2206998 (Refugee) - [2025] ARTA 2015

2206998 (REFUGEE) [2025] ARTA 2015 (29 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2206998
Tribunal:General Member B Butler
Date:29 August 2025

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

Statement made on 29 August 2025 at 11:40am
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – gender identity variously described, stated at hearing as transgender man – discrimination, social exclusion and systemic inequality, and political and legal hostility – identity not accepted by mother, and relationships with women not accepted by their families – confronted in public – one relationship, no public disclosure or medical consultation in Australia – return visit and delay in applying for protection – gender identity accepted – country information – general tolerance and gender and marriage equality laws, with public discussion of gender recognition bill – limited information about conditions for transgender men – low risk of official discrimination – experiences distressing but not serious harm as defined – economic conditions and employment opportunities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FMCA 78; [2013] FCA 751
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
WZARI v MIMAC [2013] FCA 788
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

The applicant is a [Age]-year-old national of Thailand who identifies as a transgender man. 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 24 September 2019. The delegate refused to grant the visa on 13 May 2022.
The applicant applied to the former Administrative Appeals Tribunal (AAT) for review of the decision on 13 May 2022.
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.
The applicant appeared before the Tribunal on 25 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant has described their gender identity in…

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 2206998 (Refugee)

Details

AGLC: 2206998 (Refugee) [2025] ARTA 2015
Case: [2025] ARTA 2015
Decision Date: 29 August 2025

CaseChat Overview and Summary

The case involves an applicant from Thailand seeking a protection visa in Australia, identifying as a transgender man. The primary issue before the court was whether the applicant faced a real chance or risk of harm in Thailand due to his gender identity or for any other reason, warranting the grant of a protection visa. The applicant argued that he faced discrimination, social exclusion, and systemic inequality in Thailand due to his gender identity, including rejection from family, school, workplaces, and government institutions. He claimed to have been denied access to appropriate facilities, verbally harassed in public, and rejected for jobs. He also cited the political and legal climate in Thailand as increasingly hostile towards the LGBTQ+ community and expressed concerns about potential legal consequences or surveillance from the government.

The court considered the evidence provided by the applicant, including his personal experiences of discrimination and the broader social and legal environment for LGBTQ+ individuals in Thailand. The court noted the passage of the same-sex marriage law in Thailand in January 2025 and the general tolerance towards LGBTQIA+ individuals, with community organisations supporting LGBTQIA+ causes. While acknowledging the applicant's experiences of discrimination and assault, the court concluded that the applicant would be able to establish himself again in Thailand and find employment in a largely tolerant society, despite potential disparaging comments. The court found that the applicant did not face a real chance or risk of harm on the basis of his gender identity or appearance now or in the reasonably foreseeable future.

The court's reasoning led to the conclusion that the applicant did not meet the criteria for a protection visa, as there were no substantial grounds for believing that he faced a real risk of significant harm if removed from Australia to Thailand. The decision of the delegate to refuse the application was affirmed. Consequently, the court did not grant the protection visa to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

In the response to hearing notice form, the applicant indicated that he would like the Tribunal to take evidence from a witness but did not specify any witnesses. At the hearing, the applicant confirmed that this was an error and that he did not intend to propose that the Tribunal take evidence from any witnesses.BACKGROUNDEvidence before the Department The applicant made claims for protection in the protection visa application, which are summarised as follows:·His family does not believe in gay marriage and said that marriage is between a man and a woman and is ordained by God and that same-sex marriage is counterfeit.·Thailand’s growing moral and political panic about sexuality has produced draft laws that could criminalise sex outside marriage and also same-sex conduct.·He is worried about legal action from the constitutional court.·He cannot abide by the status quo and is willing to stand up and be counted. Australia provides a good environment, and he is happy and safe. The delegate refused the application, finding that the applicant identifies as a homosexual and having regard to country information about the situation for LGBT people in Thailand, including that at the time of the delegate’s decision same-sex marriage were not legally recognised in Thailand, they were not satisfied that the applicant faced a real chance of persecution for their sexual orientation in Thailand. They were also not satisfied that the applicant faced a real risk of significant harm in Thailand.Evidence before the TribunalPre-hearing statement The applicant provided a submission to the Tribunal, dated 5 June 2025. In the submission, he stated that he identifies as a ladyboy (transgender woman) and that while Thailand is often perceived as tolerant of LGBTQ+ individuals, the reality is that it is dangerous and unaccepting for such people. The applicant claimed that he had experienced discrimination, social exclusion and systemic inequality throughout life, including during childhood, because of his gender identity. He claimed that he had faced rejection from many areas of society, such as his family, school, workplaces and government institutions, and that he felt constantly judged, mocked and marginalised. He referred to being denied access to public restrooms that matched his gender identity, which led to embarrassment and humiliation, and that he had been verbally harassed in public spaces, and that he had been rejected for jobs on the basis that the position was ‘not suitable’ for someone like him. He also claimed to have been denied appropriate medical care in hospitals when presenting as a woman. He claimed that the political and legal climate in Thailand has become increasingly hostile toward the LGBTQ+ community, and referred to rulings of the Thai Constitutional Court that diverse gender express is viewed as ‘immoral’ and ‘against Thai law and culture’, and that these comments made him feel illegal and socially condemned. He claimed that he may face legal consequences or surveillance from the government for expressing who he truly is, and that the possibility of being criminalised for living as his authentic self is real and terrifying.

