1916333 (Refugee) - [2025] ARTA 1569

1916333 (Refugee) [2025] ARTA 1569 (20 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 1916333

Tribunal:General Member R Lee
Date:20 June 2025

Place:Perth
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 20 June 2025 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – mixed religious marriage – mixed race marriage – birth and marriage registration – children considered illegitimate – fear of detention – criminal penalties – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] March 2018 and has not departed since.[1]
[1] Movement record – 3 October 2024. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended.
The applicant who claims to be a national of Malaysia, applied for the visa on 16 April 2018. The delegate refused to grant the visa on the basis that the applicant would not suffer serious harm as a member of the LGBT community if they returned to Malaysia.
The applicant appeared before the Tribunal on 2 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Evidence before the Department
According to information contained in their protection visa application, the applicant is [an age]-year-old Malaysian citizen of the Islamic religion who was born in Sibu, Sarawak, Malaysia.
In relation to their claims for protection, the applicant claimed they left Malaysia because they were a member of the LGBT community.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1916333 (Refugee)

Details

AGLC: 1916333 (Refugee) [2025] ARTA 1569
Case: [2025] ARTA 1569
Decision Date: 20 June 2025

CaseChat Overview and Summary

The case involves a Malaysian citizen who applied for a protection visa in Australia due to their membership in the LGBT community. The applicant claimed they could not live openly as a family in Malaysia due to their mixed religious and racial marriage, which is not legally recognized. The Tribunal, previously the Administrative Appeals Tribunal (AAT), reviewed the decision made by the delegate of the Department of Home Affairs. The primary legal issue was whether the applicant had a well-founded fear of persecution based on their membership in a particular social group, specifically their status in a mixed religious and racial marriage. The court also considered if the applicant's situation met the criteria for a protection visa under Australian law.

The Tribunal found that the applicant's fear of persecution was well-founded due to the systemic and discriminatory treatment they would face in Malaysia. The marriage and child could not be legally registered, and the family's incorrect belief that the husband had converted to Islam added to the risk. The Tribunal concluded that the applicant met the criteria for a protection visa as they were a refugee under the Migration Act. The decision to refuse the protection visa was set aside and remitted for reconsideration, acknowledging the applicant's protection obligations under the Act.

As a result of the Tribunal's decision, the application for a protection visa was set aside and remitted for reconsideration, with the Tribunal finding that the applicant satisfied the criteria for a refugee under section 36(2)(a) of the Migration Act. The Tribunal emphasized the need for a thorough review of the applicant's circumstances and evidence provided. This decision ensures that the applicant's application will be reconsidered with due regard to the protection obligations Australia has under international law.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant was represented in relation to the review. The representative attended the Tribunal hearing.BACKGROUNDEvidence before the Department According to information contained in their protection visa application, the applicant is [an age]-year-old Malaysian citizen of the Islamic religion who was born in Sibu, Sarawak, Malaysia. In relation to their claims for protection, the applicant claimed they left Malaysia because they were a member of the LGBT community. The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application. On 20 April 2018, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could bring any additional information they would like to be considered to the appointment for the collection of personal identifiers or otherwise provide it to the Department. The applicant’s appointment to provide biometrics/personal identifiers was 27 April 2018, which the applicant attended. The Department did not receive any further information or documentary evidence from the applicant. The Department did not invite the applicant to attend an interview.Evidence before the TribunalThe review application On 21 June 2019, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT) and provided a copy of the delegate’s decision. On 24 June 2019, the AAT wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the AAT to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could. On 26 July 2024, the AAT sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete and which asked the applicant to provide any further evidence they wished to submit in writing as soon as they could. On 30 July 2024, the applicant provided the AAT with a copy of the completed pre-hearing information form, in which the applicant claimed that they sought a protection visa because they are of the Islamic faith and in October 2020, they married a Chinese Buddhist Malaysian citizen. They have a child. They would be unable to live as a family in Malaysia, and the marriage and the child’s birth cannot be registered in Malaysia. The applicant’s family incorrectly thinks that the husband has converted to Islam, which he will not do nor will he remove the [specified tattoos] on his body. The husband had his own case before the AAT.

