2113861 (Refugee) - [2025] ARTA 2201

2113861 (Refugee) [2025] ARTA 2201 (29 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2113861
Tribunal:General Member S Fitzsimons
Date:29 September 2025

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

Statement made on 29 September 2025 at 10:02am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual men in Malaysia – physical and mental abuse – suicide attempts – homosexuality is illegal in home country – fears harm and discrimination – requested decision without a hearing – no additional information or evidence provided – alleged identical claim – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 3, 9, 55, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 57, 65, 348A, 369, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 (2005) FCAFC 73
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63
SZSMQ v Minister for Immigration & Anor (2013) FCCA 1768
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 on 23 September 2021 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT)[1] on 9 October 2021.
[1] On 14 October 2024, 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
THE VISA APPLICATION AND THE DELEGATE’S DECISION
In his protection visa application the applicant stated that he was born on [date] in Perak, in the state of Perak in Malaysia and that he arrived in Australia as a visitor [in] December 2005.
The applicant lodged his application for a protection visa with the Department on 3 June 2021. The Department file indicates that the applicant subsequently applied for permission to work and on 16 June 2021 he was granted a Bridging C visa that allowed him to work. In association with his application for permission to work, the applicant provided a statutory declaration explaining that he was in financial hardship, a bank statement, a lease agreement and some utility bills. There is no reference to the substance of the applicant’s protection claims in his permission to work request.
His protection claims, related to his sexuality, were contained in his visa application form, where in response to the question why he left Malaysia, the applicant claimed:
“I am a gay person. As homosexual is not accepted by Muslim and Malaysian public. I had a very difficult life in my home country. I was attacked by three Malay just because they discovered I am gay. I was not only harmed physically but also mentally. I seek help from police, but I didn't have supports from them. I felt discrimination from everybody. This makes me feel I am not a necessary man in the world. I committed suicide for a few times because of this. Finally, I realize I need to escape to another country where I can live a normal life. As I know, Australia has no discrimination towards homosexual. That was why I came to Australia.”[2]
[2] Page 11 of the applicant’s form 866, Department file number: [number], Department reference ID: CLD2021/[number], Document ID: [number].
In his visa application form the applicant further claimed that he was attacked by three Malay people because they discovered he was gay and the police did not support him. He claimed he did not try and relocate because being gay is not accepted anywhere in Malaysia and that if he returned to Malaysia he would be discriminated against and harmed because he is gay. The only document the applicant provided to the Department in association with his protection visa application was his Malaysian passport that expired in 2010.
On 25 August 2021 the Department wrote to the applicant under s57 of the Act, inviting the applicant to comment on information before the Department that would be the reason, or part of the reason, for refusing to grant the visa. The unfavourable information put to the applicant in the s57 letter was that “Your claims in your Protection visa application are identical to the claims in 21 Protection visa applications made by other persons. This leads me to suspect that your claims do not relate to you and you did not personally experience the events described in them.”[3] The applicant was asked to comment within 28 days of the s57 letter. There is no indication on the Department’s file that the applicant did respond to the s57 letter. There is also no indication on the Department’s file that applicant was offered an interview by the delegate.
[3] Page 1 of the Department’s s57 letter dated 25 August 2021, Department file number: [number], Department reference ID: CLD2021/[number], Document ID: [number].
In refusing the visa application, the delegate stated:
“While I acknowledge that different people might face similar circumstances and have similar experiences, the extent of the similarities between the applicant’s claims and those found in other applicants' applications, including details around personal circumstances, lead me to conclude that the applicants’ claims are not credible but have been fabricated.”[4]
[4] Page 3 of the delegate’s decision record, dated 23 September 2021, Department file number: [number], Department reference ID: CLD2021/[number], Document ID: [number].
As the delegate found the applicant’s protection claims on the basis of his sexuality not credible, the visa application was refused as the delegate was not satisfied the applicant was owed protection under s36(2)(a) or s36(2)(aa) of the Act.
The applicant has declined the Tribunal’s invitation to a hearing, and he has requested that the Tribunal make a decision without holding a hearing.
PROCEDURAL CONSIDERATIONS
Has the Tribunal fulfilled its obligation under s55 of the Administrative Review Tribunal Act?
Applying the jurisprudence in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227, before proceeding to consider whether the issues for determination can actually be determined in the absence of a hearing,[5] the Tribunal must first identify the issues, put the applicant on notice of the issues the Tribunal considers are for determination, and then ensure that the applicant has had a reasonable opportunity to present his case to the Tribunal.[6]
[5] As per s106(3) of the Administrative Review Tribunal Act 2024 (“the ART Act”).
