GHN18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 772

1. By an application filed in this Court on 4 December 2018 (Application) the Applicants seek judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. On 2 November 2018 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) (Tribunal's Decision).

1. The Applicants are citizens of Malaysia. The First Applicant and Second Applicant are wife and husband respectively and the Third Applicant is the non-biological daughter of the First and Second Applicants.
2. The First and Second Applicants arrived in Australia on 31 October 2014 as holders of electronic travel authority visas. The First and Second Applicants did not have a valid visa between 28 April 2015 and 20 October 2015. The Third Applicant arrived in Australia on 24 April 2015. The Third Applicant did not have a valid visa between 24 July 2015 and 20 October 2015.

1. The Applicants applied for the Visa on 20 October 2015 (Visa Application).[1] The First Applicant was the primary applicant and the Second and Third Applicants were the secondary applicants as the 'family unit'.
2. The reasons given for requesting a protection visa were contained in a statement annexed to the Visa Application and were summarised by the Delegate in the Delegate's Decision dated 5 April 2016 and primarily relate to harassment by a gang.
3. The Visa applied for was a permanent protection visa. The Migration Regulations 1994 (Cth) (Migration Regulations) provided as follows:

866.21 - Criteria to be satisfied at time of application

866.211

(1) Subclause (2) or (3) is satisfied.

(2) The applicant:

(a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and

(b) makes specific claims as to why that criterion is satisfied.

(3) The applicant claims to be a member of the same family unit as a person:

(a) to whom subclause (2) applies; and

(b) who is an applicant for a Subclass 866 (Protection) visa.

866.22 - Criteria to be satisfied at time of decision

866.221

(1) Subclause (2) or (3) is satisfied.

(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.

(3) The Minister is satisfied that:

(a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and

(b) the applicant mentioned in subclause (2) has been granted a Subclass 866 (Protection) visa.

1. At the time of the Visa Application sections 36(2)(a) and 36(2)(aa) of the Migration Act provided that the following criteria must be met by an applicant for a protection visa in that the applicant must be

(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.

1. Section 36(2A) of the Migration Act sets out the meaning of the phrase 'significant harm' which includes a non citizen: being arbitrarily being deprived of their life, that the death penalty will be carried out on them, will be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
2. The term refugee is defined in section is 5H(1)(a) as, for the purposes of this matter "in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country".
3. Under s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Sections 5J(2)-(6) and 5K-LA provide additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out.

1. On 5 April 2016 the Delegate refused to grant the Applicants the Visa (Delegate's Decision).
2. The Delegate found that the Applicants did not meet the relevant criteria for the grant of the Visa under s 36(2) of the Migration Act. Having considered the country information, the Delegate found that the authorities were reasonably effective in combating organised crime and that there was nothing to indicate that the state was unable or unwilling to protect the Applicants. The Delegate noted that the Applicants provided minimal detail and no documentation, and that there was a delay in seeking protection after they arrived in Australia.

1. On 2 May 2016 the Applicants lodged an application for review of the Delegate's Decision with the Tribunal. An acknowledgment of application letter was sent to the Applicants on 3 May 2016. In that letter the Tribunal invited the Applicants to provide material or written arguments for the Tribunal's consideration.
2. On 21 June 2017 the Applicants were invited to attend a hearing on 13 July 2017. The invitation required the Applicants to complete a response form and provide further written material in support of their claims. A response form was completed by the Applicants and sent back to the Tribunal on 3 July 2017, and no new material was provided.
3. On 13 July 2017 a Tribunal hearing was held (First Tribunal Hearing). The First and Second Applicants were assisted at the hearing by a Malaysian interpreter. The Third Applicant being a minor did not give evidence. At the First Tribunal Hearing the Applicants abandoned the written grounds for protection that had been made in the Visa Application, instead they pressed claims that they feared a Chinese ah long (loan shark) from whom they had borrowed money for their business and even though the loan had been repaid the loan shark continued to threaten them. A further residual claim was raised by the First and Second Applicants relating to the Third Applicant's status as an adopted child in that the child would face a real chance or real risk of stigma and discrimination arising from this status.
4. Because the term of the member hearing the matter expired before a decision was published the Tribunal listed the matter for a second hearing on 22 October 2018 (Second Tribunal Hearing). At the Second Tribunal Hearing the Applicants attended and were again assisted by a Malay interpreter. The Third Applicant did not give evidence. The Applicants pressed the oral claims made regarding threats from the loan shark and risk of discrimination or stigma faced by the adoptive child. The Applicants were given until 29 October 2018 to provide any further material. The Applicants submitted a copy of the original adoption certificate, untranslated media reports, a media report in English and national IC cards in support of their case.

