2203391 (Refugee) - [2025] ARTA 1959

2203391 (REFUGEE) [2025] ARTA 1959 (11 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2203391
Tribunal:General Member G Hamilton
Date:11 September 2025

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

General Member G Hamilton
Statement made on 11 September 2025 at 6:06 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual or bisexual man – married man in relationship with best friend – beaten by wife’s family, abandoned by wife and children and ostracised by family and friends – children not declared in application, including son in Australia with protection application in progress – late claim of fear of harm from gangsters because of son’s and/or applicant’s report to police – vague and inconsistent claims and evidence – no same-sex activity in Australia – wife and daughter gave evidence despite claim of estrangement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 July 2018. The delegate refused to grant the visa on 14 February 2022
The applicant attended a hearing of the Tribunal which commenced on 14 July 2025 and resumed and concluded on 10 September 2025. The Tribunal also received oral evidence from the applicant’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
One or more of the above-listed reasons must be the essential and significant reason or reasons for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: ss 5J(4)(b), (c).
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Arbitrary deprivation of life and the death penalty carry their ordinary meanings. Torture and cruel or inhuman treatment or punishment both involve intentionally causing severe pain or suffering, whether physical or mental. Degrading treatment or punishment is defined as intentionally causing extreme humiliation.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
CLAIMS AND EVIDENCE
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.
In his protection visa application the applicant said he was born in Kedah, Malaysia in [Year] and has a Malaysian passport, and is a Malaysian citizen. In his biographical information he said his relationship status was separated. He did not declare any family members, including any relatives in Australia. He said he arrived in Australia in April 2018 as a visitor. He said he had never been employed and had never studied. He declared a single residential address in Malaysia from [Year] to 2018.
The applicant said he left Malaysia because he was in a “false” relationship. He was a family man and father of two. But he was in a relationship with his best friend, a man named [Mr A]. He did not know how it began but [Mr A] was addicted to be with him. But they were caught by [Mr A]’s wife, who told the applicant’s whole family about the relationship. The applicant was humiliated, beaten by the wife’s brothers and cousin, and his own wife and kids ran away. His family and friends did not accept him. His kids would not acknowledge him as their father. He had nowhere to go. [Mr A]’s wife threatened to ask her family to kill her. He would not be able to get a job and he might end his life. So, he decided to follow [Mr A] to Australia.
It is noted in the Delegate’s decision that during his interview in November 2021, the applicant said he actually has three children, two daughters and a son then aged [Age], and that his son was in Australia and had also sought protection. The applicant said he separated from his wife in 2015. He did have some secondary schooling and then worked in [work sector] until he came to Australia. He was working in a factory and sending money back to Malaysia for his daughters’ education.
The Delegate noted that the applicant said he was attracted to men from around 20 years of age but provided little meaningful information about his sexuality in general and had not sought to have relationships with other men in Malaysia apart from [Mr A]. He did not explain why he and his wife were not divorced. Regarding [Mr A], the applicant claimed that they were in a sexual relationship from the age of about 20 but was unable to give any meaningful information about the history and development of the relationship. He said they were found out in 2013 or 2014 but did not know who discovered the affair and who told his family about it.
At the interview the applicant said his son was being targeted by gangsters but had difficulty explaining why. He then asserted that it was because of his own affair with [Mr A] that the gangsters (or people at his son’s school) picked on his son resulting in the assault in 2017. (The Delegate has noted that this was several years after the affair was discovered.) They were also motivated against the applicant for having reported them to the police.
Prior to the hearing the applicant submitted a copy of a document purportedly issued by the District Police Headquarters [in] December 2017. According to a translation made in October 2024, the document is a letter to the applicant’s son [Mr B]. It states that the police received a report stating that the complainant (the applicant’s son) claimed to have been bludgeoned by some Indian males causing injuries. Statements were taken from six suspects. The report was sent to the Deputy Public Prosecutor but he instructed that no charges be brought.
The applicant also submitted his ART protection visa information form dated 10 July 2025, stating that he is gay/bisexual. He said he came to Australia with [Mr A]. [Mr A] has gone back to Malaysia. The applicant has not had any further same sex relationship because he is shy. His wife despises him and curses him every time they talk. She sent his son to him because he (the son) is facing dangerous issues.
The applicant indicated that he had new claims. Gangsters with a grudge towards his son and himself are still looking for them, holding a grudge because of the police report. If goes back to Malaysia he will be on his own and might be found dead. However, in the form where asked if he has any family member with a matter before the Tribunal, the applicant indicated in the negative.
In his response to the hearing notice, the applicant nominated his wife as a witness to his claims regarding himself and his son being beaten by people holding a grudge for the lodging of a police report. In the response form he said his ability to participate in the hearing was affected by being very shy to talk about himself as a gay/bisexual person. He is old, and has been humiliated before.
