FGD18 (by their litigation guardian DYA18) v Minister for Immigration and Citizenship [2025] FedCFamC2G 756

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. The applicant, FGD18, by her litigation guardian seeks judicial review of a decision of the second respondent (Tribunal) made on 17 September 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
2. The applicant's litigation guardian is her mother. The litigation guardian has been given the pseudonym DYA18. In a related proceeding in this Court, DYA18, her husband the second applicant, DYB18 and their eldest son the third applicant, DYC18, sought judicial review of a decision of the Tribunal made on 4 July 2018 where the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant them a Protection (Class XA) (Subclass 866) visa (related proceeding).
3. This application for judicial review was heard by this Court at the same time as an application for judicial review made by the applicant's younger brother, FGC18. In that proceeding, DYA18 was also appointed as the litigation guardian for FGC18. In that proceeding. FGC18 also seeks judicial review of the same decision of the Tribunal made 17 September 2018. The Tribunal affirmed a decision of the Minister to refuse to grant FGC18 a Protection (Class XA) (Subclass 866) visa.
4. Reference in these reasons to "CB" pages are references to the Court Book that was tendered and admitted as evidence at the hearing of this proceeding on 30 April 2025 and designated exhibit "R1".
5. The related proceeding was heard by this Court on 3 March 2025. The Court's judgment and reasons for judgment are to be delivered on the same day as these reasons. For the reasons given in the related proceeding and below, the application for judicial review in this proceeding is dismissed.

1. The applicant is a child born in Australia and who is entitled to Malaysian citizenship. The applicant's parents, DYA18 and DYB18, first arrived in Australia with their infant son, DYC18 in November 2012 on Electronic Travel Authority (ETA) Tourist Visitor visas. In June 2013, DYA18, DYB18 and DYC18 returned to Australia after a brief visit to Malaysia. They again entered Australia on ETA Tourist Visitor visas.
2. On 7 September 2014, DYA18, DYB18 and DYC18 applied for Protection visas. The application claimed protection on the basis that, should DYA18, DYB18 and DYC18 return to Malaysia, they will suffer discrimination and persecution due to the gender dysphoria of DYC18.
3. On 1 September 2015, the applicant in this proceeding, FGD18, was born in Australia.
4. On 24 May 2016, DYA18 applied for the visa on behalf of FGD18. The claim for protection advanced on her behalf was that she will be seriously or significantly harmed if her family returns to Malaysia because her brother, DYC18, does not conform to "traditional gender expectations" and is transgender or is perceived as transgender (CB 20, 35).
5. On 1 May 2017, a delegate of the Minister refused to grant the applicant the visa (CB 75-84). The delegate found that the claims for protection were not established (CB 83-4).
6. On 26 May 2017, on behalf of FGD18, DYA18 applied to the Tribunal to review the delegate's decision (CB 90-1). DYA18 also applied to the Tribunal on behalf of FGC18 to review the delegate's decision refusing his application for a Protection visa.
7. On 10 April 2018, the Tribunal informed the authorised representative acting for DYA18, DYB18 and DYC18, that the applications for review filed on behalf of FGD18 and FGC18 would be heard and determined by the same Tribunal member and at the same time as the application for review filed by DYA18, DYB18 and DYC18 (CB 110-1).
8. A hearing of all three applications for review took place before the Tribunal on 8 May 2018 (CB 143). The applicant was represented at that hearing by her mother, DYA18, assisted by a Malay interpreter and her authorised representative.
9. On 4 July 2018, the Tribunal affirmed the decision of the delegate to refuse DYA18, DYB18 and DYC18 a Protection visa.
10. On 5 July 2018, the Tribunal invited the authorised representative of FGD18 and FGC18 to comment on the Tribunal's decision to refuse to grant DYA18, DYB18 and DYC18 a Protection visa (CB 161-3).
11. On 19 July 2018, the authorised representative provided comments to the Tribunal (CB 165-70). In that letter, the authorised representative raised a new claim of fear that should FGD18 and her family return to Malaysia, she would be forced to undergo female genital mutilation/cutting/female circumcision. This claim was not raised in the original application for the visa or the related proceeding. It was submitted that Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) (Act) because the applicant (FGD18) was a refugee, and alternatively s 36(2)(aa) because the applicant is owed complimentary protection under the Act. It was submitted that DYA18 and DYB18 strenuously object to FGD18 undergoing the procedure because "she is too old and will suffer too much pain" (CB 169).
12. On 29 August 2018, a further hearing took place before the Tribunal (CB 196). At the hearing, DYA18 appeared and was assisted by an interpreter. The authorised representative also appeared on behalf of FGC18 and FGD18.
13. The hearing on 29 August 2018 also heard the application for review made on behalf of FGC18. Prior to the hearing, DYA18 submitted a Statutory Declaration dated 20 August 2018 (Statutory Declaration) setting out the claims for protection (CB 185-7). This included a further claim that it would be difficult for FGC18 and FGD18 to obtain national identity cards in Malaysia because DYA18 failed to register them with Malaysian officials within one year of their births (CB 186 [16]). DYA18 also claimed fear that she would be forced to disclose the protection claims to Malaysian authorities (CB 186 [17]-[18]).
14. On 10 September 2018, the authorised representative sent post-hearing submissions to the Tribunal for consideration (CB 206-230). The submissions were directed to alternative claims for protection made on behalf of FGD18 and fears held on her behalf should the family be required to return to Malaysia (CB 206-230).
15. On 17 September 2018, the Tribunal delivered a written decision affirming the delegate's decision not to grant FGD18 and FGC18 Protection visas (CB 237-255) (Decision).