1. The Tribunal accepted that the First and Second Applicants are a spousal couple and the Third Applicant was the First and Second Applicant's adoptive child and was a member of the same family unit as the First Applicant.[2]
2. The Tribunal explained to the Applicants that it had credibility concerns arising from the abandonment of the written claims made in the Visa Application in favour of the oral claims made before the Tribunal.[3]
3. The First Applicant gave evidence that the Visa Application that was lodged had been provided to the agent signed but incomplete on the understanding that the agent would submit the Applicant's actual claims. The First Applicant claimed that she overly trusted the agent and did not review the documentation before it was submitted.[4] The Tribunal observed that there was no indication on the Department file that an agent had been engaged. The Tribunal found that the explanation for submitting the written protection claims unsatisfactory. Further the Tribunal rejected the allegations made by the First Applicant in the written claims and ultimately found with respect to these claims that the Applicants did not face a real chance of serious harm for any reason relating to drug dealers, gangsters or organised crime or that they were not able to receive effective protection from the Malaysian authorities.[5] Consequently it was not accepted that the Applicants would be persecuted for the reason in s 5J(1)(A) or a well founded fear of persecution that would satisfy s 36(2)(a).
4. The Tribunal had a number of credibility concerns relating to the oral claims made before it including that up until the Delegate's Decision the Applicants relied upon the written claims and that the oral claims were only raised in the Tribunal.[6]
5. Concerns were also raised with the Applicants regarding the delay in applying for protection visas.[7] The Tribunal observed that the protection visa applications were only made after the expiration of visitor visas and after the Applicants became unlawful. Various reasons were given by the First Applicant for the delay including that they were unaware of protection visas, they were hoping to have paid off their debt to the loan shark but demand were made for more money, that the Third Applicant was threatened by the loan shark, that they were waiting for the Third Applicant to arrive in Australia before making the Visa Application and that the agent did not lodge the applications in a timely manner. The First Applicant's interaction with the agent were via WhatsApp and were unrecorded. The Tribunal found that the First Applicant's evidence regarding the delay was undermined by the inconsistent evidence of the Second Applicant that the Third Applicant was threatened by a loan shark before the First and Second Applicant left for Australia and that there was a lack of documentary evidence regarding engaging and agent or complaining about that agent's conduct. The Tribunal found that these reasons given for the delay in making the Visa Application were contrived.
6. The Tribunal found that the evidence of the First and Second Applicants with respect to the oral claims regarding the threat from a loan shark were inconsistent and implausible.[8] Including that the First Applicant did not know the loan sharks name despite knowing hm for many years as he had operated the shop next door to the one operated by the Applicants whereas the Second Applicant gave evidence that he did not know the loan shark as he had only meet him once and had been threatened indirectly by debt collectors. The Tribunal did not accept the Applicants reason for their travel to China was for business purposes due to the debt owed to the money lender and the difficulty they were having repaying it. The evidence of the First Applicant was also considered implausible in circumstances where she alleged that she had been the subject of death threats, had not gone to the police, left her adoptive child in Malaysia and did not seek assistance from family considering the relatively small amount of the loan.
7. The oral claim made by the Applicants with respect to threats from a loan shark were not considered credible by the Tribunal. An unfavourable inference was drawn by the Tribunal pursuant to s 423A with respect to these claims finding that the explanation for making these oral claims had been fabricated and were not satisfactory or reasonable.[9] The Tribunal did not accept the claims related to a loan shark.
8. The Tribunal went on to consider the claim relating to the Third Applicant that as an adoptive child she would face a real chance or real risk of stigma arising from her adoptive status.[10]
9. The Tribunal accepted that the Third Applicant was adopted and that she was born out of wedlock. The Tribunal also accepted that there is widespread stigma towards children perceived to be born out of wedlock and that there was a real chance and a real risk that the Third Respondent would encounter such a stigma as well as official and societal discrimination because of her membership of a particular social group that is a Muslim person born out of wedlock if she were to return to Kedah, her home state or Malaysia in general. It was also accepted that the First and Second Applicant had a genuine fear of the adverse implication arising from the societal stigma and disclosing that the Third Applicant was born out of wedlock if they were to return to Malaysia. The Tribunal also found that if the First and Second Applicants had held these fears deeply and urgently they would have made the application for protection visas earlier than they did. It was considered that this late claim was credible but that the First and Second Applicants embellished the impact on the Third Applicant for migration purposes.[11]
10. Taking into account country information the Tribunal assessed that while such a stigma will persist in the foreseeable future there is a widespread countervailing view that a predominately Muslim society should protect innocent children from economic and social harms and disadvantage cause by societal discrimination and as such levels of discrimination, official and otherwise are relatively low. In these circumstances the Third Applicant was found to not have a real chance of being threatened with significant physical ill treatment or physical harassment or significant economic hardship or a denial to access to basic services due to her status of being born out of wedlock due to the support of her nurturing family.[12]
11. The Tribunal noted that significant harm differs from serious harm the Tribunal and in that regard held that it did not have substantial reasons that the Third Applicant would face significant harm arising from the stigma and discrimination on the basis that the harm facing the Third Applicant does not amount to the significant harm listed in s 36(2A) including being subjected to cruel or unusual treatment.[13] In addition the Tribunal considered that the Third Applicant only had a far fetched and remote chance of significant harm arising from her membership of a particular social group if she returned in the foreseeable future to Malaysia and that there are no substantive grounds to believe that the Third Applicant as a necessary and foreseeable consequence of being removed from Australia to Malaysia will suffer a real risk of significant harm.[14]
12. The Tribunal did not accept that the First and Second Applicant would suffer a real chance of significant harm as the parents of an adoptive child who was born out of wedlock or any other related reason set out in s 5J(1)(a).[15] Further the Tribunal did not accept that the First and Second Applicants as a necessary and foreseeable consequence of all the Applicants being removed from Australia to Malaysia will suffer a real risk of significant harm of any kind and found that none of the Applicants satisfied either s 36(2)(aa) or the complementary protection provision.[16]
13. The Tribunal determined that having considered the adverse credibility findings and the accepted claims of the Applicants, both individually and cumulatively, the Tribunal was not satisfied that the applicants were persons in respect of whom Australia has protection obligations and the Applicants did not satisfy s 36(2)(a) or (aa) and s 36(2)(b) or (c) were also unable to be satisfied.[17]

