DXT22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 486

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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection, (as the Minister was then called) ("the delegate"), to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa.

Application for a visa and the delegate's decision

1. The applicant is a citizen of Malaysia. The applicant had previously visited Australia on an Electronic Travel Authority (Class UD) (subclass 601) visa on 28 January 2015. She departed Australia on 8 March 2015 and then returned to Australia on 27 June 2016 on an Electronic Travel Authority (Class UD) (subclass 601) visa and has not departed since. On 8 September 2016, the applicant applied for a Protection (Class XA) (subclass 866) visa. This application was invalid.
2. On 18 November 2016, the applicant made a valid application for a Protection (Class XA) (subclass 866) visa ("the visa") (Court Book ("CB") 1-37). In the application, the applicant claimed that she had protested against the Government of Malaysia; that protestors were ordered to be arrested and imprisoned and that if she returns to Malaysia she will be imprisoned. (CB 32-34).
3. On 29 August 2017, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that the delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) of the Migration Act 1958 (Cth) ("the Act") and was therefore not satisfied that she was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act; and, because the delegate was not satisfied that the applicant's circumstances gave rise to a real risk that she will be subjected to any form of significant harm, as defined in s 36(2A) of the Act if she returned to Malaysia in the foreseeable future ("delegate's decision").

Application for review to the Administrative Appeals Tribunal

1. On 10 September 2017, the applicant applied to the Tribunal for a review of the delegate's decision (CB 54-55).
2. On 11 September 2017, the Tribunal acknowledged receipt of the application and advised the applicant that should she wish to provide material or written arguments for consideration that she should do so as soon as possible (CB 57-58). The applicant did not respond.
3. On 5 August 2022, the Tribunal wrote to the applicant advising her that her application for review was being allocated to a Member and asked the applicant to complete a pre-hearing information form via the link provided (CB 59). The applicant emailed the Tribunal on 12 August 2017 stating that she wanted to apply for an extension of seven days to complete the pre-hearing form because she wanted to submit "supporting evidence about the reason for my visa" (CB 66). The Tribunal extended the time to 22 August 2022 to provide the requested information (CB 67).
4. On 22 August 2022, the applicant sent an email to the Tribunal in which she said that she wanted to "change my application claim answer'. The applicant explained that she had made an application in 2016 but at the time she had just arrived in Australia and was working for a contractor who exploited the workers and who was managing her visa. She said she did not know anything at that time and did not know how to speak English (CB 68). The applicant attached an updated application and supporting evidence. The supporting evidence was two reports of the Royal Malaysian Police made by the applicant's sister (CB 69-73).
5. On 27 October 2022, the Tribunal invited the applicant to attend a hearing on 16 November 2022 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 75-78).
6. On 13 November 2022, the applicant sent to the Tribunal a witness statement by her sister (CB 89-91).
7. On 16 November 2022, the applicant attended the hearing (CB 92-94). The applicant was assisted by an interpreter in the Malay and English languages.
8. On 21 November 2022, the Tribunal affirmed the delegate's decision and gave written reasons for its decision ("Decision") (CB 98-102). On 30 November 2022, the applicant was notified of the decision and provided a copy of the Tribunal's written reasons (CB 97).

1. The Tribunal set out the criteria for a protection visa ([9]-[13]) and referred to the mandatory considerations including the requirement to take account of the country information ([14]). The Tribunal accepted that the applicant is a national of Malaysia and that it assessed her protection claim accordingly ([6]).
2. The Tribunal then summarised the applicant's claim by reference to the visa application ([17]). The Tribunal then stated that prior to the hearing, the Tribunal had received a letter from the applicant stating that she was unaware of the claims in her protection visa and that they are not her claims. This was the correspondence referred to above at CB 68. The Tribunal summarised the applicant's new claims. The Tribunal set out the applicant's new claims as follows ([18]):

(a) Her sister married a Muslim and converted. He was abusive to her sister and to her;

(b) Her brother-in-law threatened her;

(c) She supported her sister, and her brother-in-law didn't like that;

(d) He smashed her car, and he is a drug addict.

