DAC25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1804

Note: The form of the order is subject to the entry in the Court's records.

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 s 476 of the Migration Act 1958 (Cth) ("the Act") in respect of the decision of the Administrative Appeals Tribunal made on 28 February 2025. The applicant is a citizen of Malaysia and arrived in Australia on an electronic travel visa on 30 March 2019. The applicant applied for a protection visa on 9 May 2019 and claimed to have left Malaysia for economic reasons. On 4 September 2019 a delegate found the applicant failed to meet the criteria for the grant of a protection visa.
2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed she understood what said by the Court.
3. The grounds of the application are as follows:

Ground 1: Failure to afford procedural fairness due to interpreter misconduct

At the hearing on 10 February 2025, the Malay interpreter engaged by the Tribunal acted in a manner that was unprofessional and intimidating. He spoke in a tone that was harsh ("garang"), used complex Malay words I could not understand, yawned while explaining important questions, and raised his voice at me without provocation. This created an intimidating environment, causing me to feel pressured and anxious.

Procedural fairness requires that I be able to fully understand and participate in my own hearing. The interpreter's behaviour directly affected my ability to give clear, complete evidence.

Ground 2: Incorrect assumption that relocation to Kuala Lumpur would remove risk

The Tribunal concluded that I could relocate to Kuala Lumpur, implying that it is a more tolerant city for LGBT people. This assumption ignores my lived experience. While KL may appear more modern, Malaysian law criminalises same-sex relationships nationwide, including in KL, under the Penal Code and Syariah law. Social stigma, harassment, and violence occur in KL as in smaller towns. My bisexuality would still place me at risk in KL, where conservative attitudes and police raids on LGBT venues continue to be reported.

Ground 3: Failure to give proper weight to cultural and personal context

The Tribunal criticised me for not attending LGBT events in Australia. I explained that in Malaysia there are no public LGBT events and it is dangerous to openly associate with such activities. Coming to Australia, I have been shy and cautious because I have no close LGBT friends yet. Avoiding events does not mean I am not part of the LGBT community; it reflects my lived trauma and adjustment period.

Ground 4: Inadequate consideration of evidence of mental health risk

The Tribunal failed to consider the impact of returning me to a country where I have lived in fear. My visit to the GP on 4 August 2025 (Annex A) reflects my ongoing stress and anxiety. My mental health would be at severe risk if forced to return to Malaysia, where my identity cannot be safely expressed.

Ground 5: Positive contributions to Australia

I am a valued employee at Fresh Frontier Pty Ltd (Annex C & D). My employer confirms my positive attitude, strong work ethic, and valuable contributions. I am building a life in Australia and integrating into the community. Returning me to Malaysia would not only put me at risk but would also remove me from a workplace where I am respected and supported.

