2100221 (Refugee)

Case [2025] ARTA 1609

2100221 (Refugee) [2025] ARTA 1609 (15 July 2025)

DECISION AND  

REASONS FOR DECISION

Representative:  Mr Paul O'Connor (MARN: 0854511)

Respondent:Minister for Immigration and Citizenship

Tribunal Number:  2100221

Tribunal:General Member M Bruce

Date:15 July 2025

Place:Adelaide

Decision:The Tribunal affirms the decision under review.

Statement made on 15 July 2025 at 9:18am

CATCHWORDS

REFUGEE – protection visa – Malaysia – financial debt – fears loan shark and ex-partner’s aunt – physical and verbal abuse from ex-partner – fears forced marriage to ex-partner by both families – societal or familial pressure does not constitute serious harm, degrading treatment or punishment – current partner is Christian – Malaysian law prohibits Muslim man marrying Christian woman – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 612
Hirani v Hirani (1984) 4 FLR 232
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 222 CLR 1
Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505
MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324
MZXFJ v Minister for Immigration [2006] FMCA 1465
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13
Pretty v United Kingdom (2002) 35 EHRR 1
Price v the United Kingdom [2001] ECHR 458
R (on the application of Quila) v Secretary of State for the Home Department [2011] UKSC 45
Valašinas v Lithuania [2001] ECHR 479
Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 24 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    BACKGROUND

  2. The applicant, who claims to be a national of Malaysia, applied for the above visa on 6 January 2017. The applicant’s claims, as advanced in his application, are that:

    a)    The applicant left Malaysia because he was indebted to an illegal loan shark and unable to repay this debt.

    b)    The loan shark threatened unspecified harm against the applicant and his family.

    c)    The applicant did not seek assistance from the authorities following receipt of this threat because he believed they would not afford them adequate protection from the harm.

    d)    The…

Continue reading 2100221 (Refugee)

Sign in free to access the full text

Details
AGLC
2100221 (Refugee) [2025] ARTA 1609
Case
[2025] ARTA 1609
Decision Date

CaseChat Overview and Summary

The case involves a Malaysian national who applied for a protection visa in Australia, claiming fear of persecution if returned to Malaysia. The application was initially reviewed by the Administrative Appeals Tribunal (AAT), which ceased to exist on 14 October 2024, leading to the Administrative Review Tribunal (Tribunal) assuming the case under transitional provisions. The applicant alleged several grounds for fear of persecution, including threats from a loan shark, abuse from an ex-partner, potential forced marriage, and the inability to maintain a relationship with a non-Muslim partner due to legal restrictions in Malaysia.

The key legal issues before the Tribunal were whether the applicant's claims met the criteria for a protection visa under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Specifically, the Tribunal needed to determine if the applicant's fears of persecution were well-founded and if they constituted serious harm, degrading treatment, or punishment as defined under the Act.