1. The Tribunal identified that the issue on review was whether the applicant will be harmed in Malaysia by her brother-in-law ([16]).
2. The Tribunal then set out the evidence the applicant had given at the hearing as follows:

(a) The applicant's sister had known her husband since school and married him in 2012. He was Muslim and she was a Christian and she had to convert in order to marry him ([20]);

(b) After they married, he beat her [the applicant's sister] ([20]);

(c) The applicant told her sister not to marry him and did not attend the wedding ([21]);

(d) Their mother chased her sister out of the house and their father was silent about the relationship ([21]);

(e) In 2011, the applicant had been living with her sister for several years but moved out and got her own place ([22]);

(f) The worst thing that happened was when her brother-in-law came to her rental and damaged the fence ([22]);

(g) The applicant said that her brother-in-law did this because she was a guarantor of her sister's car loan and the applicant did not make the car payments and as a result the car was repossessed. The applicant said her brother-in-law came to the house honking the horn and he also smashed her car ([22]). The applicant said the car was dented ([23]);

(h) The applicant said that she did not go to the police because he [the brother-in-law] went to jail for drugs and she moved far away ([24]);

(i) In 2015, her sister was beaten very badly by her husband, and he locked her out of the house ([23]) and her sister called the applicant to warn her. The brother-in-law drove by honking and looking for her ([23]);

(j) Her sister asked her husband for a divorce, but he does not want to give her a divorce ([25]);

(k) When asked why she did not move elsewhere in Malaysia the applicant said it was because her brother-in-law has a brother who is a police officer, and they have lots of connections ([25]);

(l) She said that if she returned to Malaysia, her brother-in-law would look for her so he can get to her sister ([26]).

1. The Tribunal then made the following findings:
   1. I accept that the applicant's brother-in-law abused her sister, and that he has threatened her. However, overall, I do not accept that the applicant was harmed by her brother-in-law or that she will be harmed upon return to Malaysia. First the applicant's claims changed from her written claims before the Department. Whilst she said that she didn't know [sic] Second, the applicant was inconsistent as she claimed he smashed her fence then she claimed he smashed her car. Despite her stating that the brother-in-law intended to do harm to her and had smashed her fence and car she did not go to the police.
   2. The applicant's sister is divorced from her husband and lives on an island in Indonesia. I do not think after all the years the applicant has been absent from Malaysia that her brother I law [sic] would target her because of his ex-wife, or anything associated with it. I find she does not face a real chance of serious harm from her ex-brother-in-law on return to Malaysia. I am therefore not satisfied that the applicant has a well-founded fear of persecution as required by the s.5J of the Act and therefore I find the applicant is not a refugee within the meaning of s.5H.
2. The Tribunal said that "for the reasons above" it found that the applicant does not face a real chance of persecution for any reason on return to Malaysia ([29]).
3. The Tribunal then considered the complementary protection criteria. The Tribunal said that, nor did it accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from the Malaysian authorities, her ex-brother-in-law or anyone associated with them. The Tribunal was therefore not satisfied that the applicant meets the provisions in s 36(2)(aa) of the Act ([30]).
4. The Tribunal accordingly affirmed the decision of the delegate not to grant the applicant a protection visa ([32]).

1. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 5 December 2022. The applicant filed an affidavit sworn on 3 December 2022. The affidavit annexes the Tribunal's decision.
2. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which she sought to rely, and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it sought to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. Pursuant to those orders, the applicant filed an amended application on 15 February 2025. On 21 February 2025, the applicant's solicitor swore and filed an affidavit annexing the transcript of the Tribunal's hearing and a copy of the "DFAT Country Information Report Malaysia" dated 24 June 2024 ("2024 DFAT Report"). The first respondent objected to the 2024 DFAT Report being admitted into evidence as it postdates the Tribunal's decision. The Court ruled in favour of that objection. The applicant's solicitor was given leave to file an affidavit annexing the DFAT Report which applied at the time of the Tribunal's decision. The applicant's solicitor filed an affidavit on 19 March 2025 annexing a copy of the DFAT Country Report for Malaysia dated 29 June 2021 ("2021 DFAT Report").
4. The material before the Court was the amended application, the applicant's affidavit, the applicant's solicitor's affidavit (filed on 21 February 2025) (excluding the 2024 DFAT Report), the applicant's solicitor's affidavit (filed on 19 March 2025) annexing the 2021 DFAT Report, the applicant's written submissions, the first respondent's written submissions and the Court Book. On 4 March 2025, the first respondent filed an affidavit of Caitlin White (affirmed on 3 March 2025) annexing documents that were said to have been inadvertently excluded from the Court Book. Those documents were the applicant's identity documents and Parts B and C to the applicant's visa application provided to the Tribunal (as noted above) on 22 August 2022, being the applicant's revised claims to protection. The attachments referred to in Part C are the two police reports at CB 69-73. The Court will take these documents to form part of the Court Book. The Court Book was made an exhibit in the proceedings.

