FDC20 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1110

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. A delegate of the first respondent (the minister) refused Ms FDC20's application for a Protection (subclass 866) (class XA) visa. Ms FDC20 - a citizen of Malaysia - sought review of that decision in the Administrative Appeals Tribunal. She was unsuccessful. In her application to this Court for judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth), Ms FDC20 contended the Tribunal made several jurisdictional errors. At the hearing before me, she did not press some of those grounds of review but focused on one concern in particular: she said the Tribunal did not properly engage with her claim that she would not enjoy religious freedom if she returned to Malaysia because she was raised as a Buddhist but converted to the Islamic faith in order to marry a Muslim man that she subsequently divorced. The claim with respect to religious freedom was not included in Ms FDC20's initial application for a protection visa; it appears she raised it for the first time before the Tribunal. (The applicant's original claim referred to her ongoing fear of her ex-husband and the possibility of being subject to discrimination in a Muslim country on account of her gender and her Chinese ethnicity.) The Tribunal found Ms FDC20 had not practised any religion while she has lived in Australia. The Tribunal said it was unlikely she would practise any religion if she returned to Malaysia. In those circumstances, the Tribunal found Ms FDC20 was unable to satisfy the criteria in s 36 of the Act that govern the grant of a protection visa.
2. Ms FDC20 says the Tribunal's handling of her religious freedom claim in particular amounts to a material jurisdictional error. The minister disagrees.

1. Ms FDC20 is a citizen of Malaysia. She was raised as a Buddhist, and she is of Chinese ethnicity. In 1997, she married a Muslim man. She converted to Islam for that purpose. The couple had two children but it appears the relationship was unhappy. Ms FDC20 claimed in her application for a protection visa (reproduced in exhibit one, the court book, at pp 37ff) that her former husband was a violent drug addict who would regularly disappear before returning to harass the family. She said he was often the victim of assaults as a result of failing to repay loan payments and he borrowed and stole money that she felt obliged to repay. She also recalled his threats and bad behaviour. She said she feared for her safety. Ms FDC20 filed for divorce from her husband in 2006. It appears that divorce was granted in 2008. Ms FDC20 lived separately from her former husband until 2014 - although she said she occasionally had contact with him, and that he continued to harass her.
2. In 2014, Ms FDC20 travelled to Australia on a visitors' visa. She thereafter obtained a student visa that entitled her to remain until the end of 2016. Just before the student visa was due to expire, she applied for a protection visa. While that visa was refused by a delegate of the minister on 3 May 2017, Ms FDC20 has remained in Australia on a bridging visa.
3. The delegate's decision is reproduced at pp 56ff of the court book. In her reasons for decision, the delegate referred at length to the relevant country information report published by the Department of Foreign Affairs and Trade. The delegate also referred to other credible international reporting on the status and treatment of women. The delegate also referred to material discussing law enforcement and human rights generally in Malaysia, and to material dealing with discrimination against persons of Chinese ethnicity in Malaysia. After considering that material and the (limited) evidence provided by the applicant, the delegate concluded (at p 76):

Having regard to the above country information and lack of evidence, I am satisfied that the applicant does not have a well-founded fear of persecution in Malaysia, either on account of being a member of a particular social group, namely "women who are victims of domestic violence in Malaysia" or on the basis of her Chinese ethnicity.

1. The delegate did not deal with any claim about a potential denial of religious freedom because the applicant did not make any claim to that effect at the time. That was to come later.

1. The applicant commenced review proceedings in the Tribunal. She was invited to attend a hearing on 4 November 2020. She provided some additional material in support of her claim in advance of the listed event, including police records that relate to her husband, and a copy of an 'Islamic Divorce Declaration' filed in divorce proceedings in a Malaysian court in 2006. That document is in the form of a statement of claims petitioning for a divorce. It was prepared by the applicant. The statement of claims recorded the history of the marriage and its demise. Copies of the documents were included in the court book at pp 108 to127.
2. I was not provided with a transcript of the hearing, but the Tribunal apparently questioned the applicant (who was unrepresented) at some length about aspects of her claims. The applicant raised a claim of potential religious persecution for the first time at that point.
3. The Tribunal issued a decision with a statement of reasons on 10 November 2020. The decision is reproduced in the court book at pp 149ff. The Tribunal affirmed the delegate's decision.
4. The gravamen of the Tribunal's decision is found in [20] of its reasons for decision. The Tribunal explained:

During the hearing, the Tribunal discussed with the applicant her background, family, education, employment, where she lived in Malaysia, her relationship with her first husband, her overseas travel, her reasons for leaving Malaysia and why she fears returning to Malaysia. The Tribunal found aspects of her evidence to be contradictory, implausible and unconvincing. There were inconsistencies between her evidence to the Department and her evidence to the Tribunal. She was unable to provide a consistent and coherent account of her relationship with her first husband. She made new claims during the hearing. Her conduct in Malaysia and in Australia was not consistent with her claims. The Tribunal formed the view that she was not a credible or reliable witness ...

1. In the paragraphs that followed, the Tribunal evaluated the evidence which had been provided and made factual findings and observations which supported its assessment of the applicant's credit. For example, after recording her account of the ex-husband's behaviour and the extent to which the applicant was held liable for his debts to drug-dealers, the Tribunal observed (at [24]):

During the hearing, the Tribunal asked the applicant many questions about her relationship with her first husband and the problems she had in Malaysia. She made no mention of money lenders harassing her and forcing her to repay her first husband's debts. The Tribunal raised this as an issue with her and noted that her failure to mention this raised concerns about the credibility of these claims. She responded that she had to work and repay the money her first husband had borrowed. She stated that even after she came to Australia, she worked and repaid money she had borrowed from friends.

1. The Tribunal was not satisfied with that response. It noted (at [25]) the applicant had a record of holidaying overseas with her mother between 2010 and 2014. The Tribunal held that sort of expenditure was inconsistent with the applicant's account of her financial exhaustion at the hands of her ex-husband. The Tribunal also noted troubling inconsistencies in the applicant's various accounts of the date of her divorce and the number of times she approached police to report alleged abuse at the hands of her ex-husband. There were also inconsistencies identified in her account of incidents involving her husband and the extent of her involvement with her children. The Tribunal found at [32]:

The applicant's evidence to the Tribunal was internally inconsistent, not just in relation to dates, but also in relation to the sequence of events. She made no mention of her first husband using a knife to threaten her and stop her from leaving. She made no mention of him raping her. Her claims in her visa application that she moved many times to avoid her first husband, but he would find her, are not consistent with her evidence to the Tribunal.

1. The Tribunal also explored evidence that Ms FDC20 had to move regularly to avoid her ex-husband after they separated, even though other evidence suggested she stayed for relatively long periods at several addresses. The Tribunal observed at [34]:

The Tribunal raised these issues with the applicant and its concerns about the credibility of her claims. She responded that there are some things she does not want to mention again. She thought they were written clearly. When she visited her children, she would stay for one or two days. Although she had applied for a divorce, she thought that if she "did not do that voluntarily it was a kind of rape. She had to work. If she moved, he would come to her workplace to wait for her. Sometimes she had to borrow money from friends to ask him to go away. This response does not address the issues raised with her or alleviate the Tribunal's concerns.

1. After comparing aspects of the applicant's account with the information recorded in the divorce declaration document, the Tribunal referred to its concerns "that the applicant has embellished some of her claims and fabricated others": at [38].
2. The Tribunal noted the applicant raised a new claim at the hearing in which she said she feared that her first husband would find her and harm her if she returned to Malaysia. The Tribunal was obviously sceptical of the applicant raising this claim at the last minute: see [41]. But the Tribunal was satisfied in any event that the likelihood of harm was low: at [42].
3. The Tribunal considered the claim that Chinese women were at risk of domestic violence in Muslim countries. The Tribunal found there was an insufficiency of evidence from the applicant to support that claim: at [43].
4. In paragraphs [44]-[50], the Tribunal addressed the other new claim which emerged at the hearing, namely whether the applicant would be denied religious freedom if she returned to Malaysia. The Tribunal noted the applicant had previously been a Buddhist but had converted to Islam when she married the man who is now her ex-husband; she confirmed in her evidence that she had not practised Buddhism (nor was she a practising Muslim) since she had lived in Australia. The Tribunal found (at [47]) "[s]he did not practise any religion and did not intend doing so if she returned to Malaysia". The Tribunal then concluded (at [50]):

