Federal Court of Australia

GGW18 v Minister for Immigration and Multicultural Affairs [2026] FCA 1198

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

BUTTON J:

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCoA): GGW18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 970 (J). The primary judge dismissed the Appellant’s application for judicial review. The judicial review application was made in respect of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the First Respondent (the Minister) to refuse to grant the Appellant a protection visa under s 65 of the Migration Act 1958 (Cth). The Tribunal gave written reasons for its decision (T).

2    The Appellant is a citizen of Malaysia. She arrived in Australia on a tourist visa, and later applied for a protection visa. Her claim to protection was founded on a claim that she had taken out a loan from a Malaysian loan shark while she was in Malaysia, had paid off some, but not all, of her debt to the loan shark and faced harm from the loan shark if she returned to Malaysia.

3    The Tribunal rejected the Appellant’s claims. The Tribunal found that the Appellant “fabricated” the claims before it, and “manufactured her claims in order to remain in Australia”: T [84]–[85]. The Tribunal concluded expressly that it “[did] not accept that the [Appellant] borrowed money from loan sharks”: T [86]. The Tribunal recounted in its reasons its engagement with the Appellant during the hearing before it regarding her claims. The Tribunal set out in detail why it rejected the Appellant’s claims.

4    The judicial review application before the primary judge was made without any properly formulated grounds of review having been put forward. The primary judge’s reasons detail her open questioning of the Appellant as to the Appellant’s complaints about the Tribunal’s processes and decision. Having undertaken that process, the primary judge observed that the Appellant failed before the Tribunal because her claim for protection was not accepted on the facts: J [49]. The primary judge then identified the principles governing when adverse credibility findings may be susceptible to review for jurisdictional error, and applied those principles to the Tribunal’s adverse credit findings in its decision: J [50]ff. The primary judge concluded the Tribunal did not fall into jurisdictional error in its credibility findings: J [52].

5    The grounds of appeal, as stated by the Appellant in her Notice of Appeal in this Court, are as follows (emphasis added, otherwise quoted as per original):

1.     I, [name], the applicant in the above mentioned matter, hereby give notice of my intention to appeal against the decision rendered by Judge Cuthbertson on 2 October 2024 in the case of GGW18 v Minister for Immigration and Multicultural Affairs [2024].

2.     I am appealing the decision on the grounds of jurisdictional error. The Tribunal failed to properly consider the specific circumstances of my case, leading to an erroneous decision. The Tribunal's findings were based on an incomplete understanding of the facts and did not take into account critical information that would have affected the outcome of the case.

3.     The Tribunal's decision that was conducted on 15 February 2018 does not take into account the interest rate imposed by the loan shark on the loan that I took; instead, it made a basic calculation that the outstanding amount of RM6000 is equivalent to approximately $2000 dollar Australia. In many cases, loan sharks impose interest rates that are far above legal limits, leading to a cycle of debt that is difficult to escape. By only considering the principal amount and converting it to its equivalent in Australian dollars without factoring the interest accrued, the tribunal may not be reflecting the true financial burden that I am facing.

4.     The Tribunal's decision to focus solely on principal amount without factoring in the interest rates may overlook the true financial burden on me as the borrower. The Tribunal's decision appears to overlook the significant impact of predatory lending practices, particularly the exorbitant interest rates often charged by loan sharks. These rates can drastically inflate the amount I owed over the years, making it much more difficult for me to repay the debt. Hence, I believe I should be given another chance of hearing so that I can provide proof by video calling my mom and younger sister in Malaysia.

5.     Furthermore, I wish to provide new information that was not previously disclosed during the proceedings with the Tribunal. I would like to bring to the Court's attention that I am a muslim woman from Malaysia and that I am in a same-sex reltionship.

6.     In Malaysia, same-sex relationships are deemed unacceptable, particularly within the context of my religious beliefs (which I was born into and have no freedom to choose my religion) and societal norms.

7.     I believe that this new information is essential to understanding the complexities of my situation and how it directly impacts my safety and well-being if I were to return to Malaysia.

8.     I failed to address this critical aspect of my identity was because the interpreter who was in the proceedings with the Tribunal is someone who is an acquaintance. He is close with one of my friends and from what I have been told is that I need to be aware of because the interpreter are casually talks to his friends about anybody that he knows in the hearing's room and will discuss the issue openly which made me afraid to disclose my identity as a lesbian.

6    The parties were advised of the date and time for the hearing of the appeal on 1 June 2026. At the start of the hearing, the Appellant made an (unforeshadowed) oral application for an adjournment of the hearing. I heard from the parties on the adjournment application and refused the adjournment. Reasons were given on the transcript.

