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[2026] HCA 26
respondent. The applications under s 486A(2) of the Migration Act 1958 (Cth) and r 4.02 of the High Court Rules 2004 (Cth) were refused, the application for a constitutional or other writ was dismissed, and...
3 cited instruments linked from this judgment.
The High Court dismissed the plaintiff's challenge to the refusal of his protection visa. It assumed in his favour that he had raised not being able to obtain gender-affirming surgery in Malaysia as a harm he would face. Even on that assumption, the evidence did not show that the inability to obtain surgery by itself met the statutory definitions of serious or significant harm. The Court also found that the delegate had considered the relevant DFAT report about loan sharks and was not required to assess a fear based on transgender status that the plaintiff had not raised. Because none of the proposed errors succeeded, the Court refused extra time to bring the case and ordered the plaintiff to pay the Minister's costs.
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2,550 words · generated 03/10/2026
Plaintiff M98/2025 concerned a challenge to a delegate's refusal of a Malaysian national's application for a permanent protection visa. The plaintiff arrived in Australia in May 2017 and applied for a subclass 866 visa on or around 3 August 2017 ([4]). The delegate refused the application on 14 May 2020. The plaintiff later invoked the High Court's original jurisdiction under s 75(v) of the Constitution, seeking certiorari to quash the refusal and mandamus requiring the application to be determined according to law ([1]).
The plaintiff identified as a transgender man, having been assigned female gender at birth, and used he/him pronouns ([5]). At his interview with the delegate on 15 January 2020, he said he wanted gender-affirming surgery and that it was his dream to become a man. He explained that a doctor had told him that numerous procedures were involved, so surgery was not possible for him at that time ([14]). He also said the surgery was not conducted in Malaysia ([15]). The delegate's reasons instead recorded that he no longer wanted to proceed with gender reassignment ([16], [18]).
The recorded protection claims also included concern about reprisals from a loan shark and difficulties arising from his protection application and Malaysian passport ([11], [13]-[15]). The delegate considered refugee and complementary protection criteria, including whether effective state protection against loan sharks was available. The decision-maker concluded that the plaintiff did not qualify for protection ([17]-[22]).
The plaintiff filed his High Court application in November 2025, more than five years after the refusal. His affidavit described difficulties understanding the refusal notice, unsuccessful attempts to obtain help, moves between Australian cities and eventual assistance from the Asylum Seeker Resource Centre ([6]-[9]). The Court noted that some periods of delay were not satisfactorily explained, but did not decide whether delay independently justified refusal because the proposed jurisdictional-error grounds failed ([10]).
The Court refused both applications to extend time, dismissed the writ application and ordered the plaintiff to pay the Minister's costs ([48]). The parties had agreed that costs would follow the event ([47]).
The central reasoning was about materiality. The Court said that before a failure to address a claim could establish jurisdictional error, that claim had to be at least capable, on the material before the delegate, of satisfying the relevant protection criteria. If it could not, there was no realistic possibility that considering it would have produced a different decision ([26]). This meant the Court did not need to decide whether the delegate had in fact misunderstood the plaintiff's answers in order to resolve the surgery grounds.
For its analysis, the Court assumed in the plaintiff's favour that he had identified inability to obtain gender-affirming surgery as a form of harm on return to Malaysia ([25]). The Court nevertheless distinguished that asserted inability, without more, from claims based on particular persecution, discrimination, violence or adverse treatment. It noted that the plaintiff had not identified specific harm he would suffer because he could not undergo surgery, had not described hiding his transgender identity in Malaysia, and had provided no material about particular physical or mental consequences of returning without surgery ([32]).
For the refugee criterion, the asserted persecution had to involve “serious harm” under s 5J(4)(b). Section 5J(5) lists examples including threats to life or liberty, significant physical harassment or ill-treatment, significant economic hardship threatening subsistence, and denial of access to basic services where that denial threatens subsistence ([27]). The Court held that the material did not show that inability to access gender-affirming surgery, by itself, could satisfy those statutory categories. In particular, it did not show denial of a “basic” service in the relevant sense ([34]).
The Court treated the statutory serious-harm inquiry as objective. It referred to the observation in Chen Shi Hai v Minister for Immigration and Multicultural Affairs that denial of access to food, shelter, medical treatment and, for children, education may ordinarily depart sufficiently from civilised standards to constitute persecution. It explained that the relevant question was whether the asserted denial offended “the standards of civil societies which seek to meet the calls of common humanity” ([34]). On the record before the delegate, the Court was not satisfied that the absence of gender-affirming surgery in Malaysia met that standard.
The complementary protection ground failed for a related but distinct reason. Section 36(2A) defines significant harm through specified forms, including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment ([28]). The Court said there was no material about the consequences for this plaintiff of not having surgery or about the Malaysian government's intentions in not making it available. That absence mattered because the statutory definitions required intentional infliction of severe pain or suffering for cruel or inhuman treatment, or an act or omission intended to cause extreme unreasonable humiliation for degrading treatment ([35]). The Court did not hold that denial of medical treatment could never satisfy either statutory threshold. It accepted that a particular case might turn on its individual facts, while concluding that this record did not support the claim ([31]-[35]).
