2008713 (Refugee) - [2025] ARTA 1159

2008713 (Refugee) [2025] ARTA 1159 (13 March 2025)
Decision and
Reasons for Decision

Respondent:

Minister for Immigration and Multicultural Affairs

Tribunal Number:

2008713

Tribunal:

General Member F Robertson

Date and time of Oral decision and reasons:

13 March 2025 at 10:11am

Date of written record:

24 March 2025

Place:

Perth

Decision:

The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth)

Statement made on 24 March 2025 at 1:26pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – fear of arrest – physical harm – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

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
These reasons were delivered orally on 13 March 2025 and have been reproduced from the transcript, edited without variation to the substance of the decision and reasons, to insert headings, relevant footnotes and to correct matters of grammar and infelicity of expression.
INTRODUCTION

This is an application for review of a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
The applicant is [an age]-year-old male from Malaysia. The applicant arrived in Australia in November 2016 as the holder of a tourist visa. He attempted to apply for a protection visa in February 2017, but the application was invalidated because the applicant failed to provide personal identifiers. The applicant then validly applied for protection visa in June 2017. I draw no adverse inference from this.
The applicant's protection visa application claimed that he was a gay man who had a boyfriend who was also applying for a protection visa. The application feared harm from police, community and family members and that his religion did not accept his relationship. The delegate did not accept the applicant’s claims and found that the applicant did not face a real chance of serious harm or face a real risk of significant harm if he was returned to Malaysia. The applicant thereafter applied for review…

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 2008713 (Refugee)

Details

AGLC: 2008713 (Refugee) [2025] ARTA 1159
Case: [2025] ARTA 1159
Decision Date: 13 March 2025

CaseChat Overview and Summary

The case before the court involved a Malaysian national who applied for a protection visa in Australia. The applicant claimed to be a gay man who had suffered significant persecution in Malaysia due to his sexual orientation, which included threats of violence from his family and community. The applicant argued that returning to Malaysia would place him at a significant risk of persecution and harm. The Federal Circuit and Family Court of Australia reviewed the decision to deny the applicant a protection visa.

The primary legal issue the court had to determine was whether the applicant's fear of persecution in Malaysia was 'well-founded' within the meaning of the Migration Act 1958 (Cth). The court also needed to consider whether the applicant met the criteria for complementary protection, given the denial of the protection visa. The applicant had to demonstrate a real chance of persecution if returned to Malaysia, which must relate to all areas of that country. Additionally, the court had to assess whether there were substantial grounds for believing that the applicant would suffer significant harm if returned to Malaysia.

The court found that the applicant had a well-founded fear of persecution due to his sexual orientation in Malaysia. The evidence presented by the applicant demonstrated a history of hostility and threats from his family and community, along with a general societal intolerance towards LGBTQIA+ individuals. The applicant's claims of discrimination in the workplace and distrust in the law enforcement further supported his case. The court concluded that the applicant's fear of persecution was real and related to all areas of Malaysia. Consequently, the court set aside the decision under review and remitted the application for reconsideration, with a direction that the applicant must be taken to have satisfied section 36(2)(a) of the Migration Act 1958 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.CLAIMS AND EVIDENCE The applicant was born in [specified year] to Muslim parents in Sabah, Malaysia. He claims that from an early age, he recognised his identity as a gay man. He claims this realisation caused him to experience bullying throughout school, which he claims affected his academic performance and self-esteem. The applicant claims that his family, in particular his brothers, responded to his identity with hostility, threatening violence, including death, if he did not conform with the traditional norms of masculinity and heterosexuality. According to the applicant, the broader Malay community shares this hostility. He claims that homosexuality is viewed as un-Islamic, sinful, socially stigmatised. He further claims that he lived under constant threat, not just from his family, but from the larger Muslim community, which he describes as intolerant of LGBTQIA+ individuals. He alleges that this cultural and religious climate created an atmosphere of fear, exclusion and psychological distress not only for him but for other persons who identify with that community. The applicant claims that his working life spanning [various sectors] was marked by persistent discrimination because of his actual or perceived sexuality. He recounts workplace bullying, limited career progression and general fear of being exposed as being a gay man. He also expresses distrust in Malay law enforcement, claiming police officers harassed him and other gay individuals further diminishing his faith in the ability of the Malaysian authorities to provide protection. According to the applicant, in 2015, family tensions escalated when his father became ill, which prompted him to leave his job to provide care for his father. His father’s death in 2016, the applicant claims, was somewhat of a watershed moment, because it deprived him of what little protection he had, leaving him vulnerable to his brothers more than he was prior to his father’s death. The applicant claims that fearing for his safety, he sought refuge in Australia, where he arrived on a tourist visa. The applicant describes his life in Australia as one of relative safety and dignity free from the threats he faced in Malaysia. He has detailed his past and current same-sex relationships and has asserted that returning to Malaysia will force him into secrecy and expose him to significant harm. He contends that Malaysia’s legal system criminalises homosexuality and that the government endorses coercive practices aimed at curing LGBTQ+ individuals.

Decision

Reasons for decision

For the above reasons, I am satisfied the applicant has a well-founded fear of persecution within the meaning of the Act. Therefore, I find the applicant satisfies section 36(2)(a) of the Act. In those circumstances, it is unnecessary to consider the alternative complimentary protection criterion.DECISION The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth).

Ratio Decidendi

Legal Principle Established

A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4][2] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[3] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act contains a non-exhaustive list of examples of harm that involve serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b). [4] Migration Act 1958 (Cth), s 5J(4)(c). A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6] [5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.Complementary protection criterion A person who does not satisfy the ‘refugee criterion’ in s 36(2)(a) of the Act, may satisfy the 'complementary protection criterion' under s 36(2)(aa). That criterion is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7][7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.CLAIMS AND EVIDENCE The applicant was born in [specified year] to Muslim parents in Sabah, Malaysia. He claims that from an early age, he recognised his identity as a gay man. He claims this realisation caused him to experience bullying throughout school, which he claims affected his academic performance and self-esteem. The applicant claims that his family, in particular his brothers, responded to his identity with hostility, threatening violence, including death, if he did not conform with the traditional norms of masculinity and heterosexuality. According to the applicant, the broader Malay community shares this hostility.

Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2008713
Tribunal:	General Member F Robertson
Date and time of Oral decision and reasons:	13 March 2025 at 10:11am
Date of written record:	24 March 2025
Place:	Perth
Decision:	The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth)