2214622 (Refugee) - [2025] ARTA 1833

2214622 (Refugee) [2025] ARTA 1833 (25 July 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Janly Quach
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2214622
Tribunal:General Member M Bruce
Date:25 July 2025

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

Statement made on 25 July 2025 at 3:17pm
CATCHWORDS
REFUGEE – protection visa – the People’s Democratic Republic of Laos – political opinion – anti-government – Free Laos Campaign – fears arbitrary arrest and detention – no evidence of claims – low profile – not considered a circumstance requiring ministerial intervention – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 9, 79
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 48, 65, 351, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1
Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505
Mohammed v Minister for Immigration & Anor [2017] FCCA 2356
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614; FMCA 13
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 28 September 2022 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of the People’s Democratic Republic of Laos, applied for the visa on 15 May 2017. The applicant’s claims as advanced before the department are that:
(a) The applicant is opposed to the Laotian government and is a supporter of the Free Laos Campaign.
(b) Opponents of the Laotian government are subject to arbitrary arrest and detention.
(c) Laotians who post material on social media asking for justice, freedom and democracy are subject to arbitrary arrest and detention.
(d) The applicant will be immediately arrested and imprisoned if returned.
The delegate accepted that the applicant is opposed to the Laotian government and refused to grant the visa on the basis that there was no evidence before them to suggest that the applicant had expressed their political opinion to any extent as to adversely raise their profile with the Laotian government prior to departing Laos or since their arrival in Australia.
In so finding, the delegate noted that there was no evidence of social media posts critical of the Laotian regime, or substantiation of the applicant’s claimed membership of the Free Laos Campaign, such as how they support the Free Laos Campaign or how they are involved in the Free Laos Campaign.
The delegate noted further that there was no evidence that the applicant had participated in any protests against the Laotian government or engaged in any political activities against the Laotian government since their arrival in Australia in September 2005.
The applicant appeared before the Tribunal via counsel on 7 May 2025 for a directions hearing. Counsel for the applicant indicated that the applicant maintained their claims as expressed in the delegate’s decision but would tender nothing further in support of their application and would be making a request that the Tribunal refer the matter to the Department of Home Affairs for consideration for Ministerial Intervention under section 351 of the Act.
The Tribunal noted counsel’s submissions and advised that it would first need to determine the application under review before it could consider whether to refer the matter to the Department of Home Affairs for consideration for Ministerial Intervention.
The Tribunal noted the absence of substantiation of the applicant’s claims or evidence corroborating those claims and indicated that this may occasion the Tribunal to form the view that the applicant’s claims are not credible.
The Tribunal issued an order under section 79(1) of the Administrative Review Tribunal Act 2024 that the applicant submit the following to the Tribunal by 13 June 2025:
·     A written statement setting out the applicant’s claims.
·     Any documents or evidence relied on to support the application.
·     A list of all documents and evidence relied on to support the application and, if relying on documents or evidence not presented before the Department, a written statement setting out why the documents or evidence were not presented before the Department.
·     Written statements from any witness that the applicant intends to call to give evidence or, if the applicant intends to rely on a witness statement without calling the witness to give evidence, a signed statement with identity documents confirming the witness’s signature.
The matter was adjourned for hearing on 20 June 2025.
In compliance with the order of 7 May 2025 counsel for the applicant filed written submissions dated 13 June 2025, a statutory declaration of the applicant’s spouse, and a letter of support from the applicant’s stepchildren.
In those submissions counsel for the applicant confirmed that the applicant maintained their claims as expressed in the delegate’s decision and that they tendered nothing further in support of their application.
Counsel’s submissions also set out the applicant’s request that, in the event the Tribunal affirms the decision under review, the Tribunal refer the matter to the Department of Home Affairs for consideration for Ministerial Intervention under section 351 of the Act and the grounds upon which the applicant relied in support of that request.
At hearing, the Tribunal noted that in considering the applicant’s request it would be obliged to have regard to the Ministerial Guidelines.[1]
[1] Department of Home Affairs, Minister's Guidelines on Ministerial Powers (s351, s417 and s501J), (Ministerial Guidelines, 29 March 2016)
The Tribunal noted that section 7 of the Ministerial Guidelines specifies circumstances where the Minister has predetermined that it is inappropriate to consider ministerial intervention and directed that the Department will finalise such case without referral to the minister.
The Tribunal noted that one of the circumstances proscribed by Section 7 is where the applicant’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred by Section 48 of the Migration Act 1958 (Cth) from applying for a Partner visa onshore
The Tribunal noted counsel’s submission that the Ministerial Guidelines do not require the Tribunal to have regard to the circumstances proscribed by Section 7 of the Ministerial Guidelines in making a referral and that it may refer an adverse decision to the Department if satisfied the issues involved fall within the unique or exceptional circumstances described in Section 4 of the Ministerial Guidelines.
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 Laotian passport that states that he is a national of the People’s Democratic Republic of Laos (Laos). The Tribunal accepts on the evidence before it, namely a copy of the Applicant’s passport, that the Applicant is a national of Laos and finds Laos as the receiving country for the purposes of the Act.
