KWM24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 201

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

1. MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152, (2006) 81 ALJR 515, (2006) 231 ALR 592, (2006) 93 ALD 300

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".
2. The Originating Application filed 13 December 2024, as amended by an amended Originating Application filed 17 December 2024, be dismissed.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Before the Court is an application for judicial review filed by the applicant, KWM24, in the Adelaide Registry of the Court, accepted for filing on 13 December 2024, and amended on 17 December 2024.[1] The Judicial Review Application seeks judicial review of a decision dated 2 December 2024 of the Administrative Review Tribunal[2] in which the Tribunal affirmed a decision of a delegate[3] of the first respondent, now the Minister for Immigration and Citizenship,[4] of 28 May 2020 not to grant KWM24 a Safe Haven Enterprise visa.[5] The Judicial Review Application is brought under s 476 of the Migration Act 1958 (Cth). [6]
2. In November 2025 the Judicial Review Application was docketed to the now presiding Judge in the Perth Registry of the Court and listed for final hearing on 28 January 2026. At the final hearing the Court Book[7] was marked as Exhibit 1.

(a) KWM24, a citizen of Malaysia, arrived in Australia in October 2019; [8]

(b) on 30 December 2019 KWM24 completed an application for a SHE Visa;[9]

(c) on 28 May 2020 the Delegate's Decision was to refuse the SHE Visa Application;[10]

(d) on 10 June 2020 KWM24 submitted an application for review of the Delegate's Decision to refuse the SHE Visa Application to the then Administrative Appeals Tribunal;[11] and

(e) on 2 December 2024:

(i) the Tribunal heard the Tribunal Review Application;[12]

(ii) the Tribunal Decision was to affirm the Delegate's Decision.[13]

1. The Tribunal Review Application included a copy of the Delegate's Decision. KWM24 did not provide any additional information, claims, or evidence with the Tribunal Review Application.[14]
2. KWM24 gave evidence to the Tribunal that she did not complete the SHE Visa Application herself and the claims regarding her political affiliations were not true.[15]
3. KWM24 claimed to have come to Australia to visit her son and grandson and decided to stay to work when she realised it was easier to make money in Australia. She said she cannot return to Malaysia as she will have no way of making money there and her husband and children depend on her to send them money.[16]
4. KWM24's son gave evidence his mother came to Australia to visit him and his son who is now 5 years old. KWM24's son indicated the only reason KWM24 cannot go back to Malaysia was due to economic reasons.[17]

(a) accepted KWM24:

(i) was born in December 1967 in Malaysia;

(ii) is an ethnic Dusun and Sino-Malaysian, who was raised a Christian but converted to Islam when she married her husband in 1991;

(iii) has 5 children. The eldest child is the son who lives in Australia, and who is 33 years old, and who has a 5 year old son who is KWM24's grandson. KWM24 also has:

• (A) a 30 year old child who is working and taking care of her husband in Sabah; and
• (B) three children aged 24, 21, and 18 respectively, who are all in Malaysia studying at university, and who she supports financially;

(iv) completed primary school and high school in Sabah, Malaysia;

(v) worked in a supermarket when she finished school doing counter sales, and that after she had children, she worked for herself in a small market stall where she sold food items;

(vi) came to Australia in October 2019 to visit her son and grandson when the grandson was born;

(vii) was not able to return to Malaysia during the Covid outbreak and now wishes to stay in Australia so she can keep working;

(viii) noted that KWM24 explained that:

• (A) before she came to Australia her business was not going well, the economy in Malaysia was going bad, and she owed money to suppliers;
• (B) she has not been able to pay the suppliers back due to her husband's medical costs and her assisting her children who are at university;
• (C) while the suppliers have not been following her up for payment, she will still need to pay them back; and
• (D) she has done various jobs in Australia, including packing vegetables and working on a small farm; [18]

(b) regarding KWM24's alleged political affiliations:

(i) accepted that the claims made on behalf of KWM24 in the SHE Visa Application were false and written by an acquaintance without KWM24's knowledge;

(ii) accepted that KWM24 only became aware of the contents of the SHE Visa Application form after it was lodged with the Department;

(iii) was satisfied that KWM24 has abandoned the claims made in the SHE Visa Application and she does not fear harm because of any political opinion or affiliation; and

