Federal Court of Australia

DDK18 v Minister for Immigration and Citizenship [2025] FCA 712

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is a Malaysian Tamil. She came to Australia in 2010 on a subclass 976 Electronic Travel Authority visa and has remained here since. In 2015, she applied for a protection visa, on multiple bases that are particularised in some detail below.

2    That application (the “Visa Application”) came before a delegate of the first respondent (the “Minister”), who, by a decision made on 20 July 2016, declined it. The appellant then sought to have that decision reviewed by the second respondent (the “Tribunal”). That application (the “Review Application”) was heard and, by a decision dated 18 May 2018, the Tribunal affirmed the initial decision of the Minister’s delegate.

3    That decision (the “Tribunal’s Decision”) was then the subject of an application for judicial review, which the appellant made to what was then known as the Federal Circuit Court (now the Federal Circuit and Family Court of Australia (Division 2)—hereafter, the “FCFCOA”). That application (the “Judicial Review Application”) was dismissed with costs: DDK18 v Minister for Citizenship, Immigration and Multicultural Affairs [2024] FedcFamC2G 793 (Judge Riley; hereafter, the “Primary Judgment”).

4    By a notice of appeal dated 26 September 2024, the appellant now appeals from the whole of the Primary Judgment. For the reasons that follow, that appeal should be dismissed and the appellant should pay the Minister’s costs.

The Visa Application and the Tribunal’s Decision

5    The relevant background facts are summarised without controversy in the Primary Judgment, [2]-[3] and I gratefully adopt that summary. For present purposes, it is necessary only to highlight a small number of matters.

6    The appellant’s claim to protection rested upon the appellant’s concerns about what her ex-husband might do to her were she to return to Malaysia. She claimed that, during their marriage, he had beaten her and their children, and that he had physically and mentally tortured her. Additionally, she maintained that he had made threats against her and their children.

7    Before the Tribunal, it emerged that the appellant had separated from her ex-husband four years prior to her arrival in Australia and that, during that period, she had not had any contact with him. Their children now reside (and have long resided) with the appellant’s mother and sister in Penang.

8    The appellant indicated to the Tribunal that she had come to Australia for financial reasons; and that she wished to stay so that (or that at least one of her reasons for wishing to stay was that) she might provide financial support to her daughter, who was then studying.

9    In the course of her evidence, it emerged that the appellant had been in a relationship with a man in Australia, who had since passed away. The context in which that relationship came to be disclosed to the Tribunal is difficult to identify; but it appears from the hearing transcript and other documents that were before the Tribunal that it arose from documents that the appellant had put before the Tribunal (albeit for reasons that defy precise articulation). In particular, the Tribunal was shown a letter from a collection agency dated 15 November 2012, which referred to an amount of $12,740.00 that was said to be owing to the Hunter New England Local Health Network. Though not addressed to her, the appellant explained (via an interpreter) that the letter (and the amount to which it referred) related to a “…bill that was sent to me by the man who tortured me”. She explained that the man in question had “…used [her] passport saying that [she] was his wife”.

10    Those observations were met with a measure of confusion by the Tribunal, no doubt because they were not obviously reconcilable with the claims that the appellant had advanced in support of her Visa Application (which asserted that she was owed protection solely by reason of her fears that a different man, namely her ex-husband, would harm her were she to return to Malaysia).

11    Nonetheless, the appellant also supplied to the Tribunal a death certificate, which bore the same name as the addressee on the letter of 15 November 2012. Before the Tribunal, the appellant identified it as pertaining to the “man who tortured [her]”. Later during her oral evidence before the Tribunal, the appellant explained that, after arriving in Australia, she had entered into some kind of relationship with that same man. She reiterated that he (the man in Australia) had subjected her to “[l]ots of torture” and had “broke[n her] arm and [her] forehead”.

12    The hearing before the Tribunal took place on 13 December 2017. On 9 May 2018, the Tribunal wrote to the appellant, requesting that she provide, within 7 days:

•    Birth certificates for both her children

•    Marriage certificate and divorce certificate for herself

•    Documentation related to her hospitalisation after her husband’s beatings [and]

•    Police reports related to her husband’s abuse.

13    That correspondence went unanswered and the Tribunal proceeded to determine the Review Application. In its written reasons for decision, the Tribunal explained that (emphasis original):

…the [appellant] added to her claims and stated she was also in an abusive relationship in Australia. Her friend with whom she had lived…was violent towards her and controlling.

