2212998 (Refugee) - [2025] ARTA 1681

2212998 (Refugee) [2025] ARTA 1681 (11 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2212998
Tribunal:General Member M Bruce
Date:11 July 2025
Place:Adelaide
Decision:The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the applicant meets the criteria for the grant of a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 11 July 2025 at 4:07pm
CATCHWORDS
REFUGEE – protection visa – People’s Democratic Republic of Laos – political opinion – anti-government views expressed online – reported on government corruption and human rights abuses – serious restrictions on freedom of expression – taskforce to monitor social media – violence and killings against human rights defenders – subject to arbitrary arrest, detention, and torture – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 79
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
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 30 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant who claims to be a national of the People’s Democratic Republic of Laos, applied for the visa on 6 July 2018. The applicant’s claims as advanced before the Department are that:
a) The applicant expressed dissent against the Laotian government online.
b) The applicant will be subject to arbitrary arrest, detention, and torture if returned to Laos.
In support of the application the applicant submitted several images stated to be excerpts of the applicant’s [Social media 1] account in the name [Account name 1]. These excerpts purport to demonstrate the applicant sharing material from various other [Social media 1] accounts. The material is in a language other than English. No translation or summary of the material was provided.
The delegate refused to grant the visa on the basis that there was no real chance that the applicant would be persecuted for reason of his political opinion if returned to Laos and, accordingly, no real risk that the applicant would suffer significant harm if returned to Laos.
The delegate formed this view on the basis that the applicant has not provided any details or evidence of his activities in Laos to indicate a profile as a political activist or opponent of the government. The delegate noted that the applicant has not claimed to have suffered any harm from the Lao authorities in the past nor was there evidence before the delegate to suggest that the applicant was of adverse interest to the Laotian authorities when he last left Laos. The delegate noted further that the applicant had not provided any evidence that he had been involved in any political activity in Australia that would raise his profile with the Laotian authorities.
The delegate had regard to the applicant’s submissions referred to at paragraph (3) above, noting that it was untranslated and unexplained as to its relevance to his claims, and found that it did not indicate that the applicant possessed a profile as an opponent of the Laotian government.
The applicant appeared before the Tribunal on 7 May 2025 for a direction hearing. The applicant maintained their claims as expressed in paragraph (2) above before the Tribunal.
The Tribunal issued, pursuant to section 79(1) of the Administrative Review Tribunal Act 2024, orders to the effect that the applicant set out the nature and extent of their expression of dissent against the Laotian government and provide all evidence in support of their claim.
The applicant submitted a signed statement setting out that they are a member of [Movement 1] as of 2015. The applicant stated that he was unable to participate in meetings or share material on social media whilst in Laos for fear of reprisal. The applicant stated that would gather evidence of government corruption and relay this to members of [Movement 1] living abroad. The applicant stated that, in 2016, a member of [Movement 1] was arrested in Laos prompting a number of members to flee the country. —The applicant stated that a number of members were unable to escape and have not been seen since. The applicant stated that he was able to flee to Australia in 2018.
The applicant submitted several excerpts of the applicant’s [Social media 1] account in the name [Account name 2] sharing material from various other [Social media 1] accounts criticising the Laos Government, calling attention the disappearance of several members of the Lao Organisation for Democracy and others, with an accompanying NAATI certified translation.
The applicant further submitted several screenshots of video calls purported to have been made with various members of [Movement 1] and a signed statement from a Mr [A] indicating that the applicant is a member of [Movement 1].
The applicant also submitted several news articles indicating that Mr [A] is a founder of [Movement 1], that the group was set up to promote human rights and democracy in Laos, and that [Mr A] has been recognised as a refugee by the United Nations and resettled in [Country 1].
The applicant appeared before the Tribunal on 18 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from a Mr [A], The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and English languages.
At hearing the applicant noted the recent report of a Lao democracy activist having been seriously wounded in knife attack in France. The Tribunal notes that this is corroborated by various news articles indicating that Lao democracy activist Joseph Akaravong, who was granted asylum in France in 2022, was attacked in southwestern France by an unidentified assailant.[1]
[1] See for example, Radio Free Asia, Lao democracy activist seriously wounded in knife attack in France, 16 June 2025 < Lao democracy activist seriously wounded in knife attack in France – Radio Free Asia>
The Tribunal noted that both [Social media 1] accounts referred to at paragraphs (3) and (10) above are under a nom-de-plume and put it to the applicant that the authorities may be unable to identify him. The applicant testified that each account contains photos of the applicant and are readily identifiable to him.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 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
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.
