2110537 (Refugee) - [2025] ARTA 2219

2110537 (REFUGEE) [2025] ARTA 2219 (29 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2110537

Tribunal:General Member D Hughes
Date:29 August 2025

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 29 August 2025 at 4:29pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – social media activist – religion – treatment of Rohingya refugees – physical assault – detention – fear of killing – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 4 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 31 August 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.
The applicant was notified to appear at a Tribunal hearing scheduled for 14 August 2025. On 4 August 2025, the applicant emailed the Tribunal to request the Tribunal make a decision without a hearing, in line with s 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
The following is the Tribunal’s decision in this matter.
BACKGROUND
According to their protection visa application, the applicant arrived in Australia [in] November 2016 as a visitor. The applicant applied for a protection visa in August 2020.
Evidence before the Department
The applicant’s protection visa application form included information about their identity, background and claims for protection. It included a copy of the biodata page from Malaysia passport, issued in October 2015.
The applicant’s claims for protection in that form are as follows. The applicant claims to have been active on [social media] making comments on news issues, including criticism of the Malaysian Government’s inaction in response to illegal Rohingya refugees arriving in Malaysia by ship. The applicant claims to have faced bad comments, threats of harm and death threats from followers of the Islamic religion because of his commentary online. On one occasion, he claims five people came to his shop and seriously harmed him, resulting in him being hospitalised for seven days. He reported this matter to the police, but they did not arrest anyone.
The applicant claims he received an anonymous call threatening that he would soon be killed. He said that he was not afraid of the warning, because he believes the Rohingya refugees will do bad things in his country. He kept making comments on social media as usual, but the police came to his home to arrest him, as someone had reported him for making slanderous comments on social media. He claims he was arrested and detained for seven days, in a small jail room. He claims the conditions/environment there were very bad.
The applicant claims he closed down his business after he was released from jail. He moved to a new state to start a new life, and to prevent other people harming him or being disturbed by the police. He claims a lawyer advised him that he did not break the law, and the police cannot take him to court.
He received further anonymous calls threatening to kill him. He became very scared, and made a decision to escape to the freedom of Australia.
According to the delegate’s decision, on 30 June 2021 the applicant was invited to provide further information and evidence in support of his application. The delegate also expressed concerns about the lack of detail in the applicant’s claims, and the lack of supporting documentary evidence.
The applicant did not respond to that invitation within the prescribed timeframe (28 days) or by the time of the delegate’s decision.
The delegate did not interview the applicant. The delegate considered that the applicant had been given a reasonable opportunity to provide additional information and evidence to substantiate their claims, and they elected to proceed to a decision based on the information before them.
In their decision of 4 August 2021, noting the lack of substantiating details and documentary evidence, the delegate stated that they were unable to be satisfied the claims reflected the applicant’s personal circumstances. The delegate did not find the applicant’s claims for protection to be credible, and the claims were rejected in their entirety.
Evidence before the Tribunal
The applicant lodged their application for review with the Tribunal (then the former AAT) on 15 August 2021. The application included a copy of the delegate’s decision dated 4 August 2021.
On 10 June 2025, the Tribunal wrote to the applicant and requested they complete a ‘pre-hearing information form’ within 14 days of receiving the email. The applicant did not respond or complete that form.
On 25 July 2025, the applicant was notified of a hearing to take place on 14 August 2025 at the Tribunal’s Melbourne registry.
On 4 August 2025, the Tribunal received an email from the applicant’s nominated email address. It included a copy of the biodata page from his passport, as well as his completed hearing form.
In the email, the applicant requests the Tribunal make a decision without a hearing, and asks the Tribunal to make a decision on the papers. It also states there is no additional evidence to add. The hearing form includes an answer that is clearly marked ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’.
On 8 August 2025, the Tribunal wrote to the applicant to confirm that the hearing had been cancelled on their request, and that the Tribunal would proceed to determine the matter without a hearing. The Tribunal noted that the applicant indicated he had no additional evidence to add to his review, but advised if he did wish to provide any further evidence, submissions or information before this matter was finalised, he should let the Tribunal know by 12 August 2025. The Tribunal received no further contact or correspondence from the applicant by 12 August 2025, or at the time of this decision.
Making a decision without a hearing under s 106(3) of the ART Act
The only party to the proceeding is the applicant and a non-participating party (the Minister).
The applicant has expressly requested the Tribunal make a decision without holding a hearing.
The Tribunal considers the issues for determination in the proceeding are and remain as they were identified by the delegate in their decision. The applicant provided a copy of the delegate’s decision with their review application. The Tribunal is satisfied the applicant is aware of the issues that were before the delegate, and that are under consideration by the Tribunal in this review.
The applicant has been provided with a reasonable opportunity to appear at a hearing. They declined the opportunity to take part in a hearing. They also clearly indicated that they did not intend to provide additional information or evidence in support of this application. The applicant was also given an opportunity to confirm whether or not that remained the case. The applicant has provided no further response or submissions at the time of this decision.
In view of everything before it, the Tribunal is satisfied the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The Tribunal considers that s 106(3) of the ART Act applies. In all the circumstances, and after considering the documents and things given to the Tribunal, the Tribunal has made a decision in this matter without a hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Migration 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).
Under s 5J(1), 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. 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)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has 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 he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). 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 ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Migration Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant provided the Department with a copy of the biodata page from his Malaysian passport. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a national of Malaysia.
The applicant claims to fear harm on the basis of his political opinion and commentary on social media. He claims to fear harm from people from the Islamic religion, who he claims have threatened and harmed him in the past. He also claims to fear harm and detention from the police, and poor prison conditions. The applicant has not claimed to fear harm or be owed protection on any other basis.
The applicant’s evidence about these matters is limited and lacking in credible detail. There is no evidence of his online activities, his past assault or hospitalisation, his arrest or detention, or any other aspect of his claims. He has also not provided further detail or evidence in support of his protection claims, whether to the Department or the Tribunal.
On the evidence before it, the Tribunal is not satisfied and does not accept any aspect of his protection claims. The Tribunal is not satisfied and does not accept he was active or politically active on social media or in any other sense in Malaysia, or that he was ever threatened or harmed by persons from the Islamic religion or any other person or group, or that he ever faced arrest, detention or other consequences from the police or Malaysian authorities, or any other aspect of these claims.
As the applicant’s claims are not accepted, the Tribunal finds there is no real chance of the applicant facing harm or serious harm for any of these reasons, if he returned to Malaysia, now or in the reasonably foreseeable future. The Tribunal also finds there is no real risk of the applicant facing harm or significant harm for any of these reasons, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act. The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act.
There is no claim or evidence that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. The Tribunal is also not satisfied the applicant meets s 36(2)(b) or (c) of the Migration Act.
The applicant does not satisfy the protection visa criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:  n/a
Representative for the Applicant:           n/a
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…