2105053 (Refugee) - [2025] ARTA 1979

2105053 (REFUGEE) [2025] ARTA 1979 (11 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2105053
Tribunal:General Member C Stokes
Date:11 September 2025

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 11 September 2025 at 3:47pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – business partner illegally invested company’s and investors’ funds then fled – company’s accounts frozen and assets impounded – harmed by investors and debt collectors – fear of arrest, or harm by debt collectors or gangster – consent to decision without hearing – responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
LLR24 v MIAC (No 2) [2025] FedCFamC2G 1227
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
2010120 (Refugee) [2025] ARTA 550
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 of a decision made by a delegate of the then Minister for Home Affairs on 8 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 22 July 2020. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 21 April 2021, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
After the Tribunal scheduled a hearing, the applicant requested that the Tribunal make a decision on the papers.
There are two issues for determination. The first is whether it is appropriate for me to determine the application in the applicant’s absence and without holding a hearing. If, having determined it is appropriate to determine the application, the second issue is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or the ‘complementary protection’ criterion.
For the following reasons, the Tribunal has concluded that it appropriate to determine the application without a hearing and that the decision under review should be affirmed.
BACKGROUND
Evidence before the Department
In the applicant’s protection visa application lodged on 22 July 2020 the applicant claimed:
a.In 2015, the applicant was betrayed by her business partners who used all the business profit and investors’ funds to invest in a multi-level marketing company. The company went bankrupt and the local Malaysian authorities…

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 2105053 (Refugee)

Details

AGLC: 2105053 (Refugee) [2025] ARTA 1979
Case: [2025] ARTA 1979
Decision Date: 11 September 2025

CaseChat Overview and Summary

The applicant, a Malaysian national, sought a review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse her application for a protection visa. The applicant argued that she was entitled to a protection visa due to fear of persecution if she returned to Malaysia, particularly from her former business partners, investors, and their agents. The Tribunal was asked to determine the application without a hearing, a request the applicant agreed to. The primary legal issue was whether the applicant qualified as a refugee under section 36(2)(a) of the Migration Act 1958 (Cth) or if there was a real risk of significant harm upon return to Malaysia warranting a complementary protection visa under section 36(2B) of the Act.

The Tribunal found that the applicant had failed to provide sufficient evidence to substantiate her claims. Although the applicant restated her claims in the pre-hearing information form, she did not provide any additional evidence beyond her initial application. The Tribunal noted that the delegate's decision, which was based on insufficient information provided by the applicant, was adequately supported by country information and the applicant’s circumstances. The Tribunal concluded that the applicant could obtain protection from Malaysian authorities, thus there was no real risk of significant harm from debt collectors or gangsters. Consequently, the Tribunal affirmed the delegate’s decision. The Tribunal emphasised that even if it had decided to proceed without a hearing, it would not necessarily result in a favourable decision for the applicant.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that it appropriate to determine the application without a hearing and that the decision under review should be affirmed.BACKGROUNDEvidence before the Department In the applicant’s protection visa application lodged on 22 July 2020 the applicant claimed:a.In 2015, the applicant was betrayed by her business partners who used all the business profit and investors’ funds to invest in a multi-level marketing company. The company went bankrupt and the local Malaysian authorities froze its bank accounts to investigate its involvement in illegal ‘money games’.b.The applicant’s investors requested a full refund upon learning that their money had been invested illegally. The applicant’s business partner fled leaving the applicant to handle the case.c.The investors lodged a police report prompting the police to investigate and convict the applicant. The company’s assets were impounded by the authorities.d.The investors visited the applicant’s house where they harmed the applicant and a family member. The investors also hired debt collectors who visited the applicant’s home with a pistol and harmed the applicant.e.The applicant made a police report however the police could not catch the debt collectors. Further, the police cannot protect her all the time.f.The applicant cannot relocate because the authorities can easily track her and she may be killed by the debt collectors.g.If the applicant returns to Malaysia she fears she will be arrested by the authorities, or, harmed or killed by the debt collectors or the local gangster, both of whom act on behalf of the former investors. The applicant was not interviewed by the delegate and did not provide any supporting evidence other than a copy of her passport. The delegate was not satisfied that the applicant claims related to any of the reasons in s 5J(1)(a) of the Act and therefore found she is not a refugee for the purposes of s 36(2)(a) and s 5H(1). The delegate then went on to consider the complementary protection criterion and found that, based on the country information and applicant’s circumstances, the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm as outlined in s36(2B)(b) of the Act at the hands of debt collectors and gangsters. Evidence before the Tribunal On 21 April 2021, the applicant applied for review of the delegate’s decision. She attached to her application for review a copy of the delegate’s decision and the letter notifying her of that decision. She did not provide any further evidence to the Tribunal. On 23 April 2021, the then AAT wrote to the applicant acknowledging the application and noting that it the applicant wished to provide material or written arguments for the AAT to consider, she should do so as soon as possible. On 6 February 2025, the Tribunal sent the applicant a pre-hearing information form to complete within 14 days. That form asks for, among other thing, details about the applicant’s protection claims. The applicant completed this form and restated in it the claims set out in the protection visa application.