REASONS AND FINDINGS
The applicant travelled to Australia on a valid Loation passport that states that the applicant is a national of Laos. The Tribunal accepts on the basis of the evidence before it, namely a copy of the applicant’s passport, that the applicant is a national of Laos and finds Loas as the receiving country for the purposes of the Act.
The applicant’s testimony before the Tribunal was consistent with their claims as advanced in their application to the department and, having taken into account the overall consistency and coherence of the applicant’s evidence, the Tribunal finds the applicant’s testimony to be credible.
The Tribunal notes also that the applicant’s account of his involvement with [Movement 1] was corroborated by the testimony of Mr [A]. The Tribunal finds Mr [A’s] testimony to be credible and notes that it is corroborated by the articles referred to at paragraph (12) above.
The Tribunal has had regard to the guidance of the Federal Court in SZLVZ v Minister for Immigration and Citizenship[2] that, in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims.
[2] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [25] referring to Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, per Beaumont J at 451 where his Honour acknowledged a need for decision-makers to have a liberal attitude in the proof of refugeehood, as claimants may have difficulties proving their allegations citing Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 per Gaudron J at 413 who noted that questions of refugee status usually need to be decided in circumstances which don’t permit facts as they exist in the country of nationality to be precisely ascertained.
Accordingly, the Tribunal accepts that:
a)    The applicant is a member of [Movement 1] having joined in 2015.
b)    The applicant reported on instances of government corruption and human rights abuses in Laos and shared these reports to members of the group online.
c)    The applicant has expressed views critical of the government on social media.
The Tribunal has had regard to the most recent report of the US Department of State[3] which states that there are significant human rights issues in Laos including credible reports of arbitrary or unlawful killings (including extrajudicial killings), cruel, inhuman, or degrading treatment or punishment by government officials, arbitrary arrest or detention, and serious problems with the independence of the judiciary.
[3] United States Department of State, 2023 Country Reports on Human Rights Practices - Laos, 22 April 2024
The report also notes that there are serious restrictions on freedom of expression, including violence against journalists, censorship, and the use of criminal defamation laws. There are also serious restrictions on internet freedom and substantial interference with the freedom of peaceful assembly and freedom of association. The report further states that there are serious and unreasonable restrictions on political participation, serious government corruption, and serious government restrictions on domestic and international human rights organizations.
The report also notes that online anonymity is prohibited by law and that the government, which controls domestic internet servers, sporadically monitors internet usage. The government also reportedly operates a task force to monitor social media use specifically.
The report notes that statements critical of the government or the LPRP are prohibited by law and that the Ministry of Technology and Communications may direct internet service providers to terminate internet services of users found violating this law. Ministry instructions warn social media users not to post content or comments that contained criticism of the government and the report notes that observers report that posts or articles critical of the government suddenly disappear from social media sites.
The report also notes reports that the government or its agents committed arbitrary or unlawful killings, including extrajudicial killings, of human rights defenders. The report cites the example of a former Lao activist who migrated to Thailand and was recognized formally as a refugee by the UN High Commissioner for Refugees, Bounsuan Kitiyano, who was found shot to death on a roadside in Ubon Ratchathani Province.
Similarly, the report notes that an online commentator and activist who contributed to social media platforms critical of the government, Anousa “Jack” Luangsuphom, was shot in the face and chest by an unknown gunman in a coffee shop. The report notes that the government did not investigate or prosecute the perpetrator of this attack.
The Tribunal has also had regard to the recent report of a Lao democracy activist having been seriously wounded in knife attack in France referred to at paragraph (14) above.
The Tribunal is satisfied, pursuant to section 5J(1)(b) of the Act to that there is a real chance that applicant will be subject to arbitrary arrest, detention, and torture if returned to Laos. The Tribunal is further satisfied, pursuant to section 5J(4) that this amounts to serious harm and that it is directed at the applicant on the basis of his political opinion.
The Tribunal is satisfied that, as the state is the agent of harm, effective protection measures are not available to the applicant pursuant to section 5J(2) of the Act and that the real chance of persecution relates to all areas of a receiving country pursuant to section 5J(1)(c) of the Act.
The Tribunal has further considered whether, pursuant to section 5J(3) of the Act, whether the applicant could take reasonable steps to modify his behaviour so as to avoid the harm.
The Tribunal notes that the applicant faces harm on the basis of his political beliefs and pursuant to section 5J(3)(b), the applicant cannot be compelled to conceal them. Accordingly, there are no steps that the applicant could take to modify his behaviour so as to avoid the harm.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
Having concluded that the applicant satisfies the refugee criterion in s 36(2)(a), the Tribunal has not considered the alternative criterion in s 36(2)(aa).
DECISION
The Tribunal sets aside the decisions under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…