In its decision, the Tribunal examined the applicant's claims and evidence, including the alleged threats from the loan shark, the abusive relationship with his ex-partner, the societal pressures related to his inter-faith relationship, and the legal implications of these issues in Malaysia. The Tribunal concluded that while the applicant faced significant difficulties and fears, they did not amount to the level of serious harm or persecution required for a protection visa. The Tribunal held that societal or familial pressure, including forced marriage and religious discrimination, did not constitute serious harm or degrading treatment or punishment under the Act.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the protection visa, finding that the applicant's claims did not meet the necessary criteria for a protection visa. Consequently, the Tribunal dismissed the application for review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 24 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND The applicant, who claims to be a national of Malaysia, applied for the above visa on 6 January 2017. The applicant’s claims, as advanced in his application, are that:a) The applicant left Malaysia because he was indebted to an illegal loan shark and unable to repay this debt.b) The loan shark threatened unspecified harm against the applicant and his family.c) The applicant did not seek assistance from the authorities following receipt of this threat because he believed they would not afford them adequate protection from the harm. d) The applicant was unable to relocate within Malaysia to avoid this harm. The delegate refused to grant the visa on the basis that:a) The applicant had not claimed, nor was there any information before them to suggest, that the applicant will be targeted for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act, and b) That the Malaysian authorities were able to provide an adequate level of protection from the criminal behaviour feared by the applicant. The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of this decision on 7 January 2021. On 14 October 2024, the AAT ceased to have effect, and the Administrative Review Tribunal (the Tribunal) came into effect. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1.) Act 2024 (the Transitional Act), applications made to the AAT that were not finalised prior to 14 October 2024 are taken to be applications made to the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal and the Tribunal is authorised to continue and finalise such proceedings in accordance with the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).APPLICANT’S CLAIMS BEFORE THE TRIBUNAL The applicant’s claims, as advanced before the Tribunal, are that:a) The applicant was in a relationship with a women in Malaysia between 2014–2016 (hereinafter [Partner A]). The applicant’s relationship with [Partner A] was initially amicable, but later became abusive with [Partner A] physically and verbally abusing the applicant. This abuse persisted for the duration of the relationship and included [Partner A] threatening harm against the applicant’s person whilst in possession of a knife. b) The applicant impregnated [Partner A]; the pregnancy was subsequently terminated.c) The applicant will be compelled to marry [Partner A] if returned to Malaysia. The applicant is opposed to this. d) The applicant took out a loan in the sum of [amount] Ringgit. The applicant fears harm from this lender as a result of this unpaid debt. a) [Partner A’s] aunt borrowed [amount] Ringgit from a lender and on let that sum to [Partner A] who in turn gave the funds to the applicant. The applicant fears that the aunt, or other members of [Partner A’s] family, will compel the applicant to replay this debt by way of actual or threatened physical harm against his person, or if this debt was repaid by [Partner A], that [Partner A] will exact physical harm against his person in retaliation for her having been compelled to repay the debt. e) The applicant is currently in a relationship with a woman in Australia (hereinafter [Partner B]). The applicant and [Partner B] commenced their relationship in 2017 and have been de facto as of 2018. The applicant is a Muslim, and [Partner B] is a Catholic. Muslims are not permitted to marry or live as de facto with non-Muslim persons in Malaysia. Muslims who live as de facto with non-Muslim persons may be subject to investigation and action may be taken against them by the state Islamic Development Department. f) Any child of the applicant would be deemed Muslim under Malaysian law, and he would be prevented by law from raising such a child as Christian. This is contrary to the intention of both the applicant and [Partner B].CONSIDERATION OF CLAIMS AND EVIDENCECriteria for protection visa

Evidence

Evidence Before The Court

The applicant’s claims, as advanced before the Tribunal, are that:a) The applicant was in a relationship with a women in Malaysia between 2014–2016 (hereinafter [Partner A]). The applicant’s relationship with [Partner A] was initially amicable, but later became abusive with [Partner A] physically and verbally abusing the applicant. This abuse persisted for the duration of the relationship and included [Partner A] threatening harm against the applicant’s person whilst in possession of a knife. b) The applicant impregnated [Partner A]; the pregnancy was subsequently terminated.c) The applicant will be compelled to marry [Partner A] if returned to Malaysia. The applicant is opposed to this. d) The applicant took out a loan in the sum of [amount] Ringgit. The applicant fears harm from this lender as a result of this unpaid debt. a) [Partner A’s] aunt borrowed [amount] Ringgit from a lender and on let that sum to [Partner A] who in turn gave the funds to the applicant. The applicant fears that the aunt, or other members of [Partner A’s] family, will compel the applicant to replay this debt by way of actual or threatened physical harm against his person, or if this debt was repaid by [Partner A], that [Partner A] will exact physical harm against his person in retaliation for her having been compelled to repay the debt. e) The applicant is currently in a relationship with a woman in Australia (hereinafter [Partner B]). The applicant and [Partner B] commenced their relationship in 2017 and have been de facto as of 2018. The applicant is a Muslim, and [Partner B] is a Catholic. Muslims are not permitted to marry or live as de facto with non-Muslim persons in Malaysia. Muslims who live as de facto with non-Muslim persons may be subject to investigation and action may be taken against them by the state Islamic Development Department. f) Any child of the applicant would be deemed Muslim under Malaysian law, and he would be prevented by law from raising such a child as Christian. This is contrary to the intention of both the applicant and [Partner B].CONSIDERATION OF CLAIMS AND EVIDENCECriteria for protection visa The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) 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 the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.