1. The Application was filed in this Court on 4 December 2018, within 35 days of the date of the Tribunal's Decision as prescribed by s 477 of the Migration Act. The First Applicant was appointed the litigation guardian for the Third Applicant pursuant to Orders made on 14 October 2020.
2. On 14 October 2020 and 12 August 2024 Orders were made for the filing of material.
3. This matter was heard on 15 April 2025 in person at the Melbourne Registry (Hearing). The First Applicant appeared for the Applicants and was assisted by a Malay interpreter. I inquired of the interpreter as to whether she and the First Applicant understood each other to which she responded they did. I asked the First Applicant whether she was willing to proceed with the interpreter provided and the interpreter said that she was. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicants to engage with the Court. A solicitor for the Minister appeared.
4. The Applicants relied upon the following documents:

(a) The Application;

(b) The Affidavit of the First Applicant filed on 4 December 2018; and

(c) The Outline of Submissions filed by the Applicants on 20 August 2024.

1. The Outline of Submissions filed by the Applicants explains the First Applicant's background and story. Annexed to the submissions are reports and articles related to the Applicants' protection claims. The Outline of Submissions largely contains submissions and details that go to the merits of the Visa Application but the Applicant does recount some relevant points related to the Tribunal's Decision.
2. The Minister relied upon:

(a) The Amended Response filed on 28 August 2024; and

(b) The Outline of Submissions filed on 28 August 2024.