[6] s55 of the Administrative Review Tribunal Act 2024.
On 10 June 2025 the Tribunal wrote to the applicant advising that his case was being prepared for constitution to a Member and invited the applicant to complete a pre-hearing form with further detail of his protection claims. The Tribunal’s correspondence was sent to the applicant’s authorised email address, being the email address the applicant included in his online form at the time of lodgement of his review application. The applicant did not respond to the Tribunal’s email.
On 8 August 2025 the applicant was sent a hearing notice by email (to his authorised email address) inviting him to attend a hearing scheduled for 26 August 2025. The hearing notice invited the applicant to provide any further material in relation to his protection claims.
On 16 August 2025 the Tribunal received an email from the applicant with his completed hearing notice and his expired Malaysian passport bio-identity page attached to the email. The applicant declined to attend a hearing and requested that a decision be made in the absence of a hearing. The applicant did not provide any additional information or evidence in support of his protection claims.
On 18 August 2025 the Tribunal sent an email to the applicant acknowledging his request to make a decision in the absence of a hearing and advised that I was considering how to proceed with his case and that he would be contacted in due course. The Tribunal then cancelled the hearing.
On 8 September 2025, the Tribunal wrote to the applicant and advised of receipt of his request for a decision in the absence of a hearing and confirmed cancellation of the hearing. The letter from the Tribunal advised the applicant that a “decision without a hearing may not be favourable and may result in the decision under review being affirmed.” The letter also explained that the independent role of the Tribunal in reviewing his visa refusal meant that the Tribunal may make a decision on a different basis to the delegate and identified the issues to be determined.[7] The letter invited the applicant to ask for the hearing to be rescheduled if he so chose, and/or provide further information in support of his protection claims and referred him to free legal providers and gave the applicant until 23 September 2025 to respond to the Tribunal.
[7] LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 at [82], [86].
On 12 September 2025, the Tribunal again wrote to the applicant.[8] The Tribunal’s second letter was to ensure that the applicant was put on notice of the issues to be determined by the Tribunal,[9] so that the applicant could make an informed choice[10] as to whether he did still wish for a decision to be made in the absence of a hearing. The Tribunal’s letter advised the applicant that after reviewing the information he provided in support of his claims, the Tribunal found that the information was brief and lacked substance and did not contain sufficient detail to allow the Tribunal to make findings of fact material to his case and explained to the applicant the specific claims in his visa application that the Tribunal may not accept as a result.
[8] References to the Tribunal’s ‘second letter’ refer to the letter from the Tribunal to the applicant dated 12 September 2025.
[9] As per SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63.
[10] As above at [7] at [82].
In identifying the issues for determination, the Tribunal’s second letter also advised the applicant of the existence of a non-disclosure certificate[11] on the Department file (that was before the Tribunal) and advised the applicant that the Tribunal did not intend on placing any weight on the certificate and why. The applicant was invited to comment on both the information covered by the certificate and the certificate’s validity. The second letter again invited the applicant to ask for the hearing to be rescheduled if he so chose, and/or provide further information in support of his protection claims and referred him to free legal providers and gave the applicant until 23 September 2025 to respond to the Tribunal.
[11] Issued under s438(1)(b) of the Migration Act 1958
The applicant did not respond to the Tribunal’s letters of 8 September 2025 and 12 September 2025.
The Tribunal finds that, on the basis of the lack of any further information regarding his protection claims in the applicant’s response to hearing attached to his email of 16 August 2025, and his non-responses to the Tribunal’s email of 10 June 2025 and letters of 8 September 2025 and 12 September 2025, the applicant does not wish to provide further material in relation to his protection claims. The Tribunal is therefore satisfied that it has afforded the applicant a reasonable opportunity to present his case to the Tribunal as is required under s55 of the ART Act.
Should the Tribunal reach a decision without holding a hearing?
The Tribunal may make a decision without a hearing if all three components ((a), (b) and (c)) of s106(3) of the ART Act are satisfied. Section 106(3) states:
This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
s106(3)(a) – who are the parties to the proceeding?
The parties in this case are the applicant and the Minister, who is a non-participating party[12] and so s106(3)(a) of the ART Act is met.
[12] s348A(1) of the Migration Act 1958.
s106(3)(b) – has the applicant requested a decision in the absence of a hearing?
In this case s106(3)(b)(i) is not relevant. Section 106(3)(b)(ii) requires that “the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding.”
On 8 August 2025 the Tribunal sent the applicant a notice inviting him to appear at a hearing scheduled for 26 August 2025. On 16 August 2025, an email from the applicant’s email address was sent to the Tribunal with a completed hearing notice attached. In Part 1 of the form the applicant was asked if he will participate in the hearing (yes or no). The applicant placed a tick in the box that states “No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing.” The applicant also typed his mobile number and email address in the relevant spaces provided underneath the question in Part 1.
At the bottom of the hearing notice, the applicant’s name is typed twice. The email from the applicant stated: “Dear Sir, 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. THANKS”
The Tribunal is satisfied that the email address used to send the completed hearing notice is the same as the applicant’s authorised email address (that is the email address that was contained in the applicant’s application form at the time of lodging his review with the AAT). Whilst the applicant did not sign the hearing notice in the space provided but instead typed his name, as the applicant attached the bio-identity page of his expired Malaysian passport to his email requesting a decision in the absence of a hearing, and as the email sent to the Tribunal with the request is from the applicant’s authorised email address, the Tribunal is satisfied that the applicant has requested the Tribunal to proceed to a decision without a hearing (as detailed above) and satisfied therefore that s106(3)(b)(ii) is met.
s106(3)(c) – can the Tribunal adequately determine the issues before it?
The third component of s106(3) that must be satisfied before the Tribunal can determine a matter in the absence of a hearing is whether it appears to the Tribunal the issues for determination can be “adequately determined.”
“Adequately determined” is not legally defined. In relation to s106(3)(c), the Explanatory Memorandum to the Administrative Review Tribunal Bill[13] relevantly states: “In all of the above circumstances, the Tribunal must consider that the issues can be adequately determined in the parties’ absence. This means that the Tribunal cannot exercise these powers if there are issues that they consider they cannot resolve without seeking further evidence or submissions from the parties.”[14] The Explanatory Memorandum also relevantly states that “[t]his clause supports the objective of the Tribunal resolving matters as quickly and with as little formality and expense as a proper consideration of the matters permits, especially given the time and resources required to conduct a substantive hearing.”[15]
[13] Accessible online:
[14] bid, at paragraph 670.
[15] Ibid, at paragraph 671.
The issues in this case are whether the Tribunal can be satisfied on the material before it that applicant is either a refugee or owed complementary protection as set out in s36(2) of the Act where the applicant is claiming a fear of harm on the basis of his sexuality (that he is homosexual) if he returns to Malaysia. To determine whether the applicant is owed protection, the Tribunal, conducting a merits review[16] stands in the shoes of the Minister. This requires the Tribunal to consider and determine those issues afresh. To consider afresh whether the applicant meets the provisions of s36(2), the Tribunal is required to reach a level of satisfaction[17] about whether the applicant’s protection claims have been made out. This requires the Tribunal to be satisfied of the applicant’s identity, nationality, and receiving country, and also come to a state of satisfaction about the applicant’s claims for protection on the basis of his sexuality on the evidence the before the Tribunal. This is in the context of this applicant, having been put on notice of the issues to be determined by the Tribunal, and that the Tribunal is unable to make a favourable decision on the material before it, has elected not to provide further evidence to support his claims, either in writing or by attending a hearing.
[16] s3 of the Administrative Review Tribunal Act 2024.
[17] See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 (2005) FCAFC 73, [16]-[19].
The Tribunal has before it a copy of the Department’s file which contains the applicant’s expired Malaysian passport, his biographical identity information, his protection claims in his visa application and the delegate’s decision. As discussed above, the Tribunal is satisfied the applicant has had a reasonably opportunity to present his case, make submissions and adduce evidence and that he has had access to the information upon which the Tribunal proposes to make a decision about the issues in dispute. On this basis, it appears to the Tribunal that it can adequately determine the issues before it,[18] without seeking further evidence or information from the applicant.
[18] Those issues as described in paragraph [‎29] in this decision.
The Tribunal has considered whether it should exercise other discretionary powers available such as inviting the applicant to another hearing but as the Tribunal has determined the issues before it can be adequately determined and as the Tribunal must provide a review mechanism that is quick, fair and responsive to the parties needs with as little formality as possible,[19] the Tribunal has decided to proceed to determine the issues before it in this casein the absence of a hearing. Section106(3)(c) is met.
[19] s9 of the Administrative Review Tribunal Act 2024.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 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 s36(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: s5H(1)(a).
Under s5J(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 ss5J(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 s36(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: s36(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 ss36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 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 issues to be determined in this case are whether the Tribunal is satisfied that the applicant is owed protection as a refugee or under the complementary provisions of s36(2) of the Act because of his sexuality where he claims he is homosexual.