14    Under the heading “Credibility”, the Tribunal recorded in its written reasons some observations concerning the manner in which it should assess whether or not the appellant’s claims were credible. Amongst other things, it was noted that “…[t]he benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims” and that “…if it [were to make] an adverse finding in relation to a material claim made by the [appellant] but [were] unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true”.

15    The Tribunal’s reasons then set about summarising the evidence that was before it. Amongst other things, that summary touched upon what the appellant had said about her relationship with the deceased man in Australia. At [29] of its reasons, the Tribunal observed as follows:

29.    The [appellant] claimed she was living with a Malaysian man in Australia and he was abusive and controlling. The [appellant] then produced a death certificate for the man. The Tribunal finds that…whilst it was certainly possible that the applicant was in an abusive relationship with this Malaysian man whilst living in Australia this has ended as the man has died and the applicant is now living with another man and the issue is unrelated to her claims for protection.

16    Under the heading, “Assessment of claims”, the Tribunal recorded five concerns that had led it to consider that what the appellant had advanced was not credible (emphases original):

32.    First, the [appellant] was separated from her ex-husband from 2006 until 2010 when she arrived in Australia. When asked during the hearing what contact she had with her ex-husband during those four years she said none. Further, when asked if her ex-husband had caused any trouble for her or her children during those four years she said no. When asked if she had contact with her ex-husband since being in Australia the [appellant] said no. The [appellant] arrived in 2010 and appeared before the Tribunal in 2017. In those seven years she has not had contact with her ex-husband. The Tribunal finds this a significant period of time in which the [appellant] has had no contact whatsoever with her ex-husband. The claimed fear that she or her children will be sold or harmed by the ex-husband is unfounded given that the children have remained in the country without her for almost eight years now in the care of the [appellant’s] mother and nothing has happened.

33.    Secondly, the [appellant] was in Australia for five years before she applied for a protection visa. If the [appellant] had really felt threatened and fearful of her ex-husband and came to Australia seeking refuge the [appellant] would have applied for protection when she arrived instead the [appellant] waited five years before applying. The Tribunal considers that if the [appellant] had a genuine and urgent fear of persecution arising out of her circumstances, the [appellant] would have sought to lodge a protection visa application much earlier, and the delay leads to a consideration that her claims in this regard are not urgent or genuine.

34.    Third, the [appellant] stated at the Tribunal hearing that she was concerned that if she went back to Malaysia she would not be able to get a job to support her daughter who wants to go to law school. Her daughter has been living with her mother but her mother is getting old and her eyesight was getting bad. This as evidenced by the [appellant’s] own words that she is concerned about how she can obtain employment upon return to Malaysia and not out of concern for her ex-husband.

35.    Fourth, the [appellant] told the Tribunal that she was in an abusive relationship with a Malaysian man whilst she was living in Australia. The [appellant] submitted the death certificate of the man who died in 2015. Since the relationship has ceased as the man in question is deceased the Tribunal did not take the relationship into consideration when making its findings on the claims for protection.

36.    Fifth on 9 May 2018 the Tribunal requested that the [appellant] provide the Tribunal with the following documents within seven days:

•    Birth certificates for both her children

•    A marriage certificate and divorce certificate for her ex husband

•    Documentation related to her hospitalisation after her husband’s beatings

•    Police reports related to her husband’s beatings

37.    The [appellant] did not respond to the Tribunal on this request. Without these documents the Tribunal cannot be certain that the [appellant] has any children as they were not listed in her visa application nor did the [appellant] provide any details such as names and dates of birth for her children. Nor can the Tribunal be certain she was married, divorced and beaten by her ex-husband. The [appellant] did not provide any documentation of any kind.

38.    Given these concerns the Tribunal does not accept that the [appellant] is a credible witness. For the reasons set out above, the Tribunal does not accept the [appellant’s] claims that her ex-husband abused her and beat her and her children. It follows that the Tribunal does not accept that the [appellant] fears that she or her children will be sold, or that her ex-husband wanted to prostitute her out. Based on the same credibility findings the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to Malaysia there is a real risk of significant harm, including that the [appellant] will suffer significant harm based on these claims, both individually and cumulatively considered.

17    The original decision of the Minister’s delegate to dismiss the Visa Application was, thus, affirmed.

The Judicial Review Application

18    The appellant sought to challenge the Tribunal’s Decision in the FCFCOA on multiple bases, only two of which bear any relevance to the present appeal.

