GTW24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1359

1. The applicant applied for a protection visa on 10 May 2018. The applicant claimed in her protection visa application that she left Malaysia because she worried for her personal safety as her brother is a gangster whose friends attended their house, asked her to do illegal activities and would not let her go or hit her if she refused. The applicant claimed that if she were to return to Malaysia, they will keep harming her by hitting her or touching her without asking.
2. On 30 November 2018 a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied to the Tribunal for merits review of the delegate's decision on 4 December 2018.
3. On 12 July 2024 the applicant attended a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in the review.
4. On 19 August 2024 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.
5. The Tribunal expressed credibility concerns in relation to the applicant's claims. The Tribunal did not accept that the applicant would face harm from her half-brother if she were to return to Malaysia. The Tribunal further found that, in any event, effective protection measures would be available to the applicant in Malaysia if she is subject to violence or threats of violence from her bother or members of his gang. The Tribunal did not accept that the applicant would be denied employment threatening her capacity to subsist because of her Chinese Malay ethnicity and did not accept the applicant would face a real chance of serious harm or a real risk of significant harm for economic reasons if she were to return to Malaysia. The Tribunal therefore found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.

1. The applicant filed an application for judicial review on 3 September 2024. The application was made within 35 days of the Tribunal decision as required by s 477(1) of the Migration Act.
2. The applicant raises three grounds in her application:
   1. The Tribunal relied on general country information that did not fully reflect the realities of my situation as a Chinese Malaysian woman from a rural area. For instance, while the Tribunal noted that Chinese Malaysians are generally well-represented in business and professional sectors, it did not consider the specific vulnerabilities I face as a woman with no financial resources, no familial support, and significant threats from organized crime. This lack of nuanced understanding in applying country information led to an erroneous decision.
   2. During the hearing, the Tribunal did not provide me with a fair opportunity to present my case. The member's questioning suggested a predetermined view, particularly regarding the feasibility of internal relocation within Malaysia. The Tribunal failed to engage with the complexities of my situation, such as the financial and social barriers that prevent me from safely relocating. This conduct constitutes a breach of procedural fairness.
   3. The Tribunal erroneously assumed that I could seek effective protection from the police in Malaysia. I provided clear evidence that the local police are either unwilling or unable to offer protection against my half-brother's gang due to corruption and intimidation. The Tribunal's reliance on the theoretical availability of police protection, without considering the practical realities of my situation, represents a jurisdictional error.
3. Pursuant to an Order made by a Registrar of this Court on 8 November 2024, the applicant was required to file and serve 28 days before the hearing written submissions, any amended application with proper particulars of the grounds of application and any additional evidence on which she seeks to rely. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions prior to the hearing as required by the Registrar's Order.
4. The evidence before the Court comprises:

(a) the court book filed on behalf of the Minister on 7 November 2024; and

(b) an affidavit of the applicant filed with her judicial review application annexing a copy of the Tribunal decision.

The role of the Court in judicial review proceedings

1. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
2. The Court can only grant relief to the applicant if she establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
   1. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
   2. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
3. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 (Eshetu) at [40].

1. The ground and the applicant's submissions relevant to this ground raise two interrelated issues:

(a) whether the Tribunal made a jurisdictional error by relying on country information; and

(b) whether the Tribunal made a jurisdictional error by failing to consider the applicant's specific vulnerabilities as a woman with no financial resources, no familial support and significant threats from organised crime.

It was open to the Tribunal to consider country information

1. The applicant's core complaint about the Tribunal's use of country information is that it relied on country information that was more general than her specific circumstances. The applicant orally submitted that:

(a) the Tribunal proceeded only on general information from her country which does not exactly reflect her situation as a farmer in a rural area;

(b) even though the Tribunal has mostly heard good things about the situation in Malaysia, it did not take into account what she is facing as a female, for example, lack of financial support and family support as well as threats from gangsters; and

(c) the Tribunal expressed a very general opinion about Malaysia and did not consider her situation closely, including how she is to start a new life when she returns to Malaysia.