1. The applicant applied for review, and on 14 October 2024 the application was transferred to the Tribunal, pursuant to consequential and transitional provisions. On 20 January 2025 the Tribunal notified the applicant of her proposed hearing on 10 February 2025. On 6 and 7 February 2025 the applicant provided supporting material in which she alleged that her protection visa application had been completed by an unknown person, and that she didn't leave Malaysia for economic reasons, but rather due to bisexuality. On 10 February 2025 the applicant attended a hearing with a Malayan interpreter.
2. The Tribunal, in its reasons, identified the background to the review application and identified where the applicant was born and lived, and that she belongs to a Malay ethnic group, is Iban, and was born to Malaysian citizens and is never married. The Tribunal identified that the applicant does not have members of the same family unit or a partner in or outside Australia, and identified her education, and that she hadn't been employed, and that she obtained a passport on 27 February 2019, and can speak, read and write Malay, and has not undertaken any overseas travel in the last 30 years, and that she didn't receive assistance from anyone to complete the protection visa application.
3. The applicant claims that she left Malaysia because she could not subsist and could not see a future in Malaysia, and would be trouble for her family if they wanted to migrate. The applicant claimed that corruption in Malaysia was high, as was the cost of living and the rate of unemployment. The Tribunal identified the declaration in the application for protection that the detail was correct and had been read and understood.
4. On 9 May 2019 the applicant was sent correspondence, acknowledging receipt of a protection visa and stating that the Department may make a decision on the application without requesting any additional material, and giving an opportunity to provide further information. On 24 May 2019 the applicant was sent correspondence, noting her claims and giving her the opportunity to advance further claims. The applicant attended an appointment for biometric and personal identifiers on 4 June. The Department did not receive any further information or documentary evidence from the Department. It was in those circumstances that the applicant was the subject of the delegate declining to grant a protection visa.
5. The applicant then applied on 14 September 2019 for review of the delegate's decision. On 16 September 2019 the Tribunal wrote to the applicant acknowledging receipt of the application and providing an opportunity to provide further material. On 26 July 2024 the applicant was sent a prehearing invitation form, containing various questions and asking the applicant to provide any further evidence she wished to submit. The applicant did not complete the prehearing form. On 20 January 2025, the Tribunal sent the applicant an invitation to attend a hearing and asked the applicant to provide all documents on which she wished to rely by 3 February 2025.
6. On 27 January 2025 the applicant returned a completed response and identified an intention to provide a written statement in relation to the circumstances of the protection visa application and how it misrepresented her claims, and that she claims she now faced legal and social discrimination by LGBTQIA plus individuals in Malaysia, and wanted to rely upon personal testimony as to her bisexuality and "they" identity, which made it unsafe for the applicant in Malaysia. The applicant's submissions to the this Court lodged on 12 August 2025 and 14 August 2025 use a personal pronoun and the Court accordingly uses personal pronouns rather than the plural.
7. On 30 January 2025 the Tribunal asked the applicant to provide a copy of the Department's notification letter and the delegate's decision by 6 February 2025. The applicant replied that she had misplaced the document and no longer had access to it. The Tribunal did not receive any documents on 3 February 2025. On 3 February 2025 the Tribunal did provide the applicant with a copy of the delegate's decision, and noted that it had not received any other documents.
8. On 6 February 2025, the applicant provided a written statement, saying the protection visa application was incorrect and that she had been married and had two children, that did not leave Malaysia for economic reasons but claimed she is bisexual. The Tribunal was provided by links to a number of documents by the applicant, and the Tribunal wrote to the applicant on 6 February 2025, asking a number of questions. Prior to the hearing, the applicant provided a response. The applicant gave oral evidence to the Tribunal, and that the same person who wrote the protection visa application made the review application.
9. The applicant was asked about the email address of the review application, and confirmed that it was hers. When asked how she came to be at the hearing, the applicant confirmed that she had received a hearing invitation, and the Tribunal identified the address to which it had been sent. The applicant confirmed she had not met any third person whatsoever. The applicant contended that she only found out last year the protection visa application was about the economy, and wanted to say that is not what she wanted to claim because the applicant said she is bisexual. The applicant alleged she trusted a third person to complete the protection visa application and had never read the application and did not know why it had been refused.
10. The applicant expanded on the reasons why she left Malaysia as being because she was bisexual, and that she was afraid and unsafe in Malaysia. The applicant identified that she had been a cashier for about a year at a service station before moving to Kuala Lumpur. Besides her husband, the applicant said she had not any other relationships, and referred to a friend in Kuala Lumpur, and that the applicant was afraid of being judged, and that there were restrictions on the way she dressed. The applicant identified not mixing with the LGBTQIA plus community in Malaysia because she did not have confidence. The applicant did not apparently know other members of that community in Malaysia. The applicant did not disclose to anybody in authority in Malaysia her identification.
