Federal Court of Australia

CZT22 v Minister for Immigration and Citizenship [2026] FCA 499

ORDERS

THE COURT ORDERS THAT:

1.    The First Respondent be granted leave to rely upon the Notice of Contention dated 1 April 2026.

2.    The Appellant be refused leave to rely upon the Amended Notice of Appeal dated 24 March 2026.

3.    The appeal be dismissed.

4.    The Appellant pay the First Respondent’s costs, to be taxed if not agreed.

5.    The name of the First Respondent be amended from “Minister for Immigration, Citizenship and Multicultural Affairs” to “Minister for Immigration and Citizenship”.

6.    The name of the Second Respondent be amended from “Administrative Appeals Tribunal” to “Administrative Review Tribunal”.

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

REASONS FOR JUDGMENT

BUTTON J:

Background

1    The Appellant is a citizen of Malaysia. She arrived in Australia in February 2016 and made an application for a protection (subclass 866) visa on 7 October 2016. That application was refused by a delegate of the First Respondent (the Minister) on 8 March 2017. The Appellant applied to the Administrative Appeals Tribunal (Tribunal) for review. Her protection claim was based on fear of harm from her brothers and husband in connection with assets or money the Appellant received from her parents (particularly her father).

2    The Appellant attended a hearing before the Tribunal, gave evidence and made submissions.

3    The Tribunal affirmed the delegate’s decision and provided written reasons (T).

4    The Appellant brought an application for judicial review to the Federal Circuit and Family Court of Australia (Division 2). That application was dismissed on 24 May 2023: CZT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 423 (J).

5    By Notice of Appeal dated 22 June 2023, the Appellant appealed from the primary judge’s rejection of the judicial review application.

6    Initially, one ground of appeal was framed as follows in the Notice of Appeal:

The Federal Circuit and Family Court of Australia erred in failing to find that the Tribunal failed to give proper consideration to an integer of the applicant’s claim, namely that she would attempt to extract her children from her estranged husband's care, and that there was a real risk of her being located and subjected to significant harm in that context. In so finding, the Federal Circuit and Family Court of Australia relied on the decision of EJC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3171, which has been successfully appealed.

7    On 24 March 2026, the Appellant sought leave to amend her Notice of Appeal, removing the originally formulated sole ground in its entirety, and substituting two new grounds. The proposed new grounds were in the following terms (particulars omitted):

Ground 1: Misdirection And Procedural Unfairness — Reliance on Set-Aside Authority

1.    The Federal Circuit and Family Court of Australia erred by denying the Appellant procedural fairness and falling into legal error by determining the proceeding on the basis of EJC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCCA 3171, an authority not raised by either party and which had been set aside on appeal with a Ministerial concession of jurisdictional error.

Ground 2: Inconsistent Findings and Incorrect Application of s 36(2B)(a)

2.    The Federal Circuit and Family Court of Australia erred in concluding that the Tribunal’s failure to consider a central integer of the Appellant’s relocation claim was immaterial, and thereby misapplied s 36(2B)(a) of the Migration Act 1958 (Cth).

8    The Appellant accepted she needed leave to amend the Notice of Appeal; the proposed amended grounds were only identified shortly before the hearing of the appeal. The Minister opposed the grant of leave to amend.

9    In view of the changing basis and ambit of the appeal, the Minister also sought leave to rely on a Notice of Contention, framed in the following terms (particulars omitted):

The primary judge erred in failing to find that the second respondent (the Tribunal) did not fail to consider the appellant’s claim that her husband and brothers would come to know where she is in Malaysia through her attempting to relocate with her children.

10    The Appellant did not oppose leave being granted to the Minister to rely on the Notice of Contention. Leave is granted accordingly. The Appellant accepted that, if the Notice of Contention succeeds, the appeal would have to be dismissed.

11    For reasons I will explain, the Notice of Contention succeeds. It follows from this, and from the Appellant’s concession that the appeal cannot succeed if the Notice of Contention succeeds, that the proposed amended grounds of appeal lack merit. I refuse leave to amend on the basis of a lack of merit: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 at [51] (Allsop CJ, Kerr and Mortimer JJ).

