CNH25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1620

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for a constitutional writ within the court's jurisdiction under section 476 of the Migration Act 1958 (Cth) ("the Act")in respect to the decision of the Administrative Review Tribunal ("the Tribunal") made on 18 February 2025, affirming the decision of the delegate of the First Respondent ("Minister") not to grant the applicant a protection (Class XA) (subclass 866) visa ("protection visa"). The applicant is a citizen of Malaysia and arrived in Australia on 28 November 2017 as the holder of a visitor class UD class 601 visa. It was not until 29 October 2019 that the applicant applied for a protection visa.
2. On 10 March 2020, a delegate found the applicant failed to meet the criteria for the grant of a protection visa. On 10 March 2020, the applicant applied for review. On 28 August 2024, the Tribunal requested the applicant complete a pre-hearing information form within seven days. On 3 September 2024, the applicant returned a completed pre-hearing information form. On 5 September 2024, the applicant provided further evidence.
3. On 18 December 2024, the tribunal invited the applicant to attend a hearing to give evidence and present arguments on 29 January 2025. The applicant completed and returned the response on 22 December 2024 and attended the hearing on 29 January 2025. On 4 February 2025, the applicant provided post-hearing submissions, expanding upon her claims of alleged financial hardship. On 18 February 2025, the Tribunal affirmed its decision.
4. The Tribunal, in its reasons, identified the nature of the application for review in relation to the applicant and the attendance by the applicant to give evidence. The Tribunal then identified the statutory criteria for the grant of a protection visa.
5. The Tribunal then turned to the applicant's claims and evidence. The Tribunal identified that in her protection visa application, she claimed that she left Malaysia due to the economic situation. Reference was made to the proposition that the applicant's parents had been blacklisted due to debt, and the applicant claimed it would be a burden to find a new place to live in Malaysia. The delegate refused the grant of a visa on the basis that the claims did not relate to any reason within s 5J(1)(a) of the Act, and that the claim of significant harm did not meet the criteria under s 36(2)(a) of the Act.
6. The Tribunal identified that the applicant provided prior to hearing a significant amount of additional information, including new claims. The Tribunal summarised the new claims as involving fearing harm for reasons of her father, her stepfather and illegal moneylenders that the applicant claimed her mother owed, and she maintained her original economic claims. The Tribunal at the hearing identified that the applicant had completed the protection visa application herself, and that she maintained the claims identified.
7. The Tribunal identified the background to the applicant and her father selling cars at a dealership and that her parents divorced in 2010 and that the father became physically abusive towards her, her mother and her sibling. The applicant identified moving with her mother and siblings to a different location in Malaysia until she left for Australia. The Tribunal identified the applicant's evidence that her mother had managed to raise four children and that her mother had been working as a teacher and later at a university and that her mother remarried in 2012. The applicant identified she did not know where her other siblings were living, though her younger sister lived with her mother.
8. The applicant left for Australia soon after she graduated in 2017 with her brother and one of her sisters. The applicant's brother was deported after about a year and her sister left Australia at some point. The applicant identified undertaking studies in English and wanted to undertake further study but was unable to afford it. The applicant identified the work she undertook and that she returned to a factory for nearly a year, working there two months into her pregnancy with her first child.
9. The applicant met her husband in late 2022 and they married in 2023. The applicant told the Tribunal that the husband had a Protection visa claim which was in an appeal process. When asked whether the applicant feared any harm for reasons of her husband's claim, she said she had never spoken to him about it so she did not fear anything in relation to it. When asked whether the husband would return with her to Malaysia, she said he would. When asked where they would live, the applicant said they had often talked about this but that they had not decided.
10. The Tribunal took into account the delay by the applicant of nearly two years in applying for the protection visa. The applicant told the Tribunal this was because she had not known about how to apply for protection. The Tribunal raised to the applicant that her original protection claim did not identify any fear of persecution and the applicant contended that she thought she could include additional claims later. It was pointed out to the applicant that she had not done so until the pre-hearing form some five years later. The applicant had said she did not know she was required to do so.