The applicant’s reasons for seeking protection that are before the Tribunal are the same as those that were before the delegate because the applicant has elected not to provide any new or further information or evidence to the Tribunal. The applicant claimed that:
·He is homosexual (a “gay person”);
·He was attacked by three Malay people because he is homosexual;
·Because he is homosexual, he was harmed physically and mentally and he tried to commit suicide;
·He sought help from the police but they did not support him and he did not try to relocate because it is against the law in Malaysia to be gay;
·He suffered discrimination and harm because he is gay;
·He fears he will be discriminated against and harmed because he is gay if he returns to Malaysia.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
What is the Applicant’s Nationality and Receiving Country?
In his protection visa application, the applicant stated he is a citizen of Malaysia. As the delegate did not have any concerns regarding the applicant’s identity and as the Tribunal has before it a copy of the applicant’s expired Malaysian passport, the Tribunal accepts on the material before it that the applicant is a Malaysian citizen. In his visa application, the applicant stated that he is not a citizen of any other country and that he does not have a right to enter or reside in a third country which the Tribunal also accepts. The Tribunal finds that he is a citizen of Malaysia and has assessed his protection claims with Malaysia as the receiving country.
The non-disclosure certificate
As noted above at [‎18] the Tribunal has been provided with a document called “Identical claim document” that is information under cover of a non-disclosure certificate issued as per (as it was then) s438(1)(b) of the Act. The information is a three-page list of Departmental file numbers, each with a static thumbnail image of a pdf file. The applicant’s Departmental case file number is one of those contained in the list. The individual pdf file images are static and do not contain links or any other information about those other files other than the Departmental file numbers. The Tribunal invited the applicant to comment on the certificate and information.
The Department’s reason for proving the “Identical claim document” under the cover of the non-disclosure certificate is stated as:
“The Department considers that this document, matter contained in the document or information should not be disclosed to the applicant or the applicant’s representative because it contains personal details that other applicants provided in connection with their own Protection Visa applications. These details have been provided in confidence to the Department for the purpose of processing their visa applications and the other applicants have not consented to their release to other applicants. Therefore, the identifying details of any other applicants should not be disclosed to this applicant.”
The delegate’s finding[20] that the applicant’s claim of a fear of harm because he is a homosexual was not only not credible but fabricated, appears to be made on the basis of information before the delegate of a number of other similar claims by other applicants.
[20] See top pf page 3 of the delegate’s decision record.
The Tribunal has reviewed the information in the “Identical claim document” and places no weight on it in assessing the credibility of this applicant’s protection claims. This is because the Tribunal does not have the alleged similar claims of other applicants before it and is not therefore in a position to determine whether those other claims are the same or similar to those of this applicant. Even if the Tribunal did have the protection claims of those other applicants before it, without having an opportunity to put those similar claims to this applicant (the applicant who is the subject of this decision) in a hearing, the Tribunal places no weight on the information covered by the non-disclosure certificate. The Tribunal does not consider information that amounts only to a list of Departmental file numbers to be relevant to the assessment of whether this applicant’s protection claims reflect his own personal experiences as a claimed homosexual.
Does the applicant satisfy the refugee criterion for protection?
Refugee is defined in s5H of the Act. For the applicant to be a refugee, he must have a well-founded fear of persecution. Well-founded fear is defined in s5J of the Act which contains the satisfaction of various criteria as well as some qualifications. Section 5J(1) requires the satisfaction of three specific criteria, one of which is whether there is a real chance[21] the applicant will be persecuted if he returned to Malaysia.
[21] s5J(1)(b) of the Migration Act 1958.
The applicant claimed he is homosexual and as homosexuality is illegal in Malaysia he fears he will be harmed and discriminated against if he returns to Malaysia. The protection claims of the applicant before the Tribunal are those claims in his visa application that were before the delegate (summarised above at [‎39]). This is the only information the applicant has provided to the Tribunal relating to his protection claims other than the information in the delegate’s refusal decision record (which the applicant provided to the Tribunal when lodging his review application. As of the date of this decision, the applicant has not provided any further information or submissions to the Tribunal in support of his protection claims.
The applicant has had several opportunities to provide further particulars of his protection claims to the Tribunal. He has provided only the information that was before the delegate. He has also been invited to present evidence at a hearing, an invitation he has expressly declined. In its letters of 8 September 2025 and 12 September 2025, the Tribunal specifically put the applicant on notice that it could not reach a favourable decision on the material before it, in the absence of a hearing, and the applicant did not respond to either letter. The Tribunal finds that the applicant does not wish to provide any more information to the Tribunal about his protection claims.