The DFAT report ground concerned loan sharks. Section 499(2A) required compliance with applicable ministerial directions, and Direction 84 required relevant DFAT country information prepared expressly for protection-status decisions to be taken into account ([37]). The delegate's reasons referred to the report and assessed state protection. The plaintiff relied on passages about social shame, threats or actual violence, and authorities' attitudes to people using loan sharks ([38]). The Court held those passages did not necessarily undermine the delegate's conclusion that nothing showed the plaintiff would be prevented from accessing state protection. It therefore found the alleged inference that the delegate had ignored relevant report material was not made out ([39]-[41]).
The remaining grounds concerned future risk and cumulative assessment. The plaintiff had not asserted that he feared harm in Malaysia because he was transgender ([32], [43]). The Court acknowledged that complementary protection does not require subjective fear, but said the delegate was not required to address a claim that had not been identified ([43]). The cumulative-claims ground did not rise above the other failed grounds ([44]-[45]). With all grounds failing, an extension of time would be futile ([46]).
The reasons apply statutory tests already contained in the Migration Act. The judgment does not purport to amend those tests or establish a new statutory category of harm. It explains how, on the record before this delegate, the serious-harm and significant-harm criteria operated in relation to a claim that surgery was unavailable in the country of return.
The Court's principal analytical statement is the materiality requirement at [26]. A failure to consider a claim matters for jurisdictional review only if the claim could have satisfied the protection criteria on the material available and could realistically have led to a different decision. The Court cited LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for that proposition. This makes the capacity of the particular claim, and the evidence supporting it, central to the inquiry.
For serious harm, the Court applied s 5J(4) and (5), including the listed examples in s 5J(5). Its reasoning treated “basic services” as an objective concept and used Chen Shi Hai to explain the relationship between denial of basic necessities or medical treatment and standards of common humanity ([34]). The judgment's holding is confined to the plaintiff's inability to obtain gender-affirming surgery without additional material about consequences or circumstances.
For complementary protection, the Court applied the defined categories in s 36(2A) and the relevant definitions in s 5(1). It relied on the need for intention in the statutory definitions of cruel or inhuman treatment and degrading treatment, referring to SZTAL v Minister for Immigration and Border Protection ([35]). Its analysis does not decide what evidence in another case would establish the required intention or the requisite degree of suffering.
The Court also states a limit on the decision-maker's obligation: an unasserted claim need not be addressed ([43]). That does not mean a decision-maker can disregard a claim that has been raised. Rather, this judgment turned on the finding that the plaintiff had not claimed fear of harm based on transgender status, as distinct from his claim about inability to obtain surgery. DQU16 v Minister for Home Affairs was cited for the focus on the person's circumstances and the basis on which the person claims those circumstances create the necessary risk ([43]).
The judgment's effect should therefore be described narrowly. It rejects the proposition that the evidence in this particular record made the surgery-availability claim capable of meeting the statutory thresholds. It does not establish that gender-affirming care can never be a basic service, that its unavailability can never contribute to serious or significant harm, or that discrimination based on transgender status is irrelevant to protection claims. Those broader questions were not decided on the material and claims before the Court.
At [26], the Court said a claim had to be “at least capable” of satisfying the protection obligations before a failure to address it could be material. In plain English, a procedural complaint does not by itself establish jurisdictional error. The omitted matter must have had a realistic capacity to affect the statutory decision.
At [25], the Court expressly proceeded on an assumption favourable to the plaintiff. It accepted for the purpose of analysis that he had raised inability to undergo surgery as a form of harm on return, notwithstanding that his interview answers might be read differently. This is important because the Court did not dismiss the surgery grounds simply by finding that no claim had been made. It tested the claim's legal capacity even on the favourable assumption.
At [34], the Court said serious harm and the limbs of s 5J(5) pose an “objective test”. It then asked whether this record could show denial of a basic service in the statutory sense. The passage does not classify all gender-affirming surgery, or every form of medical treatment, as either basic or non-basic. Its conclusion concerns the available material and the claimed inability “and nothing more”.
At [35], the Court explained that the significant-harm claim lacked evidence about the effect on the plaintiff and the intentions of the Malaysian government. In plain English, the statutory definitions considered by the Court required more than proof that surgery was unavailable. The relevant evidence would need to connect the unavailability to the defined form and character of harm.
At [40], the Court rejected the alleged DFAT-report failure because the passages relied upon did not necessarily contradict the delegate's assessment of available state protection. The point is not that country information may be ignored, but that the contents identified by the plaintiff did not establish the asserted failure in the reasoning actually given.
At [43], the Court said the delegate did not have to address a claim that had not been identified. The reasons distinguish the absence of a subjective-fear requirement for complementary protection from the need to assess the particular basis on which the person claims risk. The judgment therefore turns on what claim was advanced, not on a general rule that transgender status is immaterial.
