1929744 (Refugee) - [2025] ARTA 1379

1929744 (REFUGEE) [2025] ARTA 1379 (23 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1929744
Tribunal:General Member L Luo
Date:23 April 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application in respect of the first named applicant for a protection visa for reconsideration, in accordance with the orders that the first named applicant:
(i)meets s 36(2)(a) of the Migration Act; and
(ii)satisfies s 36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as [Ms A].

AND
The Tribunal affirms the decision under review in respect of the second named applicant.

Statement made on 23 April 2025 at 12:58pm
CATCHWORDS
REFUGEE – protection visa – political opinion – attendance at rally – attacked and monitored – second applicant cousin not member of family unit and cannot be contacted – decision affirmed – application completed by another person and claims incorrect – first applicant’s new claim as member of particular social group – homosexual woman – relationships, bullying and discrimination – documentary evidence – registered partner’s separate protection visa granted – family initially unsupportive then accepting – country information – Chinese Malaysian not subject to syariah laws – criminal laws and moderate to high risk of societal and official discrimination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CB(2), 5H(1)(a), 5J(1), (4), (5), 36(2)(a), (b)(i), 65, 359A, 423A
Administrative Review Tribunal Act 1958 (Cth), s 106(5)
Migration Regulations 1994 (Cth), r 1.12(4)(a), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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[1] of a decision made by a delegate of the Minister for Home Affairs on 11 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be nationals of Malaysia, applied for the visas on 2 January 2019.
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The first named applicant (Applicant 1) attended the Tribunal as a witness in matter number 1810867. She gave evidence that her visa application was made by a migration agent, she was not consulted on its content and the claims were therefore incorrect. The Tribunal wrote to Applicant 2 pursuant to s 359A…

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 1929744 (Refugee)

Details

AGLC: 1929744 (Refugee) [2025] ARTA 1379
Case: [2025] ARTA 1379
Decision Date: 23 April 2025

CaseChat Overview and Summary

The applicants, two Chinese Malaysians, were cousins who came to Australia in January 2019 on an Electronic Travel Authority. They applied for a protection visa based on claims of persecution for their political opinions and involvement in a rally. The primary applicant, a lesbian woman, also claimed protection as a member of a particular social group based on her sexual orientation. The delegate rejected their applications, finding a low risk of persecution and harassment in Malaysia. The Tribunal was tasked with reviewing the delegate's decision, particularly focusing on whether the applicants met the criteria for a protection visa under the Migration Act.

The legal issues before the Tribunal were whether the applicants met the criteria for a protection visa, specifically if they faced a real risk of significant harm upon return to Malaysia. The Tribunal had to consider the documentary evidence provided, the credibility of the applicants' claims, and the risk of persecution based on their political activities and sexual orientation. The Tribunal also needed to determine if the second applicant, who did not reside with the primary applicant and was not financially dependent on her, could still be considered part of the same family unit for visa purposes.

The Tribunal found that the primary applicant met the criteria for a protection visa as she is a lesbian woman in a de facto relationship with her partner, who holds a protection visa. The Tribunal accepted her claims and evidence, including the registration certificate and her partner's protection visa grant. The Tribunal also accepted that she was in a relationship with her partner and that her parents' concerns about her travelling alone led her to ask her cousin to accompany her. However, the Tribunal concluded that the second applicant was not part of the same family unit and did not meet the criteria for a protection visa. The Tribunal set aside the delegate's decision concerning the primary applicant and remitted the matter for reconsideration, while affirming the decision regarding the second applicant.

The Tribunal's final orders were to set aside the decision not to grant the primary applicant a protection visa and to remit the matter for reconsideration, finding that she met the criteria for a protection visa. The decision not to grant the second applicant a protection visa was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

Applicant 2’s matter has therefore been determined on the evidence available to the Tribunal.BACKGROUND Applicant 1 is a [Age] year old Chinese Malaysian woman and Applicant 2 is a [Age] year old Chinese Malaysian man. The applicants are cousins and came to Australia together [in] January 2019 as the holders of an Electronic Travel Authority.Evidence before the Department The applicants made a combined visa application to the Department in which they claimed that they both attended a Bersih activity organised by the DAP Party on 7 May 2018. They were distributing flyers about Bersih and a group of red shirts from UMNO came and attacked them. They claimed that some of the group of red shirts lived in the same apartment complex as them and spied on them daily. They claimed that they contacted the police but the police did not help them. The applicants were not invited to an interview. The delegate refused the applications because the applicants would only face a low risk of arrest and harassment on the basis of their political opinion, and the defeat of Barisan National at the general election further lessens the chance that Bersih supporters would be harmed in Malaysia. The delegate noted that the applicants did not provide any documentary evidence to substantiate their claimed family relationship, but for the purposes of the decision the delegate was satisfied that Applicant 2 is a member of the same family unit of Applicant 1 as defined in s 5(1).Evidence before the Tribunal Applicant 1 provided a significant amount of pre-hearing evidence and submissions to support her claim that she is a lesbian and in a de facto relationship with her partner, [Ms A], the holder of a protection visa. She provided a copy of her relationship registration certificate and a copy of her partner’s protection visa grant. She also attended the Tribunal as a witness in her partner’s protection visa review hearing (Tribunal number 1810867) on 13 February 2024, and provided a witness statement in respect of her partner’s review application. In the Tribunal’s decision in matter 1810867, the Tribunal accepted that Applicant 1 was in a de facto relationship with her partner. In Applicant 1’s pre-hearing submissions, she claimed that her parents were worried about her travelling alone to Australia, so she asked her cousin, Applicant 2, to come with her. They were assisted by the son of a friend of her father, who said he would secure a visa that would allow her to work in Australia for several years, and that he had already arranged jobs for both applicants so they could start working as soon as they arrived. In support of Applicant 1’s application, she also provided a number of articles about the plight of LGBTQIA+ people in Malaysia and attitudes of the Malaysian authorities towards LGBTQIA+ people, as well as multiple AAT decisions including her partner’s decision. At hearing, I told Applicant 1 that, as a result of the significant amount of supporting evidence provided to the Tribunal in the current review application and her partner’s review application, I accept her claims to be a lesbian and to be in a relationship with her partner and did not need test her evidence at the hearing. I indicated that I will make a favourable decision in her matter, but that I could not in respect of Applicant 2. Applicant 1 confirmed that the claims in her visa application were not correct. Applicant 1 also gave evidence that Applicant 2 does not live with her and is not financially dependent on her or her partner. I advised Applicant 1 that, if she was able to contact Applicant 2, she should tell him to contact the Tribunal and advise how he wished to proceed with his review application. I advised that he could withdraw the application, continue the application and attend a hearing or consent to the Tribunal making a decision without a hearing. I advised that if he did not contact the Tribunal, the Tribunal will make a decision in his matter on the information available.

Evidence

Evidence Before The Court

The applicants were not invited to an interview. The delegate refused the applications because the applicants would only face a low risk of arrest and harassment on the basis of their political opinion, and the defeat of Barisan National at the general election further lessens the chance that Bersih supporters would be harmed in Malaysia. The delegate noted that the applicants did not provide any documentary evidence to substantiate their claimed family relationship, but for the purposes of the decision the delegate was satisfied that Applicant 2 is a member of the same family unit of Applicant 1 as defined in s 5(1).Evidence before the Tribunal Applicant 1 provided a significant amount of pre-hearing evidence and submissions to support her claim that she is a lesbian and in a de facto relationship with her partner, [Ms A], the holder of a protection visa. She provided a copy of her relationship registration certificate and a copy of her partner’s protection visa grant. She also attended the Tribunal as a witness in her partner’s protection visa review hearing (Tribunal number 1810867) on 13 February 2024, and provided a witness statement in respect of her partner’s review application. In the Tribunal’s decision in matter 1810867, the Tribunal accepted that Applicant 1 was in a de facto relationship with her partner. In Applicant 1’s pre-hearing submissions, she claimed that her parents were worried about her travelling alone to Australia, so she asked her cousin, Applicant 2, to come with her. They were assisted by the son of a friend of her father, who said he would secure a visa that would allow her to work in Australia for several years, and that he had already arranged jobs for both applicants so they could start working as soon as they arrived. In support of Applicant 1’s application, she also provided a number of articles about the plight of LGBTQIA+ people in Malaysia and attitudes of the Malaysian authorities towards LGBTQIA+ people, as well as multiple AAT decisions including her partner’s decision. At hearing, I told Applicant 1 that, as a result of the significant amount of supporting evidence provided to the Tribunal in the current review application and her partner’s review application, I accept her claims to be a lesbian and to be in a relationship with her partner and did not need test her evidence at the hearing. I indicated that I will make a favourable decision in her matter, but that I could not in respect of Applicant 2. Applicant 1 confirmed that the claims in her visa application were not correct. Applicant 1 also gave evidence that Applicant 2 does not live with her and is not financially dependent on her or her partner. I advised Applicant 1 that, if she was able to contact Applicant 2, she should tell him to contact the Tribunal and advise how he wished to proceed with his review application. I advised that he could withdraw the application, continue the application and attend a hearing or consent to the Tribunal making a decision without a hearing. I advised that if he did not contact the Tribunal, the Tribunal will make a decision in his matter on the information available.

Decision

Reasons for decision

As Applicant 2 is not a member of the same family unit as Applicant 1, there is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, Applicant 2 does not satisfy the criterion in s 36(2).DECISION The Tribunal sets aside the decision under review and remits the application in respect of the first named applicant for a protection visa for reconsideration, in accordance with the orders that the first named applicant:·(i) meets s 36(2)(a) of the Migration Act; and·(ii) satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as [Ms A].AND The Tribunal affirms the decision not to grant the second named applicant a protection visa.Date of hearing: 22 January 2025Representative for the Applicants: Mr Jia Li (MARN: 5510864)ATTACHMENT - 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

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