19    The first concerned the observations that the Tribunal recorded at [36] and [37] of its reasons. Before the learned primary judge, the appellant contended that the Tribunal had impermissibly conditioned her success on the Visa Application upon provision of corroborating documents. An equivalent ground is advanced now on appeal and it is unnecessary to here record the reasoning by which the primary judge was disposed not to accept it.

20    The second relevant challenge concerned the Tribunal’s failure—or what was said to be its failure—to take account, when making the credibility findings that it made, of the appellant’s evidence about her relationship in Australia with the “…man who tortured [her]”. The appellant submitted that the proper exercise of the Tribunal’s jurisdiction did not permit it to make those findings without first taking account of that evidence. As the primary judge summarised the contention: it was said that the Tribunal was obliged to assess the credibility of the appellant’s claims “…through a trauma-informed lens”. Again, an equivalent ground is advanced now on appeal and it is unnecessary to record in these reasons why it was that the primary judge was not disposed to accept it.

21    There is, however, one respect in which it is necessary to map out some of the primary judge’s reasoning. Before doing so, some context is required.

22    Ahead of the hearing of the Judicial Review Application, the solicitors for the appellant (then the applicant) prepared an affidavit, which was then sent to the Minister’s solicitors with a request for confirmation that there would be no resistance to its being relied upon. The content of the affidavit is not before the court presently (and is not, in any event, significant); but it is apparent that it was directed to whether or not the error by which the appellant had claimed that the Tribunal’s credibility findings were affected was material (and, therefore, jurisdictional).

23    On 27 May 2024, the Minister’s solicitor responded to the appellant’s solicitors in the following (relevant) terms:

…

The Minister accepts that:

•    An error under ground two that, in the course of its credibility assessment, the Tribunal should have but failed to take into account the applicant’s evidence of being in an abusive relationship with a Malaysian man in Australia would have been material.

…

24    Ultimately, the affidavit that had been prepared was not relied upon. Instead and by way of oral submission, counsel for the appellant (then the applicant) recorded before the primary judge the concession that the Minister had offered.

25    In her reasons for judgment, the primary judge outlined why it was that the appellant’s “trauma-informed lens” argument should not succeed. Her Honour began by stating the proposition as it had been advanced before her:

19    The [appellant] submitted that the Tribunal failed to have regard to the abusive relationship with the man in Australia when assessing the [appellant’s] credibility, and, in particular, the five year delay in her lodging her protection visa application, and the fact that her evidence was “jumbled and unclear”: [21]. The [appellant] submitted that the Tribunal should have assessed the [appellant’s] claims through a trauma-informed lens.

26    After referring to authority, her Honour continued:

21    In the present case, the Tribunal did not say that the [appellant’s] evidence in general was “jumbled and unclear”. That assessment was only made in relation to the [appellant’s] claim about a Mr Wen who worked in the Department and who she said could get her a visa for $5,000. Having read the transcript of the hearing before the Tribunal, it was not generally “jumbled and unclear”, except the very small part of the [appellant’s] evidence dealing with Mr Wen. That suggests that the [appellant’s] evidence about Mr Wen was not “jumbled and unclear” for trauma reasons, but because she was confused about that particular issue.

22    The [appellant] did not claim that the reason for the five year delay in lodging her protection visa application was because she had suffered family violence. Having said that, the Tribunal did not ask the [appellant] for an explanation for that delay, and nor was it obliged to.

23    Even without the five year delay, the credibility issue that the Tribunal identified first, and which it presumably considered the most serious, was that the [appellant] had lived in Malaysia for four years after her relationship with her ex-husband ended without coming to any harm from him, and her children had lived in Malaysia for a further eight years without coming to any harm from him. These circumstances could not be seen differently through a trauma-informed lens. They meant, in the Tribunal’s view, that the [appellant’s] claimed fear of her ex-husband was not well-founded. Moreover, the [appellant] told the Tribunal that the reason she did not wish to return to Malaysia was so that she could earn money to send her daughter to law school, rather than because she was afraid of her ex-husband.

24    The Tribunal’s assessment of credibility in this case was reasonable and logical. It does not seem to me that a trauma-informed lens would have changed the basic calculus. Ground 2 is not made out.