11. The Tribunal did not accept the applicant had intended but been unable to find out how to apply for protection for two years following her arrival. The Tribunal found that the applicant's contention was unconvincing that she would not have learned about it in such an environment. The Tribunal identified the applicant's good grasp of English but accepted that for two years she had not known whether she wanted to remain in Australia or return to Malaysia.
12. The Tribunal did not accept the applicant's claim that she intended from the beginning to include additional claims in her protection visa application. The Tribunal found the applicant's contention to be illogical and unconvincing in her contention that she provided only one claim. The Tribunal identified that the claims included in her pre-hearing form only arose in the applicant's mind as being potential claims for protection at some point after she received the adverse decision by the delegate. In these circumstances, the Tribunal placed little weight on the applicant's subjective fear of harm for reasons of these claims.
13. The Tribunal referred to the applicant's claim of fear of harm from her father and summarised the applicant's evidence in that regard. The Tribunal accepted that after the divorce the mother moved to Kuala Lumpur, and the applicant indicated that the father did not know where the mother and siblings now lived. The applicant was asked how the father's behaviour would affect her now that she was an adult with her own family, and the applicant contended she did not want to think about having to see the father and was asked why she would see him and the applicant indicated she would choose not to. The Tribunal found that the applicant would not return to the location where she had been the subject of traumatic childhood and that the father lives in that state.
14. The Tribunal found, based on where the applicant lived prior to coming to Australia, that she would return to live in Kuala Lumpur. The Tribunal had regard to the applicant indicating she would choose not to see the father and that the abuse was when the applicant was a child, with the last abuse being in 2015, and found that was a situation that would not be repeated as she is no longer a child and is married. The Tribunal found that the applicant does not face a real chance or real risk of harm in the reasonably foreseeable future from her father.
15. The Tribunal referred to the applicant's claims that her stepfather sexually abused her at a particular age. The applicant referred to alleged continued sexual harassment after she arrived in Australia. The applicant confirmed that her stepfather had barely contacted her directly now that she had a husband. The applicant said she distanced herself from any conversations about her stepfather, which had been good for her mental health.
16. When asked about why the stepfather's behaviour would affect her now if she returned to Malaysia, the applicant said she would of course have to see him sometimes given that she was close with her mother, to whom he was married. The Tribunal raised with the applicant that she could tell her mother she did not want to see the stepfather and refuse to see him. The applicant referred to her mother being all she had in this life.
17. The Tribunal placed significant weight on the applicant's evidence that she could refuse to see her stepfather and found that she will not see him. The Tribunal asked the applicant what she was afraid of in regards to the stepfather, and she said she had been traumatised by his past actions and did not want to revisit that trauma. The applicant referred to the chance that the stepfather might sexually harass or assault her when her husband was at work. The Tribunal raised with the applicant that she had contended it was not safe to live with the mother and stepfather and put to the applicant that she would not.
18. The Tribunal also raised with the applicant that she and her husband had not decided where they would live. The applicant contended that the stepfather could find a way to do something. The Tribunal, taking into account that the applicant said it was not safe to live with the mother and stepfather and that she is married, found the applicant would not live with the mother and stepfather, and in light of this finding found the applicant will not see the stepfather.
19. The Tribunal found the applicant's hypothetical scenarios were speculative and that the likelihood of harassment or assault happening is remote. The Tribunal therefore placed little weight on the applicant's claims in that regard and found that she will not be alone with her stepfather. In light of those findings, the Tribunal found the applicant does not face a real chance or real risk of harm into the foreseeable future from physical harm by her stepfather.
20. The Tribunal turned to the issue of psychological harm that the applicant may suffer from the stepfather intimidating her and had regard to the evidence alleging she had been retraumatised by her stepfather while she has been in Australia. The Tribunal had regard to the applicant's evidence that since she met her husband the stepfather has barely contacted her. The Tribunal found based on the applicant's evidence that any harm the applicant may suffer from the stepfather due to his remote actions will continue whether she is in Malaysia or Australia and that the level of harm will not be materially different based on her location. The Tribunal found that whilst there is a risk of psychological harm, any harm suffered will not be as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.
