2010120 (Refugee)

Case [2025] ARTA 550

2010120 (Refugee) [2025] ARTA 550 (13 May 2025)

Applicant:BXFHJ

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2010120

Tribunal:Justice Kyrou, President

Deputy President S Burford
  Deputy President K Dordevic

Place:Melbourne  

Date:13 May 2025

Decision:The Tribunal affirms the decision under review.

.................................[sgd].......................................

Justice Kyrou, President; Deputy President S Burford; Deputy President K Dordevic

Pursuant to an order made by the President on 5 May 2025, the applicant is referred to by a pseudonym. In accordance with s 369 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant. Accordingly, precise dates and place names are not used in some parts of the Tribunal’s reasons.

Catchwords

PRACTICE AND PROCEDURE – mode of determination of proceeding – circumstances in which Tribunal may decide proceeding without holding a hearing – protection proceeding – respondent non-participating party – applicant requested Tribunal make its decision without holding a hearing – meaning of phrase ‘it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding’ in s 106(3)(c) of Administrative Review Tribunal Act 2024 – appropriate for a decision to be made without holding a hearing in present case.

PROTECTION – whether applicant satisfies refugee criterion for protection – whether applicant satisfies complementary protection criterion for protection – found that applicant does not satisfy these criteria.

Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Migration Act 1958

Migration Regulations 1994

Cases

EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Kowalski v Military Rehabilitation and Compensation Commission (2011) 191 FCR 345
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39
Secretary, Department of Social Services and FTXB (2024) 184 ALD 29; [2024] AATA 3021

SZIMG v Minister for Immigration (2008) 167 FCR 362

Secondary Materials

Department of Foreign Affairs and Trade, ‘DFAT Country Information: Thailand’ (18 December 2023)

Table of Contents

INTRODUCTION AND SUMMARY

RELEVANT STATUTORY PROVISIONS AND MINISTERIAL DIRECTIONS

Administrative Review Tribunal Act and Administrative Appeals Tribunal Act

Migration Act and Migration Regulations

Ministerial Direction No. 84

RELEVANT CASE LAW

RELEVANT PRINCIPLES FOR MAKING A DECISION WITHOUT A HEARING

PROCEDURAL HISTORY

SHOULD A DECISION BE MADE WITHOUT A HEARING IN PRESENT CASE?

Did the applicant request a decision without a hearing?

Can issues for determination be adequately determined in absence of parties?

APPLICANT’S CLAIMS AND EVIDENCE IN SUPPORT

Evidence before the Department and delegate’s decision

Evidence before the Tribunal

FINDINGS AND CONCLUSION

Identity and receiving country

Does the applicant satisfy the refugee criterion for protection?

Does the applicant satisfy the complementary protection criterion for protection?

Conclusion

DECISION

APPENDIX

Statement of Reasons

INTRODUCTION AND SUMMARY

  1. By an application for review dated 17 June 2020, the applicant applied to the Administrative Appeals Tribunal (‘AAT’) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (‘Minister’) on 25…

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AGLC
2010120 (Refugee) [2025] ARTA 550
Case
[2025] ARTA 550
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Thailand, sought a protection visa on the basis that he had a well-founded fear of persecution if returned to Thailand. The respondent, the Minister for Immigration and Border Protection, refused the application. The matter was heard by the Administrative Appeals Tribunal (the Tribunal) which determined the proceeding without holding a hearing. The Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa.

The legal issues for the Tribunal to decide were whether the proceeding could be determined without holding a hearing, and whether the applicant satisfied the criteria for the grant of a protection visa. The first issue turned on the meaning of the phrase ‘it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding’ in s 106(3)(c) of the Administrative Review Tribunal Act 2024 (ART Act). The second issue involved interpreting the criteria for the grant of a protection visa in the Migration Act 1958 (Cth) and applying them to the facts of the case. The Tribunal found that the proceeding could be determined without holding a hearing and that the applicant did not satisfy the criteria for the grant of a protection visa. It appeared to the Tribunal that the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding. The applicant had requested the Tribunal to make its decision without holding a hearing. The applicant’s evidence did not demonstrate that he had a well-founded fear of persecution if returned to Thailand, as he had not provided any evidence to support his claims of being forced to work in a massage parlour or sex shop, or that he would suffer seriously disproportionate and unjust treatment if returned. Nor did the evidence demonstrate that he would be at risk of significant harm if returned to Thailand. The Tribunal did not accept the applicant’s claims as credible.

The Tribunal dismissed the application for a protection visa.