The present appeal

27    The present appeal proceeds upon four grounds, which it is convenient now to rehearse (emphases original):

1.    The primary judge denied the Appellant procedural fairness by departing from a concession made by the First Respondent (the Minister) that, if the Second Respondent (the Tribunal) erred, in the context of its credibility assessment, by failing to have regard to evidence of the Appellant having been in an abusive and controlling relationship with a Malaysian man in Australia for several years, then that error was material; and by the primary judge doing so doing [sic] without putting the Appellant on notice that the primary judge proposed to depart from the concession and giving the Appellant an opportunity to address why the concession ought not be departed from.

Particulars

(a)    The Appellant asserted in the Court below that the Tribunal constructively failed to exercise jurisdiction and/or to discharge its statutory task by failing, in the context of its credibility assessment, to have regard to evidence of the Appellant having been in an abusive and controlling relationship with a Malaysian man in Australia for several years.

(b)    The Minister conceded that, if the error was established, it was material.

(c)    The primary judge concluded at [24] of the Judgment: “It does not seem to me that a trauma-informed lens would have changed the basic calculus”, thus departing from the concession on the question of materiality made by the Minister.

(d)    The primary judge did not refer to the concession on materiality in the Judgment, did not put the Appellant on notice that the primary judge proposed to depart from the concession, and did not give the Appellant an opportunity to address the Court on why the concession ought not be departed from.

2.    The primary judge made an error of law and/or asked the wrong question in concluding that, had the Tribunal had regard in the context of its credibility assessment to evidence of the Appellant having been in an abusive and controlling relationship with a Malaysian man in Australia for several years, this “would [not] have changed the basis calculus”.

Particulars

(a)    At [24] of the Judgment, the primary judge reached a conclusion to the effect that a trauma-informed lens “would” not have changed the basic calculus.

(b)    Contrary to the approach at [24] of the Judgment, the task before the primary judge in respect of ground 2 in the Court below was to determine whether: (i) the Tribunal erred in failing to take into account the Appellant’s prior abusive relationship in Australia in the context of its credibility assessment; and (ii) on the question of materiality (to the extent the question arose in light of the Minister’s concession), whether the result could (rather than “would”) realistically have been different if there had been no error.

3.    The primary judge erred in law in failing to conclude that the Tribunal constructively failed to exercise jurisdiction and/or to discharge its statutory task by failing, in the context of its credibility assessment, to have regard to evidence of the Appellant having been in an abusive and controlling relationship with a Malaysian man in Australia for several years.

Particulars

(a)    The reasoning at [21]-[24] of the Judgment focussed in an isolated fashion on aspects of the Tribunal’s credibility assessment.

(b)    The primary judge erred in failing to conclude that the Appellant’s history of an abusive relationship in Australia was highly significant to the way in which the Tribunal assessed the Appellant’s credibility, having regard to the fact that credibility assessments are not linear.

4.    The primary judge erred in law in failing to conclude that the Tribunal made a jurisdictional error in requiring that the Appellant provide corroborating documentary evidence to substantiate her claims that she had children, had been married and divorced, and had been beaten by her ex-husband.

Particulars

(a)    The primary judge erred in concluding for the reasons at [11]-[15] of the Judgment that the Tribunal did not impose a requirement of documentary corroboration on the Appellant.

(b)    It was not open to the primary judge to make the finding at [11] of the Judgment that most of the documents requested by the Tribunal “would have existed if [the Appellant’s] claims had been true”.

(c)    On a proper construction, the Tribunal’s reasons at [37] of the 18 May 2018 decision impermissibly imposed a requirement that the Appellant corroborate foundational aspects of her claims by way of documentary evidence.

28    Grounds 1 and 2 are related, in that each pertains to the suggestion that the primary judge proceeded on the basis that any error as had been alleged (and as continues to be alleged now by appeal ground 3) would not have altered the outcome of the Review Application. I shall address those grounds together; and, otherwise, will address each in turn.

Grounds 1 and 2: the materiality error

29    The appellant submits that the primary judge erred insofar as she was drawn to a conclusion that deviated from the materiality concession that the Minister had made (above, [23]). As has been noted, the error is put in two ways: as a failure to afford procedural fairness and as an incorrect assessment of materiality.

30    Both grounds invite consideration as to whether the primary judge should be understood to have reasoned that any error of the kind that the appellant alleged—that is, any error inhering in a failure by the Tribunal to employ a “trauma-informed lens” when assessing the credibility of the appellant’s claims—was not material to the outcome of the Review Application and, therefore, was not jurisdictional in nature.

