COL18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 732

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant her a Protection (Class XA) (subclass 866) visa (the visa). For the applicant to succeed in this Court, she must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476). 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 any jurisdictional error in the Tribunal's decision. On that basis, her application cannot succeed.

1. The applicant first arrived in Australia on 28 October 2012 as the holder of a Visitor (subclass UD-601) visa (Court Book (CB) 52). She is a Malaysian Tamil (CB 22, 24).
2. On 16 September 2016, the applicant made a valid application for a protection visa (CB 9-45).
3. On 21 March 2017, a delegate of the Minister refused to grant the applicant the visa (CB 52-68). The delegate found that the applicant would receive effective protection from the Royal Malaysian Police and judiciary in Malaysia against any threats of violence from her ex-husband, his family and gangsters at their behest (CB 67). Accordingly, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) (CB 55, 67).
4. On 23 March 2017, the applicant applied to the Tribunal for review of the delegate's decision (CB 69-70). In that review application, the applicant appointed a registered migration agent as her authorised representative (CB 70).
5. On 4 October 2017, the applicant was invited to attend a hearing scheduled for 23 November 2017 (CB 82-83).
6. On 22 November 2017, the applicant's representative provided supporting documents to the Tribunal, including certified translations of the applicant's marriage certificate, police reports and her daughter's birth certificate, as well as a letter of support from her mother (CB 90-106).
7. On 23 November 2017, the applicant attended the Tribunal hearing, accompanied by her authorised representative and assisted by a Tamil interpreter (CB 107).
8. On 18 April 2018, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 112-129).
9. On 11 May 2018, the applicant 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 from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa under review (at [1]) and identified the relevant legislative provisions and mandatory considerations in that regard (at [6]-[11]).
3. The Tribunal then considered the applicant's claims and evidence, with reference to her migration history (at [13]), country of reference (at [14]-[16]) and protection claims ([17]-[36]).
4. The Tribunal summarised the applicant's written claims for protection in her visa application as follows (at [17]):

Why did you leave that country?

'I really didn't want to go back to Malaysia, because I am facing lots of problems in Malaysia, because I have problem with my husband and my husband's family. They will kill me and they already try to come to my house and threaten me and my daughter. They bring same gangster and attack me and my daughter.'

What do you think will happen to you if you return to that country?

'If I return to Malaysia I will get threatened again or they will sure kill me and I will stuck with same problem. My husband and his family will never leave me. I got many problem and sex torture with my husband. Everyday I facing torture with my husband and hit me. My husband takes drugs and got a lot of police case. My husband's family is all drugers and gangsters that's why I can't go back to Malaysia. That's why I am run away from Malaysia.'

Did you experience harm in that country?

'I experience harm from with my husband and family and they still find up me and they take my foto's and stamp at all place I lived at Malaysia and also finding my family members giving them alot of problems.'

Did you seek help within the country after harm?

'I didn't seek and help, because I have already lodge police report but that no use and no one protect me and my daughter.'

Did you move, or try to move, to another part of that country?

'I try to move other place at Malaysia but they are still find up me and my daughter attack us.'

Do you think you will be harmed or mistreated if you return to that country?

'Yes I will still get harmed by my husband and his family, so day by day they giving me torture and try to attack me.'

Do you think the authorities of that country will protect you if you go back?

'Yes I have lodge police report but still never take action.'

Do you think you will be able to relocate within that country?

'No don't think so, because they still finding me and giving problem with my family.'

1. The Tribunal then referred to country information against the applicant's claims, with reference to domestic violence laws and services available to domestic violence victims in Malaysia (at [37]-[56]). The Tribunal particularly set out information which found that while the situation is improving, confusion between federal and state laws, and a lack of capacity within the police and judiciary make it difficult for women to gain adequate state protection and to safely leave violent relationships in Malaysia (at [37]).
2. The Tribunal relied on country information to acknowledge difficulties in disclosing information about domestic violence in Malaysia, as well as difficulties faced by applicants more widely, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family (at [57], [62]).
3. The Tribunal found that the applicant failed to provide plausible compelling and persuasive answers to the Tribunal's questions about historical acts of domestic violence, as well as her responses to such acts (at [62]), although the Tribunal did accept the applicant's oral evidence in relation to her personal details (at [61]).
4. The Tribunal detailed an event occurring on or about 8 April 2020 where the husband attended the applicant's home and demanded their daughter live with him, and despite being threatened, the applicant did not comply with his demands. In the absence of any medical or other independent evidence, or information from the police report dated 8 April 2020 detailing threatening behaviour or repeated visits, the Tribunal found this to be an isolated incident (at [65]).
5. In relation to the applicant's claims of torture of a sexual nature, the Tribunal found that the applicant "did not provide any specific evidence of the torture nor any independent evidence of her claim" and did not accept her evidence, that she suffered torture of a sexual nature, to rise to the level of serious harm (at [67]).
6. Whilst the Tribunal accepted the applicant's evidence that the husband was addicted to drugs and spent time in jail as a result of having committed various crimes to support his habit, there was no evidence that the applicant or her daughter had been threatened and attacked by gang members at the husband or his family's behest. The Tribunal found that the applicant was not threatened by any gang member at the behest of the husband or his family (at [63]).
7. In the absence of the applicant providing any evidence of her husband continuing to pursue her, and where she has had no contact with him for over five years, the Tribunal found that there is no real chance of the applicant being seriously harmed if returned to Malaysia (at [68]).
8. The Tribunal set out the applicant's claim that she will suffer harm because her husband lives in and around Seremban, however it noted she did not suffer any harm from him when he was living in Perak (at [72]). If there was a real chance the applicant would suffer serious harm from her husband, or from gang members at the behest of her husband and his family, the Tribunal found there is no real chance the persecution claimed would relate to all areas of Malaysia and it would be reasonable for her to relocate to another city in Malaysia to avoid the risk of harm (at [71], [73]).
9. The Tribunal additionally considered, if there was a real chance the applicant would suffer serious harm from her husband or from related gang members, whether she has access to effective protection measures as a "vulnerable woman in an abusive marriage and who has suffered domestic violence" (at [74]). In considering the operation of s 5J(2) of the Act alongside country information, as well as evidence that reports had been made to police and evidence given by her daughter about action taken by her school to prevent her being taken by the husband, the Tribunal was satisfied that effective protection measures are available to the applicant in Malaysia (at [75]-[77]).
10. Accordingly, the Tribunal found that the applicant does not have a well-founded fear of persecution based on her claims of domestic violence and therefore does not satisfy the refugee criterion set out in s 36(2)(a) of the Act (at [80]).
11. The Tribunal then considered the applicant against the complementary protection criterion (at [81]-[89]).
12. The Tribunal was satisfied that the applicant could obtain protection from a Malaysian authority such that there would not be a real risk that she will suffer significant harm (at [85]). The Tribunal also found that it is reasonable for her to relocate to Kuala Lumpur (at [87]).
13. The Tribunal therefore found that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, does not face a real risk of significant harm under s 36(2)(aa) of the Act (at (88]).
14. Having regard to the above, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa (at [5], [93]).