The Tribunal has had regard to the most recent report of the US Department of State[2] 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.
[2] 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 Tribunal accordingly aspects that person who express their political opinion to such an extent as to adversely raise their profile with the Laotian government may be subject to arbitrary arrest and detention.
The applicant was on notice as of receipt of the delegate’s decision of 28 September 2022 that their application was refused on the basis that their claims were unsubstantiated and lacked corroborative evidence.
The Tribunal put the applicant on notice as of the directions hearing of 7 May 2025 that the absence of further substantiation of the applicant’s claims or evidence corroborating those claims may occasion the Tribunal to form the view that the applicant’s claims are not credible.
The applicant has not submitted any substantiation of their claims or evidence corroborating those claims. There is accordingly no material before the Tribunal to substantiate or corroborate the applicant’s claim to have expressed their political opinion to any extent prior to departing Laos or since their arrival in Australia.
In particular, the Tribunal notes that there is no evidence before it of social media posts critical of the Laotian regime, or substantiation of the applicant’s claimed membership of the Free Laos Campaign such as how they support the Free Laos Campaign or how they are involved in the Free Laos Campaign.
The Tribunal notes further that there is no evidence before it that the applicant has participated in any protests against the Laotian government or engaged in any other political activities against the Laotian government since their arrival in Australia in September 2005.
The Tribunal is therefore not satisfied that the applicant expressed their political opinion to an extent as to adversely raise their profile with the Laotian government and finds accordingly that there is no real chance of the applicant being subject to arbitrary arrest and detention.
Having found that there is no real chance of the applicant being subject to arbitrary arrest and detention, the Tribunal is not satisfied that there is a real risk of the applicant being subject to arbitrary arrest and detention; the threshold for the ‘real risk’ element in the complementary protection criterion in section 36(2)(aa) being the same as that of ‘real chance’ in the refugee criterion in section 36(2)(a).[3]
[3] Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; See also MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13 (upheld on appeal in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614) at [19]
There being no other claims advanced by the applicant, or apparent on the material before the Tribunal, the Tribunal finds that the applicant does not meet the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa).
Ministerial Intervention.
Pursuant to Section 351 of the Migration Act 1958 (Cth) the Minister may, if they think it in the public interest to do so, substitute for a decision of the Tribunal a decision that is more favourable to the applicant.
The Minister has published Ministerial Guidelines indicating the circumstances in which the Minister may wish to consider intervening in a case and the circumstances in which the Minister does not wish to consider intervening.[4]
[4] Department of Home Affairs, Minister's Guidelines on Ministerial Powers (s351, s417 and s501J), (Ministerial Guidelines, 29 March 2016)
Section 7 of the Ministerial Guidelines specifies circumstances where the minister has predetermined that it is inappropriate to consider ministerial intervention and directed that the Department will finalise such case without referral to the minister.
The Tribunal notes the recent decision of the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1 which confirmed that the Minister may exercise the power to make such a procedural decision in advance, so as to never consider applications from a specified class of case.[5]
[5] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1 [16 per Kiefel CJ, Gageler and Gleeson JJ
One of the circumstances proscribed by Section 7 is where the applicant’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred by Section 48 of the Migration Act 1958 (Cth) from applying for a Partner visa onshore.
Section 8 of the Ministerial Guidelines authorises the Tribunal to refer an adverse decision to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in Section 4 of the Ministerial Guidelines.
The Tribunal notes that it is not directed in section 8 to have regard to the circumstances proscribed by Section 7 of the Ministerial Guidelines and, accordingly, it may refer an adverse decision to the Department if satisfied that there are unique or exceptional circumstances as described in Section 4 of the Ministerial Guidelines in circumstances that are proscribed by Section 7 of the Ministerial Guidelines.
The Tribunal notes that no duty arises during the Tribunal’s review of a decision of a delegate to consider a request that the Tribunal refer an adverse decision to the Department.[6]
[6] Mohammed v Minister for Immigration & Anor [2017] FCCA 2356 [29] per Driver J
The Tribunal has had regard to the statutory declaration of the applicant’s spouse and letter of support from the applicant’s stepchildren and finds that they support the grounds advanced in the applicant’s written statement which the applicant submits to be unique or exceptional circumstances as described in Section 4 of the Ministerial Guidelines.
While it remains open to the Tribunal to refer an application to the Department in circumstances proscribed by Section 7 of the Ministerial Guideline where it believes that the issues involved fall within the unique or exceptional circumstances described in Section 4 of the Ministerial Guidelines, it is not appropriate for the Tribunal to do so having had regard to:
a) Tribunal’s objectives in Section 9 of the Administrative Review Tribunal Act 2024 (Cth), and
b) The Ministerial guidelines which indicate that the Department will finalise such a referral by the Tribunal without referral to the minister.
The Tribunal notes that the applicant does not require the Tribunal’s imprimatur to seek ministerial intervention, and that the decision of this Tribunal does not prejudice the applicant’s ability to do so.
Having had regard to the matters set out above the Tribunal finds that it is not in the interest of the due administration of the Tribunal that it should consider whether this decision should be referred to the department pursuant to Section 8 of the Ministerial Guidelines.
DECISION
The Tribunal affirms the decision under review.
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.
…