1. While the Tribunal was required to consider the applicant's relevant specific circumstances in assessing whether she met the criteria for a protection visa, it was also entitled to consider country information. I accept the Minister's submission that the choice of country information, and the weight to be given to that country information, is a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13]. It was therefore open to the Tribunal to have regard to the country information it relied on, which included a 2024 report on Malaysia published by the Department of Foreign Affairs and Trade as well as some online news articles.
2. The Tribunal relied on country information addressing the movement of Malays from rural areas to the cities to find work, the low level official discrimination that some Chinese Malaysians experience when attempting to gain entry to the state tertiary system and civil service, Malaysia's recent economic performance, periodic crackdowns by the Malaysian authorities on criminal gangs and crime syndicates, and the effectiveness of the Malaysian police force. It relied on this country information in assessing whether the applicant, in her specific circumstances as found by the Tribunal, would face a real chance of serious harm or a real risk of significant harm. The country information was relevant evidence for the Tribunal to consider, even if it was general in nature and not specifically about people in the same specific circumstances as the applicant faced.
3. The applicant orally submitted to the Court that the country information did not reflect her situation as a farmer living in a rural area. I accept the responsive submission advanced by Counsel for the Minister that the applicant did not claim before the Tribunal that she would face harm solely on the basis that she was a farmer living in a rural area. The Tribunal's reasons reflect that the Tribunal was aware that the applicant's personal circumstances included that she was from a rural area. The Tribunal recorded at [35] of its reasons that it raised with the applicant country information that many people from rural areas moved to the cities for work and it recorded the applicant's responses about this issue. However, in the absence of any claim that the applicant faced harm as a farmer from a rural area, the Tribunal was not required to consider whether the applicant would face a real chance of harm on this basis.
4. The applicant has not established that the Tribunal made a jurisdictional error in its use of country information.

The Tribunal considered the applicant's specific circumstances as raised on the material before it

1. To establish that the Tribunal made a jurisdictional error by failing to consider her specific vulnerabilities as a woman with no financial resources, no familial support and significant threats from organised crime, the applicant would first need to show that she clearly articulated such claims before the Tribunal, or that such claims clearly emerged from the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60]- [61].
2. The applicant articulated her claims for protection in her protection visa application and in her oral submissions and evidence to the Tribunal. A copy of her protection visa application is in the court book and is therefore in evidence before the Court. There is no transcript of the Tribunal hearing in evidence before the Court. The Tribunal summarised the applicant's oral evidence given at the Tribunal hearing in its decision. I have considered the applicant's claims for protection as well as how the Tribunal addressed those claims.
3. I have summarised below the relevant claims made by the applicant and the evidence she provided in support of her claims. The Tribunal's obligation was to consider the applicant's claims and their component integers. The Tribunal was required to refer in its reasons to its material findings of fact and the evidence on which those findings were based: s 430(1)(c) and (d) of the Migration Act. It was not required to expressly address in its reasons every item of evidence or to refute the applicant's claims line by line: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].

The Tribunal considered the applicant's claims based on her lack of financial resources

1. The applicant referred to her gender and to her lack of resources in her protection visa application in the context of her claim to fear harm from her half-brother. She did not claim in her protection visa application to face a real chance of harm because she is a woman or because she lacked financial resources. The applicant relevantly claimed in her protection visa application:

(a) because she is a lady, it would be simpler if she agreed to help her half-brother and his gang;

(b) she and her brother are a poor family;

(c) she does not have money to move to another state or town;

(d) she is scared and she is just a lady.

1. In relation to being a woman and having no financial resources, the applicant gave evidence to the Tribunal that:

(a) she completed her education to diploma level;

(b) she worked for a transport company in Malaysia for a year when she was about 22 years old and has worked in various roles in Australia, including farm work and packaging food products;

(c) she occasionally sends money to her mother;

(d) she could not financially afford to move away from the area where her brother lived and could only afford to rent in the local area;

(e) she did not seek medical treatment when her half-brother beat her up as she could not afford it (although when the Tribunal put to her that Malaysia has a well-established universal health care system that is generally affordable and accessible to most of the population, she responded that her half-brother threatened to beat her again if she sought medical assistance); and

(f) as a Chinese Malay she is discriminated against in getting jobs in Malaysia.