11. The applicant identified she had not been involved in the LGBTQIA plus community in Australia because she said she was scared and still in hiding. The applicant identified that a friend had assisted with the articles that she had provided by way of reference. The Tribunal identified that the references did not work. The applicant confirmed she had not come to any harm in Malaysia, but said it was because she did not tell anyone about her sexuality and kept hiding, but that when she came to Australia she could be herself. The applicant said she had not had any relationships in Australia.
12. The applicant said she did not work in Malaysia between 2011 and 2019 because she was involved in running a small business with her parents, selling bundles of clothes from China. The applicant identified working on a strawberry farm when she arrived in Australia. The applicant identified the work she had undertaken since then. The applicant maintained she could not subsist if returned to Malaysia, and wanted to migrate to Australia in her protection visa, which the applicant said was not correct. The applicant said she did not see any future in her home country. The applicant said the application was not a correct protection visa application because a third person wrote it. The applicant said she would be in trouble from her family if she returned and the applicant contended the protection visa content was not her claim.
13. The Tribunal identified that the economic conditions apply to everybody in Malaysia, with which the applicant agreed. The Tribunal took the applicant to the DFAT report in relation to members of the LGBTQIA plus community and the absence of economic barriers in urban areas. The Tribunal suggested to the applicant she could return to Kuala Lumpur, and the applicant maintained she would not be safe, that she could not marry and she could not show her bisexuality. The applicant claimed she would be judged and ostracised. The Tribunal suggested the applicant's work history in Malaysia and Australia, suggested she could find work in Kuala Lumpur, and the applicant said she did not wish to return and that she would have to hide herself again.
14. The Tribunal raised concerns in respect of the applicant's credibility, as the applicant had lodged an incorrect claim in 2019 and no subsequent claim was made until the hearing response. The applicant said it was her fault. The Tribunal noted that, while the applicant says she can be who she wants in Australia, she had not engaged with the Australian LGBTQIA plus community, and the applicant maintained that she was scared she would be judged by people.
15. The Tribunal suggested to the applicant she could return to her family, and she said she would be in trouble with her family and said the protection visa contention that she would be in trouble with her family was incorrect. The applicant said people in Kuala Lumpur would talk badly about members of the LGBTQIA plus community. The Tribunal said this did not rise to the level of serious or significant harm, and the applicant made a contention of having considered suicide. The Tribunal expressed it was sorry to hear that, but in such cases there was no agent of harm.
16. The applicant referred to people being arrested and detained, and the applicant maintained her ethnicity. The Tribunal raised country information, that lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA plus community, and that Kuala Lumpur was more accepting of LGBTQIA plus people, and that transgender does not apply to the applicant if shed moved to Kuala Lumpur. The applicant said how long can she keep running and how long does she have to conceal her true self, and that she is afraid.
17. The applicant maintained that Malaysian people are judgmental, and she could not marry, but the Tribunal suggested that was not serious or significant harm, and the applicant maintained there was no protection. The Tribunal identified relevant country information. The Tribunal set out the relevant law. The Tribunal identified the applicant's obligation under s 5AAA of the Act, and that the Tribunal does not have any responsibility to assist the applicant in specifying particulars of her claim, nor does the Tribunal have a responsibility or obligation to establish or assist in establishing her claim. The Tribunal identified that it is not required to accept uncritically the allegations made, and identified the mandatory considerations.
18. The Tribunal accepted that the reasons stated in the protection visa application as to why the applicant left Malaysia was incorrect, and that economic reasons were not the real reason why the applicant left Malaysia based on her February statement and her evidence at the hearing. The Tribunal accepted that the protection visa application was made by a third party without asking the applicant for reasons for protection. The Tribunal found that the claims in the protection visa application are not genuine because they were incorrect and do not reflect any real reason the applicant left Malaysia, having been written by a third party without the applicant's input. The Tribunal finds there is no real chance of harm if the applicant returns to Malaysia based on the claims in the protection visa application because it found the grounds in protection visa application not to be genuine.
19. The Tribunal turned to the applicant's claims of being a bisexual woman and the concerns raised by the Tribunal, but accepted that the applicant has not engaged in the LGBTIQ plus community, nor in relationships. The Tribunal found the applicant is credible as to her claims regarding her sexuality and her identification of the incorrect claims. Due to the private nature of such claims, the Tribunal was not satisfied the applicant does not have a reasonable reason for why the claim was not made before the delegate. As such, the unfavourable inference otherwise required under s 36A of the Act does not arise.
20. The Tribunal accepts the applicant is a bisexual woman, and that that is the reason why she left Malaysia. The Tribunal accepted that the applicant's dates in employment in Malaysia were as set out by the Tribunal. The Tribunal accepted that Malaysia is a conservative Islamic nation and is generally intolerant of LGBTIQ plus identities and behaviours. The Tribunal referred to country information, and prefers the country information report to those provided by the applicant because it is more recent. The Tribunal could not access the links that were provided by the applicant that were identified during the hearing.
