2300864 (Refugee) - [2025] ARTA 770

2300864 (REFUGEE) [2025] ARTA 770 (20 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2300864
Tribunal:General Member J Maclean
Date:20 January 2025

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

General Member J Maclean
Statement made on 20 January 2025 at 8:05 am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – domestic violence – limited information provided – decision without a hearing – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106
Migration Act 1958 (Cth), ss 5, 36, 65, 348, 499
Migration Regulations 1994 (Cth), Schedule 2
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 9 January 2023 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 Malaysia, applied for the visa on 13 July 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 24 January 2023.
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.
BACKGROUND
Evidence before the Department
The applicant provided the following relevant information in their Application for a protection visa (the Application). She was born in [year] in Panang, Malaysia and lived at one address until departing for Australia. She is a citizen of Malaysia and no other country, and of Malaysian Chinese ethnicity. She did not declare any religion. She speaks, reads, and writes in the English language. She has never been married. She has never studied or been employed. She departed Malaysia legally in July 2015 on a Malaysian passport expiring in [2020]. She entered Australia as the holder of a valid visitor visa.
Included with the Application is a copy of the biodata page of the applicant’s Malaysian passport.
The applicant’s claims for protection are contained within the Application and they did not provide any other written or oral submissions or evidence. The claims are as follows:
·   She left Malaysia because of domestic violence.
·   The ‘violent person threat to kill’ her if she returns to her hometown.
·   With regard to whether she sought help within Malaysia, or whether authorities would protect her on return, she said ‘this situation always happened in my hometown’.
·   She did not relocate in Malaysia because her passport has expired and would not be able to relocate because she does not have a valid travel document.
Evidence before the Tribunal
On 5 December 2022 the department wrote to the applicant inviting her to provide additional information regarding the claims for protection. Reference was made to provision of specific information regarding the domestic violence claim, including the harm she may suffer as a result, whether she is still in contact with the person(s), and any evidence of the harm she faced in Malaysia. Further information about issues such as any previous or current relationships, details of individuals she fears or threats received, how the ‘violent person’ would find her in Malaysia, and about the delay in lodging the Application was also requested. The applicant did not respond to the letter.
The applicant was not invited to an interview with the department to discuss their claims for protection.
A delegate of the Minister for Home Affairs (the delegate) refused the visa application on 9 January 2023. The delegate’s decision notes the lack of detail and supporting evidence for the claims, the delay in lodgement, and the failure to provide further information and comment. The delegate was not satisfied the applicant’s claims were genuine and made a finding the claims were not credible.
Evidence before the Tribunal
The applicant lodged an application for review of the refusal decision on 24 January 2023.
On 31 October 2024 the Tribunal wrote to the applicant advising their file was being prepared to be given to a Tribunal Member and requesting she complete a Pre-hearing information form, which was attached. The Pre-hearing information form, among other things, asked the applicant if they wished to give any more information about the claims for protection or submit any further evidence. The applicant returned the Pre-hearing information form on 5 November 2024, however, no further information or evidence regarding her claims was provided.
On 21 November 2024 the Tribunal sent the applicant a Notice of hearing advising a Tribunal Member had been allocated to hold a hearing on 29 January 2025. The Notice of hearing stated that if the applicant requested the Tribunal to make a decision without a hearing, and the Tribunal proceeded to make a decision because it considers the issues can be determined in their absence, it was not guaranteed they would receive a favourable decision.
Along with the Notice of hearing, the applicant was provided with a factsheet called Information about hearings and a Response to hearing notice form. The factsheet notes the hearing is an opportunity to give evidence and present arguments relating to issues in the case.
On 14 December 2024 the applicant returned a completed Response to hearing notice form. In response to the question whether they will take part in the hearing the applicant responded by checking the box beside the words ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’.
On 13 January 2025 the Tribunal wrote to the applicant noting receipt of the hearing response form, indicating she would not participate in the hearing and requesting the Tribunal make a decision on the papers. The Tribunal advised the applicant their request had been accepted and the hearing had been cancelled.
Other than the information in the Application the applicant has provided no additional evidence or submissions to the Tribunal regarding their claims.
Making a decision without a hearing
For the reasons explained below, pursuant to sections 106(1) and 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), and having considered all documents and things given to the Tribunal, I have decided to make a decision in relation to the application for review without holding a hearing because:
·the only parties to the proceeding are the applicant and a non-participating party to the proceeding (s 106(3)(a)); and
·the applicant has requested the Tribunal to make its decision without holding the hearing of the proceeding (s 106(3)(b)(ii)); and
·it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding (s 106(3)(c)).
Section 348A(1) of the Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision (or a reviewable protection decision) for the purposes of the ART Act. Therefore, I am satisfied section 106(3)(a) is met.
I have considered the Notice of hearing, sent to the applicant on 21 November 2024, which alerted the applicant that a request for the Tribunal to make a decision without a hearing did not guarantee a favourable decision, and the applicant’s Response to hearing notice form. I am satisfied the response is a request by the applicant for the Tribunal to make a decision without holding a hearing, and that s 106(3)(b)(ii) is met.
Finally, I need to consider whether the issues for determination in the proceeding can be ‘adequately determined’ in the absence of the parties.
The issues the Tribunal is required to determine are:
·Whether the applicant has a well-founded fear of persecution in relation to Malaysia and meets the refugee protection provisions of the Act; and if not
·Whether the applicant meets the protection obligations under the complementary protection provisions of the Act.
‘Adequately determined’ is not defined in the ART Act. However, the ordinary meaning of ‘adequate’ in the Macquarie Dictionary is ‘equal to the requirement or occasion; fully sufficient, suitable or fit’ and in a legal context is ‘reasonably sufficient for starting legal action in the sense of ‘adequate grounds’. I consider that ‘adequately determined’ is not confined to a decision which is favourable to the applicant, as if it did, sub-paragraph 106(3)(b)(i), which contemplates a decision being made wholly in favour of the applicant, would be serve no purpose.
Considering s 106 in the broad context of the ART Act, and including the statutory objective of the Tribunal (set out in s 9 of the ART Act), ‘adequately determined’ means the Tribunal may make its decision without holding a hearing in the proceeding, thereby resolving the proceeding quickly, if it also appears to the Tribunal this can be done in a fully sufficient, suitable or fit way based on all the evidence before it, and where it is reasonable in all the circumstances to do so.
As described above, the applicant has been given a number of opportunities to provide further evidence and information regarding their claims, to both the department and the Tribunal. They also had the opportunity to attend a hearing and present their case or provide any further evidence. Pursuant to s 5AAA of the Act it is the applicant’s responsibility to specify all particulars of their claim and to provide sufficient evidence to establish their claim or claims.
I have considered whether it would be reasonable, or more reasonable, to invite the applicant to attend a further hearing, giving them a further opportunity to present their case, or if they should be invited to make written submissions or provide evidence regarding their claims. The applicant has been invited to a hearing and has declined to appear. They were also invited to provide information about their claims for protection or submit any further evidence in October 2024. The applicant has had very limited engagement with the Department or the Tribunal regarding their claims for protection. I am not satisfied further efforts to try to engage the applicant would be more meaningful or have a different outcome. In addition, further attempts would appear contrary to the Tribunal’s objective to provide a mechanism for review ensuring applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits. Therefore, I have decided not to undertake further outreach to the applicant.
Based on the evidence before me, I am satisfied s 106(3)(c) is met, and the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. Therefore, I have decided to give effect to the applicant’s request to make a decision without holding a hearing.
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
Nationality and identity
The applicant provided a Malaysian passport to the Department. I accept on this information the applicant is who they claim to be, that they are a national of Malaysia, and that Malaysia is the country of reference, and the receiving country, for the purpose of assessing their claims against the refugee and complementary protection criteria.
Consideration of the applicant’s claims
The applicant’s claims for protection are contained in the Application, as extracted at paragraph 7 above. The applicant has provided no further documentation, information or submissions, to support their claims, despite being informed a favourable decision was not guaranteed. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist applicants in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim or claims.
I have considered the applicant’s claims, both individually and cumulatively, and note the applicant has been given a number of opportunities to provide further evidence or information about those claims but has chosen not to do so. On the basis of the extremely limited information provided by the applicant, I am not satisfied any of the claimed events occurred in Malaysia, or that the applicant would face the claimed harm or mistreatment if returned to Malaysia. Specifically, I am not satisfied the applicant experienced domestic violence in Malaysia, that any person threatened her in her hometown or anywhere in Malaysia, or that she is at risk of any harm for those reason if returned to Malaysia. The evidence does not support a conclusion that the applicant faces a real chance of serious harm, or a real risk of significant harm, for any reason, including for the reasons claimed, now or in the reasonably foreseeable future, and I find that they do not.
CONCLUSIONS
I am not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 36(2)(aa) of the Act.
There is no suggestion the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…