1. Although the applicant did not expressly claim to face harm in Malaysia due to economic reasons, the Tribunal considered this in addressing her claim that she faced discrimination in finding employment due to her Chinese Malay ethnicity.
2. The Tribunal accepted, based on country information, that Malays of Chinese ethnicity may face a level of discrimination in Malaysia because of preferential treatment of ethnic Malays. The Tribunal further accepted the applicant may have experienced some discrimination because of her Chinese ethnicity. However, the Tribunal found this had not prevented her from receiving an education to Diploma level or in obtaining some employment. On the evidence before it, the Tribunal did not accept the applicant would be denied basic services or the capacity to earn a living of any kind or suffer economic hardship that would threaten her capacity to subsist for reasons of her Chinese ethnicity if returned to Malaysia now or in the foreseeable future.
3. The Tribunal accepted that the cost of living was high and that wages were lower in Malaysia than in Australia. The Tribunal also accepted that the applicant would experience some stress and difficulty in re-establishing herself if she returned to Malaysia, but found, after noting her employment experience, that she would likely be able to find employment in Malaysia and continue to have access to the means to support herself. The Tribunal accepted the applicant's earnings in Malaysia would be lower than she might be able to earn in Australia. However, it was not satisfied that the applicant's earnings would be so low as to threaten her ability to subsist in Malaysia or otherwise amount to serious harm. The Tribunal found that any economic hardship the applicant might incur would not threaten her capacity to subsist or amount to serious harm. The Tribunal further found that given the applicant's qualifications, experience and motivation to work she would not be denied the capacity to earn a living, nor denied basic services. The Tribunal found there is no real chance the applicant would be seriously harmed if returned to Malaysia by reason of her economic circumstances.
4. To the extent that the applicant's claims and evidence raised a claim based on economic reasons, or difficulties in finding employment in Malaysia, the Tribunal considered it. To the extent that the applicant referred to past economic hardship, that was raised in the context of her claims to fear harm from her half-brother and his gang, which the Tribunal also addressed (discussed below).
5. The applicant did not claim to fear harm because she was a woman, except where it was directly connected to her claim to fear harm from her half-brother, which the Tribunal considered.
6. The applicant has not established that she advanced any claim based on being a woman with limited financial resources that the Tribunal was required to, but did not, consider.

The applicant did not claim to face harm or specific vulnerabilities as a woman without familial support other than to the extent it related to the threat from her half-brother, which the Tribunal considered

1. In relation to her family, the applicant relevantly claimed in her protection visa application that she does not have a dad or a mum.
2. The applicant provided the following evidence to the Tribunal about her family:

(a) her parents divorced when she was in high school and she lived with her mother until she was 18 years old and then lived with her father;

(b) her mother was a housewife and works on a small farm and her father is a retired truck driver who receives a small pension;

(c) she is in occasional contact with her parents;

(d) her older half-brother, with whom she shares a father, works for an illegal underground business and lives with their father;

(e) she told her father[2] but he did not really intervene as he does not care whether his son is involved in a gang; and

(f) she did not tell her mother as her mother is not well and did not move home with her mother as her half-brother would probably beat her mother too.

1. I accept the Minister's submission that the applicant did not raise any claim to face harm as a woman without family support. The Tribunal was therefore not required to consider any claim to that effect.
2. The Tribunal considered the applicant's evidence about her family, insofar as it was relevant to assessing the applicant's claims to fear harm from her half-brother, in the context of considering her claim about her half-brother.

The applicant did not expressly claim to fear harm from 'organised crime' and, to the extent that the applicant claimed to face harm from her half-brother and his gang, the Tribunal considered the claim

1. The applicant relevantly claimed in her protection visa application:

(a) her brother is a gangster and his friend asked her to do some illegal trade; and

(b) if she refuses, they will not always let her go, or they will hit her.