7    The only other procedural matter to note is that the Appellant did not file any written submissions in accordance with the timetable set by orders of the Court. When invited to make her submissions during the hearing, the Appellant sought to rely on a two-page written submission. I stood the matter down to allow the Minister time to read the document. The Minister did not oppose the Court receiving the late written submissions.

8    The Appellant did not make any oral submissions of substance over and above the contents of her written submissions and grounds set out in her Notice of Appeal.

9    As is apparent from the grounds, it appears that the Appellant contends that the Tribunal did not take account of “critical information”, that being the interest rate imposed by the loan shark, and the resulting financial burden on the Appellant, as well as matters concerning the Appellant’s sexuality. The eighth ground advances an explanation for why the Appellant did not raise matters concerning her sexuality before the Tribunal.

10    Before the Tribunal, the Appellant did not raise the imposition of interest by the loan shark on the loan, and the impact of the imposition of interest on the financial burden that the Appellant would face in trying to pay off the loan. Nor was the matter of interest and the associated scale of the financial burden raised by the Appellant before the primary judge. That being the case, the Appellant needs leave to raise, on this appeal, a point not taken below.

11    The matter of the Appellant’s sexuality was also not raised before the Tribunal, although it was raised by the Appellant before the primary judge, as I will detail below.

12    The Appellant’s written submissions are silent on the interest issue; indeed, the submissions say nothing about the loan shark claims at all. Nevertheless, I will proceed on the basis that the grounds of appeal relating to interest on the loan shark loan have not been abandoned.

13    Leave to raise grounds of appeal 3 and 4 concerning interest on the loan will be refused. As the Minister noted in his submissions, leave may be granted if a ground not raised below has merit, there is no real prejudice to the respondent and there is an adequate explanation for the failure to take the point below: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]–[48] (Kiefel, Weinberg and Stone JJ).

14    The new grounds concerning interest do not have merit so as to warrant the grant of leave. The grounds lack merit because the matter of interest was not raised before the Tribunal, and did not arise on the material before it. Where a matter was not raised before the Tribunal, the Tribunal was not required to consider it unless it clearly arose on the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]–[61] (Black CJ, French and Selway JJ).

15    The material before the Tribunal included the Appellant’s original application for protection. That application said nothing about the quantum of the loan, the amount outstanding, or the imposition of interest. The Appellant did not submit any witness statement or affidavit to the Tribunal, but did give evidence directly to the Tribunal, through an interpreter.

16    The Tribunal’s record of its exchanges with the Appellant relevant to the extent of the claimed loan and outstanding obligations to the loan shark, and her capacity to repay the loan, is as follows (emphasis added, otherwise quoted as per original):

15.     The applicant borrowed 10,000 ringgit from a loan shark.

…

30.     The applicant said that she paid back part of the loan shark debt, but it was not enough to repay the loan completely because she has other financial commitments.

31.     6,000 ringgit is still outstanding according to the applicant. The loan shark is still looking for her and her family.

…

59.     The applicant is earning money in Australia. She sends some home to her family. She says it is still not enough. She earns $800 per week. She packs fruits in a factory. Some of the money has been paid off to the loan shark but it is not the same amount that she was paying back in Malaysia.

60.     It was pointed out the applicant that she is earning more money in Australia than she is earning in Malaysia. She said that she has only just started working and it will be some time before her finances are stable. Before working at this fruit shed she had been working at a farm. She had problems as some of the farms had not pay her wages.

61.     The outstanding amount is 6,000 ringgit which is the equivalent of approximately $2,000. It was pointed out that the applicant is earning $800 a week it did not sound like it would be long before this amount would be paid off. The applicant said that that was correct but that she had other commitments. The applicant said she had a study loan her younger sister and also her father's debt and bank loan.

…

72.     The applicant claimed to have borrowed 10,000 ringgit, and repaid all but 6,000 ringgit. The applicant has been working in Australia since her arrival in 2016. The Tribunal explored this further and ascertained that she was earning some $800 per week and suggested that the remaining debt might be paid off with relative ease because of her higher wages in Australia. The applicant attempted to deflect this by claiming that she had other outgoings and obligations but avoided any timeline of when an income of around $3,300 per month would resolve the debt of the equivalent of $2,000. Her alleged debt to a loan shark in this light did not seem an insurmountable problem to the Tribunal, but the topic was never confronted.

17    The extent of the amount outstanding, as told to the Tribunal, was 6000 ringgit, and the reason given to the Tribunal why the Appellant could not pay that amount back from her earnings in Australia was that she had other outgoings. The imposition of interest was not put to the Tribunal as a reason why the burden of the loan was such that the Appellant could not repay it.

18    I turn, next, to matters concerning the Appellant’s sexuality. The Appellant’s written submissions were directed entirely to the sexuality matter. The submissions contended that the Appellant would face a risk of severe harm in Malaysia based on her sexual orientation “and religious position”. I took the reference to the Appellant’s “religious position” to be her departure from Islamic religious norms concerning sexuality; no other matter concerning religion was raised in the submission or orally.

19    As noted above, the matter of the Appellant’s sexuality was not raised before the Tribunal, but was raised before the primary judge. The passages of the primary judge’s reasons relevant to that matter are as follows (emphasis added):

42    I asked the applicant to explain how it was unfair of the Tribunal to make the findings it did. She explained that it was because she did not have any evidence. In respect of not repaying the outstanding loan amount, the applicant explained when she first arrived in Australia she intended to pay the amount. She said her family told her to come go back home but she did not want to because of her fear of people. She explained her mother said she could come back and marry a man she had chosen who could help solve her financial problems. She told the Court she did not want to do that. She felt her family were making all the decisions. She acknowledged she had not told the Tribunal of these issues.

…

44    In reply to the Minister’s submissions, the applicant told the Court that the Tribunal could have asked her again for information and given her more time to get the evidence. She told the Court her family did not want to help her because they knew she was in Australia as a member of the LGBTQ community. She repeated they had tried to force her to come home to marry. She told the Court she cannot marry a person she does not want to marry, and that her family no longer accepts her because she is a member of the LGBTQ community. She does not wish to return to Malaysia because she now has a partner in Australia. She told the Court that she really did not want to go home. She said her mother will want her to get married and may even force her to get married, that will cause issues and she may lose her mind. She said her mother will not accept her because same sex relationships are sinful under Islam. She said she did not think she would be able to manage things if she returned. She said there would be pressure, there would be nothing there for her and she would be excommunicated from her family. The applicant agreed that none of this information was before the Tribunal.

20    It may be noted that it appears that nothing was said to the primary judge as to the reason why the Appellant did not raise matters concerning her sexuality before the Tribunal.

21    The primary judge addressed why the matters that were raised concerning the Appellant’s sexuality and her family’s attitude towards it (including pressure to marry a man) did not result in relief in the Appellant’s favour, as follows (J [53]):

As to the issues raised by the applicant relating to being forced to marry and her sexuality, those matters were not raised with the Tribunal and did not otherwise arise on the materials. The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61], per Black CJ, French and Selway JJ.

22    The primary judge’s reasoning in this regard does not involve any error.

23    The only other matter that needs to be addressed is the significance, if any, of the explanation put forward in the form of ground 8, concerning the reason why the Appellant did not raise the matter of her sexuality before the Tribunal. This explanation was not raised before the primary judge.

24    The Appellant had a meaningful opportunity to present her evidence and case before the Tribunal. She accepted as much in her oral reply submissions, but said she was not ready to disclose her sexuality to the Tribunal because of fears that her family would find out. Although ground 8 contends that the Appellant did not raise her sexuality before the Tribunal due to concerns that the information would get back to her family, she did not raise with the Tribunal any concern about the identity of the interpreter or tell the Tribunal that she felt constrained in what she could say to the Tribunal. Where no issue was raised about the identity of the interpreter before the Tribunal, I cannot see a pathway by which any jurisdictional error on the part of the Tribunal might arise, whether on the basis of procedural fairness or otherwise.

25    While the proffering of a reason why a matter not raised below ought to be allowed to be raised on an appeal is relevant to whether leave should be granted to an appellant to raise a point on appeal that was not taken below, that is not the situation that has arisen (the explanation being in relation to why matters relating to the Appellant’s sexuality were not raised before the Tribunal, cf before the FCFCoA where the Appellant’s sexuality was discussed).

26    I note, finally, that the Appellant’s two-page written submission contained a section headed “Why I disclosed my protection claims late”. That section refers to the Appellant’s fears about disclosing her sexuality. The submission also advanced a contention that the Tribunal engaged in “Jurisdictional Error on Late Disclosure”, the claim being “Dismissing my genuine protection claim purely on the basis of late disclosure, without properly assessing the actual danger upon return, constitutes a failure to exercise jurisdiction according to law”. This claim must be rejected for two reasons. First, it is not raised by any ground stated in the Notice of Appeal. Secondly, the Tribunal affirmed the delegate’s decision because it disbelieved the Appellant’s claims regarding the loan sharks. The Tribunal did not dismiss her protection claims due to the late disclosure of the basis on which the Appellant claimed protection.

27    For the foregoing reasons, the appeal will be dismissed, with costs.

Associate:

Dated:    24 August 2026