The case is most relevant where a judicial-review applicant alleges that a protection decision-maker failed to consider a particular claim, and the court must decide whether that alleged omission was material. The judgment directs attention to whether the claim was capable, on the evidence before the decision-maker, of satisfying the relevant statutory criteria ([26]).
It is also relevant where the alleged harm is that a form of medical treatment or service is unavailable in the country of return. The decision indicates that the unavailability alone may not be enough: the statutory category, the person's circumstances, and evidence of consequences may matter. Here, the record did not identify particular physical or mental consequences, or a relevant intention by the state ([32]-[35]). The Court expressly left room for fact-sensitive cases in which denial of treatment could amount to serious or significant harm ([31]).
The judgment may also be relevant where a claimant relies on country information and alleges that a delegate failed to consider it. It shows the importance of comparing the report passages with the actual reasoning: the Court found no failure where the reasons addressed state protection and the material cited did not necessarily undermine that assessment ([37]-[41]).
Finally, the decision concerns claims not identified to a decision-maker. It distinguishes a claim about inability to obtain surgery from a claim of feared harm because of transgender status. The latter was not asserted on this record, so the delegate was not required to address it ([32], [43]). The judgment does not resolve how a decision-maker's obligations apply where the evidence or interview answers do identify such a claim.
The supplied judgment contains no discussion of any later court treating Plaintiff M98/2025 as precedent. It is dated 5 August 2026 and records the Court's own decision and its reliance on earlier authorities. Accordingly, later application, distinction, approval or criticism cannot be established from the material provided.
The judgment itself draws on earlier cases for specific propositions. It cites LPDT for the materiality principle ([26]); discusses Chen Shi Hai in relation to denial of basic services and standards of common humanity ([34]); cites SZTAL concerning intention in the statutory definitions ([35]); and cites DQU16 on individual circumstances and the basis of a complementary protection claim ([43]). These are the relationships shown by this judgment, not evidence of how subsequent courts have treated this decision.
The Court left open whether denial of access to gender-affirming surgery could amount to serious or significant harm in a case supported by different evidence. It accepted that a particular denial of medical treatment or a service might meet the statutory definitions depending on individual facts and circumstances ([31]). The judgment does not specify what evidence would be sufficient in another case.
The Court did not decide how a materially developed claim based on discrimination, violence, harassment, prosecution or other adverse treatment connected with transgender status would be assessed. It expressly distinguished the claim before it from a complaint that the delegate failed to assess adverse treatment because of transgender status, which the plaintiff had not made ([32], [43]). Nor did it decide how evidence about the actual effects of being unable to access treatment would interact with the statutory requirements for serious or significant harm.
The judgment also did not decide whether the delegate's characterisation of the interview answers was itself illogical, irrational or unreasonable. Because the surgery claim failed the capacity and materiality threshold on the evidence, the Court treated the proposed grounds as overlapping and did not need to resolve that separate factual characterisation question ([25]-[26], [36]).
Finally, the Court did not determine whether the periods of delay independently justified refusing an extension. It regarded that question as unnecessary after the proposed grounds failed ([10], [46]). The reasons therefore give no separate ruling on the sufficiency of the explanation for delay.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
JAGOT AND BEECH‑JONES JJ
PLAINTIFF M98/2025 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT
Plaintiff M98/2025 v Minister for Immigration and Citizenship
[2026] HCA 26
Date of Judgment: 5 August 2026
M98/2025
ORDER
1. The application pursuant to s 486A(2) of the Migration Act 1958 (Cth) be refused.
2. The application pursuant to r 4.02 of the High Court Rules 2004 (Cth) be refused.
3. The application for a constitutional or other writ be dismissed.
4. The plaintiff pay the defendant's costs of the proceedings.
Representation
The plaintiff is represented by Asylum Seeker Resource Centre
The defendant is represented by Australian Government Solicitor
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff M98/2025 v Minister for Immigration and Citizenship
Administrative law – Judicial review – Visas – Where plaintiff applied for protection (subclass 866) visa – Where evidence plaintiff assigned female gender at birth but identifies as male – Where plaintiff wished to undergo gender-affirming surgery – Where delegate erroneously construed plaintiff's answers in interviews as stating he no longer wished to undertake gender-affirming surgery – Where plaintiff did not assert he feared harm by reason of transgender status – Whether delegate committed jurisdictional error – Whether inability to access gender-affirming surgery in country of origin of itself capable of amounting to "serious harm" or "significant harm" – Whether failure to consider report by Department of Foreign Affairs and Trade – Whether delegate's obligation extends to addressing a claim not identified.
Words and phrases – "claims for protection", "complementary protection", "constitutional or other writ", "country information", "cruel or inhuman treatment or punishment", "degrading treatment or punishment", "denial of access to basic services", "failure to consider", "gender-affirming surgery", "gender identity", "illogical, irrational or unreasonable", "materiality", "protection obligations", "protection visa", "real risk", "serious harm", "significant harm", "standards of civil societies", "transgender status", "well-founded fear of persecution".
Plaintiff M98/2025
Minister for Immigration and Citizenship
(2024) 280 CLR 321
(2000) 201 CLR 293
(2017) 262 CLR 362
(2021) 273 CLR 1
High Court Rules 2004 (Cth), rr 4.02, 25.09.3.
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5LA, 36, 411, 412, 474, 476, 476A, 476B, 486A, 499.
GAGELER CJ, JAGOT AND BEECH-JONES JJ. On or about 26 November 2025 the plaintiff filed an application for a constitutional or other writ, invoking the original jurisdiction of this Court conferred by s 75(v) of the Constitution. The principal relief sought is the issue of writs of certiorari and mandamus directed to the Minister for Immigration and Citizenship ("the Minister"), quashing a decision of a delegate of the Minister made on 14 May 2020 to refuse the plaintiff's application for the grant of a permanent protection visa ("the protection visa application"), and requiring that application to be determined according to law. The plaintiff also seeks orders pursuant to s 486A(2) of the Migration Act 1958 (Cth) ("the Act") and r 4.02 of the High Court Rules 2004 (Cth) extending the period in which to file the application.
The decision of the delegate was a "Part 7-reviewable decision" within the meaning of former s 411(1)(c) of the Act1 and therefore was capable of being the subject of an application for merits review by the former Administrative Appeals Tribunal, although no such application was filed within the time period allowed.2 Accordingly, the delegate's decision was a "primary decision" within the meaning of s 476(4) of the Act.3 It follows that the Federal Circuit and Family Court of Australia (Division 2) does not have jurisdiction in relation to the decision4 and nor does the Federal Court of Australia.5 It further follows that these proceedings cannot be remitted to either court.6
On 14 May 2026, Beech-Jones J referred this application for hearing by a Full Court.7 The parties consented to the application being determined on the papers. These reasons explain our conclusion that the application must be dismissed.
The plaintiff is a national of Malaysia who arrived in Australia in May 2017. On or around 3 August 2017 the plaintiff applied for a Class XA – Protection visa (subclass 866) ("the protection visa").
As part of the plaintiff's application to this Court, the plaintiff filed an affidavit in which the plaintiff states that he was assigned a female gender at birth but identifies as male and uses he/him pronouns.
In respect of the delay between the delegate's refusal of the protection visa application in May 2020 and the filing of the application for a constitutional or other writ in November 2025, the plaintiff states in his affidavit that in May 2020 he was living in a house with others in Adelaide and received an email notifying him of the refusal of the protection visa application but that he could not read the email because he has difficulties reading English. A housemate read the email and advised him of the refusal. The plaintiff's housemates and their friend then offered to assist him in seeking review of the delegate's decision but asked for $10,000, which the plaintiff could not afford. After further futile attempts to seek assistance from others, the plaintiff moved to Cairns in late 2020.
While the plaintiff was living in Cairns a person applied for and obtained a Bridging E (class WE) (General) (subclass 050) visa on the plaintiff's behalf. The visa was only valid from 19 to 27 May 2021. The person who had provided the assistance did not respond to any request from the plaintiff for further assistance. In October 2022 the plaintiff moved to Melbourne. The plaintiff said that he paid "about $500-$600" for a friend to provide him with assistance but the friend only made an (invalid) application for a protection visa on his behalf.
Eventually, in December 2022, the plaintiff approached the Asylum Seeker Resource Centre for assistance.
An affidavit affirmed by the plaintiff's solicitor recounts the steps taken from that point until the filing of the application in this Court in November 2025, including conducting interviews with the plaintiff through an interpreter, seeking counsel's advice, and obtaining material pursuant to freedom of information requests made to the Queensland police.
The affidavits do not satisfactorily explain several periods of delay. Given our conclusion that the plaintiff has not established that the delegate's decision refusing the grant of a protection visa to the plaintiff is affected by jurisdictional error, it is unnecessary to determine whether the lengthy and in part unexplained delays in the filing of this application justify refusal of the application on a discretionary basis.
The protection visa application is not in evidence. However, the delegate's decision recounts the plaintiff's claims in the protection visa application as including that, if he returned to Malaysia, the plaintiff would face familial and societal ostracism on account of his transgender status. The decision records the plaintiff as stating that Malaysia has rules which do not permit a "person [to] have a transgender operation" but that he "will soon have an operation in Australia and become a perfect man" and that after the operation the plaintiff believed that the Malaysian "authorities will accept and protect" him.
The plaintiff attended an interview with the delegate on 15 January 2020. The transcript of the plaintiff's interview with the delegate records the plaintiff stating that he came to Australia to "change my life as [a] male", that the protection visa application was completed by a friend, and that "I don't know what's in it".
After seeking details concerning the friend who completed the form, the delegate asked the plaintiff open-ended questions as to what harm the plaintiff feared if he returned to Malaysia. The plaintiff stated that he feared retribution from a "loan shark" from whom he borrowed money and was also concerned about the consequences of having applied for a protection visa in Australia and being unable to renew his passport at the Malaysian consulate. At one point the plaintiff stated that he wanted to undergo "a sex change, to change to become a man ... but ... there are too many procedures". When asked if he feared that he would be hurt if he returned to Malaysia, the plaintiff replied, "no harm, I won't be hurt".
