2216542 (Refugee) - [2025] ARTA 1531

2216542 (REFUGEE) [2025] ARTA 1531 (7 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2216542
Tribunal:General Member L Hill
Date:7 May 2025

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

Statement made on 07 May 2025 at 10:30am

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), ss 99, 106
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 379, 426, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Minster for Immigration and Border Protection v SZVFW [2018] HCA 30

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 8 November 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 Indonesia, applied for the visa on 13 March 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
On 11 November 2022, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the decision made by a delegate of the Minister for Home Affairs.
On 14 April 2025, the Tribunal invited the applicant to a hearing at the Brisbane registry, scheduled for 6 May 2025. The applicant did not appear before the Tribunal on the day and at the scheduled time and place.
On 14 October 2024, the Administrative Appeals Tribunal (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.
Can a decision be made without holding a hearing?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision in a proceeding without a hearing.
Relevantly, s 106(5) of the ART Act states that if a party to the proceeding (other than a non-participating party) fails to a appear at a case event, despite having received appropriate notice of the case event’s date, time, and place, then the…

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 1531
Decision Date: 7 May 2025

CaseChat Overview and Summary

The case involves an Indonesian national who applied for a protection visa in Australia but failed to attend the scheduled hearing, resulting in the Administrative Review Tribunal (the Tribunal) affirming the decision under review. The applicant claimed to be a member of a particular social group, specifically a homosexual man, facing persecution in Indonesia. The Tribunal was tasked with determining whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) and whether the decision to dismiss the application without a hearing was appropriate.

The central legal issues were whether the applicant had a well-founded fear of persecution based on his sexual orientation, making him a refugee under the Act, and whether the Tribunal could lawfully proceed without a hearing given the applicant's non-attendance. The applicant's claims were assessed for credibility and sufficiency, considering the absence of further evidence or arguments presented to the Tribunal.

The Tribunal found that no additional information or evidence had been provided by the applicant since the initial application, and the claims remained vague and unsubstantiated. Given the applicant's failure to attend the hearing despite proper notice, the Tribunal exercised its discretion under section 106(5) of the Administrative Review Tribunal Act 2024 (Cth) to proceed without a hearing. The Tribunal concluded that the applicant did not meet the criteria for a protection visa and that the decision to dismiss the application without further consideration was justified.

The Tribunal affirmed the decision to dismiss the application for a protection visa, upholding the initial determination that the applicant did not qualify for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

To date, no further material, information, documents and/or written arguments or submissions relating to the applicant’s claims for protection have been provided to the TribunalCONSIDERATION 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 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

Decision

Reasons for decision

On 14 October 2024, the Administrative Appeals Tribunal (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.Can a decision be made without holding a hearing? Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision in a proceeding without a hearing. Relevantly, s 106(5) of the ART Act states that if a party to the proceeding (other than a non-participating party) fails to a appear at a case event, despite having received appropriate notice of the case event’s date, time, and place, then the Tribunal can proceed to make a decision without a hearing. Section 4 of the ART Act defines a case event as including the hearing, or part of the hearing, of the proceeding. On 14 April 2025, the Tribunal invited the applicant to a hearing at the Brisbane registry, scheduled for 6 May 2025. Amongst other things, the hearing invitation advised the applicant to contact the Tribunal as soon as possible if he was not available to attend or believed that he would experience any difficulties in participating in the hearing as arranged. The applicant was asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal. The applicant was also asked to provide all documents he intended to rely on in support of his case by 29 April 2025, if he had not done so already. The hearing invitation also sets out what would happen if the applicant did not appear at the scheduled hearing. The applicant was advised that the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear or may dismiss the application without any further consideration of the application or the information before the Tribunal. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) of the Act, and the notice has not been returned to sender. The Tribunal is satisfied that the applicant received appropriate written notice of the date, time, and place of the hearing.[1] [1] Administrative Review Tribunal Act 2024 (Cth) paras 106(5)(b)-(c). The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal allowed for a period after the scheduled hearing time for the applicant to appear or contact the Tribunal. There was no contact from the applicant during this period. Accordingly, the hearing was cancelled due to the applicant’s non-attendance. The Tribunal is satisfied that the applicant failed to appear at the scheduled hearing.[2] [2] Administrative Review Tribunal Act 2024 (Cth) para 106(5)(a).

Ratio Decidendi

Legal Principle Established

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