1. For the applicant to be successful the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. The grounds of review set out in the amended application are (without alteration but excluding the paragraphs that were struck through and excluding underlining and bold type):

Ground 1:

The second respondent's decision could realistically have been different if the error had not been made and accordingly the error was material to its decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]- [46].

Particulars:

The tribunal made error in understanding the evidence before it:

1. The Applicant claimed that the two police reports before the Tribunal dated 2019 were obtained from her sister who later chose to hide from the abusive husband in an island in Indonesia in 2020. The incidents in the police reports happened after the applicant arrived in Australia, not before.

2. The Applicant clarified in the hearing that the brother-in-law (her sister's husband) smashed both of her car and the fence of her rented home, and that she has one eldest sister and two younger sisters, and that the brother-in-law's own father and one of his brothers were both police officers. The Tribunal thought there were inconsistencies leading to a decision unfavourable to the Applicant.

3. The Applicant's elder sister has NOT yet finalised the divorce with her husband but the Tribunal finds the sister IS divorced from her husband. (emphasis added)

Ground 2:

The second Respondent made one or more jurisdictional errors:

Particulars:

1. At Audio Transcript [40] through an interpreter, the Applicant stated that: "After my brother-in-law married my sister he started to use violence towards my sister until my sister could not handle this and my sister need to hide herself, and my sister wanted to convert - or to leave the Islam and to come back to be a Christian but it is very difficult. So if I return to Malaysia I will face the same kind of difficulty and threats from my brother-in-law and furthermore, I have a child with me now."

2. This statement was made pursuant to Section 5(J) of the Migration Act 1958 (Cth).

3. The Tribunal however made the following findings at Decision Record [28]: "... I do not think after all the years the applicant has been absent from Malaysia that her brother I law (sic.) would target her because of his ex-wife, or anything associated with it. I find she does not face a real chance of serious harm from her ex-brother-in-law on return to Malaysia. I am therefore not satisfied that the applicant has a well-founded fear of persecution as required by s.5J of the Act and ..."

4. The relevant findings were not based on the evidence.

5. The relevant findings were not based on personal or specialized knowledge.

6. The relevant findings were not based on common knowledge.

7. Further or in the alternative, the relevant findings were in fact incorrect.

8. In the further alternative, the relevant findings were affected with legal unreasonableness and/or irrationality: it was legally unreasonable and/or irrational for the Tribunal to choose to treat at [28] the question of how the brother-in-law would not target either the Applicant's sister or the Applicant herself, but then make the relevant findings in the absence of evidence, personal or specialized knowledge, or common knowledge, to support that findings.

Ground 3:

The second Respondent made one or more jurisdictional errors, by not inviting comments from the Applicant on the relevant findings:

Particulars:

1. By not disclosing to the Applicant that the finding was an issue arising on the review, the Tribunal failed to comply with s360(1) of the Migration Act 1958 (Cth), thus constructively failing to exercise its jurisdiction.

2. The Tribunal was required from the above legislation to ensure that the Applicant understood the relevance of the information to the review which the Tribunal was required to disclose to the the Applicant, and to invite her to comment on it.

3. The Tribunal failed to comply with s359A(1) of the Act.

4. As such, the Tribunal denied the Applicant procedural fairness, which constituted a jurisdictional error.

Ground 4:

The second Respondent failed to take relevant facts into account in the exercise of its power.

Particulars:

1. The Tribunal did not take the Applicant's current family circumstances in Australia into account which was one of the concerns the Applicant had in fear of being removed back to Malaysia.
2. The Applicant married with a Malaysian citizen in Australia in 2020 and gave birth to a child in Australia in 2021. The family is well settled in rural Queensland and the child is enrolled in a local kindergarten.