21. The Tribunal turned to consider whether the psychological harm inflicted would reach the level of serious harm and had regard to the non-exhaustive list in s 5J(5) of the Act and to the evidence that had been accepted in relation to the stepfather. The Tribunal took into account the applicant's characteristics that she is an adult woman and took into account the decision to place little weight on the applicant's fear of harm from her newest claims, including those relating to the stepfather. It was in these circumstances the Tribunal found that the harm faced by the applicant does not amount to serious harm.
22. The Tribunal referred to the applicant's claims in relation to the mother's creditors and the applicant's evidence that she had not known about her mother's debts to illegal moneylenders until she had read her mother's letter that was submitted into evidence in September 2024. The applicant said that her other siblings had not been found or harmed by the creditors.
23. The Tribunal identified the speculative nature of the applicant's explanation as to why she feared harm if she was with her mother and the creditors happened to see them, which speculative nature the applicant acknowledged. The applicant alleged that her mother had given the creditors her children's ID, and that the creditors would know where she lived if she returned. The Tribunal found this unconvincing as the applicant's older siblings had not been harmed, the applicant saying that they had her ID card.
24. When asked about the details of the loan the applicant said she did not know. When asked whether the mother was making repayments the applicant said she did not know. The Tribunal gave the applicant the opportunity to provide additional evidence, identifying that it did not at this time find this claim to be credible. The applicant provided further evidence on 4 February 2025 in the form of a second statement from her mother and a second statement from herself. The Tribunal did not accept that the applicant's mother owes a debt to illegal lenders that she has been unable to pay and found the evidence to be vague, illogical and inconsistent.
25. The Tribunal summarised its concerns in six subparagraphs in relation to that evidence. The Tribunal did not accept the applicant's mother owes a debt to illegal money lenders that she has been unable to pay and found the applicant does not face a real chance or real risk of harm into the reasonably foreseeable future relating to money lenders.
26. The Tribunal referred to the applicant's original claim of economic harm which affected everyone in Malaysia. The Tribunal referred to the applicant's claim that her parents had been blacklisted due to debts and referred to the applicant's claim that she would not be able to relocate to find more opportunities and the act of finding a new place to live might burden her. The applicant in her pre-hearing submissions added that her parents were bankrupt and identified a place where they lived which was not financially stable and that there is no support system in Malaysia and that finding a job would be very hard with no educational background. The Tribunal raised with the applicant that she meant financial support, and referred to her mother raising four children single-handedly, and the applicant said that she had the support of her parents.
27. The Tribunal raised with the applicant the applicant's language skills and qualifications that would assist being able to find work and survive. The Tribunal referred to the applicant's contention that the language skills were not ones with which she could get a job without certificates and that she did not think she or her husband would find work as they would have to think of the salary.
28. The Tribunal put to the applicant that the economic situation in Malaysia affected all Malaysians and asked her whether she would be targeted in any way for worse treatment than anyone else. The applicant said she would be treated differently as she had only finished high school and everyone else had family support and could live with them. The Tribunal raised with her the broad nature of this statement, and the applicant revised her comment to say that most people had such support. The Tribunal referred to country information that did not support the applicant's claim that she would be unable to find work and that it has a strong economic performance, and over the past few decades had led to a significant reduction in poverty.
29. The Tribunal acknowledged that there was some information in relation to inequalities, and information that there were labour shortages in many sectors, and conveyed information that Malaysia's job market had entered a phase of full employment and had a minimum wage. The applicant told the Tribunal that she had been told by her mother even her sister found it quite hard to find a job, and that Malaysia had job shortages in many sectors. The applicant said that if she had a job she would struggle, as she would need money to start a life there, and she would need money and a job so she could find a place to live.
30. It was raised with the applicant that she arrived in Australia without a job and had been able to set herself up and survive. The applicant replied that she had looked online and been able to find a job before arriving. It was raised with the applicant that she could do the same in Malaysia, and the applicant said that she would have nowhere to live and no money. The Tribunal put country information as to the opportunity for work in Malaysia, and the segment's growth rate, and asked her why she could not operate a small business, and the applicant referred to the need for registration, which it was pointed out also was required in Australia. The applicant told the Tribunal that she would not be able to start a small business in Malaysia, and she did not know many people.