1. On 11 May 2018, the applicant filed an application in this Court seeking review of the Tribunal's decision.
2. On 10 March 2025, an amended application for judicial review was filed containing three particularised grounds of review. However, at the hearing of this matter on 12 March 2025, the applicant confirmed that paragraph (b) of ground two, as well as ground four, were no longer pressed. In reply, the applicant also conceded that particular (i) of ground 3(b) (which asserted a breach of ss 424AA and 424A) was withdrawn. The remaining grounds are as follows:
   1. The findings of the Tribunal in relation to the Applicant's credibility (at [57]-[70]), were affected by jurisdictional error:
      1. The Tribunal's finding (at [62]) that the applicant has 'failed to provide plausible compelling and persuasive answers to the Tribunal's questions about historical acts of domestic violence and her responses to them' was illogical, irrational or unreasonable

Particulars

1. The applicant was a vulnerable victim of domestic violence and sexual abuse who was speaking through an interpreter;
2. The Tribunal did not provide any reasoning or explanation for the finding that the applicant's answers were not plausible, not compelling, or not persuasive;
3. An analysis of the transcript shows that the applicant clearly answered questions relating to her experience of domestic violence;
4. The Tribunal's finding was unreasonable, illogical or irrational and amounted to a material error.

   1. The Tribunal's finding (at [65]) that the applicant 'did not provide any medical or other independent evidence to support her claim of having been seriously harmed by her husband, his family, or member of any gang' was illogical, irrational or unreasonable

Particulars

1. This finding appears to rely on unwarranted assumptions about the nature of domestic violence;

2. It is axiomatic that domestic violence can happen without independent witnesses, or without physical injuries;

3. It was unreasonable, illogical or irrational to make an adverse credibility finding against the applicant based on her failure to provide 'medical or other independent evidence' of domestic violence;

4. This error was material.

5. The Tribunal's finding (at [67]) in relation to her claims of 'sexual torture', that the applicant did not provide any 'specific evidence of the torture nor any independent evidence of her claim' was unreasonable, illogical or irrational

Particulars

1. The applicant was speaking to a male Tribunal member through an interpreter. She was not asked to provide any specific details of her sexual violence. In those circumstances, the fact that she did not volunteer specific details of her sexual violence could not rationally affect her credibility;
2. In the alternative, this finding appears to rely on unwarranted assumptions about the nature of sexual violence;
3. It is axiomatic that sexual violence can happen without independent witnesses, and that victims of sexual violence may be reluctant to report such violence to police;
4. It was unreasonable, illogical or irrational to make an adverse credibility finding against the applicant based on her failure to provide 'specific evidence of the torture nor any independent evidence of her claim';
5. This error was material.

   1. The Tribunal's finding (at [68]) that the applicant was 'not able to provide any evidence of where her husband was living, any threatening behaviour by the husband toward her while she has been in Australia or the means by which he would become aware of her return to Malaysia' was unreasonable, illogical or irrational

Particulars

1. It was unreasonable, illogical or irrational for the Tribunal to find that the applicant was 'not able to provide' any evidence of these matters when she was not asked to do so;

2. Further in the alternative, it was unreasonable, illogical or irrational for the Tribunal to find that the applicant's failure to provide evidence of these matters affected the credibility of her claim.

