2206340 (Refugee) - [2025] ARTA 2199

2206340 (Refugee) [2025] ARTA 2199 (2 October 2025)

DECISION AND

REASONS FOR DECISION

Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2206340
Tribunal:General Member T. Griffiths
Date:2 October 2025

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

Statement made on 02 October 2025 at 3:22pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – fears becoming infected with COVID-19 – returned to home country – claims no longer valid – requested decision on the papers – severe traumatic brain injury – no current health management plan – new claim – political opinion – anti-government – no genuine fear in returning to home country – decision under review affirmed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth), ss 55, 106
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 357A, 359A, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Bushell v Repatriation Commissioner (1992) 175 CLR 408
EIZ20 v Child Support Registrar (2023) FedCFamC2G 637

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 April 2022 to refuse to grant the four applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant a citizen of Indonesia, applied for the visa on 19 April 2021. The second named applicant is the husband of the first named applicant. The third named applicant is the daughter of the first and second named applicant. The fourth named applicant is the son of the first and second named applicant. References herein to the applicant are references to the first named applicant.
In the protection visa application the second, third and fourth named applicants do not make claims in their own right. The second, third and fourth named applicants claim on the basis of being members of the same family unit, as defined in s5(1) of the Act.
The delegate refused to grant the visas on the basis the applicants are not persons in respect of whom Australia has protection obligations.

BACKGROUND

The first named applicant was born in Banyuwangi, East Java Province, Indonesia on [date]. The second named applicant was born in Banyuwangi, East Java Province, Indonesia on [date]. They were married in Banyuwangi, [in] September 2013. The third named applicant was born in Banyuwangi, Indonesia on [date]. The fourth named applicant was born in Banyuwangi, Indonesia on [date].
The first named applicant arrived in Australia from Indonesia with the other applicants [in] January 2014. The first and second applicants speak Indonesian and some English. As at the date of the application the form states the children speak Indonesian only.

Evidence before the Department

The applicant’s claims for protection as contained in the protection visa application lodged 19 April 2021 were summarised by the Delegate…

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 2206340 (Refugee)

Details

AGLC: 2206340 (Refugee) [2025] ARTA 2199
Case: [2025] ARTA 2199
Decision Date: 2 October 2025

CaseChat Overview and Summary

The matter before the Administrative Review Tribunal concerns the refusal of a protection visa application by an individual from Indonesia, who sought asylum in Australia on the basis of fear of contracting COVID-19 and due to political opinions against the government. The Delegate for the Minister for Home Affairs declined the application, finding no evidence of the applicant being targeted for reasons under the Act and no evidence suggesting the applicant would face a greater risk from the COVID-19 pandemic than the general population. The applicant sought a review of this decision with the Administrative Appeals Tribunal, which subsequently invited the applicant to provide further information and evidence to support their claims. The Tribunal requested a decision on the papers after the applicant opted not to participate in a scheduled hearing.

The primary legal issue the Tribunal needed to address was whether the applicant's claims were valid and if they met the criteria for a protection visa under the relevant legislation. This involved examining the applicant's fears of contracting COVID-19 and the risk of harm in returning to Indonesia, as well as assessing the credibility of the political opinion claim. The Tribunal also needed to consider whether the applicant's absence from Australia, as evidenced by movement records, impacted the validity of the application.

The Tribunal reviewed the applicant's submissions and the evidence provided. It noted that the applicant had returned to Indonesia, and as such, was no longer physically present in Australia, which is a criterion for the grant of a protection visa. The Tribunal found that there was no evidence to suggest the applicant would be targeted for reasons within the Act, nor was there evidence of a greater risk of harm from the COVID-19 pandemic than the general population. Furthermore, the Tribunal determined that the applicant did not have a genuine fear of returning to Indonesia due to political opinions against the government. Consequently, the Tribunal affirmed the Delegate's decision to refuse the application.