Prior to the commencement of the hearing, the applicant nominated another witness, being one of his daughters.
At the hearing the applicant said that he had a gay problem and that gangsters in Malaysia were attacking him.
Asked how he was involved with his son’s problem, the applicant said it was because he and his wife complained to the police. The perpetrators were caught, and wanted the applicant to withdraw the complaint which he refused to do, so they started attacking him. Asked what the dispute was about the applicant said it was disputes between old friends. He recounted events concerning his son and said after the perpetrators were let out of gaol (after a week) they started attacking the applicant. The applicant also had a gay problem and came here with a partner. Then his son was attacked again so the applicant brought him here.
Asked again what the dispute between his son and the gang was about, the applicant said the gang had bullied his son. Asked if there was a police report about the second attack on his son, the applicant said not, as he was not there to report it. The Tribunal asked if there was any evidence that the applicant himself was at risk of harm due to his son’s situation. The applicant said there was talk that the gang will still harm him. They were going to the house and surrounding it. Asked if this had been reported to the police, the applicant said it was difficult to do this and the police are connected with the gangsters. Asked if there was any film or photograph of the people surrounding the house, the applicant said they came at night and people were scared to go out. The Tribunal asked the applicant why his wife and daughters had not also come to Australia if they were afraid. The applicant said he was expecting them to.
The Tribunal asked the applicant if he had any evidence of his relationship with [Mr A]. The applicant said he did not, but he was disrespected. Asked to detail what problems he had because of the relationship, the applicant reiterated that when his friends found out he was disrespected. The Tribunal put to the applicant that he was being fairly vague in his evidence. The applicant said it was hard to talk about his feelings. The Tribunal put to the applicant that its question was about what happened to him. The applicant said people bullied and embarrassed him and hurt his feelings. Asked who did this, the applicant said it was “rowdies” who found out about him. He suspected this was why they started going after his son. Asked if he was physically hurt, the applicant said he kept himself out of trouble. Asked if anyone else knew he was gay, the applicant repeated that some people disrespected him and call him gay. The Tribunal observed that it found the applicant’s evidence about the reaction to him being gay somewhat vague.
The Tribunal also noted that the applicant had made different claims in his application, regarding having been found out to be gay and what happened as a consequence. The applicant said he did have problems with his wife and family and his wife’s brothers did not respect him. He was forgetful of the past. The Tribunal observed that it was not likely he would forget being beaten or threatened by specific people in his network.
The Tribunal asked the applicant about the current status of his relationship with his wife. He said they do not speak and she hates him. Asked why he nominated her as a witness, he said this was done by “the lawyer”. (The Tribunal notes that the applicant has not declared any solicitor or migration agent is acting for him). The Tribunal noted that the applicant had said that his family (including his children) left him because he was gay. The applicant said they did not know the details of his claims.
The applicant’s daughter gave evidence that the applicant had problems because of her brother, and the gangsters were looking for them both, and coming to the house and disturbing her family, and if he returns the problems will become serious. Asked what the dispute was about, she said it was because the gang assaulted her brother and the want revenge on her father. She could not remember why they assaulted her brother, but her father refused to let them be released. Now they were searching around the house and her mother had heard from friends the gang was looking for them. Asked if the stalking of the house had been reported to the police, she replied in the affirmative but said the police had not been able to stop the behaviour. Asked if there was any other reason her father might be harmed in Malaysia, the witness said no.
The Tribunal asked the applicant why he had not mentioned the dispute between his son and gangsters in his initial protection visa application. The applicant said he did not involve himself in his son’s case. He only had his gay claim. He came on a gay visa, and his son came later, and his son had the police report. The Tribunal observed that considering that the applicant claimed to have been attacked and at risk of further harm because of his son’s situation, it would have expected him to mention it in his application and have more knowledge about the reason for it.
In his protection visa application, the applicant’s son also declared no family members and did not declare his father as a protection visa applicant in his own pre-hearing information form. He nominated his mother in Malaysia as a witness for his Tribunal hearing. He did, however, tell the Tribunal (constituted by a different Member) at his hearing that his father was here. The record of the decision of the Tribunal in that matter does not corroborate that the applicant himself was harmed by gangsters or was at risk for any reason.
At the resumed hearing, the Tribunal asked the applicant why his son had not mentioned any risk to the applicant in his own claims or evidence. The applicant said he did not know to do so.
The Tribunal asked the applicant questions about the financial and other aspects of the relationship between himself and his son. He said they have always rented together since his son arrived. Previously the lease was in a third party’s name but now it is in the applicant’s name. They were both working in a factory for a few years and most of the time have shared expenses, but his son is currently looking for work so the applicant is paying the rent. The utilities are in the applicant’s name. The applicant is now working on [workplaces]. The applicant has a car and does the driving because his son does not yet have a full licence as it is difficult for them to schedule time together for practice. His son can cook and shop, usually the applicant shops but sometimes they both go. They have separate bank accounts. His son is trying to be self-reliant.