21. The Tribunal accepted that the applicant voluntarily returned from Kuala Lumpur to Sarawak in her early twenties to marry a man. The Tribunal accepted that the applicant is bisexual and returned to Malaysia and that she may, in the reasonably foreseeable future, have a relationship with a man. The Tribunal found that there is no real chance of harm if she does so as it accepts her ethnicity and being a Christian, and considers their former husband to be an ex based on the evidence given at the hearing.
22. The Tribunal referred to the applicant's claim being based on attraction to women. The Tribunal found that the applicant has never had a relationship with a woman, either in Australia or Malaysia, but accepts that if she returns to Malaysia, she may engage in a relationship with a woman in the reasonably foreseeable future, having referred to where the applicant had lived, and found that the applicant would return to Sarawak or Kuala Lumpur if returned to Malaysia.
23. The Tribunal referred to country information that individuals likely to attract official attention under state Sharia law include those who identify as LGBTQIA plus, and may, subject to absence of economic or other barriers, move to large urban areas to avoid attention. The Tribunal accepted that lesbian and queer women are much less visible in Malaysia than other members of the LGBTQIA plus community. The Tribunal referred to accepting from the country information that members of the LGBTQIA plus community are typically prosecuted under state-based Sharia law rather than federal law. While the investigation of such offences is reasonably common and prosecutions have occurred, successful prosecutions are rare.
24. The Tribunal referred to the promotion of rehabilitation and re-education being primarily aimed at Muslims, although Christians are also targeted. The Tribunal found on the country information that Kuala Lumpur were generally more accepting of LGBTQIA plus than in Sarawak. The Tribunal found that Kuala Lumpur is habitable and that safe access by the applicant is lawfully possible. The Tribunal found that there is no real chance of harm in all areas of Malaysia in the reasonably foreseeable future, and found that the applicant can relocate from Sarawak to Kuala Lumpur where she has lived and worked before, and there is no real chance of harm to the applicant in Kuala Lumpur because of her ethnicity, Christianity or being a queer woman.
25. The Tribunal did not accept the applicant faces a moderate risk of familial or society violence in Kuala Lumpur because the applicant does not have family in Kuala Lumpur, and the Tribunal accepted the country information that people in Kuala Lumpur are more accepting of the LGBTQIA plus community, and prefers that finding over the generalised statement in respect of the whole of Malaysia. While the Tribunal accepted the DFAT report that members of the LGBTQIA plus face a high risk of official discrimination and moderate risk of societal discrimination in Malaysia, which may include being subject to prosecution, re-education and exclusion, the Tribunal does not consider that there is a real chance of harm to the applicant in the reasonably foreseeable future if the applicant returns to Kuala Lumpur because the applicant is of Iban ethnicity, Christian, and Kuala Lumpur is more accepting of the LGBTQIA plus community, and that members of that community move to Kuala Lumpur to avoid attention and escape discrimination.
26. The Tribunal also took into account that the applicant did not experience harm in Malaysia based on what was said at the hearing. The applicant suggested she would experience harm in Kuala Lumpur because she would not be allowed to marry a woman and because she would be ostracised and people would judge her. The Tribunal found that this does not rise to the level of serious harm and neither does official discrimination or societal discrimination it is insufficient that the applicant would suffer discrimination.
27. The applicant raised that in the past she had considered killing herself and that if she were returned to Malaysia, this may occur again. As raised with the applicant during the hearing, the Tribunal found in this instance there would be no agent of harm. For the above reasons, 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 then turned to consider whether the applicant met the complementary protection criteria, and found that it 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.
28. In relation to the grounds advanced in the originating application, the applicant put oral submissions that she did not want to go back to Malaysia and that she did not want to live in fear. The applicant also relied on her two sets of written submissions. One set of those written submissions included what was said to be mistakes made by the ART, which reflected a disagreement by the applicant with the adverse findings and did not, in any way, identify a relevant error. The applicant's assertion as to her own experience engages no more than inviting impermissible merits review.
29. The reference to the applicant's activities here in Australia again invite impermissible merits for review. The applicant's contentions in relation to interpreter misconduct assert that the interpreter was rude, impatient and used words that could not be understood well, and that the interpreter yawned and made her feel accused, and that it was hard for her to answer clearly and fairly. The applicant was given an opportunity to put on affidavit evidence with the transcript, and the applicant did not do so. There is no evidence to support the applicants contention that the interpreter failed to adequately and fairly interpret the evidence or that the interpreter engaged in any misconduct that prevented a fair hearing. The applicant referred to her life in Australia, which again invites nothing more than impermissible merits review.