1. In ground one, the applicant contends that the Tribunal made an error in understanding the evidence before it. The applicant identifies in the particulars three errors said to have been made by the Tribunal in its understanding of the evidence.
2. The question is to what extent a factual error by the Tribunal may constitute a jurisdictional error. It is well understood that mere factual error by the Tribunal will not constitute a jurisdictional error unless it relates to a manifestation of some error of law, substantive or procedural (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [53]). The Full Court said in CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) FCR 493 at [31], whilst not attempting an exhaustive statement of what more would need to be shown for a decision materially premised upon an error of fact to beyond the jurisdictional authority of the decision maker, typical circumstances would arise where the factual error gave rise to the consideration of irrelevant material, involved unreasonableness, irrationality or illogicality, revealed an impermissible denial of procedural fairness or otherwise reflected a failure to discharge the relevant statutory function. The Full Court went on to say that additionally it would need to be shown that the error was material (at [31]) and that at the very least the error of fact must be one that is a critical step in making the decision under review (at [43]).
3. Here, the issue before the Tribunal was whether it was satisfied that it had substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Malaysia there is a real risk she will suffer significant harm as defined in s 36(2A) of the Act. That required the Tribunal to engage in a predictive exercise involving speculation as to circumstances in the future based on material in the present, and what has happened to the applicant in the past (Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [33]).
4. In assessing whether any factual error by the Tribunal constituted a material jurisdictional error, the Court has had regard to the above principles in the context of the issue before the Tribunal.

1. In particular (i), the applicant says that "the applicant claimed that the two police reports before the Tribunal dated 2019 were obtained from her sister who later chose to hide from the abusive husband in an island in Indonesia in 2020. The applicant submits that the incidents in the police reports happened after the applicant arrived in Australia, not before".
2. The Tribunal had before it two police reports that were provided to the Tribunal by the applicant on 22 August 2022 in support of her revised protection claims. The reports are at CB 70-73. They were translated into English, according to the translator's stamp, on 11 August 2022. They are reports made by the applicant's sister regarding incidents involving the sister's husband (the applicant's brother-in-law) which the sister said in the reports occurred on 22 August 2019. The alleged incidents occurred after the applicant arrived in Australia (for the last time) on 27 June 2016.
3. The Tribunal referred to the reports at [19] when identifying the documents that it had before it and at [24] when the Tribunal referred to the applicant's answers as to why she (the applicant) did not go to the police about the brother-in-law's conduct regarding him allegedly smashing the applicant's fence and car. At [24], the Tribunal said:
   1. I said I didn't understand why she didn't go to the police, and she said her brother in laws father is a policeman and he told her sister to just be patient with her husband. But I said your sister has gone to the police as the Tribunal has two police reports. She said he went to jail for drugs, and she moved far away.
4. The Tribunal did not state that the reports were made in 2019. The Tribunal's focus was on understanding the basis of the applicant's changed claim to protection which was that she feared that if she returned to Malaysia she will be harmed by her brother-in-law. In that context, the Tribunal asked the applicant if she had reported the brother-in-law's conduct to the police. The applicant's explanation was that she did not do so because her brother-in-law's father, who is a policeman, advised her sister to be patient. It was in response to that statement that the Tribunal observed that the applicant's sister had in fact made a report to the police.
5. No factual error is apparent in the Tribunal's reference to the police reports that could be considered a material factual error.

Particular (ii): smashing the fence and car; siblings; relatives of the brother-in-law who are police officers

