Federal Court of Australia

FTT17 v Minister for Immigration and Citizenship [2026] FCA 830

ORDERS

THE COURT ORDERS THAT:

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

2.    The second respondent’s name be amended to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

BEACH J:

1    This is an appeal from the orders of the court below where the primary judge dismissed an application for judicial review of a decision of the then Administrative Appeals Tribunal which had affirmed a decision made by a delegate of the Minister not to grant to the appellant a protection (subclass 866) visa.

2    The appellant appeared before me with a Malay interpreter, but she was proficient in the English language and had no need of his assistance. She was an intelligent young woman who acquitted herself very well if I might say so in succinctly putting her case and directly responding to my questions.

3    One aspect that the appellant sought to emphasise before me concerned the subject matter of ground 8 of her notice of appeal referring to her two small daughters which was in the following unedited form save as to anonymising their identities:

Furthermore, I can’t go back to Malaysia because I want to protect my daughters from being humiliates by others. This is because I don’t want my daughters from being circumcise. And also because I didn’t get approval to get married overseas before I get married so my daughters can't be registered as legitimate child.

–     In Malaysia, the Fatwa Committee of Malaysia’s National Council of Islamic Religious Affairs ruled that “female circumcision” is an obligatory for every Muslims daughter.

–     I believe there is no religious or medical benefits in doing female genital mutilation (FGM) but in Malaysia there is no choice to refuse the FGM because there is no specific law that prohibits FGM and the national Fatwa Council made it obligatory. My daughters has the rights to their own body and I don’t want other people to decide that for them.

–     For Malaysian Muslims who wanted to get married overseas, they need to get approval from Malaysia before they can get married overseas. However, I couldn’t get the approval from Malaysia because my family already cut ties with me and they refused to help me to get all the approval from Malaysia authorities. I got married in Australia on 2019 and couldn’t register my marriage with Malaysian authorities. This will cause my daughter status to be shown as illegitimate child if I go back to Malaysia.

–     I could not registered my daughters as [X] and [Y]. The Malaysian authorities will put my daughters name and put the binti (a daughter of) to 99 names of Allah instead of my husband’s name.

–     National Council for Islamic Affairs in Malaysia forbids Muslim children from carrying their father’s name or inheriting from him. I couldn’t imagine if my daughters have to grow up in Malaysia and for their whole life they will be call as an illegitimate child.

…

4    This was not a claim made before the Tribunal for the obvious reason that her two young daughters had been born after its determination. So, this claim could not provide the basis for an argument that the Tribunal had made a jurisdictional error or that the primary judge had erred in reviewing its determination.

5    Now for the reasons that follow, in my view the appeal should be dismissed. And as to the claim embodied in ground 8 that could not go anywhere before me as I have just made clear, this claim may also not avail the appellant personally in terms of any future process given that there is likely to be a statutory bar applicable to her concerning applying for a new analogous visa. But I informed the appellant that she should consider seeking advice concerning the making of separate visa applications by her daughters.

6    It seems to me that the primitive patriarchal practice of mutilation countenanced and apparently informally enforced in Malaysia under the 2009 edict issued by the Fatwa Committee of Malaysia’s National Council of Islamic Religious Affairs could present a real risk to the appellant’s daughters of a type that the Minister would be bound to consider in determining the status of the daughters under any separate applications made by them that was not just derivative on the mother’s status.

7    Now to be clear, I am not here criticising religious rituals in their primary and secondary dimensions. The primary dimension is to reinforce through representative or symbolic acts and habitual practices the spiritual elements of a particular faith or belief system. The cognitive connection between the performative act and its associated incorporeal object or objective is consciously brought to the fore and strengthened by repetition of the relevant ritual. And so the various sayings and occasional dialogues attributed to Confucius in the Analects which repeatedly extol the virtues of rituals. The secondary dimension relates to practical ethics concerning adopting or adapting to ways of living that have the objective of promoting individual or societal health and well-being.

8    But whatever else be said, what the appellant fears for her daughters is both exogenous and extraneous to either dimension. Anyway, let me return to discussing what is before me rather than what is not.

Background

9    On 18 March 2016 the appellant, a citizen of Malaysia, arrived in Australia. On 10 June 2016, the appellant applied for the visa, broadly claiming that she feared harm from one or more illicit money lenders in Malaysia whom she could not repay, and who had threatened to rape and kill her.

10    On 7 September 2016, a delegate of the Minister refused to grant the appellant the visa. The delegate was not satisfied that the appellant would be harmed by loan sharks, and found that she could access effective state protection in Malaysia, such that she did not meet the criteria for the grant of the visa (see ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth)).

