1930744 (Refugee) - [2025] ARTA 963

1930744 (Refugee) [2025] ARTA 963 (5 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Numbers: 2204740 (Applicant 1) & 1930744 (Applicant 2)
Tribunal:General Member S Fitzsimons
Date:5 June 2025

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
·Applicant 1 meets the criteria in s36(2)(a) of the Migration Act
·Applicant 2 meets the criteria in s36(2)(a) of the Migration Act

Statement made on 05 June 2025 at 8:34am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – LGBTI – bisexual – Muslim women in Malaysia – members of the same family unit – existence of CCTV footage exposing sexuality – syariah law – pressured to divorce and remarry to pay off family debt – family violence – victims of assaults and threats – gender-based violence – decisions under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
Huynh v Minister for Immigration and Border Protection (2020) FCAFC 153
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
APPLICATIONS FOR REVIEW

This decision relates to two separate applications for review by [Applicant 1] and [Applicant 2] who are husband and wife.[1] Both applicants claim to be Malaysian citizens.
[1] Any reference in this decision to “Applicant 1” is a reference to [the husband] and any reference to “Applicant 2” is a reference to [the wife].
Applicant 1 applied for a protection visa on 28 June 2019. A delegate of the Minister for Immigration and Citizenship refused the visa under s65 of the Migration Act 1958 (Cth) (the Act) on 25 March 2022 because the delegate did not have enough detail about the substance of the claims in the visa application which meant the delegate was not satisfied that the applicant was a refugee nor owed complementary protection. The applicant lodged a review application with the Administrative Appeals Tribunal (AAT) on 31 March 2022.
Applicant 2 applied for a protection visa on 22 March 2019. A delegate of the Minister for Immigration and Citizenship refused the visa under s65 of the Act on 18 October 2019 because on the basis of country information, the delegate found that forced marriage is forbidden by law and that the police in Malaysia would enforce the law, and that state protection is available and therefore the delegate was not satisfied that the applicant was a refugee nor owed complementary protection. The applicant lodged a review application with the AAT on 29 October 2019.
On 14 October…

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.

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Details

Case: [2025] ARTA 963
Decision Date: 5 June 2025

CaseChat Overview and Summary

The applicants, two Malaysian nationals, sought a review of the delegate’s decision to refuse their applications for protection visas. The Tribunal was required to determine whether the applicants met the definition of a refugee under section 36(2) of the Migration Act 1958 (Cth). Applicant 1, who identified as bisexual, and Applicant 2, a Muslim woman, argued that they would face persecution in Malaysia due to their sexual orientation and gender, respectively. The Tribunal found that the delegate’s decision should be set aside and remitted for reconsideration on the basis that both applicants met the refugee criterion in section 36(2)(a) of the Act. Applicant 1 was found to be bisexual, thus meeting the criterion as a member of a particular social group. Applicant 2 was also found to meet the criterion as a member of a particular social group, being Muslim women in Malaysia. The Tribunal concluded that there was a real chance that both applicants would be persecuted if returned to Malaysia due to their sexual orientation and gender, respectively.

The final orders of the Tribunal were to set aside and remit the applications for a protection visa for reconsideration, in accordance with the order that the applicants satisfied section 36(2)(a) of the Migration Act. The Tribunal found that the delegate’s decision should be set aside and remitted for reconsideration, as the applicants met the refugee criterion under section 36(2)(a) of the Act. The Tribunal did not consider it necessary to address the alternative criterion in section 36(2)(aa) of the Act, as the applicants met the primary criterion. The Tribunal found that both applicants would face persecution in Malaysia due to their sexual orientation and gender, respectively, and that there was a real chance of this persecution occurring.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that in relation to Applicant 1, the decision under review should be set aside and remitted on the basis that he is a bisexual man and therefore meets s36(2)(a) of the Act and in relation to Applicant 2, the decision under review should be set aside and remitted on the basis that she is also meets s36(2)(a) as a member of a particular social group, being Muslim women in Malaysia. Evidence before the TribunalBackground Applicant 1 told me he was born on [date] in Sabah, which is consistent with the information in his protection visa application. His movement records from the Department of Home Affairs (“the Department”) indicate that he was granted a subclass 601 visa on 26 January 2019 and he arrived in Australia as the holder of a that visa [in] February 2019. Applicant 2 told me she was born on [date] in Sabah which is consistent with the information in her protection visa application. Her movement records indicate she was granted a subclass 601 visa on 21 December 2018 and she arrived in Australia as the holder of that visa [in] December 2018. I accept all of the above matters to be true. Summary of Protection claims – Applicants 1 and 2 The protection claims of Applicant 1 and Applicant 2 that were before the delegate were broadly consistent with their respective claims before me. Neither of the Applicants were interviewed by the delegate. In his visa application, Applicant 1 claimed he is gay and that he had been in a relationship with a man in Malaysia for 20 years. In the first hearing, Applicant 1 claimed that he is actually bi-sexual and not gay and that he had had relationships with women and men in Malaysia but not with one man for 20 years. He told me that someone from [Workplace 1] where he was working when he arrived in Australia helped him complete the visa application form and this is the reason for those differences between the application form and his oral evidence. I accept that the applicant received assistance in completing his application form, and as his claims in his protection visa application relate to his sexuality, which were also the claims before me, I place no weight on the differences between his visa application and evidence before me. In her visa application, Applicant 2 claimed that her family would force her to marry a man not of her choosing if she returned to Malaysia. Before me, Applicant 2 claimed she would be harmed by her half-brother as a result of shame she has bought on her family because a) she ran away from a man her half-brother wanted her to marry against her will and b) she helped her sister leave her violent husband in Malaysia and seek refuge in Australia. Applicant 2 also claimed harm on the basis that her half-brother would, notwithstanding she is married to Applicant 1, force her to divorce and marry the man in Malaysia. Before the first hearing Applicant 2 provided various documents to the Tribunal in support of both her review application and Applicant 1’s review application, including a written personal statement, photographs, her marriage certificate, birth certificates of her [children], a pre-marriage agreement, a statutory declaration from her sister, and country information regarding forced marriage and the LGBTI community in Malaysia. Where relevant, I have referred to those documents in my reasons for my decision. The manner in which each Applicant gave their oral evidence

Decision

Reasons for decision

Having concluded that Applicant 2 does meet the refugee criterion in s36(2)(a), it is not necessary for me to consider the alternative criterion in s36(2)(aa).DECISION In respect of Applicant 1, the Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act. In respect of Applicant 2, the Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act.Dates of Hearing: 29 April 2025 and 9 May 2025Representative for the Applicants: N/AATTACHMENT - 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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