The applicant claimed he is homosexual and that his fear of harm if he returned to Malaysia is because he is homosexual. The totality of his evidence that he is homosexual is his claim that he is gay. He has not provided any information about whether he has had previous relationships with men or whether he is in a current relationship with a man or his personal experiences as a homosexual. Other than claiming he was attacked by three Malay people because he is homosexual, he has not provided detail about his specific experiences of past harm because of his sexuality. He has not explained when the attack occurred or the circumstances of the attack. He did not explain the nature of the discrimination or physical or mental harm he claimed he suffered because of his sexuality. He provided no detail about when he contacted the police and how they did not support him. He has not detailed what his specific fears are if he does return to Malaysia other than “I will be discriminated and even harmed by others only because I am gay.”[22]
[22] Page 12 of the applicant’s protection visa application form.
Country information[23] indicates that homosexuals and people who are members of the LGBTQI+ community in Malaysia do face prohibitions on same sex relationships, and/or discrimination and/or harm depending on individual circumstances. However the applicant has not provided particularised information to satisfy the Tribunal that he is gay as he claimed, that he otherwise a member of the LGBTQI+ community in Malaysia or that he faces a real chance of suffering serious harm if he returns to Malaysia because of his sexuality.
[23] DFAT Country Information Report Malaysia, 24 June 2024, paragraphs 3.126 to 3.148.
The Tribunal is not required to making findings of fact as a means of accepting or rejecting the applicant’s claims when faced with such brief evidence as in this case: “where an applicant does not attend any hearing after invitation to do so, in circumstances where the applicant has been put on notice that the decision maker cannot make a favourable decision given the paucity of the information provided. Here, the insufficiency of information is such that the requisite level of satisfaction cannot be reached. This does not require any findings of fact about that information. In fact, the paucity of the information presented may render it difficult to make any such findings.”[24]
[24] SZSMQ v Minister for Immigration & Anor (2013) FCCA 1768 at 44.
It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim.[25] The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is ‘well founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[26]
[25] s5AAA of the Migration Act 1958.
[26] Randhawa v MILGEA (1994) 52 FCR 437 at 451. MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].
The applicant has provided scant detail to satisfy the Tribunal about his claims. His evidence that he is homosexual amounts to broad statements only with no particulars about the substance of his claims to satisfy the Tribunal that he has a well-founded fear of persecution because he is homosexual, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm because he is homosexual.
For the reasons above, based on the applicant’s protection claims that are before the Tribunal, the Tribunal has not reached a level of satisfaction to be able to accept those protection claims. In determining the issues before it the Tribunal is entitled to reject the applicant’s protection claims in the absence of a positive finding of satisfaction that he was a person to whom Australia had protection obligations. The Tribunal is not required to make findings of fact, either favourable or unfavourable, to reach the requisite state of satisfaction or non-satisfaction.[27] In reaching the requisite level of satisfaction or non-satisfaction about whether the applicant is owed protection, the Tribunal has carried out its statutory task of determining the issues before it.
[27] As above at [17] at [17].
On the limited evidence before it, the Tribunal is not and cannot be satisfied that there is a real chance that the applicant would be persecuted because of his sexuality if he returns to Malaysia . The paucity of the applicant’s evidence before the Tribunal is such that the Tribunal would have no choice but to make assumptions or speculate about the fear the applicant holds to find that a real chance of persecution exists. A fear of persecution based on assumption or speculation is not a well-founded fear.[28]
[28] MIEA v Guo (1997) 191 CLR 559 at 572.
The Tribunal is not and cannot be satisfied on the paucity of evidence before it that the applicant’s fear of persecution for reasons of his sexuality is well-founded. The real chance test is a forward-looking test. The Tribunal must be satisfied that there is a real chance of persecution because of his sexuality in the reasonably foreseeable future if the applicant returns to Malaysia. In all the circumstances, on the material before it for the reasons given above the Tribunal is not and cannot be satisfied that the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion. It follows that he is not a refugee as defined in s5H and for these reasons the Tribunal is not satisfied that the applicant meets the criteria for a protection visa in s36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa).
Section 36(2)(aa) states that there must be a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test[29] applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s5J(1)(b) of the Act.[30]
[29] MIAC v SZQRB (2013) 210 FCR 505.
[30] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
As the Tribunal is not satisfied on the material before it that there is a real chance that the applicant will be persecuted on return to Malaysia it follows that there is not a real risk of the applicant suffering significant harm. The applicant therefore is not owed complementary protection under s36(2)(aa).
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 s36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s36(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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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