1. The Court also has before it a Court Book filed by the Minister on 28 October 2020.
2. The grounds of judicial review in the Application provided as follows (Grounds of Review):
   1. THE ADMINISTRATIVE APPEALS TRIBUNAL DID NOT GIVE CONSIDERATION FOR ALL OF THE EXPLANATIONS I GIVE IN THE HEARING.
   2. ADMINISTRATIVE APPEALS TRIBUNAL DIDN'T LOOK AT ALL OF THE POINT ON REASONS STATED IN THE APPLICATION.
   3. THE UNFAIRNESS OF THE DECISIONS.
3. The Grounds of Review fail to articulate a proper ground of judicial review and/or ask the Court to undertake merits review: Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259. The Applicants have provided no particularised grounds for jurisdictional review and have not pointed to specific errors in which I can properly assess to determine whether the Tribunal erred in its decision making. SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21]: The Court in WZAVW v Minister for Immigration & Anor [2016] FCA 760 at [35] also found that that "an unparticularised assertion of jurisdictional error" which is "vague and meaningless" is a sufficient basis to dismiss a ground of review.
4. The Applicants filed and relied upon written submissions. Unfortunately, the Applicants' submissions do not in any way particularise the Applicants' grounds of review in a manner that identifies jurisdictional errors made by the Tribunal. For all intents and purposes the submissions go to matters which maybe be relevant to a merit rehearing and not to judicial review. Further, attached to those submissions is country information that was not before the Tribunal and in fact post-dates the Tribunal's Decision.

1. Taking into account the fact that the First Applicant is a litigant in person I gave her an opportunity an opportunity to explain and elaborate the Grounds of Review by taking her through each of the grounds.

Ground 1 - The administrative appeals tribunal did not give consideration for all of the explanations I give in the hearing

1. I asked the First Applicant to tell me why she said that Ground 1 constituted a serious mistake, a jurisdictional error on the part of the Tribunal. The First Applicant said that the Tribunal members did not accept it was a 'Mr Harpal' (the migration agent) who was supposed to apply for the Visa. I explained to the First Applicant that the proceedings before me was not about the merits of her case but rather that it was about her showing me where there was some serious mistake made by the Tribunal in its decision.
2. The First Applicant submitted that the Tribunal Member doubted the evidence. I asked whether it was the Applicants' case that the Tribunal member doubted the Applicants' evidence to which she responded "perhaps". She also submitted that maybe the Tribunal doubted the evidence because in the Visa Application there was no stamp from the lawyer.
3. The First Applicant conceded that she did not have proof of a jurisdictional error. When asked whether she had further submissions to make identifying a jurisdictional error with respect to Ground 1 she said that all the reasons that the Tribunal stated refusing her application were addressed in her submissions.
4. As already noted the Applicants' written submissions go to issues of merit rather than those relevant to judicial review.
5. The Minister submitted that the Tribunal had considered the Applicants' evidence and referred to those paragraphs in the Tribunal's Decision which indicated this in the Minister's written submissions. It was also submitted the Tribunal had also considered the Applicants' explanation that the initial claims in the Visa Application were prepared by a Migration Agent and as such differed from the oral claims pressed at Second Tribunal Hearing. This explanation was not accepted by the Tribunal and it was open to the Tribunal to make an adverse credibility finding on the material.
6. In response to the any allegation made that the Tribunal entered into error because it did not believe that the Applicants had engaged a migration agent it was submitted that it was open to the Tribunal to make such a finding on the evidence, for example the First Applicant had declared on her Visa Application form that she did not have assistance in completing the form and that all correspondence should be sent to her. In these circumstances pursuant to s 98 of the Migration Act the First Applicant was taken to have filled in the form herself.
7. I accept the submissions of the Minister. It is clear that the Tribunal considered the Applicants' evidence, that it was open on the material before it: to it not to accept the explanation for the initial claims being abandoned in favour of the oral claims; to reject any claims that a migration agent had been engaged by Applicants; and for it to make adverse credibility findings.
8. Ground 1 should be dismissed. No jurisdictional error has been identified by the Applicants.