The evidence before the Tribunal leads it to the conclusion that the applicant's family are Buddhist and she considered herself to be Buddhist although she has not practised Buddhism. Her "conversion" to Islam was in name only for the purpose of the marriage ceremony, she has not practised Islam in Malaysia and does not consider herself to be a Muslim. She has not practised any religion in Australia, where she had the freedom to practise any religion she wanted to, and she has no intention of practising any religion if she returns to Malaysia. In these circumstances, the Tribunal is not satisfied that there is a real chance or a real risk that she will suffer persecution on the grounds of religion if she returns to Malaysia now or in the reasonably foreseeable future.

1. The Tribunal was also dissatisfied with the applicant's explanation for her delay in travelling on a visitor visa in 2014 if things were as bad in Malaysia as she had claimed: see [51]. The Tribunal was also troubled by the fact the applicant waited until very late to apply for a protection visa: at [56]. The Tribunal records the applicant saying she sought a protection visa in Australia after visiting other countries because "she wished to stay in Australia and did not want to go back (to Malaysia)": at [57]. The Tribunal found (at [58]):

The applicant's evidence leads the Tribunal to the conclusion that she travelled to Australia for the purpose of sightseeing, decided she liked Australia and wanted to live here rather than return to Malaysia. Her evidence leads the Tribunal to the conclusion that she applied for a Protection visa so that she could obtain a permanent visa to live in Australia and not because she is in need of protection.

1. The Tribunal thereafter made a series of findings, including formal findings that:
   • she was not at risk of harm from her husband if she returned to Malaysia (at [73]); and
   • she was not the subject of discrimination in Malaysia on account of her Chinese ethnicity (at [74]).
2. Importantly for present purposes, the Tribunal also made and explained a formal finding about the applicant's religious freedom if she returned to Malaysia. The Tribunal explained at [75]-[76]:

75. The Tribunal accepts that the applicant's family are Buddhist and she considers herself to be Buddhist although she has not practised Buddhism. The Tribunal accepts that she had to convert to Islam to marry her first husband in a religious ceremony and that she "converted" to Islam for the purpose of the marriage ceremony. The Tribunal accepts that she did not change her name to a Muslim name, did not practise Islam in Malaysia and does not consider herself to be a Muslim. The Tribunal accepts that she has not practised any religion in Australia and she has no intention of practising any religion if she returns to Malaysia. Therefore, the Tribunal is not satisfied that she will choose to practise a religion if she returns to Malaysia now or in the reasonably foreseeable future.

76. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will suffer serious harm or significant harm on the grounds of religion if she returns to Malaysia now or in the reasonably foreseeable future.

1. For good measure, the Tribunal added at [78]:

The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to Malaysia now or in the reasonably foreseeable future.

1. Given those findings, the Tribunal concluded Australia did not owe the applicant protection obligations.

1. The applicant sought judicial review of the Tribunal's decision. She said she drafted the grounds of review herself, albeit that a friend translated them into English. The grounds contend:

There exist jurisdictional errors and unfairness

1. Tribunal did not fully consider all my situations before reaching its decision.

2. Tribunal only considered partial evidence and relied on partial evidence to make its decision.

3. Tribunal considered irrelevant facts to make its decision.

4. Some questions during the hearing were not clearly understandable.

1. The minister's outline of submissions treated the assertion of jurisdictional error as a discrete ground which was so general as to be objectionable. I do not read the grounds in that way. I assume the applicant's numbered paragraphs were examples of the jurisdictional errors and unfairness referred to at first instance. I will approach the grounds on that basis.
2. The applicant was unrepresented at the hearing, although she was assisted by an interpreter. I explained the concept of jurisdictional error to her at the outset of the proceedings as I explained the scope of the review. I emphasised the Court was focused on identifying jurisdictional errors; I made clear the Court was not able to revisit the merits of whatever the Tribunal decided. I stood the matter down while the interpreter re-read to the applicant the minister's submissions and other key documents. I then heard from the minister before reverting to the applicant. I proposed discussing the grounds in the application before asking the applicant to describe any criticisms of the Tribunal's decision or decision-making process in her own words.
3. I asked the applicant what she meant when she contended the Tribunal failed to "fully consider all my situations". She criticised what she obviously took to be the Tribunal's fixation on the question of whether she feared or had experienced discrimination as a Chinese Malay woman. She said the Tribunal failed to adequately address the loss of religious freedom she would experience as a divorced Muslim woman if she returned to Malaysia. She insisted the loss of religious freedom was her real concern.
4. At paragraph [12] of its reasons, the Tribunal sets out a range of claims made by the applicant in her material. It does not there mention her claim about a loss of religious freedom because that claim was only made for the first time at the hearing. The Tribunal did engage with that fresh claim at paragraphs [44]-[50]. The applicant did not point to any evidence the Tribunal overlooked as it did so. The Tribunal assessed the evidence and reached a conclusion that it recorded at [75]-[76]. The applicant has not established the Tribunal failed to "consider all my situations" to the extent it was required to do so. This ground must fail.
5. The applicant also contends the Tribunal relied on "partial evidence" to reach its conclusion. Subject to what I will say below about the relevant country information reports, I would reach the same conclusion about this ground of review as I reached in relation to the first ground: the applicant failed to identify what was missing from the Tribunal's reasoning. The Tribunal does address religious freedom in its reasons.
6. The applicant next contends the Tribunal relied on irrelevant matters. The applicant referred to two examples of irrelevant considerations. First, the applicant says the Tribunal inappropriately relied on documents she had provided that referred to her ex-husband's imprisonment for drug abuse. She said she provided the information to the Tribunal to assist it to understand the character of the man. The Tribunal appears to have accepted the applicant's evidence about her ex-husband's criminal record and drug dependency: at [65]. The basis of the applicant's criticism of the Tribunal's reasoning is unclear: it considered the evidence she gave about his history but the Tribunal was not persuaded her ex-husband presented an ongoing risk of harm. There is nothing to this complaint. The second complaint relates to the Tribunal's findings at [25]. The Tribunal found the applicant's record of holidaying overseas with her mother was difficult to reconcile with her evidence that she was under financial pressure associated with having to pay her ex-husband's debts.
7. What is relevant must be assessed with reference to the question the Tribunal was tasked with resolving. That question is derived from the legislative provisions. In this case, the Tribunal was entitled to consider the applicant's evidence about the debt obligations she supposedly assumed because that evidence went to the timing and motivation of her travel to Australia. It was appropriate to consider that evidence because it reflected on her credit and because the claim that she was forced to pay her ex-husband's debts formed part of her claims that were outlined in her application for a visa. The conclusion the Tribunal reached on the strength of that material was not illogical. The applicant did not refer to any other irrelevant material which the Tribunal supposedly considered. There is no substance to this complaint.
8. I also asked the applicant about her contention that some of the questions the Tribunal asked were not understandable. Mr O'Connell, who appeared for the minister, noted there was no transcript of the Tribunal's hearing before the Court. He said the Tribunal did not make any comment in its reasons that suggested difficulties in communication. To the contrary: he cited two examples of exchanges recorded in the reasons for decision that tended to confirm the applicant was able to understand the questions put to her. At [40], the Tribunal notes it asked the applicant to explain why she worried her ex-husband might find and harm her when she had a history of living at the same address in Malaysia following her separation. The Tribunal recites the applicant's explanation. While the Tribunal was plainly unconvinced, there is no suggestion it felt the unsatisfactory response was caused by a misunderstanding. Similarly, at [52], the Tribunal notes asking the applicant about her husband's debts and whether she felt obliged to repay them. The Tribunal notes the applicant's responses; while it was dissatisfied, there is no indication the Tribunal thought the applicant's answers were affected by a misunderstanding of what was asked.
9. When I asked the applicant about this contention during submissions, she repeated her criticism that the Tribunal focused on other issues when the real basis of her claim was the loss of religious freedom. I infer she believes that focus was the product of the Tribunal misunderstanding what she was saying. As I have already explained, I am satisfied the Tribunal was alive to the religious freedom claim. The applicant was unable to identify any other evidence suggesting of misunderstanding. It follows this contention cannot be sustained.

