2203130 (Refugee) - [2025] ARTA 1807

2203130 (Refugee) [2025] ARTA 1807 (26 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2203130
Tribunal:General Member S Zelinka
Date:26 August 2025

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

Statement made on 26 August 2025 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – gay or bisexual men in Malaysia – forced marriage – violent attack organised by family – arrested, detained and charged for attending an immoral party – escaped heavy jail term and flogging by paying a fine – credibility concerns – claims changed – no supporting evidence – delay in applying for protection – claimed charge does not exist – fine imposed by religious police – fine exceeds amount set by law – not involved in gay community – lives without identifying as or being perceived as homosexual – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
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 1 March 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 4 November 2018. The delegate refused to grant the visa on the basis that the applicant did not make any claims the delegate found to be credible.
The applicant appeared before the Tribunal on 8 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review although he was not at the hearing.
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…

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 2203130 (Refugee)

Details

AGLC: 2203130 (Refugee) [2025] ARTA 1807
Case: [2025] ARTA 1807
Decision Date: 26 August 2025

CaseChat Overview and Summary

The applicant, a [age]-year-old man from Selangor, Malaysia, applied for a protection visa in Australia in 2018, 18 months after his arrival. His claims were based on his sexual orientation, specifically being gay or bisexual, which led to a forced marriage and subsequent violence by his family. He further alleged that he was arrested, detained, and charged for attending a party deemed immoral by religious authorities, narrowly avoiding a heavy jail term and flogging by paying a fine. The Tribunal was tasked with determining the credibility of the applicant's claims and whether he met the criteria for a protection visa under the relevant Australian legislation.

The legal issues before the Tribunal included the applicant's credibility, the consistency of his claims, and whether there was supporting evidence for his assertions. The Tribunal also needed to assess whether the applicant faced a real risk of significant harm if returned to Malaysia, which would make him eligible for a complementary protection visa. The Tribunal examined the applicant's background, his claims of persecution, and the evidence provided, including country information assessments and guidelines prepared by the Department of Home Affairs and the Department of Foreign Affairs and Trade.

After careful consideration, the Tribunal found that the applicant's claims were not credible. There were inconsistencies in his story, changes in his claims, and a lack of supporting evidence. The Tribunal noted that the fine imposed by the religious police exceeded the legal limit, and there was no evidence that the applicant was involved in the gay community. Additionally, the applicant lived without identifying as or being perceived as homosexual, which raised further doubts about his claims. Consequently, the Tribunal concluded that the applicant did not meet the criteria for a protection visa, and the decision to affirm the review was upheld.

The final orders of the Tribunal affirmed the decision to refuse the protection visa application. The applicant was not found to meet the refugee criterion, and no grounds for complementary protection were established. The applicant has the right to seek review of this decision in the Federal Circuit and Family Court of Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is [an age]-year-old divorced man of Malay ethnicity from Selangor. He came to Australia in March 2017 and put in a protection visa application 18 months later. After leaving school, he worked for two years in [Workplace 1] and the next four as [an Occupation 1 in Business 1 performing Job task 1]. His initial claims in his protection visa application were that he is a gay man, forced into marriage. When he came out to his family they were very upset and his brother brought some men to beat the applicant up. He claims he had a boyfriend in Malaysia but had to leave him as his family was very angry with him. He did not seek any assistance for his situation as he believes the country does not support equality. He will be depressed if he returns to Malaysia as his family and the government will try to change who he is.To the Tribunal At hearing, the applicant claimed that he had been arrested by the religious authorities in 2014 and given the option of paying a fine or going to jail. The Tribunal established that the applicant had been invited to a private party at a large house where there was loud music and alcohol, and party-goers of both sexes. It was a large house because it had seven bedrooms. He said it was a private party because bisexuals and transgenders are not allowed to be public. He noted that people were drinking and dancing bisexually which is not allowed in Malaysia. Unmarried men and women are not allowed to dance and hold hands before marriage. From the way the applicant was using the word ‘bisexual’, it sounded like he used to it to describe both men and women being present at the same time. The Tribunal asked him if he knew the meaning of bisexual and he replied: “It means I can pick between men and women”. He said that when the police arrived at the party, he was in a bedroom with a man and a woman so he was charged with ‘bisexuality’. The applicant said the raid on the house by the religious police was in the early hours of the morning; police outside stopped party-goers from running away. About 100 people were rounded up from the party and taken to the police station in a number of trucks. They were kept there in the courtyard for three days, their clothes being swapped for prison pyjamas. The police wanted to see their National Identity Cards and recorded their names. They were in remand for seven days and then taken to court where the applicant was charged with ‘doing something illegal in Malaysia: going to a bisexual and transexual party with both men and women.’ He was charged with being bisexual which he admitted to. He was told he could pay a fine of [amount] ringgits (about A$[amount]) or be imprisoned for 3 to 10 years. The Tribunal said people do not get sentenced to an indeterminate sentence like that and asked him how many years he got. The applicant said seven years in jail with a flogging. The Tribunal put it to the applicant that this did not seem like an equivalent alternative to the fine. The applicant said he opted to pay the fine in full. It was in the news so people might know about him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is [an age]-year-old divorced man of Malay ethnicity from Selangor. He came to Australia in March 2017 and put in a protection visa application 18 months later. After leaving school, he worked for two years in [Workplace 1] and the next four as [an Occupation 1 in Business 1 performing Job task 1]. His initial claims in his protection visa application were that he is a gay man, forced into marriage. When he came out to his family they were very upset and his brother brought some men to beat the applicant up. He claims he had a boyfriend in Malaysia but had to leave him as his family was very angry with him. He did not seek any assistance for his situation as he believes the country does not support equality. He will be depressed if he returns to Malaysia as his family and the government will try to change who he is.To the Tribunal At hearing, the applicant claimed that he had been arrested by the religious authorities in 2014 and given the option of paying a fine or going to jail. The Tribunal established that the applicant had been invited to a private party at a large house where there was loud music and alcohol, and party-goers of both sexes. It was a large house because it had seven bedrooms. He said it was a private party because bisexuals and transgenders are not allowed to be public. He noted that people were drinking and dancing bisexually which is not allowed in Malaysia. Unmarried men and women are not allowed to dance and hold hands before marriage. From the way the applicant was using the word ‘bisexual’, it sounded like he used to it to describe both men and women being present at the same time. The Tribunal asked him if he knew the meaning of bisexual and he replied: “It means I can pick between men and women”. He said that when the police arrived at the party, he was in a bedroom with a man and a woman so he was charged with ‘bisexuality’.