Applicable legislation

12    At the relevant time, s 36(1) of the Migration Act 1958 (Cth) (the Act) provided that an application for a protection visa must satisfy both of the criteria in subsections (1B) and (1C), and at least one of the criteria in subsection (2). There was no issue concerning subsections (1B) or (1C). Subsection (2) was relevantly in the following terms:

(2)     A criterion for a protection visa is that the applicant for the visa is:

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

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

13    This appeal concerns the Appellant’s claim to complementary protection under s 36(2)(aa).

14    Section 36(2B)(a) provided, however, that:

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or …

Why the Notice of Contention succeeds

The Tribunal’s decision

15    It is necessary, first, to say something more about the case before the Tribunal, and how the Tribunal addressed it.

16    It was common ground that the appeal only concerns the Appellant’s case for complementary protection under the criteria in s 36(2)(aa) of the Act. Accordingly, I will address the Tribunal’s reasons only insofar as they concern the Appellant’s claims for complementary protection.

17    After setting out the Appellant’s claims for protection as they were advanced in her visa application, the Tribunal turned to setting out the documentary and other evidence available to it. The documentary evidence included the most recent Country Information Report on Malaysia, published by the Department of Foreign Affairs and Trade (DFAT): T [22(d)].

18    The Tribunal summarised the Appellant’s oral evidence as follows, omitting irrelevant parts (at T [23]):

(a)     She first arrived in Australia at the end of February 2016. She arrived in Australia on a tourist visa. She is not sure what the duration of that visa was. She is not sure when she applied for a protection visa. One of her friends helped her.

(b)     She left Malaysia because [sic] due to a family problem, she did not feel she was safe there so she escaped. She came to Australia because the Australian flight ticket was very cheap. She thought she could stay for some days and then she could do something.

(c)     When queried as to how long after she arrived in Australia she applied for a protection visa, she stated that her friends came to know about the problem she was facing. so they suggested she seek protection. She thinks she may have applied for the protection visa five months after arriving in Australia.

(d)     A friend filled in her protection visa application for her, based on the story she had told them. When queried as to whether her friend read the form to her before she signed it, she stated that they read a little bit to her.

(e)     She completed two lots of protection visa application forms. A male friend helped her with the first set of forms and a female friend helped her with the second set of forms.

(f)     Her family in Malaysia include her mother, two sisters, her husband and her children. Her father passed away four or five years ago.

(g)     Before coming to Australia, she was living with her husband [sic] her four children (aged 18, 15, 13 and 12). They were living in a house in Klang, Malaysia, that her father bought for her in 2009 or 2010. Her mother lives in an old age persons’ home, also in Klang and close to her home — about six kilometres away. Her sisters are married and they live separately.

(h)     If she returns to Malaysia, she fears that her brothers and her husband will assault her/abuse her.

(i)     She has five biological brothers, one biological sister, one adopted brother and one adopted sister. Counting her, there are nine siblings in total. Two of her siblings have hurt her in the past. Their names are [R] and [T]. Before she left Malaysia, they always came and asked for money and tortured her. This started happening as soon as her father died in 2008 or 2009. When queried as to what actually happened, she stated that they would see her and ask when she was going to give them the money and they tried to hit her. She stated that sometimes they beat her at home. The Tribunal asked [the Appellant] to provide details of when this happened.

(j)     The Tribunal indicated to [the Appellant] that what [sic] her evidence as to what had happened was very vague and it was concerned that she was not providing detail of what had happened. [The Appellant] told the Tribunal that one day when she was cooking, one brother came and demanded money and they had a fight and he dipped her hand in to the boiled rice and she had a burn injury, which she had to put cream on. Her brothers also live in the Klang area. They have no permanent homes. They use alcohol and drugs and hang around with their friends.

(k)     When queried as to why her brothers have any reasons to hurt her, she said that it is because her father left her money.

(l)     Her husband is also very abusive. He does not work. He is a gambler. He forced her to spend the money she inherited from her father. It is because of her husband that she spent the money (that she inherited from her father).

(m)    As soon as her father gave her the money, she started to spend the money. If she did not spend the money her husband would hit her. Her husband would ask her for money and if she did not give it to him, he would hurt her/hit her.

(n)     Two years before she came to Australia, she had spent all of the money her father had left to her.

(o)     The last time her brothers hurt her or asked her about money was at the end of 2015. She cannot remember the actual date. When queried as to what actually happened on the last occasion that her brothers hurt her or asked her about money, she said that her brothers brought some iron rods to hit her. She was at home. She said that they cannot think after alcohol. This was the last time she saw her two brothers. On the previous occasion when they had demanded money, she had given them her golden chain. They slapped her on her face.

(p)     She is currently living in a rented room in Australia paying $100 per week rent. She pays the rent from money she earns washing dishes. She also receives food in return for this work.

(q)     When she was in Malaysia, she did some work escorting school children to and from school.

(r)     Since coming to Australia she has spoken to her children by telephone. She has also spoken to her husband. He called her and tortured her over the phone. He used to torture her when she was in Malaysia. He said that if she came back to Malaysia, he would kill her, he would not divorce her and he would not let her see her children. He started saying that to her within a year of her arrival to Australia whenever she contacted her children.

(s)     She usually contacts her children once per month. That is the standing order but if they want to talk to her, they will give her a missed call (and she will ring them back).

(t)     She first contacted her children within one or two months of arriving in Australia. She contacted her husband within three or four months of arriving in Australia. She had a problem with her husband when she was leaving Malaysia.

(u)     Her husband knows that she is in Australia. He found out after she first arrived when she was talking to one of her children on the phone.

…

19    The Tribunal said as follows in relation to the Appellant’s evidence relevant to her claims for complementary protection (at T [24(c)]) (emphasis added):

As regards whether [the Appellant] can be granted a protection visa on the basis of the complementary protection criteria, the Tribunal has to consider whether there are substantial grounds for believing if [the Appellant] returns to Malaysia, there is a real risk that she will suffer significant harm. The Tribunal indicated that this involves some sort of an assessment of what might happen in the future, which will be based in part upon what [the Appellant] says has happened in the past. The Tribunal indicated that it might have some concerns about what has happened in the past but accepting everything [the Appellant] says has happened in the past, if the Tribunal concluded that it would be reasonable for her to return to Malaysia and go to another part of Malaysia, where she would not face the harm that she fears, then the requirements for the protection visa on the basis of complementary protection are not met.

The Tribunal indicated to [the Appellant] that there is independent country information that suggests that Malaysians can relocate freely internally within Malaysia, particularly in Peninsular Malaysia. Further, the country information also indicates that the unemployment rate in Malaysia is relatively low, 3.3% as per the most recent DFAT report. The Tribunal suggested that having regard to those matters, and [the Appellant]’s relatively young age, and proven ability to find employment, both in Malaysia previously and in Australia now, and her resourcefulness (as shown by adapting in a foreign country, Australia), that it conclude[s] that it would be reasonable for her to relocate to another area of Malaysia to avoid the harm she fears.

[The Appellant] responded that in Malaysia she by [sic] live by herself anywhere but that going with her children to live anywhere is difficult and her husband and brothers will come to know about it. The Tribunal asked how her husband and brothers would come to know about it. [The Appellant] responded that she would need to get help from someone to move to another location and that her brothers have friends everywhere and they would come to know about it.

The Tribunal indicated that the country information suggests that Malaysia has a very large population and queried how, on that basis, they would know if she relocated to somewhere else. [The Appellant] responded that she would have to find a school for her children.

The Tribunal noted that [the Appellant] does not have her children with her now and asked why it was different for her to be in Australia without her children as compared to being in another part of Malaysia without her children. [The Appellant] responded that the situation in Australia is different because it is too far away and her children cannot come. However, in Malaysia it is different. The Tribunal suggested to [the Appellant] that her children would not need to relocate with her, just as they have not come to Australia with her, and that given there are over 30 million people in Malaysia, her husband and brothers would not be able to find her. The Tribunal asked [the Appellant] if on that basis there was any reason why she could not go back to Malaysia and relocate to somewhere else. [The Appellant] responded that she cannot go there because she would be in “problem and trouble”. The Tribunal asked why. [The Appellant] responded that money is the main reason. She has to settle the money (from her father’s inheritance). If not they will torture her. The Tribunal again suggested to [the Appellant] that if she moved to somewhere else in Malaysia, amongst a population of 30 million people, there is no difference between not settling the money and being somewhere else in Malaysia, to being in Australia and not settling the money. [The Appellant] responded that if she lives anywhere, she is unable to settle the money.

20    The Tribunal first considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk that the Appellant would suffer significant harm (T [35]–[36]).

21    The Tribunal recorded that it accepted that the Appellant had been physically harmed by her brothers and her husband in the past, and further recorded that it was satisfied on the evidence that there is “a real risk if she returns to Malaysia that her brothers and/or husband might be similarly motivated to cause her significant harm in the future” (T [36]).

22    The Tribunal then stated that “[h]aving had regard to all of these matters, the Tribunal is satisfied that there is a real risk that [the Appellant] will suffer the claimed harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia, and finds accordingly” (T [37]).

23    The Tribunal turned to s 36(2B)(a) of the Act and addressed whether it would be reasonable for the Appellant to relocate to an area of Malaysia where there would not be a real risk that she would suffer significant harm. On this matter, the Tribunal reasoned as follows (T [38]–[43]) (footnotes omitted):

38.    As raised with [the Appellant] at hearing, pursuant to s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

39.     The Tribunal acknowledges [the Appellant]’s claim that her brothers know a lot of people in Malaysia and would be able to find her anywhere. However, given the large population of Malaysia, over 30 million people as discussed with [the Appellant], the Tribunal finds it remote that [the Appellant] would be located by her brothers and/or her husband in all areas of Malaysia given its very large population.

40.     Further, there are a number of matters that suggest that it would be reasonable for [the Appellant] to relocate to another area away from her previous home area. [The Appellant] has previous work experience in both Malaysia and Australia and has proved herself to be resourceful and resilient by moving to a foreign country, Australia, where she knew no-one, and having lived here for over eighteen months has demonstrated an ability to look after herself. Malaysia has a low general unemployment rate of 3.3%, and the Tribunal is satisfied that [the Appellant] could obtain employment to support herself. Further, as raised at hearing, DFAT assesses that Malaysians can and do freely relocate internally.

41.     Notably, [the Appellant] herself acknowledged at hearing that she herself could live anywhere in Malaysia but that going with her children to live anywhere is difficult and her husband and brothers will come to know about it. It is of course understandable that [the Appellant]’s preference would be to have [sic] children with her. The Tribunal is not satisfied that even if her children joined her in Malaysia if she relocated, that she would be located by her brothers and/or her husband. Again, Malaysia has a very large population of over 30 million people such that the Tribunal considers it remote that [the Appellant] would be located by them if her children joined her. In any event, her children are also not with her in Australia. The Tribunal therefore does not consider it unreasonable for [sic] to relocate within Malaysia without her children. That is no different to her coming to Australia without her children.

42.     Having regard to all of these matters, the Tribunal is satisfied that it would be reasonable for [the Appellant] to relocate to an area of Malaysia where there would not be a real risk that she would suffer significant harm occasioned by her brothers and/or her husband.

43.     Pursuant to s 36(2B)(a), there is therefore taken not to be a real risk that [the Appellant] will suffer significant harm in Malaysia.

24    As may be seen, the Tribunal rejected the Appellant’s claim that, because her brothers “know a lot of people in Malaysia”, she would be located by her brothers and/or her husband in all areas of Malaysia. That conclusion was based on Malaysia having a large population of over 30 million people (T [39]).

25    The Tribunal also considered, and expressly rejected, the Appellant’s contention that if her children joined her in another area of Malaysia, she would be located by her brothers and/or her husband. The Tribunal based this conclusion on the population of Malaysia, saying “Malaysia has a very large population of over 30 million people such that the Tribunal considers it remote that [the Appellant] would be located by them if her children joined her” (T [41]). The Tribunal also expressly considered that it was not unreasonable for the Appellant to relocate within Malaysia without her children, as her children were also not with her in Australia (T [41]).

26    It is, accordingly, apparent that the Tribunal considered the relocation issue arising under s 36(2B)(a) of the Act, both on a “with children” and “without children” basis.

27    The Tribunal’s conclusion that s 36(2B)(a) of the Act applied, with the consequence that there was deemed to be no real risk that the Appellant would suffer significant harm in Malaysia, can be seen to have been arrived at by two paths leading to the same conclusion.

28    First, if the Appellant relocated within Malaysia with her children, the Tribunal was not satisfied that she would be located by her brothers and/or husband (T [41]).

29    Secondly, if the Appellant relocated within Malaysia without her children, the Tribunal considered it remote to suggest that her brothers and/or husband would locate her (T [39]) and found that it was not unreasonable for the Appellant to relocate within Malaysia without her children as they had not been with her in Australia in any event (T [41]).

The primary judge’s reasons

30    The Appellant applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review. The sole ground advanced was that the Tribunal “failed to give proper consideration to an integer of the [Appellant’s] claim, namely that she would attempt to extract her children from her estranged husband’s care, and that there was a real risk of her being located and subjected to significant harm in that context”.

31    In addressing that ground, the primary judge set out passages of the Appellant’s oral evidence before the Tribunal regarding relocation within Malaysia (at J [28]) (emphasis in original):

MEMBER: Why not, given all those things, could you not move somewhere in Malaysia to avoid what you fear?

…

INTERPRETER: Yes. In Malaysia you can live anywhere. But going with my children to live somewhere, that is difficult. And also, my brother and husband will come to know about it.

MEMBER: How will they come to know about it?

INTERPRETER: I need to get help from someone to move to another location, so if someone help they will come to know. And then my brothers, they have friends everywhere.

MEMBER: Well, the country information suggests that Malaysia has a very large population. How will they know where you moved anywhere?

INTERPRETER: I have to give my address. I have to find school for my children, I have to have (indistinct).

MEMBER: But you don’t have your children with you now, so why is it any different if you were here in Australia without your children as to another part of Malaysia without your children?

INTERPRETER: This is different, situation. In Australia, it is too far away, they can’t come. But in Malaysia it’s not like that.

…

In Australia the situation is different. I get protection there. But in Malaysia it’s not.

MEMBER: But what I’m suggesting to you is there’s no reason you can’t move to a different part Malaysia – by yourself, the children don’t have to come with you, if the children haven’t come with you to Australia – and that you would not be at risk of harm from either your brothers or your husband if you moved to a different part of Malaysia, in circumstances where there’s a population of over 30 million people and they are unlikely to be able to find you.

…

INTERPRETER: That time I didn’t think I need to escape from my country and go live in another country.

MEMBER: What time?

INTERPRETER: When I was leaving, I didn’t think about that. I had to (indistinct).

MEMBER: Well, is there any reason you could not go back to Malaysia and relocate to somewhere else? What would stop you from going to somewhere else?

INTERPRETER: I can’t go there. I can’t go there anyhow, I will be in problem and trouble.

MEMBER: Why?

INTERPRETER: Money is the main reason. Money.

MEMBER: You told me you have no money here.

…

INTERPRETER: I had to (indistinct) money. It’s not they will (indistinct). I can’t live there.

32    The primary judge then referred to the Tribunal’s summary of the Appellant’s oral evidence at T [24(c)] (as set out at paragraph 19 above) and concluded that the summary was accurate (J [32]).

33    The primary judge considered (at J [35]) that the Appellant’s claim that she would be located by her husband and brothers if she relocated with her children had two limbs:

(a)    she would need to ask someone to help her to move and through this, her husband and brothers would be able to locate her; and

(b)    she would need to enrol her children in school.

34    The primary judge reasoned as follows in concluding that the Tribunal had not actively and intellectually engaged with the Appellant’s case on relocation with her children (J [39]–[41]):

39.    In my view, in forming the conclusion that it was not satisfied that the applicant would be located by her husband and brothers ‘even if her children joined her in Malaysia if she relocated’, the Tribunal did not actively and intellectually consider all integers of the applicant’s claims. Beyond identifying the integers at [24(c)] in its summary of the applicant’s evidence, the Tribunal did not address in any way the reasons the applicant gave as to why she believed she would be located by her husband and brothers if she relocated within Malaysia.

40.    The Tribunal’s reasons at [41] are silent as to its views about the applicant’s evidence that she would need to ask for assistance to relocate or that she would need to enrol her children in school. While the applicant’s evidence in this regard was minimal and lacked any detail, these two matters were the only matters advanced as to why relocating with her children would be more difficult than relocating alone. In circumstances where the Tribunal’s findings and reasoning about whether the applicant could avoid a real risk of significant harm by relocating within Malaysia, with her children, are silent on the only two matters raised by the applicant as to why she would come to the attention of her husband and brothers if she relocated with her children, I cannot conclude that the Tribunal actively and intellectually engaged with the applicant’s evidence regarding relocation with her children.

41.    The Tribunal’s consideration did not need to be detailed. For example, it might have been open to the Tribunal to reject the applicant’s claim that her location would come to the attention of her brothers and husband if she asked someone to help her move because of the lack of detail provided as to how this would lead to her location being known. Likewise, it might have been open to the Tribunal to reject the applicant’s claim that enrolling her children in school would lead to her location becoming known because she had not provided any detail about how her brothers or husband would be able to access any school enrolment records. However, merely summarising the relevant evidence at [24(c)] of its reasons and then expressing a conclusion at [41] without any evident evaluation of the evidence was not sufficient.

35    The primary judge next addressed the question of whether it was not unreasonable for the Appellant to relocate within Malaysia without her children.

36    Substantial parts of the parties’ arguments were directed to this part of the primary judge’s reasons. In particular, much of the argument focused on whether, as the Appellant contended, s 36(2B)(a) can only be applied to exclude a case from the ambit of s 36(2)(aa) where there is a positive finding of fact that the person in question would act in the way posited that would avoid exposing the person to the feared harm. In view of my conclusion that the Notice of Contention succeeds, it is not necessary to deal with this argument beyond saying that the Appellant’s argument was difficult to follow, and even more difficult to accept. If construed as the Appellant suggested, s 36(2B)(a) would be largely stripped of any sensible operation. The Appellant’s construction would allow an applicant for complementary protection to avoid s 36(2B)(a) applying simply by satisfying the decision-maker that they would not take a course reasonably open to them to relocate to another area where they would not be exposed to the harm in question.

Principles regarding engagement with an applicant’s case

37    In some cases, a failure by a decision-maker to address a substantial and clearly articulated argument in its reasons may give rise to a question as to whether it is to be inferred that the decision-maker ignored, overlooked or misunderstood the argument raised, or considered it insufficiently significant or lacking in merit to warrant being addressed expressly: see HLWS v Minister for Immigration and Multicultural Affairs [2026] FCA 243 (HLWS) at [44] (Button J), and the authorities cited therein. In approaching that question, an inference that a decision-maker failed to consider an issue should not be drawn too readily where the reasons are “otherwise comprehensive and the issue has at least been identified at some point”: HLWS at [45], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47] (French, Sackville and Hely JJ); see also Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).

38    Where, as here, the Appellant’s contention has “at least been identified at some point” in the Tribunal’s reasons, a further question that arises is whether the Tribunal has demonstrated the requisite degree of engagement with it. What is required in a particular case will necessarily vary depending on the length, clarity and degree of relevance of the contention put. It follows that a decision-maker is not required to consider claims that are not clearly articulated or do not arise on the materials before them: Plaintiff M1 at [25]–[26] (Kiefel CJ, Keane, Gordon and Steward JJ).

39    At the time of the Tribunal’s decision on 10 October 2017, the requirements for what was to be included in the Tribunal’s written statement of decision was set out in s 430(1) of the Act, which provided as follows:

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application — indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

(f)    records the day and time the statement is made.

40    While the Tribunal was required under s 430(1)(b), (c) and (d) to set out its “reasons for the decision”, together with its “findings on any material questions of fact” and the evidence or other material on which those findings of fact were based, there was no obligation on the Tribunal, pursuant to s 430(1) or otherwise, to address every piece of evidence and every contention put.

41    As the authorities make clear, the obligation to set out the reasons for the decision “will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings”, especially where the rejection of certain evidence is one of the reasons for decision: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 (Durairajasingham) at [65] (McHugh J). What is not required, however, is for the Tribunal to give a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”: Durairajasingham at [65] (McHugh J), quoted with approval in Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48] (Besanko, Barker and Bromwich JJ).

The Appellant did not establish jurisdictional error on the part of the Tribunal

42    The Appellant’s evidence concerning her belief that her brothers and/or husband would locate her if she relocated within Malaysia with her children was extremely limited. The Tribunal squarely asked the Appellant how her brothers and/or husband would come to know her whereabouts in Malaysia. The Appellant’s only response was that she would need to get someone to help her move to another location and her brothers “have friends everywhere”. When pressed on how the Appellant’s brothers and husband would know where she moved given Malaysia’s large population, the Appellant responded that “I have to give my address. I have to find school for my children”. The Appellant did not identify any suggested mechanism by which enrolling her children in school would allow her brothers and/or husband to find her.

43    It is clear from the Tribunal’s setting out of the Appellant’s oral evidence that it was aware of these two elements of why the Appellant considered that her husband and/or brothers would find her if she relocated within Malaysia with her children (the brothers having friends everywhere and enrolling her children in school). This is not a case in which the relevant aspect of an applicant’s case has not been mentioned at all by a decision-maker: cf HLWS at [64].

44    Here, the Tribunal’s conclusions explicitly reject the Appellant’s case that she would be located by her brothers and/or her husband if she relocated in Malaysia with her children. It was not necessary for the Tribunal to say more than it did in explaining or justifying that conclusion. The matters raised by the Appellant were only high-level assertions. As to the suggestion that her whereabouts would be discovered because she would have to ask “someone” to help with relocation and her brothers “have friends everywhere”, the Tribunal plainly did not accept that suggested mechanism of locating her in circumstances where Malaysia is a country with a population of over 30 million. While the Tribunal did not state why it did not consider that the enrolling of the children in a school would lead to the Appellant being located, it was not incumbent on the Tribunal to address the question of mechanism in circumstances where the Appellant’s own case did not suggest any mechanism whereby enrolling the children in school would bring her whereabouts to the attention of the Appellant’s brothers or husband. As noted above, a decision-maker is not required to consider claims that are not clearly articulated or do not arise on the materials before them: Plaintiff M1 at [25]–[26] (Kiefel CJ, Keane, Gordon and Steward JJ). Nor is a decision-maker required to engage in a line-by-line refutation of the Appellant’s evidence: Durairajasingham at [65] (McHugh J).

45    In this matter, no inference can be drawn that the Tribunal overlooked, or failed to address, an integer of the Appellant’s claim. In my view, the primary judge erred in concluding to the contrary (J [40]). Accordingly, there was no jurisdictional error on that basis.

Conclusion

46    The Notice of Contention will be allowed. Notwithstanding that the primary judge erred as the Minister contended, there was no error in the primary judge’s order dismissing the application for judicial review of the Tribunal’s decision. Accordingly, the only orders that are required are an order dismissing the appeal with costs, an order granting the Minister leave to file the Notice of Contention out of time, an order refusing leave to amend the Notice of Appeal and orders updating the name of the Minister and identifying the Administrative Review Tribunal as the Second Respondent.

Associate:

Dated:    24 April 2026