Evidence

Evidence Before The Court

The Department did not invite the applicant to attend an interview.Evidence before the TribunalThe review application On 21 June 2019, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT) and provided a copy of the delegate’s decision. On 24 June 2019, the AAT wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the AAT to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could. On 26 July 2024, the AAT sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete and which asked the applicant to provide any further evidence they wished to submit in writing as soon as they could. On 30 July 2024, the applicant provided the AAT with a copy of the completed pre-hearing information form, in which the applicant claimed that they sought a protection visa because they are of the Islamic faith and in October 2020, they married a Chinese Buddhist Malaysian citizen. They have a child. They would be unable to live as a family in Malaysia, and the marriage and the child’s birth cannot be registered in Malaysia. The applicant’s family incorrectly thinks that the husband has converted to Islam, which he will not do nor will he remove the [specified tattoos] on his body. The husband had his own case before the AAT. On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal. Before the hearing, the applicant provided a statutory declaration signed 25 November 2024 (Applicant’s Statutory Declaration), a statutory declaration signed 25 November 2024 from her husband (Husband’s Statutory Declaration) and written submissions with relevant attachments provided 27 November 2024 (Written Submissions). At the hearing, the applicant made available a translated extract of the husband’s birth certificate.The hearing: supporting documents and oral evidence The applicant and the husband attended in person and each gave oral evidence. The applicant said their parents know the applicant is married; they have met the husband via a few video chats and his religion would be obvious from his appearance. The parents have said it is the applicant’s choice who they are with.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).DECISION The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.Date(s) of hearing: 2 December 2024 Representative for the Applicant: Ms Lisa KastropilATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(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(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(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(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

Before the hearing, the applicant provided a statutory declaration signed 25 November 2024 (Applicant’s Statutory Declaration), a statutory declaration signed 25 November 2024 from her husband (Husband’s Statutory Declaration) and written submissions with relevant attachments provided 27 November 2024 (Written Submissions). At the hearing, the applicant made available a translated extract of the husband’s birth certificate.The hearing: supporting documents and oral evidence The applicant and the husband attended in person and each gave oral evidence. The applicant said their parents know the applicant is married; they have met the husband via a few video chats and his religion would be obvious from his appearance. The parents have said it is the applicant’s choice who they are with. The applicant said the email address for correspondence in the protection visa application was theirs at the time but that they did not understand the protection visa application was their responsibility nor were they aware that they had to tell the truth in the application, because their English was not very good, they were unaware of the process and they trusted the person helping them. The applicant’s employment details in the protection visa application are incorrect. The applicant does not remember receiving emails from the Department. The applicant said that the husband’s protection visa application was refused before the delegate’s decision in relation to the applicant’s application, but they did not discuss it. The applicant did not read their delegate’s decision, but just read the word ‘refused’. The applicant was not curious about why their protection visa application had been refused. The applicant said it was not because they did not care about the outcome, but they did not know about such things and they let the agent handle everything. The applicant said the email address in the review application was not theirs. They do not recall seeing the Tribunal’s correspondence, but did receive the Tribunal’s confirmation letter for Medicare purposes. The applicant agreed that they have had a reasonably solid work history in Malaysia and Australia, and the husband probably has more work experience than them. The applicant said they decided to get married because it was the natural thing to do at that stage of the relationship and they felt during the COVID-19 pandemic it was important to do the right thing. The husband and the applicant did not discuss the refusal of their protection visa applications at the time, and the applicant did not think much about it. The applicant suggested that they might be under stronger surveillance in urban centres and disagreed that they could move to say Kuala Lumpur to avoid attention, and said the Islamic laws applied whether or not a person was famous. It only took one report. When the Tribunal suggested that it would not be unreasonable to refrain from public displays of affection in Malaysia, the applicant said they ran to the risk of being reported for holdings hands or hugs and Malaysian people have a special talent for spotting people’s ethnicity and the applicant and the husband would run the risk of being reported all the time. The applicant would cover their hair in public in Malaysia and the husband looks Chinese.