The following exchange then occurred:
"Q62 Do you fear harm from anybody in Malaysia?
A I'm only – I'm only scared of the loan shark, that's all.
Q63 Is there any reason why you can't report that to the government, to the authorities?
A Because it is illegal.
...
Q66 And what is happening with regards to your – you said that you wanted to have a sex change operation but there's too many things involved. Are you still planning to go ahead with that or not?
A Yes, I still would like to go ahead with it ... I went to ... a doctor, and a doctor was the one who told me about the numerous procedures that I had to go through if I would like to do a sex change. All I can say is that this is my dream, to become a – a man. But at the moment it's impossible because of the numerous procedures." (emphasis added)
"Q72 Did you have difficulties with your parents and family, yes or no?
A Oh no, I have a good relationship with them. My – my parents even accepted my – my dream to become a man, and my family.
Q73 Did you ever have problems with the government or authorities in Malaysia?
A No, no, never.
...
Q84 Okay. Do you fear harm on return to Malaysia for any other reason [than concerns about loan sharks and your passport]?
A Other reasons? I just can't have a sex change. No, no other reasons.
Q85 And what is the reason you can't have a sex change [in Malaysia]?
...
A They don't do that in Malaysia."
"The [plaintiff] ... stated that she came to Australia ... to have a sex change but had experienced a lot of problems and had lost a lot of money and was hurt. [The plaintiff] also stated that she no longer wants to have a sex change as there are too many procedures.
...
Later in the interview [the plaintiff] said the reason she did not want to return to Malaysia was because they do not conduct sex change operations there." (emphasis added)
The delegate considered whether the plaintiff was a person in respect of whom the delegate was satisfied that Australia had protection obligations, either because he was a refugee8 or because the delegate had substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there was a real risk that he would suffer "significant harm" (ie, a complementary protection claim).9
Insofar as the plaintiff made claims in relation to his inability to receive gender-affirming surgery, the delegate stated:
"While the [plaintiff] confirmed that she is a female to male transgender and had hoped to have a sex change operation, since arriving in Australia and having spoken with a doctor here, she has decided not to proceed with gender reassignment due to the numerous procedures she must undertake.
In consideration of the [plaintiff's] statement at interview that she no longer wishes to proceed with gender reassignment, it follows that I reject the claim relating to Malaysia not offering gender reassignment surgery, as this is no longer a consideration of the [plaintiff]."
The delegate then addressed the balance of the plaintiff's claims of feared harm on return to Malaysia against the statutory criteria for establishing his refugee status for the purposes of the Act.10 Amongst other things, the delegate reviewed material concerning the level of state protection afforded by the Malaysian authorities against reprisals from "loan sharks", and concluded that they were satisfied that "there are effective protection measures available to the [plaintiff] in the receiving country and that the [plaintiff] does not have a well-founded fear of persecution" for this reason.11
The delegate also did not accept that the plaintiff would suffer any detriment on return to Malaysia on account of having applied for a protection visa in Australia but accepted that the plaintiff might face a fine and be prevented from further travel for up to two years for not returning on a renewed and valid passport. However, the delegate reasoned that a fine or travel prohibition would be the result of a law that was generally applicable to all Malaysian nationals returning to the country under such circumstances, and that the application of such a law does not amount to persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.12 For the same reason, the delegate concluded that the plaintiff's inability to have his passport renewed, which would prevent his travel to Singapore to obtain work, did not constitute persecution for the purposes of the Act.
Otherwise, the delegate was not satisfied that any inability on the part of the plaintiff to "earn a livelihood" in Malaysia would amount to persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The delegate was not satisfied that considered individually or cumulatively the plaintiff would face a real chance of persecution now or in the reasonably foreseeable future. Accordingly, the delegate concluded that the plaintiff was not a refugee for the purposes of the Act.13
In respect of the complementary protection criteria,14 the delegate noted their finding that effective protection was available in Malaysia in respect of alleged reprisals by loan sharks.15 The delegate also noted that the consequences of returning without a passport would be faced by all such persons in those circumstances, as would the difficulties in seeking employment, such that any such risk was one faced by the population of Malaysia generally and not the plaintiff personally.16 The delegate considered that those conclusions had the consequence that the complementary protection criteria were also not satisfied.17
Proposed ground 1 of the application for a constitutional or other writ contends that in "wrongly determining that the plaintiff no longer wished to proceed with gender-affirming surgery, the delegate reasoned illogically, irrationally, or unreasonably". Proposed ground 2 of the application contends that the delegate committed jurisdictional error by failing to consider an "integer" of the plaintiff's claims for protection, namely that he feared harm if he returned to Malaysia because he could not receive gender-affirming surgery in that country and by not taking into account relevant country information provided by the Department of Foreign Affairs and Trade ("DFAT") to that effect.18
The "country information" was a detailed report concerning Malaysia prepared by DFAT, dated 13 December 2019 ("the Report"). The relevant part of the Report dealing with sexual orientation and gender identity noted that in Malaysia adult same-sex acts are illegal regardless of age and consent. The Report noted an instance in 2005 in which a transgender person was permitted to change their name, sex marker and related last digit on their identity card, but added that this practice has not been followed "and the National Registration Department does not generally allow transgender people to access such changes". The Report also noted that in 1983 a religious body banned Muslims from undergoing gender-affirming surgery. The Report noted that "[n]either [sexual reassignment surgery] nor transition therapy are available in Malaysia". The Report did not explain why they are not available. The Report also stated that transgender people in Malaysia experience instances of discrimination, violence and harassment.