1. The Decision reflects a careful consideration of the claims for protection made on behalf of both FGC18 and FGD18. In relation to the claims made on behalf of FGC18, the Tribunal found that, for the reasons given when refusing the application for review made by DYA18, DYB18 and DYC18, the Tribunal did not accept that DYC18 is a transgender person or a young boy who does not conform to traditional gender stereotypes. The Tribunal found that the applicants do not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm should he return to Malaysia (CB 243 [26]-[27]). The Tribunal also considered that the risk of harm to FGD18 was not serious or significant (CB 254-5 [70]-[77]).
2. The Tribunal considered the submissions and evidence submitted on behalf of the applicant of the well-founded fear of harm due to female genital mutilation/cutting/female circumcision of young girls in Malaysia (CB 274 [29]-[30]). This included country information prepared by the Department of Foreign Affairs and Trade and a United Nations Human Rights Commission Report prepared by the Committee on the Elimination of Discrimination Against Women (CB 275 [31]-[32]). The Tribunal also considered an academic article that recorded a lack of severity of the procedure and that Malay women undergo a very minor procedure (CB 275-6 [34]). The Tribunal also considered other articles (CB 245-6 [36], [38]-[39]) and press reports about the procedure which were referred to in the submissions made on behalf of FGD18 to the Tribunal (CB 245 [35]).
3. The Tribunal also addressed the fears and concerns expressed by DYA18 should FGD18 be required to return to Malaysia and be forced to undergo the procedure. After considering all the available evidence, the Tribunal found that there was no real chance that the applicant would be forced to undergo female genital mutilation/cutting/female circumcision at all, or against her will or the will of her parents (CB 282 [57]).
4. The Tribunal then addressed and rejected the concerns expressed by DYA18 regarding late registration of the births of FGC18 and FGD18 (CB 251 [58]-[68]). The Tribunal affirmed the delegate's decision to not grant the visa (CB 255 [77]).

1. On 8 October 2018, DYA18 filed an application for judicial review in this Court on behalf of FGD18 (CB 260-3). The grounds of review were as follows (verbatim) (CB 262):

(b) denied the applicant procedural fairness.

1. I am getting legal advice and will provide further particulars in due course.

1. The application was supported by an affidavit affirmed by DYA18 on 3 October 2018 seeking to be appointed litigation guardian and annexing a copy of the Decision (CB 265-292).
2. On 12 June 2020, a Registrar of this Court appointed DYA18 as litigation guardian and made pre-hearing orders for the filing of a Court Book, written submissions and any amended application for review with proper particulars. No further particulars or amended application were forthcoming (CB 296-8).
3. On 30 April 2025, the application for judicial review was heard by this Court. DYA18 appeared on behalf of FGD18 and was assisted by an interpreter fluent in the Malay and English languages. Mr Simpson, solicitor, appeared on behalf of the Minister.

1. DYA18 did not seek to address the Decision insofar as it confirmed the findings of the Tribunal in relation to the claims for protection made by DYA18, DYB18, DYC18 and the claims made by FGC18. Instead, DYA18 focused on the claims for protection made on behalf of FGD18 and the rejection of the claims made about female genital mutilation/cutting/female circumcision. DYA18 did not seek to identify any error of law in the Decision or any failure to provide procedural fairness. Her submissions were confined to disagreement with the Tribunal's findings and in particular, that the procedure was not compulsory. DYA18 maintained that she would be bound by a fatwa made in 2019 directing Muslim women in Malaysia to ensure that infant children undergo the procedure.
2. DYA18 also repeated her claim that both FGC18 and FGD18 would face significant harm by returning to Malaysia without proper documentation. This was specifically addressed by the Tribunal in paragraphs [64] and [65] of the Decision and dismissed as not a cause of significant concern amounting to persecution or significant harm (CB 253).