Evidence

Evidence Before The Court

The delegate was not satisfied that the applicant claims related to any of the reasons in s 5J(1)(a) of the Act and therefore found she is not a refugee for the purposes of s 36(2)(a) and s 5H(1). The delegate then went on to consider the complementary protection criterion and found that, based on the country information and applicant’s circumstances, the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm as outlined in s36(2B)(b) of the Act at the hands of debt collectors and gangsters. Evidence before the Tribunal On 21 April 2021, the applicant applied for review of the delegate’s decision. She attached to her application for review a copy of the delegate’s decision and the letter notifying her of that decision. She did not provide any further evidence to the Tribunal. On 23 April 2021, the then AAT wrote to the applicant acknowledging the application and noting that it the applicant wished to provide material or written arguments for the AAT to consider, she should do so as soon as possible. On 6 February 2025, the Tribunal sent the applicant a pre-hearing information form to complete within 14 days. That form asks for, among other thing, details about the applicant’s protection claims. The applicant completed this form and restated in it the claims set out in the protection visa application. On 25 July 2025, the applicant was sent an invitation to a hearing scheduled to take place on 2 September 2025. In that invitation it was explained to the applicant that:What if I want the Tribunal to make a decision without holding a hearingYou can use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision. On 18 August 2025, the applicant emailed the Tribunal the ‘Response to hearing notice’ indicating that she would not attend the hearing and requested a decision on the papers. Further, the covering email noted: GOOD DAY TO YOU. I HERE REQUEST THE ART TRIBUNAL TO MAKE A DECISION WITHOUT HEARING INTERVIEW, BUT ART TRIBUNAL PLEASE MAKE A DECISION ON PAPERS. NOTHING ADDITIONAL EVIDENCE ADD ON. I HOPE YOU CAN APPROVE MY REQUEST. On 19 August 2025, the Tribunal wrote to the applicant as follows:I refer to your email dated 18 August 2025 in relation to your application for review.The Tribunal understands from your email you have requested that the matter be determined on the papers without holding a hearing. The Tribunal Member is only able to do that if satisfied that the issues for determination in the proceeding can be adequately determined on the evidence available to them: see s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).The relevant evidence available to the Tribunal includes the original protection visa claims, the delegate's request for more information under s 56 of the Migration Act 1958 (Cth) (which was not responded to) and the delegate’s decision refusing the protection visa. To assist the Tribunal in considering whether the issues for determination can be adequately determined on that evidence, please can you advise whether you have any further information you wish to provide. Please provide a response by Tuesday 2 September 2025.Please note that if the Tribunal proceeds to make a decision without a hearing, because it considers the issues can be determined without a hearing, this does not guarantee you will receive a favourable decision. The Tribunal may also consider your application on a different basis to which the delegate of the department refused your visa, including with respect to whether there is a real chance you will face serious harm at the hands of former investors, debt collectors and/or gangsters.If you would in fact like the hearing to proceed on 2 September 2025 please let us know as soon as possible, and no later than Tuesday 26 August 2025, so that the Tribunal can ensure the hearing arrangements remain in place. If you have any questions or any problems opening the document/s attached to this email, please contact us immediately at reviews@art.gov.au, or call 1800 228 333.

Decision

Reasons for decision

On 25 July 2025, the applicant was sent an invitation to a hearing scheduled to take place on 2 September 2025. In that invitation it was explained to the applicant that:What if I want the Tribunal to make a decision without holding a hearingYou can use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision. On 18 August 2025, the applicant emailed the Tribunal the ‘Response to hearing notice’ indicating that she would not attend the hearing and requested a decision on the papers. Further, the covering email noted: GOOD DAY TO YOU. I HERE REQUEST THE ART TRIBUNAL TO MAKE A DECISION WITHOUT HEARING INTERVIEW, BUT ART TRIBUNAL PLEASE MAKE A DECISION ON PAPERS. NOTHING ADDITIONAL EVIDENCE ADD ON. I HOPE YOU CAN APPROVE MY REQUEST. On 19 August 2025, the Tribunal wrote to the applicant as follows:I refer to your email dated 18 August 2025 in relation to your application for review.The Tribunal understands from your email you have requested that the matter be determined on the papers without holding a hearing. The Tribunal Member is only able to do that if satisfied that the issues for determination in the proceeding can be adequately determined on the evidence available to them: see s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).The relevant evidence available to the Tribunal includes the original protection visa claims, the delegate's request for more information under s 56 of the Migration Act 1958 (Cth) (which was not responded to) and the delegate’s decision refusing the protection visa. To assist the Tribunal in considering whether the issues for determination can be adequately determined on that evidence, please can you advise whether you have any further information you wish to provide. Please provide a response by Tuesday 2 September 2025.Please note that if the Tribunal proceeds to make a decision without a hearing, because it considers the issues can be determined without a hearing, this does not guarantee you will receive a favourable decision. The Tribunal may also consider your application on a different basis to which the delegate of the department refused your visa, including with respect to whether there is a real chance you will face serious harm at the hands of former investors, debt collectors and/or gangsters.If you would in fact like the hearing to proceed on 2 September 2025 please let us know as soon as possible, and no later than Tuesday 26 August 2025, so that the Tribunal can ensure the hearing arrangements remain in place. If you have any questions or any problems opening the document/s attached to this email, please contact us immediately at reviews@art.gov.au, or call 1800 228 333.

Ratio Decidendi

Legal Principle Established

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