2111411 (Refugee) - [2025] ARTA 1838

2111411 (Refugee) [2025] ARTA 1838 (18 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2111411
Tribunal:General Member M Brereton
Date:18 August 2025

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 August 2025 at 2:07pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – financial debt – unaware of false political claims – fears not being able to repay debts – credible – illegal moneylender – fears harassment and pressure – 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, 367A, 369, 499
Migration Regulations 1994 (Cth), 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 19 August 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Malaysia, applied for the visas on 29 March 2021. The delegate found that the applicants had not provided sufficient information to establish their claims and refused to grant the visas. The applicants sought review of this decision.
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the 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.
The applicants appeared before the Tribunal on 13 August 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicants are a husband and wife from Malaysia. The application for the protection visas contains a series of claims relating to political opinion and speaking out against the Malaysian government and a Sultan. The Department invited the applicants to provide further information, but they did not do so. The applicants were not invited to attend an interview. The delegate found that the applicants had not provided sufficient evidence to establish the claims and refused to grant the visas.
Evidence before the Tribunal
The application for review does not contain any further information, evidence, or submissions. The applicants were invited to attend a hearing and attended this hearing on 13 August 2025. At the commencement of the hearing, the applicants told the Tribunal that they had not prepared the protection visa application and had relied on someone else to write it down. They said that they told the person they had come to Australia to earn money and pay back debts. The Tribunal asked the applicants about the political claims in the application. They said that these are not their claims, and they are only seeking to remain to earn money and pay back debts.
The applicants’ claim and evidence are further considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria 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).
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 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 the applicants fear that they may be unable to pay back a debt in Malaysia. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Identity
The applicants claim to be citizens of Malaysia and have provided their Malaysian passports as proof of identity. The Tribunal accepts their claims as to identity and finds that Malaysia is the country of reference and receiving country for the purposes of this review.
Claim
The applicants impressed the Tribunal as engaged, forthright, and honest witnesses. They told the Tribunal that they were unaware of the claims made in the protection application and explained the basis of their actual claim. The Tribunal commends their honesty and engagement and notes that they did not seek to embellish or exaggerate their evidence or experiences. This is to their credit.
The claim raised at the hearing was not raised before the delegate or before the delegate’s decision was made. Section 367A of the Act provides that:
(1) This section applies if, in relation to an application for review of a reviewable protection decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The applicants have explained that they made the debt claim to the person who prepared the application. That person did not read the application back to them and they were not aware of the claims that were actually made in it. The Department wrote to the applicants and asked them to provide further information before it made the decision. That letter set out the claims that had been made in the application. The applicants did not respond to that letter. At first glance this may suggest that the applicants had an opportunity to respond to the Department to explain the incorrect claims and raise the actual claim. However, the Tribunal has had the benefit of an in person hearing with the applicants, assisted by an interpreter. As noted earlier, the Tribunal has formed the view that the applicants have given honest and credible evidence. The Tribunal also takes into account that the applicants speak very little English and asked the Tribunal at hearing how they would be able to get the Tribunal decision and covering letter, when issued, translated so that they could understand it. The Tribunal also considers the new claim to be credible on its face and as noted above, there is nothing to suggest embellishment or fabrication. The Tribunal has considered all of these circumstances carefully and is satisfied that there is a reasonable explanation why the claim was not raised – being that the applicants did not know what was in the application until the interpreter translated it at the hearing. The Tribunal does not draw any inference unfavourable to the applicants’ credibility.
The applicants are a husband and wife from Penang, Malaysia. The husband operated small businesses, concluding with [Business 1], in Penang. He said that he had some debts that he had to pay off and was able to get some money from his mother to do so, but he was embarrassed to ask his mother for more money. He said that he ended up taking a loan from a friend. This friend operates as an Ah Long (illegal money lender) but gave the applicants very favourable interest and has been very accommodating with them. The applicants made several statements about the importance of trust in the relationship. The husband said that he decided to come to Australia because he would be able to find work here and send money home to pay off the debt. He has been able to do so and pays back whatever he can each month. He still owes around [amount] Malaysian Ringgits (about AUD $[amount]) and thinks he will be able to pay this off within the next two years.
The Tribunal asked if the applicants had faced any harm in Malaysia because of the debt. They said they have not been harmed or threatened. The Tribunal asked if they fear harm if they return to Malaysia. The husband said that he is worried he may not be able to earn enough in Malaysia and his friend may begin to harass or pressure him to pay the debt.
The Tribunal explained that the criteria for a protection visa are that an applicant faces a real chance of serious harm for one of the reasons given in s 5J(1)(a), or a real risk of significant harm, should they return to their home country. The Tribunal said that the type of harm the applicants were describing did not appear to be harm of a type that could be considered serious or significant. The applicants agreed and reiterated that they do not fear returning to Malaysia and are quite ready to do so, but they would really like another two years here so that they can go back with the debt cleared and enjoy their retirement. The Tribunal explained that it can only decide whether or not they meet one of the criteria and cannot extend time or grant an alternative visa. The applicants said that they understood this.
The Tribunal commends the applicants for their honesty and their openness. However, the Tribunal must consider the evidence and the questions before it. The Tribunal finds that the applicants may face some pressure from their friend if they return to Malaysia and are not able to pay off the debt. The applicants do not claim, and the evidence before the Tribunal does not indicate, that this pressure will include, comprise, or amount to, harm of a level that may be considered serious harm or significant harm as contemplated by the Act. The Tribunal finds that the applicants do not face a real chance of serious harm, or a real risk of significant harm, arising from or otherwise related to their debt, now or in the reasonably foreseeable future, should they return to Malaysia.
The applicants told the Tribunal that they do not fear harm in Malaysia for any other reason or reasons. The Tribunal has considered their evidence as a whole and is satisfied that no other claims appear to arise on the material before it.
The Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason or reasons should they return to Malaysia. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that the applicants will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). There is no suggestion that either of the applicants satisfies s36(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. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c). The Tribunal is not satisfied that the applicants satisfy any of the criteria in s 36(2) and it follows that they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Date(s) of hearing:      13 August 2025
Representative:  None
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.
…