3. This error was material

4. The findings of the Tribunal (at [71]-[73]) that it would be reasonable for the applicant to relocate to another area of Malaysia such as Kuala Lumpur where she would not be at a real risk of significant harm were affected by jurisdictional error

   1. The finding that the applicant would not be at a real risk of significant harm was unreasonable, illogical or irrational

Particulars

1. The Tribunal found that 'the applicant was not able to provide the Tribunal with any evidence that her husband would know of her return to Malaysia and his despite and ability to locate them in the event that they relocated to a larger urban area such as Kula Lumpur' [sic]

2. It was unreasonable, illogical or irrational for the Tribunal to find that the applicant was 'not able to provide' any evidence of these matters when she was not asked to do so;

3. In the alternative, the Tribunal failed to give genuine consideration to the applicant's claim that she feared harm from the applicant's family and other members of the drug milieu in Malaysia who she claimed had previously threatened her;

4. This error was material.

[...]

1. The findings of the Tribunal (at [74]-[80]) that effective protection measures were available to the applicant from the police in Malaysia were affected by jurisdictional error:

   1. The finding of the Tribunal (at [75]) that 'the fact that they made complaints to the police indicates that they accept that protection from the police is available to them' was unreasonable, illogical or irrational

Particulars

1. it was unreasonable, illogical or irrational for the Tribunal to find that the applicant's making of a complaint to the police indicated that 'they accept that protection from the police is available to them';
2. this is especially the case when in the applicant's claim, she had expressly stated that the police had failed to assist her;
3. this error was material

   1. The Tribunal's use (at [76]-[77]) of the 2016 DFAT Country Information Report (2016 Report) to find that the applicant would not be denied effective protection measures was unreasonable, illogical or irrational:

Particulars

1. [...]
2. In the alternative, it was illogical, unreasonable or irrational for the Tribunal to have selective regard to the parts of the 2016 DFAT Country Information Report relating to the Royal Malaysian Police being a 'professional and effective police force', without having regard to other parts of the same report which related to corruption (Part 5.5) and the inadequacy of state protection to victims of domestic violence (Part 3.8);
3. This error was material.
   1. In considering the availability of effective protection measures, the Tribunal's mischaracterised the applicant's claim (at [77]) as a vulnerable woman in an abusive marriage or as a female victim of domestic violence or any related claim'.

1. The Tribunal was required to give active consideration to the applicant's claim of fear of persecution victim of domestic violence and gang violence without male protection;
2. The Tribunal did not do so, and the use of the words 'any related claim' without further analysis, does not cure this error;
3. This error was material.

1. The materials before the Court include:
   • The further amended application for judicial review filed by the applicant on 10 March 2025;
   • The affidavit of the applicant sworn on 9 May 2018 and filed on 11 May 2018 (taken as read and in evidence at the hearing on 25 March 2025);
   • The affidavit of Renee Jane Quinn affirmed on 10 February 2025 and filed on 12 February 2025 (taken as read and in evidence at the hearing on 25 March 2025);
   • A Court Book numbering 129 pages (marked as Exhibit 1);
   • Written submissions filed on behalf of the applicant on 10 March 2025; and
   • Written submissions filed on behalf of the Minister on 24 March 2025.

1. As outlined above, the amended application for judicial review contains three particularised grounds of review. Those grounds take issue with findings made by the Tribunal in respect of whether the applicant held a genuine and credible fear of harm, whether the applicant could relocate to another part of Malaysia, and whether the applicant had access to effective protection within Malaysia. At the hearing of this matter, counsel for the applicant accepted that the Court would have to uphold each of those grounds in order to ultimately succeed in this application. That is because each of those findings would be an independent basis for the Tribunal's decision.

1. Ground one takes issue with a number of the Tribunal's findings which were said to be made in respect of the applicant's credibility.
2. The first limb of ground one is set out as follows:
   1. The Tribunal's finding (at [62]) that the applicant has 'failed to provide plausible compelling and persuasive answers to the Tribunal's questions about historical acts of domestic violence and her responses to them' was illogical, irrational or unreasonable

Particulars

1. The applicant was a vulnerable victim of domestic violence and sexual abuse who was speaking through an interpreter;
2. The Tribunal did not provide any reasoning or explanation for the finding that the applicant's answers were not plausible, not compelling, or not persuasive;
3. An analysis of the transcript shows that the applicant clearly answered questions relating to her experience of domestic violence;
4. The Tribunal's finding was unreasonable, illogical or irrational and amounted to a material error.

1. Paragraph [62] of the Tribunal's decision is as follows:

The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. The Tribunal has also consulted the AAT's 2015 Gender Guidelines and accepts that disclosing information about domestic violence and other gender-related issues to family or friends back in Malaysia will be challenging, not least due to complex social, familial and religious issues and the reluctance or fear of compounding the effect of the applicant's trauma. However, in this case the applicant has failed to provide plausible compelling and persuasive answers to the Tribunal's questions about historical acts of domestic violence and her responses to them.

1. This Court has previously considered the principles relating to illogicality and legal unreasonableness in Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123 as follows (at [80]-[83]):

[80] It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).

[81] In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:

...[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

[82] The correct approach, according to the High Court in SZMDS, is to enquire "whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it" (at [133]). At [135], the High Court stated:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn...