1. The applicant provided the following oral evidence to the Tribunal about her fear of harm relating to her half-brother and his gang:

(a) she fears returning to Malaysia as her half-brother demanded she join him in doing illegal work such as gambling, selling drugs or as a loan shark;

(b) her half-brother asked her to join his gang and, if she refused, he beat her up;

(c) her half-brother had been demanding that she join the gang since she was 18 and they lived together until she was 24 years old;

(d) her half-brother will keep at her because he wants to make money and she cannot relocate as he will find her wherever she goes in Malaysia;

(e) she knows little about the gang other than it is a big gang and she knows the first name of the leader; and

(f) her half brother spread rumours about her working as a prostitute or as a drug courier.

1. As submitted by the Minister, the applicant did not at any point claim to face significant threats from 'organised crime' and no such claim arose on the materials. The Tribunal was not required to consider whether the applicant faced any chance of harm from organised crime.
2. I have considered the possibility that the applicant may be referring to her brother's gang when she used the term 'organised crime'. This would appear to consistent with her oral submissions to the Court, where she said that she is also facing threats from gangsters.
3. The Tribunal clearly considered the claims articulated by the applicant in relation to her half-brother and his gang and rejected those claims. The Tribunal expressed concern about the credibility of the claims, including on the basis that evidence provided by the applicant was inconsistent, some aspects of the evidence were vague and difficult to accept, and the applicant had little knowledge of the gang. The Tribunal did not accept that the applicant had ever been beaten by her half-brother. The Tribunal had difficulty accepting the applicant's evidence that her father would take no action against his son for beating the applicant because he did not care that his son was a member of a gang. The Tribunal did not accept that the applicant's reputation on return would be tarnished because of ill-founded rumours.
4. The Tribunal did not accept that the applicant would face any real chance of harm from her half-brother on her return to Malaysia. The Tribunal also considered that there was effective state protection in Malaysia to protect the applicant if she was threatened or harmed.
5. The applicant has not identified any integer of her claim that the Tribunal failed to consider.

The applicant's disagreement with the Tribunal decision does not otherwise establish jurisdictional error

1. Viewed another way, the applicant's ground and submissions may simply be understood as an expression of her disagreement with the Tribunal decision. If this is what the applicant intended by this ground, I accept the Minister's submission that the applicant's disagreement with the Tribunal decision is not, of itself, enough to establish jurisdictional error: Eshetu at [40].

1. Ground 2 can potentially be seen as alleging three possible types of jurisdictional error:

(a) the assertion that the Tribunal did not provide the applicant with a fair opportunity to present her case is an assertion that the Tribunal denied the applicant procedural fairness;

(b) the assertion that the Tribunal's questioning during the hearing, particularly in relation to internal relocation, suggested a predetermined view might be seen as an assertion that the Tribunal decision is affected by actual or apprehended bias; and

(c) the assertion that the Tribunal failed to engage with the complexities of the applicant's case, including the financial and social barriers that prevent her from relocating, might be seen as an assertion that the Tribunal failed to take into account a relevant consideration.

1. In addition to the oral submissions of the applicant referred to in the consideration of ground 1 above, the applicant submitted that her case was not treated fairly. She otherwise did not make extensive submissions that may be seen as relating to ground 2.

The Tribunal did not deny the applicant procedural fairness

1. I accept the Minister's submission that the Tribunal complied with its procedural fairness obligations in Division 4 of Part 7 of the Migration Act. The Tribunal afforded the applicant opportunities to present her claims for protection.
2. On 12 April 2024 the Tribunal invited the applicant to complete a pre-hearing information form, which contained a section in which the applicant could give further information about her claims for protection. The applicant completed this form and indicated that she would like to present her claims during the hearing.
3. The Tribunal invited the applicant to attend a hearing to give evidence and present arguments in relation to the issues in the review, as required by s 425 of the Migration Act. The notice of the invitation, sent to the applicant on 24 June 2025, complied with the formal requirements of s 425A of the Migration Act. There is no evidence before the Court to suggest that the invitation to attend a hearing was not a real and meaningful one: see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; [2000] FCA 1759 at [31].
4. I accept the Minister's submission that there was no information the Tribunal was required to invite the applicant to address pursuant to s 424A of the Migration Act. That section requires the Tribunal to give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, ensure the applicant understands why it is relevant, and invite the applicant to comment on or respond to the information. However, the section does not apply to information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member, to information that the applicant gave to the Tribunal for the purpose of the review, and to information that the applicant gave during the process that led to the decision under review: see s 424A(3)(a), (b) and (ba) of the Migration Act. The only information the Tribunal relied on in making its decision was information in the applicant's visa application, her written and oral evidence given to the Tribunal on review, and country information, which fall within the exceptions in s 424A(3)(a), (b) and (ba).
5. There is no transcript before the Court of the evidence the applicant gave at the Tribunal hearing or the questions that the Tribunal asked the applicant. The best evidence available to the Court of the questions asked and evidence given at the Tribunal hearing is the summary of the Tribunal's questions and the applicant's evidence in the Tribunal's reasons for decision. That summary suggests that the Tribunal asked the applicant a range of questions which were intended to elicit information relevant to her claims for protection. It does not suggest that the applicant was denied an opportunity to present her case.
6. The applicant has not established that the Tribunal denied her procedural fairness.