1. The Minister relied on the outline of written submissions filed with the Court and dated 16 April 2025. It was submitted that the grounds of review provide no particulars of jurisdictional error and do not identify any failure to afford procedural fairness. The grounds were not addressed by DYA18 in her oral submissions and the application for review made on behalf of FGD18 and FGC18 must be dismissed.
2. Further, the oral submissions made on behalf of the applicant simply express disagreement with the Decision. The Tribunal considered all the claims made on the applicant's behalf but was not persuaded that any of them had merit.
3. It was submitted that the Tribunal addressed all the claims identified by the applicant, her representative and litigation guardian. The Decision did not reveal any error or failure to consider a critical fact or facts.

1. DYA18 again expressed her disagreement with the Decision and maintained that the claims made on behalf of FGC18 and FGD18 were genuine and that there was a real chance that her daughter would suffer serious harm or significant harm if the family returned to Malaysia. She described the procedure as "an outrage to my child's modesty".

1. The role of the Tribunal and the role of this Court is described in the reasons for judgment delivered this day in the related proceeding. This Court can not engage in merits review and must not reconsider the merits or wisdom of the Decision, nor can it remake the Decision.
2. The failure to particularise a ground of review is itself a sufficient basis to dismiss an application for judicial review (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] and NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]). In this application, there was no attempt to identify any error of law or failure to extend procedural fairness by the Tribunal. DYA18, in her capacity as litigation guardian for the applicant, simply expressed disagreement with the Decision and sought to revisit the merits of the application for the visa. In the absence of a material jurisdictional error by the Tribunal, the application for judicial review must be dismissed.
3. In the reasons for judgment delivered this day in the related proceeding, no error was found to have occurred in the decision of the Tribunal that rejected the applicant's claims for protection based on the alleged gender dysphoria of DYC18. In this proceeding, the Decision under review relied on the same reasoning for dismissing the original claim for protection as advanced on behalf of FGD18. The Tribunal did not err by finding that FGD18 was not a refugee and was not entitled to complimentary protection because her brother was not transgender or a young person who does not conform to gender stereotypes.
4. The Decision considered and rejected the claims made on behalf of FGD18 regarding female genital mutilation/cutting/female circumcision. The Tribunal accepted that this was a practice in Malaysa to which the applicant may be exposed but that it was not mandatory, and there was not a real chance of persecution or significant harm sufficient to warrant protection or complimentary protection. These were findings open to the Tribunal on the evidence.
5. The Tribunal also extended procedural fairness to the applicant and her litigation guardian. The Tribunal invited comment on the dismissal of the review application of DYA18, DYB18 and DYC18 and entertained, received evidence and considered the new claims for protection articulated in the Statutory Declaration and post-hearing submissions regarding fear of harm caused by possible female genital mutilation/cutting/female circumcision.
6. In the Decision, the Tribunal also addressed the other submissions made by DYA18 regarding possible persecution or significant harm arising from a failure to register FGC18 and FGD18 for Malaysian citizenship. The Tribunal found that there may be inconvenience to their parents and some delay, but neither constituted serious or significant harm within the meaning of the Act.
7. The Court has also scrutinised the Decision to identify any jurisdictional error, noting the Court's obligations as outlined in MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114]. No error is apparent. The application for judicial review must be dismissed with costs.

1. At the conclusion of the Minister's submissions, the solicitor for the Minister informed the Court that if the application for judicial was dismissed, the Minister sought costs fixed in the amount of $7,000.00 in this proceeding and the proceeding commenced on behalf of FGC18. The total sum claim for both proceedings was $14,000.00. The sum of $7000.00 is less than the scale amount that may be awarded for a migration proceeding that is finalised after the conclusion of a final hearing (Sch 2, Pt 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)).
2. However, the Court does not consider it appropriate to make an order for the sum requested. It is the case that the Minister was required to prepare two different Court Books and two separate outlines of submissions, but there was some economy in only one appearance and the hearing was largely confined to submissions in relation to the application for review by FGD18. In the circumstances and exercising the Court's general discretion as to costs, the applicant's litigation guardian is ordered to pay the Minister's costs and disbursements of and incidental to this proceeding fixed in the sum of $5,000.00. An order to the same effect will be made in the proceedings brought on behalf of applicant FGC18 in proceeding MLG 3000 of 2018. The total costs and disbursements payable to the Minister by the litigation guardian in relation to both proceedings will be fixed at $10,000.00.
3. On 13 May 2025, the name of the ministerial portfolio responsible for administration of the Act was changed to 'Minister for Immigration and Citizenship'. The name of the first respondent will be amended accordingly.
4. Following the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the 'Administrative Review Tribunal'. An order will be made amending the name of the second respondent and the title to the proceeding.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The name of the second respondent is amended to 'Administrative Review Tribunal'.
3. The application for judicial review filed 8 October 2018 is dismissed.
4. The applicant's litigation guardian pay the first respondent's costs and disbursements of and incidental to the proceeding fixed in the sum of $5,000.00.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.