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

We will now decide the proceeding without conducting a hearing.APPLICANT’S CLAIMS AND EVIDENCE IN SUPPORTEvidence before the Department and delegate’s decision In his protection visa application form, the applicant indicated that he was born in a particular town in Thailand in a particular year in the 1980s. He is a Thai citizen and provided a certified copy of his Thai passport which was issued on a date in 2015 and expired on a date in 2020. He indicated that he left Thailand lawfully on his Thai passport. He also provided to the Tribunal a letter from the Thai Consulate indicating that he is a Thai national and has submitted an application for a new passport which was scheduled to be delivered on a particular date in 2020. He speaks, reads and writes in Thai and English and is a Buddhist. The applicant indicated that he had never been married or in a de facto relationship and listed his parents as living in their home town in Thailand. The applicant’s parents are both Thai citizens and the applicant indicated that they reside in Thailand and he contacts them by telephone monthly. He did not list any other family members in his application form. The applicant listed one residential address in Thailand in a particular town from 1999 to 2009. His occupation was listed as a ‘farming’ in a family business during a specified period and then as ‘self-employed’ in a particular type of shop during a specified period. Prior to working, he indicated that he was a student and was financially supported by his family. He indicated that he had never applied to enter any country other than Australia and had not travelled to any other country in the 30 years prior to making his application for a protection visa. In his application for protection, the applicant stated his reasons for leaving Thailand as follows:A few years ago, we had a small business. After my parents grew old, I decided to continue the business and support my parents. However, after sometime, some people came and look for me saying that my father owed them a lot of money because he borrowed from them to do the business. I cannot pay them and don't know if it is true or lie. They wanted to force me to work in massage parlour and sex shop because I am a trans-gender. I have been living as this situation since i was a teenager. I was very afraid for my life. They slap me and punch me. I quickly ran away. I go to police to report but they tell me that they cannot do anything as there is no proof. After that I notice some people following me everyday and keep disturbing me in my work. The people keep disturbing me and touch me all over and keep trying to force me to work in massage parlour. I decide to look for help in Australia as I know i cannot get help in my country and will suffer badly if I am there.[54][54]All errors in original. In response to the question, ‘What do you think will happen to you if you return to [Thailand]?’, the applicant stated, ‘I will be caught by those people and force me to work in massage parlour or sex shop or they will beat me badly and destroy my face. I will suffer badly’.[55] He stated that he was previously slapped and punched and touched all over and fears that he will be forced to work in a massage parlour and be a prostitute. He said that he was unable to move to another part of Thailand to seek safety because he is single and has to take care of his parents and he does not know many places and has few friends. He said he is very afraid to go anywhere in Thailand because ‘they will find me anywhere in Thailand’.[55]All errors in original.

Decision

Reasons for decision

Section 106(1), (2) and (3) of the ART Act relevantly provides as follows:106 Circumstances in which Tribunal may reach decision without hearing—review of decisions onlyTribunal may make decision without hearing in certain circumstances(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.Parties consent(2) This subsection applies if:(a)all of the parties to the proceeding consent to the proceeding being determined without the hearing of the proceeding; and(b)it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.Where only parties are applicant and non‑participating party to the proceeding or hearing(3) This subsection applies if:(a)the only parties to the proceeding are the applicant and a non‑participating party to the proceeding or the hearing of the proceeding; and(b)either:(i) the decision is wholly in favour of the applicant; or(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and(c)it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. In a case such as the present, s 106(3) provides that the following requirements must be met in order for the Tribunal to decide the case without conducting a hearing:(a)The only parties to the proceeding are the applicant and a non-participating party.(b)Either the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding a hearing.(c)It appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. Here, the first requirement is satisfied, and therefore no further reference to it is required. The second requirement contains two alternatives. Where either of these alternatives is satisfied, the Tribunal must still be satisfied that both the first and third requirements are met. Because we are not satisfied that we are able to make a decision that is wholly in favour of the applicant, we need to be satisfied that the applicant has requested the Tribunal to make its decision without holding a hearing. This issue is discussed below under the heading ‘Did the applicant request a decision without a hearing?’. The key issue in the present case is the third requirement, which is discussed below under the heading ‘Can issues for determination be adequately determined in absence of parties?’. Section 34J(1) of the Administrative Appeals Tribunal Act 1974 (‘AAT Act’) provided as follows:34J Circumstances in which hearing may be dispensed with(1)If:(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and(b) the parties consent to the review being determined without a hearing;the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

Ratio Decidendi

Legal Principle Established

Section 106 of the ART Act now applies to all proceedings before the Tribunal, including migration and protection cases.Migration Act and Migration Regulations The criteria for a protection visa are set out in s 36 of the Migration Act and schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Migration Act. That is, the applicant must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa) and holds a protection visa of the same class. Section 36(2)(a) of the Migration Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom Australia has protection obligations because the person is a refugee. A person is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, they are unable or unwilling to avail themselves of the protection of that country.[7] 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 that 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.[8][7]Migration Act, s 5H(1)(a).[8]Migration Act, s 5J(1). Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2) to (6) and ss 5K to 5LA of the Migration Act, which are extracted in the appendix to these reasons. Among other things, persecution must involve serious harm[9] and systematic and discriminatory conduct.[10] In addition, the reason (or reasons) for the feared persecution in s 5J(1) must be the essential and significant reason for the persecution.[11][9]Migration Act, s 5J(4)(b). Section 5J(5) contains a non-exhaustive list of examples of serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b).[10] Migration Act, s 5J(4)(c).[11]Migration Act, s 5J(4)(a). If a person is found not to meet the refugee criterion in s 36(2)(a) of the Migration Act, they may nevertheless meet the criteria for the grant of a protection visa if they are a person in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.[12] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in subs 36(2A) and (2B), which are extracted in the appendix to these reasons.[12]Migration Act, s 36(2)(aa) (‘complementary protection criterion’).Ministerial Direction No. 84