The applicant has not established that the Tribunal decision is affected by bias

1. At the hearing, I observed to the applicant that part of ground 2 may be seen as an allegation of bias on the part of the Tribunal and that clear evidence is generally needed to establish a bias ground. I explained to the applicant that she had not provided evidence to support her allegation of bias, such as a transcript of the hearing before the Tribunal, and therefore the only evidence the Court had before it about the questions that the Tribunal asked of the applicant at the hearing was what was recorded in the Tribunal's reasons. I explained to the applicant that she could request an opportunity to have further time to adduce evidence to the Court, in which case I would also hear submissions from the Minister about whether she should be given more time. The applicant did not request any additional time or further opportunity to adduce evidence in relation to her bias ground. The applicant did not make any submissions about this aspect of her ground, but she did not abandon it. I therefore address this aspect of the ground based on the limited relevant evidence before the Court.
2. An allegation of bias is a serious allegation that must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. To establish actual bias, the applicant would need to establish that the Tribunal approached its task with a pre-existing state of mind that was not open to persuasion: Jia Legeng at [72]. To establish apprehended bias, the applicant would need to establish that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have approached the review with an open mind: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [37].
3. The applicant has not identified with any specificity the questions that the Tribunal asked her that she believes disclose bias. The summary of the Tribunal's questions in its reasons does not establish that the Tribunal approached its task with a pre-existing state of mind that was not open to persuasion. There is also nothing in the questions summarised in the reasons for decision that might lead a well-informed lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to the review. Rather, as submitted by the Minister, the Tribunal appears to have asked the types of questions that would elicit more details about the applicant's protection claims, which is not surprising given the inquisitorial nature of the Tribunal's task.
4. The applicant has not established that the Tribunal decision is affected by any actual or apprehended bias.

The Tribunal did not fail to take into account relevant considerations

1. The applicant has not established her assertion that the Tribunal failed to engage with the complexities of her situation, such as the financial and social barriers that prevent her from relocating.
2. As discussed in the context of ground 1, the Tribunal considered the applicant's personal circumstances in addressing her claims for protection.
3. In relation to the specific matters to which the applicant referred in this ground, the Tribunal was not required to consider whether there were financial and social barriers that prevented the applicant from relocating within Malaysia. As submitted by the Minister, in circumstances where the Tribunal rejected the applicant's claims to face a real chance or a real risk of harm from her half-brother or any gang, it was not required to consider whether:

(a) any real chance of serious harm extended to all areas of Malaysia: see s 5J(1)(c) of the Migration Act; or

(b) it was reasonable for the applicant to relocate to an area of Malaysia where she would not face a real risk of significant harm: see s 36(2B)(a) of the Migration Act.

1. Ground 3, like ground 1, takes issue with the Tribunal's use of country information, in this instance, relating to the availability of state protection.
2. In her oral submissions, the applicant submitted that the Tribunal assumed she could get protection from the Malaysian police. She submitted that even though she provided relevant evidence to the local police, they are not willing to help her and are not effective at all. The applicant submitted that the Tribunal did not consider her actual situation and assumed that she can rely on the local police and government.