(iv) found there is no real chance KWM24 would suffer serious harm by reason of her political opinion on return to Malaysia; [19]

(c) regarding KWM24's financial and employment concerns:

(i) accepted KWM24 is from Sabah, Malaysia where poverty rates are higher (than elsewhere in Malaysia);[20]

(ii) accepted KWM24 is concerned about being able to find work and making a living on return to Malaysia, noting she has been in Australia for more than five years and she was almost 57 years old;[21]

(iii) accepted it may be difficult to some extent for KWM24 on return to Malaysia, including with respect to finding work;[22]

(iv) found there is no real chance KWM24 would:

• (A) suffer significant economic hardship that threatens her capacity to subsist on return to Malaysia;
• (B) be denied access to basic services, where the denial threatens her capacity to subsist on return to Malaysia; or
• (C) be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist on return to Malaysia;[23] and

(d) found KWM24 did not:

(i) have a well-founded fear of persecution;[24] and

(ii) meet the refugee and complementary protection criterion in s 36(2)(a) and (aa) respectively;[25] and

(e) affirmed the Delegate's Decision not to grant KWM24 a SHE Visa.[26]

1. The Judicial Review Application contains four grounds of review as follows:
   1. I have attend the hearing, by Tribunal and they not satisfied with my record.
   2. I'm not happy with the Tribunal decision regarding my case and my case not verfy according to the law.
   3. The tribunal say im not to grant the applicant a proction visa but im still want to fight, my son and my grandson still stay here, they need me.
   4. I don't know to speak English very well and using interpreter.

1. For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error.[27] An error must be material to be jurisdictional.[28]
2. At hearing the Court explained to KWM24 (with the assistance of an interpreter) the need to establish jurisdictional error in the Tribunal Decision in order for the Judicial Review Application to succeed, and the nature, and non-exclusive categories, of jurisdictional error.[29]

1. KWM24 did not file a written outline of submissions as she was permitted to do by reason of an order of a Registrar of the Court made on 10 July 2025.[30] At the final hearing KWM24 made oral submissions in support of the Judicial Review Application.[31]
2. At hearing KWM24 made a submission that the debts she owed in Malaysia were owed to a "loan shark", and she had to pay that debt, for which she was guarantor, and that interest would be added to the amount owed, and that some other loan shark would then take over the debt.[32] The Court will treat this as an additional ground of the Judicial Review Application. It is dealt with further below.[33]
3. The Minister filed a written outline of submissions in accordance with the Registrar's Order, and made oral submissions at hearing.[34]
4. The Court has in considering the matter had regard to the oral submissions made by KWM24 and the written and oral submissions made by the Minister.

1. Grounds 1 and 4 simply describe events and outcomes at the Tribunal Hearing and in the Tribunal Decision without alleging jurisdictional error, or anything in the nature of jurisdictional error, in the Tribunal Decision. Ground 1 might, if viewed very liberally, be an expression of disagreement with the Tribunal Decision and the Tribunal's affirmation of the Delegate's Decision to not grant KWM24 a SHE Visa. But even emphatic disagreement with the Tribunal Decision is, without more, not capable of establishing jurisdictional error in the Tribunal Decision.[35] Further, insofar as ground 4 is concerned the Court notes that KWM24 had the assistance of a Malay interpreter at the Tribunal Hearing.[36] The Tribunal Decision gives no indication that there was any misunderstanding arising at the Tribunal Hearing between KWM24 and the interpreter or between the Tribunal and KWM24. There was no assertion by KWM24 of interpreter error giving rise to jurisdictional error, and even if there was, there was no transcript, audio recording or other reliable record of the Tribunal Hearing in evidence to support such an assertion, if made. In the absence of a transcript, audio or other reliable record of the Tribunal Hearing the best evidence of what occurred at the Tribunal Hearing is the Tribunal Decision,[37] the Tribunal Decision being in evidence as part of the CB which is Exhibit 1.[38] In this case the Tribunal Decision does not give any indication of interpreter error. There is thus nothing which would indicate jurisdictional error in the Tribunal Decision by reason of:

(a) the standard of interpretation being so inadequate that KWM24 was effectively prevented from giving evidence at the Tribunal Hearing; or

(b) any errors in interpretation which were material to adverse conclusions reached by the Tribunal.[39]

1. In the circumstances grounds 1 and 4 fail to establish jurisdictional error in the Tribunal Decision.

1. The fact that KWM24 is unhappy with the Tribunal Decision is immaterial to the establishment of jurisdictional error in the Tribunal Decision unless the unhappiness can be said to arise out of an error in the Tribunal Decision which might be jurisdictional. In ground 2 KWM24 appears to allege that the Tribunal did not decide the Tribunal Review Application according to law, or as she put it "my case not ver[i]fy according to law". If this is intended to allude to a denial to hear KWM24's case according to law it must fail in circumstances where:

(a) the Tribunal complied with its procedural fairness obligations under s 357A, which is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters dealt with in Division 5, as:

(i) KWM24 was on notice from the Delegate's Decision and the Tribunal's questioning at the Tribunal Hearing that whether she was at risk of harm on return to Malaysia was the determinative issue in relation to the Tribunal Review Application;[40]

(ii) on 4 November 2024 the Tribunal notified KWM24 of the time and date of the Tribunal Hearing to attend a hearing by video-link using Microsoft Teams in accordance with s 374;[41]

(iii) KWM24 advised the Tribunal that she did not wish to submit any documents (such as written witness statements, written submissions or country information, or other evidence), to the Tribunal;[42]

(iv) KWM24 appeared at the Tribunal Hearing by video-link,[43] as she had requested,[44] and had the assistance of a Malay interpreter, in giving evidence and making submissions;[45] and

(v) KWM24's son gave evidence to the Tribunal on behalf of KWM24;[46]

(b) the Tribunal correctly:

(i) identified the relevant law in relation to the criteria for the Safe Haven Enterprise visa, namely ss 5(1), 5H, 5J-LA, and 36(2), (2A), and (2B), [47] and also had regard to considerations made mandatory by a Ministerial Direction made under s 499;[48]

(ii) as it related to the financial and employment concerns evinced by KWM24 in relation to both the refugee and complementary protection criteria, set out the relevant evidence as follows:[49]

1. As mentioned above, at the hearing the applicant said she wishes to remain in Australia to work and is concerned she will not be able to make money in Malaysia.
2. I note that according to the country information, Malaysia has a growing upper-middle income economy with low unemployment and decreasing levels of poverty although I accept that the applicant is from Sabah where poverty rates are higher.
3. I accept the applicant is concerned about being able to find work and make a living on return to Malaysia, noting she has been in Australia for more than five years and she is now almost 57-years-old. I accept it may be difficult to some extent for the applicant on return to Malaysia including with respect to finding work. Nonetheless she gave evidence at the hearing that she has work experience in Malaysia as well as experience working in various jobs in Australia. The applicant also gave evidence she is in regular contact with her family, who appear to be in a position to offer her support such as accommodation on return.
4. In these circumstances, I find that there is no real chance the applicant would suffer significant economic hardship that threatens her capacity to subsist; and/or would be denied access to basic services, where the denial threatens her capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act, on return to Malaysia.
5. I find the applicant does not have a well-founded fear of persecution as defined in s 5J of the Act and is not a refugee as defined in s 5H of the Act. I find she does not meet the refugee criterion in s 36(2)(a) of the Act.

...

1. I have accepted the applicant has concerns about being able to find work if she returns to Malaysia. However, the applicant does not suggest that any person or group will seek to harm her for any reason relating to her financial situation. Australian courts have held that complementary protection obligations are concerned with acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person. Accordingly, I find that any financial hardship the applicant might experience if removed to Malaysia would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing her to suffer significant harm.

(iii) applied the relevant law to the evidence,[50] and arrived at conclusions based thereon.[51]

1. The Court is therefore satisfied that the Tribunal has complied with both its procedural fairness obligations and its obligation to conduct the Tribunal Hearing according to law and apply the relevant law in making the Tribunal Decision. Ground 2 fails to establish jurisdictional error in the Tribunal Decision.