Proposed grounds 1 and 2 are each premised on a contention that the delegate erred by wrongly concluding that the plaintiff did not wish to have gender-affirming surgery. Contrary to the delegate's reasons,19 the plaintiff told the delegate that he wanted to have gender-affirming surgery, but could not do so "at the moment" because of the numerous procedures involved.20 The plaintiff's answers during the interview with the delegate are capable of being construed as him stating that, although the reason he came to Australia was to undertake such surgery and he does not wish to return to Malaysia because that surgery is not available there, the "harm" he fears on his return is reprisals from loan sharks and difficulties arising with respect to the renewal of his Malaysian passport given his making of the protection visa application. Despite this, the balance of this judgment proceeds on the assumption, favourable to the plaintiff, that he identified in his interview an inability to undergo gender-affirming surgery as a form of harm he would suffer if he returned to Malaysia.
The plaintiff's contention in proposed ground 1 that it was illogical, irrational or unreasonable for the delegate to misunderstand the plaintiff's desire to proceed with gender-affirming surgery is no different in substance from the contention raised by proposed ground 2, being that the delegate constructively failed to exercise the jurisdiction conferred on the delegate to decide whether to grant the protection visa by not addressing an "integer" of the plaintiff's claims for protection. However, before a conclusion to that effect could be reached, the plaintiff's claim that he could not undergo gender-affirming surgery in Malaysia had to be at least capable of satisfying the delegate, on the material before the delegate, that the plaintiff was owed protection obligations21 or complementary protection22 under the Act. If the claim was incapable of meeting that threshold, then the alleged error could not have been material as there is no realistic possibility that a failure to address that claim could have yielded a different decision.23
To the extent that the protection visa application relied on the delegate being satisfied that Australia owed protection obligations to the plaintiff because he is a refugee,24 the plaintiff's claim concerning the unavailability of gender-affirming surgery in Malaysia had to be capable of amounting to "serious harm" to the plaintiff within the meaning of s 5J(4)(b) of the Act.25 To that end, s 5J(5) provides:
"Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist."
To the extent that the protection visa application relied on the delegate being satisfied of the plaintiff's claim to complementary protection under s 36(2)(aa) of the Act, the unavailability of gender-affirming surgery in Malaysia had to be capable of giving rise to, amongst other things, a "real risk" that the plaintiff would suffer "significant harm" if returned to Malaysia. Section 36(2A) defines "significant harm" as being suffered where a non-citizen is "arbitrarily deprived of his or her life", subjected to the death penalty, "subjected to torture", "subjected to cruel or inhuman treatment or punishment", or "subjected to degrading treatment or punishment".
As the issues concerning "serious harm" and "significant harm" were not addressed in the parties' initial submissions, the Court requested additional submissions addressing whether an inability to access gender-affirming surgery in Malaysia is, of itself, capable of amounting to "serious harm" or "significant harm" as defined by the Act.
The plaintiff submitted that his inability to access gender-affirming surgery could have successfully engaged Australia's protection obligations and founded a complementary protection claim because that inability: (i) "denies him from expressing a fundamental part of his self-identity as a man"; (ii) exposes him to harm as a lesbian "given his wish to change sexual preference" and the fact that "same sex acts are illegal in Malaysia"; and (iii) "arises in a context of exposure [in Malaysia] to the serious and significant harm faced by lesbians and transgender persons, such as re-education, harassment, violence, arrest and potential prosecution".
The defendant accepted that, in a particular case, it may be open to find that the denial of a particular medical treatment or service may result in serious harm or significant harm as defined but added that "[s]uch a finding would be sensitive to the individual facts and circumstances". The defendant submitted that, on the material before the delegate, which referred only to the plaintiff's "dream" of "becom[ing] a man", the "unavailability of gender-affirming surgery in Malaysia was not capable of amounting to serious or significant harm in respect of the plaintiff in the present case".
The defendant's submissions must be accepted. The type of jurisdictional error alleged by the plaintiff is a failure by the delegate to address the protection visa application on the basis that the plaintiff wished to undergo gender-affirming surgery and could not do so in Malaysia. The complaint is not of any failure of the delegate to address whether the plaintiff would suffer discrimination or adverse treatment on his return to Malaysia by reason of his status as a transgender person. The plaintiff did not identify any forms of harm to which he would be subjected on his return to Malaysia if he did not undergo gender-affirming surgery and did not recount any circumstances of having hidden his transgender identity while he lived in Malaysia. There was no material before the delegate to the effect that the plaintiff would suffer any particular adverse physical or mental consequences if he was required to return to Malaysia not having undergone gender-affirming surgery.
