2202626 (Refugee) - [2025] ARTA 1161

2202626 (REFUGEE) [2025] ARTA 1161 (26 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2202626
Tribunal:General Member P Haag
Date:26 May 2025

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

Statement made on 26 May 2025 at 10:30am
CATCHWORDS
REFUGEE – protection visa – Malaysia – political and economic conditions – no past harm – fear of adverse consequences but not mistreatment or harm – delay in applying – name spelled differently in delegate’s decision but no doubt as to identity – consent to decision without hearing – responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 2024 (Cth), ss 9, 55(1)(a), 63(2), 106(3)
Migration Regulations 1994 (Cth), Schedule 2
CASE
2010120 (Refugee) [2025] ARTA 550

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 14 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 5 September 2021. The delegate refused to grant the visa on the basis that the applicant is not a refugee or a non-citizen in Australia entitled to complementary protection.
SHOULD A DECISION BE MADE WITHOUT A HEARING IN THE PRESENT CASE?
Did the applicant request a decision without a hearing?
On 2 May 2025, the applicant corresponded with the Tribunal. The applicant did so by email that was sent from the email address she provided to the Tribunal for correspondence pertaining to the review proceeding. In the email the applicant stated:
‘I hear request the ART Tribunal to make a decision without hearing interview, but ART Tribunal please make a decision on the papers. Thanks.’
The applicant also asked the Tribunal to refer to the file attached to the email. The file comprised 2 attachments. The first attachment is a copy of the Notice Of Hearing the Tribunal sent to the applicant on 29 April 2025. It notified her of the scheduled hearing of the review of her application for a protection visa, and other matters relevant to the review proceeding. The second attachment is a copy of the biodata page of a Malaysia passport, evidently issued by the relevant authority in Malaysia to the applicant.
It is evident from the email and the attachments to it, that the applicant was properly invited to attend a hearing to give evidence and present arguments. The applicant’s email makes clear the Notice Of Hearing was sent to the email address she provided to the Tribunal for correspondence pertaining to the…

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 2202626 (Refugee)

Details

AGLC: 2202626 (Refugee) [2025] ARTA 1161
Case: [2025] ARTA 1161
Decision Date: 26 May 2025

CaseChat Overview and Summary

The applicant, a Malaysian national, applied for a protection visa based on the political and economic conditions in Malaysia. The delegate of the Minister refused her application, and she sought a review by the Tribunal. The Tribunal decided to make a decision without conducting a hearing, based on the applicant's explicit request and the comprehensive submissions already provided. The primary legal issues the court had to address were whether the applicant qualified as a refugee under the Migration Act 1958 (Cth), and if not, whether she qualified for complementary protection. The applicant argued she had a well-founded fear of persecution due to the political chaos and economic downturn in Malaysia, which she claimed would result in significant harm if she returned. However, the delegate found that the conditions in Malaysia did not constitute persecution or a real risk of significant harm specific to the applicant.

The Tribunal reviewed the evidence and the applicant's claims, considering the criteria for both refugee status and complementary protection. It noted that the applicant had not provided any evidence of past harm or specific threats to her safety if she returned to Malaysia. The Tribunal also highlighted the applicant's failure to specify her claims clearly and provide sufficient evidence to substantiate her fears. The Tribunal concluded that the delegate's decision was correct and affirmed it. The Tribunal found that the applicant did not meet the criteria for a protection visa, either as a refugee or on complementary protection grounds. The decision confirmed that the applicant's concerns about the general political and economic conditions in Malaysia did not amount to a well-founded fear of persecution or a real risk of significant harm specific to her.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal will now decide the proceeding without conducting a hearing. BACKGROUND In her protection visa application form the applicant stated she was born in a particular town in Malaysia on [Date]. Her ethnicity is Malaysian Chinese; her religion is Buddhism; and she can speak, read and write English and Mandarin. The applicant also stated she is not currently employed; she has never been employed; during unemployment she did not undertake any activities; and, whilst unemployed, she financially supported herself from savings. The applicant stated in the application that she departed Malaysia legally on [Day 1] March 2015 using her Malaysian passport, and she arrived in Australia on [Day 2] March 2015 as a visitor. On 5 September 2021, the applicant lodged her application for a protection visa. On 14 February 2022, the delegate of the Minister refused the application. Evidence before the Department The claims stated in the protection application form are:(a)The applicant left Malaysia because political chaos caused an increase in the epidemic, an increase in unemployment and an economic downturn. (b)The applicant has no hope for Malaysia, and she does not want to return to the country. Furthermore, the applicant stated:(a)She was not harmed in Malaysia.(b)She tried relocating to another part of Malaysia to seek safety, but the situation is similar throughout the country. (c)If she returns to Malaysia, she thinks an increase in the [unspecified] epidemic, an increase in unemployment, and an economic downturn will have adverse consequences for her. (d)She thinks she will not be harmed or mistreated if she returned to her home country.(e)She does not think the authorities will protect her because ‘politicians are very selfish. Corruption is very serious based on yearly international investigation report is ranked No 57.’(f)The applicant is unable to relocate because she has ‘a new hope and future’ in Australia. In summary form, the delegate was not satisfied the applicant has a well-founded fear of persecution because her protection claims do not meet any reason specified in s 5J(1)(a) of the Act, therefore she is not a refugee. The delegate was not satisfied the applicant met the requirements for complementary protection, essentially for the following reasons:(a)The government placed restrictions on the general population to combat the COVID-19 pandemic for good reason, and not for any reason that discriminated against the applicant.(b)The economic consequences of the COVID-19 pandemic, including elevated levels of unemployment, and the related government decisions applied to the population generally, and those conditions did not discriminate against the applicant.(c)The claims and supporting information did not satisfy the delegate that there are substantial grounds for believing, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant will suffer significant harm. (d)The applicant did not meet the requirements of s 36(2)(aa) of the Act, therefore she was not entitled to complementary protection. Evidence before the Tribunal

