2204270 (Refugee) - [2025] ARTA 2315

2204270 (Refugee) [2025] ARTA 2315 (22 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2204270
Tribunal:General Member S Vohra
Date:22 August 2025

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

Statement made on 22 August 2025 at 10:24am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – lesbian women in Malaysia – fears being arrested and imprisoned – decision on the papers – lack of detail – no supporting evidence – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIAC v SZQRB (2013) 210 FCR 505; [2013] HCATrans 323
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 22 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 2 October 2018. The delegate refused to grant the visa on the basis that that the applicant’s claims were not credible.
On 23 March 2022, the applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision. 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 19 August 2024, the Tribunal wrote to the applicant, inviting her to complete a Pre-Hearing Information form. The form asks, among other things, whether the applicant wants to give any further information about the claims for protection or whether there are any other reasons the applicant is afraid to return to her home country. The applicant returned the form, copying and pasting the claims as they were summarised by the delegate in the delegate’s decision. No further or additional information was provided.
On 17 July 2025, the Tribunal wrote to the applicant, inviting her to appear before the Tribunal on 8 August 2025 to give evidence and present arguments. The invitation asked her to read and complete an enclosed Response to hearing notice’…

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.

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Details

Case: [2025] ARTA 2315
Decision Date: 22 August 2025

CaseChat Overview and Summary

The case involves a Malaysian woman who applied for a protection visa in Australia, citing her fear of persecution due to her sexual orientation as a lesbian. The matter was heard and decided by the Tribunal without the presence of the applicant, who requested a decision on the papers. The primary legal issue was whether the applicant met the criteria for a protection visa under Australian law, specifically if she had a well-founded fear of persecution due to her membership in a particular social group.

The Tribunal examined the application and found it lacking in detail and supporting evidence. The applicant did not provide any additional information despite multiple requests from both the delegate and the Tribunal. The Tribunal noted that the application form contained broad claims without specific details, such as dates, names, or documentary evidence. The Tribunal concluded that the application did not credibly support the applicant's claims of persecution in Malaysia due to her sexual orientation.

In affirming the delegate’s decision, the Tribunal held that the applicant's claims were not credible and lacked substantiation. The Tribunal emphasised the need for detailed and corroborative evidence to establish a well-founded fear of persecution. Given the absence of such evidence, the Tribunal found that the applicant did not meet the criteria for a protection visa. Consequently, the decision to refuse the visa application was upheld.

Orders

Orders of the court

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Background

Background to the litigation

With the information before it, the Tribunal is able to be satisfied as to the applicant’s identity, determine the applicant’s receiving country and form conclusions as to whether the applicant meets the criteria for a protection visa. The Tribunal is therefore satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.BACKGROUND The applicant is [an age] year old woman who is the holder of a Malaysian passport. She arrived in Australia [in] February 2018 on an Electronic Travel Authority, returning to Malaysia for 3 months from end of April to July 2018, and arriving again in Australia [in] July 2018 on an Electronic Travel Authority. The delegate’s decision states that she sought a subclass 600 Visitor visa onshore for business reasons in April 2018, which was deemed invalid. She first lodged a protection visa application on 21 September 2018 which was deemed invalid and then lodged a valid protection visa application on 2 October 2018.Evidence before the Department The information provided to the Department in support of the applicant’s claims to engage Australia’s protection obligations was contained in her protection visa application form. In that form, the applicant claimed as follows:a.The applicant left Malaysia as she is in a relationship with a woman and the majority of Malaysians are Muslims with strong religious beliefs.b.She has experienced lots of ‘bad situations’ which have affected her career, her life, her family and her relationship. c.In Malaysian society, ‘people like her’ are not allowed to be together in public or live a normal life. They are despised and, if the relationship becomes known, they can be arrested and imprisoned.d.If she returns, she will not be allowed to be together with her partner in public. She will be ‘arrested and imprisoned by the society’.e.No authorities or organisations can protect her. As stated above, the applicant was requested by the delegate, by way of letter, to provide further information about the claims but she did not do so. The delegate refused the visa, writing:I do not find the applicant’s claim of being a lesbian woman or what she claims has adversely happened to her because of her sexuality to be credibly supported by on the evidence and information currently before me.I therefore do not accept the applicant is lesbian as claimed or find the assertion that she fears harm in Malaysia for reasons of her membership of a particular social group, as a lesbian from Malaysia to be credible. I have considered the applicant’s claims but due to the lack of detail and evidence in her application and her failure to provide further information, I am not satisfied that her claims are genuine. In light of these concerns, I find that the applicant’s claims are neither credible nor credibly supported by meaningful corroborating information or evidence.Evidence before the Tribunal The Tribunal has before it a copy of the departmental file, containing the applicant’s protection visa application.

Evidence

Evidence Before The Court

No other information or supporting evidence was provided to the Tribunal and, as stated above, the applicant did not complete a form to provide further information and declined to attend a hearing, requesting that the Tribunal make a decision on the papers.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

First, however, the Tribunal must consider and be satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, in accordance with s106(3)(c) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).Should the Tribunal proceed to reach a decision without a hearing? For the reasons that follow, the Tribunal has decided to make a decision without a hearing. Section 106 (3) of the ART Act outlines circumstances in which the Tribunal may make a decision without a hearing. These include if: ·the only parties to the proceeding are the applicant and a non-participating party to the proceeding, and ·the applicant requests the Tribunal to do so, and ·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. In this case, the only parties in the proceeding are the applicants and a non-participating party. The Tribunal is satisfied that the first criterion is met. Further, as outlined above, the Tribunal invited the applicant to attend a hearing, but the applicant responded by asking for the Tribunal to make a decision on the papers without a hearing. As well as checking the relevant box, the applicant explicitly typed this request twice on the form. The Tribunal is therefore satisfied that the second criterion is also met. The Tribunal must now determine if the third criterion is met. That is, can the issues for determination in the proceeding be adequately determined in the absence of the parties to the proceeding? The Tribunal has before it a copy of the Department’s file which includes a copy of the bio-page of the applicant’s passport and her protection visa application form, which contains her biographical information and claims for protection. The applicant has been provided several opportunities to provide any and all information about her claims as follows:·The protection visa application form completed by the applicant stated that they should provide all the details about why they are seeking protection and any supporting documentation, as a decision may be made on the information provided in the application only. ·The applicant was sent an acknowledgement of receipt letter by the Department, which states in part that a decision may be made on the application without requesting further information and that the applicant can bring any additional information they would like considered to the appointment for the collection of personal identifiers or provide it through ImmiAccount or by mail.·As referred to in the delegate’s decision, the delegate wrote to the application requesting further information, under s 56 of the Act. The delegate invited the applicant to provide further information to assist the delegate in assessing whether the claims are genuine. The delegate noted that the claims lacked substantiating details such as dates and names. Further, the applicant had not provided any documents or other evidence to corroborate or support the claims. However, the applicant did not respond or furnish any further information. ·The Tribunal provided the applicant with the opportunity to complete a Pre-Hearing Information Form which asks the applicant if she wants to provide more information about her claims for protection and whether there are any other reasons she is afraid to return to her home country. The applicant only cut and paste the summary of the claims, as written in the delegate’s decision. ·The Tribunal invited the applicant to appear at a hearing, however the applicant wrote that she would not attend and requested a decision to be made on the papers, without holding a hearing.

Ratio Decidendi

Legal Principle Established

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