In summary, the Administrative Review Tribunal upheld the Delegate's decision to refuse the protection visa application. The Tribunal found that the applicant's claims did not meet the criteria for a protection visa under the relevant legislation, given the absence of evidence to substantiate the fears of harm and the absence from Australia. The Tribunal's decision was based on the assessment of the applicant's claims and the evidence presented, affirming that the Delegate's decision was correct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Delegate for the Minister for Home Affairs issued a decision on 22 April 2022. The Delegate found there was no information that the applicant would be targeted for reasons within s5 (1)(a) of the Act and further no evidence to suggest the applicant would personally suffer a greater risk of harm from the covid pandemic than the population generally. The Delegate refused the application.Evidence before the Tribunal On 5 March 2022 the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal, and which application is now before the Administrative Review Tribunal, (the Tribunal). On 23 July 2025 the Tribunal sent to the applicant an email with a link to a Pre- Hearing Invitation Form which the applicant was requested to complete and return and which asked as follows:1 What were the protection claims you made to the Department of Home Affairs (Department)? Please provide details in the space below (if there is not enough space, please attach a written statement). 2 Do you still have the same protection claims? ☐ Yes. Go to Part B ☐ Yes and I have additional claims now. Continue to next question ☐ No, I have different claims now. Continue to next question. 3 Please provide details of the additional or different protection claims to be considered by the Tribunal in the space below (if there is not enough space, please attach a written statement). 4 Why did you not advise the Department of the additional or different protection claims?Request for Protection Visa Information form 3 PART B – New evidence or information 5 Do you have new evidence or information to support your protection claims? ☐ Yes. Continue to the next question ☐ No. Go to Part C. 6 Please provide all new supporting evidence and information to the Tribunal. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator. On 28 July 2025 the Tribunal sent a letter of that date with a Notice of Hearing scheduled for 26 August 2025. The letter requested provision of written submissions and signed declarations from the applicants and any witness statements. On 12 August 2025 the applicant completed and returned the Response to Hearing form and which stated she would not participate in the hearing and requested a decision on the papers without holding a hearing. Curiously the completed form indicated the second applicant would participate in the hearing. The form further indicated there were no documents to be relied on and no witnesses. On 19 August 2025 the Tribunal sent a letter addressed to the first, third and fourth applicants by their representative. The letter was an invitation to comment on information in Movement Records from the Department which showed those parties had departed Australia for Indonesia in April 2024 and had not returned. The letter advised that a criteria for the grant of a protection visa is that the applicant is in Australia.

Decision

Reasons for decision

On 20 April 2021, the applicant was sent an acknowledgement of valid application letter which advised that they could provide additional information relating to their claims and how they could do this. The letter also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information.Delegate’s Decision The Delegate for the Minister for Home Affairs issued a decision on 22 April 2022. The Delegate found there was no information that the applicant would be targeted for reasons within s5 (1)(a) of the Act and further no evidence to suggest the applicant would personally suffer a greater risk of harm from the covid pandemic than the population generally. The Delegate refused the application.Evidence before the Tribunal On 5 March 2022 the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal, and which application is now before the Administrative Review Tribunal, (the Tribunal). On 23 July 2025 the Tribunal sent to the applicant an email with a link to a Pre- Hearing Invitation Form which the applicant was requested to complete and return and which asked as follows:1 What were the protection claims you made to the Department of Home Affairs (Department)? Please provide details in the space below (if there is not enough space, please attach a written statement). 2 Do you still have the same protection claims? ☐ Yes. Go to Part B ☐ Yes and I have additional claims now. Continue to next question ☐ No, I have different claims now. Continue to next question. 3 Please provide details of the additional or different protection claims to be considered by the Tribunal in the space below (if there is not enough space, please attach a written statement). 4 Why did you not advise the Department of the additional or different protection claims?Request for Protection Visa Information form 3 PART B – New evidence or information 5 Do you have new evidence or information to support your protection claims? ☐ Yes. Continue to the next question ☐ No. Go to Part C. 6 Please provide all new supporting evidence and information to the Tribunal. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator. On 28 July 2025 the Tribunal sent a letter of that date with a Notice of Hearing scheduled for 26 August 2025. The letter requested provision of written submissions and signed declarations from the applicants and any witness statements. On 12 August 2025 the applicant completed and returned the Response to Hearing form and which stated she would not participate in the hearing and requested a decision on the papers without holding a hearing. Curiously the completed form indicated the second applicant would participate in the hearing. The form further indicated there were no documents to be relied on and no witnesses. On 19 August 2025 the Tribunal sent a letter addressed to the first, third and fourth applicants by their representative. The letter was an invitation to comment on information in Movement Records from the Department which showed those parties had departed Australia for Indonesia in April 2024 and had not returned. The letter advised that a criteria for the grant of a protection visa is that the applicant is in Australia.

Ratio Decidendi

Legal Principle Established

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