Ground 2 - Administrative Appeals Tribunal didn't look at all of the point on reasons stated in the application

1. The First Applicant submitted that Ground 2 pertained to her adoptive daughter born out of wedlock. The First Applicant went on to say that that she mentioned before the Tribunal that if the Applicants were to return home there would be a negative perception of the adoptive daughter because she was born out of wedlock and that the Tribunal allowed her a week to provide further evidence of the negative perceptions that would be faced if they were to return to Malaysia. She said that she provided additional material to the Tribunal on this issue but it was not strong enough. The First Applicant submitted that a week was not sufficient time for her to look for all the evidence. The First Applicant later submitted that she only submitted one piece of evidence to show the non acceptance of the society at large towards people born out of wedlock.
2. The First Applicant submitted that she took the opportunity to provide new additional evidence on the issue of negative perceptions that her adoptive daughter would face on return to Malaysia when she filed her submissions in this Court.
3. The Minister objected to the new country information annexed to the Applicants' submissions save for a country information report titled 'Alienation and Stigma from Muslims Born out of Wedlock' as the information was not before the Tribunal or it otherwise post dated the Tribunal's Decision. The objection was upheld by me.
4. With respect to this ground the Minister submitted that both the written and oral claims made by the Applicants were considered by the Tribunal. This is patently clear from the Tribunal's Decision in my view. With respect to the submission made by the First Applicant at the Hearing before me that this ground specifically related to the claim associated with her adoptive daughter I agree with the Minister's submission that the Tribunal's Decision demonstrates that regard was had to the information provided by the First Applicant. I also accept the Minister's submission that it was open to the Tribunal to find that the adoptive daughter would not face serious or significant harm if she were to return to Malaysia.
5. The Applicants have been unable to identify a jurisdictional error in relation to Ground 2. Ground 2 must also be dismissed.

1. The First Applicant submitted that she was dissatisfied with the fact that the Tribunal thought that they were not telling the truth.
2. The Minister described the Applicants' submissions as an emphatic disagreement with Tribunal's Decision. I agree with the Minister's submission that the Applicants have not identified a jurisdictional error to support this emphatic disagreement with the Tribunal's Decision.
3. The Minister, in written submissions submitted that the Tribunal complied with procedural fairness obligations under Part 7, Division 4 of the Migration Act. The Minister further submitted that no breach of s 425 is apparent. The Applicants were invited to attend a hearing and given the opportunity to provide further material, were assisted by an interpreter and were warned that their credibility was in issue.
4. I note that other than the complaint that one (1) week was not enough time to provide all the evidence with respect to the negative perceptions associated with a child born out of wedlock the Applicants did not advance a procedural fairness argument. In this regard it is clear from the Tribunal's Decision that the Tribunal considered the additional information and accepted that there is widespread stigma towards children perceived to be born out of wedlock and that there was a real chance and a real risk that the Third Applicant would encounter such a stigma as well as official and societal discrimination because of her membership of a particular social group, that is a Muslim person born out of wedlock, if she were to return to Malaysia but ultimately found that Third Applicant does not have a real chance of being threatened with significant physical ill treatment or physical harassment or significant economic hardship or a denial to access to basic services due to her status of being born out of wedlock due to the support of her nurturing family. Further the Tribunal considered that the Third Applicant only had a far fetched and remote chance of significant harm arising from her membership of a particular social group if she returned in the foreseeable future to Malaysia and that there are no substantive grounds to believe that the Third Applicant as a necessary and foreseeable consequence of being removed from Australia to Malaysia will suffer a real risk of significant harm. These findings were open to the Tribunal on the material before it.
5. The Applicants have not established a jurisdictional error. Ground 3 must be dismissed.

1. The Application fails to identify any jurisdictional error and no such error is apparent on the material. The Application must be dismissed.
2. The Minister sought costs in the sum of $5,000, which is less than the scale amount prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister's costs in the sum of $5,000.00.
3. Orders will be made accordingly.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

[1] The Visa Application is dated 13 September 2015.

[2] Tribunal's Decision, 'Membership of the same family unit', [36] to [41].

[3] Tribunal's Decision, 'Credibility findings', [48].

[4] Tribunal's Decision, 'Written Claims provided at the Time of Application with the Department', [51].

[6] Tribunal's Decision, 'Credibility Consideration of the Applicant's Oral Claims', [57]-[59].

[10] Tribunal's Decision, 'Residual Claim: Third applicant's claims regarding stigma and discrimination' [73]-[88].

[17] Tribunal's Decision, 'Cumulative Findings', [89]-[95].