In these circumstances, grounds one and two must be assessed by determining whether the plaintiff's inability to obtain gender-affirming surgery in Malaysia, of itself and without more, was capable of amounting to "serious harm" for the purposes of engaging Australia's protection obligations or of amounting to "significant harm" for the purposes of a claim to complementary protection.
We do not accept that the material before the delegate could demonstrate that the plaintiff's inability to access gender-affirming surgery in Malaysia (and nothing more) amounted to "serious harm" for the purposes of s 5J(4)(b) of the Act. Such a claim was not (of itself) capable of satisfying s 5J(5)(a)-(d) or (f) of the Act. Although not necessarily synonymous, s 5J(5)(e) reflects the observation of the plurality in Chen Shi Hai v Minister for Immigration and Multicultural Affairs26 that "[o]rdinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution". The concept of "serious harm" and the limbs of s 5J(5) pose an objective test. The material before the delegate was not capable of demonstrating that an inability to access gender-affirming surgery in Malaysia (and nothing more) involved the denial of a "basic" service (including medical treatment), in the sense that lack of access to that surgery would "offend[] the standards of civil societies which seek to meet the calls of common humanity".27
Similarly, on the material before the delegate, the plaintiff's inability to have gender-affirming surgery in Malaysia (and nothing more) was incapable of amounting to "significant harm" for the purposes of a claim to complementary protection. There was no material suggesting that an inability of that kind involves any circumstance within the scope of that defined term.28 For a person to be subjected to "cruel or inhuman treatment or punishment"29 the conduct must involve the intentional infliction of "severe" pain or suffering (whether physical or mental), or pain or suffering (whether physical or mental) that could reasonably be regarded as cruel or inhuman in nature.30 To constitute "degrading treatment or punishment"31 there must be "an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable".32 In the absence of any material before the delegate regarding either the effect on the plaintiff of not undertaking gender-affirming surgery before returning to Malaysia or the intentions (or otherwise) of the Malaysian government in not making such surgery available, there was no material before the delegate capable of demonstrating that the plaintiff's inability to access gender-affirming surgery would constitute an intentional infliction of physical or mental pain or suffering or would intentionally cause extreme humiliation which is unreasonable.33
Accordingly, proposed grounds 1 and 2 are not established.
Proposed ground 3 of the plaintiff's application contends that the delegate's decision was affected by jurisdictional error, being an alleged failure to have regard to parts of the Report that concern "loan sharks" as required by s 499(2A) of the Act. Section 499(1) of the Act empowers the Minister to give written directions to persons such as the delegate regarding the performance of their functions or exercise of their powers under the Act. Section 499(2A) obliges such persons to comply with such a direction. Such a direction was issued, Direction No 84 – Consideration of Protection Visa Applications ("Direction 84"), on 24 June 2019. Direction 84 requires a decision maker such as the delegate to take into account country information assessments prepared by DFAT "expressly for protection status determination purposes", where that information is relevant in making their decision. The plaintiff contends that the delegate did not properly consider the contents of the Report and that the delegate's failure to do so constitutes jurisdictional error.
The delegate's reasons contain numerous references to the Report. However, the plaintiff contends that the delegate failed to have regard to part of the Report that states that persons who are unable to service their debts may face societal discrimination and a real or perceived risk of violence from loan sharks. The plaintiff also refers to parts of the Report stating that "[t]here is significant societal shame associated with not being able to repay a loan shark", "[s]ources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence", and "DFAT understands that authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice".
The reasoning of the delegate is summarised above.34 The delegate assessed the plaintiff's claims to protection as they related to "loan sharks" in the context of considering the existence of "effective protection measures" available to the plaintiff in Malaysia.35 The availability of such measures precludes an applicant for a protection visa from satisfying the definition of "refugee" as defined by s 5H of the Act.36 The delegate noted that "[w]hile acknowledging that country information indicates there is some corruption in the police, there is nothing before me that indicates the applicant would be prevented from accessing state protection" and that the "country information [is] indicative of the Malaysian government and law enforcement ... tak[ing] action against loan sharks". The delegate concluded that the plaintiff could access "an appropriate level of state protection in Malaysia such that their fear of serious harm in that country is not well-founded" and the plaintiff "would receive protection from the Malaysian police and judiciary in Malaysia against any threats they face from ... a loan shark".
Contrary to the plaintiff's contentions, the delegate's conclusion is not "at odds" with the Report. The portions of the Report relied on by the plaintiff do not necessarily undermine the delegate's assessment that there was "nothing" in the materials before them to suggest that the plaintiff would be "prevented" from accessing state protection and that an "appropriate" (ie, effective) level of state protection was available.37 The factual foundation for this proposed ground of the application, namely the alleged inference that the delegate did not have regard to relevant parts of the Report, is not made out.
Proposed ground 3 is not established.