31    Respectfully, that is not how the primary judge reasoned. Before this court on appeal, counsel for the appellant properly accepted that the primary judge’s conclusion was that the Tribunal did not err in the way that the appellant had alleged (that is to say, had not, when assessing the credibility of her claims, impermissibly failed to take account of her evidence about the relationship that she had had with the now-deceased man in Australia). Her Honour’s finding was not that any such error was immaterial; but, rather, that no such error had transpired.

32    It necessarily follows that her Honour’s reasoning cannot be impugned as involving a failure to afford procedural fairness. Nor can it be thought to have formed part of the ratio by which her Honour determined the application before her. Her Honour determined the Judicial Review Application consistently with the arguments that were advanced. The most that might be said of her observation that a “trauma-informed lens” would not have altered the “basic calculus” is that it was unnecessary. Whether that is so or not, it does not reflect appellable error.

33    Neither of appeal grounds 1 or 2 is made good.

Ground 3: the “trauma-informed lens” error

34    The appellant’s more substantive appeal ground posits that her Honour was wrong not to recognise jurisdictional error in the Tribunal’s failure, when assessing the credibility of the appellant’s claims, to take account of the evidence that she gave about her relationship with the now-deceased man in Australia. The error that is alleged (as against the Tribunal) is described as a constructive failure to exercise its jurisdiction or discharge its statutory task.

35    Howsoever described, the error of jurisdiction that the appellant here attributes (and, before the primary judge, attributed) to the Tribunal inheres in a failure to take account of a matter of which the proper exercise of its power obliged it to take account. Two questions thus arise: first, did the tribunal in fact fail in the manner that is alleged (that is to say, did it fail to take account of the matters to which the appellant points); and second, if it did, was the proper exercise of its statutory powers conditioned upon its doing what it failed to do?

36    As to whether or not the Tribunal failed, when assessing the credibility of her claims to protection, to take account of the evidence that she had given about her relationship with the now-deceased man in Australia, the appellant submits that that failure may be inferred from the Tribunal’s reasons.

37    Something might be said about what it means for a decision maker to consider or take account of something. Where, in the context of an administrative decision, a party advances a particular submission or leads particular evidence, the representation so advanced will stand considered or taken account of if the decision maker thereafter makes his or her decision having read, identified, understood and evaluated it: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (“Plaintiff M1”), 604 [36] (Kiefel CJ, Keane, Gordon and Steward JJ; Gageler J agreeing with the outcome; Edelman and Gleeson JJ dissenting but not on that point).

38    Whether a decision maker has taken account of a particular matter in a particular way is a question of fact. In the absence of direct evidence about how the decision was made, it is a question that can only be answered by inference. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), this court observed (at 604-5 [47]):

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

39    The level of engagement and the degree of effort required by a decision maker to “consider” a submission adequately will necessarily depend upon the manner in which it is advanced: Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73, [157] (Katzmann, Wheelahan and Raper JJ). In Plaintiff M1, the plurality observed (at 599 [25]):

…The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, amongst other things, according to the length, clarity and degree of relevance of the representations… The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them…

40    As has already been noted, the context in which the appellant sought to introduce evidence concerning the relationship that she had with the now-deceased man in Australia was not immediately apparent. It was not, for example, then suggested (as it now is) as a circumstance that might have explained why it took her approximately five years after arriving in Australia to make her application for a protection visa. As the Minister fairly submitted, the appellant did not suggest before the Tribunal that her experiences in Australia somehow bore upon the claims that she had made about the events that transpired prior to her departure from Malaysia (or that might transpire were she to return there).

41    That acknowledged, I would be slow to accept that the Tribunal might be understood not to have considered what was advanced simply because of the cursory way in which it described that evidence in its reasons. It is plain that the Tribunal was alive to what the appellant had said. It referred twice to her evidence, albeit on each occasion on the footing that it did not bear upon her claims to protection. As the authorities make plain, it was not obliged specifically to advert, in the context of its credibility assessment, to what she had advanced. Having not been linked in any obvious way to the appellant’s protection claims, the Tribunal was entitled to doubt that that evidence bore materially (if at all) upon its task.

42    There is, then, fertile ground upon which to doubt that, when it assessed for credibility the appellant’s claim to protection, the Tribunal might fairly be said not to have been cognisant of what she had said about her relationship in Australia with the abusive man who died in 2015. Given the manner in which that evidence was advanced, the Tribunal’s failure to advert to it expressly in the context of its credibility findings is explicable as much by a failure to consider it as by recognition that it was not considered material or worthy of anything more than the summary observations that were made. That being so, I am not persuaded that the primary judge ought properly to have inferred what the appellant invited her to infer; nor that her failure to accept that invitation reflects appellable error that this court should correct on appeal.

43    There is, though, a more significant hurdle for the appellant. Even assuming that the Tribunal should be understood to have made its credibility assessments without considering the appellant’s evidence of her experience in Australia, that failure will only qualify as an error of jurisdiction to the extent that the Tribunal was obliged so to consider it.

44    I do not accept that the Tribunal here laboured under any such obligation. As has been made clear, the relationship that the appellant’s evidence about her experiences in Australia bore to her claim to protection was neither apparent nor the subject of submission. Equally, there was no suggestion that those experiences were matters that ought to have informed the Tribunal’s assessment of the credibility of the appellant’s claims.

45    At its highest, the appellant’s submission is that the evidence of her experiences in Australia was capable of bearing upon the Tribunal’s credibility assessment, in that it was (as the appellant put it), “…apt to have a bearing on the way in which she presented her claims, her capacity to collate corroborative documents required by the Tribunal…and the timing of her protection visa application”. Perhaps that may be accepted. Had that connection been asserted or otherwise been made clear (in the sense that it might have been described, to borrow from the plurality in Plaintiff M1, as “clearly aris[ing]”), there is little doubt that the Tribunal would have been obliged to consider it; and, more specifically, to consider it in that (credibility) context    .

46    In the absence of some clear connection, however, it was not for the Tribunal to search for and identify how it might have been that the appellant’s evidence bore upon any assessment that it was to make. I do not accept that the Tribunal was obliged in the way upon which the appellant’s success on appeal ground 3 depends. Any failure on its part (had there been one) to consider, in the context of its credibility findings, what the appellant had advanced about her experiences in Australia was not (or would not have been) an error of law capable of sounding as jurisdictional error.

47    It follows that I do not accept that the primary judge erred in the manner described by appeal ground 3.

Ground 4: the documentary corroboration error

48    Appeal ground 4 posits that the Tribunal impermissibly conditioned its determination of the Review Application upon production to it of documentary evidence that corroborated what the appellant had said about her children and her ex-husband (above, [12]).

49    The Minister accepts that, if that is what the Tribunal should be understood to have done, then its decision will be tainted by jurisdictional error. That concession is consistent with authority: see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 203, 214 (Hill J); MZYHT v Minister for Immigration and Citizenship [2011] FCA 659, [42]-[43] (Dodds-Streeton J). Appeal ground 4 thus turns solely upon whether or not the Tribunal elevated the provision of that corroborating evidence to a requirement upon which the appellant’s success on the Review Application was conditioned.

50    Appeal ground 4 may swiftly be addressed. It is plain beyond doubt that the Tribunal did not do what it now stands accused of doing. It is one thing to condition a visa applicant’s success upon the provision of corroborating documentary proof; quite another to take into account the absence of such proof as a circumstance that is apt to inform how a particular application might be determined.

51    Here, the circumstances point without reasonable doubt to the latter. On any view, the Tribunal, upon hearing from her, came to recognise the considerable doubt that attended the appellant’s claims to protection. That doubt arose in several ways; but perhaps principally by reason of the fact that the appellant’s fears of subjection to harm upon return to Malaysia were linked solely to her ex-husband, from whom it emerged she had not heard for some nine or 10 years. It was, to state the obvious, a curious aspect of the appellant’s claim: she maintained that her ex-husband would harm her, despite apparently having left her alone entirely for the four years before she left Malysia and the several years that had transpired since.

52    Had she been able to produce documentary evidence to corroborate what she had said, that might well have alleviated some of those doubts. But so to acknowledge is not to suggest that the Tribunal impermissibly elevated the provision of corroborating documentary proof to a condition of the appellant’s success. It did no such thing.

53    Appeal ground 4 is not made good.

Disposition

54    None of the appeal grounds that the appellant has advanced is substantiated. The appeal must, therefore, be dismissed. There is no reason not to make the usual order as to costs and I shall do so.

Associate:

Dated:    30 June 2025