1. In particular (ii), the applicant contends that "she clarified in the hearing that the brother-in-law (her sister's husband) smashed both of her car and the fence of her rented home, and that she has one eldest sister and two younger sisters, and that the brother-in-law's own father and one of his brothers were both police officers. The Tribunal thought there were inconsistencies leading to a decision unfavourable to the Applicant".
2. In [22] of its Decision, the Tribunal summarised the applicant's evidence about the brother-in-law smashing the fence of her rental [house] and smashing her car. The Tribunal records that the applicant first said that he damaged the fence and then said that he smashed her car. The Tribunal sought clarification: the Member put to the applicant that she had said that the brother-in-law smashed the fence not the car to which the applicant said that he smashed both.
3. That summary is consistent with the evidence given by the applicant to the Tribunal. The applicant put the hearing transcript into evidence (Annexure ZT-1 to the affidavit of Mr Tiantao Zhang affirmed on 21 February 2025). The applicant told the Tribunal that her brother-in-law came to her rental house and damaged the fence (Transcript p-10 [10]-[15]). The Tribunal asked the applicant why he did that (Transcript p-10 [30]) to which the applicant gave an answer concluding by saying that the brother-in-law came to smash the car (Transcript p-11 [5]). The Tribunal asked the applicant whether he smashed the car or the fence, referring to the applicant having told the Tribunal that he smashed the fence (Transcript p-11 [10]), to which the applicant said that he initially smashed the car then smashed or hit the fence.
4. The Tribunal found that it did not accept that the applicant was harmed by her brother-in-law ([27]). That finding was based upon (inter alia) its conclusion that the applicant's evidence was inconsistent as she claimed he smashed her fence and then she claimed he smashed her car ([27]). Having regard to the passages of the Transcript referred to above, the Court is not satisfied that the Tribunal's conclusion demonstrates any material misunderstanding of the applicant's evidence. It was open to the Tribunal to conclude that the applicant's evidence about the claim that the brother-in-law had smashed the fence and the car was inconsistent.
5. As to the contention in particular (ii) that the applicant has one older sister and two younger sisters, and that the brother-in-law's father and one of his brothers were both police officers, it is not clear what the applicant submission is in respect of the contention that the Tribunal misunderstood the applicant's evidence.
6. At the commencement of the hearing, the applicant told the Tribunal that she has two sisters who are in Singapore working with their husbands (Transcript p-5 [10]-[15]). Towards the end of the hearing, the applicant told the Tribunal that she has three sisters (Transcript p-14 [35]-[40]). The applicant told the Tribunal that the sister who had been beaten by her husband is living on one of the islands in Indonesia. The Tribunal's reasons at [28] record the applicant's evidence that the sister in question lives on an island in Indonesia. The Tribunal's reasons do not refer to the other two sisters. The Court infers that this is because the Tribunal considered it was not evidence relevant to the issue on review.
7. There was some evidence before the Tribunal about relatives of the brother-in-law who were police officers. It arose in two ways. First, the applicant told the Tribunal that she did not go to the police to report the brother-in-law to the police because the father of the brother-in-law is a policeman, and he had advised the sister to be patient (Transcript p-14 [10]). Secondly, the Tribunal asked the applicant why she could not relocate to somewhere else in Malaysia. The applicant told the Tribunal that the brother-in-law's brother is a policeman and that the father or father-in-law of the brother-in-law is a policeman who was stationed in Saba, and they have lots of connections in Kuala Lumpur (Transcript p-15 [35]).
8. The Tribunal referred to the applicant's evidence that the brother-in-law's father is a policeman and told her sister to be patient with her husband in response to the Tribunal's question as to why the applicant did not go to the police ([24]). That reflects the evidence the applicant gave at Transcript p-14 [10]). The Tribunal also referred to the applicant's evidence that she did not move somewhere else in Malaysia because the brother-in-law has a brother who is a police officer ([25]).
9. The Court does not agree with the contention that the Tribunal misunderstood the evidence about the brother-in-law's relatives who were police officers. The Tribunal did not refer to the applicant's evidence that the father or father-in-law of the brother-in-law is a policeman stationed in Saba. The Court infers that this is because the Tribunal considered, so far as the evidence was relevant to relocation, it was not necessary to do so as it had concluded that it was not satisfied that the brother-in-law had harmed the applicant and that there were no grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia there was a real risk the applicant will suffer significant harm.

1. In particular (iii), the applicant states that "the Applicant's elder sister has not yet finalised the divorce with her husband but that the Tribunal erred in finding that the sister is divorced".
2. The first respondent properly concedes that the Tribunal's finding at [28] that the applicant's sister divorced her husband is a factual error (first respondent's submissions ("FRS") [28]). The applicant's evidence to the Tribunal was that the sister had sought a divorce but that the divorce was not yet finalised (Transcript p-15 [5]-[20]).
3. The first respondent submits that the factual error is not material (FRS [28]-[29] referring to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 ("LPDT")).
4. Although the threshold of materiality is not demanding or onerous (LPDT at [14]), the Court is satisfied that the factual error, if indeed it is a jurisdictional error, was not material to the Tribunal's decision as the decision could not have realistically been different had that factual error not been made. The Tribunal was concerned with whether it was satisfied that there were grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia there was a real risk the applicant would suffer significant harm. The Tribunal correctly identified in its summary of the evidence at the hearing that the applicant's sister had asked her husband for a divorce and her husband did not want to give her a divorce (at [25]) and in its findings that the applicant's brother-in-law and her sister were not living together because the sister was now living on an island in Indonesia (at [28]). The applicant's evidence to the Tribunal was that her sister and her husband had been separated since 2020 (Transcript p-16 [20]).
5. The Tribunal concluded (at [28]) that it did not think that after all the years the applicant had been absent from Malaysia that her brother-in-law would target her because of his ex-wife, "or anything associated with it". The Tribunal was incorrect in referring to the applicant's sister as the brother-in-law's "ex-wife". The point though is, as already stated, the Tribunal's assessment of risk was made on the basis that the sister and her husband were no longer living together because the sister was living separately from him on an island in Indonesia.
6. No jurisdictional error is established on ground one.