11    On 26 September 2016, the appellant applied for a review of the delegate’s decision to the Tribunal. On 4 December 2017, the appellant appeared at a hearing before the Tribunal and was assisted by a Malay interpreter.

12    On 6 December 2017, the Tribunal affirmed the decision under review.

13    The Tribunal noted the appellant’s evidence at hearing that she had paid for someone else to write her claims for her and there were some errors in it. In her evidence she said that the money lender(s) was licenced, that she had not been threatened with murder but had been threatened with sexual assault once, and that she did not go to the police about this. The Tribunal also noted the appellant’s oral evidence that the money lenders had harassed her mother until her mother had fled her home to stay elsewhere. The appellant gave evidence that her mother’s former landlord had subsequently contacted her mother to advise her that people were at her mother’s residence, indicating that money lenders were looking for the appellant or her family.

14    The Tribunal accepted that the appellant had borrowed money from a licensed money lender to pay her university tuition fees, and that she was harassed by the money lenders at university to repay the loan, which progressed to threats of rape, and that she did not report this to the police. The Tribunal also accepted that the money lenders went to the appellant’s mother’s house and harassed her, which led to the mother moving to stay with her sister, and that the appellant’s mother had been contacted by her former landlord advising that the money lenders kept going back to her former residence seeking repayment from the appellant or her family.

15    The Tribunal noted that the appellant had chosen not to avail herself of state protection and had chosen not to seek the assistance of the Royal Malaysian Police, but that it remained open to her to do so.

16    The Tribunal found that it was not satisfied that there was a real chance that the appellant would be persecuted for one of the reasons under s 5J(1)(a) if she returned to Malaysia. Further, the Tribunal found that the appellant was not a refugee as the term is defined in s 5H(1), and she did not meet the criteria for the grant of the visa under s 36(2)(a). It was also not satisfied that the appellant would be denied state protection, and therefore found that she therefore did not satisfy ss 5J(2) and 5LA. Further, the Tribunal considered country information relating to the availability of effective state protection in Malaysia and found that the appellant could obtain protection such that there would not be a real risk that she would suffer significant harm if she returned to Malaysia. The Tribunal found that the appellant did not meet s 36(2)(aa).

Proceedings in the court below

17    On 28 December 2017, the appellant filed an application for judicial review in the court below containing eight grounds of review. The application was dismissed by the primary judge on 18 June 2024. It is not necessary to elaborate here on the reasons given.

The present appeal

18    On 12 July 2024, the appellant filed a notice of appeal in this Court against the primary judge’s orders and advanced eight grounds of appeal.

19    The appellant’s grounds of appeal variously make submissions, re-state the claims for protection, seek to provide further evidence regarding the claims, raise new claims for protection and request to remain in Australia. Further, some of the grounds were not raised before the primary judge, but to the extent necessary I will give the appellant leave to raise them.

20    The appellant’s grounds rise no higher than disagreement with the Tribunal’s findings and invite the Court to undertake impermissible merits review of that decision. Further, some of the grounds are similar in nature to the grounds below, which were also rejected by the primary judge as an attempt to engage with the merits of the Tribunal’s decision. Such similar grounds should also be rejected on appeal for this reason.

21    Further, to the extent that some of the grounds allege a denial of procedural fairness in the proceedings below, the appellant was provided with an opportunity to file any amended application, submissions and any additional evidence that she sought to rely upon before the primary judge, but failed to do so. In my view the appellant was not denied procedural fairness before the primary judge.

22    The appellant’s grounds otherwise do not identify error in the reasoning or judgment of the primary judge or the Tribunal. Moreover, the primary judge identified the relevant legislative criteria and principles derived from well-establish authority, which the primary judge applied correctly in determining that the application for judicial review should be dismissed.

23    Finally, the only allegation of jurisdictional error made by the appellant below was contained in a ground which asserted that the Tribunal made an administrative error when deciding the appellant’s application and misinterpreted the definition of “refugee”. But the Tribunal’s decision record reveals that it correctly set out the definition of a person who is a refugee, and that it took into account and accepted the appellant’s claims as clarified at hearing. The Tribunal’s findings that the appellant could access state protection measures in Malaysia, such that she did not meet ss 36(2)(a) and (aa), were inter-alia based on country information. Accordingly, these findings were clearly open to the Tribunal for the reasons it gave.

24    No jurisdictional error is revealed by the appellant’s grounds and none is otherwise apparent. Further, no error was made by the primary judge.

Conclusion

25    The appeal must be dismissed.

Associate:

Dated:    30 June 2026