The Tribunal did not err in its consideration of country information relating to state protection

(a) summarised country information relating to periodic crackdowns by the Malaysian authorities on criminal gangs and crime syndicates as well as country information about the Royal Malaysian police, including that they are considered to be a 'professional and effective police force' although this can vary based on levels of training, capacity and engagement in corruption; and

(b) recorded the applicant's response to this information, namely, that there was bribery and corruption between the police and local gangs and therefore she would be unable to obtain protection.

1. The Tribunal addressed this evidence again at [50] and [54]-[56] of its reasons. In these paragraphs, the Tribunal said (reproduced without alteration):
   1. The applicant claims that the police in her area are corrupt, and she is unable to obtain protection from her half-brother. She claims she went to the police on one occasion, but they told her she did not have enough evidence. As discussed with her, the Malaysian authorities regularly embark on campaigns against gangs to reduce their power and while it is acknowledged there is corruption within the police, the Malaysian authorities are also actively acting against corruption in the police force. The Tribunal acknowledges that she may have in the past been unable to obtain protection bur that does not mean she will not be able to obtain protection in the future.

...

1. The Tribunal also notes that the relevant country information outlined reflects the Malaysian police and government authorities have taken, and continue to take, prosecutorial action against gang members. While corruption is present, the Malaysian authorities demonstrate a commitment to dealing with unlawful activity including corruption and violence.
2. The Tribunal finds based on available country information that in any event, effective protection measures are available to the applicant in Malaysia in the event she is subjected to violence or threats of violence from her half-brother or any other member of the gang. The Tribunal finds that the effective protection measures are available to the applicant by the State throughout the country and that the State is able and willing to provide such protection. The applicant can access the available protection and the protection provided is durable.
3. From the available country information, the Tribunal finds that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system. Therefore, by operation of s 5J(2) and s 5LA, the applicant does not have a well-founded fear of persecution as a victim of her half-brother or his gang or any other reason.

1. It can be seen from [50] that the Tribunal acknowledged the applicant may have been unable to obtain protection from the police in the past. However, having regard to the country information, the Tribunal considered that the applicant would be able to obtain state protection in the reasonably foreseeable future. It was open to the Tribunal to prefer the country information to the applicant's own submissions and evidence. As discussed in the context of ground 1 above, the choice of and weight to be given to country information was a matter for the Tribunal.
2. Contrary to the applicant's oral submissions, the Tribunal did not 'assume' that the police would protect her. Rather, it made a finding, after considering the evidence before it, that the applicant would have access to effective state protection.

Other matters raised in the applicant's oral submissions

1. After hearing the oral submissions made on behalf of the Minister, the applicant made oral submissions in reply.
2. The applicant submitted that Counsel for the Minister wrongly said that if she goes back she will not face serious harm. She submitted that she has no evidence to prove that her half-brother beat her up because he threatened that if she goes to the police or hospital he would do something worse. However, that does not mean that he did not harm or hurt her. The applicant submitted that she does not want to influence her child and if she brings him or her back they will face more harm or threats. She does not know what they will face when they go back and does not want to hide around in fear for her daily life. She does not want to be beaten up by her half-brother and his friends and that is why she needs Australia to protect her.
3. These submissions do not assert or establish jurisdictional error in the Tribunal's reasons.
4. For avoidance of doubt, Counsel for the Minister did not submit that the applicant will not face serious harm if she goes back to Malaysia. Rather, Counsel made an accurate submission that the Tribunal found the applicant would not face a real chance of serious harm or a real risk of significant harm if she returns to Malaysia.
5. The other matters that the applicant raised in her submissions in reply address why she does not wish to return to Malaysia and why she believes she meets the criteria for the grant of a protection visa. In other words, they address the factual merits of the Tribunal decision and her protection visa application. The Court does not have jurisdiction to consider for itself whether the applicant meets the criteria for the grant of a protection visa or to engage in merits review of the Tribunal decision.
6. Therefore, the matters raised in the applicant's oral submissions in reply do not establish jurisdictional error in the Tribunal decision.

1. The applicant has not established that the Tribunal made a jurisdictional error in reaching its decision in this matter. It follows that the application for judicial review must be dismissed.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.

[2] Exactly what she told her father is not specified in the Tribunal's summary of the applicant's evidence.