Ground two: failure to consider country information

1. In ground two, the applicant contends that the Tribunal's findings at [28] were not based on the evidence, were not based on personal or specialised knowledge, were not based on common knowledge, were in fact incorrect and were further or alternatively legally unreasonable or irrational.
2. At [28], the Tribunal said:
   1. The applicant's sister is divorced from her husband and lives on an island in Indonesia. I do not think after all the years the applicant has been absent from Malaysia that her brother I law [sic] would target her because of his ex-wife, or anything associated with it. I find she does not face a real chance of serious harm from her ex-brother-in-law on return to Malaysia. I am therefore not satisfied that the applicant has a well-founded fear of persecution as required by the s.5J of the Act and therefore I find the applicant is not a refugee within the meaning of s.5H.
3. The Court considers that the Tribunal's finding was clearly based upon its assessment of the applicant's own evidence at the hearing about her brother-in-law's conduct so far as it concerned her. The Tribunal considered and weighed that evidence in concluding that it was not satisfied that the applicant was harmed by the brother-in-law or would be harmed by him or anyone associated with the brother-in-law were she to return to Malaysia. In engaging in the predictive exercise, the Tribunal properly had regard to the applicant's evidence that the brother-in-law had harmed her prior to her leaving Malaysia; the time that the applicant had been absent from Malaysia; and that the applicant's sister was no longer living with the brother-in-law and was living on an island in Indonesia. The Tribunal's finding was open to it on the evidence before it and was neither illogical nor irrational.
4. Nevertheless, the applicant's written submissions developed the submission that the Tribunal had not referred to relevant country information in making its finding that the applicant had not been harmed by the brother-in-law (applicant's submissions ("AS") [26]-[27] albeit it referring to the 2024 DFAT report rather than the 2021 DFAT report). In oral submissions, the applicant's solicitor referred the Court to several passages in the 2021 DFAT report with respect to domestic violence, police response to domestic violence and the difficulties faced by women in reporting domestic violence to the police (paragraphs 3.127, 3.128 and 3.133 under the heading 'Violence Against Women). The applicant's submission was that this country information was relevant to the Tribunal's findings as to why the applicant had not reported the brother-in-law's conduct towards her to the police and that had the Tribunal referred to this information it might have informed the Tribunal's reasoning as to why the applicant did not go to the police and so why there was no corroborating evidence of the conduct complained of.
5. As to the applicant's evidence, the Tribunal said:
   1. I said I didn't understand why she didn't go to the police, and she said her brother in laws father is a policeman and he told her sister to just be patient with her husband. But I said your sister has gone to the police as the Tribunal has two police reports. She said he went to jail for drugs, and she moved far away.
6. In its findings, the Tribunal said:
   1. I accept that the applicant's brother-in-law abused her sister, and that he has threatened her. However, overall, I do not accept that the applicant was harmed by her brother-in-law or that she will be harmed upon return to Malaysia. First the applicant's claims changed from her written claims before the Department. Whilst she said that she didn't know [sic] Second, the applicant was inconsistent as she claimed he smashed her fence then she claimed he smashed her car. Despite her stating that the brother-in-law intended to do harm to her and had smashed her fence and car she did not go to the police.
7. The Court considers that the missing words in the fifth line in [27] were intended to refer to the applicant's alleged lack of knowledge about the claims that had been made in her application for a protection visa.
8. There was no dispute that by reason of s 499(2A) of the Act and Ministerial Direction No. 84, country information is a mandatory consideration for the Tribunal in the conduct of its review, where relevant.
9. At [14], the Tribunal identified under the heading 'Mandatory considerations' the requirement that the Tribunal take account of country information prepared by the Department of Foreign Affairs and Trade for protection status determination purposes. The Tribunal did not in the deliberative part of its reasons refer to the country information. The first respondent accepted that in DQD16 v Minister for Immigration and Border Protection [2021] FCA 1586 ("DQD16") (at [67]-[68] per Mortimer J) a reference such as this - which the Court observes appears to be a standard paragraph in Tribunal decisions on protection visas - was not necessarily sufficient to infer that the Tribunal had considered the relevant DFAT report. The first respondent submitted that DQD16 is distinguishable on the facts because there the Tribunal had accepted some of the factual bases for the applicant's claims and so it was relevant for the Tribunal to go on to consider the relevant country information and so, the inference was not available in the circumstances of that case. Here, the first respondent submits, the Tribunal rejected the applicant's claims to harm in their entirety and that accordingly the country information was not relevant.
10. The Court disagrees. The Court considers that it is implicit in the Tribunal's findings that it regarded the fact that the applicant did not report the brother-in-law's conduct to the police, along with what the Tribunal considered to be inconsistency in her evidence about the nature of the harm, as material to its assessment of whether the conduct in fact occurred, that is, to its antecedent finding in [27] that the brother-in-law had not harmed her. The country information was relevant to an assessment of why the applicant might not have reported the brother-in-law's alleged conduct to the police. The decision of the Tribunal could have realistically been different had that country information been considered by the Tribunal.
11. Jurisdictional error is established on ground two.