1. I am satisfied the applicant did not identify any grounds in her application to the Court or in her oral submissions which revealed jurisdictional error. That is not the end of the matter. It is incumbent on the Court to consider whether the material before it suggests jurisdictional error that was not expressly identified by the parties. It is particularly important for the Court to be alive to jurisdictional errors that may be apparent on the material where the applicant is not legally represented.
2. The Tribunal noted the applicant's claim that she feared harm on the basis of religion included a claim that "she wanted the freedom to choose her religion in the future": at [44]. The Tribunal's conclusion that the applicant did not face any real or serious risk of harm on account of her religion turned on its finding at [75] that "she has not practised any religion in Australia and she has no intention of practising any religion if she returns to Malaysia".
3. The Tribunal's reasoning appears to proceed from a factual finding that the applicant was likely to live a secular life upon her return to Malaysia, so she was unlikely to run up against any restrictions that might apply to the practice of religion. The Tribunal assumed without explaining why Ms FDC20 would be free to live what amounted to a secular life in Malaysia when she had earlier converted to Islam. The Tribunal did not address whether Ms FDC20 might be regarded as an apostate or investigate whether apostasy might impact on the Tribunal's evaluation of risk.
4. I accept the applicant did not make any submissions to the Tribunal about apostasy. I asked Mr O'Connell about whether apostasy might be an issue. He argued the Tribunal should not be expected to chase down a claim that was not properly articulated. That reaction is understandable, especially in circumstances where the applicant only raised the claim for the first time at the hearing.
5. The Tribunal is not expected to have an encyclopaedic knowledge of circumstances that might suggest risk - but it does have access to country information reports prepared by the Department of Foreign Affairs and Trade which address issues of this nature. The Tribunal correctly observes at [11] of its reasons that it is obliged to have regard to country information reports to the extent they are relevant. Yet the Tribunal does not refer to a country information report in this case when making its findings about the risks the applicant might face on account of religion. The question is whether the Tribunal should have engaged with the relevant country information report - and whether it was legally unreasonable to make its finding about risks associated with religion without citing an evidentiary basis (whether from the country information report or some other source).
6. The Full Federal Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 considers the extent to which the Tribunal is required to engage with country information reports. In that case, Kenny, Griffiths and Mortimer JJ found at [73] that "attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction". This requirement was said to ensure the Tribunal's inquiry has a "close consideration of the situation of the particular applicant" to predict "what may happen if the applicant returns to the country of nationality": see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 at [73] per Gummow and Hayne JJ.
7. I am satisfied the Tribunal did turn its mind to the applicant's claims about potential harm associated with religion. It had a rational basis for finding the applicant was unlikely to practise her religion were she to return to Malaysia: the Tribunal found she only converted to Islam for the purposes of getting married and she had since divorced, and she had not practised any religion while living in Australia. But the finding she was not at any real risk were she to return if she did not practise any religion did not have a proper evidentiary basis. The Tribunal should have referred to the relevant country information report (or some other authoritative source of information about religious freedom in Malaysia) before making such a finding. This led to the Tribunal failing to consider the issue of apostasy in Ms FDC20's matter which it was obliged to consider in the situation of this particular applicant.
8. I am satisfied the decision is infected by a material jurisdictional error in the sense discussed by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 where "there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred": at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.

1. A writ of certiorari should be issued quashing the Tribunal's decision, and a writ of mandamus should be directed to the Administrative Review Tribunal (the Tribunal's successor) requiring that it remake the decision according to law.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.