2422155 (Refugee) - [2025] ARTA 2099

2422155 (REFUGEE) [2025] ARTA 2099 (15 SEPTEMBER 2025)

Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2422155

Tribunal:General Member C Stokes
Place:Adelaide
Date:15 September 2025

CORRIGENDUM

Date of Corrigendum: 14 October 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the statement of reasons for the decision:
The decision at paragraph [31] is altered to read:
The applicant claims to be a national of Taiwan and was assessed by the Department on that basis. She travelled to Australia on an apparently genuine Taiwanese passport. The Department file contains a copy of her passport. I accept the applicant is a Taiwanese citizen and have assessed the claims against Taiwan as the country of nationality and the receiving country.

Statement made on 14 October 2025 at 11:30am

Decision and Reasons for Decision

Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2422155
Tribunal:  General Member C Stokes
Date:  15 September 2025
Place:  Adelaide
Decision:  The Tribunal affirms the decision under review.

Statement made on 15 September 2025 at 4:09pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – decision on the papers – clear and unambiguous request – issues for determination readily identifiable – fears potential war between Taiwan and mainland China – no further information or evidence provided – entirely speculative – US likely to support Taiwan – decision under review affirmed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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.

In accordance with s 369 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 29 June 2024 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 the Republic of China (Taiwan), applied for the visa on 30 August 2022. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 10 July 2024, 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…

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.

Continue reading 2422155 (Refugee)

Details

AGLC: 2422155 (Refugee) [2025] ARTA 2099
Case: [2025] ARTA 2099
Decision Date: 15 September 2025

CaseChat Overview and Summary

The case of 2422155 (Refugee) involved an applicant from Taiwan seeking a protection visa in Australia. The applicant's concerns revolved around the potential for a war between Taiwan and mainland China, and she requested a decision on the papers rather than attending a hearing. The matter was reviewed by the Administrative Appeals Tribunal (AAT), which affirmed the decision of the Department of Home Affairs to refuse her visa application.

The primary legal issue before the AAT was whether the Tribunal could validly make a decision without holding a hearing, given the applicant's clear and unambiguous request, and whether the issues for determination could be adequately resolved without her presence. The AAT considered whether the applicant's fears of a potential war between Taiwan and mainland China were sufficiently substantiated to warrant a protection visa.

The AAT concluded that the applicant had indeed made a clear and unambiguous request for a decision on the papers, and that the issues in the proceeding could be adequately determined without her presence. The Tribunal noted that the applicant had been given multiple opportunities to provide further information and evidence, but had chosen not to do so. The AAT found that the applicant's fears, while concerning, were largely speculative and not supported by concrete evidence. The Tribunal also highlighted the lack of any concrete evidence suggesting that the United States would intervene in a conflict between Taiwan and mainland China.

In affirming the original decision, the AAT concluded that the applicant's claims did not meet the threshold for a protection visa, as they were based on speculative fears rather than a well-founded belief of persecution. The AAT's decision was based on the available documentation and the lack of additional evidence or information provided by the applicant.

The final orders of the AAT affirmed the Department's decision to refuse the applicant's protection visa application. The applicant's request for review was dismissed, and no further appeal was permitted without leave.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As set out above, on 26 June 2025 the applicant was sent an invitation to a hearing scheduled to take place on 29 July 2025. On 29 July 2025, the applicant was sent a further hearing invitation to a hearing scheduled to take place on 4 September 2025. In each invitation it was explained to the applicant that:What if I want the Tribunal to make a decision without holding a hearing On 26 August 2025, the applicant emailed the Tribunal the ‘Response to hearing notice’ indicating that she would not attend the hearing and requested a decision on the papers. Further, the covering email noted:Please refer to the attached file. I do not want to attend the hearing. Could you please make the decision on the papers? Also on 26 August 2025, the Tribunal wrote to the applicant as follows:Dear [the applicant] The applicant did not respond, and the hearing was subsequently cancelled. On 1 September 2025 the Tribunal wrote to the applicant as follows:Dear [the applicant], 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 inthe proceeding can be adequately determined in the absence of the parties to the proceeding (see s 106(3)(c)). These provisions were considered by the President and two Deputy Presidents of the Tribunal in the case of 2010120 (Refugee) [2025] ARTA 550. I am guided by their decision, and also that of the Federal Circuit and Family Court of Australia in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 at [59] and [60] and in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 at [70]-[77], [83], [87] and [90]. As set out above, the applicant requested on 26 August 2025 that the Tribunal make a decision on the papers via the ‘Response to hearing notice’ which she submitted from her email address which included a covering email reiterating the request. I am satisfied that the applicant has made a clear and unambiguous request, 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 for determination are readily 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 Taiwanese passport and her protection visa application form, which contains the applicant’s biographical information and the claims for protection. Further, the applicant provided the Tribunal with a copy of the delegate’s decision with her review application. As outlined above, the applicant has been provided with multiple opportunities by the Department and Tribunal to provide further evidence and information as to her claims. Despite being offered those opportunities, and the Tribunal informing the applicant that there was no guarantee of a favourable decision on the papers as well as that the Tribunal may consider the application on a different basis to which the delegate of the department refused the visa, the applicant has made it clear that she has no further information or evidence to provide the Tribunal and has made it clear she does not wish to attend a hearing.

Ratio Decidendi

Legal Principle Established

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