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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2113861 (Refugee)

Details

AGLC: 2113861 (Refugee) [2025] ARTA 2201
Case: [2025] ARTA 2201
Decision Date: 29 September 2025

CaseChat Overview and Summary

The applicant, a Malaysian national, sought review of the delegate’s decision to refuse his application for a protection visa. The delegate concluded that the applicant’s claims of persecution on the grounds of his sexual orientation were not credible due to the alleged similarity with other identical claims. The applicant requested that the Administrative Review Tribunal make a decision without a hearing, providing no additional information or evidence to support his claims. The central issue before the Tribunal was whether the applicant's claims of persecution due to his sexual orientation in Malaysia were credible and warranted a protection visa. The Tribunal had to determine if the applicant's claims were sufficiently supported by evidence and whether his decision to forgo a hearing prejudiced the fairness of the review process.

The Tribunal considered the procedural obligations under the Administrative Review Tribunal Act 2024. It noted the importance of ensuring the applicant had a reasonable opportunity to present his case, which included identifying and notifying the applicant of the issues to be determined, as per the jurisprudence in LLR24 v Minister for Immigration and Citizenship (No 2). Despite invitations to a hearing and to provide further information, the applicant declined to attend and provided no additional evidence. The Tribunal concluded that the applicant had not adequately presented his case and that the refusal of the protection visa could be affirmed on the existing record. The Tribunal found that the delegate's decision was supported by the evidence and the applicant's failure to provide further information or attend a hearing did not warrant a different outcome.

The Tribunal affirmed the delegate's decision to refuse the applicant’s protection visa. The Tribunal found that the applicant had not provided sufficient evidence to substantiate his claims of persecution due to his sexual orientation in Malaysia. The applicant's decision to forgo a hearing and provide no additional information meant that the Tribunal could not make a different determination. The Tribunal noted the independent role it plays in reviewing the delegate's decisions and concluded that the existing evidence supported the delegate's findings. As a result, the Tribunal upheld the delegate’s decision to refuse the visa application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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 CONSIDERATIONSHas 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].