.
9. Similarly, the Court has considered the Tribunal decision as a whole and can find no easily discernible jurisdictional error. The Tribunal's decision reveals it understood the relevant task before it. It considered all of the claims made by the applicants and all of the evidence given by the applicants in support of their claims. Where it had concerns, those concerns were put to the applicant and the applicant's responses were considered. All of the matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material. The Tribunal carefully considered the applicants' claims against the background of cogent and authoritative country information. The Tribunal's findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547; and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
10. The Court is satisfied that, even adopting the broad approach referred to in [39] of these reasons, no jurisdictional error is established.

1. The application for judicial review made by the applicant has failed to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.