[83] In Djokovic at [35], it was observed:

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

1. The applicant, in written submissions, outlined that there was no explanation given for the Tribunal's finding that the applicant's answers were not plausible, compelling or persuasive, and does not specify which answers it found implausible or unpersuasive. The applicant submitted that the Tribunal did not ask the applicant any further questions about the historical acts of domestic violence, and only asked questions about her marriage, the circumstances surrounding seeing her husband at her brother's funeral in 2008, and what she did when her husband made contact with her at that time. In the applicant's submission, the Tribunal misapprehended the applicant's evidence about her experience of domestic violence where she gave plausible and consistent answers, without providing due allowance for a vulnerable victim of domestic violence speaking through an interpreter.
2. At the hearing of this matter, counsel for the applicant submitted that a credibility finding must be made on rational or probative facts (citing CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97 at [33] in written submissions). In addressing the Minister's written submissions, counsel for the applicant submitted that evidence being vague and uncorroborated is different to evidence being implausible or non-compelling. In finding that the applicant is part of the particular social group of vulnerable women who are victims of domestic violence, the applicant submitted that the Tribunal erred in not accepting that the applicant has a genuine and credible fear at [69] of its reasons.
3. In written submissions, the Minister submitted the Tribunal accepted that the applicant was a member of a particular social group, namely, vulnerable women who are victims of domestic violence, but that it did not accept that being part of this group would expose her to serious or significant harm. If it was wrong in this assessment, the Minister submitted that the Tribunal then considered the refugee criterion to determine that persecution did not relate to all areas of Malaysia and that the applicant would have effective state protection available to her. It then assessed the applicant against the complementary protection criterion to find that the level of state protection available would reduce any risk of significant harm to below that of a real one, and that it would be reasonable for her to relocate to Kuala Lumpur.
4. In oral submissions, insofar as the applicant alleges that the Minister is attempting to engage in merits review, counsel for the Minister submitted that it is the applicant's case to explain why the finding was irrational, illogical and unreasonable. With respect to the Tribunal's finding at [69], the Minister submitted that whilst the Tribunal concluded that the applicant was a victim of domestic violence, it found that any fear of harm she felt (serious or significant) did not rise to the level such that she would face a real chance or real risk of harm because the Tribunal had no evidence before it that the husband continued to pursue her.
5. The Minister submitted that it was for the applicant to make her claims before the Tribunal, not for the Tribunal to ask further questions (citing s 5AAA of the Act). Nevertheless, the applicant was invited to make claims via her representative, who indicated that they did not have any evidence. In these circumstances, the Minister submitted that where the Tribunal had vague and uncorroborated evidence before it, it was open to the Tribunal to make its finding that the applicant had failed to provide plausible compelling and persuasive answers to questions about domestic violence. Further, the Minister contended that this finding did not ultimately affect the Tribunal's assessment given that it accepted that the applicant was a victim of domestic abuse.
6. In the Court's view, the Tribunal was clearly alert to the complexities of asking the applicant questions of this nature. The Tribunal expressly acknowledged the difficulties faced by vulnerable applicants. It consulted the gender guidelines and set out an awareness of the specific difficulties which would be faced. In the Court's view, these do not appear to be mere recitations of the appropriate principles but rather reflect matters the Tribunal has actually engaged with. In light of those express statements, the Court does not accept the applicant's argument that the Tribunal did not have regard to the applicant's particular vulnerability.
7. Counsel for the applicant took the Court to answers provided by the applicant in the transcript of the Tribunal hearing and submitted that "on any fair reading of the transcript, the Court could not conclude that the applicant failed to provide plausible, compelling and persuasive answers". That submission, respectfully, is a clear invitation to the Court to engage in impermissible merits review. It is not a matter for the Court to determine whether an answer by an applicant was compelling or persuasive. That is very clearly the province of merits review. In any event, the Court has reviewed the transcript and there is little by way of substance which arises from the applicant's responses which were, in truth, vague, absent of detail and not fulsome.
8. The second and third limbs of ground one set out the following:
   1. The Tribunal's finding (at [65]) that the applicant 'did not provide any medical or other independent evidence to support her claim of having been seriously harmed by her husband, his family, or member of any gang' was illogical, irrational or unreasonable

Particulars

1. This finding appears to rely on unwarranted assumptions about the nature of domestic violence;

2. It is axiomatic that domestic violence can happen without independent witnesses, or without physical injuries;

3. It was unreasonable, illogical or irrational to make an adverse credibility finding against the applicant based on her failure to provide 'medical or other independent evidence' of domestic violence;

4. This error was material.

5. The Tribunal's finding (at [67]) in relation to her claims of 'sexual torture', that the applicant did not provide any 'specific evidence of the torture nor any independent evidence of her claim' was unreasonable, illogical or irrational

Particulars

1. The applicant was speaking to a male Tribunal member through an interpreter. She was not asked to provide any specific details of her sexual violence. In those circumstances, the fact that she did not volunteer specific details of her sexual violence could not rationally affect her credibility;
2. In the alternative, this finding appears to rely on unwarranted assumptions about the nature of sexual violence;
3. It is axiomatic that sexual violence can happen without independent witnesses, and that victims of sexual violence may be reluctant to report such violence to police;
4. It was unreasonable, illogical or irrational to make an adverse credibility finding against the applicant based on her failure to provide 'specific evidence of the torture nor any independent evidence of her claim';
5. This error was material.