FINDINGS AND REASONS
Based on the information before it, the Tribunal finds that the applicant’s country of nationality is Malaysia.
The applicant claimed to fear harm as a gay/bisexual man who has had a relationship with a married man. The Tribunal proceeds on the basis that this puts him in a particular social group in Malaysia. The applicant did not claim to fear harm for any other of the refugee reasons.
The Tribunal does not accept that the applicant is gay or bisexual or that he has had a romantic or sexual relationship with any man. His evidence about the inception and history of the relationship with [Mr A] was very vague, and not supported by any detail or evidence of their communication. This was not adequately explained by shyness or cultural reticence in discussing matters of a sexual nature. It more accorded with there being a friendship that had no sexual or romantic content.
Moreover, the applicant’s claims as to how he was found out, and how he was treated after the relationship became known, were contradictory and vague. In his application he said [Mr A]’s wife found out and the applicant was beaten up by her relatives, they threatened to kill him, that his wife and children left him and his children disowned him. In the protection interview he said they were found out in 2013 or 2014 but he did not know who discovered the affair, or who told his family about it. And in the hearing, he was only able to say that he was found out and humiliated by rowdies, and he effectively denied being physically harmed. He also did not indicate that his family had found out that he was gay or how this happened.

The applicant’s claims at the primary stage regarding his family situation also do not gel with the fact that he nominated his wife, and his daughter, to give evidence in his case, and that his son followed him to Australia and they live together. The Tribunal does not accept that an undeclared lawyer filled out the response to the hearing notice on his behalf. Even if such a party is involved in his matter, it does not make sense to nominate the applicant’s wife without the applicant being consulted.
The applicant’s daughter was willing to give evidence on his behalf, which also contradicts his claims that his children abandoned him. She was asked specifically whether the applicant was at risk of harm for any reason other than collaterally to his son’s problem, and said not. She therefore does not identify that he is gay despite his claim that it was found out by his family.
As the Tribunal does not accept the applicant’s claims regarding his relationship with [Mr A], it does not accept that he was humiliated or beaten up, or is separated, or that he has been abandoned by his children.
Apart from the claimed relationship with [Mr A] the applicant has not claimed to have had any other relationships. His assertion that he is sexually attracted to men is therefore not supported by any evidence at all. He said at the interview that he has a lot of self-control. This is plausible, but his reluctance and inability to discuss the content of his “gay problem” means that his claim remains, fundamentally, without evidence.
In summary, the Tribunal does not accept that there is a real chance the applicant will be persecuted for reason of membership of a particular social group.
The Tribunal therefore finds that the applicant does not face a real chance of serious harm for any of the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
The Tribunal is similarly not satisfied there are substantial grounds to believe that on return to Malaysia there is a real risk that the applicant will suffer significant harm as defined in s 36(2A), warranting complementary protection, in relation to his claims to be a gay/bisexual man or a man who has had an affair with a man.
The applicant also claimed that gangsters were after his son, and that he himself was collaterally targeted by them for reporting them to the police. The Tribunal does not accept this. The police report is addressed to his son and refers to his son as the complainant. The applicant’s son did not at any stage indicate that his father was at risk of being harmed for any reason and did not mention him in his application, or in any significant way in his evidence. The applicant himself did not raise this claim until he was interviewed by the Delegate some years after lodging his application. These are strong credibility concerns, against which the Tribunal gives little weight to the evidence of the applicant’s daughter, which while echoing his own evidence, did not add any detail revealing of truth.
In relation to this claim therefore, the Tribunal is also not satisfied that there are substantial grounds to believe that on return to Malaysia there is real risk that the applicant will suffer significant harm as defined in s 36(2A), warranting complementary protection.
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 s 36(2)(a) or s 36(2)(aa).
The applicant’s son was found satisfy s 36(2) in his own right and granted a protection visa. If the applicant is a member of the same family unit as his son, and either is a normally resident with and a dependant relative of the other, the applicant may meet the requirements of s 36(2)(c) (Migration Reg 1.12(4(d). The dependency would have to be such that either party is, and has been for a substantial period, wholly or substantially reliant on the other for financial, psychological or physical support. It appears from the evidence above that the applicant’s son is slightly more reliant on the applicant than the other way around, but at [Age] he is and has been capable of working and taking care of himself financially and physically, and strives to be independent. At his own hearing the applicant’s son indicated in response to questioning that, having been assaulted, he is psychologically supported by his father. However, no evidence was before the Tribunal as presently constituted that he is substantially, let alone, psychologically reliant on his father.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 14 July and 10 September 2025