2109717 (Refugee) - [2025] ARTA 1389

2109717 (Refugee) [2025] ARTA 1389 (28 May 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2109717

Tribunal:General Member R Lee
Date:28 May 2025

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

Statement made on 28 May 2025 at 6:18pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – social media comments on Islam – fear of detention – attack on home – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 348, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
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 Minister for Home Affairs on 29 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
The applicant first arrived in Australia [in] February 2020 and has not departed since.[1]
[1] Movement record - 9 May 2025. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended.
The applicant who claims to be a national of Malaysia, applied for the visa on 12 May 2020.
BACKGROUND
Evidence before the Department
According to information contained in their protection visa application, the applicant is [an age]-year-old Malaysian citizen who was born and lived in Sibu, Sarawak, Malaysia. Further, the applicant:
·belongs to the Chinese ethnic group; was born to Malaysian citizens; never married; does not have members of the same family unit or other family members (including partners and dependent children) in or outside Australia; is Christian; completed middle school in [specified year]; and had never been employed;
·had not undertaken any overseas travel in the last 30 years and obtained their Malaysian passport [in] 2019;
·can speak, read, and write in both the Mandarin and English languages; and
·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.
In relation to their claims for protection, the applicant claimed they left Malaysia because they disagreed with Muslim teachings and left comments on social media. Their homes and cars were vandalised, with a pig’s head being thrown into their house. The police were contacted but did not assist. If they returned to Malaysia, they will be taken to court. The delegate refused to grant the visa on the basis that they did…

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 2109717 (Refugee)

Details

AGLC: 2109717 (Refugee) [2025] ARTA 1389
Case: [2025] ARTA 1389
Decision Date: 28 May 2025

CaseChat Overview and Summary

The applicant, a Malaysian national, sought a review of a decision made by the delegate of the Minister for Home Affairs, who refused to grant them a protection visa. The applicant claimed that they left Malaysia due to their disagreement with Muslim teachings, which they expressed through social media comments, leading to vandalism of their home and car, and threats of legal action if they returned. The delegate rejected the applicant's claims as not genuine. The Tribunal was tasked with reviewing the delegate's decision and determining whether a decision could be made without a hearing.

The Tribunal had to decide whether the applicant had properly requested a decision without a hearing and whether the issues could be adequately determined without a hearing. The applicant had been given multiple opportunities to present evidence in support of their application for review, including in their protection visa application, in response to the Department's correspondence, in lodging their application for review, and in correspondence with the Tribunal. Given the extensive opportunities already provided, the Tribunal was satisfied that the issues could be determined without a hearing.

After considering the applicant's request, the Tribunal concluded that the applicant had indeed requested a decision without a hearing, and that the issues could be adequately determined without a hearing. The Tribunal affirmed the delegate's decision, finding that the applicant's claims were not credible and did not warrant the grant of a protection visa. The Tribunal noted that the applicant had not provided any additional information or documentary evidence to support their claims beyond what was initially submitted, and thus the decision to reject the claims as not genuine was upheld.

The Tribunal's final order was to affirm the delegate's decision, refusing the application for a protection visa. The Tribunal emphasized that the decision was based on the lack of credible evidence supporting the applicant's claims and the opportunities already provided for the applicant to substantiate their claims.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant who claims to be a national of Malaysia, applied for the visa on 12 May 2020. BACKGROUNDEvidence before the Department According to information contained in their protection visa application, the applicant is [an age]-year-old Malaysian citizen who was born and lived in Sibu, Sarawak, Malaysia. Further, the applicant:·belongs to the Chinese ethnic group; was born to Malaysian citizens; never married; does not have members of the same family unit or other family members (including partners and dependent children) in or outside Australia; is Christian; completed middle school in [specified year]; and had never been employed;·had not undertaken any overseas travel in the last 30 years and obtained their Malaysian passport [in] 2019;·can speak, read, and write in both the Mandarin and English languages; and·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application. In relation to their claims for protection, the applicant claimed they left Malaysia because they disagreed with Muslim teachings and left comments on social media. Their homes and cars were vandalised, with a pig’s head being thrown into their house. The police were contacted but did not assist. If they returned to Malaysia, they will be taken to court. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims were genuine and rejected them in their entirety. The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application. On 12 May 2020, the applicant was sent correspondence acknowledging receipt of the protection visa application and stating that the Department may make a decision on the application without requesting additional information and they should provide the Department with all the information that they felt was relevant. On 15 May 2020, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could submit any additional information to the Department. The applicant’s appointment to provide biometrics/personal identifiers was on 4 November 2020, which the applicant attended. On 10 March 2021, the applicant was sent correspondence advising that more information was needed to assess the protection visa application and noting the applicant’s statement of claims lacked substantiating details such as what they specifically said, dates and locations, identities, and supporting documentation, regarding their online comments and the treatment they suffered as a result. As the applicant had not provided any further details or documentary evidence to support their claims, they were invited to assist the delegate in deciding whether to accept that these claims are genuine, by providing further information about what happened to them in Malaysia, including dates and locations of events, as follows:·Details of their online comments, specifically, what they said, when, and evidence of these comments;·Details of the time they were attacked, including times, dates and details of what happened;·The identities of their attackers (if known); and·If they had been arrested or have faced arrest over this matter, copies of any arrest warrants/charge sheets they received over this matter.