1. The relevant paragraphs of the Tribunal's decision are as follows (without alteration):

[65] The applicant says that on or about 8 April 2010 the husband attended the applicants home and demanded that the daughter live with him. The applicant said that despite him threating her, she did not comply with his demands. The incident appears to be an isolated event as the only other occasion he attended the applicant's home was in or about January 2012. The applicant did not detail any specific incidents of domestic violence she suffered and did not provide any medical or other independent evidence to support her claim of having been seriously harmed by her husband, his family or member of any gang. Finally, the police report dated 8 April 2010 does not refer to any threatening behaviour by the husband or any repeated visits to the applicant's home.

...

[67] Finally, the applicant claimed that the husband demanded sexual favours that amounted to what she termed 'sex torture.' However, given her evidence in relation to the relatively few times she had contact with the husband and the fact that she did not provide any specific evidence of the torture nor any independent evidence of her claim, the Tribunal does not accept the applicant's evidence that she suffered torture of a sexual nature that amounted to serious harm.

1. In written submissions, the applicant submitted that the Tribunal's finding in respect of no medical or independent evidence appears to make an unwarranted assumption that domestic violence requires an independent witness or physical injuries to the extent that medical intervention is required. The applicant submitted that unwarranted assumptions may amount to jurisdictional error on the grounds of irrationality or unreasonableness if it is not one that a reasonable decision maker could make (citing BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [8]). In oral submissions, counsel for the applicant contended that, whilst this was an implicit assumption, it was a key integral part of the Tribunal's reasoning.
2. In relation to the applicant's claims of sexual torture, the applicant submitted that in speaking to a male Tribunal member through an interpreter, she was in a vulnerable position and was never asked to provide any further details of the sexual violence claimed. Where she was never asked to provide such further details, the applicant submitted that it was unreasonable for the Tribunal to make an adverse credibility finding against her for failure to provide specific evidence.
3. In written submissions, the Minister submitted that the Tribunal made no assumption, whether warranted or unwarranted, that domestic violence requires proof of independent witnesses or physical injuries requiring medical intervention. In its fact-finding task, the Minister submitted that the Tribunal was bound to assess whether the applicant's claims were credible or capable of being accepted, and in doing so, was entitled to place weight on evidence as it saw fit and was not obliged to accept claims prima facie without evidence. The Tribunal ultimately accepted that the applicant was indeed a victim of domestic violence.
4. In relation to claims of sexual torture, the Minister submitted that the Tribunal's reasons for not accepting this claim were reasonable and open to it in circumstances where the Tribunal noted the applicant had had contact with her husband relatively few times since separating and did not provide any specific or independent evidence to corroborate the torture she said she suffered (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282 (Wu Shan Liang)). Further, the Minister submitted that the Tribunal was not required to ask for further details of a vague and unparticularised claim, and in fact, the onus falls on the applicant to put forward her claims (s 5AAA of the Act). In light of this, counsel for the Minister submitted that the fact the Tribunal placed weight on the absence of evidence is a "far cry" from it having made an unwarranted assumption.
5. This Court has previously considered the issue of whether there is a freestanding ground of review of unwarranted assumptions in EGX19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 119 at [37]- [40] as follows:

[37] As observed above, the applicant submitted that the IAA's rejection of the version presented at interview was not credible, and an exaggeration lacked an evident and intelligible justification and was based on an unwarranted assumption. In written submissions, the applicant submitted that where an unwarranted assumption is made which leads to the rejection of a witness's evidence, this may lead to the conclusion that the decision-maker has failed duly to consider the question raised by the material before it (citing BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [6]- [7] per Perram J (BOH17)). In BOH17, Perram J made the following observation (at [7]-[8]):

On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16) or because the decision maker has failed duly to consider the question raised by the material (WAGO and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory...

...

Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal's impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.

[38] The applicant further submitted that an unwarranted assumption may disclose jurisdictional error where there is no evident or intelligible justification given for that assumption (citing EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451 at [34] per Halley J (EWH20); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [45] per Kenny, Kerr and Perry JJ (DAO16); and BOH17 at [8]). In those cases, however, the unwarranted assumption in each case was easily ascertainable. In EWH20, the Court was satisfied that the Tribunal in that matter had relied upon an assumption that an old school friend of the appellant's father would assist the appellant in settling in if returned to Liberia. The Court found that such an assumption could not be made "without an evidentiary basis and more detailed reasoning, and was not a matter of 'ordinary human experience'" (at [50]). In DAO16, the Court considered the Tribunal's rejection of evidence as untruthful from a number of witnesses who had provided statutory declarations that supported the appellant's claim to be in a same-sex relationship. The Full Court found that the Tribunal's rejection was irrational for a number of reasons, including that its reasoning was underpinned by a number of unexpressed and unwarranted assumptions, including an assumption that "if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men". The Court observes that, in those matters, the nexus between the impugned assumption and a finding of irrationality or illogicality is easily ascertainable.

[39] In BOH17, however, the Court made the following observation at [11]-[12]:

The question here, rather, is whether the Tribunal made an unwarranted assumption which, as I have explained above, devolves to inquiring as to whether the assumption was one which could reasonably be made (or which had an evident or intelligible justification).

The availability of a reasonable alternative hypothesis does not, on its own, demonstrate that the assumption made by the Tribunal was unwarranted in the sense of being unreasonable. As the cases to which I have referred show, something more is required. The appellant has not shown, for example, that the weight of evidence overwhelmingly supported her preferred hypothesis or that the assumption made by the Tribunal had at its foundation a false premise...

[40] The applicant's submission is that the unwarranted assumption in this matter is the IAA's conclusion that the applicant's account of events was "simply not credible". This was, according to the applicant, because the IAA put forward no explanation or reasoning for why it considered this to be the case. It can be seen that this is a far more nebulous allegation of an unwarranted assumption than the examples in the cases relied upon by the applicant.

1. In essence, the applicant is asking the Court to focus solely on one part of a cumulative finding and to ignore all context. The Tribunal listed all of the issues it held in respect of the specifics of the claim that the applicant's husband had attended their home in 2010 and made threats. That included the absence of details of specific incidents of domestic violence and the context of the police report. The Tribunal also noted that it did not see any medical or independent evidence. In the Court's view, it is an unfair characterisation of that finding to say that the Tribunal found against the applicant because such evidence was required.
2. Put another way, if there was medical or independent evidence, that clearly would have been relevant and probative evidence. The fact that there wasn't did not mean the Tribunal was required to reject the claim, but it did not do that. However, that does not mean that the Tribunal, in considering the totality of the evidence in respect of that claim, cannot observe that there was no corroborative evidence. That is simply orthodox merits review in considering a claim such as this. All the Tribunal did was to consider whether there was any independent corroborative evidence to support the applicant's claim and then to consider whether the claim made was detailed or vague. The concerns held by the Tribunal in this respect were based on three pillars: first, that the applicant had provided no specificity of the incident; second, that the claim was not supported by any independent evidence; and third, that the police report itself did not refer to this behaviour.
3. The applicant's complaint in respect of the Tribunal's rejection of her claim that she had been subjected to sexual abuse suffers from the same vice. It was a cumulative finding based upon the absence of evidence. Once again, the Tribunal principally noted that she had not seen her husband very often and she had not provided any specific details of the abuse. The absence of independent evidence was simply a part of the Tribunal finding there was a general absence of any detail or evidence in respect of this claim. In reaching this finding it is not unimportant to observe that the Tribunal had regard to the gender guidelines in respect of the evidence and it had regard to the vulnerability of the applicant.
4. Importantly, nowhere does the Tribunal state that domestic violence required independent corroborative evidence. Indeed, it is clear from the whole of the Tribunal's decision that it accepted that the applicant had been subject to domestic violence. Ultimately, the Tribunal accepted that the applicant had been a victim of domestic violence but did not accept some of the aspects of the applicant's claims. Furthermore, as highlighted by the Minister, the principal reason given by the Tribunal that the applicant would not be at risk of harm from her husband is contained at [68] where the Tribunal said:

The applicant has been in Australia for over 5 years. During that time she has not had any contact with her husband. She said that if she returned to Malaysia she feared that she would be harmed by her husband. However, the applicant was not able to provide any evidence of where her husband was living, any threatening behaviour by the husband toward her while she has been in Australia or the means by which he would become aware of her return to Malaysia. In the absence of any evidence of the husband continuing to pursue the applicant, it seems unlikely that after such a period of time the husband would continue to search for the applicant. As such, the Tribunal finds that there is no real chance of the applicant being seriously harmed in the event that she is returned to Malaysia.

1. That is, the Tribunal simply formed the view that on the evidence before it, there was no evidence of the applicant's husband having had any continuing interest in the applicant for a significant period of time and no evidence he would be aware of her return. Whilst that finding is also attacked by the applicant (discussed below), it is an important reason for the Tribunal's ultimate rejection of her claim to be at risk of harm from her husband.
2. Limb four of ground one sets out that:
   1. The Tribunal's finding (at [68]) that the applicant was 'not able to provide any evidence of where her husband was living, any threatening behaviour by the husband toward her while she has been in Australia or the means by which he would become aware of her return to Malaysia' was unreasonable, illogical or irrational

Particulars

1. It was unreasonable, illogical or irrational for the Tribunal to find that the applicant was 'not able to provide' any evidence of these matters when she was not asked to do so;
2. Further in the alternative, it was unreasonable, illogical or irrational for the Tribunal to find that the applicant's failure to provide evidence of these matters affected the credibility of her claim.
3. This error was material.

1. Paragraph [68] is set out above (at [55] of these reasons).
2. In written submissions, the applicant submitted that despite the assertion that she was "not able to provide any evidence" of any threatening behaviour by the husband, she was never asked to do so, which rendered the Tribunal's finding in this respect unreasonable. In oral submissions, counsel for the applicant submitted that, within a finding that someone is unable to provide evidence, there is an implicit assumption that they were either asked, or given an opportunity, and failed in their discharge of such an opportunity to provide evidence. To make an adverse credibility finding, in the applicant's submission, "imports" an illogical element that the applicant was placed on notice of, or was required to provide, this information and failed in doing so. However, in the alternative, the applicant submitted that the Tribunal's use of the applicant's failure to provide this evidence to draw an adverse credibility finding was unreasonable.
3. In respect of the Tribunal's finding that the applicant was not able to provide evidence of where her husband was living, of any threatening behaviour while she has been in Australia, or any way he would become aware of her return to Malaysia, the Minister submitted that the Tribunal's reasons for not accepting these claims were reasonable and open to it. The Minister submitted that the Tribunal noted what it considered to be the matters relevant to its assessment as to whether the applicant would face serious harm on return (citing Wu Shan Liang at 281-282), and accordingly, no illogicality, irrationality or unreasonableness is revealed.
4. In response to the applicant's assertion that the Tribunal did not ask her to provide evidence of her husband's whereabouts, counsel for the Minister submitted that the following question would have been an opportunity for the applicant to provide such evidence (produced from the Tribunal hearing transcript) (without alteration):

Q198 All right. And if you went back to Malaysia, Kuala Lumpur is a very big city, why couldn't you go to KL or some other place in Malaysia?