Evidence

Evidence Before The Court

The delegate refused the application, finding that the applicant identifies as a homosexual and having regard to country information about the situation for LGBT people in Thailand, including that at the time of the delegate’s decision same-sex marriage were not legally recognised in Thailand, they were not satisfied that the applicant faced a real chance of persecution for their sexual orientation in Thailand. They were also not satisfied that the applicant faced a real risk of significant harm in Thailand.Evidence before the TribunalPre-hearing statement The applicant provided a submission to the Tribunal, dated 5 June 2025. In the submission, he stated that he identifies as a ladyboy (transgender woman) and that while Thailand is often perceived as tolerant of LGBTQ+ individuals, the reality is that it is dangerous and unaccepting for such people. The applicant claimed that he had experienced discrimination, social exclusion and systemic inequality throughout life, including during childhood, because of his gender identity. He claimed that he had faced rejection from many areas of society, such as his family, school, workplaces and government institutions, and that he felt constantly judged, mocked and marginalised. He referred to being denied access to public restrooms that matched his gender identity, which led to embarrassment and humiliation, and that he had been verbally harassed in public spaces, and that he had been rejected for jobs on the basis that the position was ‘not suitable’ for someone like him. He also claimed to have been denied appropriate medical care in hospitals when presenting as a woman. He claimed that the political and legal climate in Thailand has become increasingly hostile toward the LGBTQ+ community, and referred to rulings of the Thai Constitutional Court that diverse gender express is viewed as ‘immoral’ and ‘against Thai law and culture’, and that these comments made him feel illegal and socially condemned. He claimed that he may face legal consequences or surveillance from the government for expressing who he truly is, and that the possibility of being criminalised for living as his authentic self is real and terrifying. He also claimed that there is no effective protection available in Thailand because state officials hold prejudices against LGBTQ+ people and that complaints of discrimination or abuse are often ignored or dismissed. He claimed that, in his experience, seeking help from government agencies or the police had led to further humiliation and mistreatment. He also referred to violence against LGBTQ+ people occurring frequently in Thailand and that perpetrators are not held accountable, which creates an atmosphere of fear and helplessness. He referred to being sexually harassed by men in public and that no one offered to help, and that the police mocked him and questioned his appearance when he reported the incidents. He has heard from friends in the LGBTQ+ community who have been physically assaulted and killed without any serious investigation by the authorities.The hearing

Decision

Reasons for decision

The applicant previously claimed that he was concerned about comments made by the Thai Constitutional Court in respect of same-sex relationships. The law in Thailand has changed since the applicant came to Australia and made the protection visa application, and as noted above, same-sex marriage has been available in Thailand since January 2025. While I acknowledge it would have been distressing for the applicant and the LGBTQIA+ community in Thailand to read about the comments from the Thai Constitutional court, the passing of the same-sex marriage law has overtaken the position taken by the Thai Constitutional court in 2021. Further, the comments of the court were in relation to whether retaining marriage as between a man and woman was consistent with the Thai constitution, and while they may have reflected a degree of homophobia and/or transphobia on the part of the court, they did not seek to criminalise same-sex relationships or activity in any way. I do not accept that the applicant faces a real chance or real risk of any harm in relation to previous comments of the Thai Constitutional Court or because same-sex marriage was previously not available in Thailand.Conclusion I acknowledge that the situation for the applicant as a transgender man is complex in Thailand. I also acknowledge that the applicant would prefer to reside in regional Australia and continue to work in [work sector] or open his own business (which he said he would like to do) and contribute to the local community. The information before me indicates that Thailand is overall a society which is tolerant of LGBTQIA+ individuals, with transgender men not being as visible as others in the LGBTQIA+ community, although this is changing. Community organisations continue to support LGBTQIA+ causes, with same-sex marriage commencing in January 2025. I accept that the applicant has experienced some discrimination in Thailand, in the form of negative comments being made about him, and has been assaulted. He has not been accepted by his family, however, he was able to establish himself in Samut Prakan and find employment and I find that he would be able to do so again and live in a largely tolerant society when it comes to LGBTQIA+ matters, although disparaging comments may be made from time to time as they are in many societies. Considering the applicant’s situation cumulatively, I am not satisfied on the basis of the material before me that he faces a real chance or real risk of harm on the basis of his gender identity or appearance now or in the reasonably foreseeable future, or for any other reason. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

Ratio Decidendi

Legal Principle Established

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