Evidence

Evidence Before The Court

A summary of the claims and circumstances pertaining to the claims before the Tribunal, are summarised at paragraph [18] and [19] above. No additional material or submissions were provided to the Tribunal. In this proceeding the applicant relies on the same claims and information she unsuccessfully relied on before the delegate of the Minister. CONSIDERATION OF CLAIMS AND EVIDENCECriteria 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

Decision

Reasons for decision

The applicant who claims to be a national of Malaysia, applied for the visa on 5 September 2021. The delegate refused to grant the visa on the basis that the applicant is not a refugee or a non-citizen in Australia entitled to complementary protection. SHOULD A DECISION BE MADE WITHOUT A HEARING IN THE PRESENT CASE?Did the applicant request a decision without a hearing? On 2 May 2025, the applicant corresponded with the Tribunal. The applicant did so by email that was sent from the email address she provided to the Tribunal for correspondence pertaining to the review proceeding. In the email the applicant stated: ‘I hear request the ART Tribunal to make a decision without hearing interview, but ART Tribunal please make a decision on the papers. Thanks.’ The applicant also asked the Tribunal to refer to the file attached to the email. The file comprised 2 attachments. The first attachment is a copy of the Notice Of Hearing the Tribunal sent to the applicant on 29 April 2025. It notified her of the scheduled hearing of the review of her application for a protection visa, and other matters relevant to the review proceeding. The second attachment is a copy of the biodata page of a Malaysia passport, evidently issued by the relevant authority in Malaysia to the applicant. It is evident from the email and the attachments to it, that the applicant was properly invited to attend a hearing to give evidence and present arguments. The applicant’s email makes clear the Notice Of Hearing was sent to the email address she provided to the Tribunal for correspondence pertaining to the review. The Notice Of Hearing informed the applicant that she may request the Tribunal to make a decision without a hearing. The Notice also informed the applicant that if she requested the Tribunal to decide the review on the papers without a hearing, the Tribunal may decide her application providing it is satisfied the issues can be determined in her absence. Additionally, the Notice informed the applicant that a decision without a hearing does not guarantee she will receive a favourable decision. The Tribunal is satisfied the applicant’s email of 2 May 2025, considered together with the 2 attachments, expresses the applicant’s properly informed intention not to attend the hearing. The correspondence also establishes the applicant requested the Tribunal to decide the review of her protection visa application without holding a hearing. Can the issues for determination be adequately determined if the parties are absent?[1]The applicant was given several opportunities to present evidence in support of her case, including:·The application for a protection visa; and·in response to the Prehearing information form the Tribunal sent on 13 March 2025 to the applicant’s email address; and·in response to the Notice Of Hearing and related correspondence the Tribunal sent on 29 April 2025 to the applicant’s email address; and·the scheduled hearing. [1] The analysis of this issue draws from and applies the decision of the Administrative Review Tribunal of Australia: 2010120 (Refugee) [2025] ARTA 550 (13 May 2025): Justice Kyrou, President, Deputy President S Burford, Deputy President K Dordevic

Ratio Decidendi

Legal Principle Established

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