A (INT) Well, these kind of people who deal in drugs they are everywhere, I wouldn't feel safe.

1. The applicant essentially asks the Court to impermissibly scrutinise the Tribunal's decision with an eye keenly attuned to error (Wu Shan Liang at [29]-[31]). A fair reading of the Tribunal decision, in context and having regard to the entirety of its reasons, is simply that the applicant had provided no evidence in respect of her husband's current residence or situation. That was a reasonable finding given the claims she had made. There was no requirement for the Tribunal to invite the applicant to put on evidence as to these matters as they were an obvious and inherent aspect of her claims.
2. Accordingly, no jurisdictional error arises in respect of ground one.

1. Ground two contends that the Tribunal was unreasonable, illogical or irrational in finding that the applicant is able to relocate to another area of Malaysia.
2. The particular paragraphs of relevance in the Tribunal decision are set out as follows (without alteration):

[71] In the alternative, if there was a real chance the applicant would suffer serious harm from her husband or from gang members at the behest of her husband and his family (which the Tribunal has specifically found there is not) then it finds that that there is no real chance that the persecution claimed would not relate to all areas of Malaysia. As such, the Tribunal finds that it would be reasonable for the applicant to relocate to a city such as Kula Lumpur to avoid the risk of such harm.

[72] The harm the applicant claims she will suffer is based on the fact that her husband lives in and around Seremban. However, the applicant did not suffer any harm for the husband when he was living in Perak. The applicant was not able to provide the Tribunal with any evidence that her husband would know of her return to Malaysia and his despite and ability to locate them in the event that they relocated to a larger urban area such as Kuala Lumpur.

[73] As such, the Tribunal finds that there is not a real chance the applicant will suffer serious harm in all areas of the applicants receiving country of Malaysia and that she will be able to relocate to an alternative area such as Kuala Lumpur.

1. In written submissions, the applicant submitted that the Tribunal's only reasons for its finding that the persecution claimed would not relate to all areas of Malaysia were that:

(a) the applicant did not suffer any harm from the husband when he was living in Perak; and

(b) the applicant was not able to provide the Tribunal with any evidence that her husband would know of her return to Malaysia.

1. In respect of the former finding, the applicant submitted that the reliance the Tribunal placed on the fact that she did not claim harm from her husband while he was living in Perak ignores her evidence that he was on bail and subject to police supervision at that time.
2. In respect of the latter, the applicant submitted that she was not asked to provide any evidence that her husband would know of her return to Malaysia and be able to contact her, and thus it was unreasonable for the Tribunal to place weight on the fact that she was 'not able to provide' evidence. In oral submissions, the applicant contended that the Tribunal drew an adverse inference about her being unable to provide such evidence in circumstances where she was never asked to do so, which was unreasonable.
3. However, in the alternative, the applicant contended that the finding fails to give any consideration to the applicant's claim that if she returned to a different part of Malaysia, she feared harm from her husband's drug associates who had previously threatened her, which was articulated in both her oral evidence and original application. The applicant conceded that there is no requirement that the relocation be reasonable, but submitted that the Tribunal is required to actively consider whether relocation is available having regard to the applicant's particular circumstances. The applicant submitted that, in light of the Tribunal finding that the applicant was a member of the social group of women subject to domestic violence, it was required to actively engage with her other bases of fear separate from her husband, being the husband's gang members.
4. In written submissions, the Minister submitted that when regard is had to the entirety of the exchange between the Tribunal and the applicant, it is "far from clear" that the applicant's oral evidence was to the effect that her husband's bail conditions and alleged police supervision meant that he could not see her in Seremban. The Tribunal's operative concern, in the Minister's view, was that the applicant was a victim of domestic violence, but that "victimhood" did not rise to the level of serious or significant harm.
5. The Minister further submitted that because the Tribunal concluded there was no evidence before it that the applicant and her daughter had been threatened by gang members, the only finding open to it was that there would be no reason to fear harm from her husband's drug associates anywhere in Malaysia and it was irrelevant that she claimed they would find her anywhere. Nevertheless, the Minister submitted that the Tribunal properly carried out its task by assessing the reasonableness of any possible relocation, namely, to Kuala Lumpur, at [87] of its reasons. Counsel particularly emphasised in oral submissions that the Tribunal found it was reasonable for the applicant to relocate to a city such as Kuala Lumpur, and that in considering relocation in the context of the refugee criterion, the Tribunal was required to consider whether the harm faced was localised or whether it related to all inhabited, habitable and safe areas within Malaysia to which the applicant could lawfully go, which it did.
6. The Minister further contended in oral submissions that the Tribunal was not required to consider the question of relocation in respect of the applicant's fear of harm from her husband's gang members. Where the Tribunal does not mention something, it does not consider it necessary to go into detail about it (citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323).
7. The Court accepts the Minister's submissions in respect of this. The Tribunal's findings in respect of relocation were clearly premised on its finding that there was simply no evidence which would support a finding that the applicant's husband would be aware of her return to Malaysia. It follows, if the husband was unaware of her return, that he would not alert his associates to that return. This was also based on the finding that the applicant had not had any contact with her husband for a lengthy period. It was not unreasonable for the Tribunal to consider whether the applicant would be at risk in a larger city such as Kuala Lumpur. Its findings that it was reasonable to relocate were based on the fact that she had relocated in the past without issue and that there was simply no evidence which would contradict a finding that she could relocate.
8. Accordingly, no jurisdictional error arises in respect of ground two.