1. Ground 3 does not allege jurisdictional error, or anything in the nature of jurisdictional error, in the Tribunal Decision. It is not a proper ground of judicial review. Insofar as it evinces an intention on the part of KWM24 to continue to fight to stay in Australia with her son and grandson as "they need me" it does no more than indicate that what is being sought is impermissible merits review.[52]
2. The Court is therefore satisfied that ground 3 fails to establish jurisdictional error in the Tribunal Decision.

1. As set out above,[53] at hearing KWM24 made a submission that the debts she owed in Malaysia were owed to a loan shark, and she had to pay that debt, for which she was guarantor, and that interest would be added to the amount owed, and that some other loan shark would then take over the debt.
2. Before the Tribunal KWM24 outlined financial concerns based on her inability "to make money in Malaysia", and that she needed to make money in Australia to support her dependent husband and children at university, in Malaysia.[54] The Tribunal also found that KWM24 "owed money to suppliers" to her business in Malaysia, and that she had "not been able to pay the suppliers back due to her husband's medical costs and her assisting her children who are at university", and that although "the suppliers have not been following her up for payment, she will still need to pay them back".[55] There was no allegation that the "suppliers" were "loan sharks", and nothing on the face of the record, in this case the Tribunal Decision,[56] or otherwise, which would suggest that the suppliers were loan sharks, or that KWM24's use of "suppliers" was intended to be a euphemism for "loan sharks". The allegation that the debts KWM24 owed in Malaysia were owed to a loan shark is a new claim which was not before the Tribunal at the Tribunal Hearing. It is not therefore a matter about which the Tribunal could have made a jurisdictional error because the claim was not before the Tribunal. And as a new claim it is not a matter which this Court can determine in judicial review proceedings because it invites the Court to undertake impermissible merits review.[57]
3. The loan shark claim does not therefore establish jurisdictional error in the Tribunal Decision.

1. The Court is cognisant that before it KWM24 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Tribunal.[58] Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Tribunal Decision.

1. The Court has concluded that neither the four grounds of the Judicial Review Application nor the newly raised loan shark claim establish jurisdictional error in the Tribunal Decision, and that there is otherwise no jurisdictional error apparent on the face of the Tribunal Decision. It follows that the Judicial Review Application must be dismissed and there will be an order accordingly.
2. There will also be an order that the name of the Minister be amended to read "Minister for Immigration and Citizenship".
3. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

[2] "Tribunal Decision" and "Tribunal" respectively.

[3] "Delegate's Decision" and "Delegate" respectively.

[6] "Migration Act". Unless otherwise indicated, all references in these Reasons for Judgment to sections of legislation are references to the Migration Act and to the provisions therein as they were at the time of the Tribunal Decision.

[11] CB 51-52 ("Tribunal Review Application").

[27] Sections 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.

[28] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

[35] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 ("Wu Shan Liang"); CLR at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [61] per McKerracher, Griffiths and Rangiah JJ.

[37] NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 ("NAOA") at [21] per Beaumont, Merkel and Hely JJ; Chhetri v Minister for Immigration [2016] FCCA 490 ("Chhetri") at [48] per Judge Emmett; Brar v Minister for Immigration & Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 ("Brar (No 2)") at [15] per Judge Lucev.

[38] Evidence Act 1995 (Cth), s 60(1); Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [59] per Perram J.

[39] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [9] and [24] per Allsop CJ and [66] per Robertson J.

[40] SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152, (2006) 81 ALJR 515, (2006) 231 ALR 592, (2006) 93 ALD 300 at [35]- [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

[49] CB 82-83 at [26]-[30] and CB 83 at [33] (footnotes omitted).

[52] Wu Shan Liang, CLR at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.

[54] CB 81 at [20] and 82 at [26] (the quote is from CB 82 at [26] which is set out at [19(b)(ii)] above).

[55] CB 81 at [23(f)], which is set out at [19(b)(ii)] above.

[56] And bearing in mind that in the absence of a transcript, audio or other reliable record of the Tribunal Hearing the best evidence of what occurred at the Tribunal Hearing is the Tribunal Decision: NAOA at [21] per Beaumont, Merkel and Hely JJ; Chhetri at [48] per Judge Emmett; Brar (No 2) at [15] per Judge Lucev.

[57] Wu Shan Liang, CLR at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.

[58] MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev.