Federal Court of Australia

CEV18 v Minister for Immigration and Citizenship [2026] FCA 829

ORDERS

THE COURT ORDERS THAT:

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

2.    The name of the second respondent be amended to “Administrative Review Tribunal”.

3.    The extension of time application be granted.

4.    The appeal be dismissed.

5.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

BEACH J:

1    The applicant has applied for an extension of time to appeal from the orders of the primary judge made on 17 July 2024 who dismissed an application for judicial review of a decision of the then Administrative Appeals Tribunal to affirm the decision of a delegate of the relevant Minister to refuse to grant to the applicant a protection (subclass 866) visa.

2    For the reasons that follow I will grant the extension of time but dismiss the appeal; it is convenient to continue to refer to the applicant as such rather than as the appellant.

3    I should note before proceeding further that at lunch-time today I was provided with a request for an adjournment supported by a medical certificate that was quite inadequate. Moreover, it did not explain why the applicant could not appear via video-link. Further, a Malay interpreter had also been organised. The adjournment was refused. The applicant appeared and made some short statements via video essentially raising merits type issues concerning the Tribunal’s decision.

Background

4    The applicant is a citizen of Malaysia who arrived in Australia on 20 November 2015 as the holder of a visitor visa. The applicant applied for the protection visa on 22 January 2016. On 17 March 2016, the delegate refused to grant to the applicant such a visa.

5    On 22 March 2016, the applicant applied to the Tribunal for a review of the delegate’s decision. On 13 July 2017 and 20 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. She was assisted by an interpreter in the English and Malay languages. The applicant’s husband also attended the hearing and gave evidence.

6    The applicant’s claims for protection centred upon her relationship with her current husband (her boyfriend when she lived in Malaysia), whom her family did not accept. Apparently, when the applicant lived in Malaysia she refused to marry a man of her family’s choosing. The applicant claimed that her family confined her to the house without food for a week and did not allow her to see her boyfriend. The applicant claimed that she sought help from the “religious authorities” in Malaysia but they said it was a family issue and would not help. The applicant said that she did not want to return to Malaysia and was concerned that her family would find her and harm her. The applicant said that she did not believe that she could relocate in Malaysia because of her family. Further, she was concerned as to whether her marriage, which occurred in Australia, would be registered by the Malaysian authorities.

7    On 18 April 2018, the Tribunal affirmed the delegate’s decision.

8    The applicant and her husband gave evidence at the hearing before the Tribunal.

9    The Tribunal accepted that the applicant had problems with her family while in Malaysia because of her relationship with her then boyfriend now husband, because her family disapproved of their relationship and because she did not choose to marry the man her family had chosen for her. And the Tribunal also accepted that the applicant and her husband had a difficult relationship with her husband’s parents. The Tribunal also accepted that since their arrival in Australia, the applicant and her husband had had a child.

10    In considering the applicant’s claims, the Tribunal further observed the following.

11    First, the Tribunal found that the applicant and her husband were legally married. Having regard to the relevant country information, the Tribunal found that the couple would be considered legally married in accordance with Syariah law. The Tribunal found that the applicant and her husband would be able to register their marriage if they wished to do so if they returned to Malaysia.

12    Second, the Tribunal accepted the applicant’s claim that if she and her husband returned to Malaysia in the reasonably foreseeable future, their whereabouts could be discovered by their respective families through friends and acquaintances, and the applicant, her husband and her child could face threats. However, the Tribunal did not accept as credible, on the basis of consistent country information, that the Malaysian police would not provide her with adequate protection should she, her husband and family require it. The Tribunal found that Malaysia has an appropriate criminal law and legal system, a reasonably effective police force and an impartial judicial system, such that she would have effective state protection.

13    The Tribunal therefore found that effective protection measures as defined in s 5LA of the Migration Act 1958 (Cth) were available and that the applicant therefore did not have a well-founded fear of persecution in accordance with s 5J(2). The Tribunal noted country information to the effect that the Malaysian police are considered professional and effective, and that measures have been put in place to deal with corruption. The Tribunal further found that the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk, and that the exclusion in s 36(2B)(b) therefore applied.

14    Third, the Tribunal did not accept as credible the claim that the applicant and her husband as a married couple would endure state disapproval on the basis that their marriage was contrary to Malaysian law. The applicant did not provide, and the Tribunal did not locate, any evidence to support the claim that her marriage was against her religion or contravened Malaysia’s marriage law. The Tribunal found that the applicant, her husband and child would not face any societal disapproval or religious or state inspired discrimination because of her marriage. The Tribunal therefore found that the applicant did not have a well-founded fear of persecution in accordance with s 5J(1).

15    The Tribunal concluded that it was not satisfied that the applicant faced a real chance of persecution in Malaysia in the reasonably foreseeable future, or that there were substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a risk that she or her family would suffer significant harm.

Proceedings in the court below

16    On 1 May 2018, the applicant filed an application for judicial review of the Tribunal’s decision in the court below. The grounds of the applicant’s application were:

1.    I came to Australia for visitor visa purpose and applied for protection visa

2.    If I return to Malaysia the gangster blackmail my husband can find me and my family and them will kill my husband and do something to my baby.

3.    I giving birth at Australia October last year this situation make me worried if I return to my country

4.    The Member did not make proper assessment and consideration and did not make a decision according to the actual situation of (Applicant).

5.    The Member has made the decision based on the facts finding from the internet source which is not current and relevant

17    The application included three further points under the heading “final orders sought …”:

1.    I am not really focus to remember thing happen during hearing session

2.    I got nervous to answer the question during hearing session

3.    I am not ready to return on my country because it was unsafe situation for me and my family.

18    The application was heard on 10 July 2024. On 17 July 2024, the primary judge dismissed the application.

19    In respect of grounds 1 to 3 and the further point 3, the primary judge found that these grounds did not raise jurisdictional error and were properly characterised as an invitation to the Court to redetermine the application before the Tribunal on its merits.

20    In respect of further points 1 and 2, the primary judge noted that these grounds were understood to relate to whether the applicant was afforded a proper opportunity to present her case. Her Honour dismissed these grounds on the basis that the applicant was not denied a real and meaningful opportunity to participate before the Tribunal. According to her Honour, the applicant did not provide evidence of any physical or mental incapacity, and there was no basis on the materials before her to find an error in the Tribunal’s procedure or approach.

21    In respect of grounds 4 and 5, the primary judge noted that these grounds alleged error in the Tribunal’s assessment and consideration of the applicant’s claims and in its reliance on facts from an internet source. The applicant confirmed at the hearing before her Honour that her complaint related to the Tribunal’s reliance on an internet source in its reasons. Her Honour dismissed these grounds, finding that there was no sound basis for the claim that the Tribunal misapplied the country information or the sources of other information before it. Her Honour found that the Tribunal gave logical reasons for its acceptance and rejection of certain claims, and that its findings were open on the material before it.

22    The primary judge addressed an additional point raised by the applicant at the hearing, being that the applicant’s child did not have the father’s name registered on the birth certificate, which would cause embarrassment and shame to the child and family. Her Honour found that as this was not a claim or matter in evidence before the Tribunal, there was no error or denial of procedural fairness in not considering the claim in circumstances where the Tribunal had invited the applicant and her husband to give evidence about relevant matters.

Application for extension of time and the appeal

23    On 28 August 2024, the applicant lodged an application for an extension of time to file and serve her notice of appeal in this Court from the primary judge’s orders. The applicant supported her application with an affidavit affirmed on 15 August 2024.

24    Separately, the applicant filed a proposed notice of appeal which contained the following grounds:

1.    My visa was refused by AAT and I appealed to Federal Circuit Court

2.    Federal Circuit Court Refused my case as I am not satisfied how my case was reviewed

3.    I am nor [stet] able to go back to my country

4.    I am appealing for my visa to be considered again

25    The proposed notice of appeal also sought an order that the applicant be granted a protection visa.

26    The applicant’s delay of 14 days is not a significant delay and it has been adequately explained. It is convenient to grant the extension of time sought. As to the appeal grounds, these can be shortly disposed of.

27    Grounds one, two and four do not allege error on the part of the primary judge or the Tribunal. They simply recount the history of the applicant’s attempts to have her visa refusal reviewed by the Tribunal and the court below, and now by this Court, and express dissatisfaction with the outcome.

28    Ground three asserts that the applicant is unable to return to her country. At its highest, this ground asserts a claim for protection, which is an invitation to this Court to redetermine the visa application or Tribunal decision on its merits, which is impermissible.

29    Now the applicant’s grounds may alternatively be read as broadly contending that the primary judge erred by not accepting the grounds that the applicant advanced below. But if that be so, then for the same reasons as given by the primary judge, the primary judge was correct to reject the grounds of review below.

Conclusion

30    The appeal must be dismissed with costs.

Associate:

Dated:    26 June 2026