Federal Court of Australia

DBB18 v Minister for Immigration and Citizenship [2026] FCA 1033

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 agreed or assessed.

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 Malaysian. She came to Australia in 2016, originally on a tourist visa issued to her pursuant to the Migration Act 1958 (Cth) (the “Act”). On 31 August 2016, she applied for a protection visa. That application was denied and that denial was affirmed on review by what was then the Administrative Appeals Tribunal (the “Tribunal”). The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Div 2). That application was dismissed with costs: DBB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1365 (Judge Corbett) (the “Primary Judgment”).

2    By notice dated 22 December 2024, the appellant appeals from the whole of the Primary Judgment. She moves to have it set aside, to have her application for judicial review allowed, for the issuing of prerogative relief to set aside the Tribunal’s decision and for her application for a protection visa to be reviewed on its merits upon remittal for rehearing by the Tribunal (or by its successor, the Administrative Review Tribunal).

3    For the reasons that follow, the appeal shall be dismissed with the usual order as to costs.

4    The matters of salient background (including the appellant’s reasons for making her application for a protection visa) find succinct and accurate expression in the reasons of the primary judge: Primary Judgment, [3]-[11]. I needn’t repeat them. Likewise, the primary judge summarised the reasons that the Tribunal gave for affirming the initial rejection of the appellant’s visa application: Primary Judgment, [12]-[19]. I gratefully adopt that summary as though my own. Perhaps the most significant aspect of it is that the Tribunal considered that the appellant would be able to avoid subjection to the harm that she fears—being the harm by reason of which she seeks Australia’s protection—by relocating to a part of Malaysia where those fears will not be realisable.

5    On judicial review, the appellant charged the Tribunal with having failed to consider two particular aspects of her claim to protection. In particular, she maintained that the Tribunal had failed to consider that she feared subjection to harm (sufficient to warrant the granting of protection) on account of her gender; and that the Tribunal had failed to consider “…the impact of her mental health on internal relocation”. The primary judge addressed both grounds en route to dismissing the appellant’s application for judicial review.

6    The appellant’s notice of appeal nominates five appeal grounds. They do not obviously marry with the grounds upon which she sought judicial review in the court below. Intending no disrespect (and acknowledging that English is not the appellant’s primary language), they are difficult to comprehend and are, perhaps, best replicated in full (errors original):

1.    Under the Migration Act 1958 Sec 36(2A) I am eligible and qualify to apply for Protection Visa in Australia.

2.    Under point 23 of the Tribunal Decision, The tribunal made their own assumption saying my evidence provide is unreliable. All decision must be made based on evidence and facts

3.    Under point 24 of the Tribunal Decision, The Tribunal refuse to consider my evidence just because it was submitted late. The Tribunal failed to make the decision based on my evidence

4.    Under point 27 of the Tribunal Decision, The Tribunal failed to consider evidence and oral evidence due to my lack of proficiency in English Language. I am not a Native English speaker and I admit I have made mistakes in explaining my claim due to poor English.

5.    My poor english language cannot be used against me stating I have given a wrong statement.

7    Those grounds having not been agitated below, the appellant requires the court’s leave to advance them on appeal. The grant of leave in that regard is informed by familiar considerations, chief amongst which being the explanation that is given for the failure to run the points at first instance, the prejudice that might inhere against a respondent if the court were to permit their agitation on appeal, and the merit that attaches to what is sought to be put.

8    As it happens, I am of the view that all of the new contentions are meritless and, at least for that reason, leave to agitate them on appeal should and will be denied. I shall explain why.

9    Proposed ground one posits that the appellant is eligible for a protection visa under s 36(2A) of the Act. That section defines what is meant by “significant harm” for the purposes of Australia’s “complementary protection” obligations. It appears that the appellant urges the court to accept that she is at sufficient risk of exposure to “significant harm” and that the Tribunal was wrong not to grant her protection accordingly. Such a contention, if that is how it is put, is an invitation to indulge a review of the appellant’s visa application on its merits. That is beyond what a court can indulge on an application for judicial review.

10    It may be accepted that the Tribunal was of the view that the appellant would not be subjected to the requisite prospect of harm upon her return to Malaysia (or to a different part of it than where she once lived). It is not apparent that the formation of that view was the subject of any error of jurisdiction. Proposed appeal ground one is without merit and the appellant should (and will) not have leave to pursue it.

11    Proposed ground two also presents as an invitation to indulge a review of the Tribunal’s decision on its merits. It may, of course, be accepted that the appellant is disappointed by the Tribunal’s assessment of her application (including insofar as that assessment was described at [23] of the Tribunal’s reasons, which needn’t here be replicated). It might even be that, on its merits, the Tribunal should or could have favoured a different view (a premise that I acknowledge only for the sake of argument). None of that matters for present purposes. At issue now (and before the primary judge) is whether any of the Tribunal’s conclusions can be impugned as a product of jurisdictional error. The appellant has not explained—and I am unable to see—how they might be. The proposed ground is foredoomed to failure and, at least for that reason, the appellant should not have leave to agitate it.

12    Proposed ground three posits that the Tribunal refused to consider some of the appellant’s evidence. That it might have done so is not apparent. The appellant was asked, at the hearing of the appeal, to particularise the evidence that the Tribunal refused to consider but she was unable to do so. It was apparent that her complaint is less that evidence went unconsidered and more that the Tribunal drew conclusions unfavourable to her application. Proposed ground three cannot succeed and leave to press it should, at least for that reason, be refused.

13    Proposed ground four suggests that, for reasons related to the appellant’s lack of English proficiency, the Tribunal failed to take account of some of the narrative that she had advanced. That contention evolved somewhat during the hearing of the appeal. The appellant explained her suspicion that she hadn’t comprehended certain matters at the Tribunal hearing. She could not point towards what they were but posited that that must have been so, because her reasons for seeking protection were not accepted. There is no basis to suppose that the Tribunal and the appellant did not understand one another. There was an interpreter at the hearing. Although no transcript is available, the appellant confirmed that at no time was the Tribunal informed of her suspected difficulties. The proposed ground is without merit and, at least for that reason, the appellant should and will not be permitted to press it.

14    Proposed appeal ground five is related to proposed appeal ground four. It suggests that the appellant’s command of English was “used against [her]” in assessing the credibility of her claims. That is not what happened. At [27] of its reasons, the Tribunal acknowledged the appellant’s concession that the written evidence that had been prepared on her behalf for the purposes of that review process was false. It went on to acknowledge that the appellant’s “…lack of English and understanding of the importance of the claims being properly articulated has been the major reason for the false claims and even for some of the inconsistencies in her claims”. The Tribunal in fact was prepared to excuse on the basis of the appellant’s language difficulties what might otherwise have been ripe for serious adverse credit findings. The professed fear of harm that the Tribunal rejected outright was rejected for distinct reasons: Tribunal’s decision, [32]. Proposed appeal ground five misconstrues the Tribunal’s approach. It cannot succeed and, at least for that reason, leave to press it should and will not be granted.

15    With respect, the appellant’s challenge proceeds not as a legitimate appeal against an erroneous judicial failure to recognise jurisdictional error, but, rather, as an invitation to overturn a tribunal decision on its merits. That invitation should not be accepted. The appeal should and will be dismissed.

16    The first respondent moves for administrative orders to record a change to the name of his portfolio. I will make such an order but otherwise dismiss the appeal with costs.

Associate:

Dated:    3 August 2026