2437850 (Refugee) - [2025] ARTA 1696

2437850 (Refugee) [2025] ARTA 1696 (2 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2437850
Tribunal:General Member D. Gordon
Date:2 July 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 02 July 2025 at 4:26pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Islam – particular social groups – lesbian women – women suffering domestic violence – unmarried women with illegitimate children – physically abused by her father, brother and her child’s father – sexual assault – relies on child’s father for welfare and support – fears violence, forced marriage and persecution – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 375A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA [2003] HCA 71
Chan Yee Kin v MIEA (1989) 169 CLR 379
MZAFC v MIBP [2016] FCA 1081
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, 27
SZBEL v MIAC (2006) 228 CLR 152
Withers v R [2025] NSWCCA 67
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 on 21 November 2016 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 9 April 2015.
The delegate refused to grant the protection visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant had a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant was not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant appeared before the Tribunal over two days on 13 and 27 June 2025 to give evidence and present arguments.
The applicant also submitted documentary evidence in support of her claims.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and…

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 2437850 (Refugee)

Details

AGLC: 2437850 (Refugee) [2025] ARTA 1696
Case: [2025] ARTA 1696
Decision Date: 2 July 2025

CaseChat Overview and Summary

This case involves an applicant from Malaysia seeking a protection visa in Australia. The applicant claims that she faces persecution in her home country due to her sexual orientation and membership in particular social groups, including lesbian women, women suffering domestic violence, and unmarried women with illegitimate children. The original decision by the Department of Home Affairs was under review by the Tribunal. The legal issues before the Tribunal were whether the applicant met the refugee criterion under section 36(2)(a) of the Act, the complementary protection criterion under section 36(2)(aa), or if she qualified as a member of the same family unit as someone who met the refugee or complementary protection criteria.

The Tribunal concluded that the decision under review should be set aside and remitted for reconsideration. The Tribunal accepted the findings of the delegate that the applicant was a lesbian woman who faced physical abuse from her father and others because of her sexuality. The Tribunal found that the applicant belonged to the social groups mentioned in her application and that the harm she feared was systematic, discriminatory, and constituted serious harm. The Tribunal determined that the applicant met the refugee criterion under section 36(2)(a) of the Act, as she had a well-founded fear of persecution based on her sexual orientation and membership in particular social groups.

The Tribunal took into account the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments prepared by the Department of Home Affairs and the Department of Foreign Affairs and Trade. The Tribunal found that the applicant’s identity and nationality were confirmed by her passport and personal particulars, and that she did not have a right to reside in any country other than Malaysia. Therefore, the Tribunal concluded that the original decision should be set aside and remitted for reconsideration, finding that the applicant satisfied the refugee criterion under section 36(2)(a) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be set aside and remitted for reconsideration on the basis that the applicant satisfies the refugee criterion in s 36(2)(a) of the Act. COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by her passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purpose of her protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Malaysia, and therefore s 36(3) of the Act is not applicable. THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT The Tribunal has before it the initial protection visa application lodged by the applicant with the Department. The applicant claimed persecution on grounds intersecting her religion and being a member of a particular social group attaching to her sexuality. The Tribunal notes that the applicant maintains her original claim for protection. FAVOURABLE FINDINGS OF THE DELEGATE BELOW The Delegate in the decision below has made findings in favour of the applicant. On paragraph 43 of the Decision Record, the Delegate accepted that:a.The applicant identifies as a lesbian but is naturally cautious about expressing her sexuality in the community, both in Malaysia and Australia. b.The applicant was physically abused by her father while living in Malaysia because she did not conform to his views about how women should behave in Malaysian society. On paragraphs 50, 52 and 54 of the Decision Record, the Delegate accepted that the applicant belonged to the particular social groups of lesbian women in Malaysia, of women suffering domestic violence in Malaysia, and of unmarried women with illegitimate children. On paragraphs 61 to 63 of the Decision Record, the Delegate accepted that the harm feared constituted serious harm and was systematic and discriminatory.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be set aside and remitted for reconsideration on the basis that the applicant satisfies the refugee criterion in s 36(2)(a) of the Act. COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by her passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purpose of her protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Malaysia, and therefore s 36(3) of the Act is not applicable. THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT The Tribunal has before it the initial protection visa application lodged by the applicant with the Department. The applicant claimed persecution on grounds intersecting her religion and being a member of a particular social group attaching to her sexuality. The Tribunal notes that the applicant maintains her original claim for protection. FAVOURABLE FINDINGS OF THE DELEGATE BELOW The Delegate in the decision below has made findings in favour of the applicant.