31. The Tribunal referred to the post-hearing submissions by the applicant, where she reiterated her concerns about not knowing where she would live, what job she would get, and not having savings. The Tribunal identified that the applicant added finding childcare, childcare costs and safety of child care to her concerns, as well as the quality and cost for future education for her infant child. The Tribunal accepted that the applicant left Malaysia for a better life, and that the economic situation in Malaysia affects everyone there. The Tribunal accepted that relocation would be a burden upon her.
32. The Tribunal did not accept the applicant's assertions that she would be persecuted due to not having higher education. The Tribunal found that country information did not support, and the Tribunal did not accept that work in Malaysia is difficult without higher education or certificates, nor that she or her husband would not be able to find work, nor that the standard wages are not enough to subsist. Having regard to the applicant having successfully made a small business in Australia, the Tribunal did not accept the applicant's claim that she would be unable to start a small business due to not knowing many people in Malaysia.
33. The Tribunal accepted the applicant will not receive financial support from her family and will not live with either parent. The Tribunal found the applicant had a good relationship with her mother, and having provided two substantial supporting statements, found the mother would provide emotional support to the applicant. The Tribunal did not accept that the applicant cannot return to Malaysia because she does not have a place to live, nor savings or money to start a new life, and did not accept the applicant's claims of concerns of the quality and cost of childcare and education.
34. The Tribunal referred to the IMO in Malaysia that can help people arrange for someone to meet them on arrival, help find a job, counselling, accommodation and resettlement. The Tribunal referred to the Department of Home Affairs having a program supporting return and reintegration. The Tribunal found that there is no evidence before the Tribunal that indicates the applicant would face a level of harm that amounts to serious harm from economic, financial hardship that the applicant has raised. The Tribunal found that the applicant does not face serious harm resulting from economic or financial hardship. The Tribunal referred to the definition of significant harm and found that there were no substantial grounds to believe that the applicant will face significant harm due to economic and financial hardship upon returning to Malaysia. The Tribunal found that the applicant will not face significant harm for reasons of economic and financial hardship.
35. The Tribunal asked the applicant about health concerns and the applicant referred to being prescribed medication for anxiety, which she says she has not been on since her pregnancy and would remain off until she stopped breastfeeding. The applicant was not sure whether that medication could be obtained in Malaysia and had never looked. The Tribunal had regard to the applicant not raising this concern until prompted and having been off her medication for about a year and not having contended that she would have any problems relating to this, as well as not having checked whether her medication would be available despite, she and her husband having considered returning.
36. The Tribunal also had regard to country information from Malaysia that has a well-established and general affordable universal health care system accessible to most of the population, and that health facilities are generally available within a five kilometre radius of urban centres. The Tribunal also made reference to mental health services and found that access to medication does not fit within the gap which were identified as in relation to mental health. Having considered all the information, the Tribunal found the applicant will be able to access medication to treat her anxiety and therefore did not accept there is a real chance of real risk of harm into the reasonably foreseeable future for reasons of the applicant's health, specifically her anxiety.
37. The Tribunal referred to considering the claims cumulatively. The Tribunal found that while serious or significant harm may overlap, including psychological harm, the Tribunal nonetheless found that combining the risk of harm from the applicant's stepfather and economic harm does not amount to serious harm based on examples given in s 5J(5) of the Act, nor is it a significant harm in s 36(2)(a) of the Act. The Tribunal was not satisfied the applicant is a person in respect to whom Australia has protection obligations under s 36(2)(a) of the Act. The Tribunal turned to complementary protection and was not satisfied the applicant is a person in respect to whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.
38. At the commencement of this hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed she understood what was said by the Court. The grounds in the application are as follows:

1.THE TRIBUNAL FAILED TO CONSIDER MANY OF THE ESSENTIAL INTEGRITY OF MY CASE.

2. THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.

3. THE TRIBUNAL MEMBER FAILED TO RELIED ON MY INFORMATION GIVEN AND DECIDED MY CASE USING FACTS FROM SOME OTHER CASES AND HER OPINION.

4. I AM HUMBLY REQUEST THE DECISION MAKERS TO REVERSE THE DECISION AND RECONSIDER MY CASE TO ENSURE MY

1. The applicant submitted in relation to ground 1 that there was a failure by the Tribunal to have a genuine intellectual engagement with the claims that she had advanced. When invited by the Court to take the Court to any particular claim or fact that was not addressed, the applicant was unable to do so.
2. In relation to ground 2, the applicant complained that she had been deprived of procedural fairness because the Tribunal had not raised issues of concern with her. The Tribunal's reasons to which the Court has just referred identify the Tribunal raising its concerns with the applicant in the course of the hearing.
3. In relation to ground 3, the applicant contended that the Tribunal had failed to rely upon her information and decided her case on facts from some other case. When invited by the Court to identify any paragraph that it was contended identified something from some other case, the applicant was unable to do so.
4. Ground 4 of the applicant's application was a request to reverse the decision because of her newborn baby and her husband. The applicant also contended that she had raised before the Tribunal the fact that she had a child. It is apparent from the Tribunal's reasons that it fully appreciated the applicant had a child and in fact addressed the applicant's identified claim of concern in relation to the child's education advancement by a finding in that regard.
5. The Minister provided submissions dealing with each of the four grounds and in relation to the oral submissions the Minister submitted that, in substance, the applicant was inviting the Court to engage in impermissible merits review and that there was no integer of the applicant's claims that the Tribunal had failed to have a genuine intellectual engagement with and that there was no denial of procedural fairness in the conduct of the hearing and that there was no foundation to support the contention that there were facts from some other case that were taken into account by the Tribunal, and it was submitted that ground 4 was an impermissible invitation to merits review.
6. In relation to ground 1, the Tribunal accepts the Minister's submission that this ground fails on the facts as the Tribunal's reasons demonstrate that it considered the applicant's claims to the extent they were made or arose on the evidence set out in the applicant's Protection visa, oral evidence and at the hearing and in the documentary evidence provided and submissions.
7. The Tribunal identified particular aspects of the applicant's claims that it accepted and addressed the criteria under the Act in relation to whether the applicant faced a real risk of serious harm or significant harm by reason of the claims advanced and gave logical, rational and comprehensive reasons in support of its adverse findings. The Tribunal's reasons clearly identify having regard to the whole of the applicant's evidence. There has been no identified claim or material fact that the Tribunal failed to take into account. There was a genuine intellectual engagement by the Tribunal with the applicants claims and evidence. The adverse findings by the tribunal cannot be said to lack an evident and intelligible justification. The Court finds that ground 1 fails to make out any jurisdictional error.
8. In relation to ground 2, the Court accepts that the Tribunal on the face of its decision complied with the obligations of procedural fairness under the Act. The Court finds the applicant was invited to and took up the opportunity to appear at the hearing to give evidence and present arguments. It is apparent that the applicant had ample opportunity to provide the Tribunal with additional claims and evidence, which the applicant did, including submissions post the hearing, all of which were referred to by the Tribunal.
9. The Tribunal gave clear particulars of the multiple parts of the applicant's claims that it had concerns with and invited the applicant to comment on those concerns. The Tribunal's reasons identify the applicant being clearly on notice of the issues arising from concerns by the Tribunal. The Tribunal in particular identified concerns in relation to the applicant's new claims advanced before it after the adverse decision before the delegate and placed little weight on the applicant's alleged subjective fear of harm. The Court accepts the Minister's submission that no jurisdictional error is made out by ground 2.
10. In relation to ground 3, there is no factual material from some other case to support the contention advanced in ground 3. The applicant was unable to identify any such material. The Court is not satisfied that the Tribunal took into account matters from some other case. To the extent that the ground was intended to advance an allegation of bias, it is apparent on the face of the Tribunal's reasons that it approached the review on the merits without a closed mind. No conduct has been identified by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Accordingly, no jurisdictional error is made out by ground 3.
11. In relation to ground 4, this is patently an invitation to merits review in the reference to a husband and a child and it does not identify any jurisdictional error. Ground 4 fails to make out any jurisdictional error. Nothing said by the applicant identifies any jurisdictional error. The applicant's submissions were an invitation to impermissible merits review.
12. Accordingly, it is for these reasons the Court makes the above orders.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.