Evidence

Evidence Before The Court

The Department did not invite the applicant to attend an interview.Evidence before the TribunalThe review application On 30 July 2021, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT) and attached a copy of the delegate’s decision but nothing else. On 2 August 2021, the AAT wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the AAT to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could. On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal. On 30 January 2025, the Tribunal sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete and which asked the applicant to provide any further evidence they wished to submit in writing as soon as they could. The form also noted that in their protection visa application they would have provided reasons or made claims as to why they needed Australia to grant them protection and asked if they wanted to give any more information about the claims for protection and whether there were any other reasons they were afraid to return to their home country. The applicant did not provide the Tribunal with a copy of a completed pre-hearing information form. On 8 May 2025, the Tribunal sent the applicant by email to their registered email address a notice of hearing, informing them that their application had been constituted to a member who would hold a hearing and make a decision about their review. They were also informed that their matter had been listed for hearing on 28 May 2025 at the Perth registry. The notice of hearing enclosed a ‘Response to hearing notice’ form. The notice of hearing included a section addressing the situation where an applicant wants the Tribunal to make a decision without holding a hearing. The notice explained that the applicant could use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. The notice went on to explain that if the applicant requests the Tribunal to make a decision without a hearing and the Tribunal considers that the issues can be determined in the applicant’s absence, this did not guarantee that they will receive a favourable decision.

Decision

Reasons for decision

By email dated 27 May 2025, the Tribunal acknowledged the applicant’s request for the Tribunal to make a decision on the papers without holding a hearing and stated that the Tribunal would make a decision on the papers and that the scheduled hearing had been cancelled.SHOULD A DECISION BE MADE WITHOUT A HEARING IN PRESENT CASE? As is the case for all reviews under Part 5 of the Migration Act, the parties to this proceeding are the applicant and the Minister for Immigration and Multicultural Affairs (Minister), who is a non-participating party,[2] and therefore the requirements of s 106(3)(a) of the Administrative Review Tribunal Act 2024 (ART Act) are met.[2] Section 348A(1) of the Migration Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act.Did the applicant request a decision without a hearing? Whether an applicant has requested the Tribunal to make its decision without holding a hearing for the purposes of s 106(3)(b)(ii) of the ART Act is a question of fact to be determined by the Tribunal in the circumstances of each case. If the Tribunal is satisfied on the information before it that a request for a decision to be made without a hearing was made by an applicant, such as when the communication from an applicant was by a method associated with the application for review (such as from a registered email address), this requirement will be satisfied.[3][3] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) at [85] and [86(a)]. Based on the applicant’s response in the ‘Response to hearing notice’ form submitted via their registered email address twice, with the first one being a reply to and including the Tribunal’s cover email to the applicant’s registered email address attaching the form, the Tribunal is satisfied that they requested the Tribunal to make a decision without holding a hearing.[4] Whilst the applicant has referred to an email address in the signed form which is not the applicant’s registered email address, and has chosen despite an invitation to do so from the Tribunal not to update their registered email address, the Tribunal considers that there is no ambiguity about the request itself as it came twice from the registered email address. [4] See 2010120 (Refugee) above at [90]. The Tribunal is therefore satisfied that the correspondence considered above establishes that the applicant has made a request that the Tribunal make a decision without holding a hearing of the proceeding within the meaning of s 106(3)(b)(ii) of the ART Act and accordingly, that section is satisfied.Can issues for determination be adequately determined in absence of parties? The applicant has been given several opportunities to present evidence in support of their application for review.[5] This includes in the protection visa application, in response to correspondence from the Department prior to the delegate’s decision being made, in lodging their application for review, in response to correspondence from the AAT or the Tribunal, including in response to the Tribunal’s notice that the proceeding had been set down for a hearing, as outlined above.[5] See 2010120 (Refugee) above at [91] .

Ratio Decidendi

Legal Principle Established

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act). The applicant first arrived in Australia [in] February 2020 and has not departed since.[1][1] Movement record - 9 May 2025. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended. The applicant who claims to be a national of Malaysia, applied for the visa on 12 May 2020. BACKGROUNDEvidence before the Department According to information contained in their protection visa application, the applicant is [an age]-year-old Malaysian citizen who was born and lived in Sibu, Sarawak, Malaysia. Further, the applicant:·belongs to the Chinese ethnic group; was born to Malaysian citizens; never married; does not have members of the same family unit or other family members (including partners and dependent children) in or outside Australia; is Christian; completed middle school in [specified year]; and had never been employed;·had not undertaken any overseas travel in the last 30 years and obtained their Malaysian passport [in] 2019;·can speak, read, and write in both the Mandarin and English languages; and·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application. In relation to their claims for protection, the applicant claimed they left Malaysia because they disagreed with Muslim teachings and left comments on social media. Their homes and cars were vandalised, with a pig’s head being thrown into their house. The police were contacted but did not assist. If they returned to Malaysia, they will be taken to court. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims were genuine and rejected them in their entirety. The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application. On 12 May 2020, the applicant was sent correspondence acknowledging receipt of the protection visa application and stating that the Department may make a decision on the application without requesting additional information and they should provide the Department with all the information that they felt was relevant. On 15 May 2020, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could submit any additional information to the Department.