2314598 (Refugee) - [2025] ARTA 1351

2314598 (REFUGEE) [2025] ARTA 1351 (7 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2314598
Tribunal:General Member C Stokes
Date:7 April 2025

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

Statement made on 07 April 2025 at 1:30pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – decision without a hearing – race – ethnically Chinese – religion – Buddhist – sexuality – homosexuality – very general claims about his homosexuality – delay in applying for protection in Australia – applicant does not face a real chance of serious harm or a real risk of significant harm – decision under review affirmed

LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5, 36, 65, 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 then Minister for Home Affairs on 11 September 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 29 March 2023. The delegate refused to grant the visa on 11 September 2023.
On 17 September 2023, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
On 6 March 2025, the Tribunal invited the applicant to attend a hearing scheduled on 15 April 2025. On 1 April 2025, the applicant wrote to the Tribunal as follows:
I HERE REQUEST THE ART TRIBUNAL TO MAKE A DECISION WITHOUT HEARING INTERVIEW, BUT ART TRIBUNAL PLEASE MAKE A DECISION ON PAPERS.
On 3 April 2025, the Tribunal wrote to the applicant to advise the following:
I refer to the below request that the matter be determined on the papers without holding a hearing. The Tribunal Member is only able to do that if satisfied that the issues for determination in the proceeding can be adequately determined on the evidence available to them: see s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).
The relevant evidence available to the Tribunal includes your original protection visa claims and the delegate’s decision refusing the protection visa. To assist the Tribunal in considering whether the issues for determination can be adequately determined on that evidence, please can you advise you have any further information you wish to provide. Please provide a response within 7 days of this correspondence.
Please note that if the Tribunal proceeds to make a decision without a hearing, because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.
If you would in fact like the hearing scheduled on 15 April 2025 to proceed, please let us know as soon as possible.
Later that same day the applicant again wrote to the Tribunal to request that the Tribunal made a decision on the papers without a hearing.
BACKGROUND
The applicant is a [age]-year old male from Malaysia who was born in Kedah. He is ethnically Chinese and a Buddhist. He applied for protection in March 2023 after he had been in Australia since June 2016 when he arrived on a visitor visa. It appears once his visitor visa ceased in September 2016 he remained in Australia unlawfully until he applied for the protection visa.
Evidence before the Department
In the applicant’s visa application, he claimed to be a gay man who was bullied, scolded and despised by people because of his homosexuality. He claimed due to living under a shadow he suffered mental illness and sometimes even was injured because of unjust incidents. In response to a question in the application as to details of the harm the applicant experienced in Malaysia he claimed to have been bullied, scolded and threatened by people who disagree with homosexuality in Malaysia. He claimed he did not seek help in Malaysia as he knew that people would not assist but would ignore his situation. Further, he did not consider the authorities could keep him safe as homosexuality is not legal in Malaysia. He also claimed there was no point relocating to other parts of Malaysia because people would do the same things to homosexuals anywhere in Malaysia.
The applicant provided a copy of the biodata page of his passport and no further supporting evidence with his application.
On 9 August 2023, the Department send the applicant a letter which advised the applicant’s statement of claims lacked substantiating details such as dates and locations as well as supporting documentation in relation to his claims. This correspondence invited the applicant to provide more information about what happened to him in Malaysia, including dates, and locations of events. Further, annexed to the correspondence was a 1-page list of detailed questions requesting that the applicant provide, amongst other things, the following information:
a.when he first realised that he was attracted to men
b.details as to how he felt being gay in Malaysia
c.details of any relationships he has had either in Malaysia or Australia as well as evidence of those relationships
d.whether he has told his family and friends about his sexuality and if so details about their response
e.details of involvement in LGBTI groups in Australia
f.whether he had negative interactions with the authorities in Malaysia due to his sexuality
g.whether he attempted to hide his sexuality in Malaysia
h.details of the harm he fears on return to Malaysia.
On 27 August 2023, in response to the invitation to provide further information the applicant provided seven news articles about the situation for LGBT persons in Malaysia. He did not otherwise provide any response to the detailed questions put to the applicant in the Department’s 9 August 2023 correspondence.
The applicant was not invited to an interview with the delegate.
On 11 September 2023, the delegate refused to grant the visa on the basis that there was insufficient information as to what harm the applicant would face on return to Malaysia and the delegate did not accept that he would be harmed on return because of his claimed sexual orientation. Accordingly, the delegate was not satisfied that the applicant met the criteria in either s 36(2)(a) or 36(2)(aa).
REASONS AND FINDINGS
The issues to be considered in this case are as follows:
a.Should the Tribunal proceed to decide the matter without holding a hearing?
b.Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Act?
c.Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
Decision without a hearing
For the reasons that follow, the Tribunal has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. Namely, the Tribunal can reach a decision without holding a hearing when the applicant requests this (see 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 (see s 106(3)(c)).
As outlined above, on 6 March 2025, the applicant requested that the matter be determined on the papers without holding a hearing. Further, on 3 April 2025, the applicant again advised he will not attend a hearing and wished for the matter to be determined on the papers. I am satisfied that the applicant has requested, and consents to, the Tribunal making its decision without holding the hearing of the proceeding.
I must also consider that the issues for determination in the proceedings can be adequately determined in the applicant’s absence. In this case, the issues the Tribunal is required to determine as part of the review are the applicant’s identity and country of reference, and whether the applicant meets s 36(2)(a) or (aa) of the Migration Act. I am satisfied that the issues for determination, can be adequately determined in the applicant’s absence in this case. The Tribunal has a copy of the Department’s file which includes a copy of the applicant’s Malaysian passport and his protection visa application form, which contains the applicant’s biographical information and the claims for protection.
The applicant provided the Tribunal with a copy of the delegate’s decision with his review application. He has not provided any further claims, evidence, or arguments to the Tribunal. The applicant has been provided with a number of opportunities as outlined above by the Department and Tribunal to provide further evidence and information as to his claims. He was invited to attend a hearing in the Tribunal to give evidence and present arguments. This was an opportunity for him to further present his case and to provide further evidence. Despite being offered those opportunities, and the Tribunal informing the applicant that there was no guarantee of a favourable decision on the papers, the applicant has made it clear that he has no further information or evidence to provide the Tribunal and has made it clear he does not wish to attend a hearing.
On the information before me, I can be satisfied as to the applicant’s identity, determine his receiving country and form conclusions as to whether the applicant meets the criteria for a protection visa. I am therefore satisfied in the circumstances that the issues for determination in the proceeding can be adequately determined, in the absence of the parties to the proceeding, on the evidence available to the Tribunal.
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.
For the following reasons, I have concluded that the decision under review should be affirmed.
Country of reference: Malaysia
The applicant claims to be a Malaysian national and provided a copy of his Malaysian passport as evidence. I accept he is a Malaysian national and find Malaysia is his receiving country.
Does the applicant satisfy the refugee criterion for protection?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. Moreover, a decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. As per s 5AAA of the Act, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The applicant has made very general claims about his homosexuality and has not provided any history, context, or background about those claims. He has not referred to being in any same-sex relationships in Malaysia or Australia nor has he provided any evidence of such relationships. He has provided no background or history about the realisation of his sexual identity, or about his life as a gay man in Malaysia. While he has said he lived under a shadow he has not provided any details about whether he had told his family about his homosexuality and what, if any, their reaction was. He has not established how or when or to what extent he was harmed or affected in Malaysia, other than to make general, unparticularised claims to have been bullied, scolded and threatened by people who disagree with homosexuality. The applicant has also not provided any information about his life as a claimed gay person in Australia, where he has resided for more than 8 years, to corroborate his claimed sexual identity. The applicant has also not provided any information about his claim that he has suffered mental illness, including details of past or current mental health issues, or treatment for those mental health issues.
The applicant also delayed seeking protection for more than 6 years and has not provided any explanation for the delay.
Given the delay in seeking protection after coming to Australia, applicant’s limited evidence, and his choice to not provide further details and evidence to the Department and Tribunal despite being given opportunities to do so, I do not accept that the applicant is homosexual or that he has had any relationships men in the past, or that he would seek to have a relationship with a man on return to Malaysia. I also do not accept that he has experienced any incidents of harm in Malaysia, either physical or mental, on account of his sexuality or perceived sexuality. Accordingly, I am not satisfied there is a real chance the applicant would face serious harm on return to Malaysia for reason of his sexuality.
I accept that the applicant is of Chinese ethnicity and Buddhist religion. The applicant has made no claims for protection in respect of either his ethnicity, or his religion. There is no evidence before the Tribunal that would establish a claim for protection on either ethnicity, or religious grounds. Therefore, I am not satisfied there is a real chance the applicant would face serious harm on return to Malaysia for either of those reasons.
For the reasons given above, I am not satisfied that there is a real chance that the applicant would face serious harm if he returned to Malaysia. It follows that I am not satisfied that the applicant is a person in relation to whom Australia has protection obligations because he is a refugee. He does not meet the criterion for a protection visa set out in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion?
I have considered whether the applicant meets the complementary protection criterion set out in s 36(2)(aa).
I have found the applicant does not face a real chance of serious harm in Malaysia. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold.[2] For the same reasons given above, I find there is not a real risk the applicant will suffer significant harm.
[2] MIAC v SZQRB (2013) 210 FCR 505
Accordingly, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. He therefore does not meet the criterion for a protection visa set out in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that 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.
Date of hearing:                              N/A
Representative of the applicant:     N/A
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.
…