30. The applicant's claims to fear harm, as described in her submissions, are not an accurate reflection of the claims that she advanced before the Tribunal and do not identify any relevant error by the Tribunal. The applicant's statutory declaration was not before the Tribunal and is not material that can be taken into account in support of her protection visa claims, and is not, in fact, a statutory declaration. The applicant's alleged affidavit of interpreter misconduct is not, in fact, an affidavit, and rises no higher than again generalised assertions, and is not evidence of any misconduct by the interpreter. The documents that the applicant submitted that were attached to her submissions that were not before the Tribunal and are not fresh evidence that can be received by this Court to advance her protection visa claims.
31. The applicant's second set of submissions identify, again, the topic as ground 1 of a failure to afford procedural fairness due to interpreter misconduct. As identified earlier, no evidence has been put on by the applicant to support the assertions that the applicant had other than a fair hearing in the conduct of the interpreter. The applicant's generalised assertions fail to identify any interpreter misconduct that prevented a fair hearing and fail to identify any denial of procedural fairness in the conduct of the hearing or a materially inadequate in the level of interpreter engagement in the course of the hearing.
32. The second ground refers to alleged incorrect assumptions about Kuala Lumpur, which, in substance, appears to reflect a disagreement with the adverse findings on the merits and does not identify any relevant or arguable jurisdictional error. Ground 3 refers to a failure to give proper weight to cultural and personal context, which is again an invitation to impermissible merits review. Ground 4 refers to inadequate consideration of mental health risk, which, in substance, again is an invitation to impermissible merits review. Ground 5 refers to the applicant's contributions in Australia, which is again an invitation to impermissible merits review.
33. The applicant's purported affidavit of interpreter misconduct is not an affidavit, and does not identify any actual procedural unfairness or material error in the conduct of the hearing or the standard of interpretation by the interpreter. The alleged statutory declaration as to lived experience is an invitation to merits review, and is not a statutory declaration and does not advance any jurisdictional error. The other material annexed by the applicant, again, to the extent it was not before the tribunal cannot assist in advancing any jurisdictional error.
34. Turning to ground 1 and ground 3 of the originating application, the Court accepts that the grounds do not identify how the tribunal failed to consider or misapply the legislation. On the face of the Tribunal's reasons, the Tribunal correctly identified the statutory criteria and, on the face of the Tribunal's reasons, correctly applied the relevant criteria. The Tribunal considered the applicant's claims and evidence, and made reference to the relevant language contained in s 5J(1) of the Act, and then made an adverse finding that there is no real chance of harm in all areas of Malaysia because the applicant could relocate to Kuala Lumpur where she had lived and worked previously. The Tribunal also, on the face of its reasons, properly applied the complementary criteria and considered the practical realities of relocation, and that there is no barrier to the applicant living and working in Kuala Lumpur where she had previously lived. No jurisdictional error is made out by ground 1 and 3.
35. In relation to ground 2, the Tribunal's reasons reflect actively and intellectually engaging with the applicant's claims. The Tribunal accepted certain integers of the applicant's claims and that the original protection via application was incorrect. However, the Tribunal was not satisfied that the applicant would face a real risk or chance of harm on the basis of her sexuality claims, because the risk did not extend to all areas of Malaysia, and she could reasonably relocate to Kuala Lumpur. The Tribunal also complied with the exhaustive function of procedural fairness in the conduct of the hearing.
36. On the face of its reasons, complied with the obligation in s 55(1) of the Act, and does not accept that there was a denial of procedural fairness in the conduct of the hearing or by reason of the alleged inadequacy of the standard of the interpretation or by reason of the conduct of the interpreter.
37. The Court accepts the Minister's submissions that the applicant's submissions do not establish any jurisdictional error and engage in impermissible merits review. The Court accepts that material that was not before the tribunal cannot be taken into account to give rise to a jurisdictional error is made out by ground 2.
38. Insofar as the merits of the claim are concerned, the applicant was given an opportunity to put on affidavit evidence in relation to the conduct of the hearing and the transcript, and did not do so. The Court is not satisfied that the applicant was denied a real and meaningful hearing by the tribunal or that the interpreter failed to engage in a reasonable standard of discharge of the role of the interpreter during the conduct of the hearing.
39. The onus is on the applicant to provide evidence to show that the level of interpretation was so poor that she was effectively prevented from giving evidence and that it caused the decision-making to miscarry. The applicant has not provided any corroborative evidence to support the allegations, nor has she identified what clear answers she says she was prevented from giving. There is nothing before the court to indicate the applicant raised any issues about the interpreter with the tribunal in the course of the hearing.
40. Further, the hearing concluded on 10 February 2025, 18 days prior to the delivery of the tribunal's decision. There is nothing to show the applicant raised any concerns in relation to the interpreter prior to that date. The Court is not persuaded that there was any jurisdictional error or denial of procedural fairness by reason of the standard of interpretation or the conduct of the interpreter during the conduct of the hearing. Accordingly, the court finds no jurisdictional error as alleged in the originating application or as sought to be expanded in the applicant's written submissions is made out.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.