Proposed ground 4 contends that in not accepting that Australia owes protection obligations to the plaintiff, or that the plaintiff has a claim to complementary protection, the delegate failed to consider whether the plaintiff may experience harm in the reasonably foreseeable future. Specifically, the plaintiff contends that the delegate failed to address the risk of harm to him arising by reason of the plaintiff's status as a transgender man and his expressed desire to undergo gender-affirming surgery, and his concern that he would be unable to do so in Malaysia.
To the extent that ground 4 concerns the plaintiff's desire to undergo gender-affirming surgery, it has already been addressed. To the extent it concerns the plaintiff's transgender status, as noted above, the plaintiff did not assert that he feared harm in Malaysia by reason of such status.38 Although a complementary protection claim does not require the putative visa holder to hold a subjective fear of the relevant harm,39 the delegate's obligation did not extend to addressing a claim that was not identified.40
Proposed ground 5 contends that there was a failure by the delegate to consider the cumulative effect of the plaintiff's claims for protection, as well as the risk of harm arising from the plaintiff owing money to a loan shark. This ground rises no higher than the other grounds.
Proposed grounds 4 and 5 are not established.
The parties agreed that costs would follow the event.
The following orders should be made:
The application pursuant to s 486A(2) of the Migration Act 1958 (Cth) be refused.
The application pursuant to r 4.02 of the High Court Rules 2004 (Cth) be refused.
The application for a constitutional or other writ be dismissed.
The plaintiff pay the defendant's costs of the proceedings.
Namely, the decision was a decision to refuse to grant a protection visa, other than a decision relying on Migration Act 1958 (Cth), s 5H(2), 36(1B)-(1C) or 36(2C)(a)-(b). ↩
Migration Act 1958 (Cth), s 412(1). ↩
Migration Act 1958 (Cth), s 476(4)(b); see also Migration Act 1958 (Cth), s 474(2). ↩
Migration Act 1958 (Cth), s 476(2)(a). ↩
Migration Act 1958 (Cth), s 476A(1). ↩
Migration Act 1958 (Cth), s 476B. ↩
Pursuant to High Court Rules 2004 (Cth), r 25.09.3(d). ↩
Migration Act 1958 (Cth), s 36(2)(a). ↩
Migration Act 1958 (Cth), s 36(2)(aa); see also Migration Act 1958 (Cth), s 36(2A). ↩
See Migration Act 1958 (Cth), ss 5H, 36(2)(a); see also Migration Act 1958 (Cth), s 5J. ↩
See Migration Act 1958 (Cth), s 5J(2). ↩
Migration Act 1958 (Cth), s 5J(1)(a). ↩
Migration Act 1958 (Cth), s 36(2)(a); see also Migration Act 1958 (Cth), s 5H. ↩
Migration Act 1958 (Cth), s 36(2)(aa). ↩
Migration Act 1958 (Cth), s 36(2B)(b). ↩
Migration Act 1958 (Cth), s 36(2B)(c). ↩
Migration Act 1958 (Cth), s 36(2)(aa). ↩
As required by Migration Act 1958 (Cth), s 499(2A) and Direction No 84 – Consideration of Protection Visa Applications. ↩
See above at [16]. ↩
See above at [14]. ↩
Migration Act 1958 (Cth), ss 36(1A)(b), 36(2)(a). ↩
Migration Act 1958 (Cth), ss 36(1A)(b), 36(2)(aa). ↩
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at 327 [7]. ↩
See Migration Act 1958 (Cth), ss 5H(1)(a), 36(2)(a). ↩
A person is a refugee if, amongst other matters, they have a "well-founded fear of persecution": Migration Act 1958 (Cth), s 5H(1)(a). To have a "well-founded fear of persecution", the persecution must "involve serious harm to the person": Migration Act 1958 (Cth), s 5J(4)(b). ↩
(2000) 201 CLR 293 at 303 [29]. ↩
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 303 [29]. ↩
Migration Act 1958 (Cth), s 36(2A)(a)-(e). ↩
Migration Act 1958 (Cth), s 36(2A)(d). ↩
Migration Act 1958 (Cth), s 5(1) (definition of "cruel or inhuman treatment or punishment"). ↩
Migration Act 1958 (Cth), s 36(2A)(e). ↩
Migration Act 1958 (Cth), s 5(1) (definition of "degrading treatment or punishment"). ↩
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 372 [26]-[27]. ↩
See above at [17]-[22]. ↩
Migration Act 1958 (Cth), s 5LA. ↩
See Migration Act 1958 (Cth), ss 5J(2), 5LA; see also Migration Act 1958 (Cth), s 36(2)(a). ↩
See Migration Act 1958 (Cth), s 5LA(2). ↩
See above at [32]. ↩
DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at 14 [21]. ↩
"Assessing the risk that a non-citizen will suffer significant harm within s 36(2A) necessarily involves an assessment of the individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk": DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at 13 [19] (emphasis altered). ↩
The applications under s 486A(2) of the Migration Act 1958 (Cth) and r 4.02 of the High Court Rules 2004 (Cth) were refused, the application for a constitutional or other writ was dismissed, and the plaintiff was ordered to pay the defendant’s costs.