1. Ground three asserts that the Tribunal was unreasonable, illogical or irrational in finding that effective protection measures were available to the applicant from the Malaysian police.
2. The relevant paragraphs of the Tribunal's decision in respect of this finding are as follows (without alteration):

[75] The applicant and her daughter both made complaints to the police in relation to the husband actions of attend their home and the daughter's school. The fact that they made complaints to the police indicates that they accept that protection from the police is available to them. The daughters evidence was that the school teachers had prevented the daughter form getting into the husband car and sending him away for the school is evidence that she is being effectively protected for the actions of the husband. While the applicant had said that the police had done nothing she did not give any evidence that she would be denied protection from the police for any reason mentioned in s.5J(1)(a).

[76] The DFAT report notes that 'credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force.' In this case the applicant has been separated from her from her husband for more than 10 years (5 years of which the applicant has been in Australia), she has not had any contact with him since 2012 and is capable of accessing the police and other services for her protection. In this respect, the Tribunal does not accept that the applicant will be denied effective protection measures for any reason outlined in s.5J(1)(a) of the Act. While the Tribunal accepts the system to support domestic violence victims in Malaysia is not faultless, based on the available country information, the Tribunal does not accept that these inadequacies are so extensive that the applicant will be denied effective protection measures.

[77] Therefore, when considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in her receiving country. The Tribunal finds that that the effective protection measures are available to the applicant anywhere in Malaysia and therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as a vulnerable woman in an abusive marriage or as a female victim of domestic violence or any related claim or any other reasons mentioned in s.5J(1)(a).

1. The applicant submitted that it was unreasonable, illogical or irrational for the Tribunal to find that the making of police complaints several years prior to the hearing indicates that the applicant accepts that protection from the police is available to her. The applicant emphasised that this was particularly illogical in circumstances where she indicated in her protection visa application that the police had previously failed to assist her.
2. However, the Tribunal merely drew a conclusion from the facts before it, which it relied upon, together with the balance of matters it considered in undertaking this assessment, to conclude that effective protection measures were available to the applicant. Those facts were that the applicant and her daughter had both clearly taken a view that it was worth making a complaint to the police force, coupled with the country information which said the police force is effective.
3. In oral submissions, counsel for the applicant submitted that the Tribunal's reliance that the Malaysian police are a "professional and effective police force" to find that the applicant would not be denied protection measures is irrational where the Tribunal has relied on a general claim to make a specific finding for access to protection of a victim of domestic violence. Contrastingly, the applicant submitted that it was unreasonable for the Tribunal to not have regard to DFAT's assessment that it is "difficult for women to gain adequate state protection" in circumstances where the applicant had specifically claimed that the police were unable to provide her with protection, amounting to jurisdictional error (citing BSU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 642 at [47] (BSU20)).
4. In BSU20, Greenwood J had found that, whilst the Immigration Assessment Authority in that matter had regard to country information, it had failed take into account an important aspect contained within that country information. A critical aspect of the reasoning in BSU20 is that the IAA in that matter had "failed to address the specific and particular submissions put to it by the applicant". That is not the situation in this matter where, as the Minister has submitted, the highest the applicant's submissions rise to is a submission that the police did not do anything when she had reported the matter to them. There was no submission or evidence that contradicted the country information in respect of the efficacy of the police. To the extent that there were caveats within the country information, that was referenced in the Tribunal decision at [76] where it acknowledges that "the system to support domestic violence victims in Malaysia is not faultless" but that did not mean that the country information supported a finding that the applicant would be denied effective state protection.
5. Furthermore, in respect of the Tribunal's reliance on the applicant's prior report to the police, the Court agrees with the Minister's submission that the Tribunal is generally entitled to rely on past conduct and events to inform itself as to future events, and that such conduct is more particular and personal to the applicant than the country information.
6. The applicant further submitted that despite characterising her claim as "a vulnerable woman in an abusive marriage or as a female victim of domestic violence or any related claim", the Tribunal erred by not giving genuine consideration to her claims of fear of violence from her husband's drug associates where this claim was clearly raised in the applicant's application and in her evidence. Failure to consider a clearly articulated claim that squarely arises on both the application as well as the evidence, in the applicant's submission, amounted to jurisdictional error (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).
7. However, in the Court's view, the Tribunal gave genuine consideration to this claim and provided cogent reasons (at [63] of its reasons) for not accepting the claim by concluding there was no evidence before it that the applicant and her daughter had been threatened by gang members at her husband or her husband's family's behest. The Court accepts the Minister's submission that, where the Tribunal reached such a finding, it is implicit within its reasons that it did not consider effective protection measures relevant to its assessment.
8. No jurisdictional error arises in respect of ground three.

1. The amended application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.