1. In ground three, the applicant contends that she was denied procedural fairness because the Tribunal failed to comply with s 360(1) and s 359A(1) of the Act. At the hearing, the applicant's solicitor confirmed that it was intended to refer to s 425(1) and s 424A(1) of the Act respectively given that the decision under review before the Tribunal was a Part 7-reviewable decision.
2. With respect to s 425(1) of the Act, the applicant's contention is that the Tribunal did not disclose to the applicant an issue arising on review. That issue was not particularised or identified in the application or in oral submissions.
3. This ground of review must fail. The applicant was invited to attend a hearing to give evidence and present arguments. The issues on review were those identified in the delegate's decision as the basis for the applicant's claim to protection. The applicant abandoned those claims and presented new claims to the Tribunal. The Tribunal complied with its obligations in s 425(1) of the Act.
4. The Court agrees with the first respondent's submission (FRS [39]) that the Tribunal's obligations under s 424A(1) of the Act were not enlivened. The Tribunal relied upon information given to it by the applicant in support of her revised claims to protection prior to the hearing and the evidence the applicant gave at the hearing. Pursuant to s 424A(3)(b), both of those categories of information and are not 'information' for the purposes of s 424A(1). Otherwise, as the first respondent correctly submits (FRS [39]), the Tribunal's obligations do not extend to its "subjective appraisals, though processes or determinations" (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609) or require it to "provide a running commentary upon what it thinks about the evidence that is given" (SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285). In any event, the Tribunal's questioning (apparent from the Transcript) put the applicant on notice of the Tribunal's concerns with her evidence and the relevance of those concerns to the issues.

Ground four: failure to consider relevant facts

1. In ground four, the applicant contends that the Tribunal erred in not taking into consideration the applicant's current circumstances which, it is contended, was one of the concerns the applicant had in her fear of being removed back to Malaysia. The applicant told the Tribunal that she had married a Malaysian citizen in Australia in 2020 and gave birth to a child in Australia in 2021 (Transcript p-6 [30]-[40]). The application to this Court also particularised that the family is well settled in rural Queensland and the child is enrolled in a local kindergarten. The applicant's representative conceded at the hearing before the Court that the enrolment of the child in kindergarten occurred after the Tribunal's hearing and so could not have been a fact, relevant or otherwise, which the Tribunal could have taken into consideration. There was no evidence in the Tribunal's reasons or in the hearing transcript that "the family is well settled in rural Queensland."
2. In any event, the Court finds that the applicant's family circumstances in Australia were not relevant matters to the Tribunal's assessment of the applicant's claim to risk of harm from her brother-in-law for the purposes of either s 36(a) of s 36(aa) of the Act.
3. No jurisdictional error is established on ground four.

1. Accordingly, for the reasons given above with respect to ground two of the amended application, the amended application is allowed.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.